walslaw, Amsterdam boutique law firm
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Share deals

In a share deal the buyer acquires shares in a BV or NV and thereby obtains the company as a whole, with its contracts, liabilities and historical position remaining with the company. The legal architecture is concentrated in the share purchase agreement and the notarial deed that transfers title. We draft and negotiate Dutch share deals across the mid-market and work alongside specialist tax counsel on holding structures. The aim is an SPA that holds up in practice, against diligence findings, financing conditions, regulatory filings and the late-stage developments that arise on most transactions.

When clients call us

  • You need an SPA drafted or reviewed for a Dutch share transfer
  • Change-of-control or pre-emption issues need to be unlocked
  • Notarial transfer and closing mechanics must be coordinated
  • W&I insurance is on the table and you want the policy and the SPA to align
  • A cross-border holding structure sits behind the share transfer

Key legal & commercial issues

I.

Why parties choose a share deal

Share deals are the Dutch default for going-concern targets. The company keeps its contracts, permits, employees and history intact at the target level, subject only to change-of-control clauses and any regulatory consents. For corporate sellers, the participation exemption usually shelters the gain from Dutch corporate income tax, a significant structural advantage.

The trade-off is that the buyer takes on the full legal and tax history of the company. The allocation of that risk, through due diligence, warranties, indemnities and, where appropriate, W&I insurance, forms the substance of the SPA negotiation.

II.

Dutch-law specifics that shape the SPA

  • The articles of association may contain pre-emption rights, blocking arrangements and approval requirements. Any shareholders' agreement may also contain contractual transfer restrictions, which need to be addressed before closing.
  • Change-of-control clauses in material contracts and financing arrangements need to be mapped and either waived or worked around.
  • Works council advice under the WOR, at the target and sometimes also at the buyer or the seller, may be required and must be sequenced before final commitment.
  • FDI screening under the Wet Vifo and antitrust filings with the ACM, the European Commission or foreign authorities can gate closing.
  • Transfer of BV shares requires a notarial deed of transfer before a Dutch civil-law notary (art. 2:196 DCC). Registered shares in a non-listed NV are subject to the same requirement (art. 2:86 DCC).
III.

Price mechanics and warranty package

Locked-box and completion accounts are both used in Dutch transactions. A locked box requires clean, reliable accounts at the locked-box date and a tight leakage definition, while completion accounts require a workable mechanism, a dispute-resolution clause and an experienced accountant on each side. The warranty package, the qualifiers and the limitations are calibrated to the transaction at hand rather than carried across from a previous one.

What we advise on

What we advise on

  • SPA drafting and negotiation (locked-box and completion accounts)
  • Notarial transfer of BV and NV shares
  • Conditions precedent: regulatory, financing, third-party consents
  • Warranty package design and W&I insurance alignment
  • Cross-border share transfers with multiple sellers
  • Carve-outs and reorganisations before the share transfer
  • Closing mechanics, funds flow and post-closing deliverables

Typical documents and deliverables

Typical documents and deliverables

  • Share purchase agreement
  • Notarial deed of share transfer
  • Shareholders' resolutions and board resolutions
  • Resignation and discharge of directors
  • Escrow, W&I and financing documents where applicable
  • Updated shareholders' register and KvK filings

How we support the process

How we support the process

  1. 1

    An early confirmation of the structure, the parties and the timetable to signing and closing

  2. 2

    A map of the approvals, consents and conditions precedent that gate the share transfer

  3. 3

    Drafting and negotiation of the SPA, the disclosure letter and the ancillary documents

  4. 4

    Coordination of the notarial transfer with the civil-law notary and the closing agenda

  5. 5

    Closing, funds flow and the post-closing deliverables, from the shareholders' register to the KvK filings

Questions clients ask before instructing us

Questions clients ask before instructing us

What is locked-box pricing and when does it work best?
Under a locked-box the price is fixed at signing by reference to a balance sheet at an agreed locked-box date, usually the last audited or reviewed accounts. Economic risk and reward pass to the buyer from that date, so there is no completion accounts adjustment. The buyer is protected by a leakage covenant: any value that leaves the target to the seller or its affiliates between the locked-box date and closing is repaid in accordance with the agreed terms, with permitted leakage carved out. It works best where the accounts are reliable, the gap between locked-box date and closing is short, and the business is stable. It works poorly for carve-outs with no standalone balance sheet.
How do change-of-control clauses affect a Dutch share deal?
A share deal leaves the contracting entity unchanged, which is its main advantage, although change-of-control clauses qualify that advantage considerably. Key customer contracts, supply agreements, leases, licences, IT and franchise arrangements, and almost all financing documents commonly give the counterparty a consent right or a termination right on a change of control. Identifying them is a core due diligence task, because each one is a potential condition precedent, a price issue or a post-closing risk. The commercial question is whether to approach counterparties before signing, which risks leakage, or to accept the risk and manage it after closing. On financing documents there is usually no choice, since lender consent or refinancing has to be arranged before closing.
What happens to the management team on a share deal?
Statutory directors hold two positions at once: a corporate appointment and an employment or services relationship. The shareholder can dismiss a statutory director from the corporate role by shareholders' resolution, subject to the convocation requirements and the director's right to be heard, and under Dutch law that dismissal generally ends the employment relationship too, with transition payment and notice obligations. Where the buyer wants management to stay, the real work is the incentive package: new employment terms, a management participation plan, vesting, good and bad leaver provisions and non-compete protection. Where the buyer does not, the exit terms should be agreed before signing and documented as a condition or a closing deliverable, not left to negotiate afterwards.
Does Dutch real estate transfer tax apply to a share deal?
It can. Shares in a company that mainly holds real estate may be treated as real estate for transfer tax purposes. Whether that applies depends on the composition of the company's assets and the interest being acquired. This is a tax matter and is assessed early in the structuring, with a tax advisor.
Do BV share transfers always require a Dutch notary?
Yes, a transfer of BV shares requires a notarial deed executed before a civil-law notary practising in the Netherlands (art. 2:196 DCC). Registered shares in a non-listed NV also require a notarial deed, whereas a different rule applies to registered shares in a listed NV. Title does not pass without it. The notary checks corporate authority and the shareholders' register, performs Wwft identification, and usually acts as escrow agent for the purchase price. This applies regardless of the governing law of the SPA, in that an English-law or New York-law purchase agreement is perfectly workable, but the transfer instrument itself must be Dutch and notarial. We build the notary into the timetable at an early stage, particularly where powers of attorney must be legalised or apostilled abroad.
Can a share deal be closed remotely?
Share deals can be closed remotely, and most closings now take place that way. The parties grant powers of attorney to notarial staff, who execute the deed of transfer in the Netherlands while the parties join by video or simply confirm by email that the conditions are satisfied. The practical constraint is not the signing but the paperwork behind it: powers of attorney from foreign entities usually need notarisation and an apostille, corporate authority documents need to be current, and Wwft identification of ultimate beneficial owners takes longer than is generally anticipated. We advise clients to begin collecting those documents well before closing rather than shortly before it. Funds flow, board resolutions and the closing agenda are handled in the same way as at an in-person closing.

Related areas

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