What are the changes when holding a GM?

Virtual GM

The management board of the company (Board) may decide to hold a virtual GM in which valid resolutions can be taken,

1. irrespective of whether this possibility has been included in the articles of association;

2. provided that shareholders/attendees are able to follow the GM electronically; and

3. provided that shareholders have been timely given the opportunity to timely submit questions on the voting and discussion items included in the agenda for this GM.

• The GM notice must clearly state that it will be held as a virtual meeting (if the GM has already been convened, it can still be changed to a virtual meeting as long as notification is provided at least 48 hours prior to the GM).
   
• Shareholders must be able to submit their questions regarding voting and discussion items in writing in advance of the GM (e.g., through a special e-mail address/chat). The deadline for submitting these questions is 72 hours prior to the GM; a 36-hour period applies in the event the GM was changed to a virtual meeting. Timely submitted questions must be answered before or during the virtual GM. Answers are to be made available to the shareholders by posting them on the company website or via another electronic manner.
   
• Speaking and exercising voting rights at the GM can be done electronically. The Board can also decide that votes are to be submitted in advance of the GM in writing/electronically, as long as this is clearly stated by the Board. This should be included in the notice convening the GM.
   
• Depending on the number of expected participants, the Board may decide on either one-sided communication (allowing electronic communication following the GM only, e.g., by e-mail/video or audio stream) or two-sided communication (allow electronic interaction at the GM, e.g., by video or telephone/ audio-visual meeting application).
   
• Occurrence of a poor/faltering connection during a virtual GM does not affect the legal validity of resolutions taken at such virtual GM.

Physical GM or a combination of physical/electronic GM⁴

The Board may decide to hold a physical GM and simultaneously facilitate electronic participation to such physical GM, i.e. in which the shareholders may speak and cast their votes electronically.

• The Emergency Act allows for other meeting forms; a physical GM or a combination of a physical/electronic GM is possible provided that this is clearly communicated to the shareholders (at least 48 hours prior to such meeting).

Postpone the GM

The Board may decide to postpone the annual GM (to be held within 6 months after the end of the financial year, or any shorter period as included in the articles of association) with a maximum period of 4 months.

What are the changes when holding a meeting of the Board or supervisory board of the company (Supervisory Board)?

Virtual or physical meeting

Subject to the consent of all members of the Board/Supervisory Board, a meeting can be held electronically or physically, also if this is in deviation from the provisions on such meetings included in the articles of association of the company.

• Prior approval rights of the Supervisory Board on Board decisions may be set aside according to the explanatory memorandum to the Emergency Act.⁵
   
• While holding a virtual meeting is possible, the holding of a physical meeting can be of importance from a tax perspective (e.g., ‘substance requirements’).
   
• To date, no guidelines have been issued by the Ministry of Finance on how to deal with these substance requirements during this time of travel limitations/social distancing.

What are the changes when preparing the annual accounts?

Deadline extension for preparing the annual accounts

The Board may extend the deadline for preparing the annual accounts by 5 months up to a maximum of 10 months in total.

• Dutch BV/NVs are required to timely prepare the annual accounts within 5 months of the end of the financial year.
   
• The Board may now extend this by an additional 5 months (in which case the GM may not use the extension option), resulting in a total period of 10 months after the end of the financial year.
   
• Despite the extension for the preparation of the annual accounts, the annual accounts still need to be published with the Chamber of Commerce within 12 months after the end of the financial year. If, as a result of COVID-19 circumstances, the annual accounts are not published in time, the Emergency Act temporarily limits the burden of proof for Board members’ liability in event of bankruptcy.⁶
   
• However, the Board must still comply with its general (financial) administration tasks despite COVID-19. In this respect the evidentiary presumption continues to apply.⁷