Governance and M&A, when the stakes get higher

Neither is mandatory for most Dutch BVs. The question is when you want a body that holds the board to account. In practice that moment arrives in one of three ways: an investor wants a seat, the founder-CEO wants to be challenged, or the company outgrows informal steering. The difference matters. An advisory board has no formal powers and advises. A supervisory board supervises, carries statutory duties, and its members carry their own liability. Choose deliberately. Installing a supervisory board because it looks mature, when what you actually want is sparring partners, creates obligations nobody intended.

Getting sale-ready is largely tidying up, and it pays off most when you start well before the sale. Whatever a buyer finds in due diligence and does not understand translates into a lower price, a warranty, or part of the purchase price deferred. The recurring items: is the intellectual property actually held by the company, is the shareholders register up to date, are board and shareholder decisions documented, do key customer contracts contain a change-of-control clause the buyer could trip over, are key employees tied in, and are transactions with parties close to the founder on arm's length terms. Each of these can be fixed in advance and, afterwards, only explained.

Watch the assumption that it is a merger of equals. It almost never is. There is nearly always a difference in revenue, margin, debt position, quality of the customer base, dependence on one individual, or simply in how much energy each side has left. That inequality is not a problem in itself. It becomes one when it is not named and not priced, because the conversation is uncomfortable. It then returns a year later as a fight over control, where it cannot be resolved. So have that conversation before any documentation exists: who decides what, how are the two contributions valued, what happens if one side falls short of forecast, and by what route can someone get out again.

By not assuming it works the way it does here. What is self-evident in the Netherlands rarely is elsewhere: the formalities for a share transfer, the rules on taking over staff, the role of a works council or union, merger control filings, and foreign investment screening. That last one has been tightened in many countries in recent years and can delay a deal by months. Local counsel is therefore not a luxury but a condition, and you engage them before the letter of intent, not after. We keep control of the process, handle the structuring, and make sure the Dutch and local parts fit together. Agree in advance which law applies, which court or arbitral institute has jurisdiction, and which language version prevails. Those three tend to be settled last, by which point they are no longer negotiable.

A director who has a personal interest in a decision that conflicts with the company's interest may not take part in the decision-making on it. For the BV this is set out in article 2:239(6) of the Dutch Civil Code. If that excludes all directors, the decision moves to the general meeting, unless the articles provide otherwise. In founder-led companies this arises more often than people expect, because the director is usually also a shareholder, and sometimes the landlord or the provider of a loan. Ignore the rule and the decision becomes vulnerable to challenge, and it supplies material for a later discussion about director liability. Recording that the point was recognised and how it was handled costs one paragraph in the minutes.