The major shareholder, who was also a co-founder, was dismissed as a director and subsequently came off worse in the withdrawal proceedings: in this ruling, the Enterprise Chamber has raised the bar for those wishing to withdraw under Article 2:343 of the Dutch Civil Code.
The case
Mama Giraffe B.V. is the holding company of the Green Giraffe Group, an internationally operating company specialising in consultancy, financing and the development of projects in the field of the energy transition. The company was incorporated in 2019 as the parent company following a restructuring of the group. Shareholders include the co-founders, each through their personal holding companies, and the Japanese bank Daiwa, which indirectly holds a 50 per cent stake in two subsidiaries.
The applicant is the personal holding company of one of the co-founders and, until his resignation on 29 July 2025, was also a director of Mama Giraffe. At the time of the proceedings, he held 23.80 per cent of the ordinary shares, making him the largest individual shareholder.
The roots of the dispute lie in 2022. At that time, the shareholders’ meeting resolved that the co-founder would focus on setting up a new investment fund, Virida, and step back from day-to-day management. The minutes recorded that those who moved to the fund would have their positions within the group guaranteed for a limited period.
By the end of 2024, the subsidiaries’ results came under pressure and Virida found itself without external funding. In January 2025, a co-director stated by email that there was no longer a role for the co-founder as a manager and that the management agreement would be terminated in a manner that qualified as a compulsory offer event within the meaning of Article 4.5.1 of the Shareholders’ Agreement (SHA).
The parties entered into negotiations. On 21 March 2025, a deal proposal approved by all shareholders was in place: the sale of a portion of the shares to Mama Giraffe, the conversion of the remainder into non-voting shares, an immediate payment of approximately 1.75 million, and the transfer of Virida to the co-founder.
The draft settlement agreement subsequently presented proved not to go far enough for the co-founder. He repeatedly proposed amendments, sometimes described as ‘deal breakers’, always on a ‘non-binding’ basis. The other party warned on several occasions that the proposals would not be acceptable. On 6 June 2025, the Virida transaction was finalised. Twelve days later, the management agreement was terminated. On 20 June 2025, a fellow director announced that further negotiations would not be pursued.
On 29 July 2025, the shareholders’ meeting passed a resolution by a two-thirds majority to remove the holding company as a director of Mama Giraffe. A vote on the compulsory offer event was deferred due to the irreversibility of such a decision. In a judgment of 5 February 2026, the judge in summary proceedings had already ruled that no settlement agreement had been reached. On 24 December 2025, the holding company had requested the Enterprise Chamber to order its co-shareholders to acquire the shares at a purchase price of 19,599.241 euros, or following an expert valuation, subject to a fair increase.
The legal issue
The central question is whether the holding company’s rights or interests have been prejudiced to such an extent by the conduct of Mama Giraffe and/or the shareholders that it can no longer reasonably be expected to continue its shareholding, such that withdrawal on the basis of Section 2:343(1) of the Dutch Civil Code is justified.
The holding company argued that it had been promised a return guarantee, that it was entitled to a severance package comparable to that of a co-founder who had left earlier, that the deal proposal was a binding agreement which had wrongfully not been implemented, and that the negotiations had been abruptly broken off at a meeting in London of which it had not been informed.
The ruling
The Enterprise Chamber dismissed the application by order of 9 July 2026 (ECLI:NL:GHAMS:2026:1872, available at uitspraken.rechtspraak.nl).
The assessment framework set out in Section 2:343(1) of the Dutch Civil Code comprises three cumulative criteria: the conduct criterion, the damage criterion and the reasonableness criterion. The Enterprise Chamber examines the first two and leaves the third unaddressed.
The conduct criterion
The Enterprise Chamber finds that the alleged return guarantee and the entitlement to an equivalent severance package have not been sufficiently substantiated and are not evident from the documents. The minutes of the shareholders’ meeting of 6 October 2022 provide no basis for this, not least because the period to which that undertaking related had already long since expired.
With regard to the deal proposal, the Enterprise Chamber considers that it has not been established that the negotiators acting on behalf of Mama Giraffe were authorised agents or representatives of the board or the shareholders. The deal proposal merely led to a draft settlement agreement as a starting point for further negotiations. The holding company itself made amendments on a ‘non-binding’ basis, thereby acknowledging that no agreement had yet been reached, and was repeatedly warned that its proposals would not be acceptable.
The Enterprise Chamber describes the abrupt end to the negotiations following the closing of the Virida transaction on 6 June 2025 as "unexpected". At the hearing, the shareholders were unable to provide a satisfactory explanation as to why they terminated the negotiations immediately afterwards, nor why they did not accept the co-founder’s offer to adopt the draft VSO in the shareholders’ most recent version. However, the Enterprise Chamber considers this conduct insufficiently serious to constitute behaviour that renders the shareholding untenable.
The damage criterion
Even if the conduct criterion had been assessed differently, the Enterprise Chamber would still dismiss the claim on this point. The result of the failure of the negotiations is that the holding company finds itself in the same contractual position as all other shareholders: bound by the SHA. That agreement provides, depending on the voting ratios, for a phased buy-back via the cash sweep arrangement or for conversion to non-voting shares whilst retaining dividend rights. As a founder, the holding company was involved in the drafting of those provisions and accepted the agreement as a contracting party. The fact that other shareholders were granted more favourable exit arrangements does not constitute conduct within the meaning of Section 2:343(1) of the Dutch Civil Code; the same applies to the request for the transfer of shares, which is directly based on the SHA.
Since neither the conduct criterion nor the damage criterion supports an award, the Enterprise Chamber disregards the reasonableness criterion. The holding company is ordered to pay the costs of the proceedings: 4,721 euros on the part of Mama Giraffe and 4,721 euros on the part of the shareholders.
Implications for practice
This ruling confirms that the threshold for withdrawal under Section 2:343 of the Dutch Civil Code remains high, even where negotiations are proving difficult and the applicant’s exit position appears unfavourable compared with that of fellow shareholders.
Two lessons stand out. Firstly, a deal proposal does not count as an agreement as long as the parties themselves describe the negotiations as ‘non-binding’ and the applicant continues to make substantive changes. It is then difficult to maintain that there has been a loss of legitimate expectations. Secondly, the mere observation that shareholders abruptly break off negotiations without a convincing explanation does not provide sufficient grounds for withdrawal if the result of that breakdown is that the contractual rules simply remain in force – rules which the claimant themselves accepted and helped to draw up.
For shareholders anticipating an exit dispute: ensure that commitments regarding return or exit arrangements are set out in writing and in no uncertain terms. And pay attention to the power of representation: negotiators speaking on behalf of a company without their authority being clearly established do not automatically bind that company.
What you can do
Are you, as a shareholder, considering withdrawing, or are you, as a company or co-shareholder, facing a request for withdrawal? If so, it is worth assessing the strength of your position in advance against the three criteria set out in Article 2:343 of the Dutch Civil Code: conduct, damage and the question of reasonableness. We would be happy to advise you on substantiating your request or defence, interpreting a shareholders’ agreement and determining whether negotiating behaviour is legally relevant to withdrawal proceedings.
Further information?
Please contact Michiel or one of the other professionals from the Corporate & Commercial Litigation.
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