Valuation clause disregarded on a forced shareholder exit

The price of shares on withdrawal

Five employees bought the business they worked for in 2022. When four of them wanted the fifth to leave, they invoked the valuation clause in their own shareholders' agreement, with a cap of two million euro. On 16 July 2026 the Enterprise Chamber disregarded that clause in full and ordered an expert investigation into the value (ECLI:NL:GHAMS:2026:1963).

Employee buy-out ends in a forced departure

X-Center Benelux B.V. organises business information and information flows within organisations, also known as Enterprise Content Management. When the then majority shareholder wanted to sell in 2021, the finance manager and four consultants incorporated X-Center Holding B.V. in Sittard, which acquired all the shares on 26 April 2022. The finance manager held 18 per cent through his holding company. The purchase price was two million euro, of which two hundred thousand euro was contributed by the shareholders themselves; the remainder came from a loan from ING and a subordinated loan from the seller, to be repaid by 1 April 2029 at the latest.

The shareholders' agreement was concluded only on 6 February 2025, almost three years after the acquisition. Article 10.2 contained a price formula with a maximum: until that same date of 1 April 2029, enterprise value was capped at two million euro. That cap matched the price the shareholders had themselves paid for the shares.

Seven months after signing, from September 2025, the other four shareholders pressed for their colleague's departure. Their stated reason was that he was not filling his entrepreneurial role. What that role involved remained unclear, and his performance as finance manager drew no objection at all. When he refused to sell at the contractual price, he was told that his services agreement would be terminated. Under article 6 of the shareholders' agreement, that termination would trigger a mandatory offer of his shares.

Enterprise Chamber strikes out both cap and formula

Withdrawal was granted under Section 2:343(1) DCC. Five circumstances carried that finding. The complaint about the entrepreneurial role had never been raised before and had never been discussed with him, and struck the Enterprise Chamber as rather an argument of convenience. Termination of the services agreement was held out as a threat in order to force an offer obligation. A one-off additional management fee for 2022 to 2025 was tabled from which only those staying would benefit, bearing the hallmarks of a disguised profit distribution. The file showed that preparations were already being made for a new shareholder to take his place. And a message to staff about differences of view within finance put his position under further pressure.

Then came the price. Section 2:339(3) DCC allows the Enterprise Chamber to dispense with an expert, but only where the articles or an agreement contain a clear yardstick and it can fix the price on that basis without more. Section 2:340(3) DCC cuts across that: it disregards such clauses in so far as they would lead to a manifestly unreasonable price. The same limit may stand in the way of a bespoke arrangement within the meaning of Section 2:337(1) DCC, since it would otherwise make the transfer of shares exceptionally onerous (Parliamentary Papers II 2008/09, 31058, no. 3, p. 100).

The difference was substantial. Average EBITDA over 2023 to 2025 came to roughly 925,000 euro, and the parties agreed on a multiple of 6.7 from the Brookz acquisition barometer. Without the cap, enterprise value comes to over 6.1 million euro, against the two million the remaining shareholders sought to hold to. For the 18 per cent stake this meant a price of roughly 593,817 euro with the cap and roughly 1,350,000 euro without it.

The cap was defensible on a voluntary departure before the repayment date, the Enterprise Chamber held: the shareholders were meant to stay involved until the purchase price had been earned back. A forced departure on plainly improper grounds changes that, all the more because the value built up then accrues to the remaining shareholders. Applying the clause here would produce a manifestly unreasonable price.

The Enterprise Chamber then went further than the departing shareholder had asked. He wanted only the cap struck out and the formula kept, which would have produced roughly 1,350,000 euro. The remaining shareholders asked in the alternative for the whole mechanism to be disregarded, and that request was followed. Cap and formula had been agreed as one package and that package cannot be cut in half; nor was the Enterprise Chamber willing to set a replacement cap of its own, which would inevitably be arbitrary. There was a methodological objection as well: the formula added shareholders' equity to an EBITDA multiple less net debt. That combines a market value method with an accounting method. Those defending the cap thereby lost the clause in its entirety.

A manifestly unreasonable price in the case law

The yardstick is rarely reached. In the corpus analysed, five rulings contain the term, all from the Amsterdam Court of Appeal. In three of them the court applies the yardstick itself; in two it appears as a submission by a party.

It was applied in an expulsion case of 11 June 2026, in which the Enterprise Chamber set out the four requirements for a bespoke arrangement: it must be capable of leading to an actual transfer, within a foreseeable period, without making that transfer impossible or exceptionally onerous, and without producing a manifestly unreasonable price (ECLI:NL:GHAMS:2026:1603). In an inquiry case from 2023 the same limit applied to an arrangement in the articles (ECLI:NL:GHAMS:2023:647).

In two further cases the reliance on the yardstick failed, and those are at least as instructive for practice. In October 2025 the Enterprise Chamber in fact upheld a calculation method with a multiple of 3.2, despite the submission that 4.5 to 5.5 was customary in the sector: the parties had themselves considered that multiple appropriate, and the possibility that higher multiples are used in the sector does not detract from that (ECLI:NL:GHAMS:2025:2954). That the price there nevertheless came out higher was not down to the valuation clause but to an equitable uplift, because the majority shareholder's conduct had depressed EBITDA. What the Enterprise Chamber did amend in that shareholders' agreement was the non-competition and non-solicitation clause, on the ground of mistake. And in an appeal that the Enterprise Chamber referred to the civil division in 2020 for want of jurisdiction, a departing shareholder argued that an adjusted earnings value method produced a price of nil against an acquisition price of over one and a half million euro; the court left that question open and ordered an investigation into both that method and a DCF valuation (ECLI:NL:GHAMS:2020:1563).

The X-Center ruling goes beyond all four: here the whole mechanism falls away.

What does this mean for a valuation clause?

Anyone drafting a valuation clause would do well to distinguish the reason for departure. A clause producing a low outcome is not struck down by the size of the gap alone: in the October 2025 case a multiple of 3.2 survived while 4.5 to 5.5 was cited for the sector. What made the difference in the X-Center case was that the departure had been provoked by the fellow shareholders who would benefit from the depressed price. A cap meant to discourage cashing out early therefore belongs on a voluntary exit and not on a departure that the fellow shareholders themselves bring about. Leaving that distinction out risks losing the entire arrangement.

The structure of the clause matters just as much. Because cap and formula had been agreed as one package, the formula fell away when the cap did. Anyone who wants the formula to stand on its own should say so expressly. The calculation method itself also deserves attention: an EBITDA multiple less net debt with shareholders' equity added on top counts part of the value twice, and gave the Enterprise Chamber a further reason to pass over the clause.

The timing of the drafting also weighs in. The agreement here was signed almost three years after the acquisition and invoked seven months later against one of its signatories.

Finally, the offer obligation hanging off a management agreement. That construction is common, and it works against the party using it as soon as the termination mainly serves to prise the shares loose.

Where the Enterprise Chamber fixes the price, the weight shifts to the expert's investigation. When a request to replace the valuation expert stands a chance is set out separately.

Cited case law

Amsterdam Court of Appeal (Enterprise Chamber)
- ECLI:NL:GHAMS:2026:1963: withdrawal granted, price mechanism disregarded in full for producing a manifestly unreasonable price
- ECLI:NL:GHAMS:2026:1603: four requirements for a bespoke arrangement displacing the statutory dispute resolution
- ECLI:NL:GHAMS:2025:2954: calculation method with a multiple of 3.2 upheld despite higher sector multiples; price raised through an equitable uplift, not through Section 2:340(3) DCC
- ECLI:NL:GHAMS:2023:647: an arrangement in the articles may not produce a manifestly unreasonable price either

Amsterdam Court of Appeal (civil division, after referral by the Enterprise Chamber)
- ECLI:NL:GHAMS:2020:1563: reliance on a manifestly unreasonable price under an adjusted earnings value method; the court left the question open and ordered an expert investigation into both that method and a DCF valuation

Juriaan de Vries — lawyer at Prime Law, specialising in corporate and commercial litigation. See the disclaimer.

See also

• Replacing the valuation expert: when does such a request succeed?
• Shareholder exit and expulsion: the dispute resolution procedure before the Enterprise Chamber: the procedure, the standards and the pricing in detail
• Buying out a fellow shareholder: the three routes and what determines the price
• Does a shareholders' agreement prevail over the articles?: the order of precedence between contract and articles