About Mathijs 

Mathijs has been an attorney with La Gro since 2012. He is a partner in corporate/M&A law, and heads our ESG Project Team. He assists entrepreneurs and investment companies (PE/VC) in mergers, acquisitions, or shareholdings. He also regularly conducts litigation in respect of corporate or company law disputes in summary proceedings or before the Enterprise Chamber. As an ESG specialist, he is well versed with ESG due diligence and ESG reporting, and he has a solid understanding of sustainability objectives and good governance. He prefers an informal approach, and is pragmatic, flexible, analytical, and quick to get to the point. He is actively dedicated to his cases and never shies away from creative solutions, focusing on creating added value for his clients and their businesses. 


  • Business and corporate law
  • Mergers and acquisitions
  • Shareholder disputes
  • Corporate Governance / Corporate Housekeeping

Qualifications and experience

  • Master’s degree in Business Law (Radboud University Nijmegen, 2011)
  • Grotius Specialisation Programme in Business Law and Corporate Law (2016-2017, Distinction)
  • Grotius Specialisation Programme in Mergers and Acquisitions (2021-2022*)
  • Member of the Corporate Litigation Association;
  • Member of M&A Professionals The Hague
  • Member of the Young Bar at the Supreme Court of the Netherlands;
  • Young Management (VNO-NCW Confederation of Netherlands Industry and Employers)
  • Member of the business club of Royal HCVV

Recent cases

  • Advising CarePack on its integration into Bark Packaging Group
  • Sale of multiple veterinary practices to an international player
  • Assisting in the merger of the Cordaid and ICCO charities
  • Legal merger of two housing corporations
  • Termination of a partnership of dental practices
  • Successful shareholder buy-out in the context of a dispute settlement
  • Successful claim in directors’ liability proceedings based on unlawful acts
Contact details
M.A. (Mathijs) Arts

Attorney at law | Partner 

Commercial contracts and commercial litigation | Corporate Advisory & Litigation | ESG

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Articles by Mathijs Arts

Mathijs Arts
Mathijs Arts
Attorney at Law
Bad leaver provision too bad?
A legal exploration of the scope and permissibility of the ‘bad leaver’ provision in The Netherlands. In the complex landscape of partnership and shareholder agreements, terms such as ‘good leaver’ and ‘bad leaver’ are crucial in determining the rights and obligations of departing shareholders. Leaver provisions are agreed to ensure that a departing shareholder is not left as a (passive) shareholder when the involvement in the company changes. A “good leaver” generally leaves without any problems, while a “bad leaver” often results from a situation of conflict or unwanted departure. These distinctive terms have significant implications, especially with regard to share transfers and their financial consequences. Because of the impact of the consequences, it is important to have a clear picture of the legal aspects when entering into such a clause. In this contribution, we will highlight the role of reasonableness and fairness in the interpretation and application of “bad leaver” clauses in The Netherlands. In doing so, we will also provide recommendations for drafting clear and objective bad leaver clauses, as this will prevent costly and complicated litigation later on. Good leaver vs. bad leaver A leaver provision regulates the obligation of a shareholder to offer the shares he holds in the company under certain circumstances. A ‘good leaver’ is generally a shareholder who leaves the company without pre-qualified reasons of ‘bad’ or ‘early’ leaver. For example, after expiry of a certain term, by mutual consent, or after retirement or death or long-term illness. In such cases, depending on the terms of the agreement, the leaver may be obliged to offer the shares at “fair market value” or a predetermined approximation of the fair price. However, things get more complicated when the shareholder is classified as a “bad leaver”. Depending on the agreement, the shareholder may in that case be obligated to transfer the shares at a contractually determined purchase price that will generally be lower than the ‘fair market value’. The agreement may even provide that the departing shareholder will not receive more than the nominal value for its shares. The financial consequences of qualifying as a bad leaver and the settlement included therein can therefore be significantly detrimental to the departing shareholder. For example, the bad leaver may have to offer its shares of considerable value for as little as one euro or a greatly reduced price. A ‘bad leaver’ provision is therefore often a point of contention for the parties. In case law, this more than once leads to the question whether this forced transfer and its adverse consequences are in line with the standards of reasonableness and fairness. There is also debate in the literature as to whether the bad leaver provision should be reduced on the basis of Section 6:91 of the Dutch Civil Code (‘DCC’) in conjunction with Section 6:94 DCC because it should be regarded as a disguised penalty clause. Interpretation of the bad leaver provision Before being able to test the reasonableness and fairness and the qualification of penalty clause, we must first determine how the ‘bad leaver’ provision should be interpreted. As with any other contractual agreement, freedom of contract applies in principle. The Court of Appeal of The Hague, in a judgment dated 28 March 2023[1], emphasised that the provision cannot be interpreted (purely) linguistically alone; in this case, the Haviltex standard applies, looking, among other things, at the intention of the parties. However, it becomes difficult to interpret the ‘bad leaver’ provision differently the more objectively it is formulated. This could include a ‘bad leaver’ provision that refers to the urgent reason for dismissal described in Section 7:678 DCC. In this case, when assessing whether there is a ‘bad leaver’, the text and the law will be followed more quickly. 7:678 DCC. In this case, the assessment of whether there is a ‘bad leaver’ will more readily follow the text and the law. Section 7:678 DCC makes the provision more concrete but at the same time creates a high threshold for assuming a ‘bad leaver’ situation. A clear and objective provision therefore plays an important role in the interpretation of the ‘bad leaver’ clause. However, it will not provide any guarantees because the Haviltex standard will still apply. Reasonableness and fairness or a penalty after all? Next, we return to the question of how far one can go with the bad leaver clause in terms of adverse financial consequences for the leaver before it is deemed contrary to reasonableness and fairness. After all, it does not seem reasonable to have to offer shares worth, say, more than €1 million at the nominal value of €1. In a dispute before the District Court of The Hague on 20 June 2018[2] (which was upheld on appeal), the question was whether the former director of the company was bound by the ‘bad leaver’ provision and therefore had to transfer his shares at their nominal value. The management agreement had been terminated by the company for urgent reasons and the court considered this a justified dismissal under Section 7:678 DCC. According to the management agreement, the former director had to transfer his shares at nominal value in case of dismissal due to an urgent reason. The (former) director tried in vain to get out of the provision by invoking reasonableness and fairness. However, the court did not go along with his reasoning. The court considered that this clause had already been agreed upon in the letter of intent. Moreover, the party was assisted in this by specialists, including lawyers and accountants. According to the court, the director therefore had to be aware of the scope and (financial) consequences of the clause. To the extent that this was not the case, this should still be for the director’s account and risk. Finally, the court emphasises that the threshold for assuming urgent reasons is high and can only be accepted in case of seriously culpable behaviour of the director. As a result, the court concludes that the former director is bound by the provision and an appeal to reasonableness and fairness does not succeed. Thus, the mandatory offer of shares at par value does not automatically violate reasonableness and fairness. Regarding the qualification of the bad leaver provision as a penalty clause as referred to in Section 6:91 DCC, the court in this ruling ruled that the offer obligation in this case could not be qualified as such. After all, the obligation arose from the occurrence of a certain event and not a breach of the obligation, namely the termination of the management agreement. In addition, the court ruled that a penalty clause must focus on compensation for damages or to induce performance. This, as in this dispute, will not easily be the case. Thirdly, here too, the intention of the parties was important and a different penalty provision had been agreed elsewhere in the contract from which the court inferred that the bad leaver provision would then not be intended as a penalty. A mitigation of the bad leaver provision under Section 6:94 DCC was therefore not valid. According to the court, the former director was therefore justified in offering his shares at nominal value. The ultimate difference between the nominal value and the market value in this case amounted to almost €5,000,000. The importance of a well-formulated bad/good-leaver provision is thus evident. Conclusion and recommendations The above shows that the forced transfer of shares at par value as a result of a bad leaver provision is in principle possible and permissible. Under which circumstances this is possible will depend on the specific circumstances of the case. It is advisable for both the company and the (future) shareholders to draw up a delineated and objective bad leaver provision and to clearly write down its consequences in order to avoid ambiguities in the future. Here, attention should be paid to the definition of ‘bad leaver’ and when it applies. Consequences such as price, damages or competition provisions should be explicitly specified. However, the interpretation and application of the provision always remain subject to the Haviltex standard and therefore it is very important to seek timely legal advice. Contact If you have questions about the good leaver or bad leaver clauses, or if you would like to discuss further, please contact Mathijs Arts, Reinoud van Ginkel, or one of our other Mergers and Acquisitions (M&A) specialists.  [1] ECLI:NL:GHDHA:2023:961 [2] ECLI:NL:RBDHA:2018:7368
Reinoud van Ginkel 1
Reinoud van Ginkel
Attorney at Law
Financial Instruments for Early Seed and First Round Investments
Today, innovation is the norm. Business models are constantly evolving, and financial instruments play a crucial role in shaping the business future. This article looks at three emerging models that impact the business and financial landscapes: the widely used convertible loan, the Simple Agreement for Future Equity (SAFE), and the Agreement for Subscription against Advance Payment (ASAP). In this contribution, we delve deeper into these models, examine their impact on companies and investors, and shed light on the legal considerations inherent in these financial approaches. Converible loan A convertible loan is a financing instrument widely known and extensively used by especially young companies to attract capital. It combines features of both debt and equity, making it attractive to both investors and entrepreneurs. In practice, a convertible loan is a loan that can be converted into shares of the issuing company at a later date. In exchange for providing capital, the investor receives interest payments during the loan period. At a predetermined moment, often under specific conditions in the agreement, the investor and/or the company itself have the option to convert the loan into shares of the company. When entering into a convertible loan, investors should carefully study the conversion terms. This includes determining the conversion moment, the conversion price, and any adjustments that may occur in certain events, such as a new financing round or even bankruptcy. The ranking relative to other creditors/shareholders is crucial in case of bankruptcy or liquidation of the company. Finally, investors must be aware of their rights during the loan period, such as protection clauses or input in significant decisions. Clear communication is crucial when drafting the convertible loan. Transparency can prevent future disputes, and it is advisable to document all agreements in advance in a legally binding document. The issuing company should therefore specify how the provided capital will be used and be accountable to the investor. In addition to agreements on the loan and its conversion, parties should also consider the situation after conversion and the agreements regarding the mutual legal relationship as shareholders. Simple Agreement for Future Equity (SAFE) A Simple Agreement for Future Equity is a financing agreement between an investor and a company, often a startup (commonly early seed), wherein it is agreed that the investor has the right to a certain number of shares in the company on a future date, typically during a future financing round. Unlike convertible loans, a SAFE does not include interest payments or a fixed term. SAFEs are known for their simple structure, speeding up the negotiation process significantly and reducing costs. This makes it an attractive option for investors and entrepreneurs who want to act quickly in the dynamic startup world. Another advantage is that the classic risks of debt are much less present in SAFE agreements since they do not involve interest payments or repayment obligations. However, parties can decide otherwise and structure the SAFE as equity instead of debt. In the Netherlands, the ASAP is increasingly used for equity qualification. This allows startups to grow and invest more easily, and it gives SAFE investors a greater chance to benefit from the valuation growth of a startup. In a SAFE, the investor does not commit to a specific valuation at the time of the investment but rather chooses a valuation method. This also simplifies negotiations. Due to the straightforward nature of SAFE agreements, startups can raise capital more quickly compared to more traditional forms of financing. Administrative burdens are consequently much lower. The company does not need to have a (concrete) valuation, reducing legal costs and complexity. Unlike convertible loans, SAFE agreements do not carry interest expenses, allowing startups to focus on growth instead of generating immediate cash flow. Despite all these advantages of SAFE agreements, it is crucial that the terms regarding conversion, valuation mechanisms, and investor rights are clearly defined. Despite their name, SAFE agreements still bring some legal complexities and risks. It remains essential that both parties are well-informed and seek legal advice to ensure a solid agreement. Understanding the characteristics and legal implications of SAFE agreements is one of the keys to a successful and mutually beneficial financing round. Agreement of Subscription against Advance Payment (ASAP) Lastly, there is the Agreement of Subscription against Advance Payment, or the ASAP agreement. The ASAP is a variant of the SAFE and grants an investor the right to acquire shares in the company’s capital against immediate payment of the issuance price. The paid amount is, unlike the SAFE, booked as equity under reserves instead of as debt. ASAP shares can be issued in various scenarios, such as the closure of a financing round, transfer of more than 50% of the shares, or the occurrence of an event like a bankruptcy application. The remaining amount of the investment after the issuance of ASAP shares is booked as additional paid-in capital. The procedure for issuing ASAP shares includes prior notification to the investor, providing details about the number of shares to be issued, the issuance date, and, in financing rounds or termination, information about new investors and agreed-upon prices. Since the issuance of shares requires cooperation from the startup, the interests of the ASAP investor are protected through an irrevocable power of attorney to issue the ASAP shares before or at the latest by the closing of the new financing round. Additionally, a discount may be applied to the calculated issuance price as an additional safety measure. When the company then makes a profit and the general meeting decides on a profit distribution, the investor has a dividend right. This generally does not apply to interim dividends, allowing the ASAP investment to continue as equity instead of debt. Conclusion This contribution on convertible loans, Simple Agreements for Future Equity (SAFE), and Agreement of Subscription against Advance Payment (ASAP) makes it clear that the business world is in a time of remarkable transformation. These agreements have not only changed the way capital is acquired and managed but have also revised the dynamics between investors and entrepreneurs. Convertible loans, with their unique blend of debt and equity, offer startups a flexible financing route, while SAFE agreements bring speed and simplicity to the venture capital world. On the other hand, the ASAP model illustrates that investments can also be made gradually over a longer period. Within these innovative approaches, a common thread is found: the importance of clear legal frameworks. Whether establishing convertible loan terms, defining SAFE clauses, or formulating transparent subscriptions, legal precision is essential to ensure success and minimize disputes. Understanding these dynamics and embracing legally sound strategies will remain crucial for companies aiming for growth and sustainability in a constantly evolving world. This contribution was written by Reinoud van Ginkel in collaboration with Mathijs Arts. If you have questions about the convertible loan, SAFE, or ASAP, or if you would like to discuss further, please contact Mathijs Arts, Reinoud van Ginkel, or one of our other Mergers and Acquisitions (M&A) specialists.
Mathijs Arts
Mathijs Arts
Attorney at Law
Cross-Border Mergers and Acquisitions - The Mobility Directive
On 1 September 2023, the Implementation Act for the European Mobility Directive comes into effect. This new law contributes to a more integrated and dynamic European market. In an era of increasing globalization and international business activities, companies are increasingly faced with the challenge of operating across borders and expanding their operations. Cross-border mergers, conversions, and splits play a crucial role in facilitating this business mobility and promoting collaboration between companies from different countries. Wilt u deze bijdrage in het Nederlands lezen? Klik hier. Background  Despite the fact that cross-border mergers were already allowed according to jurisprudence of the EU Court of Justice, there is still a need for legislation and regulation. From this need, the European Mobility Directive (2019/2121/EU) emerged with the aim of facilitating and promoting cross-border mobility of companies within the European Union. This directive follows earlier M&A directives such as the Merger Directive (2009/133/EC), as a consequence many terms and processes are already familiar and already in use for national mergers and splits. The Dutch legislature has adopted the Implementation Act for Cross-Border Conversion, Mergers, and Splits to implement this EU directive, making it easier for companies to convert their legal form to the law of another EU member state. At the same time, the law introduces additional protection mechanisms for stakeholders and a mandatory fraud check by the notary. The Act should have been implemented on 1 January 2023 but now officially comes into effect on 1 September 2023. Three Phases  The directive only applies to capital companies of EU member states. In the Netherlands, this means exclusively the B.V. and the N.V. Due to Brexit, this directive does not apply to any British companies such as the LLP. The law applies only to the transactions mentioned in the directive for which the proposal was filed with the Chamber of Commerce after 1 September 2023. These transactions include conversion, splitting, and merger, collectively referred to as “transactions.” The law divides these transactions into three different phases: (1) the preparation phase, (2) the decision-making phase, and (3) the implementation phase. During the preparation phase, each company must take preparatory steps in accordance with the national laws of the respective member state. For mergers, this includes, among other things, preparing and disclosing a (joint) merger proposal. The directive specifies the minimum required contents to be included in this proposal. After the formal proposal to merge, the decision-making phase begins. According to the directive, the competent authority in the country of departure provides a written declaration – the so-called pre-merger certificate – to the competent authority in the country of destination, confirming that the merger has been carried out legally. In the Netherlands, this role is assigned to the notary, who must determine whether the transaction has fraudulent or unlawful purposes. If the notary does not provide such a certificate, the cross-border transaction will not proceed. Finally, there is the implementation phase, during which the transaction is carried out in accordance with the rules of the country of destination. During this phase, the deed is notarized, and a final certificate is issued. This final certificate allows the involved companies to update their registrations in the trade register of both the destination country and the country of departure. Protection of the Stakeholders  In addition to the introduction of the procedural phases, the law also provides protection additional protective measures for shareholders, creditors, and employees in every cross-border transaction. In the future, information should be provided quicker and more extensive. Shareholders for instance will need to be informed about the consequences of a transaction and the possible rights and remedies at their disposal. The law further protects shareholders through exit rights and introduces procedures for determining the exchange ratios and cash compensation for the shares. The rights of employees based on statutory employee participation schemes are not explicitly extended but are further codified for all cross-border transactions. With regard to the protection of creditors, they will have the option to enforce certain safeguards, such as a bank guarantee or a right of pledge if they are not satisfied with the securities offered in the proposal. However, creditors must act within three months of the transaction proposal having been made public, in the Netherlands this period was previously just one month. Conclusie  The Implementation Law for Cross-Border Conversion, Mergers, and Splits was introduced in response to the growing need for regulated business mobility within the EU. The law follows a three-phase approach for cross-border transactions, ensuring compliance with national legislation and specific directives: the preparation, decision-making, and implementation phases. It also introduces additional protection measures for shareholders, creditors, and employees. Overall, the new law promotes business mobility, facilitates cross-border cooperation, and strengthens the European market. It also ensures important protection mechanisms through a fraud check and additional information provision for stakeholders. The (Dutch) text of the law can be accessed through this link. If you have any questions about this topic or would like to discuss it further, please contact Reinoud van Ginkel or one of our other M&A specialists. Author: Reinoud van Ginkel 
Mathijs Arts
Mathijs Arts
Attorney at Law
The shareholders' agreement: 5 points of importance
A shareholders’ agreement (‘SHA’) may prevent discussions or conflicts between shareholders internally and also between the shareholders and the company. It is not mandatory to draw up a SHA, but this is highly recommended in case the shares are held by more than one shareholder. Freedom of contract is therefore largely paramount. In this blog we cover 5 specific points of attention regarding the shareholders’ agreement. #1 Benefits of the Shareholders’ Agreement In the case a company has more than one shareholder, it is advisable to draw up a shareholders’ agreement . Especially in respect of a joint venture with a 50/50 ratio. In the event of a dispute, there may soon be a deadlock situation that could harm or damage the company. The commitment to a SHA can prevent discussions and conflicts, as shareholders are forced to think about and agree on a number of matters in advance regarding their cooperation. In addition, you can address your fellow shareholders if they do not comply with the agreement. Moreover, the agreement is (largely) flexible and can be changed by agreement of all shareholders. It is also possible to keep the agreement secret, unlike the articles of association. #2 Parts of the Shareholders’ Agreement The SHA provides clarity on the rights and obligations of the shareholders and the possible consequences for their non-compliance. Important topics that are usually included in a SHA are: a list of decisions/topics requiring a larger majority than usual; a list of board decisions requiring shareholders’ approval; an exit scheme; tag/drag along provisions; valuation bases for the shares; agreements on profit distribution; a non-compete and/or relationship clause; a confidentiality clause; and any chain clauses for subsequent and acceding shareholders. #3 Beware of model agreements Every company has its own specific points of attention and not every collaboration is the same. Take a critical look at what you do and do not include in the agreement. Look at your own company and situation and not just the standard agreements and parts thereof and boilerplate clauses. Be careful when using standard shareholder agreements, model agreements and templates. If in doubt, always have your agreement checked by a lawyer. #4 Drafting the shareholders’ agreement In many cases, a tailor-made agreement is therefore wise and desireable. Moreover, the agreement is usually an important document with a lot of arrangements in it. Therefore, take the time to draw up the agreement and have the document checked by a lawyer. Especially if standard arrangements, such as the approval scheme when transferring shares, are not the best solution for your company or situation. #5 Consequences of non-compliance with agreements A SHA is legally an agreement like (almost) any other. This means that the agreement must be respected. Failure to comply with the arrangements under the agreement may have far-reaching consequences, including the obligation to offer the shares to the co-shareholder(s). However, the parties are free to regulate the consequences of a breach of contract under the agreement itself. Contact The lawyers of La Gro are an important source of information for entrepreneurs, shareholders and directors. The corporate law team focuses on your future and can be your discussion and sparring partner when making (daily) decisions with legal implications. Do you need advice on this topic? Please contact Joost Vrancken Peeters on +31 620210657 or [email protected] and Mathijs Arts on +31 614338775 or [email protected].