Selling a Dutch tech scale-up runs through a share purchase agreement (SPA) and a notarial deed of transfer, and most deals stall on the same points: unclear ownership of IP, shareholder rights from earlier funding rounds, change-of-control clauses and warranty exposure. The main exception to a smooth sale is a company whose IP chain is incomplete: a buyer will then lower the price, demand a specific indemnity or walk away.
Preparation therefore starts well before a buyer sends a letter of intent (LOI). We advise founders in the Brainport region around Eindhoven to start 12 to 24 months before they go to market, so that gaps can be repaired without time pressure.
តារាងមាតិកា
How does a share sale work under Dutch law?
The buyer acquires your shares in the private limited company (BV) through an SPA, followed by a notarial deed of transfer. Under Article 2:196 of the Dutch Civil Code (BW), a transfer of shares in a BV requires a deed executed before a notary in the Netherlands.
A typical process runs through these steps:
- Preparation: internal legal audit, clean cap table, IP documentation and a data room.
- Marketing: corporate finance advisers approach potential buyers with an information memorandum.
- Indicative offers and a letter of intent with price, exclusivity period and key terms.
- Due diligence: the buyer investigates legal, financial, tax and technical matters, usually over two to three months.
- Negotiation and signing of the SPA, then closing with the notarial deed of transfer.
The LOI already fixes valuation, exclusivity, liability caps and non-compete terms. Reopening them later is difficult, so involve a lawyer before you sign it.
Who owns the IP in your company?
The company must be able to show that it owns all its core technology. Gaps in the chain of title are the most common reason for price reductions in tech deals.
និយោជិត
Under Article 7 of the Dutch Copyright Act (Auteurswet), the employer is regarded as the maker of works an employee creates in the course of the job, unless otherwise agreed. For patents, Article 12 of the Patents Act 1995 (Rijksoctrooiwet) gives the employer the right to an invention if the employee’s role is to make such inventions. Because a 6 March 2025 ruling of the Court of Justice of the EU has raised questions about statutory transfers of rights, an explicit IP assignment clause in every employment contract is the safer route.
Freelancers, founders and interns
The employer rule does not apply to freelancers, interns or founders who worked before the BV existed. They keep the copyright unless they have transferred it by a signed written deed. The US concept of “work for hire” does not exist in Dutch law, so audit every contributor and obtain confirmatory assignments now, while that is still cheap.
កម្មវិធីកូដចំហ
Buyers scan the code base for open source licences. Copyleft licences such as the GPL can require you to publish your own source code if you distribute software that incorporates them, so keep a list of all libraries and their licences.
Which shareholder rights affect the exit?
Earlier funding rounds usually come with a shareholders’ agreement and articles of association that give investors rights on a sale. Map them before you talk to buyers.
- Drag-along: can the majority oblige minority shareholders, such as early employees or angels, to sell on the same terms? Without it, one small shareholder can block a 100% sale.
- Tag-along: minority shareholders may have the right to sell on the same terms as you.
- Liquidation preferences: investors, including regional funds such as the BOM, may receive their investment back first. Calculate the waterfall before you agree a price.
- Pre-emption rights and transfer restrictions in the articles, which must be complied with or waived.
Which contracts can derail the sale?
Change-of-control clauses in customer, supplier and employment contracts are the main risk. They can give the other party a right to terminate or a right to extra payments once ownership changes.
កិច្ចសន្យារបស់អតិថិជន និងអ្នកផ្គត់ផ្គង់
If your valuation rests on recurring revenue from a few large clients, check whether they may terminate on a change of control. You may need their consent before closing, which requires careful timing so that you do not reveal the sale too early.
Employment contracts and key persons
Some contracts give senior staff a bonus or severance payment if the company is sold, which the buyer will deduct from the price. In a share sale the employment contracts stay with the BV, so employees do not change employer. Buyers often make closing conditional on founders and key staff staying on for a set period, so check exactly what you commit to.
Privacy and pending disputes
For medtech and data-driven companies, GDPR compliance is examined closely; under Article 83 GDPR fines can reach €20 million or 4% of worldwide annual turnover, whichever is higher. Buyers ask for processing agreements, a record of processing activities and privacy notices. Pending claims or cease-and-desist letters must be disclosed; concealing them leads to warranty claims and possibly claims for fraud after closing.
How are warranties, indemnities and earn-outs negotiated?
In the SPA you give warranties about the company; if one proves untrue, the buyer can claim damages from you. The negotiation is about scope, caps and claim periods.
- Warranties are general statements, for example that the company does not infringe third-party IP. The buyer must prove its loss.
- Indemnities are promises to pay for a specific, known risk, such as an ongoing tax audit.
- In Dutch practice, liability is usually capped at a percentage of the price, with a short period for general warranties and longer periods for tax and title.
- A disclosure letter, in which you report known issues against the warranties, limits your exposure.
An earn-out pays part of the price later if revenue, EBITDA or technical milestones are reached. Once the buyer controls the company, it can change strategy or costs, so the SPA must define the metrics, accounting rules and how the business will be run during the earn-out period.
US and Asian buyers often expect broader warranties than is usual in the Netherlands. Dutch courts also apply reasonableness and fairness (redelijkheid en billijkheid) under Article 6:248 BW, which can limit reliance on a contract term in exceptional circumstances.
ក្នុងនាមជាអ្នកលក់ តើត្រូវពិនិត្យមើលអ្វីខ្លះ?
- Is every contributor’s IP assigned to the company in writing, including freelancers and founders?
- Do drag-along and transfer clauses allow a sale of 100% of the shares?
- Which customer, supplier and employment contracts contain change-of-control clauses?
- Is the waterfall clear, so you know what you receive at the agreed price?
- Are the warranty cap, claim periods and disclosure letter acceptable to you?
- Is your non-compete limited in time, region and activity?
ក្នុងនាមជាអ្នកទិញ តើអ្នកគួរពិនិត្យមើលអ្វីខ្លះ?
- Does the target hold title to its core code, patents and trademarks?
- Can all shareholders be bound to the sale, or are waivers needed?
- Which key contracts can be terminated on a change of control?
- Are there copyleft licences or GDPR gaps that require a specific indemnity?
- Are key employees committed to staying after closing?
What can we do for you with the sale of your startup?
របស់យើង មេធាវីជំនួញ និង មេធាវីផ្នែកព័ត៌មានវិទ្យា guide founders and buyers through tech transactions.
- We carry out a vendor legal audit of IP, cap table and key contracts.
- We draft confirmatory IP assignments and shareholder waivers.
- We review and negotiate the letter of intent before you sign it.
- We negotiate the SPA, the warranties, the disclosure letter and any earn-out.
- We coordinate the notarial transfer of the shares with the notary.
សេចក្តីសង្ខេប
- Start preparing 12 to 24 months before the sale; the LOI already fixes key terms.
- Prove the IP chain: employees under Article 7 Copyright Act, freelancers only by written assignment.
- Map drag-along, preferences and change-of-control clauses before approaching buyers.
- Limit warranty exposure with caps, claim periods and a disclosure letter.
- The share transfer requires a notarial deed (Article 2:196 BW).
សំណួរដែលគេច្រើនសួរ
When should I start preparing for an exit?
Ideally 12 to 24 months before going to market. That leaves time to repair IP gaps, clean up the cap table and obtain waivers without pressure from a buyer.
Does my company own code written by a freelancer?
Not automatically. The employer rule in Article 7 of the Copyright Act only covers employees. A freelancer keeps the copyright unless it has been transferred by a signed written deed.
Is a notary needed to sell shares in a BV?
Yes. Under Article 2:196 BW the transfer of shares in a BV requires a notarial deed executed before a notary in the Netherlands.
How long am I liable under the warranties?
That follows from the SPA. In Dutch practice, general warranties usually have a short claim period and tax and title warranties a longer one, combined with a cap on the total amount.
