A director was appointed without — bank financing

# A director was appointed without the right formalities with bank financing already in place

You are here: a director started acting for the company before the required shareholder approval was recorded, while already dealing with the bank on financing now in place. Three routes are open: ratify the appointment, replace the signatory on the finance documents, or rely on statutory protection. A trade register clock is already running.

The situation this creates

This is a governance gap that surfaces at the worst possible moment: after money has moved. A board minute exists, but the aandeelhoudersbesluit (shareholders' resolution) behind it does not, or it was taken without the quorum your articles set. The appointment was never filed with the handelsregister (trade register), or it was filed late. Meanwhile the same director signed the facility letter, the security documents, or both, and the bank relied on a board that, on paper, is not yet complete.

The exposure is not theoretical. A defect in the appointment can be read as a defect in the authority behind everything that director signed, and the bank's own representations clause almost certainly assumes a validly constituted board. This sits inside corporate law and governance in the Netherlands, and it needs to be closed before it is discovered by the other side rather than disclosed by you.

The three routes open to you

Route	What it does	Time	Cost driver
Ratify now	A properly convened shareholder resolution confirms the appointment retroactively; the amendment is filed with the trade register	Days to a small number of weeks, depending on how quickly a meeting can be convened	Whether the shareholders can meet informally or need formal notice under the articles
Re-execute with the bank	The finance documents are re-signed or confirmed by a validly appointed signatory, closing the gap on the bank's side directly	Depends on the bank's own review cycle once notified	Whether the facility agreement needs a formal amendment or a signed confirmation is enough
Hold and rely on protection	No action now; the company relies on statutory third-party protection, derdenbescherming, for what the director already signed	Ongoing exposure, not resolved	Whether the bank knew, or should have known, of the defect at the time it dealt with the director

The first route closes the gap at the company. The second closes it at the bank. The third closes nothing, and simply prices the risk of a challenge later, usually by a party you did not choose.

What we would need to see before advising

The appointment resolution or board minute as it exists today, with any date on it
The articles of association, specifically the appointment and quorum provisions
The facility agreement's representations, warranties and conditions precedent on corporate authority
The current extract from the trade register showing who is registered as a director
Any written communication with the bank that refers to the appointment

The deadline that is already running

Under the applicable Dutch rules, a change to the board has to be reported to the trade register on a clock that starts at the appointment itself, not at the point someone notices the gap. That clock does not pause because financing is already in place, and every week it runs unfiled widens the distance between what the register shows and what has actually happened at the company. The bank's own diligence, whether at drawdown or at the next review point, checks the register against the facility documents. A gap the bank finds costs more to close than a gap you close first.

The decisions that stay with you

Whether to disclose the gap to the bank now or wait for a scheduled review
Whether ratification is framed as retroactive confirmation or as a fresh appointment going forward
Whether the finance documents need a formal amendment or a simpler confirmation letter
Who signs the shareholder resolution, and on what notice period

What can go wrong

A voluntary disclosure to the bank can be read as an admission that triggers a review of the whole facility, not just the signature page. Third-party protection under Dutch law does not extend to a bank that knew, or plainly should have known, that the person signing was not properly in office. A Dutch court asked to rule on the underlying authority looks at what the bank actually knew at the time, not at what was fixed afterwards. Ratification cures the appointment going forward; it does not automatically cure acts that happened before the ratifying resolution.

The same facility is also exposed if a dividend has been paid while the company cannot meet its debts; that is a separate situation with its own route, and ratifying the appointment does not close it.

What this does not cover

It does not cover criminal exposure for the individual director personally
It does not cover facilities other than the one already referenced by the affected director
It does not cover a defect at supervisory board level where no managing director signed anything
It does not tell you whether your specific appointment is, in fact, defective; that reading needs your articles and your minute, not a general page
It does not cover the separate question of whether substance is questioned because the board meets online, cross-border; that sits under tax, not governance

Questions

Does the bank have to be told before anything else happens?

Not as a first step. The facility agreement's own notice and disclosure clauses decide whether a proactive disclosure is required, and that clause needs to be read before any contact with the bank, not after.

Can an appointment be fixed after the fact?

A ratifying shareholder resolution can confirm the appointment going forward and close the registration gap. Whether it also cures documents already signed under the defective appointment is a separate question that turns on what the finance documents themselves say about corporate authority.

Does this put the loan at risk of acceleration?

Only if the facility agreement's representations on corporate authority are drafted as continuing representations, and the gap counts as a breach of one of them. That reading depends on the specific clause, not on the appointment defect alone.

What if the director already signed security documents, not just the facility letter?

Security documents carry their own registration and perfection requirements separate from the appointment question, and a defect in one does not automatically move to the other. Each document needs to be checked against who signed it and on what authority.

How long does ratification take?

A shareholder resolution can be taken within days where the shareholders are available and the articles allow an informal meeting. The trade register filing that follows takes longer where supporting documents are incomplete.

Eva Kuipers

Governance and the Enterprise Chamber. Eva advises on board composition, appointment defects and the disclosure questions that follow them once financing is already in place.

Next step

A shareholder dispute review is the wrong instrument here if the board is not in conflict; this is a filing and authority gap, not a dispute, and treating it as one wastes the time you have. The route that fits is a scoping call: bring the appointment minute, the articles, and the facility agreement's authority clause, and you get back which of the three routes above closes the gap fastest for your documents.

A structure report sets out the board as currently filed with the trade register in the Netherlands, cross-checked against the appointment history, so you know before the call whether the gap is on paper only or has already moved into signed documents.

A director was appointed without the right formalities with bank financing already in place