Dutch Caribbean Legal Portal
Civil Code, Book 2
- Details
- Published on Tuesday, 08 January 2008 17:53
Legal entities
Title 1 General provisions
Title 2 The Foundation
Title 3 The Association
Title 4 The cooperative society and the mutual insurance association
Title 5 The limited liability company
Division 1 General provisions
Division 2 The shares
Division 3 The capital and the annual accounts
Division 4 The annual accounts with the large company
Division 5 The general meeting of shareholders
Division 6 The management
Title 1 General provisions
Article 1
1.The provisions of this title shall apply in respect of the legal entities regulated in separate legal forms in this book: the foundation, the private fund foundation, the association, the cooperative society, the mutual insurance association, the limited liability company and the private limited company.
2.Article 3 shall also apply in respect of other legal forms that are to constitute legal entities. To the extent that the contrary does not result from the law and the nature of the legal entity does not oppose this, the other provisions of this title may apply analogously in respect of such other legal entities.
3.The provisions of this book may be deviated from only insofar as appearing from the law.
Article 2
1.A legal entity shall not be formed in the absence of a deed signed by a civil-law notary, insofar as same is required by law for the formation. The absence of the force of authenticity of a deed signed by a civillaw notary shall not impede the formation of the legal entity, unless concerning a last will and testament.
2.Annulment of the legal act through which a legal entity has been formed shall not affect its existence. The cancellation of the participation of one or more founders of a legal entity by itself shall not affect the validity of the participation of the remaining founders.
3.If a capital has been formed to the name of a non-existent legal entity, the judge at the request of an interested party or the public prosecution shall declare that this capital shall belong to a legal entity in the pretended legal form, created with such decision. Unless another solution should appear advisable to the judge, the judge shall dissolve that legal entity with the same decision. The provisions laid down in the sixth up to and including the eighth paragraphs of article 24 shall apply analogously. The other solution may consist in the laying down still of articles of incorporation by the judge and the designation of managing directors, supervisory directors, members or shareholders.
4.If the legal entity not being formed is due in whole or in part to serious fault or gross negligence on the part of one or more persons who prior to the dissolution acted as founder, managing director, supervisory director, member or shareholder, then these persons shall be liable in several as against the dissolved legal entity in respect of any deficit appearing at the liquidation.
Article 3
1.As far as the law of property is concerned, a legal entity shall be on a par with a natural person, insofar as not otherwise resulting from the law.
2.Members, shareholders and others who pursuant to the law or the articles of incorporation are involved in the formation of the legal entity shall not be personally liable in respect of the debts of the legal entity, insofar as the contrary does not result from the law.
Article 4
1.If a notarial deed of incorporation is required, the same shall be executed in the language elected by the founders, provided the notary shall understand such language. In case of a language other than Papiamentu or the Dutch, English or Spanish languages, a Dutch translation certified by a sworn translator shall be attached to the deed.
2.The deed shall contain in any event:
a.the articles of incorporation of the legal entity;
b.unless involving a foundation that is being formed pursuant to a last will and testament, the names and places of residence of the initial managing directors and of the other officials to be in office by law or pursuant to the articles of incorporation.
3.Whenever a notarial deed is mentioned in this book, the same shall mean a deed executed by or before a Netherlands Antilles civil-law notary. A proxy for cooperating in the deed shall be granted in writing.
Article 5
1.The civil-law notary before whom the deed of incorporation is executed, shall see to it that the deed shall meet the provisions laid down in this book and that the required documents shall be attached to it. Next he shall see to it that the legal entity shall be entered in the trade register as soon as possible, and that at the same time an authentic copy of the deed, with attached thereto the documents required pursuant to this book, shall be deposited at the office of the trade register. He shall also see to it that notice of the incorporation of the legal entity be given as soon as possible in the gazette in which official notices are inserted by the Government.
2.If the deed of incorporation has been executed by a civil-law notary, any amendment to the articles shall always require a notarial deed as well. The first paragraph of this article shall apply analogously. In addition to the copy of the authentic deed amending the articles of incorporation, a copy of the amended articles shall always be deposited. Any managing director shall be competent to cause the deed to be executed, without prejudice to the authority of the general meeting to authorize another party to the effect.
3.In case of non-compliance with the obligations issuing from the first and second paragraphs, the civil-law notary shall be personally liable as against those who have suffered any damage as a result.
Article 6
1.From legal acts performed on behalf of a legal entity to be set up, rights and obligations shall arise for the legal entity only when it expressly or tacitly ratifies such legal acts at or following its formation.
2.The persons performing a legal act on behalf of a legal entity to be set up shall be bound in several as a result. Such liability shall cease one year from the ratification, unless otherwise stipulated in writing.
Article 7
1.The legal entity and those who pursuant to the law or the articles of incorporation are involved in its organization shall behave as such as against one another according to requirements made in reasonableness and fairness.
2.Any rule or decision in effect among them pursuant to the law, custom, articles of incorporation, regulations, resolution or agreement shall not apply insofar as, under the given circumstances, the same would be unacceptable according to the standards of reasonableness and fairness.
Article 8
1.With the exception of the shareholdermanaged company referred to in article 239, every legal entity shall have a board of management.
2.Subject to restrictions imposed by law or the articles of incorporation, this to include restrictions pursuant to the articles, or by any regulation laid down pursuant to the law or the articles, the board of management shall be in charge of the management of the legal entity. Individual managing directors shall exercise their powers with due observance of the resolutions of the board of management.
3. In the discharge of its duties the board of management shall conform to the interest of the legal entity and, insofar as there is a question of that, to the enterprise connected with it.
4.Unless the articles shall stipulate otherwise, the board of management of a legal entity not being a foundation shall not be competent, without the instruction of the general meeting, to petition an adjudication in bankruptcy against the legal entity.
5.The legal relationship between a managing director and the legal entity shall not, or not also, be considered an employment contract.
6.In the event of the bankruptcy of the legal entity, the salary and other considerations accruing to the managing director in connection with the discharge of his office, as and from the day of adjudication in bankruptcy shall not be for account of the estate insofar as the official receiver in the bankruptcy does not resolve otherwise.
7.The provisions of the sixth paragraph shall apply analogously in respect of considerations accruing to members of other bodies of the legal entity.
Article 9
1.The judge of first instance of the island territory where the legal entity has its registered office or, in the absence thereof, its center of activities, shall take cognizance of all legal proceedings instituted pursuant to this book or the articles of incorporation against a managing director or the legal entity, as also of the legal proceedings to which the agreement between a managing director and the legal entity give rise. The same shall apply in respect of all other proceedings regulated in this book. Unless otherwise agreed, the same shall apply to proceedings issuing from the shareholders’ agreement referred to in the second paragraph of articles 127 and 227 and article 240.
2.The articles of incorporation may provide that all or certain disputes involving two or more of the persons referred to in article 7, first paragraph, as such shall be settled by arbitration.
Article 10
1.Subject to restrictions laid down by law and the articles of incorporation, the board of management shall be competent to represent the legal entity. In the event of several managing directors, any managing director shall be competent, insofar as not otherwise provided by the articles.
2.Restrictions of the management powers as referred to in the second paragraph of article 8 shall purport to restrict the corresponding representative authority as well.
3.Unless otherwise provided in the articles and without prejudice to the provisions laid down in the Trade Register Ordinance, any restriction of the representative authority as referred to in the first and second paragraphs can be invoked against an opposite party who is or should be cognizant of the restriction. Article 61, second and third paragraphs, of Book 3, shall apply analogously. The opposite party shall be entitled only to invoke the provision laid down in the fourth paragraph of this article.
4.Any managing director shall be competent, and on demand shall be bound, at all times to give a definite answer to an opposite party as regards the question as to whether a condition under the articles, by law or otherwise for the commencement of the representative authority of the board of management or a managing director has been fulfilled. If within a reasonable period of time it is not expressly stated that the condition has been fulfilled, then the opposite party who on other grounds is not or should not be cognizant of the condition being fulfilled, may reject the legal act as being invalid, provided this be done promptly at the expiration of such period of time.
5.The articles of incorporation may also grant to other officers, to be designated by or pursuant to the articles, representative authority whether or not together with the managing directors.
Article 11
1.The legal entity shall be represented by the supervisory board at legal acts with or lawsuits against a managing director. If there is no supervisory board, the legal entity shall be represented by the other managing directors jointly or, in their absence, by a person to be designated for such case by the general meeting. In the case of the foundation, the designation shall be made by the judge at the request of an interested party.
2.The provisions of the first paragraph may be deviated from in the articles of incorporation or in regulations laid down pursuant to the articles by the general meeting, and in the case of a foundation by another body. Special rules may thereby be laid down as regards the adoption of resolutions in case of a conflict of interests. The regulations can also relate to conflicts of interests between the legal entity on the one hand, a supervisory director, member or shareholder on the other.
3.The general meeting shall always be competent, while disregarding in whole or in part the first paragraph, the regulation according to the articles or the regulations based thereon, to designate, incidentally or for a specific period of time, one or more persons as special representative of the legal entity for the cases referred to in the first paragraph or for other cases of a conflict of interests between the legal entity and a managing director, supervisory director, member or shareholder.
4.The managing director or supervisory director who knows or ought to understand that in respect of a proposed legal act there is a question of a conflict of interests between himself and the legal entity, shall ensure as much as possible that the general meeting or the designated special representative, shall be informed hereof in time. If no special representative has been designated, the provisions of this paragraph shall not apply in respect of the managing director or supervisory director of a company, the shares of which are traded on a stock exchange, unless the articles provide otherwise.
5.When adopting a resolution in the general meeting pursuant to the third paragraph, the person whose conflicting interest is at issue shall not have a right to vote. The same shall apply for a legal entity managed by the person involved.
Article 12
1.The articles of incorporation shall contain rules as regards the manner in which a temporary arrangement shall be made for the management of the legal entity in the event of the impediment or default of all the managing directors.
2.The articles may provide that the body that appoints a managing director may designate a substitute managing director who shall act for and exercise the powers of the managing director in the event of his impediment or default. For purposes of the law, a substitute managing director shall constitute a managing director insofar as the contrary does not appear from the law.
Article 13
1.The legal entity shall not exceed its object clause according to its articles of incorporation.
2.Unless the articles of incorporation should exclude invocation of transgression of the object, a legal act performed by the legal entity shall be subject to annulment if through such act the object was transgressed and the opposite party was cognizant or should have been cognizant hereof without his own investigation; only the legal entity can invoke annulment on these grounds.
3.The authority to invoke annulment shall cease six months from the day on which the legal act is performed.
Article 14
1.Each managing director shall be bound as against the legal entity to properly perform the duties falling within the scope of his work.
2.To the scope of the work of a managing director shall belong all the management tasks not assigned to any one or several other managing directors under or pursuant to the articles of incorporation.
3.Each managing director nevertheless shall bear responsibility for the general course of affairs and shall be bound to contribute to the extent possible to averting the consequences of any damage-causing act, even if the matter does not fall within the scope of his work. The managing directors to whom certain tasks have been assigned pursuant to the second paragraph shall keep the other managing directors informed on a regular basis of the state of affairs in the field of such tasks.
4.The liability in respect of the provisions laid down in the first up to and including the third paragraphs of this article shall be in several for all the managing directors. The managing director who proves, however, that he cannot be blamed for the improper performance of duties, also considering the scope of his work and the period during which he has been in office, and that he has not been negligent in taking measures to avert the consequences thereof, shall not be liable.
5.If, in the event of the bankruptcy of the legal entity, a claim by reason of this article is instituted by the trustee in bankruptcy, the managing director shall not be entitled to rely on a discharge to be granted in any way or form by the legal entity. Nor shall the managing director in this case be capable of relying on a setoff against any claim on the legal entity.
Article 15
1.The board of management shall be bound to keep records of the financial position of the legal entity and of all such things as shall concern the activities of the legal entity, according to the requirements issuing from such activities, in such a manner and to preserve the books, records and other data carriers pertaining thereto in such a manner as shall make it possible for the rights and obligations of the legal entity to be known therefrom at all times. Any managing director shall have the right to inspect the administration and the books, records and other data carriers pertaining thereto.
2.Without prejudice to the provisions laid down elsewhere by law, the board of management shall be bound each year within eight months from the end of the financial year to prepare and put down in writing the annual accounts, consisting of at least a balance sheet and a profit and loss account.
3.The board of management shall be bound to keep the books, records and other data carriers referred to in the first and second paragraphs during ten years.
4.The data entered in a data carrier, with the exception of the balance sheet and profit and loss account put down in writing, may be transferred to another data carrier and preserved, provided such transfer take place with the correct and full representation of the data and such data be available during the full term of safekeeping and capable of being rendered in readable form within reasonable time.
5.The financial year of a legal entity shall be the calendar year, unless another financial year shall have been designated in the articles of incorporation.
Article 16
1.In case of the bankruptcy of the legal entity, each managing director shall be liable in several as against the estate for the deficit, being the amount of the debts insofar as the same cannot be met through a setoff with the other assets, if there has been a question of manifestly improper management and it is plausible that this is a significant cause for the bankruptcy.
2.If the obligations under article 15 have not been complied with or the annual accounts have not been drawn up in time, it shall be assumed that also for the rest there has been a question of manifestly improper management and that improper management is a significant cause for the bankruptcy. This shall also apply if the legal entity is a fully liable participant in a partnership firm or a limited partnership, and the obligations under article 15a of Book 3 have not been complied with. An immaterial omission shall not be disregarded.
3.The managing director who proves, also considering the scope of his duties and the period during which he has been in office, that he cannot be blamed for the improper management that has been a significant cause for the bankruptcy, and that he has not been negligent in taking measures to avert the consequences thereof, shall not be liable.
4.The provision laid down in the second paragraph shall not apply in respect of the managing director who proves, also considering the scope of his duties and the period during which he has been in office, that he cannot be blamed for noncompliance with those obligations and that he has not been negligent in taking measures to promote improved compliance with such obligations.
5.The judge may reduce the amount for which the managing directors or certain managing directors shall be liable if such amount appears excessive to him, having regard to the nature and the gravity of the improper management, the other causes for the bankruptcy, as also the manner in which the bankrupt estate has been wound up.
6.If the magnitude of the deficit is not yet known, then the judge, whether or not applying the fifth paragraph, may stipulate that a statement be drawn up of the deficit which the court orders the managing directors to pay, such statement to be made in accordance with the provisions of Book 2, title 6 of the Code of Civil Procedure.
7.On demand of the trustee in bankruptcy or a sued managing director, the judge may direct that when calculating the deficit and dividing the proceeds pursuant to this article via the plan of distribution, a creditor’s claim be disregarded in whole or in part if and to the extent that analogous application of article 101, first paragraph, of Book 6 shall give cause for this. The claim shall be instituted against the creditor brought into the action for the purpose.
8.On applying the first paragraph, only the improper management in the period of three years preceding the bankruptcy or the official moratorium preceding the same in terms of article 238 of the Bankruptcy Decree 1931 shall be reckoned with. Article 14, fifth paragraph, shall apply analogously.
9.For the purposes of this article, the person who for any period within the time referred to in the eighth paragraph has determined the policy of the legal entity or has contributed to such determination as if he were a managing director, or as founder has manifestly acted negligently, shall be put on a par with a managing director. The claim may not be instituted against an official appointed by the court otherwise than pursuant to the last sentence of article 2, third paragraph.
10.The above paragraphs of this article shall apply in the case of the limited liability company and the private limited company. For the rest they shall apply only in the case of the legal entity that during any period within the term referred to in the eighth paragraph was the owner of an enterprise within the meaning of the Trade Register Ordinance, whereby only improper management during that period of time shall be taken into account then.
11.The above paragraphs shall apply, or shall apply analogously, in respect of the liability of managing directors of a legal entity governed by foreign laws, if declared bankrupt in the Netherlands Antilles. As managing directors shall also be liable those charged with the management of the activities performed in the Netherlands Antilles. Competent shall be the judge who has pronounced the bankruptcy.
12.This article shall leave intact the authority of the trustee in bankruptcy to institute a claim based on the agreement with the managing director or based on article 14.
Article 17
1.The liability of a legal entity as managing director of another legal entity shall also rest in several on anyone who is a managing director of the legal entity at the time its liability arose.
2.In respect of the managing director referred to at the end of the first paragraph, article 14, fourth paragraph and article 16, third and fourth paragraphs, shall apply analogously.
Article 18
1.The articles of incorporation may provide that the management tasks shall be assigned, in the manner laid down in this article, to a general management and an executive management.
2.Subject to the restrictions pursuant to article 8, second paragraph, the executive management shall be in charge of the management of the legal entity, insofar as relating to the daily course of affairs. The executive management moreover shall be charged with the other tasks assigned in this book to the board of management.
3.Subject to the restrictions laid down by law and in the articles of incorporation, the executive management shall be competent to represent the legal entity. Article 10 shall apply analogously.
4.The tasks of the general management at any rate shall include: the appointing as such of executive managing directors and the determination of their salary as such, the resolving on matters beyond the daily course of affairs and the supervision of the executive management.
5.In case of doubt, the general management shall decide as to whether a matter pertains to the daily course of affairs.
6.Any one or more members of the general management at the same time may be members of the executive management, provided they form a minority in the general management and be capable of jointly casting fewer votes in the general management than the other members of the general management jointly.
7.The executive management shall provide the general management and the individual members of the general management in time with the data necessary for the discharge of their duties or required by the person concerned with a view to the discharge of such duties.
8.The general management shall be competent at all times to dismiss an executive managing director as such, or to suspend him for a period of up to two months.
9.For the purposes of article 8, third paragraph, the general management shall be the management. The executive management shall exercise its powers as such with due observance of the resolutions of the general management. Within the executive management, individual managing directors shall exercise their powers with due observance of the resolutions of the executive management.
10.Without prejudice to the provisions of the ninth paragraph, for the purposes of the law the members of the general management and of the executive management shall be equal managing directors, insofar the contrary does not appear from the law.
Article 19
1.Unless article 18 has been made applicable, the articles of incorporation may provide that there is or may be a supervisory board. The articles shall then describe the tasks of the supervisory board.
2.The tasks of the supervisory board at any rate shall include the supervision of the board of management.
3.The supervisory board shall consist of one or more natural persons.
4.Unless otherwise provided by the articles of incorporation, the supervisory board shall be competent to suspend any of the managing directors. The suspension shall cease if the person involved has not been dismissed within two months from the day of suspension.
5.The articles of incorporation may contain supplementary provisions as regards the tasks and powers of the supervisory board and of its members.
6.The board of management shall provide the supervisory board and the individual supervisory directors in time with the data necessary for the discharge of their duties or required by the person concerned with a view to the discharge of such duties.
7.The provisions of articles 9, 14 and 16 shall apply analogously in respect of the supervisory directors. When discharging its duties, the supervisory board shall conform to the interest of the legal entity and, to the extent relevant, the enterprise connected with it. Unless otherwise provided by the articles of incorporation, this shall not rule out the possibility that, with due observance of the preceding sentence, a supervisory director specifically protects the interests of the person who appointed or nominated him and causes such interests to weigh relatively heavily.
8.Articles 51, first paragraph sub c., 80 and 236 shall apply analogously in respect of the appointment, suspension and dismissal, respectively, of supervisory directors. In the case of the limited liability company, article 136 shall apply analogously, subject to the provision laid down in article 139.
Article 20
1.A vote shall be null and void in the cases where a unilateral legal act is void; a vote cannot be annulled.
2.An unqualified person who is a member of an association may exercise his right to vote therein himself, to the extent that the articles of incorporation shall not oppose this; in other cases the exercise of the right to vote shall belong to his legal representative.
3.Unless the articles of incorporation should provide otherwise, the opinion of the chairman, expressed in the meeting of a body of a legal entity as regards the outcome of a vote shall be final. The same shall apply in respect of the contents of a resolution adopted, insofar as a proposal not laid down in writing was voted on.
4.If immediately following the pronouncement of the opinion of the chairman, the correctness thereof is disputed, votes shall be cast again if the majority of the meeting or, if the original voting did not take place by poll or by ballot, a person entitled to vote, present at the vote, should desire this. The legal consequences of the original vote shall lapse as a result of this new vote.
Article 21
1.A resolution of a body of the legal entity that is in contravention of the law or the articles of incorporation shall be invalid, unless another regulation issues from the law.
2.A resolution shall also be invalid if a quorum, majority, proposal, nomination or authorization, prescribed by this book or the articles of incorporation, is lacking. Furthermore a resolution shall be invalid so long as an approval of another body, prescribed by this book or the articles of incorporation, is lacking.
3.A resolution of a body of the legal entity shall be subject to annulment on the demand of any person having a reasonable interest in the observance of the regulation that has not been complied with by reason of:
a.without prejudice to the provision of the second paragraph of this article, contravention of the provisions of the law or the articles of incorporation regulating the realization of resolutions;
b.contravention of the reasonableness and fairness required under article 7;
c.contravention of any by-laws laid down in pursuance of the articles of incorporation;
d.contravention of a shareholders’ agreement as referred to in the second paragraph of articles 127 and 227, to which all the shareholders and also the company are a party.
4.The authority to demand the annulment of a resolution shall cease six months from the end of the day on which either the resolution has been adequately publicized, or the interested party has taken cognizance of the resolution or has been notified thereof.
Article 22
1.The irrevocable decision establishing the invalidity of a resolution of a legal entity or cancelling any such resolution, shall be binding upon all parties, subject to revocation or opposition by third parties, if the legal entity has been a party to the suit. Every member or shareholder shall be entitled to revocation.
2.If the resolution is a legal act of the legal entity, directed at an opposite party, or if it is a requirement for the validity of any such legal act, then the nullity or cancellation of the resolution cannot be invoked against such opposite party if the latter was not cognizant nor needed to be cognizant of the defect attaching to the resolution. Nevertheless the nullity or cancellation of a resolution to issue shares to the intended shareholder and a resolution to appoint a managing director or a supervisory director may be invoked against the person appointed; the legal entity shall indemnify the damage of the opposite party, however, if the latter was not nor needed to be cognizant of the defect in the resolution.
Article 23
When determining the extent to which a quorum or majority requirement has been observed, the memberships or shares in respect whereof the law provides or the articles of incorporation stipulate that no vote may be cast for the same, shall not be reckoned with.
Article 24
1.The judge may dissolve the legal entity if:
a.its object or activities are contrary to morality, public order, the law or the articles of incorporation, be this in whole or in part;
b.the act of formation shows serious flaws;
c.the articles of incorporation are in contravention of the law;
d.in case of the absence of all the managing directors, an arrangement to provide temporarily for management has not been made in accordance with the regulations laid down in article 12, first paragraph;
2.He judge may also dissolve an association, cooperative society or mutual insurance association if members are entirely lacking.
3.He judge furthermore may dissolve a limited liability or a private limited company if:
a.at least one share with full voting powers, participating in the profit, or one share with full voting powers and one participating share, is not being held by a party other than the company itself;
b.the request for dissolution has been made within one year from incorporation and the company is unable to show that the declaration referred to in article 101, first paragraph under b. or, as the case may be, article 201, first paragraph under b. was correct or that the balance sheet on formation, referred to in article 101, second paragraph or, as the case may be, article 201, second paragraph, at the valuation according to generally acceptable standards, of the assets and liabilities as shown, correctly reflected the situation then existing.
4.Dissolution may be requested by an interested party or the public prosecution. The party submitting the request shall give notice thereof in the gazette in which official notices are inserted by the Government. If the legal entity has been entered in the trade register, notice of the request having been submitted shall also be given at the office of the trade register, for registration.
5.The judge shall not proceed to dissolution until after having afforded the legal entity the opportunity to remove the grounds for dissolution. As for the grounds referred to in the third paragraph under b., the judge shall not pronounce the dissolution until after having afforded the company the opportunity to bring its equity capital in line still with the declaration or the balance sheet referred to therein, within a period of time to be stipulated by the judge.
6.The decision whereby the legal entity is declared dissolved shall contain the appointment of a trustee in bankruptcy and the designation of an official receiver.
7.The liquidation of the dissolved legal entity shall be effected by the trustee in bankruptcy under the supervision of the official receiver, in accordance with the stipulations of the Bankruptcy Decree 1931.
8.The trustee in bankruptcy shall announce the decision, whereby the legal entity is declared dissolved, in the gazette in which official notices are inserted by the Government. If the legal entity has been entered in the trade register, the decision shall also be reported to the office of the trade register, for registration.
9.If the grounds for dissolution can be attributed in whole or in part to serious fault or gross negligence on the part of one or more founders, present or former managing directors or supervisory directors, or present or former members or shareholders, then these shall be liable in several as against the dissolved legal entity for any deficit appearing at the liquidation. Article 14, fifth paragraph, shall apply analogously.
Article 25
1.A legal entity entered in the trade register shall be dissolved at the request of the Chamber of Commerce through a decision of the court, if:
a.despite a summons to the effect, the legal entity has not paid the amount due for its entry in the trade register or for the entry of an enterprise belonging to it, during at least one year from the date before which it should have paid such amount;
b.during at least six months no managing directors of the legal entity have been entered in the register, while no statement for entry has been made either, or with respect to all the managing directors entered and reported for entry, any one of the following circumstances occurs:
1othe managing director has passed away;
2othe managing director appeared to be unreachable for six months at the address stated in the register or indicated in the statement.
2.The Chamber of Commerce shall communicate its intention to request dissolution in writing to all the managing directors entered and reported for entry, at the address entered in the register or indicated in the statement. It shall also give notice thereof in the gazette in which official notices are inserted by the Government, and in a newspaper published in the Netherlands Antilles. The costs of the announcements shall be borne by the legal entity.
3.The request for dissolution may be submitted only within the period falling between one month and three months from the sending of the communication referred to in the second paragraph and the publication of the announcements referred to in the preceding paragraph. The Chamber shall make an entry in the register concerning the submission of the request.
4.If the legal entity appears, the judge shall not proceed to dissolution until after having afforded the legal entity the opportunity to remove the grounds for dissolution.
5.Paragraphs six up to and including nine of article 24 shall apply analogously. If the judge should appoint the Chamber of Commerce as trustee in bankruptcy, the Chamber may not refuse the appointment.
Article 26
1.The judge, before whom a request for the dissolution of a legal entity is pending, at the request of an interested party or the public prosecution may effect an arrangement as referred to in the third paragraph of article 255 if the interest of the legal entity or another person as referred to in article 7, first paragraph, or the interest of the creditors of the legal entity should require this. The other provisions of article 255 shall apply analogously.
2.So long as a request for the dissolution of a limited liability or private limited company is pending, the shareholders may not alienate or pledge their shares or encumber them with a usufruct, without the consent of the judge.
3.The provision laid down in the second paragraph shall not apply in respect of shares traded on a stock exchange.
Article 27
1.Without prejudice to other provisions of the law, the legal entity shall be dissolved:
a.through a resolution to the effect of the general meeting or, if the legal entity is a foundation and the articles shall so permit, through a resolution of a body or third party thereto designated in the articles;
b.following an adjudication in bankruptcy, through either the closing of the bankruptcy for lack of assets, or insolvency.
2.A provision in the deed of formation or the articles of incorporation stating another method of dissolution shall be deemed unwritten, without prejudice to other provisions laid down by law.
3.The liquidators, and in the case of the first paragraph under b., the trustee in bankruptcy, shall announce the dissolution in the gazette in which official notices are inserted by the Government. If the legal entity has been entered in the trade register, the dissolution shall also be reported to the office of the trade register, for registration.
Article 28
1.Following its dissolution, the object of the legal entity shall be the liquidation of its assets and all such things as may be useful therefor.
2.All written documents issuing from the legal entity shall state the words “in liquidation” or the translation thereof in any language as coming into consideration for this, written in full and added, at the end, to the name of the legal entity.
Article 29
1.If neither in the articles of incorporation nor in a resolution of the general meeting liquidators have been designated or appointed, the board of management shall act as such. The judge shall be competent at all times, at the request of an interested party or the public prosecution, to dismiss a liquidator, to designate one or several other liquidators, to provide such liquidator(s) with the necessary instructions and to decide on the liquidators’ remuneration and the division of such remuneration among them.
2.In the event of two or more liquidators, any one of them may perform all acts for the liquidation, unless otherwise stipulated. Any difference of opinion the liquidators may have shall be settled by the judge in accordance with the first paragraph, second sentence. For the rest the stipulations as regards the powers, obligations and liability of managing directors shall apply in respect of the liquidators to the extent possible, without prejudice to the provisions of the first paragraph of article 28.
3.If it should appear to the liquidator that the debts are likely to exceed the assets, then he shall report this for an adjudication in bankruptcy, unless all the known creditors on request agree in writing to the continuation of the liquidation not falling under bankruptcy.
4.If not otherwise provided by the articles of incorporation or by resolution of the general meeting or at the designation of liquidators by the judge, the supervisory board shall have the same task in respect of the liquidators as it had in respect of the board of management prior to the dissolution.
Article 30
1.The liquidator shall convert the assets of the legal entity into cash, wind up the relations with respect to third parties and pay the debts. Any balance remaining following payment of the creditors shall be distributed among those thereto entitled in pursuance of the articles of incorporation, or otherwise among the members or shareholders. In the case of limited liability and private limited companies the third paragraph of article 118 and article 218, respectively, shall apply analogously. If no other party is entitled to the surplus, the liquidator shall pay the same over to the Land the Netherlands Antilles.
2.The liquidator shall be competent, if the condition of the estate shall give cause for this, to make the payments in advance.
Article 31
1.The moment the conclusion of the liquidation is in sight the liquidator shall draw up an account to be rendered of the liquidation, showing the extent to which each of the creditors has been paid and, if there is a question of a surplus, the amount and composition thereof. In respect of the surplus he shall draw up a distribution plan containing the bases of the distribution.
2.The liquidator shall deposit the documents referred to in the first paragraph for inspection at the offices of the legal entity and the trade register for a period of at least thirty days. In the gazette in which official notices are inserted by the Government, as also in writing to the holders of registered shares and all the known creditors, the liquidator shall announce the place where and the time up to which these documents shall be available for inspection.
3.At the latest on the thirtieth day following both the submission for inspection of the documents and the announcement thereof in the gazette, referred to in the preceding paragraph, any creditor or party entitled may object to the documents referred to in the first paragraph by lodging a petition with the judge. The liquidator shall announce the objection lodged in the same manner as the announcement of submission for inspection. If no objection has been lodged or if the objection lodged has been withdrawn, the liquidator shall proceed to the further winding up and distribution of the surplus.
4.Following the lodging of an objection the judge may give such instructions as regards a continued liquidation and introduce such changes in the distribution plan as he shall deem proper.
5.The moment the decision as to any objection shall have become irrevocable, the liquidator shall announce this in the same manner as the announcement of the objection lodged. Thereupon he shall proceed to the further winding up and distribution of the surplus.
6.Paragraphs one up to and including five shall not apply if, promptly upon his assuming his obligations as such, the liquidator determines that there are no assets known to him.
7.The liquidation shall terminate and the legal entity shall cease to exist at the time when there are no longer assets known to the liquidator. The liquidator shall draw up a final account and shall deposit the same for inspection at the office of the legal entity and the trade register.
Article 32
1.At the request of a person thereby having a reasonable interest, the judge may reopen the liquidation proceedings or open the same still and appoint one or more liquidators.
2.If the request has been made by a creditor subsequently proving his debt, the liquidator shall be competent to demand that the parties entitled to the surplus pay back the amount received in excess by each of them.
Article 33
1.Following the termination of the liquidation the books and records of the dissolved legal entity shall remain in the custody of the liquidator, or the custodian thereto designated by the judge at the liquidator’s request, for ten years.
2.A designation by the judge cannot be appealed.
Article 34
1.Every custodian shall be bound to report his designation or appointment as such for registration to the office of the trade registers where the dissolved legal entity was entered.
2.The parties entitled to the surplus and their rightful claimants may be authorized by the judge to inspect the books and records if they show that as such they have a reasonable interest in any such inspection.
Article 35
1.Decisions of the court, to the effect of:
a.deleting, supplementing of amending the entry in the trade register concerning a legal entity;
b.amending of or temporarily deviating from the articles of incorporation of the legal entity;
c.dismissing, suspending or appointing, whether or not provisionally, a managing director or supervisory director;
d.nullifying or cancelling a resolution to dissolve or amend the articles of incorporation;
e.dissolving a legal entity, or a decision as referred to in article 2, third paragraph;
f.setting aside a decision as referred to under a. up to and including e.; shall be sent by the clerk of the judicial authority before which the case was last pending, to the manager of the trade register with the request that he see to the deposit and entry of the relevant fact appearing from such decision, and this without prejudice to any obligation, issuing from the law, for others to report such fact for entry.
2.In case of the bankruptcy of a legal entity entered in the trade register, or of such legal entity obtaining an official moratorium, the announcements that are placed in the gazette in which official notices are inserted by the Government pursuant to the Bankruptcy Decree 1931, shall also be stated for entry in that register by the person charged with such publication.
Article 36
1.For the purposes of the provisions of this book, written expression shall be on a par with an expression made by writ, telegram, telex, telefax, e-mail or other text-conveying means of communication.
2.From all writings, printed documents and written expressions of the legal entity, with the exception of expressions made by telegram, telex, telefax, e-mail or other textconveying means of communication, the full name of the legal entity, the island territory where it is domiciled according to its articles and its registered office shall be clearly evident. If the legal entity has been entered in the trade register, the registration number shall also be stated.
Article 37
1.For the setting up of a legal entity, to be set up by notarial deed, the founders shall owe the Land the Netherlands Antilles a standing charge. The amount of the standing charge shall be determined by Ministerial Order with general operation.
2.The standing charge shall be collected for the Land the Netherlands Antilles by the civil-law notary before whom the deed of incorporation is executed. Should a notary fail to collect the standing charge, he shall nevertheless be bound to pay the same over.
3.The standing charge shall be paid over on a declaration within thirty days from the day on which the deed of incorporation has been executed. The declaration shall be made by presenting the deed of incorporation.
4.The declaration shall be made simultaneously with the payment at the national tax collector on the island where the deed of incorporation has been executed.
5.The National Ordinance containing regulations on the collection of taxes, contributions and considerations by means of enforcement orders, as also on the administration of justice concerning taxes, contributions and considerations (Official Gazette 1942, no. 246) shall apply analogously.
6.The provisions of paragraphs one up to and including five shall apply analogously in case of an amendment to the articles of incorporation and of the conversion of a limited liability or a private limited company, it being understood that the standing charge shall then be due by the company.
Article 38-49
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Title 2 The Foundation
Article 50
1.The foundation and the private fund foundation are legal entities created as such by notarial deed, which entities shall have no members or shareholders and shall aim, with the aid of capital appropriated for the purpose, at realizing a goal stated in the articles of incorporation.
2.The following persons shall not be considered members of a foundation:
a.persons to whom authority has been granted, in or pursuant to the articles, to fill the vacancies in bodies of the foundation or to suspend and dismiss officers or members of other bodies of the foundation,
b.participants in a pension fund that is managed by the foundation.
3.The purpose of a foundation not being a private fund foundation may not include the paying of benefits to founders or to those forming part of its bodies, nor to others unless, as far as these others are concerned, the benefits have an idealistic or social tendency.
4.Benefits issuing from a right to pension shall not be deemed benefits as referred to in the third paragraph.
5.The purpose of a private fund foundation may not include the conduct of a business.
6.As a business referred to in the fifth paragraph shall not be considered:
a.engaging in the investment of its capital, regardless of the nature of such investments;
b.having an interest in another legal entity;
c.participating in a limited partnership as a limited partner.
7.Whenever foundation is mentioned in the law, the stipulation shall apply to the private fund foundation as well, unless the contrary appears.
Article 51
1.The articles of incorporation shall contain:
a.the name of the foundation, with the word “stichting” [foundation] or, as the case may be, “stichting particulier fonds” [private fund foundation] or a translation thereof as part of the name;
b.the purpose of the foundation;
c.the method of appointing and dismissing the officers;
d.the island territory where the foundation is domiciled;
e.the allocation of the surplus following liquidation in case of dissolution of the foundation or the manner in which the allocation shall be determined.
2.The articles of incorporation of the foundation may be amended by its bodies only if and insofar as the articles shall render it possible to do so, without prejudice to the provision of article 5.
Article 52
1.When a testator has bequeathed something to a foundation set up by him in a last will and testament, drawn up by notarial deed, the foundation shall be heir or specific beneficiary according as to whether the benefit bequeathed to it shall conform to a testamentary disposition or a specific legacy.
2.If in a last will and testament, drawn up in a different form, he has declared that he does create a foundation, then such disposition shall be considered a mandate imposed on the joint heirs to set up such foundation.
3.The person on whom a mandate to set up a foundation has been imposed, at the demand of the public prosecution may be ordered to do so by the court of first instance of the island territory where the testator resided at the time of his death or, if the testator did not have his last place of residence within the Netherlands Antilles, by the court of first instance in Curaçao. The judge may direct that the judgement shall have the same legal force as a deed, drawn up in legal form, of the person bound to perform the legal act, or that a representative to be designated by the judge shall perform the act.
Article 53
1.If the unaltered enforcement of the articles of incorporation would lead to consequences that could not reasonably have been desired at incorporation, and the articles exclude the possibility of amendment or do not provide for this, or if those competent to introduce amendments should fail thus to proceed, the judge may amend the articles at the request of a founder, of the management committee or of the public prosecution.
2.In doing so the judge shall deviate as little as possible from the existing articles. If amendment of the purpose shall be required, he shall assign a purpose that shall relate to the existing one. With due observance of the aforegoing, the judge shall be competent, if necessary, to amend the articles otherwise than as requested.
3.Under analogous application of the first and second paragraphs, the judge may amend the articles to prevent the dissolution of the foundation on grounds as stated in article 24 or article 57 first paragraph under a.
4.In legal proceedings in which the dissolution of a foundation is requested on grounds as stated in the third paragraph, the judge may exercise the powers referred to in this article also in virtue of his office.
Article 54
1.In case of serious doubt as regards compliance in good faith with the law or the articles of incorporation, or as to whether the management is being properly conducted, the public prosecution and any interested party shall be competent to request the management committee for information. If so requested, the information shall be put down in writing.
2.In case the request is not, or is not properly, complied with, as also if there should be well-founded reasons to doubt a proper policy, the judge at the request of an interested party or the public prosecution may appoint an examiner with the order that he examine the foundation’s policy and course of business during a certain period of time, and report on this to him in writing before a point of time set or to be set. The judge may provide the examiner with guidelines concerning the manner in which he shall set up his examination.
3.The management committee shall be bound to cooperate fully with the examination, as required. The judge shall be competent to give the orders deemed advisable to him in this respect. The judge may direct that the requesting party provide security for the costs of the examination in the manner to be determined by him and up to a maximum amount to be set by him.
4.At the examiner’s request, the judge may hear witnesses and experts. At the request of the examiner or at the request of the initial applicant, the judge, having heard the examiner, may also make arrangements as referred to in the third paragraph of article 255.
5.The arrangement may be cancelled, extended or modified at any time at the request of an interested party. It shall cease at the point of time set by the judge and at any rate at the point of time when two months shall have elapsed from the report having been submitted to the office of the clerk of the court in accordance with the sixth paragraph, unless a request has been submitted prior thereto as laid down in article 55. The arrangement shall then cease at any rate upon the request being denied and such decision having become irrevocable. If the request is granted in whole or in part, then the judge, if so requested or in virtue of his office, may extend the arrangement until the vacancy shall have been filled in accordance with the articles of incorporation or as laid down in article 56, second paragraph. The fourth and fifth paragraphs of article 255 shall apply analogously.
6.The report rendered by the examiner shall be submitted to the office of the clerk of the court and a copy thereof shall be handed to the foundation and the initial applicant. From the report it shall appear that a draft of the contents thereof has been submitted to the management committee, and it shall also state the comments of the management committee and the adjustments of the contents as resulting from such comments.
7.The examiner shall be prohibited from disclosing the findings of his examination any further than his examination shall entail.
8.The judge shall estimate the costs of the examination. If so requested or in virtue of his office, the judge may direct that such costs be borne in whole or in part by the foundation, the initial applicant or, if there are grounds for this, one or several of the present or former officers of the foundation.
9.With respect to the private fund foundation a request as referred to in the first and second paragraphs can be made exclusively by the public prosecution. The second sentence of the fourth and fifth paragraphs shall not apply in this case.
Article 55
1.At the request of the public prosecution or an interested party, the judge may dismiss an officer if:
a.he commits or omits an act in contravention of the provisions of the law or of the articles of incorporation;
b.in the opinion of the judge it appears from the report referred to in article 54, sixth paragraph that the officer is guilty of manifestly improper management or that his acting as such impedes the proper functioning of the management committee.
2.The judge may direct that an officer dismissed by him may not be an officer of a foundation for the duration of five years after the dismissal became final and conclusive.
3.With respect to the private fund foundation a request as referred to in the first paragraph can be made exclusively by the public prosecution.
Article 56
1.Whenever the management committee prescribed by the articles of incorporation should be lacking in whole or in part and no provision is made for this in conformity with the articles, the judge at the request of an interested party or the public prosecution may provide for the vacancy to be filled. In doing so the judge shall observe the articles to the extent possible.
2.If so requested or in virtue of his office, the judge may fill the vacancy while simultaneously granting a request as referred to in article 55.
Article 57
1.The judge shall dissolve the foundation at the request of an interested party or the public prosecution, if:
a.the assets of the foundation are totally insufficient for the realization of its purpose and it is very unlikely that sufficient assets will be acquired through contributions or otherwise in the foreseeable future;
b.the purpose of the foundation has been realized or can no longer be attained, and amending the purpose cannot be considered.
2.The judge may dissolve the foundation, if so requested or in virtue of his office, while simultaneously rejecting a request as referred to in article 53 or 56.
3.Paragraphs four up to and including eight of article 24 shall apply analogously.
Article 58-69
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Title 3 The Association
Article 70
1.The association is a legal entity with members, its aim being a specific purpose other than one as described in article 90, first or second paragraph.
2.An association shall be set up by a multilateral juristic act.
3.An association may not distribute any profit among its members.
Article 71
1.If an association is set up by notarial deed, then, without prejudice to the provisions of article 4, the following stipulations shall be observed.
2.The articles of incorporation shall contain:
a.the name of the association and the island territory where it has its registered office;
b.the purpose of the association;
c.the obligations of the members as against the association, or the manner in which such obligations shall be capable of being imposed;
d.the manner in which the general meeting shall be convened;
e.the manner in which the officers shall be appointed and dismissed;
f.the allocation of the surplus following liquidation in the event of the dissolution of the association, or the manner in which the allocation shall be determined.
Article 72
1.An association not set up in accordance with the first paragraph of article 71 cannot have rules that are to constitute articles of incorporation in terms of this book, unless the same shall have been laid down in writing in a document designated for that purpose.
2.The general meeting of an association as referred to in the first paragraph may resolve to cause the articles of incorporation to be inserted in a notarial deed. Article 71 shall then apply analogously.
Article 73
1.An association, the articles of incorporation of which have not been embodied in a notarial deed, shall not be capable of acquiring property subject to public registration, nor may it be an heir.
2.The officers of any such association shall be bound in several, next to the association, in respect of any debts resulting from a legal act, arising or becoming due and payable during their administration. Following their resignation they shall moreover be bound in several in respect of debts resulting from a legal act performed during their administration. A person who has not been consulted in advance on the legal act and who, upon taking cognizance of such act, refused to assume responsibility therefor as officer, shall not be held liable pursuant to any of the preceding sentences. In the absence of persons who, next to the association, shall be bound pursuant to the first or second sentence, those who acted shall be bound in several.
3.The officers of any such association may cause the same to be entered in the trade register. In doing so they shall submit a copy of the articles of incorporation to the office of such register. If a copy has been submitted to the register, the officers shall be bound, in the event of any amendment to the articles of incorporation, to submit to such office also a copy of the amendment and of the amended articles.
4.If the entry referred to in the third paragraph has taken place, then the party bound on the strength of the second paragraph shall be liable only to the extent that the opposite party satisfies the probability that the association will not comply with the undertaking.
Article 74
1.Next to ordinary members, an association may also have one or more other kinds of members.
2.Ordinary members shall have the rights granted to and the obligations imposed on members in this book. Members not being ordinary members shall have these rights and obligations insofar as the articles do not provide otherwise.
Article 75
Unless the articles of incorporation provide otherwise, the management committee shall decide on the admission of a member, and in case of non-admission the general meeting may resolve to grant admission still.
Article 76
1.Membership of the association shall be personal, unless otherwise provided by the articles of incorporation.
2.Unless the articles of the association should provide otherwise, the membership of a legal entity that ceases to exist due to a merger or demerger, shall pass to the acquiring legal entity or, as the case may be, in accordance with the description attached to the deed of demerger, to one of the acquiring legal entities.
Article 77
Obligations may be attached to the membership only in or pursuant to the articles of incorporation.
Article 78
1.Membership shall terminate:
a.through the death of the member, unless the articles shall allow devolution pursuant to the law of succession;
b.through notice of termination by the member;
c.through notice of termination by the association;
d.through expulsion.
2.The association may terminate the membership in the cases stated in the articles of incorporation, moreover when a member has ceased to meet the membership requirements laid down in the articles, as also when it cannot reasonably be required of the association that it cause the membership to continue in effect. Unless the articles of incorporation should charge another body with this, notice of termination shall be given by the management committee.
3.Expulsion may be pronounced only when a member acts in contravention of the articles of incorporation, regulations or resolutions of the association, or unreasonably prejudices the association.
4.Unless the articles should charge another body with this, notice of expulsion shall be given by the management committee. The member shall be notified in writing of the resolution, with the reasons thereby stated, as soon as possible. Save in case the resolution has been adopted by the general meeting pursuant to the articles, the member given notice of expulsion may appeal to the general meeting, or to a body or third party thereto designated in the articles, within one month from receipt of the notification of the resolution. The articles may contain other appeal regulations, but the term may not be set at less than one month. During the term of appeal and pending the appeal, the member shall be suspended.
5.If membership should terminate in the course of a financial year, the annual contribution nevertheless shall remain due in full, unless the articles should provide otherwise.
Article 79
1.Unless otherwise provided in the articles, membership may be terminated only by the end of a financial year and with due observance of a term of notice of four weeks. Membership may be terminated at any rate through notice to the effect by the end of the financial year following that in which notice is given, or immediately, if it cannot reasonably be required that membership be allowed to continue.
2.Notice of termination given in contravention of the provision of the first paragraph shall cause the membership to be terminated at the earliest possible time allowed following the date by which notice of termination was given.
3.A member moreover may terminate his membership, with immediate effect, within one month from his having taken cognizance or having been informed of a resolution or an amendment to the articles of incorporation restricting his rights or increasing his obligations. The resolution or the amended provision of the articles of incorporation shall not apply to him then. The articles of incorporation may deny the members this right to terminate in the case of alteration of rights and obligations accurately defined therein.
4.A member may also terminate his membership, with immediate effect, within one month from his having been informed of a resolution to convert the association into another legal form, to merge the association or to demerge it.
Article 80
1.The management committee shall be appointed from among the members. The articles of incorporation may provide, however, that officers not being members may also be appointed.
2.The appointment shall be effected by the general meeting. However, the articles may also provide other regulations as regards the method of appointment, on condition that each member be able to participate in the vote, be this directly or indirectly, on the appointment of the officers.
3.The articles may provide that one or more officers, on condition that their number be less than half, shall be appointed by persons other than the members.
4.If the articles provide that an officer must be appointed in a meeting from a binding nomination, such nomination may be deprived of its binding nature by means of a resolution of that meeting, adopted by at least two thirds of the votes cast. The articles may provide that at least a certain number of votes shall be capable of being cast in this meeting; such number may not be set at higher than two thirds of the number of votes capable of being cast collectively by those entitled to vote.
5.If pursuant to the articles an officer shall be appointed by members or departments without a meeting being held, then the members must be given an opportunity to nominate candidates. The articles may provide that this right shall only belong to a number of members jointly, provided their number not be set at higher than one fifth of the number of members that can participate in the election. The articles moreover may provide that the candidates thus nominated shall be appointed only if they have obtained at least a certain number of votes, provided such number not be greater than two thirds of the number of votes cast.
6.An officer, also if appointed for a certain term, may be dismissed or suspended at any time by the body that appointed him. For the purposes of this provision the officers designated at incorporation shall be deemed to have been appointed by the general meeting, unless otherwise resulting from the articles.
7.Unless otherwise provided by the articles, the management committee shall designate a chairman, a secretary and a treasurer from its number.
8.If article 18 has applied, the provisions laid down in this article shall apply in respect of the appointment of the general management committee.
Article 81
1.Subject to the provisions laid down in article 82, all the members who have not been suspended shall have access to the general meeting and each shall be entitled to cast one vote at such meeting; a suspended member shall have access to the meeting dealing with the resolution to suspend, and he shall have the right to speak on the subject. The articles may grant more than one vote to specific members.
2.Unless otherwise provided by the articles, the chairman and the secretary of the management committee or their substitutes shall also act as such in the general meeting.
3.The articles may stipulate that persons who form part of other bodies of the association and are not members may exercise the right to vote in the general meeting. The number of votes cast by them collectively, however, may not be more than half the number of the votes cast by the members.
4.Unless otherwise provided by the articles, a person who is entitled to vote pursuant to the first or third paragraph, may grant a written proxy to another party entitled to vote, for the latter to vote in his name.
Article 82
1.The articles may stipulate that the general meeting shall consist of delegates who shall be elected by and from among the members. The method of election and the number of the delegates shall be regulated by the articles; each member must be able to participate directly or indirectly in the voting. The fourth and fifth paragraphs of article 80 shall apply analogously in respect of the election. Article 81, third paragraph, shall apply analogously in respect of persons who form part of other bodies of the association and are not delegates.
2.The articles may provide that certain resolutions of the general meeting shall be subjected to a referendum. The articles shall regulate the cases in which, the time within which and the manner in which the referendum shall be held. Pending the outcome of the referendum the execution of the resolution shall be suspended.
Article 83
1.The general meeting shall have all the powers in the association that are not granted to other bodies by law or in the articles.
2.A unanimous resolution of all the members or delegates, even if not assembled in a meeting, provided it be adopted with the prior knowledge of the management committee, shall have the same effect as a resolution of the general meeting,
Article 84
1.The management committee shall convene the general meeting as often as it shall deem this appropriate, or when required to do so by law or according to the articles of incorporation. The articles may also grant these powers to others than the management committee.
2.At the written request of at least such a number of members or delegates as shall be competent to cast one tenth part of the votes in the general meeting or such smaller number as stipulated in the articles, the management committee shall be obliged to convene a general meeting on a term of not more than four weeks from the request having been submitted.
3.If the request is not acted upon within fourteen days, unless the articles should otherwise regulate the method of convening the general meeting for this case, the applicants themselves may proceed to convene such meeting in the manner in which the management committee convenes the general meeting or by means of an advertisement inserted in at least one daily newspaper widely circulated in the place where the association is established. The applicants may then charge others than the officers with the direction of the meeting and the keeping of minutes.
4.Unless otherwise provided in the articles, the meeting shall be held in the Netherlands Antilles on the island where the registered office is established.
Article 85
Articles 80 up to and including 84 shall apply analogously in respect of the departments of an association that are not legal entities, and that have a general meeting and a management committee. The provisions of such articles as regards the articles of incorporation may be laid down in department regulations.
Article 86
1.Without prejudice to the provisions laid down in article 5, no amendments may be made to the articles of incorporation of the association otherwise than through a resolution of a general meeting; such meeting shall be convened with the notice stating that an amendment to the articles shall be proposed at the meeting. The term of notice in effect for such meeting shall be at least seven days, not counting the day of convocation nor that of the meeting.
2.Those who issued the notice convening the general meeting for dealing with a proposal to amend the articles shall be obliged to deposit a copy of such proposal, literally stating the proposed amendment, at a place suitable for this, for inspection by the members at least five days prior to the meeting until the end of the day on which the meeting is held. The proposal shall be notified to the departments constituting the association and to delegates at least fourteen days prior to the meeting; the preceding sentence shall not apply then.
3.The provisions of the first two paragraphs shall not apply if all members or delegates are present or represented at the general meeting and the resolution to amend the articles is adopted by unanimous vote.
4.The provisions of this article and of the first two paragraphs of article 87 shall apply analogously in respect of a resolution to dissolve.
Article 87
1.Unless otherwise provided by the articles of incorporation, a resolution to amend the articles shall require at least two thirds of the votes cast.
2.Insofar as the authority to introduce amendments should be excluded in the articles, amendment shall nevertheless be possible by unanimous vote in a meeting at which all the members or delegates shall be present or represented.
3.A provision in the articles, limiting the authority to introduce amendments to one or more other provisions, may be amended only with due observance of equal limitation.
4.A provision in the articles, excluding the authority to introduce amendments to one or more other provisions, may be amended only by unanimous vote in a meeting at which all the members or delegates shall be present or represented.
Article 88
Insofar as not otherwise issuing from the articles, the association may stipulate rights for the members and, insofar as this shall be expressly provided in the articles, enter into obligations to their charge. It may demand compliance with rights stipulated as against and damages to be paid to a member, unless the latter should oppose this.
Article 89
1.Within eight months from the end of the financial year, subject to any extension of this term by the general meeting, the management committee in a general meeting shall present an annual report as regards the course of the business of the association and the management conducted. It shall submit the annual accounts, consisting of at least a balance sheet, a statement of assets and liabilities and an explanatory memorandum with respect to these documents, to the meeting for approval. The annual accounts shall be signed by the officers and, if appointed, the supervisory directors; if the signature of any one or more of them should be lacking, this shall be noted with the reasons thereby stated. Following the expiration of the term, any member may claim at law that the joint officers perform these obligations.
2.If there is no supervisory board and if no declaration originating from an expert as referred to in article 121, first paragraph, is submitted to the general meeting as regards the faithfulness of the documents, the general meeting shall appoint each year a committee of at least two members who may not form part of the management committee. The committee shall examine the documents referred to in the second sentence of the first paragraph, and shall report its findings to the general meeting. The management committee shall be bound to furnish the committee with all the information required by the latter for the purposes of its examination, if so required to show the cash and valuables to the said committee, and also to make the books, records and other data carriers of the association available for its inspection.
Title 4 The cooperative society and the mutual insurance association
Article 90
1.The cooperative society is a legal entity with members, set up by notarial deed as a cooperative society. According to its articles of incorporation, its object must be to meet certain material needs of its members pursuant to agreements, other than of insurance, effected with them in the business that it exercises, or causes to be exercised, to that end for their benefit.
2.The mutual insurance association is a legal entity with members, set up by notarial deed as a mutual insurance association. According to its articles of incorporation, its object must be to enter into insurance agreements with its members or to keep members and possibly others insured within the framework of a statutory regulation, all this in the insurance business that it shall conduct to that end for the benefit of its members.
3.The articles of incorporation of a cooperative society may permit it to effect also with others such agreements as effected by it with its members. This shall also apply for the articles of a mutual insurance association not having a provision as referred to in article 92.
4.If a cooperative society or a mutual insurance association exercises the power referred to in the third paragraph, it may not do so to such an extent that the agreements with the members shall be merely of secondary importance.
5.The name of a cooperative society shall contain the word “coöperatief” [cooperative] or a derivative thereof, and that of a mutual insurance association the word “onderling” [mutual] or “wederkerig” [reciprocal] or a derivative thereof. If the deed of incorporation is stated in a language other than Dutch, then the equivalent of these words may be used in such other language.
Article 91
The provisions of title 3, with the exception of article 70, third paragraph, shall apply in respect of the cooperative society and the mutual insurance association, insofar as not deviated from in this title.
Article 92
1.The articles of incorporation may provide that those who were members at the dissolution or ceased to be members less than one year earlier, shall be liable as against the legal entity for any deficit according to the standards thereby indicated; if a cooperative society or a mutual insurance association is dissolved through its insolvency upon having been declared bankrupt, then the one-year term shall be reckoned not as and from the day of dissolution but as and from the day of the bankruptcy order. The articles may stipulate a term of longer than one year.
2.If the articles do not indicate a standard for the liability of each, then all shall be liable for equal portions.
3.If the amount of the portion of the deficit of members or former members cannot be recovered from any one or more of them, the other members and former members shall be liable for the lacking part, each of them proportionally to his portion. This liability shall also exist if the liquidators waive the right of recourse against one or more members or former members on the grounds that through the exercise of the right of recourse a benefit would not be acquired for the estate. If the liquidation is effected under the supervision of persons charged by law with such supervision, the liquidators may waive such recourse only with the authorization of these persons.
4.The members and former members who are liable shall be bound immediately to pay their portion of an estimated deficit, increased by 50 per cent or so much less as the liquidators shall deem sufficient, for the provisional covering of an additional apportionment for the costs of collection and of the portion of those who might fail to comply with their obligation.
5.A member or former member shall not be competent to set off his debt pursuant to this article.
Article 93
1.If the articles of incorporation contain a regulation as referred to in article 92, they may limit to a maximum the obligation of the members or former members to contribute towards any deficit.
2.If the articles do not contain a regulation as referred to in article 92, then the members or former members shall not be bound to contribute towards any deficit.
Article 94
1.Each year, within eight months from the end of the financial year, subject to any extension of this period by the general meeting by up to six months on the grounds of special circumstances, the management shall draw up the annual accounts consisting of at least a balance sheet, a profit and loss account and an explanatory memorandum to these documents.
2.The annual accounts drawn up shall be signed by all the officers. They shall also be signed by the supervisory directors in office. Should a signature be lacking, the reason for this shall be stated.
3.The annual accounts as drawn up shall be submitted to the general meeting for approval. The articles may provide that the general meeting shall have the authority to modify all or certain items or to instruct the management to modify the annual accounts according to indications to be given by the general meeting or a committee from such meeting.
4.The annual accounts in accordance with standards deemed generally acceptable shall provide such insight as shall make it possible for a sound opinion to be formed as regards the assets and the results and also, insofar as the nature of annual accounts shall so permit, as regards the solvency and liquid assets of the cooperative society or mutual insurance association.
5.Article 15, third paragraph, shall apply analogously in respect of the annual accounts drawn up and approved, and the documents pertaining thereto.
6.The first up to and including the fifth paragraphs of this article shall not apply in respect of the cooperative society or mutual insurance association that in its articles has declared articles 120 up to and including 122 to be analogously applicable, whether or not together with articles 123 and 124. In such a case also articles 125 and 126 shall apply analogously.
Article 95
1.Cooperative societies and mutual insurance associations shall not be competent to introduce amendments, by means of a resolution, in the agreements effected with their members in the conduct of their business, unless they shall have clearly reserved this right in the agreement. Reference to the articles of incorporation, regulations, general terms and conditions or the like shall not suffice to this end.
2.The legal entity may rely as against a member on an amendment as referred to in the first paragraph only if the amendment was notified to the member in writing.
Article 96
For the cooperative society moreover shall apply that, while retaining the freedom to retire from the cooperative society, the articles of incorporation may attach conditions to this in conformity with the object and purport of the society. Any condition exceeding the bounds permitted shall be deemed to such extent not to have been made.
Article 97
For a cooperative society, the articles of incorporation of which contain a regulation as referred to in article 92, moreover shall apply the following stipulations:
a.Membership shall be applied for in writing. The applicant shall also be informed in writing as to whether he has been admitted as a member, or refused. In case he has been admitted, he shall also be informed of the number under which he has been entered as a member in the administration of the cooperative society. Nevertheless, a written application and written notice as referred to above need not be shown as evidence that membership has been acquired.
b.The documents for applying for membership shall be kept by the management for at least ten years. The documents referred to here need not be kept, however, insofar as regarding those persons whose membership can be evidenced by a dated statement, signed by them, in the administration of the cooperative society.
c.Membership may only be terminated either by a separate writing or by a dated declaration, signed by the member, in the administration of the cooperative society. The member giving notice to terminate his membership shall receive a written acknowledgement thereof from the management. If the written acknowledgement is not given within fourteen days, the member shall be competent to repeat the notice of termination by writ, at the expense of the cooperative society.
d.A copy of the list of members, certified by the management, shall be deposited at the office of the trade register when the cooperative society is registered. Within one month from the end of each financial year the management shall add to the list deposited at the office of the trade register a written statement of the modifications to such list of members occurred in the course of the financial year or, if the Chamber of Commerce shall deem this necessary, a new list shall be deposited.
Article 98
For a mutual insurance association the following stipulations moreover shall apply:
a.Those who as policyholder shall have an insurance contract in effect with a mutual insurance association, by law shall be members of the mutual insurance association. This stipulation may be deviated from in the case of the mutual insurance association that pursuant to its articles may insure also policyholders who are not members.
b.Unless the articles should provide otherwise, membership arising from an insurance contract shall last until all the insurance contracts effected by the member with the mutual insurance association shall have terminated. In case of a transfer or devolution of the rights and obligations arising under any such agreement, membership insofar as issuing from such agreement shall pass to the new acquirer or the new acquirers, all this subject to any deviating stipulations in the articles.
Article 99
1.A person not being a cooperative society or a mutual insurance association shall be prohibited from doing business using the designation “coöperatief” [cooperative], “onderling” [mutual] or “wederkerig” [reciprocal] or any derivative thereof.
2.In case of violation of this prohibition, a cooperative society or mutual insurance association may demand that, when doing business, the offending party refrain from using the word objected to, and this on pain of a penalty to be imposed by the court.
Title 5 The limited liability company
Division 1 General provisions
Article 100
1.The limited liability company is a legal entity with one or more shares issued in registered or bearer form.
2.The company shall be incorporated by one or more persons, by notarial deed. At incorporation at least one share with full voting power that participates in the profit, or else one share with full voting power and one participating share, shall be placed with a founder or a third party.
3.Rights that include neither voting rights nor any claim to profit distribution shall not be regarded as shares.
Article 101
1. Without prejudice to the provision of article 4, second paragraph, the deed of incorporation at any rate shall contain:
a. the numbers and classes of the shares issued and outstanding at incorporation, as also the names and places of residence of the persons who have taken these shares;
b. if calls on shares are paid exclusively in money, a declaration of all the founders that the company’s equity capital at incorporation is not negative.
2. If calls on shares are paid in kind, a balance sheet on formation, signed by all the founders and showing an equity capital that is not negative, shall be attached to the deed.
3. If the company has a nominal capital at incorporation, then, on applying the first paragraph under b. and the second paragraph, the amount thereof shall be taken into account.
4. The deed shall be signed, in person or by written proxy, by each founder and by every person taking one or more shares as evidenced by the deed.
Article 102
1. The articles of incorporation shall state the name, the island territory where the company has its registered office and the object of the company. The name shall commence or end with the words “naamloze vennootschap” [limited liability company], written either in full or abbreviated to “N.V.”. The name may not be stated otherwise than in Latin letters.
2. The articles may provide for different classes of shares. They may allot a nominal value to one or more classes. The nominal value may be stated in one or more foreign currencies.
3. Through an amendment to the articles of incorporation the nominal value may be cancelled or modified. An increase of the nominal value may not lead to the nominal capital exceeding the company’s equity capital. The nominal capital shall be the sum of the nominal values of the issued shares.
4. If according to the articles there are shares with a nominal value, the articles shall contain stipulations with respect to the voting, profit and liquidation rights attaching to those and other shares.
Division 2 The shares
Article 103
1.Insofar as the law or the articles of incorporation do not provide otherwise, equal rights and obligations shall attach to all the shares.
2.The articles may provide that in respect of shares of one or more classes sub-shares may be issued, and these shall represent the fraction of a share as stated at the time of issue.
3.The provisions of this book as regards shares and shareholders shall apply analogously in respect of sub-shares and the holders thereof unless otherwise appearing from such provisions.
4.Unless otherwise provided by the articles, for the purposes of article 129 first paragraph and article 132 first paragraph, sub-shares in the aggregate representing at least one or more shares shall constitute so many shares, irrespective of the entitlement to the sub-shares.
Article 104
1.The general meeting of shareholders or another body thereto designated in or pursuant to the articles of incorporation shall be competent, following the incorporation, to resolve on the issue of new registered shares. The subsequent issue shall be effected by means of a deed signed by the company and the acquirer. Article 15 third paragraph shall apply analogously in respect of the deed.
2.Bearer shares may not be issued as such. The deed of incorporation may stipulate in respect of the shares thereby placed, however, that a bearer certificate shall be issued at the shareholder’s request, and this against surrender of the registered share certificate, if issued. If possible under the articles of incorporation, this may also be stipulated in a subsequent deed of issue. As and from the issue of the bearer certificate, the share concerned shall be deemed to be a bearer share.
3.If there is an obligation resting on the holder of the registered share to pay an additional call on the share as referred to in article 107 fourth paragraph, the bearer certificate shall be issued only after this obligation shall have been met.
Article 105
1.A subsequent bona fide acquirer cannot be met with the objection that a bearer share has not been validly issued or that the duty to pay a call or an additional call on shares has not been met.
2.The articles may provide that a body thereby designated shall be competent to oblige holders of bearer shares of a specific class or series, or all holders of bearer shares, to convert their bearer shares into registered shares. The obligation shall be announced in accordance with article 130 first paragraph. If the obligation has been announced, then article 301 fifth paragraph shall apply analogously.
3.At the shareholder’s request, bearer shares shall be converted into registered shares by the company, against surrender to it of the share certificate.
4.The shareholder who proves to the satisfaction of the company that his bearer certificate has been lost or destroyed, at his request shall be considered by the company to be a registered shareholder until the contrary shall have been proven. He shall be liable as against the company and third parties in respect of any damage to be suffered in consequence hereof.
Article 106
1.Unless otherwise stipulated in the articles of incorporation in respect of all or specific classes of shares, every shareholder at the issue of shares shall have, in respect of each class, a preferential right that shall be proportional to the number of shares of such class held by him. The articles may provide that a body designated in the articles shall resolve at all or at certain issues as to whether or not there shall be a preferential right, and as to the details thereof.
2.As regards the announcement of the preferential right, article 130 first paragraph shall apply analogously. The preferential right may be exercised during at least two weeks after the announcement.
Article 107
1.The acquirer of a share shall be obliged to pay the consideration as determined in the deed of incorporation or the resolution to issue. If calls on shares are paid otherwise than in money, the deed of incorporation or the deed of issue shall reflect the value of the call in an amount. If shares with a nominal value are acquired, the value of the consideration shall be at least the nominal amount of the share.
2.The deed of incorporation or the resolution to issue may stipulate that the consideration, or any part thereof, shall not become due and payable until after the lapse of a certain period of time or shall be due and payable only upon a resolution to the effect of a body specified in such deed or said resolution. In the event of the company’s bankruptcy, the authority to adopt this resolution shall pass to the trustee in bankruptcy.
3.Insofar as the company’s demand for payment of the consideration is not unconditionally due before one year from the issue of the share having elapsed, the said demand shall be left aside when calculating the company’s equity capital as referred to in this book, and when determining the value referred to in the first paragraph.
4.A duty to pay additional calls by law shall mean any obligation to pay a call on an issued share, that is not immediately and unconditionally due and payable.
5.Save for an exemption from the duty to pay additional calls on shares in accordance with article 115, the holder of a share cannot be exempted from his obligations under this article. In the event of alienation of a share, the alienator shall remain liable in several, next to the acquirer, for another year as regards the obligations under this article.
6.In respect of an obligation to pay calls or additional calls on a share, the company’s opposite party may never claim a setoff.
Article 108
1.A registered share certificate shall be issued to the acquirer or holder of a registered share, at his request. The value of the call paid and any obligation to pay additional calls on the share shall be stated on such certificate.
2.The subsequent bona fide acquirer cannot be met with the objection that the statement thus made by the company concerning the payment of a call or the obligation to pay additional calls, is incorrect or incomplete.
Article 109
1.The management shall keep a register in which the names and addresses of all the holders of registered shares shall be entered, with statement of the class of share, the voting right attaching thereto, the amount paid up or stated as call paid thereon, the obligation, if any, to pay additional calls, the day of acquisition and whether or not a share certificate has been issued. A note shall also be made of the establishment or assignment of a usufruct on the shares and the creation of a pledge on the shares, as also a transfer of the right to vote connected therewith. The register shall be kept up to date on a regular basis. In case of any change, the day on which same takes place shall be stated.
2.Each shareholder shall be entitled to inspect the register insofar as the shares held by him are concerned. The articles may grant the right of inspection to others.
Article 110
1.Subject to the provisions of article 111 and as laid down elsewhere by law, shares may be transferred.
2.The transfer of registered shares shall be effected by a deed of transfer signed by the parties, and either the serving of such deed on the company or the acknowledgement of the transfer by the company. Acknowledgement shall take place by means of a signed annotation on the deed of transfer or a written declaration of the company, addressed to the acquirer. If shares are involved on which there is a duty to pay additional calls, the acknowledgement can take place only if the deed of transfer bears a fixed date.
3.If a share certificate has been issued by the company, such document, provided with an endorsement for transfer signed by the parties, may constitute the deed of transfer.
4.The articles may provide that, if a share certificate has been issued by the company, only a document as referred to in the third paragraph may constitute the deed of transfer. The articles may also provide that acknowledgement or serving can take place only following the surrender of the share certificate issued, and this without prejudice to the right of the successive shareholder to receive a share certificate issued to his name in accordance with article 108, first paragraph. In both cases there shall be an exception to the rule, if the alienator proves to the company’s satisfaction that his share certificate has been lost. The alienator invoking this provision shall be liable as against the company and third parties for any damage to be suffered as a consequence hereof.
5.The transfer and the day thereof shall be entered in the register referred to in article 109.
6.The transfer of shares listed on a stock exchange may also be effected in accordance with the system commonly applied by such exchange.
Article 111
1.The transferability of registered shares may be restricted or excluded in the articles of incorporation. The same shall apply for the possibility of assigning registered shares from a community of property.
2.A transfer or assignment approved by all shareholders shall be valid.
3.In the event of an attachment under a warrant of execution, bankruptcy, the granting of a specific legacy or an assignment from a community of property, the judge may declare the stipulations as referred to in the first paragraph to be inapplicable, be this in whole or in part. A request to the effect may be made by the execution creditor, the trustee in bankruptcy or a party interested at the granting of the specific legacy or the assignment, as the case may be. The judge shall grant the request only if the interests of the applicant specifically require this. The judge may direct that the company grant the execution creditor or the trustee in bankruptcy leave to inspect the register referred to in article 109.
Article 112
1.The right to establish a usufruct on shares may not be restricted or excluded under the articles of incorporation.
2.Unless otherwise provided when establishing the usufruct, the voting right and other controlling rights shall belong to the shareholder. The articles of incorporation may restrict or exclude the rights belonging to the usufructuary.
Article 113
1.The right to create a pledge on shares may be restricted or excluded under the articles of incorporation. Insofar as the contrary shall not result from a provision as referred to in the second paragraph, the rights attaching to the share shall belong to the shareholder.
2.Unless otherwise provided in the articles, it may be stipulated at the creation of the pledge or in a supplementary deed between the shareholder and the pledgee that the rights attaching to the shares shall belong to the pledgee, whether or not conditionally and whether in whole or in part.
3.If a pledge is created with application of the second paragraph of article 236 of Book 3 and subsequently a provision as referred to in the second paragraph of this article is made in a supplementary deed, then the validity of such deed shall require that article 110 second paragraph shall have applied analogously. Also article 110, third, fourth and fifth paragraphs shall apply analogously.
4.In deviation from the second paragraph of article 236 of Book 3, a pledge on registered shares may also be created without serving or acknowledgement as referred to in article 110. Article 239 of Book 3 shall apply analogously.
Division 3 The capital and the annual accounts
Article 114
1.The company may not take shares in its own capital.
2.Without prejudice to the provisions of title 7, the articles of incorporation may exclude, restrict or subject to conditions the acquisition by the company of shares in its own capital from third parties. So long as the company holds shares in its own capital, be this directly or indirectly, the rights attaching to such shares shall not be capable of being exercised. Article 118, fifth and sixth and seventh paragraphs, shall apply analogously in respect of the acquisition by the company of shares in its own capital.
3.The company, by means of a resolution to that effect of the general meeting or another body designated by the articles, may cancel the shares held by the company in its own capital.
Article 115
1.The articles may provide that a body may resolve per class of shares as to full or partial repayment or exemption from any duty to pay additional calls on shares as referred to in article 107 fourth paragraph, provided that at the time of the repayment or exemption the ompany’s equity capital shall be at least nil and shall not become negative as a result of the repayment or exemption. A resolution not meeting this condition shall have no legal effect whatsoever.
2.If the company has a nominal capital, then the amount thereof shall be taken into account as bottom limit when applying the first paragraph.
Article 116
1.Each year, within eight months from the end of the financial year, subject to the general meeting possibly extending this period by up to six months on the grounds of special circumstances, the management shall draw up the annual accounts, to consist of at least a balance sheet, a profit and loss account and an explanatory memorandum to these documents.
2.The annual accounts as drawn up shall be signed by all the managing directors. Such documents shall also be signed by the supervisory directors in office. Should a signature be lacking, the reason for this shall be stated.
3.The annual accounts as drawn up shall be presented to the general meeting for approval. The articles of incorporation may stipulate that the general meeting shall have the authority to modify all or certain items or to instruct the management to modify the annual accounts according to indications to be given by the general meeting or a committee from that meeting.
4.The annual accounts, according to generally accepted standards shall provide such insight as shall make it possible for a sound opinion to be formed as regards the company’s capital and the results and also, insofar as the nature of annual accounts shall so permit, as regards the company’s solvency and liquid assets.
5.Article 15 third paragraph shall apply analogously in respect of the annual accounts drawn up and approved, and the documents pertaining thereto.
6.Each shareholder and each holder of bearer debt instruments shall be entitled to inspect the documents, kept in accordance with the fifth paragraph, during two years from the time the annual accounts were drawn up or, as the case may be, approved.
Article 117
1.The general meeting or another body thereto designated in the articles of incorporation shall be competent to appoint an external expert for the purpose of supervising the bookkeeping on a regular basis, as also reporting to the general meeting on the annual accounts drawn up by the management.
2.The expert shall be entitled to inspect all the books, records and other data carriers of the company, the examination of which shall be necessary for the correct performance of his duty. Other than as required pursuant to the instructions given him, he shall not be permitted to disclose any information respecting the company’s business as appearing or as communicated to him.
3.The expert shall also make his report known to the management, the supervisory board and the body that appointed him.
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Article 118
1.Directly connected with the approval of the annual accounts, the general meeting or any other body designated in the articles of incorporation shall resolve as to the distribution or reservation of the profit according to such annual accounts and as to the paying of any other distributions to the charge of the equity capital as appearing from such annual accounts.
2.The general meeting or any other body designated in the articles may resolve to pay interim distributions to the charge of a current financial year or to the charge of a closed financial year for which the annual accounts have not yet been approved.
3.Insofar as the articles of incorporation do not provide otherwise, each share shall entitle the holder thereof to receive an equal amount at each distribution whereas each sub-share shall entitle the holder thereof to receive the corresponding fraction of such amount. The articles may provide that the shares held by the company itself shall be reckoned with when determining the payment of distributions. The articles may leave the paying of distributions, be this in whole or in part, to a body thereto designated.
4.The right to a distribution shall cease through the lapse of three years from the end of the day on which either this was adequately announced or the party entitled to the distribution took cognizance hereof or was notified accordingly. The articles may provide that the right to a distribution shall not cease or may stipulate a longer period of time.
5.Distributions to shareholders and other parties entitled to distributions may not be made if the company’s equity capital is negative or would become negative due to the said distribution. A resolution to make any such distribution shall have no legal effect whatsoever. Article 22, second paragraph shall not apply, unless the distribution has been paid to the successive holder in due course of a bearer certificate, or of a share or right connected therewith, that is traded on a stock exchange.
6.A distribution as referred to in this article shall be presumed to have been paid in contravention of the first sentence of the fifth paragraph if the annual accounts of the financial year, to the charge of which the distribution is paid, with due observance of such distribution shows an equity capital that is negative. In the case of a distribution as referred to in the first paragraph, the presumption shall be irrefutable.
7.If the company has a nominal capital, then the amount thereof shall be taken into account as bottom limit when applying the fifth paragraph.
Division 4 The annual accounts with the large company
Article 119
1.For a company that complies with each of the criteria described in the second paragraph, articles 120 up to and including 126 shall apply in lieu of articles 116 and 117.
2.The criteria referred to in the first paragraph are:
a.at the company shall be employed in the Netherlands Antilles at any time in the period between one month before and one month after the date of the balance sheet, at least twenty employees, collectively working at least twenty man-days, engaged pursuant to an employment contract with the company, a group company of the company, a temporary employment agency or a similar institution;
b.the value of the assets, according to a balance sheet drawn up with due observance of the third paragraph of article 120, shall amount to over NAF 5 million or the equivalent thereof in foreign currency;
c.the net turnover during the financial year, calculated with due observance of the annual accounts drawn up in accordance with the third paragraph of article 120,shall amount to over NAF 10 million or the equivalent thereof in foreign currency.
3.A company that fails to comply with each of the criteria described in the second paragraph may declare articles 120 up to and including 122 applicable in its articles of incorporation, whether or not together with articles 123 and 124. In such a case also articles 125 and 126 shall apply, whereas articles 116 and 117 shall not apply.
4.The amounts stated in the second paragraph may be adjusted by National Decree whenever price developments should give rise to this.
Article 120
1.Each year, within six months from the end of the financial year, subject to any extension of this period by the general meeting by up to six months on the grounds of special circumstances, the management shall draw up the annual accounts and an annual report and shall deposit such documents at the company’s office for inspection by all the shareholders. The documents shall be drawn up in the language of the articles of incorporation, unless otherwise resolved beforehand by the general meeting.
2.The management shall add to the annual accounts: the last annual accounts available with the statement of experts pertaining thereto, if any, and the annual report of the subsidiaries insofar as these are not consolidated unless, as appearing from the explanatory memorandum to the annual accounts, statement of these data shall be negligible for the insight to be provided by the company, as referred to in the third paragraph.
3.The annual accounts shall be drawn up in accordance with the standards laid down by the International Accounting Standards Board (IASB) and shall provide such insight as shall make it possible for a sound opinion to be formed concerning the capital and the results, as also, insofar as the nature of annual accounts shall so permit, concerning the company’s solvency and liquid assets. The company may draw up the annual accounts in accordance with other internationally accepted standards, provided the explanatory memorandum state the wellfounded reasons that gave cause for this, and the standards according to which the annual accounts have been drawn up.
4.The annual accounts as drawn up shall be signed by all the managing directors. Such documents shall also be signed by the supervisory directors in office. Should a signature be lacking, the reason for this shall be stated.
5.The annual report shall faithfully reflect the situation on the date of the balance sheet and the course of affairs during the financial year of the company and of the subsidiaries, the financial data of which have been included in its annual accounts. The annual report shall also contain information on events of special import that occurred after the end of the financial year, and furthermore shall inform of anticipated developments. The annual report may not conflict with the annual accounts.
6.The annual report shall be submitted to the general meeting without delay following the end of the period of time referred to in the first paragraph. At the same time, the annual accounts as drawn up shall be submitted to the general meeting for approval. The articles of incorporation may stipulate that the general meeting shall have the authority to modify all or certain items or to instruct the management to modify the annual accounts according to indications to be given by the general meeting or a committee from such meeting.
7.Article 15 third paragraph shall apply analogously in respect of the annual report, the annual accounts drawn up and approved, and the documents pertaining thereto.
Article 121
1.The company shall instruct an external expert, qualified to render the report referred to in the fifth paragraph of this article, to examine the annual accounts. The instructions may be given to an organization in which experts who may be designated, work together.
2.The general meeting shall be competent to give the instructions. Should this body fail thus to proceed, then the supervisory board, or if the said board is absent or defaults, the management shall be competent.
3.The expert shall examine the annual accounts to determine whether the same meet the requirements as laid down in article 120, third paragraph. Furthermore he shall verify whether, to the extent that he can assess this, the annual report has been drawn up in conformity with the provisions laid down in article 120 fifth paragraph and whether it is consistent with the annual accounts.
4.The expert shall be entitled to inspect all the books, records and other data carriers of the company, the examination of which shall be necessary for the correct performance of his duty. Other than as required pursuant to the instructions given him, he shall not be permitted to disclose any information respecting the company’s business as appearing or as communicated to him.
5.The expert shall report his findings to the body that appointed him, the management and, if in office, the supervisory board. He shall record the results of his examination in a written statement, in which he shall give his opinion as regards the faithfulness of the annual accounts and any shortcomings as became manifest.
6.A chartered accountant in terms of Netherlands regulations, an accountant administration consultant as referred to in article 2:393, first paragraph, Netherlands Civil Code, a certified public accountant in terms of regulations in the United States, as also a person admitted by the Minister in charge of Economic Affairs by revocable license as expert on the strength of a certificate showing that the person concerned meets the qualification requirements, shall be competent to render the report referred to in the fifth paragraph. Such qualification requirements shall be on a level equivalent to those of chartered accountant, accountant- administrationconsultant as stated, or certified public accountant as stated. The Minister may attach conditions to the license.
7.The annual accounts may be approved by the general meeting only after the said body shall have been able to take cognizance of the expert’s statement, which shall be attached to the annual accounts.
Article 122
1.The company shall be obliged within eight days from the approval of the annual accounts and during two years thereafter to submit a full copy of the annual accounts, stating the day of approval, to the company’s office for inspection by interested parties.
2.If the annual accounts have not been approved within two months from the end of the term prescribed in article 120 first paragraph for drawing up such documents, the annual accounts as drawn up shall be deposited at the company’s office without delay for inspection by interested parties.
3.Notice concerning the making available for inspection as referred to in the first and second paragraphs shall be given to the office of the trade register without delay, in the case of the second paragraph with the annotation that non-approved annual accounts are involved.
4.The articles of incorporation may provide that an interested party wishing to inspect the documents shall be obliged to cause himself to be represented by a person as referred to in article 121, sixth paragraph. If this is the case, such provision shall be stated in the notice to the office of the trade register as referred to in the third paragraph.
5.At his request, the interested party entitled to inspect the documents or his representative shall be furnished, at cost, with a copy of the documents so deposited for inspection.
6.The first up to and including the fifth paragraphs of this article shall not apply in respect of the company that, with due observance of the terms and attendant requirements as referred to in the first up to and including the third paragraphs, deposits its annual accounts approved or drawn up, as the case may be, at the office of the trade register for inspection by everyone.
Article 123
The obligations resting on a company, as stated in article 122, shall not apply if:
a.the financial data of the company for the financial year concerned have been consolidated by another legal entity or a contractual company into annual accounts meeting the standards as laid down in article 120 third paragraph; and
b.the other legal entity or contractual company referred to under a. has declared in writing that it assumes liability in several in respect of the company’s debts issuing from legal acts, which debts result or shall result within two years from the end of the financial year referred to under a., with statement of the date of the end of such financial year; and
c.the declaration referred to under b. has been deposited at the office of the trade register where the company is entered, within six months from the end of the financial year referred under a.; and
d.within six months from the balance sheet date of the consolidated annual accounts referred to under a., or at a later time as allowed pursuant to article 122, such consolidated annual accounts shall be deposited at the company’s office or the trade register referred to under c., all this with analogous application of article 122.
Article 124
1.The obligations resting on a company, as stated in article 121, shall not apply if the conditions of article 123 shall have been met, and moreover all the shareholders shall have declared in writing during the financial year or within six months from the close thereof, that they agree to this.
2.In the case referred to in the first paragraph, no annual report need be drawn up either; for the rest, article 120 third paragraph need not be applied either, provided the annual accounts shall consist of at least a balance sheet, a profit and loss account and an explanatory memorandum to these documents and the same shall provide such an insight as shall make it possible for a sound opinion to be formed as regards the company’s capital and results, as also, insofar as the nature of annual accounts shall so permit, as regards the company’s solvency and liquid assets.
Article 125
1.If through annual accounts or through interim figures, made public by the company in accordance with article 122 or otherwise, misleading impression is given of the company’s situation, the managing directors and supervisory directors shall be liable in several as against third parties for the damage suffered by such parties as a result. The managing director or supervisory director who proves that this is not due to any failing on his part, shall not be liable.
2.The first paragraph shall apply analogously if damage has been suffered due to the annual accounts not having been drawn up or made public in time.
3.For the purposes of this article, the person who has determined, or has contributed to the determination of, the contents of the annual accounts, be this in whole or in part, as if he were a managing director, shall be put on a par with a managing director.
Article 126
1.Any interested party may institute an action at law against the company for it to comply with the obligations described in article 120, first, second and sixth paragraphs, article 121 first paragraph, and article 122.
2.An interested party holding the view that the annual accounts do not, or the annual report does not, conform to the stipulations laid down in article 120 third or fifth paragraph or article 124 second paragraph, may institute an action at law against the company for it to arrange or supplement these documents in accordance with the directions to be given by order of the court. Such action may also relate to annual accounts not yet approved. It may also be instituted by the public prosecutor in the public interest.
3.The action referred to in the second paragraph shall be instituted within six months from the obligation to publish having been fulfilled. It may also be instituted prior to the publication. The petition shall state in what respect the annual accounts or the annual report shall require revision. The judge shall decide only after having given the expert who was in charge of the examination of the annual accounts, the opportunity to be heard as regards the subjects of the claim.
4.Insofar as the judge shall allow the claim, he shall give the company an order as regards the manner in which the company shall arrange the annual accounts or the annual report; the order shall contain accurate directives in connection therewith.
5.The judge may rule, also in virtue of his office, that the order shall concern also or exclusively one or more future annual accounts or annual reports. At the company’s request, the judge may cancel or modify this order on account of altered circumstances. In this regard the judge shall decide only after having given the party, on whose demand the order has been given, the opportunity to be heard.
6.If the order concerns approved annual accounts, the order shall cancel such approval. The judge may limit the consequences of the cancellation.
Division 5 The general meeting of shareholders
Article 127
1.Insofar as the articles of incorporation do not provide otherwise, the general meeting of shareholders, within the bounds laid down by law and the articles, shall have all such powers as not granted to the management or to others.
2.The shareholders may lay down further rules in a shareholders’ agreement as regards their relations with one another and their relation to the company, including the manner in which they shall exercise their powers as shareholders. The shareholders’ agreement shall not be inconsistent with the law or the articles.
Article 128
1.Each year at least one general meeting shall be held.
2.Insofar as the articles do not provide otherwise, any managing director and any supervisory director shall be competent to convene a general meeting. The management and the supervisory board shall always have the authority to convene the general meeting.
Article 129
1.Shareholders who singly or together with other shareholders can cast at least ten percent of the votes in respect of a specific subject, may request the management or the supervisory board in writing for a general meeting to be convened in order to deliberate and resolve on such subject, provided they have a reasonable interest in this.
2.If the management or the supervisory board should fail to act upon any such request within fourteen days from the day on which the request shall have reached the company or the body concerned, the applicants themselves may proceed to convocation.With a view hereto, the management shall allow the applicants to inspect the register referred to in article 109.
3.At the summoning by the shareholders, subjects other than those as initially indicated shall not be listed for discussion.
4.The summons and the documents pertaining thereto shall also be sent to each managing director and each supervisory director.
5.For the purposes of article 130 fifth paragraph the requirements laid down in the first up to and including the fourth paragraphs shall also be reckoned with.
Article 130
1.The summoning shall be effected in writing, with notice sent to the address of the party concerned insofar as such address shall be known to the company. If there are bearer shares outstanding, or if one or more addresses of holders of registered shares are unknown, the summoning shall also take place by means of an announcement in the gazette in which official notices are inserted by the Government.
2.The term of notice shall be at least twelve days, not counting the day of the summoning nor that of the meeting. The day of the summoning shall be the day on which the notice is sent or, if this is later, the day on which the summoning notice is inserted in the gazette referred to in the first paragraph.
3.The summoning notice shall state the place of the meeting and the subjects to be dealt with. If a proposal is made to amend the articles, the literal text of the proposal shall accompany the notice or shall be deposited at the company’s office for inspection by the shareholders. The submission for inspection shall be stated in the announcement referred to in the first paragraph, if any such announcement shall be made.
4.Unless otherwise provided by the articles, a meeting shall be held in the Netherlands Antilles on the island where the company’s registered office is established. For a company as referred to in article 119, the meeting shallbe held in the Netherlands Antilles.
5.If the regulations referred to in paragraphs one up to and including four have not been observed, valid resolutions may be adopted only in a meeting at which all the shareholders entitled to vote with respect to such subject, shall be present or represented. Also then, a subject, the dealing with which has not been announced with due observance of the term of notice prescribed by the articles, may be validly resolved upon only by unanimous vote.
Article 131
1.Every shareholder and every person entitled to vote shall be competent, personally or by proxy authorized in writing, to attend the general meeting, to address the same and, insofar as he is entitled to this, to exercise the vote.
2.The articles may provide that the right to attend the general meeting and to address the same shall belong only to the shareholder or person entitled to vote who shall have communicated his intention to do so to the company’s management at the most on the third day prior to that of the meeting. If bearer certificates have been issued, the requirement may be made that these documents be lodged with the company or a designated third party at the latest on the day of the notification. The articles may grant the rights referred to in the first sentence to other persons as well.
Article 132
1.Insofar as not otherwise provided in the articles of incorporation, each share shall entitle the holder thereof to cast one vote in respect of all subjects. As for holders of bearer shares, only those voting restrictions that are explicitly stated on the bearer certificate shall apply. The right to vote cannot exist independently of a more comprehensive right of share.
2.No vote may be cast on a share owned by the company itself. Unless otherwise provided by the articles, no vote may be cast either on a share owned by a legal entity in which the company, pursuant to the right to vote, is capable of exercising decisive control, be this directly or indirectly, also if all those entitled to vote should vote.
3.The articles may provide that the vote may be exercised exclusively by the persons who, on the day thereby indicated and falling not more than ten days prior to the meeting, were entitled to vote and as such were known to the company.
4.Unless otherwise provided by the articles, the managing directors and supervisory directors as such shall have an advisory opinion in the general meeting and when adopting resolutions of the general meeting.
Article 133
1.Insofar as not otherwise provided by the articles, all resolutions shall be adopted by absolute majority of the votes cast.
2.The articles may provide that, in case of a tie, the matter shall be referred to a third party.
3.A person designated by the meeting shall keep minutes of the deliberations and the resolutions adopted. The minutes shall be signed by the chairman of the meeting.
4.The signed minutes shall be kept by the management for ten years.
5.Each shareholder shall be entitled to receive a copy of the minutes.
6.Paragraphs one up to four of this article shall apply analogously in respect of resolutions of other bodies. The fifth paragraph shall apply analogously when a body other than the general meeting adopts a resolution as referred to in articles 104 first paragraph, 106 first paragraph, 107 second paragraph, 114 third paragraph, 115 first paragraph, 117 first paragraph, 118 second paragraph, or 121 first paragraph.
Article 134
1.Subject to restrictions pursuant to the articles of incorporation and without prejudice to the provisions of article 5, the general meeting shall be competent to amend the articles. A resolution adopted by unanimous vote to amend the articles, towards which resolution all persons entitled to vote have cooperated, shall be valid regardless of the provisions laid down on this in the articles.
2.A provision of the articles of incorporation that in the given situation would result in there being no persons entitled to vote as referred to in the first paragraph, shall be regarded as not written for so long as such situation shall last.
3.During the company’s bankruptcy the articles may be amended only with the consent of the trustee in bankruptcy.
4.A resolution to amend the articles of incorporation as a result whereof the legal position of a person, involved by law or pursuant to the articles in the organization of the company, shall be affected, shall be nullified at the request of the person involved, provided such person shall have a substantial interest in maintaining such legal position. Article 21 fourth paragraph shall apply analogously.
Article 135
1.A resolution of the general meeting can also be adopted by votes cast by ballot without a meeting being held, provided all persons entitled to vote on such subject shall have cast a vote. All registered shareholders, managing directors and supervisory directors shall receive in time a notice of the intention to adopt a resolution without a meeting being held.
2.The third up to and including the fifth paragraphs of article 133 shall apply analogously.
Division 6 The management
Article 136
1.The appointment of managing directors not designated in the deed of incorporation shall be effected by the general meeting, insofar as the articles of incorporation do not provide otherwise.
2.Unless otherwise provided in the articles, the body or the person having appointed the managing director shall be competent at all times to suspend or dismiss such managing director. As for managing directors designated in the deed of incorporation, the powers described in the first sentence shall belong to the general meeting, unless otherwise resulting from the articles.
3.Unless otherwise provided by the articles, the authority to determine the remuneration of a managing director shall belong to the general meeting.
4.A suspension in terms of this article shall cease if the person concerned has not been dismissed within two months from the day of the suspension.
Article 137
Article 136 shall not apply in respect of the executive managing directors as such if article 18 has been made applicable in the articles of incorporation.
Article 138
The person who, without forming part of the management, for a certain period of time or under certain circumstances, whether or not pursuant to a provision of the articles or of this book, determines or contributes to the determination of the company’s policy as if he were a managing director, shall be deemed a managing director in respect of such acting as far as his obligations in respect of the company and of third parties are concerned, as also for the purposes of article 9.
Division 7 The independent supervisory board
Article 139
If the articles of incorporation provide for a supervisory board, the articles may also stipulate that the said board shall be independent within the meaning of this article. In such a case, articles 140 up to and including 143 shall apply, in deviation from article 19.
Article 140
1.The supervisory board shall consist of at least three natural persons. If the number of supervisory directors should be fewer than three, the management or, if the management should fail to do so, the supervisory board shall take measures without delay to supplement the number of its members by appointment in accordance with article 141. The supervisory directors may not hold, be this directly or indirectly, any shares in the company or a group company or any rights derived therefrom.
2.The tasks of the supervisory board shall include at any rate the supervision of the management. On performing its duties the supervisory board shall be guided by the interests of the company and the enterprise connected with it. The board shall see to it that the interests of minority shareholders and employees shall not be injured unnecessarily or disproportionately.
3.The supervisory board shall be competent without limitation to suspend a managing director. The suspension shall cease if the person involved has not been dismissed within two months from the day of the suspension.
4.Upon consultation with the management, the supervisory board shall lay down by- laws to further regulate the performance of duties and the adoption of resolutions of the management. Certain categories of acts or resolutions of the management may be subjected to the approval of the supervisory board pursuant to these by-laws.
5.The articles may contain supplementary stipulations as regards the task and powers of the board and of its members.
6.The management shall furnish the supervisory board and the individual supervisory directors in time with the data required by the party concerned for the performance of his duties or with a view thereto.
7.The provisions of articles 9, 14 and 16 shall apply analogously in respect of the supervisory directors.
Article 141
1.A supervisory director shall be designated in the deed of incorporation or shall be appointed by the general meeting for a period of time to terminate at the ending of the first general meeting held after at least three and at most six years shall have elapsed since his designation or appointment.
2.The authority to appoint a supervisory director may not be limited otherwise than through the requirements of a quorum, a strengthened majority of up to two thirds of the votes cast, or a binding nomination to be drawn up by the supervisory board itself. A binding nomination may be set aside at any time by a majority of two thirds of the votes cast. A quorum requirement shall not apply in a meeting held within three weeks from the adoption of the resolution to appoint having failed due to such quorum requirement.
3.Unless otherwise provided in the articles, the authority to determine the remuneration of a supervisory director shall belong to the general meeting. The remuneration may not depend on the financial results of the company. It may not consist or also consist of shares in the company or a group company or of any rights derived therefrom.
Article 142
1.A supervisory director may be suspended or dismissed by the supervisory board at any time on a motion, not susceptible of restriction, of the general meeting or the management or another body designated in the articles of incorporation.
2.At the request of the general meeting, the management, the supervisory board or other body designated in the articles, the judge may suspend or dismiss a supervisory director if he manifestly performs his duties improperly, or on account of other weighty reasons. Pending the investigation, the judge may make provisions as referred to in the third paragraph of article 255. The other provisions of article 255 shall apply analogously.
3.A suspension shall cease if the party involved has not been dismissed within two months from the suspension.
Article 143
1.Legal acts of the company with a managing director, supervisory director or shareholder, this to include the giving up of a right, may not be performed without the prior approval of the supervisory board.
2.The first paragraph shall apply analogously in respect of the institution of legal action against a managing director, supervisory director or shareholder, unless this should concern legal action as referred to in article 142, second paragraph.
Article 144
1. In lieu of articles 116 and 117, articles 120 up to and including 126 shall apply in respect of the company, regardless of whether it shall meet the criteria of article 119, second paragraph.
2. The annual accounts drawn up as referred to in article 120 fourth paragraph shall require the consent of the supervisory board. The supervisory board shall be competent to introduce amendments to the annual accounts as drawn up, before the same shall be submitted to the general meeting for adoption. A written explanation of the amendments shall be furnished.
Article 145-199
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Title 6 The Private Limited Company
Division 1 General provisions
Article 200
1.The private limited company is a legal entity with one or more shares issued in registered form. The company does not recognize bearer shares.
2.The company shall be incorporated by one or more persons, by notarial deed. At incorporation at least one share with full voting power that participates in the profit, or else one share with full voting power and one participating share, shall be placed with a founder or a third party.
3.Rights that include neither voting rights nor any claim to profit distribution shall not be regarded as shares.
Article 201
1.Without prejudice to the provision of article 4 second paragraph, the deed of incorporation at any rate shall contain:
a.the numbers and classes of the shares issued and outstanding at incorporation, as also the names and places of residence of the persons who have taken these shares;
b.if calls on shares are paid exclusively in money, a declaration of all the founders that the company’s equity capital at incorporation is not negative.
2.If calls on shares are paid in kind, a balance sheet on formation, signed by all the founders and showing an equity capital that is not negative, shall be attached to the deed.
3.If the company has a nominal capital at incorporation, then, on applying the first paragraph under b. and the second paragraph, the amount thereof shall be taken into account.
4.The deed shall be signed, in person or by written proxy, by each founder and by very person taking one or more shares as evidenced by the deed.
Article 202
1.The articles of incorporation shall state the name, the island territory where the company has its registered office and the object of the company. The name shall commence or end with the words “besloten vennootschap” [private limited company], written either in full or abbreviated to “B.V.”. The name may not be stated otherwise than in Latin letters.
2.The articles may provide for different classes of shares. They may allot a nominal value to one or more classes. The nominal value may be stated in one or more foreign currencies.
3.Through an amendment to the articles of incorporation the nominal value may be cancelled or modified. An increase of the nominal value may not lead to the nominal capital exceeding the company’s equity capital. The nominal capital shall be the sum of the nominal values of the issued shares.
4.If according to the articles there are shares with a nominal value, the articles shall contain stipulations with respect to the voting, profit and liquidation rights attaching to those and other shares.
5.In deviation from article 3, second paragraph, the articles may provide that holders of shares or of a specific class of shares shall be personally liable, whether in several or not, in respect of certain or all debts of the company. In such case the right of inspection referred to in article 209, second paragraph, shall belong to every interested party. An interested party furthermore may require that he be furnished with an extract from the register, certified by the management, stating the data relevant to him. A resolution to amend the articles, as a result whereof any such personal liability shall be introduced, modified or abolished, may be adopted only with the express consent of all the shareholders.
6.If due to an amendment to the articles a liability regulation as referred to in the fifth paragraph is abolished or modified, so that the liability of one or more shareholders terminates or is reduced, then such abolishment or modification shall be effective also for existing debts, but this only on the understanding that in respect of such debts the termination or reduction of the liability shall not take effect until six months from the time when, upon the amendment to the articles having been introduced, in respect of the shareholder concerned an annotation in connection therewith was made in the register as referred to in article 209, all this without prejudice to the provisions of the Trade Register Ordinance. The articles may extend this term.
7.If a shareholder, on whom a liability rests by reason of a provision of the articles of incorporation as referred to in the fifth paragraph, should cease to be a shareholder, then also the liability in respect of existing debts shall cease, this provided, however, that in respect of such debts the termination of the liability shall not take effect until six months from the time when, upon his shareholdership having terminated, an annotation to that effect was made in the register as referred to in article 209. The articles may extend this term.
8.In addition to the provisions of article 27, the articles of incorporation may stipulate other methods of dissolution. Dissolution pursuant to a provision of the articles shall take effect only after the liquidators shall have given publicity thereto in accordance with article 27 second [: third] paragraph. The provisions of the articles shall become invalid if publication did not take place within six months from the time when this was first possible.
Division 2 The shares
Article 203
1.Insofar as the law or the articles of incorporation do not provide otherwise, equal rights and obligations shall attach to all the shares.
2.The articles may provide that in respect of shares of one or more classes, sub-shares may be issued and these shall represent the fraction of a share as stated at the time of issue.
3.The provisions of this book as regards shares and shareholders shall apply analogously in respect of sub-shares and the holders thereof unless otherwise appearing from such provisions.
4.Unless otherwise provided by the articles, for the purposes of article 229 first paragraph and article 232 first paragraph, sub-shares in the aggregate representing at least one or more shares shall constitute so many shares, irrespective of the entitlement to the sub-shares.
Article 204
The general meeting of shareholders or another body thereto designated in or pursuant to the articles shall be competent, following incorporation, to resolve on the issue of new shares. The subsequent issue shall be effected by means of a deed signed by the company and the acquirer. Article 15 third paragraph shall apply analogously in respect of the deed.
Article 205
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Article 206
The articles may provide that, whether or not pursuant to a resolution of a body thereto designated, certain or all shareholders at the issue of certain or all shares shall have a preferential right in the proportion thereby to be stipulated.
Article 207
1.The acquirer of a share shall be obliged to pay the consideration as determined in the deed of incorporation or the resolution to issue. If calls on shares are paid otherwise than in money, the deed of incorporation or the deed of issue shall reflect the value of the call in an amount. If shares with a nominal value are acquired, the value of the consideration shall be at least the nominal amount of the share.
2.The deed of incorporation or the resolution to issue may stipulate that the consideration, or any part thereof, shall not become due and payable until after the lapse of a certain period of time or shall be due and payable only upon a resolution to the effect of a body specified in such deed or such resolution. In the event of the company’s bankruptcy, the authority to adopt this resolution shall pass to the trustee in bankruptcy.
3.Insofar as the company’s demand for payment of the consideration is not unconditionally due before one year from the issue of the share having elapsed, such demand shall be left aside when calculating the company’s equity capital as referred to in this book, and when determining the value referred to in the first paragraph.
4.A duty to pay additional calls by law shall mean any obligation to pay a call on an issued share, that is not immediately and unconditionally due and payable.
5.Save for an exemption from the duty to pay additional calls on shares in accordance with article 215, the holder of a share cannot be exempted from his obligations under this article. In the event of alienation of a share, the alienator shall remain liable in several, next to the acquirer, for another year as regards the obligations under this article.
6.In respect of an obligation to pay calls or additional calls on a share, the company’s opposite party may never claim a set-off.
Article 208
1.A registered share certificate shall be issued to the acquirer or holder of a share, at his request. The value of the call paid and any obligation to pay additional calls on the share shall be stated on such certificate.
2.The subsequent bona fide acquirer cannot be met with the objection that the statement thus made by the company concerning the payment of a call or the obligation to pay additional calls is incorrect or incomplete.
Article 209
1.The management shall keep a register in which the names and addresses of all the holders of shares shall be entered, with statement of the class of share, the voting right attaching thereto, and the amount paid up or stated as call paid thereon, the obligation, if any, to pay additional calls, the day of acquisition, the liability, if any, by reason of article 205 [: 207], fifth paragraph, and whether or not a share certificate has been issued. A note shall also be made of the establishment or assignment of a usufruct on the shares and the creation of a pledge on the shares, as also any transfer of the right to vote connected therewith. The register shall be kept up to date on a regular basis. In case of any change, the day on which same takes place shall be stated.
2.Each shareholder shall be entitled to inspect the register. The articles of incorporation may grant the right of inspection to others.
Article 210
1.Subject to the provisions of article 211 and as laid down elsewhere by law, shares may be transferred.
2.The transfer of shares shall be effected by a deed of transfer signed by the parties, and either the serving of such deed on the company or the acknowledgement of the transfer by the company. Acknowledgement shall take place by means of a signed annotation on the deed of transfer or a written declaration of the company, addressed to the acquirer. If shares are involved on which there is a duty to pay additional calls, the acknowledgement can take place only if the deed of transfer bears a fixed date.
3.If a share certificate has been issued by the company, such document, provided with an endorsement for transfer signed by the parties, may constitute the deed of transfer.
4.The articles may provide that, if a share certificate has been issued by the company, only a document as referred to in the third paragraph may constitute a deed of transfer. The articles may also provide that acknowledgement or serving can take place only following the surrender of the share certificate issued, and this without prejudice to the right of the successive shareholder to receive a share certificate issued to his name in accordance with article 208, first paragraph. In both these cases there shall be an exception to the rule, if the alienator proves to the company’s satisfaction that his share certificate has been lost. The alienator invoking this provision shall be liable as against the company and third parties for any damage to be suffered in consequence hereof.
5.The transfer and the day thereof shall be entered in the register referred to in article 209.
Article 211
1.The transferability of shares may be restricted or excluded in the articles of incorporation. The same shall apply for the possibility of assigning shares from a community of property.
2.A transfer or assignment approved by all shareholders shall be valid.
3.In the event of an attachment under a warrant of execution, bankruptcy, the granting of a specific legacy or an assignment from a community of property, the judge may declare the stipulations as referred to in the first paragraph to be inapplicable, be this in whole or in part. Any request to the effect may be made by the execution creditor, the trustee in bankruptcy or a party interested at the granting of the specific legacy or the assignment, as the case may be. The judge shall grant the request only if the interests of the applicant specifically require this. The judge may direct that the company shall grant the execution creditor or the trustee in bankruptcy leave to inspect the register referred to in article 209.
Article 212
1.The right to establish a usufruct on shares may not be restricted or excluded under the articles of incorporation.
2.Unless otherwise provided when establishing the usufruct, the voting right and other controlling rights shall belong to the shareholder. The articles of incorporation may restrict or exclude the rights belonging to the usufructuary.
Article 213
1.The right to create a pledge on shares may be restricted or excluded under the articles of incorporation. Insofar as the contrary shall not result from a provision as referred to in the second paragraph, the rights attaching to the share shall belong to the shareholder.
2.Unless otherwise provided in the articles, it may be stipulated at the creation of the pledge or in a supplementary deed between the shareholder and the pledgee, that the rights attaching to the shares shall belong to the pledgee, whether or not conditionally and whether in whole or in part.
3.If a pledge is created with application of the second paragraph of article 236 of Book 3 and subsequently a provision as referred to in the second paragraph of this article is made in a supplementary deed, then the validity of such deed shall require that article 210 second paragraph shall have applied analogously. Also article 210, third, fourth and fifth paragraphs, shall apply analogously.
4.In deviation from the second paragraph of article 236 of Book 3, a pledge on registered shares may also be created without serving or acknowledgement as referred to in article 210. Article 239 of Book 3 shall apply analogously.
Division 3 The capital and the annual accounts
Article 214
1.The company may not take shares in its own capital.
2.Without prejudice to the provisions of title 7, the articles of incorporation may exclude, restrict or subject to conditions the acquisition by the company of shares in its own capital from third parties. So long as the company holds shares in its own capital, be this directly or indirectly, the rights attaching to such shares shall not be capable of being exercised. Article 218, fifth, sixth and seventh paragraphs shall apply analogously in respect of the acquisition by the company of shares in its own capital.
3.The company by means of a resolution to the effect of the general meeting or another body designated by the articles, may cancel shares held by the company in its own capital.
Article 215
1.The articles may provide that a body may resolve per class of shares as to full or partial repayment or exemption from any duty to pay additional calls on shares as referred to in article 207 fourth paragraph, provided that at the time of the repayment or exemption the company’s equity capital shall be at least nil and shall not become negative as a result of the repayment or exemption. A resolution not meeting this condition shall have no legal effect whatsoever.
2.If the company has a nominal capital, then the amount thereof shall be taken into account as bottom limit when applying the first paragraph.
Article 216
1.Each year, within eight months from the end of the financial year, subject to any extension of this period by the general meeting by up to six months on the grounds of special circumstances, the management shall draw up the annual accounts, consisting at least of a balance sheet, a profit and loss account and an explanatory memorandum to these documents.
2.The annual accounts as drawn up shall be signed by all the managing directors. Such documents shall also be signed by the supervisory directors in office. Should a signature be lacking, the reason for this shall be stated.
3.The annual accounts as drawn up shall be submitted to the general meeting for approval. The articles of incorporation may stipulate that the general meeting shall have the authority to modify all or certain items or to instruct the management to modify the annual accounts according to indications to be given by the general meeting or a committee from that meeting.
4.The annual accounts, according to generally acceptable standards shall provide such insight as shall make it possible for a sound opinion to be formed as regards the capital and the results and also, insofar as the nature of annual accounts shall so permit, as regards the company’s solvency and liquid assets.
5.Article 15 third paragraph shall apply analogously in respect of the annual accounts drawn up and approved, and the documents pertaining thereto.
6.Each shareholder and each holder of bearer debt instruments shall be entitled to inspect the documents, kept in accordance with the fifth paragraph, during two years from the time the annual accounts were drawn up or, as the case may be, approved.
Article 217
1.The general meeting or another body thereto designated in the articles of incorporation shall be competent without restrictions to appoint an external expert who shall supervise the bookkeeping on a regular basis, and also report to the general meeting on the annual accounts drawn up by the management.
2.The expert shall be entitled to inspect all the books, records and other data carriers of the company, the examination of which shall be necessary for the correct performance of his duty. Other than as required pursuant to the instructions given him, he shall not be permitted to disclose any information respecting the company’s business as appearing or as communicated to him.
3.The expert shall also make his report known to the management, the supervisory board and the body that appointed him.
Article 218
1.Directly connected with the approval of the annual accounts, the general meeting or any other body designated in the articles of incorporation shall resolve as to the distribution or reservation of the profit according to such annual accounts and as to the paying of any other distributions to the charge of the equity capital as appearing from such annual accounts.
2.The general meeting or any other body designated in the articles may resolve to pay interim distributions to the charge of a current financial year or to the charge of a closed financial year for which the annual accounts have not yet been approved.
3.Insofar as the articles of incorporation do not provide otherwise, each share shall entitle the holder thereof to receive an equal amount at each distribution whereas each sub-share shall entitle the holder thereof to receive the corresponding fraction of such amount. The articles may provide that the shares held by the company itself shall be reckoned with when determining the payment of distributions. The articles may leave the paying of distributions, be this in whole or in part, to a body as thereto designated.
4.The right to a distribution shall cease through the lapse of three years from the end of the day on which either this was adequately announced or the party entitled to the distribution took cognizance hereof or was notified accordingly. The articles may provide that the right to a distribution shall not cease or may stipulate a longer period of time.
5.Distributions to shareholders and other parties entitled to distributions may not be made if the company’s equity capital is negative or would become negative due to the said distribution. A resolution to make any such distribution shall have no legal effect whatsoever. Article 22, second paragraph shall not apply.
6.A distribution as referred to in this article shall be presumed to have been paid in contravention of the first sentence of the fifth paragraph if the annual accounts of the financial year, to the charge of which the distribution is paid, with due observance of such distribution shows an equity capital that is negative. In the case of a distribution as referred to in the first paragraph, the presumption shall be irrefutable.
7.If the company has a nominal capital, then the amount thereof shall be taken into account as bottom limit when applying the fifth paragraph.
Article 219
Articles 216 and 217 shall not apply in respect of the company that has declared articles 120 up to and including 122 applicable in its articles of incorporation, whether or not together with articles 123 and 124. In such a case also articles 125 and 126 shall apply.
Article 220-226
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Division 5 The general meeting of shareholders
Article 227
1.Insofar as the articles of incorporation do not provide otherwise, the general meeting of shareholders, within the bounds laid down by law and the articles, shall have all such powers as not granted to the management or to others.
2.The shareholders may lay down further rules in a shareholders’ agreement as regards their relations with one another and their relation to the company, including the manner in which they shall exercise their powers as shareholders. The shareholders’ agreement shall not be inconsistent with the law or the articles.
Article 228
1.Each year at least one general meeting shall be held.
2.Insofar as the articles do not provide otherwise, any managing director and any supervisory director shall be competent to convene a general meeting. The management and the supervisory board shall always have the authority to convene the general meeting.
Article 229
1.Every shareholder entitled to vote, may request the management or the supervisory board in writing for a general meeting to be convened in order to deliberate and resolve on such subjects as thereby indicated and falling under such right to vote, provided he shall have a reasonable interest in this.
2.If the management or the supervisory board should fail to act upon any such request within seven days from the day on which the request shall have reached the company or the body concerned, the applicant himself may proceed to convocation. With a view hereto the management shall allow the applicant to inspect the register referred to in article 209.
3.At the summoning by the shareholder, subjects other than those as initially indicated shall not be listed for discussion.
4.The summons and the documents pertaining thereto shall also be sent to each managing director and each supervisory director.
5.For the purposes of article 230, fifth paragraph the requirements laid down in the first up to and including the fourth paragraphs shall also be reckoned with.
Article 230
1.Insofar as not otherwise stipulated in the articles of incorporation, the summoning shall be effected in writing, with notice sent to the address of the party concerned. If one or more addresses are unknown, the summoning shall also take place by means of an announcement in the gazette in which official notices are inserted by the Government.
2.The term of notice shall be at least five days, not counting the day of the summoning nor that of the meeting. The day of the summoning shall be the day on which the notice is sent or, if this is later, the day on which the summoning notice is inserted in the gazette referred to in the first paragraph.
3.The summoning notice shall state the place of the meeting and the subjects to be dealt with. If a proposal is made to amend the articles, the literal text of the proposal shall accompany the notice or shall be deposited at the company’s office for inspection by the shareholders. The submission for inspection shall be stated in the announcement referred to in the first paragraph, if any such announcement shall be made.
4.Unless otherwise provided by the articles, a meeting shall be held in the Netherlands Antilles on the island where the company’s registered office is established.
5.If the regulations referred to in the first up to and including the fourth paragraphs have not been observed, valid resolutions may be adopted only in a meeting at which all the shareholders entitled to vote with respect to such subject, shall be present or represented. Also then, a subject, the dealing with which has not been announced with due observance of the term of notice prescribed by the articles, may be validly resolved upon only by unanimous vote.
Article 231
1.Every shareholder and every person entitled to vote shall be competent, personally or by proxy authorized in writing, to attend the general meeting, to address the same and, insofar as he is entitled to this, to exercise the vote.
2.The articles may provide that the right to attend the general meeting and to address the same shall belong only to the shareholder or person entitled to vote who shall have communicated his intention to do so to the company’s management at the most on the third day prior to that of the meeting. The articles may grant the rights referred to in the first sentence to other persons as well.
Article 232
1.Insofar as not otherwise provided in the articles of incorporation, each share shall entitle the holder thereof to cast one vote in respect of all subjects. The right to vote cannot exist independently of a more comprehensive right of share.
2.No vote may be cast on a share owned by the company itself. Unless otherwise provided by the articles, no vote may be cast either on a share owned by a legal entity in which the company, pursuant to the right to vote, is capable of exercising decisive control, be this directly or indirectly, also if all those entitled to vote should vote.
3.Unless otherwise provided by the articles, the managing directors and supervisory directors as such shall have an advisory opinion in the general meeting and when adopting resolutions of the general meeting.
Article 233
1.Insofar as not otherwise provided by the articles, all resolutions shall be adopted by absolute majority of the votes cast.
2.The articles may provide that, in case of a tie, the matter shall be referred to a third party.
3.A person designated by the meeting shall keep minutes of the deliberations and the resolutions adopted. The minutes shall be signed by the chairman of the meeting.
4.The signed minutes shall be kept by the management for ten years.
5.Each shareholder shall be entitled to receive a copy of the minutes.
6.The first up to and including the fourth paragraphs shall apply analogously in respect of resolutions of other bodies. The fifth paragraph shall apply analogously when a body other than the general meeting adopts a resolution as referred to in articles 204, 207 second paragraph, 214 third paragraph, 215 first paragraph, 217 first paragraph or article 218 second paragraph.
Article 234
1.Subject to restrictions pursuant to the articles of incorporation and without prejudice to the provisions of article 5, the general meeting shall be competent to amend the articles. A resolution adopted by unanimous vote to amend the articles, towards which resolution all persons entitled to vote have cooperated, shall be valid regardless of the provisions laid down on this in the articles.
2.A provision in the articles of incorporation that in the given situation would result in there being no persons entitled to vote as referred to in the first paragraph, shall be regarded as not written so long as such situation shall last.
3.During the company’s bankruptcy the articles may be amended only with the consent of the trustee in bankruptcy.
4.A resolution to amend the articles of incorporation as a result whereof the legal position of a person, involved by law or pursuant to the articles in the organization of the company, shall be affected, shall be nullified at the request of the person involved, provided such person shall have a substantial interest in maintaining such legal position. Article 21 fourth paragraph shall apply analogously.
Article 235
1.A resolution of the general meeting can also be adopted by votes cast by ballot without a meeting being held, provided all persons entitled to vote on such subject shall have cast a vote. All shareholders, managing directors and supervisory directors shall receive in time notice of the intention to adopt a resolution without a meeting being held.
2.The third up to and including the fifth paragraphs of article 233 shall apply analogously.
Division 6 The management
Article 236
1.The appointment of managing directors not designated in the deed of incorporation shall be effected by the general meeting, insofar as the articles of incorporation do not provide otherwise.
2.Unless otherwise provided in the articles, the body or the person having appointed the managing director shall be competent at all times to suspend or dismiss such managing director. As for managing directors designated in the deed of incorporation, the powers described in the first sentence shall belong to the general meeting, unless otherwise resulting from the articles.
3.Unless otherwise provided in the articles, the authority to determine the remuneration of a managing director shall belong to the general meeting.
4.A suspension in terms of this article shall cease if the person concerned has not been dismissed within two months from the day of the suspension.
Article 237
Article 236 shall not apply in respect of the members of the executive committee as such if article 18 is made applicable in the articles.
Article 238
The person who, without forming part of the management, for a certain period of time or under certain circumstances, whether or not pursuant to a provision of the articles or of this book, determines or contributes to the determination of the company’s policy as if he were a managing director, shall be deemed a managing director in respect of such acting as far as his obligations in respect of the company and of third parties are concerned, as also for the purposes of article 9.
Division 7 The shareholder-managed company
Article 239
1.The articles of incorporation may provide that the company shall be a shareholdermanaged company. In such a case, the law shall read each time instead of managing director: shareholder and, instead of the management: the general meeting of shareholders. For the shareholder-managed company moreover articles 240 up to and including 242 shall apply.
2.A resolution to amend the articles, so that a provision as referred to in the first paragraph shall be introduced or cancelled may be adopted only with the express consent of all the shareholders entitled to vote.
Article 240
1.The shareholders in a shareholders’ agreement as referred to in article 227 second paragraph, may lay down further rules as regards the manner in which the company shall be managed by them, the division of the tasks as applicable in that respect and the remuneration and method of adopting resolutions in connection therewith, provided all the shareholders and also the company shall be a party to such agreement.
2.The shareholders’ agreement shall be laid down in writing and signed by all the parties. Failure to observe this requirement shall result in invalidity.
3.Unless otherwise provided in the shareholders’ agreement, all decisions concerning the management shall be made by the general meeting of shareholders with application of the rules prevailing in respect of such meeting.
4.Without prejudice to the provision of article 228, each shareholder shall be competent at all times to convene a general meeting. Article 229 shall not apply. In lieu of article 235, it is provided that a resolution of the general meeting can also be effected in a manner to be laid down in the shareholders’ agreement, provided all shareholders shall have been given the opportunity to participate in the consultations and the adoption of the resolution.
5.The articles may provide that also the method of adopting resolutions of the general meeting shall be regulated in the shareholders’ agreement. In such a case, articles 228 second paragraph, 230, 232, 233 and 235 shall not apply either, insofar as the contrary does not appear from the articles or the shareholders’ agreement.
Article 241
1.Subject to the restrictions laid down by law, the articles of incorporation or the shareholders’ agreement, each shareholder shall have the authority to represent the company.
2.The second up to and including the fifth paragraphs of article 10 shall apply analogously.
Article 242
1.Articles 12, 18 and 236 shall not apply. Articles 17 and 238 shall apply analogously. Article 14, the first up to and including the fourth paragraphs shall apply analogously, to the extent same have not been deviated from in the shareholders’ agreement. In such a case only the fifth paragraph of article 14 shall apply analogously.
2.Each shareholder shall have the right to inspect all the books, records and other data carriers pertaining to the administration, and the right at his own expense to make copies – or to cause these to be made – of such books, records and other data carriers or of the data concerned.
Article 243-249
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Title 7 Buyout, retirement and compulsory transfer
Article 250
1.He who for his own account holds shares representing at least 95% of the equity capital of a limited liability or private limited company, may institute an action against the other shareholders jointly for the transfer of their shares to the plaintiff. The same shall apply if two or more group companies jointly hold the required number of shares and jointly institute an action for transfer to any of them.
2.In the articles of incorporation, the percentage referred to in the first paragraph may be lowered, provided it not be set at lower than 90.
3.If one or more defendants are declared to be in default, the judge in virtue of his office shall investigate whether the plaintiff or plaintiffs comply with the requirements of the first or the second paragraph.
4.The judge shall dismiss the claim against all the defendants if, despite the compensation, a defendant would suffer serious material damage through the transfer, or a plaintiff has waived his right as against a defendant to institute an action. Insofar as the articles do not provide otherwise, the judge shall also dismiss the claim against all the defendants if a defendant is the holder of a share to which the articles attach a special right concerning control in the company.
5.If the judge considers that the first up to and including the fourth paragraphs do not impede the allowing of the claim, he may direct that one or three experts shall advise as to the value of the shares to be transferred. He may direct that plaintiff provide security for the costs involved in the report of the expert(s). Article 121, fourth paragraph shall apply analogously. The judge shall determine the price that the shares to be transferred shall have on a day to be set by him. So long and insofar as the price has not been paid, it shall be increased by interest equal to the statutory interest from that day on up to the transfer; distributions on the shares made payable in this period of time shall be used on the day of availability for payment as partial payment of the price.
6.The judge allowing the claim shall order the acquirer to pay the price determined along with the interest to the owners or future owners of the shares, against transfer of the unencumbered right to the shares. The judge shall decide as to the costs of the suit in such a manner as he shall deem proper. Against a defendant who has not put up a defense no order for costs shall be given.
7.If the order to transfer has been established by judicial decree, the acquirer shall communicate the day and place of transfer and payment and the price in writing to the holders of the shares to be acquired, whose address he knows. Unless he knows the addresses of all of them, he shall also publish this communication in the gazette in which official notices are inserted by the Government and in a newspaper circulated in the Netherlands Antilles.
8.If on the day communicated or at the latest within four weeks thereafter, a holder of shares to be acquired does not cooperate towards the transfer of the shares to be taken over, the acquirer who has fulfilled his obligations under the seventh paragraph may release himself from his obligations pursuant to the sixth paragraph by lodging in court the price as determined, along with the interest, for all shares not yet acquired while stating the rights of pledge and usufruct known to him and the attachments known to him. Through this communication the attachment shall pass from the shares to the right of distribution. Through the lodging in court, the right to the shares shall pass to him free from encumbrances, and the rights of pledge or usufruct shall pass to the right to distribution. From share certificates and dividend coupons, on which distributions were declared payable following the passing, no further rights shall be capable of being derived thereafter as against the company. The acquirer shall announce the lodging in court and the price per share known as at that time, in the manner as described in the seventh paragraph.
Article 251
1.The holder of registered shares, whose rights or interests are prejudiced by any conduct of the company or one or more fellow shareholders, in such a manner that his continued shareholdership reasonably may no longer be required of him, may institute a claim against the company for his retirement, to the effect that the company take over his shares against payment in cash.
2.The plaintiff shall have no cause of action if it does not appear that he expressed his objections in writing to the management of the company at least four weeks before commencing the action.
3.The management of the company shall notify the supervisory directors and the fellow shareholders at once in writing of the objections expressed and the commencement of the action.
4.The right to commence the action shall cease if prior to the commencement thereof the company or a fellow shareholder shall make a written, unconditional and irrevocable offer to the shareholder to take over his shares against payment in cash. In case of acceptance, the purchase price shall be determined by one or more experts to be appointed by the judge at the request of the willing party. In determining the price, the experts shall use as a basis the value of the company on the day of acceptance of the offer. They shall reckon with any tax disadvantages to be suffered by plaintiff. On the amount thus determined, statutory interest shall be due up to the day of payment. The costs of the experts shall be borne by the party having made the offer.
5.The party making the offer referred to in the fourth paragraph must thereby set a period for written acceptance that may not be shorter than four weeks and declare that immediately following the written acceptance he shall provide security for the costs of the experts and the amounts ultimately to be paid by him. Article 121, fourth paragraph shall apply analogously.
6.At the request of the shareholder who has accepted the offer, the judge may direct that the right referred to in the fourth paragraph shall revive during a period thereby to be set if the security offered is not provided within six days or if it is insufficient, all this without prejudice to the rights of the shareholder from the offer accepted by him.
7.There shall be no appeal from the decisions of the judge as referred to in this article.
Article 252
1.If the action for retirement as referred to in article 251 is commenced and the judge considers the same well-founded, he shall allow such action provisionally. He thereby shall appoint one or more experts who shall report in writing, within a period of time to be set by the judge. In their written report, the experts shall express themselves on the price of the shares as at the time of the provisional allowance, using as a basis the value of the company as at that time, the tax consequences of the transfer for the plaintiff, the company and the fellow shareholders and the economic consequences of the transfer for the company. The judge may direct that plaintiff provide security for the costs involved in the report of the experts. Article 121, fourth paragraph, shall apply analogously.
2.After the experts shall have rendered their report, the judge shall determine the amount to be paid by the company. Such amount shall include the tax disadvantage, if any, to be suffered by the plaintiff. If based on unreasonable grounds the plaintiff should refuse to transfer his shares voluntarily to a potential acquirer yet to be designated by the company or a fellow shareholder within eight days by statement in interim proceedings on conditions thereby to be stated, the judge may still dismiss the claim.
3.If the judge definitively allows the claim, he shall direct that the shares shall be transferred in the manner as provided in the fourth paragraph. He thereby shall order the company to pay the amount determined by him, increased by the statutory interest as and from the moment of the provisional allowance and the costs determined by him, including those of the experts and the notary, into the hands of a civil-law notary thereby designated by him. The judge may attach a penalty payment to this order in favor of the plaintiff. Any fruits accruing on the shares since the time of the provisional allowance shall revert to the company. Before deciding, the judge shall hear the notary to be designated if in his opinion there are reasons to do so.
4.Unless parties unanimously inform the notary without delay that they still opt for another solution, the deed of transfer shall be a record expeditiously drawn up by the notary upon receipt of the amount due by the company, which record shall state the decision of the judge. The notary shall include in this deed such additions and explanations as he shall deem necessary in the interest of the conduct of judicial matters. Following the passing of the deed, the notary shall pay over the amount received by him, after deducting therefrom the costs as determined by the judge, to the plaintiff. A copy of the deed shall be sent by the notary to the company and to the plaintiff.
5.So long as no final and conclusive decision has been made on the claim, or the suit has not otherwise terminated, the plaintiff cannot alienate his shares or establish a pledge or usufruct thereon, without the written consent of the company or, failing same, of the judge.
6.The action for retirement may be withdrawn only with the consent of the opposite party. There shall be a further appeal only and exclusively from a decision as referred to in the third paragraph, or from the dismissal of the action. An action for the introduction of a third party, joinder or intervention shall not be allowed, without prejudice to the provision of the second paragraph, last sentence.
7.The action for retirement may also be commenced against one or more of the fellow shareholders who singly or together with the company or other fellow shareholders are guilty of any conduct as described in the first paragraph of article 251. The company at any rate shall also be brought into the action. The second up to and including the fifth paragraphs of article 251 shall apply. The second up to and including the sixth paragraphs of the present article shall apply analogously.
Article 253
1.If in the general meeting, through acts or events that a holder of registered shares reasonably was not able to prevent, such a majority resulted as shall make it possible for a fellow shareholder, whether singly or together with a group company of the fellow shareholder or pursuant to an agreement with other parties entitled to vote, to appoint or dismiss more than half the managing directors, members of the general management in terms of article 18 or supervisory directors, also if all the parties entitled to vote cast a vote, such holder of registered shares may commence an action against the company for retirement as described in article 251. The action may also be instituted against the fellow shareholder, the group company or the other parties entitled to vote, referred to in this article. The company at any rate shall also be brought into the action.
2.The second up to and including the fifth paragraphs of article 251 and the second up to and including the sixth paragraphs of article 252 shall apply analogously in respect of the action as referred to in the first paragraph.
3.Unless the fourth paragraph of article 251 shall have applied analogously, the right to commence the action shall cease six months from the end of the day on which the shareholder took cognizance of the occurring of a majority as referred to in the first paragraph or was notified thereof.
Article 254
1.The action for retirement referred to in article 251 shall also be vested in:
a.the shareholder who, as such, does not or does no longer meet the quality requirements laid down in the articles of incorporation, and consequently is unable to exercise one or more of the rights attaching to his share.
b.the shareholder who has informed the company and his fellow registered shareholders in writing that he wishes to alienate his shares on conditions thereby stated, and is unable to carry out such intention due to the operation of a blocking regulation in the articles of incorporation in terms of article 111 or 211 that exclude the transfer or render the same extremely difficult.
2.In the cases referred to in the first paragraph, the seventh paragraph of article 252 shall not apply.
3.Unless the fourth paragraph of article 251 shall have applied analogously, the right to commence the action shall cease six months from the end of the day on which the shareholder has found himself in a situation as referred to in the first paragraph under a. or the written communication referred to in the first paragraph under b. has been received by the company.
Article 255
1.At any phase of an action as set forth in article 252 or 253, the judge at the request of an interested party may make a provision asked for by such party, as referred to in the third paragraph, if the interest of the company or another person referred to in article 7, first paragraph, shall require this. Before deciding, the judge may hear witnesses and experts, if so requested or in virtue of his office.
2.The provision may be cancelled, extended or modified at all times at the request of an interested party. It shall cease at the time stipulated by the court, and at any rate at the time when the decision as regards the claim in the principal proceedings shall have become final and conclusive.
3.The provision may contain:
a.suspension of the operation of a resolution of a body of the legal entity, or an order to revoke a resolution in whole or in part, to suspend the execution thereof in whole or in part, or to remedy the consequences thereof in whole or in part;
b.suspension of one or more managing directors or supervisory directors;
c.provisional appointment of one or more managing directors or supervisory directors;
d.temporary deviation from the provisions of the articles as thereby stated;
e.temporary deprivation of the right to vote on shares;
f.temporary transmission of shares by way of administration;
g.an order addressed to the legal entity or other person as referred to in article 7, first paragraph, for the performance or omission of certain acts.
4.A provision may not prejudice the rights acquired by third parties in good faith. If any such prejudice is imminent, the third party concerned shall be brought into the action as an interested party. Having heard the third party, the judge may direct that the provision nevertheless shall operate as against such third party, regardless of the degree to which the latter shall be in good faith, provided the third party shall thereby be awarded reasonable compensation to be paid by the company, all this without prejudice to the right of the company to recover the amount paid from the party having caused the damage, if and insofar as there shall be grounds for this.
5.If necessary, the judge shall regulate the consequences of the provision made. If so requested, he may attach the forfeiture of a penalty payment in favor of the applicant or the company, in case of failure to comply with an order.
6.The institution of an appeal or cassation from a decision as referred to in this article shall not impede the continuation of the principal proceedings.
7.If the judge dismisses the action in the principal proceedings, he may thereby direct, at the company’s request, that the plaintiff pay the company for the direct costs resulting from the provisions made, insofar as such costs were charged to the company, and this without prejudice to any suit for damages to be instituted by the company or a third party, if there are grounds for this. The costs referred to in this paragraph shall be estimated by the judge.
Article 256
An action for retirement as referred to in articles 251 up to and including 254 may not be instituted in respect of shares that are traded on an exchange.
Article 257
1.The articles of incorporation may provide that, in cases accurately defined in the articles, the shareholder shall be bound to transfer his shares to the company or to one or more fellow shareholders on the conditions as laid down in the articles, or as determined by independent experts pursuant to the articles.
2.Fulfillment of the obligation referred to in the first paragraph may not be demanded before the company or a fellow shareholder shall have made a written, unconditional and irrevocable offer to the shareholder, to take over his shares against payment in cash and this offer has been rejected or the term for acceptance referred to in the fourth paragraph has expired.
3.In case of acceptance of the offer, the purchase price shall be determined by one or more experts to be appointed by the judge at the request of the willing party. In determining the price, the experts shall use as a basis the value of the company on the day of acceptance of the offer. They shall reckon with any tax disadvantages to be suffered by the shareholder. On the amount thus determined, statutory interest shall be due up to the day of payment. The costs of the experts shall be borne by the party having made the offer.
4.The party making the offer referred to in the second paragraph must thereby set a period for written acceptance that may not be shorter than four weeks and declare that immediately following the written acceptance he shall provide security for the costs of the experts and the amounts ultimately to be paid by him. Article 121, fourth paragraph shall apply analogously.
5.If the irrevocable offer is not made within six weeks from the shareholder having notified the company in writing of his willingness to transfer his shares, then the shareholder shall be released from all his obligations under the stipulations of the articles. The same shall apply if the security offered as referred to in the fourth paragraph is not provided within six days or is insufficient, and this without prejudice to the rights of the shareholder from the offer accepted by him.
Article 258-299
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Title 8 Conversion, Merger and Demerger
Division 1 Conversion
Article 300
1.A legal entity may be converted into another legal form with due observance of the following provisions.
2.For conversion shall be required a resolution to convert and to amend the articles of incorporation, adopted with due observance of at least the requirements for a resolution to amend the articles. It is realized by notarial deed of conversion that shall contain the new articles of incorporation.
3.The conversion of a foundation shall be possible only if the articles shall allow the amendment of all the provisions thereof.
4.The conversion of or into a foundation and of a limited liability or a private limited company into an association, moreover shall require the authorization of the court.
5.In the cases requiring the authorization of the court, the management of the legal entity to be onverted shall announce the intention to convert and the place where and time when the request for authorization shall be dealt with, in the gazette in which official notices are inserted by the Government and by notice inserted in a newspaper published in the Netherlands Antilles.
6.Only the legal entity can request authorization for conversion. Thereby shall be submitted proof that the obligations under the fifth paragraph have been met and a notarial draft of the deed. The authorization shall be refused if a resolution as required is invalid or if action to nullify the same is pending. It shall moreover be refused if the conversion shall lead to the unjust benefit or prejudice of one or more persons, as also if the interests of the parties entitled to vote who have not agreed or of others, at least one of whom shall have applied to the court, have been insufficiently considered. The judge may attach conditions to the granting of the authorization. One condition may be that damages shall be paid to one or more shareholders as laid down in article 302, third paragraph.
7.If the authorization of the court is required for the conversion, the notary shall declare at the end of the deed of conversion that the authorization has been granted on the draft of the deed and, insofar as applicable, that the conditions thereby made have been complied with.
8.At the conversion of a foundation the deed of conversion shall reflect the assets of the foundation and the composition thereof. Following the conversion, the articles of incorporation shall indicate that the net assets it had at conversion may not be reduced by distributions to shareholders or members and may not be reduced by distributions to third parties without the consent of the court.
9.Article 5 shall apply analogously. On applying article 24, next to the words “formation”, “act of formation” and “balance sheet on formation” shall always be read as well: conversion, act of converting and balance sheet on conversion.
10.Conversion shall not terminate the existence of the legal entity.
Article 301
1.When converting a legal entity into a limited liability or a private limited company, next to article 300, the following paragraphs shall apply.
2.Through the conversion, the members or shareholders shall become shareholders by law, proportionally to the rights of each of them. In the case of a foundation being converted, the persons stated in the deed of conversion shall become shareholders pursuant to the issue as regulated in the said deed. The deed of conversion shall be signed by such persons in person or by written proxy.
3.A balance sheet on conversion shall be attached to the deed of conversion. At conversion into a limited liability or a private limited company, the equity capital as shown may not be negative. If the company, into which the legal entity is converted, has a nominal capital, the equity capital may not be lower than such nominal capital.
4.The balance sheet on conversion shall relate to a point of time that shall be one month at most prior to the day of the deed. It shall be signed by all the managing directors and supervisory directors.
5.Following the conversion, the shareholders, usufructuaries and pledgees may not exercise the rights attaching to a share so long as they have not been entered in the register referred to in article 109 or 209. To the extent that bearer share certificates have been issued, the entry shall be made only against surrender of such share certificates to the company, and this subject to the application of the fourth paragraph of article 105.
Article 302
1.When a limited liability or private limited company is converted into an association, cooperative society or mutual insurance association, every shareholder shall become a member unless he shall have requested indemnification as referred to in the second paragraph. This option shall be stated in the summoning notice to the meeting at which a resolution shall be adopted for conversion and for amendment of the articles, and in the announcements referred to in article 300, fifth paragraph.
2.Within two weeks from the resolution for conversion and for amendment of the articles having been adopted, each shareholder who has not agreed to the resolution may request the company in writing to indemnify him for the loss of his shares. The shareholder who already applied to the court in accordance with article 300 sixth paragraph, thereby requesting indemnification, shall not have this right unless the judge in such proceedings has not decided on that request.
3.In the absence of an agreement, the indemnification shall be determined by one or more independent experts to be appointed at the request of the willing party by the judge deciding on the authorization referred to in article 300 fourth paragraph. The costs of the experts shall be borne by the company.
Article 303
1.Instead of a legal entity in terms of this book, on the application of articles 300 and 302 also a foreign legal entity may act as legal entity being converted, provided the laws governing such foreign legal entity shall not oppose any such conversion. A declaration to the effect, made by a person expert in this area of law, shall be attached to the deed of conversion.
2.For the purposes of article 300 second paragraph, and for the time of realization, a requirement shall be that the foreign rules in effect for any such conversion shall also be taken into account. An authorization of the court shall be required only on conversion into a foundation.
Article 304
1.A limited liability and a private limited company may be converted into a foreign legal entity, provided that, under the laws governing such foreign legal entity, the consequence of such conversion shall be that the existence of the company as a legal entity in the legal form chosen shall be continued.
2.For the conversion shall be required a resolution to the effect of the meeting of shareholders, adopted on a unanimous motion of the management and with due observance of at least the requirements for a resolution to amend the articles of incorporation. Furthermore shall be required a notarial deed placing on record the resolution to convert and to which shall be attached:
a.a document, issued by a person or authority that, according to the laws of the foreign legal entity, has the power to realize a deed of formation of such a foreign legal entity, which document shall contain the regulations under the articles of incorporation or similar rules that shall govern the foreign legal entity following the conversion;
b.a declaration to the effect that, the moment all formalities shall have been complied with, also the condition of the first paragraph shall have been observed, which declaration shall be given and signed by the person or authority referred to under a. or another expert in the area of law of the foreign legal entity;
c.a declaration given and signed by all the managing directors who at the time of the resolution to convert were in charge of the tasks described in article 15 and all the shareholders entitled to vote, who did not vote against the motion to convert, in which declaration the signatories assume liability in several for all the debts of the company existing at the point of time when the conversion is final; save in case of bad faith, this liability shall cease three months following such point of time and at any rate one year from the commencement of the continued existence of the company in the foreign legal form chosen.
3.The notarial deed referred to in the second paragraph may contain a suspensory condition for the conversion to take effect.
4.Article 4, first paragraph, shall apply analogously. Of article 5 shall have analogous application the first paragraph, the last sentence of the second paragraph and the third paragraph, and this on the understanding that in the first paragraph the words “entered in the trade register” shall be read as “removed from the trade register” and that notice of the conversion through the care of the notary shall also be given in a widely circulated local newspaper. If the deed of conversion contains a suspensory condition as referred to in the third paragraph of this article, then the stipulation of the second and third sentences of article 5, first paragraph need not be complied with earlier than as soon as possible following compliance with such condition. A suspensory condition that has not been complied with for or through the removal from the trade register shall be deemed to have been fulfilled through such removal.
5.The conversion shall be final the moment the removal from the trade register as referred to in the fourth paragraph shall have taken place. If it should subsequently appear that the condition of the first paragraph has not been complied with, then the conversion shall be deemed not to have taken place.
Article 305
1.A foundation may be converted into a foreign legal entity with due observance of the following paragraphs.
2.Paragraphs 3 up to and including 7 and the first sentence of paragraph 8 of article 300 shall apply analogously.
3.For the conversion shall be required a unanimous resolution to the effect of the management, adopted with due observance of at least the requirements for a resolution to amend the articles of incorporation. Article 304 for the rest shall apply analogously, on the understanding that a declaration as referred to in the second paragraph, under c., shall have been given and signed by all the managing directors.
Article 306-308
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Division 2 General stipulations regarding merger
Article 309
Merger is the legal act of two or more legal entities whereby one of these shall acquire the assets of the other one under general title, or whereby a new legal entity, formed by them jointly at this legal act, shall acquire their assets under general title.
Article 310
1.Legal entities may merge with legal entities having the same legal form.
2.If the acquiring legal entity is newly formed, it shall have the legal form of the merging legal entities.
3.For the purposes of this article, limited liability and private limited companies shall be regarded as legal entities with the same legal form.
4.An acquiring legal entity, regardless of its legal form, may merge with an association, cooperative society, mutual insurance association, limited liability or private limited company, of which it is the sole member or shareholder.
5.A dissolved legal entity may not merge if by reason of the liquidation a distribution has already been made.
6.A legal entity may not merge during bankruptcy or its being granted an official moratorium.
Article 311
1.With the exception of the acquiring legal entity, the merging legal entities shall cease to exist through the merger taking effect.
2.The members or shareholders of the legal entities ceasing to exist, through the merger shall become members or shareholders of the acquiring legal entity, except in the cases of articles 310 fourth paragraph, 333 or 334, or when pursuant to the exchange ratio of the shares there shall not even be a right to one single share.
Article 312
1.The management boards of the legal entities to be merged shall draw up a motion to merge.
2.This motion shall state at least:
a.the legal form, name and registered office of the legal entities to be merged;
b.the articles of incorporation of the acquiring legal entity, as reading and as the same shall read following the merger or, if the acquiring legal entity is to be newly set up, the draft of the deed of incorporation;
c.the rights or considerations that shall be granted under article 320 to the charge of the acquiring legal entity, to those who otherwise than as a member or shareholder have special rights as against the legal entities ceasing to exist, such as rights to a profit distribution or to take shares, and the time of commencement thereof;
d.the benefits, if any, to be granted in connection with the merger to a managing director or supervisory director of a legal entity to be merged or to any other party involved in the merger;
e.the intentions as regards the composition following the merger of the management and, if there shall be a supervisory board, of such board;
f.for each of the legal entities ceasing to exist, the point of time as and from which financial data shall be accounted for in the annual accounts or other financial accounting of the acquiring legal entity;
g.the measures proposed in connection with the devolution of the membership or shareholdership of the legal entities ceasing to exist;
h.the intentions as regards the continuation or termination of activities;
i.the party (parties), if any, who must approve the resolution to merge.
3.The motion to merge shall be signed by the managing directors of each legal entity to be merged; should the signature of any one or more of them be lacking, this shall be noted with the reason thereby stated.
4.If a merging legal entity is a limited liability company, the articles of incorporation of which contain a stipulation as referred to in article 139, the motion to merge shall be approved by the supervisory board of such company, and it shall also be signed by the supervisory directors; should the signature of any one or more of them be lacking, this shall be noted with the reason thereby stated.
Article 313
1.In a written explanatory memorandum, the management of each legal entity to be merged shall state the reasons for the merger, setting forth the anticipated consequences for the activities and an explanation from a legal, economic and social point of view.
2.If the last financial year of the legal entity, for which annual accounts or other financial accounting have/has been determined, shall have elapsed for over six months prior to submission of the motion to merge, the management shall draw up annual accounts or an interim statement of assets and liabilities. The same shall relate to the situation of the assets not earlier than on the first day of the third month prior to the month in which they are submitted. The statement of assets and liabilities shall be drawn up with due observance of the layout and valuation methods applied in the annual accounts or other financial accounting as last determined, unless same are deviated from with good reason based on the actual value deviating considerably from the book value.
3.In the cases of articles 310 fourth paragraph and 333, no explanatory memorandum shall be required for the legal entity ceasing to exist, unless others than the acquiring legal entity have a special right as against the legal entity ceasing to exist, such as a right to profit distribution or o take shares.
Article 314
1.Every legal entity to be merged shall submit to the office of the trade register:
a.the motion to merge;
b.the last three approved annual accounts or other financial accounting of the legal entities to be merged, along with the statement of experts, insofar as these documents are or must be available for inspection;
c.the annual reports of the legal entities to be merged, covering the last three closed years insofar as these are or must be available for inspection;
d.interim statements of assets and liabilities or non-approved annual accounts, to the extent required pursuant to article 313 second paragraph, and insofar as the annual accounts of the legal entity must be available for inspection.
2.At the same time the management shall deposit the documents, including the annual accounts and annual reports that need not be available for public inspection, along with the explanatory memorandums of the management boards to the motion, at the office of the legal entity or, in the absence of an office, at the abode of a managing director. The documents shall remain available up to the time of the merger, and at the address of the acquiring legal entity or, as the case may be, of a managing director thereof for another six months thereafter, for inspection by the members or shareholders, and by those having any special right as against the legal entity, such as a right to profit distribution, to take shares or to attend meetings. During this period of time they may obtain a copy thereof, free of charge.
3.The legal entities to be merged shall announce in the gazette in which official notices are inserted by the Government and in a notice inserted in a newspaper published in the Netherlands Antilles, that the documents have been deposited, with statement of the public registers where they are lodged and of the address where they shall be available for inspection pursuant to the second paragraph. If the resolution to merge must be approved in accordance with article 317 fifth paragraph, the place where and the time when the request for approval is to be dealt with shall be announced.
4.If the management boards of the legal entities to be merged should amend the motion to merge, the first up to and including the third paragraphs shall apply analogously.
5.The second paragraph shall not apply in respect of foundations.
Article 315
1.The management of each legal entity to be merged shall be bound to inform the general meeting and the other legal entities to be merged as to any significant changes in the circumstances which became evident following the motion to merge, and which, had they been known, would have influenced the announcements in the motion to merge or in the explanatory memorandum.
2.For a foundation, this obligation shall apply in respect of those who must approve the merger according to the articles of incorporation.
Article 316
1.Up to one month after all the merging legal entities shall have made the announcement referred to in the third paragraph of article 314, any creditor or contractual opposite party of one of the merging companies, as also any party specially entitled in terms of article 320, by means of a petition addressed to the judge of first instance at the domicile, according to its articles, of a company ceasing to exist or an acquiring company, may oppose the merger announced, on the grounds that he will be prejudiced in his position as creditor, contractual opposite party or party specially entitled. The petition shall state the security, guarantee, contract amendment, dissolution or indemnification that is being demanded.
2.If the judge considers the opposition to be well-founded, he shall determine the security or guarantee to be provided or the indemnification to be paid by the acquiring company or a third party, or the contract amendment or dissolution to be applicable when the merger is effected. He may attach an obligation, to be effective as and from the date of the merger, for the acquiring company to indemnify when a contract is amended or dissolved.
3.The deed of merger referred to in article 318 may not be executed until after the opposition shall have been withdrawn, the decision declaring the opposition unfounded is enforceable or, in case of a declaration to the effect that the opposition is wellfounded, the guarantee or security determined has been provided.
4.If the deed of merger has already been executed, the judge on a legal remedy instituted may order the providing of a guarantee as defined by him and attach a penalty thereto.
Article 317
1.The resolution to merge shall be adopted by the general meeting; in a foundation the resolution shall be adopted by the party allowed to amend the articles of incorporation or, if no other party may do so, by the management committee. The resolution may not deviate from the motion to merge.
2.A resolution to merge may only be adopted after one month shall have elapsed from the day on which all the merging legal entities shall have announced the submission of the motion to merge.
3.A resolution to merge shall be adopted in the same manner and by the same majority as a resolution to amend the articles of incorporation. If the articles should require an approval for this, the same shall also apply in respect of the resolution to merge. If the articles should require varying majorities for the amendment of separate provisions, the resolution to merge shall require the greatest of such majorities, and if the articles should exclude an amendment of the provisions, the votes of all the members or shareholders entitled to vote shall be required; all this unless such provisions shall remain intact following the merger. The minutes of the meetings at which the resolution to merge is adopted shall be drawn up by notarial deed.
4.The third paragraph shall not apply insofar as the articles provide another regulation for resolutions to merge.
5.A resolution for the merger of a foundation shall require the prior approval of the judge, unless exclusively foundations that are a private fund foundation, or exclusively foundations that are not a private fund foundation, are involved in the merger, and the articles of these foundations make it possible for all the provisions thereof to be amended. The judge shall refuse the request if there are well-founded reasons to assume that the merger is contrary to the interests of the foundation or that the interests of affiliates or third parties are disproportionately prejudiced.
Article 318
1.The merger shall be effected by notarial deed and shall take effect as and from the day following that of the execution of the deed. The deed may be executed only within six months from the announcement of submission of the motion or, if this is not allowed in consequence of an opposition lodged, within one month from the time referred to in the third paragraph of article 316.
2.At the end of the deed the notary shall declare that it has appeared to him that the procedural requirements have been observed for all the resolutions as required in this and the next Division and the articles for the realization of the merger, and that for the rest the rules in that regard, laid down in this and the next Division and in the articles, have been complied with.
3.Articles 4 and 5 shall apply analogously, it being understood that the required documents shall be presented to the office of the trade register of the acquiring and of each merged legal entity. On applying article 24, next to the words “formation”, “act of formation” and “balance sheet on formation” shall always be read as well: merger, act of merging and balance sheet on merging.
4.The acquiring legal entity shall report the merger within one month to the managers of other public registers in which the devolution of rights or the merger may be entered. If through the merger any property subject to public registration shall pass to the acquiring legal entity, the latter shall be bound within this term to present to the custodian of the public registers, referred to in title 1, Division 2 of Book 3, the documents required for the entry of the merger.
Article 319
1.A pledge and usufruct on a right of membership or on shares of the legal entities ceasing to exist shall pass to that which shall come in the place thereof.
2.If the pledge or usufruct should rest on a right of membership or on shares, for which nothing shall come in the place, then the acquiring legal entity shall provide an equivalent replacement.
Article 320
1.Anyone who, otherwise than as a member or shareholder, has a special right as against a legal entity ceasing to exist, such as a right to a profit distribution or to take shares, shall acquire an equivalent right in the acquiring legal entity, or else receive indemnification. Indemnification may not be claimed by a party who already applied for indemnification in accordance with article 316, unless the judge in such proceedings has not decided on such application.
2.In the absence of an agreement, the indemnification shall be determined by one or more independent experts, to be appointed at the request of the willing party by the judge of first instance of the domicile of the acquiring legal entity according to its articles of incorporation.
3.Article 319 shall apply analogously in respect of any pledge or usufruct that had been established on the special rights.
Article 321
1.At the point of time, from the commencement of which the acquiring legal entity shall account, in its own annual accounts or other financial accounting, for the financial data of a legal entity ceasing to exist, the last financial year of such legal entity ceasing to exist shall have terminated.
2.The obligations as regards the annual accounts or other financial accounting of the legal entities ceasing to exist shall rest on the acquiring legal entity following the merger.
3.Valuation differences between the accounting of assets and liabilities in the last annual accounts or other financial accounting of the legal entities ceasing to exist and in the first annual accounts or other financial accounting in which the acquiring legal entity accounts for these assets and liabilities, shall be explained.
Article 322
1.If in consequence of the merger, an agreement of a merging legal entity according to the standards of reasonableness and fairness should not remain in effect unaltered, the judge shall amend or dissolve the agreement on the demand of any of the parties. The amendment or dissolution may be given retroactive effect.
2.The right to institute the claim shall cease with the expiry of six months from the deed of merger having been deposited at the office of the registers referred to in article 318, third paragraph. The claim shall not be capable of being instituted by a party who already in accordance with article 316 requested the amendment or dissolution of the agreement, unless the judge in such proceedings has not decided on such request.
3.If the amendment or dissolution of the agreement should result in damage being caused to the opposite party, the legal entity shall be bound to compensate the same.
Article 323
1.The judge may nullify a merger only:
a.f the deed of merger signed by a notary is not an authentic document;
b.owing to non-compliance with article 310 fifth and sixth paragraphs, article 316 third paragraph or article 318 second paragraph;
c.owing to the invalidity, the ineffectiveness or any grounds for nullification of a resolution, required for the merger, of the general meeting or, if a foundation, of the management committee;
d.by reason of non-compliance with article 317 fifth paragraph.
2.Nullification shall take place on the demand of a member, shareholder, managing director or other interested party against the acquiring legal entity. A merger not nullified by the judge shall be valid.
3.The right to institute the claim for nullification shall cease through redress of the omission or through the expiry of six months from the deed of merger having been deposited at the office of the registers referred to in article 318, third paragraph.
4.The merger shall not be nullified:
a.if the legal entity shall have redressed the omission within a period of time to be stipulated by the judge;
b.if the consequences of the merger already arisen are difficult to reverse.
5.If the party claiming the nullification of the merger has suffered any damage through an omission that could have led to nullification, and the judge does not nullify the merger, then the judge can order the legal entity to compensate the damage. The legal entity shall have a recourse for this against the parties guilty of the omission and, up to the highest gain obtained, against those having been favored by the omission.
6.The nullification, through the care of the clerk of the court in which the claim was last pending, shall be entered in the registers where the merger is required to be entered pursuant to article 318 third paragraph.
7.The legal entities shall be liable in several in respect of undertakings arisen to the charge of the legal entity into which they had been merged, following the merger and before the nullification is entered in the registers.
8.The irrevocable decision to nullify a merger shall be binding on all parties. Opposition by third parties and revocation shall not be allowed.
Article 323a
1.As a legal entity ceasing to exist, on application of articles 309 up to and including 334, also a foreign legal entity with a comparable legal form may act, provided the laws governing such foreign legal entity shall not oppose the merger and the way in which the same comes about. A declaration to the effect, made by a person expert in that area of law, shall be attached to the deed of merger.
2.Article 323 shall apply, it being understood that, under the laws governing the foreign legal entity, opposition of a merger as concluded shall also constitute rounds for nullification.
3.Articles 310 up to and including 334 shall apply exclusively in respect of the acquiring legal entity. With regard to the legal entity ceasing to exist, the rules in effect for such merger shall be observed to the extent possible.
4.The declaration referred to in article 318 second paragraph need not relate to the applicable provisions of the law and requirements of the articles of incorporation.
Division 3 Special provisions for mergers of limited liability and private limited companies
Article 324
This Division shall apply if a limited liability or private limited company merge.
Article 325
1.If shares or depositary receipts for shares of a company to be merged are listed in the official list of a stock exchange, the exchange ratio may depend on the price of those shares or, as the case may be, those depositary receipts on such stock exchange at one or more points of time to be stipulated in the motion to merge, lying before the day on which the merger shall take effect.
2.If pursuant to the exchange ratio of the shares there shall be a right to money or debt claims, the aggregate amount thereof may not exceed one tenth part of the equity capital represented by the shares allotted.
3.With the deed of merger the acquiring company may cancel shares in the acquiring company held by that company itself or another merging company, up to the asset value represented by the shares that it allots to its new shareholders.
4.Shares of the companies ceasing to exist, which are held by or for the account of the merging companies, shall be cancelled.
Article 326
1.Next to the data stated in article 312, the motion to merge shall contain:
a.the exchange ratio of the shares and the amount of the payments, if any, pursuant to the exchange ratio;
b.the point of time as from which and the degree to which the shareholders of the companies ceasing to exist shall participate in the profit of the acquiring company;
c.the number of shares, if any, to be cancelled under application of article 325 third paragraph;
d.a balance sheet on merger of the acquiring company.
2.The balance sheet on merger of the acquiring company shall show an equity capital that shall not be negative or, if the acquiring company has a nominal capital, shall not be lower than such nominal capital. It shall relate to the assumed point of time of the merger. The data therefor may be derived from the annual accounts or statements of assets and liabilities referred to in article 313, second paragraph. Any deviations therefrom shall be explained.
Article 327
In the explanatory memorandum to the motion to merge, the management shall announce:
a.the method or methods according to which the exchange ratio of the shares has been determined;
b.whether this method or these methods is/are fitting in the given case;
c.the valuation to which each method as applied shall lead;
d.if more methods than one have been used, whether the relative weight of the methods assumed at the valuation can be deemed to accord with generally acceptable standards; and
e.particular difficulties, if any, encountered at the valuation and at the determination of the exchange ratio.
Article 328
1.An external expert as referred to in article 121, designated by the management, shall examine the motion to merge and shall declare whether the exchange ratio of the shares as proposed, also considering the documents attached, is reasonable in his view. He shall also draw up a report giving his opinion on the balance sheet on merger of the acquiring company and the announcements referred to in article 327.
2.If one of the merging companies is a limited liability company, then for this company only the same person as for another merging legal entity shall be designated as expert if the general meeting shall have approved the resolution to the effect.
3.For all the merging companies the experts shall be equally competent to carry out examinations.
4.Article 314 shall apply analogously in respect of the declaration of the expert, and the second and third paragraphs of article 314 in respect of his report.
Article 331
1.Unless otherwise provided by the articles of incorporation, an acquiring company by means of a management resolution may resolve to merge.
2.This resolution may be adopted only if the company shall have stated the intention to the effect in the announcement that the motion to merge has been deposited.
3.The resolution may not be adopted if one or more shareholders, jointly representing at least one tenth part of the equity capital, or such smaller amount as stipulated in the articles, shall have requested the management, within one month from the announcement, to convene the general meeting in order to resolve upon the merger. Article 317 shall then apply.
Article 333
1.If the acquiring company merges with a company of which it holds all the shares, or with an association, cooperative society or mutual insurance association of which it is the sole member, articles 326 up to and including 328 shall not apply.
2.If a person, or another party for his account, holds all the shares of the companies to be merged and the acquiring company does not allot shares in pursuance of the deed of merger, articles 326 up to and including 328 shall not apply.
3.If all the persons entitled to vote have voted in favor of all the resolutions required for the merger, articles 326 up to and including 328 shall not apply.
4.If an acquiring association, cooperative society, mutual insurance association or foundation merges with a limited liability or private limited company, of which it holds all the shares, the provisions of this Division shall not apply.
Article 334
1.The deed of merger may provide that the shareholders of the companies ceasing to exist shall become shareholders of a group company of the acquiring company. They shall not become a shareholder of the acquiring company then.
2.Such a merger shall be possible only if the group company, singly or together with another group company, holds all the shares of the acquiring company. Articles 317, first up to and including fourth paragraphs, and 331 shall apply analogously in respect of the resolution of the group company.
3.The group company allotting the shares shall be deemed a merging legal entity next to the acquiring company. On it shall rest the obligations resting on an acquiring company pursuant to articles 312 up to and including 328, with the exception of the obligations under articles 316, 317, 318 fourth paragraph, 321 second paragraph, and 323 seventh paragraph; for the purposes of article 328 third paragraph, it shall be disregarded. Articles 312 second paragraph under b., 320, 325 third paragraph, and 326 first paragraph under b. shall not apply in respect of the acquiring company then.
Division 4 General provisions as regards demergers
Article 335
1.A demerger is a clear demerger and separation.
2.A clear demerger is the legal act whereby the assets of a legal entity that ceases to exist at the demerger are acquired under general title in accordance with the description attached to the deed of demerger, by two or more other legal entities.
3.Separation is the legal act whereby the assets, or a part thereof, of a legal entity that shall not cease to exist at the demerger are acquired under general title in accordance with the description attached to the deed of demerger, by one or more other legal entities, at least one of which in accordance with the provisions laid down in this Division or Division 5 shall allot membership rights or shares to the members or to shareholders of the demerging legal entity, or at least one of which is formed at the demerger by the demerging legal entity.
4.A party to the demerger is the demerging legal entity as also each acquiring legal entity, with the exception of legal entities that are formed at the demerger.
Article 336
1.The parties to a demerger shall have the same legal form.
2.If an acquiring legal entity is formed at the demerger, it shall have the legal form of the demerging legal entity.
3.For the purposes of this article, limited liability and private limited companies shall be regarded as legal entities having the same legal form.
4.At the demerger of an association, cooperative society, mutual insurance association or foundation, also limited liability or private limited companies may be formed, provided the demerging legal entity shall acquire all the shares thereof at the demerger.
5.A dissolved legal entity may not be a party to a demerger, if by reason of the liquidation a distribution has already been made.
6.A legal entity may not be a party to a demerger during bankruptcy or its being granted an official moratorium.
7.A demerging legal entity may be in bankruptcy or having been granted an official moratorium, provided all the acquiring legal entities be limited liability or private limited companies formed at the demerger and the demerging legal entity become the sole shareholder thereof at the demerger. If the demerging legal entity is in bankruptcy, the trustee in bankruptcy may resolve to demerge and the obligations resting on the management pursuant to this and the next Division shall rest on the trustee in bankruptcy; if the legal entity has been granted an official moratorium, the resolution to demerge shall require the approval of the administrator. Article 338 second paragraph, article 340 second paragraph section e., as far as the value of the portion of the assets that the demerging legal entity shall retain is concerned, article 341 second paragraph, article 343 first paragraph, and article 361 third paragraph, shall not apply at bankruptcy; article 338 second paragraph shall not apply on an official moratorium being granted.
Article 337
1.If all the assets of the demerging legal entity shall devolve, it shall cease to exist by the demerger taking effect.
2.The first paragraph shall not apply if at least one acquiring legal entity is a limited liability or private limited company formed at the demerger and the demerging legal entity acquires all the shares thereof at the demerger.
Article 338
1.The value of the portion of the assets of the demerging legal entity acquired by each acquiring legal entity at the time of the demerger shall be at least zero.
2.The same shall apply in respect of the equity capital that a demerging legal entity continuing in existence shall retain.
Article 339
1.The members or shareholders of the demerging legal entity through the demerger shall become a member or shareholder of all the acquiring legal entities.
2.No shares in an acquiring company shall be acquired for shares in a demerging company that are held by or for the account of such acquiring company or by or for account of the demerging company.
3.The first paragraph furthermore shall not apply insofar as:
a.all the shares in the acquiring companies are held directly or indirectly by or for the account of the demerging company and the demerging company does not cease to exist;
b.in respect of acquiring companies article 360 or article 363 is applied;
c.pursuant to the exchange ratio of the shares there shall not even be a right to one single share.
Article 340
1.The management boards of the parties to the demerger shall draw up a motion to demerge.
2.This motion shall state at least:
a.the legal form, name and registered office of the parties to the demerger and, insofar as the acquiring legal entities are formed at the demerger, of these legal entities;
b.the articles of incorporation of the acquiring legal entities and of the demerging legal entity continuing to exist, as reading and as the same shall read following the demerger or, insofar as the acquiring legal entities are formed at the demerger, the draft of the deed of incorporation;
c.whether all the assets of the demerging legal entity, or any part thereof, shall devolve;
d.a description based on which it can be determined accurately what assets of the demerging legal entity shall pass to each of the acquiring legal entities and, if not all the assets of the demerging legal entity shall devolve, what assets shall be retained by it, as also a pro-forma profit and loss account or statement of operating income andexpenditure of the acquiring legal entities and the demerging legal entity continuing to exist;
e.the value, determined according to the day to which the annual accounts or interim statement of assets and liabilities, referred to in article 341 second paragraph, of the demerging legal entity, relate/relates, and calculated with due observance of the third sentence of that provision, of the portion of the assets that each acquiring legal entity shall acquire and of the portion that the demerging legal entity continuing to exist shall retain, as also the value of the shares in the capital of the acquiring legal entities which the demerging legal entity that continues to exist shall acquire at the demerger;
f.the rights or considerations, if any, pursuant to article 349 that, to the charge of the acquiring legal entities, shall be allotted to those who otherwise than as a member or shareholder shall have special rights as against the demerging legal entity, such as rights to a profit distribution or to take shares, and the point of time as from which the allotment shall take place;
g.the benefits, if any, that shall be allotted in connection with the demerger to a managing director or supervisory director of a party to the demerger or to another party involved in the demerger;
h.the intentions as regards the composition following the demerger of the management boards of the acquiring legal entities and of the demerging legal entity that continues to exist as also, insofar as there are supervisory boards, of such boards;
i.the point of time as from which financial data concerning each portion of the assets that shall devolve shall be accounted for in the annual accounts or other financial accounting of the acquiring legal entities;
j.the measures proposed in connection with the acquisition by the members or shareholders of the demerging legal entity of the membership or shareholdership of the acquiring legal entities;
k.the intentions as regards the continuation or termination of activities;
l.the party (parties), if any, who must approve the resolution to demerge.
3.The motion to demerge shall be signed by the managing directors of each party to the demerger; should the signature or any one or more of them be lacking, this shall be noted with the reasons thereby stated.
4.If a party to the demerger is a limited liability company, the articles of which contain a provision as referred to in article 139, the motion to demerge shall be approved by the supervisory board of such company, and it shall also be signed by the supervisory directors; if the signature of any one or more of them is lacking, this shall be noted with the reasons thereby stated.
Article 341
1.The management of each party to the demerger in a written explanatory memorandum shall state the reasons for the demerger, setting forth the anticipated consequences for the activities and an explanation from a legal, economic and social point of view.
2.If the last financial year of the legal entity, for which annual accounts or other financial accounting have/has been determined, shall have elapsed for over six months prior to submission of the motion to demerge, the management shall draw up annual accounts or an interim statement of assets and liabilities. The same shall relate to the situation of the assets not earlier than on the first day of the third month prior to the month in which they are submitted. The statement of assets and liabilities shall be drawn up with due observance of the layout and valuation methods applied in the annual accounts or other financial accounting, as last determined, unless same are deviated from with good reason based on the actual value deviating considerably from the book value.
Article 342
1.Every party to the demerger shall submit to the office of the trade register:
a.the motion to demerge;
b.the last three approved annual accounts or other financial accounting of the parties to the demerger, along with the statement of experts insofar as these documents are or must be available for inspection;
c.the annual reports of the parties to the demerger, covering the last three closed years, insofar as these are or must be available for inspection;
d.interim statements of assets and liabilities or non-approved annual accounts to the extent required pursuant to article 341 second paragraph and insofar as the annual accounts of the legal entity must be available for inspection.
2.At the same time the management shall deposit the documents, including the annual accounts and annual reports that need not be available for public inspection, along with the explanatory memorandums of the management boards to the motion, at the office of the legal entity or, in the absence of an office, at the abode of a managing director. Up to the time of the demerger the documents shall remain available at the address of each acquiring legal entity and the demerged legal entity that continues to exist or, as the case may be, at the address of a managing director thereof, for another six months thereafter, for inspection by the members or shareholders, and by those having any special right as against the legal entity, such as a right to profit distribution, to take shares or to attend meetings. During this period of time they may obtain a copy thereof, free of charge.
3.The parties to the demerger shall announce in the gazette in which official notices are inserted by the Government and in a notice inserted in a newspaper published in the Netherlands Antilles, that the documents have been deposited, with statement of the public registers where they are lodged and of the address where they shall be available for inspection pursuant to the second paragraph. If the resolution to demerge must be approved in accordance with article 346 fifth paragraph, the time when the request for approval is to be dealt with shall be announced.
4.If the management boards of the parties to the demerger should amend the motion to demerge, the first up to and including the third paragraphs shall apply analogously.
5.The second paragraph shall not apply in respect of foundations.
Article 343
1.The management of each party to the demerger shall be bound to inform the general meeting and the other parties to the demerger as to any significant changes in the circumstances which became evident following the motion to demerge, and which have influenced the announcements in the motion to demerge or in the explanatory memorandum.
2.For a foundation, this obligation shall apply as against those who must approve the demerger according to the articles of incorporation.
Article 344
1.A legal relationship to which the demerging legal entity is a party may devolve only in its entirety, on pain of a declaration that an opposition as referred to in article 345 is well-founded.
2.However, if a legal relationship is connected with various assets passing to various acquiring legal entities, then it may be demerged in such a manner that it shall pass to all the acquiring legal entities concerned, proportionally to the relation of the legal relationship to the assets that each legal entity shall acquire.
3.If a legal relationship is also connected with assets that the demerging legal entity continuing to exist shall retain, the second paragraph shall apply analogously in its respect.
4.The first up to and including the third paragraphs shall leave intact the rights that the opposite party to a legal relationship may derive from article 351.
Article 345
1.Up to one month after all the parties to the demerger shall have announced the submission of the motion to demerge, any creditor or contractual opposite party of such a party, as also any party specially entitled in terms of article 349, by means of a petition addressed to the judge of first instance at the registered office of such a party may oppose a demerger as announced, on the grounds that in respect of his legal relationship the motion is in contravention of article 344 or that he will otherwise be prejudiced in his position as creditor, contractual opposite party or party specially entitled. If required, the petition shall state the security, guarantee, contract amendment, dissolution or indemnification that is being demanded.
2.Before the judge shall decide, he may give the parties to the demerger an opportunity to introduce, within a period of time set by him, an amendment as defined by him to the motion to demerge and to publish the amended motion in accordance with article 342. If the judge considers the opposition to be well-founded for another reason as brought forward, then he shall determine the security or guarantee to be provided or the indemnification to be paid by one or more of the parties involved in the demerger or a third party, or the contract amendment or dissolution to be applicable when the demerger is effected. To a contract amendment or dissolution he may attach an obligation to indemnify, to be effective as and from the date of the demerger, and resting on one or more parties.
3.The deed of demerger referred to in article 347 may not be executed until after the opposition shall have been withdrawn, the decision declaring the opposition unfounded is enforceable or, in case that for any reason other than violation of article 344 a declaration is made that the opposition is well-founded, the guarantee or security determined has been provided.
4.If the deed of demerger has already been executed, the judge on a legal remedy instituted may:
a.order that a legal relationship that devolved in contravention of article 344, be transferred in whole or in part to one or more acquiring legal entities to be designated by him or to the demerged legal entity continuing in existence, or direct that two or more of these legal entities shall be bound in several as regards compliance with the undertakings issuing from the legal relationship;
b.order the providing of a guarantee as defined by him. The judge may attach a penalty to an order as referred to above.
5.If through a transfer as stated in the fourth paragraph under a., the transferring or acquiring legal entity should suffer any loss, the other legal entity shall be bound to offset this.
Article 346
1.The resolution to demerge shall be adopted by the general meeting; in a foundation the resolution shall be adopted by the party allowed to amend the articles of incorporation or, if no other party may do so, by the management committee.The resolution may not deviate from the motion to demerge.
2.A resolution to demerge may only be adopted after one month shall have elapsed from the day on which all the parties to the demerger shall have announced the submission of the motion to demerge.
3.A resolution to demerge shall be adopted in the same manner and by the same majority as a resolution to amend the articles of incorporation. If the articles should require an approval for this, the same shall apply in respect of the resolution to demerge. If the articles should require varying majorities for the amendment of separate provisions, the resolution to demerge shall require the greatest of such majorities, and if the articles should exclude an amendment of the provisions, the votes of all the members or shareholders entitled to vote shall be required; all this unless such provisions shall remain in full force and effect following the demerger. The minutes of the meetings at which the resolution to demerge is adopted shall be drawn up by notarial deed.
4.The third paragraph shall not apply insofar as the articles provide another regulation for resolutions to demerge.
5.A resolution for the demerger of a foundation shall require the prior approval of the judge, unless exclusively foundations that are a private fund foundation, or exclusively foundations that are not a private fund foundation, are involved in the demerger and the articles of these foundations make it possible for all the provisions thereof to be amended. The judge shall refuse the request if there are wellfounded reasons to assume that the demerger is contrary to the interests of the foundation or that the interests of affiliates or third parties are disproportionately prejudiced.
Article 347
1.The demerger shall be effected by notarial deed and shall take effect as and from the day following that of the execution of the deed. The deed may be executed only within six months from the announcement of submission of the motion to demerge or, if this is not allowed in consequence of an opposition lodged, within one month from the time referred to in article 345 third paragraph.
2.At the end of the deed the notary shall declare that it has appeared to him that the procedural requirements have been observed for all the resolutions as required in this and the next Division and the articles of incorporation for the realization of the demerger, and that for the rest the rules in that regard, laid down in this and the next Division and in the articles, have been complied with. The description referred to in article 340 second paragraph under d. shall be attached to the deed.
3.Articles 4 and 5 shall apply analogously, it being understood that the required documents shall be presented to the office of the trade register of each of the parties to the demerger. On applying article 24, next to the words “formation”, “act of formation” and “balance sheet on formation” shall always be read as well: demerger, act of demerging and balance sheet on demerger.
4.The acquiring legal entities, each insofar as relating to goods that passed to them at the demerger, shall report within one month from the demerger to the managers of other public registers in which the devolution of rights or the demerger may be entered. If through the demerger, any property subject to public registration shall pass to an acquiring company, then the demerged legal entity or, if the same ceased to exist at the demerger, each of the acquiring legal entities in its stead shall be bound within this term to present to the custodian of the public registers referred to in title 1, Division 2 of Book 3, the documents required for the entry of the demerger.
Article 348
1.The party entitled in connection with a pledge or usufruct on a right of membership or on shares in the capital of the demerging legal entity shall acquire a right similar to that which the member or the shareholder shall acquire pursuant to the deed of demerger. If the demerging legal entity continues to exist following the demerger, the existing pledge or usufruct shall remain in effect in addition thereto.
2.If shares, on which there is a pledge or usufruct, are cancelled and nothing shall come in the place thereof, then the acquiring legal entities shall provide the party entitled with an equivalent replacement.
Article 349
1.Anyone who, otherwise than as a member or shareholder, has a special right as against the demerging legal entity, such as a right to a profit distribution or to take shares, shall either acquire such rights in the acquiring legal entities that these, where applicable, together with the right that he has as against the demerging legal entity that continues to exist, shall be equivalent to his right prior to the demerger, or else receive indemnification. Indemnification may not be claimed by a party who already applied for indemnification in accordance with article 345, unless the judge in such proceedings has not decided on such application.
2.In the absence of an agreement, the indemnification shall be determined by one or more independent experts, to be appointed at the request of the willing party by the judge of first instance of the domicile of the demerging legal entity according to its articles.
3.Article 348 shall apply analogously in respect of any pledge or usufruct that had been established on the special rights.
Article 350
1.If the demerged legal entity ceases to exist at the demerger, its last financial year shall have terminated at the time, from the commencement whereof the financial data concerning its assets shall be accounted for in the annual accounts or other financial accounting of the acquiring legal entities.
2.If the demerged legal entity ceases to exist at the demerger, the obligations as regards its annual accounts or other financial ccounting following the demerger shall rest on the acquiring legal entities jointly.
3.Valuation differences between the accounting of assets and liabilities in the last annual accounts or other financial accounting of the demerged legal entity and in the first annual accounts or other financial accounting in which an acquiring legal entity accounts for these assets and liabilities, shall be explained.
Article 351
1.If in consequence of the demerger, an agreement of a party to the demerger according to the standards of reasonableness and fairness should not remain in effect unaltered, the judge shall amend or dissolve the agreement on the demand of any one of the parties to the agreement. The amendment or dissolution may be given retroactive effect.
2.The right to institute the claim shall cease with the expiry of six months from the deed of demerger having been deposited at the office of the registers referred to in article 347, third paragraph. The claim shall not be capable of being instituted by a party who already in accordance with article 345 requested the amendment or dissolution of the agreement, unless the judge in such proceedings has not decided on such request.
3.If the amendment or dissolution of the agreement should result in damage being caused to the opposite party, the legal entity concerned shall be bound to compensate the same.
Article 352
1.The second up to and including the fourth paragraphs shall apply if based on the description attached to the deed of demerger, it cannot be determined as to an asset which legal entity shall be the party entitled to same following the demerger.
2.If all the assets of the demerged legal entity have devolved, then the acquiring legal entities shall be the parties jointly entitled. Each acquiring legal entity shall share in the asset proportionally to the value of the portion of the assets of the demerged legal entity acquired by it.
3.If not all the assets have devolved, then the demerged legal entity shall be the party entitled.
4.Insofar as acquiring legal entities in virtue of the second paragraph shall be liable in respect of debts, they shall be bound in several.
Article 353
1.The acquiring legal entities and the demerged legal entity continuing in existence shall be liable in respect of compliance with the undertakings of the demerged legal entity at the time of the demerger.
2.For indivisible undertakings the acquiring legal entities and the demerged legal entity continuing in existence each shall be liable for the entirety.
3.For divisible undertakings the acquiring legal entity to which the undertaking has passed or, if the undertaking has not passed to an acquiring legal entity, the demerged legal entity continuing in existence shall be liable for the entirety. The liability for divisible undertakings shall be limited for every other legal entity to the value of the assets that it acquired or retained at the demerger.
4.Legal entities other than the legal entity to which the undertaking has passed or, if the undertaking has not passed to an acquiring legal entity, then the demerged legal entity continuing in existence shall not be bound to comply until after the last-mentioned legal entity shall have failed in complying with the undertaking.
5.In respect of the liability, the stipulations concerning liability in several shall apply analogously.
Article 354
1.The judge may nullify a demerger only:
a.if the deed of demerger signed by a notary is not an authentic document;
b.owing to non-compliance with article 336 fifth or sixth paragraph, article 345 third paragraph or the first sentence of article 347 second paragraph;
c.owing to the invalidity, the ineffectiveness or any grounds for nullification of a resolution, required for the demerger, of the general meeting or, if a foundation, of the management committee;
d.by reason of non-compliance with article 346 fifth paragraph.
2.Nullification shall take place by a decision of the judge of the domicile of the demerged legal entity according to its articles, on the demand of a member, shareholder, managing director or other interested party against all the acquiring legal entities and the demerged legal entity continuing in existence. A demerger not nullified by the judge shall be valid.
3.The right to institute the claim for nullification shall cease through redress of the omission or through the expiry of six months from the deed of demerger having been deposited at the office of the registers referred to in article 347, third paragraph.
4.The demerger shall not be nullified:
a.if the omission has been redressed within a period of time to be stipulated by the judge;
b.if the consequences of the demerger already arisen are difficult to reverse.
5.If the party claiming the nullification of the demerger has suffered any damage through an omission that could have led to nullification, and the judge does not nullify the demerger, then the judge can order the acquiring legal entities and the demerged legal entity continuing in existence to compensate the damage. The legal entities shall have a recourse for this against the parties guilty of the omission and, up to the highest gain obtained, against those having been favored by the omission.
6.The nullification, through the care of the clerk of the court in which the claim was last pending, shall be entered in the registers where the demerger is required to be entered pursuant to article 347 third paragraph.
7.The demerged legal entity in addition to the acquiring legal entity concerned shall be liable in several as regards the performance of undertakings arisen to the charge of the acquiring legal entities following the demerger and before the nullification is entered in the registers.
8.The irrevocable decision to nullify a demerger shall be binding on all parties. Opposition by third parties and revocation shall not be allowed.
Division 5. Special provisions for demergers whereby a limited liability or private limited company is demerged or formed.
Article 355
This Division shall apply if a limited liability or private limited company is demerged or formed at a demerger.
Article 356
1.If shares or depositary receipts for shares of a demerging company are listed in the official list of a stock exchange, the exchange ratio may depend on the price of those shares or, as the case may be, those depositary receipts on such stock exchange at one or more points of time to be stipulated in the motion to demerge, lying before the day on which the demerger shall take effect.
2.If pursuant to the exchange ratio of the shares there shall be a right to money or debt claims, the aggregate amount thereof may not exceed one tenth part of the equity capital represented by the shares allotted.
3.With the deed of demerger an acquiring company may cancel shares in the acquiring company which such company itself holds or shall acquire pursuant to the deed of demerger, up to the asset value represented by the shares that it allots to its new shareholders.
4.Shares in the capital of the demerging company, which are held by or for the account of an acquiring legal entity or by or for the account of the demerging company, shall be cancelled if the demerging company shall cease to exist at the demerger.
Article 357
1.Next to the data stated in article 340, the motion to demerge shall contain:
a.the exchange ratio of the shares and the amount of the payments, if any, pursuant to the exchange ratio;
b.the point of time as from which and the degree to which the shareholders of the demerging company shall participate in the profit of the acquiring companies;
c.the number of shares, if any, to be cancelled under application of article 356 third paragraph;
d.a balance sheet on demerger of all the parties to the demerger that are limited liability or private limited companies and shall not cease to exist.
2.The balance sheet on demerger referred to in the first paragraph under d. shall show an equity capital that shall not be negative or, if the company concerned has a nominal capital, shall not be lower than such nominal capital. It shall relate to the assumed point of time of the demerger. The data therefor may be derived from the annual accounts or statements of assets and liabilities referred to in article 341, second paragraph. Any deviations therefrom shall be explained
Article 358
In the explanatory memorandum to the motion to demerge, the management shall announce:
a.the method or methods according to which the exchange ratio of the shares has been determined;
b.whether this method or these methods is/are fitting in the given case;
c.the valuation to which each method as applied shall lead;
d.if more methods than one have been used, whether the relative weight of the methods assumed at the valuation can be deemed to accord with generally acceptable standards; and
e.particular difficulties, if any, encountered at the valuation and at the determination of the exchange ratio.
Article 359
1.An external expert as referred to in article 121, designated by the management, shall examine the motion to demerge and shall declare whether the exchange ratio of the shares as proposed, also considering the documents attached, is reasonable in his view. He shall also draw up a report giving his opinion on the balance sheets on demerger as referred to in article 357 first paragraph under d. and the announcements referred to in article 358.
2.If two or more of the parties to the demerger are limited liability companies, then only the same person shall be designated expert if the general meetings shall have approved the resolution to the effect.
3.For all the parties to the demerger the experts shall be equally competent to carry out examinations.
4.Article 342 shall apply analogously in respect of the declaration of the expert, and the second and third paragraphs of article 342 in respect of his report.
Article 360
In the event of a clear demerger, the deed of demerger may stipulate that various shareholders of the demerging legal entity shall become shareholders of various acquiring legal entities. In such a case:
a.the motion to demerge shall state next to the data referred to in articles 340 and 357, which shareholders shall become shareholders of which acquiring legal entities;
b.the management shall state in the explanatory memorandum to the motion to demerge the criteria according to which this apportionment has been determined;
c.the expert referred to in article 359 shall also declare that the apportionment proposed, also considering the documents attached, is reasonable in his opinion; and
d.the resolution to demerge shall be adopted by the general meeting of the demerging company by a majority of three fourths of the votes cast in a meeting at which 95% of the assets represented by the shares shall be represented.
Article 361
1.Unless otherwise provided by the articles of incorporation, an acquiring company by means of a management resolution may resolve to demerge. The same shall apply in respect of the demerging company, provided all the acquiring legal entities be limited liability or private limited companies formed at the demerger and the demerging company become the sole shareholder thereof at the demerger.
2.This resolution may be adopted only if the company shall have stated the intention to the effect in the announcement that the motion to demerge has been deposited.
3.The resolution may not be adopted if one or more shareholders, jointly representing at least one tenth part of the equity capital, or such smaller amount as stipulated in the articles, shall have requested the management within one month from the announcement to convene the general meeting in order to resolve upon the demerger. Article 346 shall then apply.
Article 362
1.If all the acquiring companies are formed at the demerger and the demerging legal entity directly or indirectly shall become the sole shareholder thereof at the demerger, articles 340 fourth paragraph, and 357 up to and including 359 shall not apply.
2.If all the resolutions required for the demerger are adopted by the votes cast in favor by all the persons entitled to vote, articles 357 up to and including 359 shall not apply.
Article 363
1.The deed of demerger may provide that the shareholders of the demerging company shall become shareholders of a group company of an acquiring company. They shall not become shareholders of such acquiring company then.
2.Such a demerger shall be possible only if the group company, singly or together with another group company, holds all the shares of the acquiring company. The first up to and including the fourth paragraphs of articles 346 and 361 shall apply analogously in respect of the resolution of the group company.
3.The group company allotting the shares shall be deemed a party to the demerger next to the acquiring company. On it shall rest the obligations resting on an acquiring legal entity pursuant to articles 340 up to and including 360, with the exception of the obligations under articles 345, 346 and the second and fourth paragraphs of article 350; for the purposes of the fourth paragraph of article 359 it shall be disregarded; articles 352, 353 and the seventh paragraph of article 354 shall not apply in its respect. The second paragraph under b. of article 340, the third paragraph of article 356 and the first paragraph under b. of article 357 shall not apply for the acquiring company then.
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NATIONAL ORDINANCE TRANSITIONAL LAWS NEW CIVIL CODE
Title 2A Transitional provisions in connection with Book 2
Article 37a
Article 2, first paragraph, of Book 2 provides also for the consequences of the flaws stated there in the formation of a legal entity that took place before the entry into force of Book 2. The fourth paragraph does not apply in respect of legal entities that are dissolved in accordance with the third paragraph and that already before the entry into force of Book 2 engaged in dealings in a pretended legal form.
Article 37b
Article 8, paragraphs four up to six inclusive, of Book 2 shall apply only in respect of managing directors and other officials appointed or designated after the entry into force of Book 2.
Article 37c
The last sentence of article 9, first paragraph, of Book 2 shall not apply in respect of shareholders’ agreements entered into before the entry into force of Book 2.
Article 37d
Article 15, second paragraph, Book 2 shall apply for the first time at the expiry of the first financial year that commenced following the entry into force of Book 2.
Article 37e
Article 15, fifth paragraph of Book 2 shall apply for legal entities existing at the entry into force of Book 2 and not being private limited companies, for the first time in respect of the calendar year commencing after two years having elapsed from the entry into force of Book 2.
Article 37f
Article 16 of Book 2 shall apply only in case of the bankruptcy situation having become irrevocably operative following the entry into force of Book 2.
Article 37g
On applying article 16 of Book 2, only the improper management that took place following the entry into force of Book 2 shall be taken into consideration.
Article 37h
In respect of supervisory directors appointed or designated prior to the entry into force of Book 2, the provision of article 19, third paragraph, of Book 2 shall not apply until after two years shall have elapsed from the entry into force of Book 2.
Article 37i
Articles 20 up to and including 23 shall not apply in respect of a resolution of a body of a legal entity that was adopted prior to the entry into force of Book 2. For such a resolution the law prevailing at that time shall remain applicable.
Article 37j
Article 24, ninth paragraph, of Book 2 shall apply in respect of legal entities other than the private limited company only if the grounds for dissolution came into being following the entry into force of Book 2.
Article 37k
Articles 29 to 31, inclusive of Book 2 shall not apply to liquidations commenced prior to the entry into force of Book 2. In respect of these liquidations, the law prevailing prior to the entry into force of Book 2 shall remain applicable.
Article 37l
The provisions laid down in article 36, second paragraph, of Book 2 shall not apply in respect of legal entities already existing at the entry into force of Book 2 until after two years shall have elapsed from such point of time. Up to that point of time, the law that prevailed previously shall remain applicable in respect of these legal entities.
Article 37m
The provisions of article 51, first paragraph under a., shall not apply in respect of the private fund foundation already existing at the entry into force of Book 2, until after two years shall have elapsed from such point of time.
Article 37n
On applying article 55, first paragraph under b., only the improper management that took place following the entry into force of Book 2 shall be taken into consideration.
Article 37o
In respect of an association, cooperative society or mutual insurance association existing at the point of time of entry into force of Book 2, the articles 73, 79, 80, 81, 82, 85 and 91 of Book 2 shall not apply until after two years shall have elapsed from such point of time. Up to that point of time the law that prevailed previously shall remain applicable in respect of the legal entity concerned.
Article 37p
Articles 89 and 94 of Book 2 shall apply for the first time in respect of the first financial year commencing after the entry into force of Book 2. Up to that point of time the law that prevailed previously shall remain applicable in respect of the legal entity concerned.
Article 37q
The legal entity specified in the articles of incorporation as a cooperative society shall be deemed a cooperative society as and from the entry into force of Book 2. If at a cooperative society, that is in liquidation at the entry into force of Book 2, liability arose on the grounds of article 7, heading and in 3rd, in conjunction with article 19 of the Ordinance of February 13th 1920 to regulate cooperative societies (Official Gazette 1920, no. 9), such liability shall not terminate through the entry into force of Book 2.
Article 37r
The provisions of article 97 under d. of Book 2 shall not apply in respect of the cooperative society already existing at the entry into force of Book 2 until after two years shall have elapsed from this point of time.
Article 37s
1.Provisions in which reference is made to the concept of “authorized capital” shall be deemed not written to such extent as and from the entry into force of Book 2.
2.The term “issued capital” in the articles of incorporation of a limited liability or private limited company shall be read as “nominal capital” as and from the entry into force of Book 2. Where there is a question of unpaid capital, the provisions of Book 2 concerning the duty to pay additional calls on shares shall be applied to the extent possible.
Article 37t
Articles 116 up to and including 126 shall apply in respect of the first financial year commencing following the entry into force of Book 2. Up to such point of time the law that prevailed previously shall remain applicable in respect of the legal entity concerned.
Article 37u
On applying article 138, only the acting by a person as if he were a managing director and the contributing towards an instruction having taken place following the entry into force of Book 2 shall be considered, to the extent that at any rate the person could not be considered a managing director based on the rules that prevailed previously.
Article 37v
If based on articles 59 up to and including 62 of the National Ordinance Private Limited Company a resolution for conversion is adopted within two months prior to the entry into force of Book 2, then for the subsequent conversion and the legal consequences shall apply the rules, connected therewith, laid down in the National Ordinance Private Limited Company, provided the notarial deed of conversion is executed within four months from such resolution.
Article 37w
If an intention to merge in terms of article 63, third paragraph, of the National Ordinance Private Limited Company was stated and announced within two months prior to the entry into force of Book 2, then the rules of the National Ordinance Private Limited Company shall apply in respect of the subsequent merger and the legal consequences.
Article 37x
If based on the National Ordinance Transfer of Seat Third Countries (O.G. 1965, no. 31) a resolution to transfer the seat has been adopted prior to the entry into force of Book 2, then the rules, connected therewith, of the National Ordinance Transfer of Seat Third Countries shall apply in respect of the subsequent transfer of seat and the legal consequences, provided such resolution shall have been announced within four months from the entry into force of Book 2 by means of publication in the gazette in which official notices are inserted by the Government.
Article 37y
So long as the draft national ordinance presented to Parliament on November 19 2002, laying down a New code of Civil Procedure (Session 2002-2003-2709 (E-110)) has not become a national ordinance and entered into force, registered shares in a limited liability or private limited company shall be deemed to be in the company’s hands, regardless of whether share certificates have been issued.