Naamloze Vennootschap
The Netherlands Antilles "Naamloze Vennootschap" or "NV" is a company limited by shares. The NV can act as a public company and as a closely held private company.
Incorporation
The NV is incorporated by notarial deed executed by one or more incorporators before a civil law notary in the Netherlands Antilles. The Articles of Incorporation constitute the definitive statutes and regulations governing the company and conduct of its affairs. The incorporation can take place quickly and without many formalities; there is a free choice of language and currency for the capital; and no certificate of no objection from governmental authorities will be needed for the incorporation in itself or the contents of the Articles of Incorporation. With regard to the organization, there is a certain amount of freedom with respect to, among other things, rights of shareholders, the structure of the Board of Managing Directors, and the capital. It is also possible to exclude in the Articles of Incorporation that the company may contest the nullity of a legal act because of transgression of the objects (ultra vires) as stated in the Articles of Incorporation. If the possibility of such contestation has not been excluded in the Articles of Incorporation, the statute of limitations for annulment on account of transgression of the objects is six months after entering into the transaction.
Registration
Once incorporated, the company must be registered with the Commercial Registry of the local Chamber of Commerce and Industry. Details to be filed include the object of the company, its share capital and the identity of the managing directors and any attorneys-at-fact acting under general powers of attorney. The identity of shareholders is not disclosed.
Licences
Each company needs to have:
- a foreign exchange license;
- a license for the Managing Directors to act as such;
- a license to carry out business.
Share Capital
There is no minimum share capital for general companies. There are minimum capital requirements for finance companies issuing publicly traded debt obligations, investment institutions, insurance companies and (offshore) banks.
The value of the shares can be stated in any currency. Shares do not need to have a par value. The shareholder should pay up at least the nominal value of the shares that he has purchased (insofar the shares have a nominal value) or the consideration as determined in the deed of incorporation or the deed of issue. Contributions of capital in excess of the stated capital are treated as capital surplus.
There is no capital tax in the Netherlands Antilles.
Shares
Shares of a limited liability company can only be issued in registered form. Registered shares can be converted into bearer if such facility has been provided for in the Articles of Incorporation. If shares are in registered form a share certificate can be issued. For bearer shares share certificates must be issued.
If shares are in registered form, the managing directors are required to maintain a register of shareholders which is open for inspection by all shareholders and, if so determined in the Articles of Incorporation, by such other persons as determined in the Articles of Incorporation.
The Articles of Incorporation determine which rights can be attached to the shares of the specific company. Non-voting shares, shares with limited voting rights and shares with no or a limited right to distribution of profits are permitted.
Management
A Board consisting of one or more managing directors (directeuren) who can be individuals or corporations, manages the N.V. The board of managing directors represents the company, defines business policy and manages its affairs. There are no restrictions on the nationality of managing directors. At least one managing director must be a resident of the Netherlands Antilles (either an individual or a corporation). Please note that under circumstances such resident managing director is required to have a license to do so under the Ordinance on Supervision of Trust Business (Lv. Toezicht Trustwezen).
The Articles of Incorporation can determine that management duties are divided between a General Board and an Executive Board. In such event, the Executive Board is entrusted with the daily management of the company. The law contains some further regulations as to the assignment of tasks between the General Board and the Executive Board.
If provided for in the Articles of Incorporation a limited liability company may also have a board of supervisory directors ("Raad van Commissarissen") to oversee the management of the company and to advise and to supervise the board of managing directors. If put in place, the Board of Supervisory Directors must consist exclusively of natural persons. The NV can opt for an Independent Board of Supervisory Directors. An independent Supervisory Director cannot be dismissed by the shareholders' meeting without reason. It should be noted, however, that if there is such an Independent Board of Supervisory Directors that the requirements applicable for the "large" NV as to financial statements and the auditing and publication thereof will become applicable for that NV.
Unless the Articles of Incorporation determine otherwise, managing directors and supervisory directors are appointed by, and can be suspended or dismissed by (except for members of an Independent Board of Supervisory Directors), the General Meeting of Shareholders.
The shareholders meeting
The general meeting of shareholders of a limited liability company has the following exclusive powers:
- any amendments of the Articles of Incorporation;
- the appointment, dismissal or suspension of managing directors;
- the appointment, dismissal or suspension of supervisory directors (except for members of an Independent Board of Supervisory Directors);
- the approval of the financial statements;
- the declaration of dividends and other capital distributions;
- the dissolution of the company;
- and all other powers that not been assigned by law or in the Articles of Incorporation to another corporate body;
- to file a petition for bankruptcy.
An annual general meeting of the shareholders should be held at least once a year, usually within eight months after the end of a company's financial year. At the annual general meeting the financial statements and a report of the managing board should be submitted for approval together with such other matters as may be set out in the notice convening the meeting.
Unless the Articles of Incorporation determine otherwise, shareholders meetings must be held in the Netherlands Antilles. Attendance by proxy is permitted. Unless the Articles of Incorporation state otherwise, a simple majority of votes present and represented at meetings adopts resolutions with no quorum requirements. Written resolutions can also be adopted outside of a meeting, provided that all persons that are entitled to vote with regard to the subject, have cast their vote.
Extraordinary general meetings of shareholders may be convened from time to time to deal with matters that arise during the course of the year. Such extraordinary general meetings may also, in certain cases, be convened by the management or supervisory board at the request of shareholders controlling 10% or more of the issued voting shares.
The Financial Year
The financial year of a Netherlands Antilles company may be the calendar year or any other twelve-month period to be specified in the Articles of Incorporation.
Each year, the Board of Managing Directors has to draw up financial statements within eight months after the lapse of the financial year, which statements consist of at least a balance sheet, a profit and loss statement, and an explanatory note to these statements. The general meeting may extend this period by six months at the most, based on special circumstances not comprehensively enumerated any further.
Accounting and Financial Statement
The financial statements have to generally acceptable standards and have to give such insight that a sound opinion can be formed on the capital and the results, as well as on the solvency and the liquidity of the company, in as far as the nature of the financial statements allows this. The law does not state what rules as to financial reporting are considered generally acceptable.
The general meeting is authorized but not obliged to appoint an external expert to review the bookkeeping on a regular basis and to report to the general meeting about the financial statements drawn up by the Board of Managing Directors.
For the limited liability company, not falling under the regime of "large" limited liability company, and the private limited liability company no publication or filing requirements exist under civil law. Legal entities that are under the supervision of the Bank van de Nederlandse Antillen, such as credit institutions, insurance companies, investment institutions and administrators, should comply with separate requirements in this respect.
For limited liability companies designated as being "large" by certain statutory criteria, specific requirements apply with regard to set-up and publication of the financial statements, as well as with regard to the audit obligation. Those specific requirements are in general more stringent.
Limited liability companies are designated as "large" if they meet all of the following criteria:
- (a) the company has twenty employees or more (ask your legal advisor for details);
- (b) the value of the assets amounts to more than ANG 5 million as per the date of the balance sheet; and
- (c) the net turnover during the financial year amounts to more than ANG 10 million.
The net profits of a limited liability company are at the disposal of the shareholders who can either declare a dividend or reserve the profits. If the Articles of Incorporation so provide, interim dividends may be declared from current year profits by the shareholders meeting or the corporate body that has been appointed thereto in the Articles of Incorporation. Dividends and other capital distributions cannot be paid and made if the equity capital is or becomes negative as a result of such dividend or distribution.
If the company has a nominal share capital that capital is considered the limit.
Source: Website Curaçao International Financial Services Association (CIFA)
