FLEX BV OVERVIEW OF MOST IMPORTANT CHANGES …content.linklaters.com/pdfs/mkt/london/Corporate_alert_important... · 2 Topic Current legislation Flex BV (as per 1 October 2012)

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FLEX BV

OVERVIEW OF MOST IMPORTANT CHANGES TO LEGISLATION ON

DUTCH BVs;

CURRENT AND NEW RULES COMPARED

AND OVERVIEW TRANSITIONAL LAW

(ENTERING INTO FORCE AS PER 1 OCTOBER 2012)

This document is intended to provide an overview of the most important changes to legislation on private companies with limited liability incorporated under

the laws of the Netherlands, taking effect as per 1 October 2012, and of the applicable transitional law. It is not intended to be comprehensive, nor to provide

legal advice. Should you have any questions, please contact one of your regular contacts at Linklaters.

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Topic Current legislation Flex BV (as per 1 October 2012)

Capital

Minimum capital At least EUR 18,000 must be issued and paid up. No longer a requirement.

Authorised capital Obligatory. Optional.

States limit up to where shares can be issued without

having to amend the articles of association.

Unchanged.

At least 20% of the authorised capital must be issued. No longer a requirement.

Nominal value Must be denominated in euro (in old articles of association

it can still be denominated in Dutch guilders).

Can be denominated in a currency other than euro (only

one type of currency can be stated in the articles of

association).

Can be put in maximum two decimals. Can be put in more than two decimals (except when the

nominal value is still stated in Dutch guilders).

Capital protection rules

Obligation to pay for shares

upon issuance

Main rule: The full nominal value of each share must be

paid upon subscription.

Unchanged.

Postponement of payment:

Postponement of the obligation to pay for shares

will be allowed for three quarters of the nominal

value of the shares.

Postponement can be granted until the BV requests

for the payment to be made.

Postponement of payment:

Postponement of the entire obligation to pay for

shares will be allowed.

Postponement can be granted until the BV

requests for the payment to be made, or for a

certain period of time.

Managing directors are jointly liable for any legal acts

performed in the time before the obligation to pay for shares

Rule is cancelled.

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has been satisfied and before the paid up capital at least

equals the minimum capital.

Note: The rule that managing directors are jointly liable

for legal acts performed in the period between

incorporation of the BV and its registration with the Dutch

Trade Register will still apply.

Payment in cash A bank statement must be issued. When payment is made

in a currency other than euro, the bank statement must

include a statement on the exchange rate.

No longer a requirement.

Payment in currency other than euro: To determine if the

obligation to pay has been satisfied, the exchange rate on

the day of payment, or, if payment was made earlier than a

month before incorporation, the exchange rate on the day

of incorporation, shall be decisive.

Payment in currency other than currency of the nominal

value of shares according to articles of association: To

determine if the obligation to pay has been satisfied, the

exchange rate on the day of payment shall be decisive.

Contribution in kind Description:

A description of the contribution to be made must be

prepared by the incorporators (in case of

incorporation) or by the managing directors of the

BV to which a contribution is to be made (in case of

contribution after incorporation).

Description:

Unchanged.

Description will be valid for a period of five months. Description will be valid for a period of six

months.

A new description must be prepared if the value

of the contribution to be made has considerably

decreased since the date to which the description

pertains.

Accountant’s certificate: Required. Accountant’s certificate: No longer required. Also no

longer required when an NV is converted into a BV and

when a BV is a party to a statutory demerger in capacity

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of acquiring company.

Distributions Balance sheet test:

Distributions on shares may be made only insofar

as the amount of the BV’s equity exceeds the

aggregate of the paid and called up part of the

capital and the reserves which must be maintained

pursuant to the laws of the Netherlands or the

articles of association.

Balance sheet test and distribution test:

Balance sheet test: Distributions on shares may

be made only insofar as the amount of the BV’s

equity exceeds the aggregate of the reserves

which must be maintained pursuant to the laws of

the Netherlands or the articles of association.

Distribution test: The management board must

assess whether the BV will after the distribution

still be able to continue to pay its payable debts.

See hereinafter under ‘Authority’.

Authority:

General meeting, unless the articles of association

provide that another corporate body is authorised.

Authority:

General meeting, unless the articles of

association provide that another corporate body

is authorised.

A resolution to make a distribution on shares will

have no effect for as long as the management

board has not granted its approval thereto. The

management board shall only refuse to grant the

approval if it knows or should reasonably foresee

that the BV will after the distribution has been

made no longer be able to continue to pay its

payable debts.

Period of foreseeability: the customary period for

what a person should know or should reasonably

foresee is one year.

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Sanctions:

Nullity: If the provisions on distributions on shares

are not observed, a resolution to make a distribution

will be null and void and the beneficiary of the

relevant distribution must reimburse the distributed

amount as having been unduly paid, regardless of

whether he is in good faith or not.

Sanctions:

Liability: based on established case law: Supreme

Court 8 November 1991, NJ 1992, 174 (Nimox) and

Supreme Court 6 February 2004, JOR 2004/67

(Reinders/Didam).

Liability (the new rules are aimed at codifying the

established case law referred to in the column on

the left):

The managing directors/actual

policymakers will be jointly liable for the

deficit resulting from the distribution, with

the statutory interest accrued from the

day of the distribution, if the BV after the

distribution has been made is no longer

able to continue to pay its payable debts

and the managing directors/actual

policymakers should have known or

foreseen that at the time of the

distribution. Possibility of exculpation for

managing director/actual policymaker

who proves that he cannot be blamed for

the fact that the distribution has been

made and that he has not been negligent

in taking measures to avert the

consequences.

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The beneficiary of the distribution who is

not in good faith must reimburse the

deficit up to a maximum of the amount or

the value of the distribution received by

him, with the statutory interest accrued

from the day of the distribution. If

managing directors/actual policymakers

have paid the amount due, the

beneficiary of the distribution must make

the reimbursement to the managing

directors/actual policy makers, in

proportion.

Computation basis for the appropriation of profits:

Own shares: For the computation of distributions,

shares held by the BV in its own capital shall be

taken into account, unless the articles of association

provide otherwise.

Computation basis for the appropriation of profits:

Own shares (the reverse of the old rule): For the

computation of distributions, shares held by the

BV in its own capital shall not be taken into

account, unless the articles of association

provide otherwise.

Amount to be taken into account: For the

computation of the amount to be distributed on each

share, only the amount of the obligatory payments

on the nominal value of the shares shall be taken

into account, unless the articles of association

provide otherwise.

Amount to be taken into account: For the

computation of the amount to be distributed on

each share, only the amount of the obligatory

payments on the nominal value of the shares

shall be taken into account, unless the articles of

association provide otherwise or all shareholders

consent to deviation from this rule in respect of

each distribution. A provision in the articles of

association to deviate from the main rule shall

require the consent of all holders of shares

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whose rights the amendment of the articles of

association is detrimental to.

Entitlement to profits/reserves:

The profits shall accrue to the shareholders, unless

the articles of association provide otherwise.

Shareholders cannot be entirely excluded from

sharing in the profits.

Entitlement to profits/reserves:

The articles of association can provide that

shares of a certain class or specification shall

give no or only limited entitlement to profits and

reserves. To include such provision in the articles

of association shall require the consent of all

holders of shares whose rights the amendment of

the articles of association is detrimental to.

In respect of shares with no or only limited entitlement to

profits and reserves:

In order for a share with no entitlement to profits

and reserves at all to qualify as a share, voting

rights must be attached to it.

Pre-emptive rights upon issuance of shares:

Holders of shares with no entitlement to profits

and reserves do not have pre-emptive rights

upon issuance of shares and shareholders do not

have pre-emptive rights upon issuance of shares

with no entitlement to profits and reserves, unless

the articles of association provide otherwise.

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Share transfer restrictions, rights of first refusal

system: Holders of shares with no entitlement to

profits and reserves will as a main rule only be

offered shares with no entitlement to profits and

reserves, unless the articles of association

provide otherwise.

Compensation upon conversion, statutory merger

or statutory demerger:

Upon conversion of a BV into an NV,

each holder of shares with no entitlement

to profits who has not consented to the

resolution to convert the BV into an NV,

can file a request for compensation.

If, upon a statutory merger or statutory

demerger, the acquiring company or the

group company granting shares is not a

BV, each holder of shares with no

entitlement to profits who voted against

the proposal to effect the statutory merger

of demerger can file a request for

compensation.

Repurchase Articles of association: Articles of association must

specifically provide that shares can be repurchased.

Articles of association: Articles of association no longer

have to specifically provide that shares can be

repurchased. The articles of association can exclude or

limit the possibility to repurchase shares.

Limitation on the number of shares that can be

repurchased: A maximum of 50% of the issued capital can


repurchased: At least one share with voting rights shall

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be repurchased. be held by a person other than and other than for the

account of the BV or one of its subsidiaries.

Balance sheet test:

Repurchase of shares is only allowed insofar as the

amount of the BV’s equity, less the acquisition price,

exceeds the aggregate of the paid and called up

part of the capital and the reserves which must be

maintained pursuant to the laws of the Netherlands

or the articles of association.

The validity of the acquisition shall be decided on

the basis of the amount of equity appearing from the

last adopted balance sheet. Repurchase of shares

shall not be permitted if more than six months have

elapsed after the end of a financial year without the

annual accounts having been adopted.

Balance sheet test and distribution test:

Balance sheet test: Repurchase of shares is only

allowed insofar as the amount of the BV’s equity,

less the acquisition price, exceeds the aggregate

of the reserves which must be maintained

pursuant to the laws of the Netherlands or the


Distribution test: The management board must

assess whether the BV will after the repurchase

still be able to continue to pay its payable debts.

See hereinafter under ‘Authority’.

Authority:

The management board is authorised to adopt a

resolution to repurchase shares.

Authority:

The management board is authorised to adopt a

resolution to repurchase shares. The

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management board shall not resolve that the BV

shall repurchase shares if it knows or should

reasonably foresee that the BV will after the

repurchase no longer be able to continue to pay

its payable debts.

Period of foreseeability: the customary period for

what a person should know or should reasonably

foresee is one year.

The management board of a BV must consent to

an acquisition of shares in the capital of that BV

by a subsidiary in order for such acquisition to be

valid. The statutory rules on a repurchase of

shares shall apply to an acquisition of shares in

the capital of a BV by a subsidiary. Managing

directors of the BV will only be liable to the BV

(and not to the relevant subsidiary also) for a

deficit, if any (see hereinafter under ‘Liability’).

The repurchase must be authorised by the general

meeting (or other corporate body as designated in

the articles of association or by the general

meeting).

No longer required that the general meeting

authorises the repurchase as well. The articles of

association can provide otherwise.

Sanctions:

Nullity: A repurchase in violation of the statutory

rules shall be null and void.

Sanctions:

Nullity: A repurchase at the expense of reserves

which must be maintained pursuant to the laws of

the Netherlands or the articles of association or in

violation of an exclusion or a limitation of the

possibility to repurchase shares provided for in

the articles of association shall be null and void.

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Liability:

The managing directors will be jointly liable

to a transferor who is in good faith and who

suffers damages as a result of the nullity of

a repurchase.

Liability:

Unchanged: The managing directors will

be jointly liable to a transferor who is in

good faith and who suffers damages as a

result of the nullity of a repurchase.

The managing directors/actual

policymakers will be jointly liable for the

deficit resulting from the repurchase, with

the statutory interest accrued from the

day of the repurchase, if the BV after the

repurchase is no longer able to continue

to pay its payable debts and the

managing directors/actual policymakers

should have known or foreseen that at

the time of the repurchase. Possibility of

exculpation for managing director/actual

policymaker who proves that he cannot

be blamed for the fact that the repurchase

has been effected and that he has not

been negligent in taking measures to

avert the consequences.

The transferor of the shares who is not in

good faith must reimburse the deficit up

to a maximum of the amount or the value

of the acquisition price received by him,

with the statutory interest accrued from

the day of the repurchase. If managing

directors/actual policymakers have paid

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the amount due, the transferor of the

shares must make the reimbursement to

the managing directors/actual policy

makers, in proportion.

Reduction of issued capital Cancellation of shares:

All shares held by the BV or for which the BV holds

the depositary receipts.

All shares of a certain class, with the consent of all

holders of the relevant class of shares or provided it

has been stipulated in the articles of association

prior to the issuance of such shares that they can

be cancelled with repayment.

Cancellation of shares:

All shares held by the BV or for which the BV

holds the depositary receipts.

All shares of a certain class or specification,

provided it has been stipulated in the articles of

association prior to the issuance of such shares

that they can be cancelled with repayment.

Individual shares, with the consent of the

shareholder(s) concerned.

Limitation on the number of shares that can be cancelled:

The issued capital cannot be reduced below the required

minimum capital and at least 20% of the authorised capital

must be issued.


cancelled: At least one share with voting rights shall be

held by a person other than and other than for the

account of the BV or one of its subsidiaries.

Procedure for raising objection: A resolution to effect a

capital reduction must be deposited at the Dutch Trade

Register and the deposit must be announced in a nationally

distributed newspaper. During two months after the

announcement, each creditor of the BV can raise objection

to the resolution to effect the capital reduction. A resolution

to effect a capital reduction will only take effect if no

objection was raised or, if objection was raised timely, if

such objection was withdrawn or the termination of the

objection is enforceable.

Procedure for raising objection no longer exists. Instead,

the rules on management board approval, the rules on

the balance sheet test and the distribution test and the

rules on liability, as are applicable to distributions on

shares, also apply to capital reduction with repayment.

See under ‘Distributions’, under ‘Balance sheet test and

distribution test’, under ‘Authority’ and under ‘Sanctions’,

‘Liability’. The provisions on the balance sheet test, as

applicable in respect of distributions on shares, also

apply to a capital reduction with discharge from the

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obligation to pay for shares.

Transitional law: If a resolution to reduce a BV’s issued

capital was adopted before the new rules entered into

force, the old rules will remain applicable to such capital

reduction (regardless whether the resolution was already

deposited at the Dutch Trade Register at the time the

new rules entered into force).

Nachgründung Certain formalities (approval general meeting, description of

property to be acquired, accountant’s certificate) must be

met in case of acquisition of property by a BV within two

years after registration of that BV with the Dutch Trade

Register, in case the relevant property belonged to an

incorporator or shareholder of the BV a year before

incorporation of the BV or after that.

Rule is cancelled.

Note: The general rules that apply to acting by the

management board and management board liability,

such as the rules on proper fulfilment of duties and ‘actio

pauliana’, remain applicable.

Financial assistance It is prohibited to provide financial assistance by

giving security or guaranteeing the price with a view

to a subscription for or an acquisition of shares by

third parties.

Rule is cancelled.

Note: The general rules that apply to acting by the

management board and management board liability,

such as the rules on proper fulfilment of duties and

conflict of interest, remain applicable.

Loans with a view to a subscription for or an

acquisition of shares by third parties may only be

granted up to an amount of the freely distributable

reserves, provided the articles of association allow

for such loans to be granted.

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Share transfer restrictions,

shareholder obligations

Share transfer restrictions Transferability: It is prohibited to freely transfer shares. The

articles of association must provide for share transfer

restrictions for any transfer of shares (can be a prior

approval system, a rights of first refusal system of a

combination of both). One exception to this rule is the

possibility to freely transfer shares to a certain - limited -

group of persons as defined by law (see hereinafter under

‘Group of persons to which shares can be freely

transferred´).

Transferability: The prohibition to freely transfer shares

no longer exists. Options in respect of share transfer

restrictions:

Applicability of the statutory rights of first refusal

system, and applicability of the statutory

provisions on price determination (this will apply if

the articles of association do not provide

otherwise).

Exclusion of transferability for a certain period of

time. To introduce such provision in the articles of

association will require the consent of all holders

of shares to which the exclusion of transferability

shall apply.

Another system to restrict the transferability of

shares than referred to above, possibly with

provisions on price determination that deviate

from the statutory provisions.

Free transferability.

Court declaring the share transfer restrictions

inapplicable: In case of executor attachment, bankruptcy,

statutory debt restructuring scheme for an individual,

issuance of a bequest, allocation from a community of

property or a right of pledge, the court can declare the

statutory rights of first refusal system or the provisions in

the articles of association in relation to transferability of

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shares wholly or partly inapplicable. The court will only

grant a request thereto if the interests of the applicant

require so particularly and the interests of other parties

will not be affected disproportionately.

Determination of price: A shareholder who so wishes is

entitled to receive a price, equal to the value of his share(s),

set by one or more independent experts.

Determination of price: The statutory price determination

system remains unchanged. The share transfer

restrictions included in the articles of association can

provide for another system to determine the price, but

such provision in the articles of association cannot be

imposed on a shareholder against his will.

Group of persons to which shares can be freely transferred:

Statutory provision providing that shares can be freely

transferred to a certain - limited - group of persons (spouse

or registered partner, relations by blood or affinity in the

ascending or descending line without limitation and in the

collateral line to the second degree, a co-shareholder and

the BV itself).

Group of persons to which shares can be freely

transferred: This provision is cancelled. It will be possible

to define a group of persons to which shares can be

freely transferred in the articles of association (no

statutory limitations applicable anymore).

Transitional law: If a transfer of shares will be effected

after the new rules have entered into force, such shares

can still be freely transferred to the group of persons to

which shares could be freely transferred under the old

rules, provided the shares were offered for transfer

before the new rules entered into force.

Obligations Obligations, other than the obligation to pay the nominal

value for a share, can not be imposed on a shareholder

against his will, not even by amendment of the articles of

association.

The articles of association can, with respect to all shares

or shares of a certain class or specification, provide that

undertakings under the law of obligations, towards the

BV or third parties or between shareholders, are

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attached to being a shareholder.

Such obligations, as well as an obligation to meet certain

qualification criteria or an obligation to offer and transfer

shares, cannot be imposed on a shareholder against his

will.

Binding force in respect of new shareholder:

A new shareholder shall as a main rule be bound

to an obligation as laid down in the articles of

association.

However: if a transfer of shares by a shareholder

who is not bound by the relevant obligation is

impossible or extremely difficult, the relevant

shareholder can request that the BV shall

designate interested parties to whom he can

transfer all his shares pursuant to a provision laid

down in the articles of association. If the BV has

not designated such interested parties within a

certain period of time, the shareholder can

transfer his shares to another party and in such

case that other party will also not be bound to the

obligation.

Entering into force of or exemption from obligation: The

articles of association can determine that the entering

into force of a provision imposing an obligation on (a)

shareholder(s) shall depend on the adoption of a

resolution by a corporate body designated thereto in the

articles of association and that a corporate body

designated thereto in the articles of association can grant

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an exemption from such obligation.

Determination of the price in case of an obligation to offer

and transfer shares: A shareholder who so wishes is

entitled to receive a price, equal to the value of his share(s),

set by one or more independent experts.

Determination of the price in case of an obligation to offer

and transfer shares: The statutory price determination

system remains unchanged. The share transfer

restrictions included in the articles of association can

provide for another system to determine the price, but

such provision in the articles of association cannot be

imposed on a shareholder against his will.

Voting rights and depositary

receipts

‘Flexible’ voting rights Main rule: Each shareholder shall have at least one vote,

and the number of votes that a shareholder is entitled to

cast shall be proportionate to his entitlement to the issued

share capital.

Unchanged.

Deviation from the main rule, such as a system of

degressive voting rights or a system of absolute limited

voting rights are in principle - to a limited extent - allowed.

It is possible to include a provision in the articles

of association that deviates from the main rule.

Such rule will then apply to every resolution to be

adopted by the general meeting; it is not possible

to differentiate voting rights for different types of

resolutions.

A resolution to amend the articles of association

as a result of which the voting rights will be

amended can only be adopted by unanimous

vote in a meeting where the entire issued capital

of the BV is represented.

Non-voting shares Not applicable. The articles of association can, in respect of all shares of

a certain class or specification, provide that no voting

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rights in the general meeting are attached to them. Such

provision in the articles of association can only be

included with the consent of all holders of shares of the

relevant class or specification or if it has been stipulated

in the articles of association prior to the issuance of the

relevant shares that no voting rights will be attached to

them.

Note: Holders of non-voting shares do have meeting

rights. In addition, non-voting shares must have (at least

some) entitlement to profits and reserves in order to

qualify as a share.

In the articles of association and in the shareholders’

register of the BV, shares to which no voting rights are

attached shall be referred to as ‘non-voting shares’.

Non-voting shares shall not be taken into account when

determining to what extent shareholders vote, are

present or represented, or to what extent the share

capital is provided or represented. The laws of the

Netherlands state some exemptions to this main rule.

Pre-emptive rights upon issuance of shares: Holders of

non-voting shares do not have pre-emptive rights upon

issuance of shares and shareholders do not have pre-

emptive rights upon issuance of non-voting shares,

unless the articles of association provide otherwise.

Share transfer restrictions, rights of first refusal system:

Holders of non-voting shares will as a main rule only be

offered non-voting shares, unless the articles of

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association provide otherwise.

Compensation upon conversion, statutory merger or

statutory demerger:

Upon conversion of a BV into an NV, each holder

of non-voting shares who has not consented to

the resolution to convert the BV into an NV, can

file a request for compensation.

If, upon a statutory merger or statutory demerger,

the acquiring company or the group company

granting shares is not a BV, each holder of non-

voting shares can file a request for

compensation.

Depositary receipts and

meeting rights

Distinction is made between depositary receipts issued with

a BV’s cooperation and depositary receipts issued without a

BV’s cooperation.

The distinction between depositary receipts issued with a

BV’s cooperation and depositary receipts issued without

a BV’s cooperation no longer exists. Instead, distinction

will be made between depositary receipts to which

‘meeting rights’ are attached and to which ‘meeting rights’

are not attached.

Statutory definition of ‘meeting rights’: The right to, either

in person or by written proxy, attend the general meeting

and to speak therein.

It can be unclear whether a depositary receipt was issued

with a BV’s cooperation. It is relevant to know whether a

depositary receipt was issued with a BV’s cooperation as

certain rights, such as meeting rights and the right to

receive certain information, accrue to holders of depositary

receipts issued with a BV’s cooperation.

The uncertainty whether a depositary receipt was issued

with a BV’s cooperation or not no longer exists: meeting

rights can only be attached to depositary receipts if the

articles of association provide for that.

The rights accruing to holders of depositary receipts to

which the meeting rights are attached are equal to the

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rights that under the old rules accrued to holders of

depositary receipts issued with a BV’s cooperation.

Provisions in the articles of association, two options:

The articles of association provide that meeting

rights are attached to depositary receipts. A

provision in the articles of association that

meeting rights are attached to depositary receipts

can only be amended with the consent of the

holders of depositary receipts concerned, unless

the authority to amend the relevant provision was

expressly stipulated in the articles of association

at the time the meeting rights were granted.

The articles of association provide that the

decision to grant and take away meeting rights

shall be made by a corporate body, designated

thereto in the articles of association.

Acknowledgement/serving of deed of transfer: The

meeting rights can only be exercised by a holder of

depositary receipts after the BV has acknowledged the

transfer of the relevant depositary receipts or after the

deed of transfer of the relevant depositary receipts has

been served upon it.

Shareholders’ register: The data of the holders of

depositary receipts to which the meeting rights are

attached must be entered into the shareholders’ register.

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Transitional law:

The BV must as soon as possible, but ultimately

within one year after the new rules have entered

into force have recorded the holders of

depositary receipts that were issued with the BV’s

cooperation in its shareholders’ register, stating

that they are holders of depositary receipts to

which the meeting rights are attached. Until this

has been done, notice of general meetings must

be given to the relevant holders of depositary

receipts in accordance with the old rules, see

under ‘General Meeting’, under ‘Convocation’,

‘Form of convocation’.

With the first amendment of the articles of

association following the entering into force of the

new rules, a provision should be included in the

articles of association to the effect that meeting

rights are attached to depositary receipts that

were issued with the BV’s cooperation prior to the

entering into force of the new rules.

General Meeting

Annual Meeting During each financial year at least one general meeting

shall be held, within six months after the end of the financial

year.

During each financial year at least one general meeting

shall be held or at least one resolution shall be adopted

without holding a meeting.

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Annual accounts and release from liability:

In practice is it assumed that the annual accounts will be

adopted by a resolution adopted in the annual general

meeting. Adoption of the annual accounts will not

automatically result in release from liability being granted, a

separate resolution is required thereto.

Annual accounts and release from liability:

The annual accounts can be adopted by a

resolution adopted in a general meeting or by a

written resolution, adopted without holding a

meeting. Adoption of the annual accounts will not

automatically result in release from liability being

granted, a separate resolution is required thereto.

If all shareholders of a BV are also managing

directors of that same BV, signing of the annual

accounts by all managing directors and

supervisory directors shall also be considered as

adoption of the annual accounts (provided all

other persons with meeting rights have been

given the opportunity to consider the prepared

annual accounts and have consented to this way

of adoption), and shall result in a release of the

managing directors from liability for the

management pursued and a release of the

supervisory directors from liability for their

supervision.

Note: All managing directors and all supervisory

directors must sign. The rule that if the signature

of one or more of them is missing this shall be

stated and reasons for this omission shall be

given, does not apply in this case.

Convocation Authorisation to convene a meeting: Shareholders, alone or

jointly representing in the aggregate at least one-tenth of

the issued capital, may request the court to be authorised to

Authorisation to convene a meeting: Shareholders, alone

or jointly representing in the aggregate at least one-

hundredth of the issued capital, may request the court to

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convene a general meeting. The request to the court must

be preceded by a request to the management board and

the supervisory board, who subsequently did not see to it

that a general meeting could be held within six weeks after

the request was made.

be authorised to convene a general meeting. The request

to the court must be preceded by a request to the

management board and the supervisory board, who

should then see to it that a general meeting can be held

within four weeks after the request was made, unless

important interests of the BV dictate otherwise.

Form of convocation:

A notice convening the meeting shall be sent to the

addresses of the shareholders shown in the BV’s

shareholders’ register.

In respect of holders of depositary receipts issued

with the BV’s cooperation, notice must be given in a

nationally distributed newspaper, unless the articles

of association provide otherwise.

Form of convocation:

A notice convening the meeting shall be sent to the

addresses of the shareholders and the other persons

with meeting rights (pledgees, usufructuaries and holders

of depositary receipts, to which the meeting rights

accrue) shown in the BV’s shareholders’ register.

Content convocation not complete: Valid resolutions of the

general meeting in respect of items that were not included

in the convocation with due observance of the convocation

period may only be adopted by unanimous vote in a

meeting where the entire issued capital of the BV is

represented.

Content convocation not complete: Valid resolutions of

the general meeting in respect of items that were not

included in the convocation with due observance of the

convocation period may only be adopted if all persons

with meeting rights have consented to the decision-

making taking place and the managing directors and the

supervisory directors have been given the opportunity to

give advice prior to the decision-making.

Convocation period Minimum period for convening a general meeting is fifteen

days prior to the day of the meeting.

Minimum period for convening a general meeting is

shortened to eight days prior to the day of the meeting.

Transitional law: The new statutory convocation period

applies to all meetings held from the moment the new

rules enter into force.

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24


Note: If the articles of association state the convocation

period in days, the period stated in the articles of

association should be observed.

If the convocation period was not observed or if no notice

convening the meeting was sent at all, valid resolutions of

the general meeting may only be adopted by unanimous

vote in a meeting where the entire issued capital of the BV

is represented.

If the convocation period was not observed or if no notice

convening the meeting was sent at all, valid resolutions

of the general meeting may only be adopted if all

persons with meeting rights have consented to the

decision-making taking place and the managing directors

and the supervisory directors have been given the

opportunity to give advice prior to the decision-making.

Place general meeting General meetings are held in the Netherlands, in the place

stated in the articles of association or, if the articles of

association do not state anything, in the municipality in

which, according to the articles of association, the BV has

its official seat.

General meetings are held in the place stated in the

articles of association or, if the articles of association do

not state anything, in the municipality in which, according

to the articles of association, the BV has its official seat.

The place stated in the articles of association can also be

a place outside the Netherlands.

In a general meeting held elsewhere valid resolutions may

only be adopted if the entire issued capital of the BV is

represented.

In a general meeting held elsewhere valid resolutions

may be adopted, provided that all persons with meeting

rights have consented to the place of the meeting and

the managing directors and the supervisory directors

have been given the opportunity to give advice prior to

the decision-making.

A resolution to amend the articles of association, such

that a provision shall be included that general meetings

can be held in a place outside the Netherlands, may only

be adopted by unanimous vote in a meeting where the

entire issued capital of the BV is represented and

provided all persons with meeting rights have consented

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25


to the amendment of the articles of association.

Adoption of resolutions

without holding a meeting

Only possible if the articles of association expressly allow

for resolutions to be adopted without holding a meeting.

It is no longer required that the articles of association

expressly allow for resolutions to be adopted without

holding a meeting.

Not allowed if in respect of the BV there are persons to

whom the rights conferred by the laws of the Netherlands

upon holders of depositary receipts issued with a BV’s

cooperation accrue.

Adoption of resolutions without holding a meeting is also

allowed if there are persons with meeting rights, other

than just the shareholders, provided with due observance

of the statutory requirements.

Shareholders may adopt resolutions of the general meeting

without holding a meeting, provided they are adopted by

unanimous vote of all shareholders entitled to vote. The

votes must be cast in writing.

In order for a resolution of the general meeting adopted

other than in a meeting to be valid, it is required that all

persons with meeting rights have consented to this

manner to adopt a resolution and that the managing

directors and the supervisory directors have been given

the opportunity to give advice prior to the decision-

making. If these requirements are met, the resolution can

be adopted by the majority required pursuant to the laws

of the Netherlands or the articles of association, so

unanimity is not always required. The votes must be cast

in writing.

Amendment of articles of

association

Detrimental to rights: A resolution to amend the articles of

association that is specifically detrimental to any right of

holders of shares of a certain class or specification

requires a resolution of the relevant group of

shareholders granting approval for such amendment,

unless the authority to amend the relevant provision was

expressly stipulated in the relevant provision in the

articles of association at the time the relevant right was

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26


granted.

This applies without prejudice to any other requirement

to obtain consent for such amendment pursuant to the

laws of the Netherlands.

Unanimous votes required, entire issued capital

represented:

Resolution to amend the articles of association,

such that a provision shall be included that

general meetings can be held in a place outside

the Netherlands.

Resolution to amend the articles of association

as a result of which the provisions on voting

rights will be amended.



managing directors/supervisory directors can be

appointed by a meeting of holders of shares of a

specific class or specification, instead of by the

general meeting.



supervisory board directors can be pointed by a

third party.

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27


Consent required of shareholders/holders of depositary

receipts concerned:

Including provision in articles of association on

exclusion of transferability of shares for a certain

period of time.

Including provision in articles of association

entailing that discharge from the obligation to pay

for shares or repayment on shares upon a capital

reduction can occur only with respect to shares of

a certain class or specification and not only in

respect of all shares (consent is not required if

such provision was already included in the

articles of association before issuance of the

shares of the relevant class or specification).

Including provision in articles of association that

deviates from the main rule that for the

computation of the amount to be distributed on

each share, only the amount of the obligatory

payments on the nominal value of the shares

shall be taken into account.


shares of a certain class or specification shall

give no or only limited entitlement to profits and

reserves.

Amendment of provision in the articles of

association that meeting rights are attached to

depositary receipts (consent is not required if the

authority to amend the relevant provision was

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28


expressly stipulated in the articles of association

at the time the meeting rights were granted). The

same applies to amendment of provisions on

meeting rights accruing to pledgors and

usufructuaries.


no voting rights in the general meeting are

attached to all shares of a certain class or

specification (no consent required if it has been

stipulated in the articles of association prior to the

issuance of the relevant shares that no voting

rights will be attached to them).

Shareholders not bound against their will:

Including provision in articles of association that,

with respect to all shares or shares of a certain

class or specification, undertakings under the law

of obligations, towards the BV or third parties or

between shareholders, are attached to being a

shareholder.


deviates from statutory price determination

system.

Management Board

Instruction right The articles of association may provide that the

management board must comply with instructions regarding

the general lines of the policy fields as further specified in

the articles of association, to be given by another corporate

The articles of association may provide that the

management board must act in accordance with specific

instructions of another corporate body. The management

board must comply with the instructions, unless they are

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29


body. not in accordance with the interests of the BV and the

business connected with it.

Appointment Authority: Managing directors are appointed by the general

meeting.

Authority: As a main rule, managing directors are

appointed by the general meeting. It is however possible

to provide that managing directors are appointed by a

meeting of holders of shares of a specific class or

specification, provided that each shareholder entitled to

vote can take part in the decision-making with respect to

the appointment of at least one managing director. A

resolution to amend the articles of association as a result

of which a provision as referred to in the previous full

sentence will be included in the articles of association

can only be adopted by unanimous vote in a meeting

where the entire issued capital of the BV is represented.

Note: This does not apply to a company to which the ‘full

large company regime’ applies: for such companies the

managing directors are appointed by the supervisory board.



managing directors are appointed by the supervisory

board.

Binding nomination A binding nomination must consist of at least two

candidates for each vacancy.

The requirement that a binding nomination must consist

of at least two candidates for each vacancy, is cancelled.

If a nomination comprises of one candidate for the

vacancy, a resolution on the nomination will result in the

relevant person being appointed, unless it has been

resolved that the nomination shall not be binding.

Suspension and dismissal A managing director can always be suspended or

dismissed by the person authorised to appoint the relevant

managing director.

A managing director can always be suspended or

dismissed by the corporate body authorised to appoint

the relevant managing director. The articles of

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30


association can provide that a managing director can

also be dismissed by another corporate body.



managing directors are suspended and dismissed by the

supervisory board.



managing directors are suspended and dismissed by the

supervisory board.

Vacancy or inability to act The articles of association must include a provision for the

situation where a seat on the management board is vacant

or managing directors is/are unable to perform his/their

duties.

The articles of association must include a provision for

the situation where a seat on the management board is

vacant or one or more managing directors is/are unable

to perform his/their duties.

The articles of association can further specify when a

managing director is deemed unable to perform his

duties.

Supervisory Board

Appointment Authority: Supervisory directors are appointed by the

general meeting.

Authority: As a main rule, supervisory directors are

appointed by the general meeting. It is however possible

to provide that supervisory directors are appointed by a

meeting of holders of shares of a specific class or

specification, provided that each shareholder entitled to

vote can take part in the decision-making with respect to

the appointment of at least one supervisory director. A

resolution to amend the articles of association as a result

of which a provision as referred to in the previous full

sentence will be included in the articles of association

can only be adopted by unanimous vote in a meeting

where the entire issued capital of the BV is represented.

Note: Specific rules apply to companies to which the ‘large Note: Specific rules apply to companies to which the

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31


company regime’ applies. ‘large company regime’ applies.

Binding nomination A binding nomination must consist of at least two

candidates for each vacancy.

The requirement that a binding nomination must consist

of at least two candidates for each vacancy, is cancelled.

If a nomination comprises of one candidate for the

vacancy, a resolution on the nomination will result in the

relevant person being appointed, unless it has been

resolved that the nomination shall not be binding.

Suspension and dismissal A supervisory director can always be suspended or

dismissed by the person authorised to appoint the relevant

supervisory director.

A supervisory director can always be suspended or

dismissed by the person authorised to appoint the

relevant supervisory director. The articles of association

can provide that a supervisory director can also be

dismissed by the general meeting.

Note: Specific rules apply to companies to which the ‘large

company regime’ applies.

Note: Specific rules apply to companies to which the

‘large company regime’ applies.

Vacancy or inability to act The articles of association must include a provision for

the situation where a seat on the supervisory board is

vacant or one or more supervisory directors is/are unable

to perform his/their duties.

The articles of association can further specify when a

supervisory director is deemed unable to perform his

duties.

Transitional law: With the first amendment of the

articles of association following the entering into force of

the new rules, a provision on vacancy or inability to act

for supervisory directors should be included in the


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32

Transitional law

General rules

Main rule: Immediate effect.

In respect of existing rights the new rules will not have retroactive effect, no new rights will be created as a result of the new rules entering into force.

Reference to old statutory rules/repetition of the wording of old statutory rules in articles of association: Reference in the articles of association to a statutory

rule or repetition of the wording of a statutory rule that is no longer effective upon the new statutory rules entering into force, will be deemed to be a

reference to the new statutory rule or repetition of the wording of the new statutory rule, unless that would not be in accordance with the purpose of the

relevant provision in the articles of association.

As a result, various provisions in the articles of association will need interpretation, and in order to do so the literal wording of the provision will be given

great weight. Meaning will be given to the fact that reference to or repetition of the wording of a statutory rule is often only included to enhance the user-

friendliness of the articles of association. But it may have been the intention of parties to keep the ‘old’ rule included regardless of what the new rules say. In

legal literature the general view seems to be that reference to or repetition of statutory provisions on capital protection will hardly ever have been included to

have a meaning other than enhancing user-friendliness of the articles of association. This is different for provisions on authority of corporate bodies. It can

be concluded that it is recommendable to amend the articles of association after the new rules have entered into force, in order to enhance legal certainty.

Pending legal proceedings: The new rules will as a main rule not affect the authority of the court, the nature of the proceedings and the available legal

remedies.

Validity of legal acts performed under the old rules:

Valid and inviolable under the old rules:

A legal act that was valid and inviolable under the old rules will remain the same under the new rules, even if the relevant legal act would be null and

void or voidable under the new rules.

Voidable under the old rules:

A legal act that was voidable under the old rules will become valid and inviolable under the new rules if the legal act would be valid and

inviolable under these new rules.

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33

Transitional law

A legal act that was voidable under the old rules and would be null and void under the new rules, will become null and void with retroactive

effect.

Null and void under the old rules:

A legal act that was null and void under the old rules and would be valid and inviolable under the new rules will with retroactive effect become

valid and inviolable under these new rules, provided the interested parties will have considered the legal act valid before the new rules

entered into force.

A legal act that was null and void under the old rules and would be voidable under the new rules, will become valid under the new rules

provided the interested parties will have considered the legal act valid before the new rules entered into force, but the relevant legal act will

then be voidable.

Prescription of possibility to invoke the nullity of a legal act: If under the new rules a person would be entitled to invoke the nullity of a legal act and a similar

ground for nullity could be invoked under the old rules, a prescription term of three years will apply, starting after the moment on which under the old rules

the nullity could be invoked.

Damages: As a main rule the old rules will apply if damages were incurred before the new rules entered into force. If it is unclear when the damages were

incurred it will be decisive if the damages were known before or after the new rules entered into force.

Transitional rules on specific topics

Capital reduction: If a resolution to reduce a BV’s issued capital was adopted before the new rules entered into force, the old rules will remain

applicable to such capital reduction (regardless whether the resolution was already deposited at the Dutch Trade Register at the time the new rules

entered into force).

Share transfer restrictions, group of persons to which shares can be freely transferred: If a transfer of shares will be effected after the new rules have

entered into force, such shares can still be freely transferred to the group of persons to which shares could be freely transferred under the old rules,

provided the shares were offered for transfer before the new rules entered into force.

Depositary receipts with meeting rights:

The BV must as soon as possible, but ultimately within one year after the new rules have entered into force have recorded the holders of

depositary receipts that were issued with the BV’s cooperation in its shareholders’ register, stating that they are holders of depositary receipts

to which the meeting rights are attached. Until this has been done, notice of general meetings must be given to the relevant holders of

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34

Transitional law

depositary receipts in accordance with the old rules, see under ‘General Meeting’, under ‘Convocation’, ‘Form of convocation’.

With the first amendment of the articles of association following the entering into force of the new rules, a provision should be included in the

articles of association to the effect that meeting rights are attached to depositary receipts that were issued with the BV’s cooperation prior to

the entering into force of the new rules.

Convocation period general meeting: The new statutory convocation period applies to all meetings held from the moment the new rules enter into

force.

Note: If the articles of association state the convocation period in days, the period stated in the articles of association should be observed.

Vacancy or inability to act provisions for supervisory directors: With the first amendment of the articles of association following the entering into force

of the new rules, a provision on vacancy or inability to act for supervisory directors should be included in the articles of association.

Liability statement and contribution in kind: The statutory provisions on withdrawal of a liability statement and termination of residual liability will

remain applicable in respect of liability statements that were deposited at the Dutch Trade Register in connection with an exemption of the obligation

to prepare a description and to have an accountant’s certificate issued in respect of a contribution in kind at or after incorporation of a BV.

Documents

FLEX BV OVERVIEW OF MOST IMPORTANT CHANGES …content.linklaters.com/pdfs/mkt/london/Corporate_alert_important... · 2 Topic Current legislation Flex BV (as per 1 October 2012)