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Can shares be issued in consideration for the contribution of assets or services (present or future)? Are any formalities required if shares are issued for non-cash consideration?

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Structures: The Netherlands: International Joint Ventures

 

Resource type: Country Q&A

 

Status: Law stated as at 01-May-2011

 

Jurisdiction: The Netherlands

International joint venture structures. Country Q&A (The Netherlands).

Clifford Chance LLP

Contents

 

What are the most common legal structures for joint ventures?

 

A joint venture can either be set up as a corporate entity including, but not limited to, a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid (B.V.)), or as a contractual business form without legal personality and (in principle) without limited liability, such as a general partnership (vennootschap onder firma) or a limited partnership (commanditaire vennootschap).

 

In recent years, the co-operative (coöperatie (Co-operative)) has become more popular as a joint venture vehicle because of its flexibility and the available option to exclude the liability of its members (the Co-operative U.A.).

 

On 31 May 2007, a new legislative proposal was sent to parliament in respect of a complete revision of the provisions of the Dutch Civil Code relating to the B.V. The changes proposed should make the B.V. a more attractive legal entity and provide significantly more flexibility as to structuring the B.V. to the shareholders' needs. At the moment it is unclear when the proposal will be discussed in parliament; such discussion has been postponed due to various political and other reasons. As the exact scope and consequences of this new law are therefore uncertain, this proposal will not be dealt with below.

 

Are there different forms of corporate entity? If so, which form is most likely to be used for a joint venture?

There are two types of corporate entities that are typically used as joint venture companies:

 

 

The B.V.

 

 

The Co-operative.

 

The B.V. is the most frequently used corporate entity for a joint venture. One of the reasons for this is that the shares in the B.V. cannot be freely transferred. The law prescribes that for such a transfer either:

 

 

Prior approval of a corporate body (for example the general meeting of shareholders or the executive board) of the B.V. is required.

 

 

The shares should first be offered to the other shareholders.

 

Another reason for the use of the B.V. is that, like an English limited company, it is a well-known form of corporate entity.

 

Are there any minimum/maximum capital requirements?

 

The minimum authorised, issued and placed share capital of a B.V. should at least amount to EUR18,000 (as at 1 May 2011, US$1 was about EUR0.68). There is no maximum capital requirement.

 

In relation to a Co-operative, no minimum and/or maximum capital requirements apply. It is possible to structure a Co-operative in such a way that the membership rights have similar features as shares in a B.V.

 

Can shares be issued in consideration for the contribution of assets or services (present or future)? Are any formalities required if shares are issued for non-cash consideration?

In respect of a B.V., shares can be issued in consideration for assets as long as the following formalities are followed:

 

 

The executive board of the B.V. describes the assets that are being contributed, including their value and the valuation methods applied.

 

 

The general meeting of shareholders of the B.V. has adopted a resolution granting its prior approval of the contribution (unless the articles of association stipulate that the executive board has the authority to perform the legal acts in relation to the contribution).

 

 

An auditor issues a statement that the value of the assets being contributed is at least equal to the nominal value of the shares issued in consideration for the assets.

 

 

The statement of the auditor together with the description is deposited, within eight days of the issue of the shares, with the chamber of commerce.

 

Exceptions to the above are available in certain (limited) circumstances. Shares in a B.V. may not be issued in consideration for the provision of services.

 

A Co-operative does not, by law, have share capital in the same way as a B.V. Instead, the participants in a Co-operative are members with membership rights, and the assets of a Co-operative are formed through the contributions of its members.

 

Unlike for the B.V., there are no capital maintenance provisions applicable to the Co-operative.

 

It is possible to structure the membership rights in a Co-operative in such a way that they have similar features to shares of a B.V. The articles of association may stipulate that there is an obligation on members to make contributions to the equity of the Co-operative once they become members. Whether or not this participation can be in the form of assets depends on whether the articles of association of the Co-operative allow for this.

 


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