CHANGE OF CORPORATION FORM OF A NETHERLANDS ANTILLES COMPANY
Specific formalities apply
On March 1, 2004, Book 2 Netherlands Antilles Civil Code (“NACC”) came into effect. Articles 303 through 305 NACC provide for a system of change of corporation form, and replaces the system of transfer of registered office. Under the system of change of corporation form, a company changes its current Netherlands Antilles corporation form into an equivalent corporation form (for instance, a BVI Ltd).
In short, the system of change of corporation form operates as follows. In order to change the corporation form, a resolution of the general meeting of shareholders is required, proposed by all the members of the board of managing directors. This resolution should be recorded in a deed passed before a Netherlands Antilles civil law notary. To this deed, the following should be attached:
(a) a document, issued by a person or institution authorized under the laws of the jurisdiction of the new corporation form, to conclude a deed of incorporation, with the rules and regulations that will govern the company;
(b) a declaration that, once all formalities [for incorporating a company] have been complied with, the formality referred to under (a) will be complied with too. This declaration should be issued by the person who issued the document referred to under (a), or an expert in the field of the laws governing the foreign corporation form; and
(c) a declaration issued and signed by (i) all members of the board of managing directors who were at the time it was resolved to change the form of the corporation responsible for administering the company and (ii) all shareholders of the company entitled to vote who did not vote against the proposal to change the corporation form, in which declaration the signees declare to assume joint and several liability (‘hoofdelijke aansprakelijkheid’) for all debts of the company at the time the changing of the corporation form is inviolable (‘onaantastbaar’); except in case of bad faith this liability lapse after three months after that time but in any case after one year after the date the company started to exist in its new corporate form.
The Netherlands Antilles civil law notary is required to deregister the company at the Chamber of Commerce in the Netherlands Antilles. In addition, the Netherlands Antilles civil law notary should publish the change of corporation form of the company in the National Gazette and a local Netherlands Antilles well read newspaper. Every member of the board of managing directors is authorized to instruct the Netherlands Antilles civil law notary to pass the deed recording the resolution to change the corporation form of the company, without prejudice to the authority of the general meeting of shareholders to do the same. Should the Netherlands Antilles civil law notary fail to comply with his above obligations, then he will be personally liable for any damage resulting from the same.
The change of corporation form is inviolable once the company is deregistered. However, if it appears that the company does not continue to exist, as defined by the laws of the new corporate form, then the change of corporation form will be considered not to have taken place.
Karel Frielink
Attorney (Lawyer) / Partner
