STRUCTURING A NETHERLANDS ANTILLES LIMITED LIABILITY COMPANY
Much freedom is given to the shareholders
In general, Netherlands Antilles corporate law provides (much more than Dutch law) for free choice of organization of a NV or BV by way of the articles of association. It gives shareholders much freedom to organize things as they see fit. For example, a company may issue non-voting shares or shares with restricted voting rights. A company may even issue shares and determine in the articles of association that they lapse after a certain period of time. Also, a company may issue non-transferable shares. Further, it can be determined in the articles of association that a specific shareholder has to vote in support of a resolution if it is to be adopted.
Also, in the articles of association, arbitral provisions can be included for, for example, disputes between shareholders, and concerning the validity of decision-making. Too may be included are rights to be distributed to (certain) shareholders allowing them to buy additional shares under certain circumstances (so that a majority shareholding can be (re)obtained).
As is the case under Dutch law, Netherlands Antilles law also allows for (the creation of) priority shares, being another device for the protection of the interests of certain shareholders, such as minority shareholders as is (after the resale) your client. Priority shares are shares with special powers attributed to them under the articles of association. These priority shares are mostly used to have the exclusive power and may be used to gain control over, for example, any nomination of managing directors or supervisory directors; any allocation of profits to the capital reserves, thereby effectively determining the amount of profits available for distribution; any proposal for the issuance of new shares; and any proposal for the amendment of the articles of association.
Further, under Netherlands Antilles law the articles of association may contain transfer restrictions for shares. For instance, the articles of association may provide that in cases accurately described in the articles of association the shareholder will be under an obligation to transfer his shares to one or more other shareholders on conditions laid down in the articles of association. Another possibility (for example) would be that the transfer of shares is subject to the approval by a corporate body designated by the articles of association, e.g. the shareholders’ meeting.
Karel Frielink / Ursus van Bemmelen
Curacao-based Attorneys (Lawyers)
