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UNOFFICIAL TRANSLATION
FOR OFFICE USE ONLY
COMMERCIAL CODE
OF THE
NETHERLANDS ANTILLES
General Provision
ARTICLE 1
To the extent not deviated therefrom in this Code, the Civil
Code of the Netherlands Antilles is also applicable to the subjects
treated in this Code.
FIRST BOOK
COMMERCE IN GENERAL
FIRST TITLE
The Bookkeeping
ARTICLE 2
Anyone, who carries on a business, is obliged to maintain
records regarding his financial status and regarding everything
that concerns his business in accordance with the requirements
of his business, in such a manner that from those records the
rights and obligations can, at any time, be ascertained.
ARTICLE 3
He is further obliged in all years, within the first six months
of each year to draw up and personally sign a balance sheet set
up in accordance with the requirements of his business.
ARTICLE 4
He is held to keep, for a period of ten years, the books and
documents in which he maintained records pursuant to Article 2,
as well as the balance sheets, the letters and telegrams received
and copies of the letters and telegrams sent.
ARTICLE 5
The judge is free, for the benefit of anyone, to attach such
evidence to his bookkeeping as he shall deem reasonable in each
particular case.
ARTICLE 6
The judge is authorized, in the course of a court proceeding,
at a request or ex officio, to order each of the parties or one
of them, to the disclosure of the books, documents and papers,
that they, pursuant to Article 4, must hold, make or keep for
the purpose of inspection or making or having made an excerpt
therefrom, to the extent he deems such necessary in connection
with the matter in dispute.
ARTICLE 7
The judge is free to draw such conclusions from the non-compliance
with his order as he may deem appropriate.
ARTICLE 8
When the books, documents and papers are located at another
island than that where the judge, before whom the case is pending,
is seated, he is entitled to instruct the local judge thereof
to take the desired inspection and to make and forward an official
report on his findings.
ARTICLE 9
One can only force someone to submit his bookkeeping if this
serves the benefit of him, who as heir, as interested party in
a community, as partner, as appointer of factors or trustees has
a direct interest therein and furthermore in case of bankruptcy.
SECOND TITLE
Various Types of Companies
FIRST SECTION
General Provision
ARTICLE 10
The companies mentioned in this title are governed by the
agreements between parties, by this Code and by the civil law.
SECOND SECTION
The General Partnership and The Partnership
By Way of
Silent Contribution
Also Known as Limited Partnership
ARTICLE 11
The general partnership is the partnership entered into in
order to carry on a business under a common name.
ARTICLE 12
Each partner who has not been excluded therefrom, is authorized
to act in the name of the partnership, to spend and receive monies,
and to bind the partnership to third parties and third parties
to the partnership.
ARTICLE 13
Acts which are not relevant to the partnership or to which
the partners are not authorized according to the agreement, are
not included under the provision of article 12.
ARTICLE 14
In a general partnership each partner is severally liable
for the whole of the obligations of the partnership.
ARTICLE 15
The silent contribution partnership by, also known as limited
partnership, is entered into by one person, or by more than one
partner, severally liable for the whole, and one or more other
persons as money contributors.
ARTICLE 16
A partnership may at the same time be a general partnership,
with regard to the general partners and a limited partnership
with regard to the money contributor.
ARTICLE 17
1. Except for the exception stated in the second paragraph
of article 27, the name of the limited partner may not be used
in the firm.
2. Said partner may neither perform acts of management nor be
employed in the business of the partnership.
3. He shall not bear in the losses more than to the amount of
the funds that he has contributed or had to contribute in the
partnership, without ever being obliged to give back the profits
received.
Unless agreed otherwise between parties, a partner can not transfer
his interest in the partnership without permission of the other
partners.
ARTICLE 18
The limited partner who violates the provisions of the first
or second paragraph of the foregoing article, is jointly and severally
liable for the whole of all debts and obligations of the partnership.
ARTICLE 19
The general partnership and the limited partnership must be
entered into by authentic or private deed; however, the absence
of a deed may not be held against third parties.
ARTICLE 20
The general partners are obliged to have the partnership registered
with the Commercial Register, in accordance with the legal provisions
in force therefor.
ARTICLES 21 THROUGH 25
Repealed
ARTICLE 26
As long as the registration in the Commercial Register has
not taken place, the general partnership shall be considered,
vis-à-vis third parties, as general for all matters, as
entered into for an unlimited period of time and as not excluding
any of the partners from the right to act for the firm and sign
on its behalf.
ARTICLE 27
1. The firm of a dissolved partnership may, either on the
strength of the agreement, or if the partner whose name appeared
in the firm explicitly agrees thereto, or if in the event of his
decease, his heirs do not object thereto, be continued by one
or more persons, who as proof thereof must have a deed drawn up
and filed with the Commercial Register in accordance with the
legal provisions in force therefor.
2. The provision of the first paragraph of article 17, is not
applicable, if the person who has resigned as a general partner
has become a limited partner.
ARTICLE 28
The dissolution of a general partnership before the time stipulated
in the agreement or effected by a registration or a cancellation
thereof, its prolongation after expiration of the time stipulated,
and all amendments made in the original agreement that concern
third parties, are subjected to the aforementioned registration.
ARTICLE 29
1. In the event of dissolution of the partnership, the partners
who have had the right of management, must liquidate the affairs
of the former partnership in its name, unless otherwise stipulated
by the agreement or unless the joint partners (the limited partners
not included) voting by poll and by majority have appointed a
different liquidator.
2. If there is an equality of votes, the judge at the Court in
First Instance shall decide in the manner he deems most advisable
in the interest of the partnership.
ARTICLE 30
If the cash balance of the dissolved company is not sufficient
to pay the debts due and payable, the liquidators are authorized
to claim the necessary funds; each partner shall have to contribute
these in proportion to his share in the partnership.
ARTICLE 31
The funds that can be dispensed with during liquidation, may
be distributed provisionally.
ARTICLE 32
After liquidation and partition, if no agreement has been
entered into to that effect, the books and documents that belonged
to the dissolved partnership shall remain in the custody of such
partner who has been elected thereto by majority of votes or in
the event of an equality of votes by the judge at the Court in
First Instance; the partners and their successors shall nevertheless
retain the right of free access thereto.
THIRD SECTION
Corporations
1. GENERAL PROVISIONS
ARTICLE 33
1. The corporation is a legal entity with an authorized capital
divided into shares. A shareholder is not personally liable in
respect of any act performed in the name of the corporation, and
is not held to contribute in the loss of the corporation for more
than the amount that should be paid up on his shares.
2. On pain of nullity, the corporation shall be incorporated
by one or more persons, by notarial deed. Each incorporator shall
participate in the capital.
ARTICLE 34
The termination of the participation of one or more incorporators,
shall, as such, have no influence on the legal validity of the
participation of the remaining incorporators.
ARTICLE 35
The deed of incorporation shall be passed in the Dutch language.
A power of attorney for the cooperation towards such deed shall
be given in writing.
ARTICLE 36
1. The deed of incorporation shall state the name, the domicile,
and the purpose of the corporation. The name shall commence or
end with the words "Naamloze Vennootschap" either written
in full or abbreviated to "N.V." and may not be stated
in other than Latin characters.
2. The seat of the corporation must be within the Netherlands
Antilles.
ARTICLE 37
The deed of incorporation shall state the amount of the authorized
capital, the number and par value of the shares, as well as the
number of shares subscribed for by each of the incorporators.
ARTICLE 38
1. The corporation cannot commence its existence before the
Minister of Justice has granted a declaration of no objection.
2. Such declaration may only be refused on the consideration
that the corporation conflicts with public morality or public
order, that the deed of incorporation does not comply with such
provisions as promulgated by general ordinance or that it does
not appear that the incorporators jointly subscribe for at least
one fifth of the corporation's authorized capital.
3. In order to obtain the said declaration, the deed of incorporation
or a draft thereof, must be submitted to the Minister of Justice.
4. In the event the declaration is refused, the reason therefor
shall be made known to the petitioner.
ARTICLE 39
1. The managing directors are obliged, upon the registration
as required by the Commercial Register Ordinance, to file at the
offices of the Commercial Register, an authentic copy of the deed
of incorporation on which the date and the number of the declaration,
referred to in the preceding article, have been recorded, or which
is accompanied by a notarial declaration from which these facts
appear.
2. The civillaw notary, who has passed the deed of incorporation,
shall cause that an announcement of the incorporation of the
corporation is published as soon as possible in the gazette in
which the government publishes the official announcements. This
announcement shall contain at least the name and the seat of the
corporation and the date and the number of the declaration, mentioned
in the preceding article.
ARTICLE 40
Managing directors are jointly and severally liable for the whole,
vis-à-vis third parties for acts binding on the corporation,
performed before the registration and filing, as mentioned in
the preceding article, and before at least ten percent of the
par value of each share, subscribed for at the time of incorporation,
has been paid up, such without prejudice to the liability of the
corporation itself.
ARTICLE 41
Repealed
ARTICLE 42
If the deed of incorporation does not state a fixed period, the
corporation is presumed to have been formed for an indefinite
period of time.
ARTICLE 43
1. The attorney general is authorized to file with the relevant
judge of the Court in First Instance a petition for the dissolution
of a corporation, which is operating in conflict with public morals
or public order.
2. The judge, ordering the dissolution of the corporation, shall
also determine the time at which the dissolution shall be deemed
to have commenced.
3. The judgment by which the corporation is declared dissolved
shall also contain the appointment of one or more trustees; the
judge of the Court in First Instance acts as the investigative
judge.
4. The liquidation of the affairs of the dissolved corporation
is carried out by the trustee under the supervision of the investigative
judge, and in conformity with the provisions of the Bankruptcy
Decree of 1931.
5. The judgment, whereby the corporation is declared dissolved,
must be announced in the gazette in which the government publishes
the official announcements. Notice of the dissolution must also
be filed for registration at the offices of the Commercial Register.
Claims of third parties obtained in good faith prior to such date,
shall be acknowledged.
ARTICLE 44
1. All documents, printed matter and announcements, with
the exception of telegrams and advertisements, to which the corporation
is a party or which originate from it, must clearly state the
complete name of the corporation according to the deed of incorporation
and its domicile.
2. If the authorized capital is mentioned, in addition thereto
the amount that has been issued and the amount that has been paid
up thereon shall be stated.
ARTICLE 45
The provisions of this section may only be deviated from if
and insofar that such appears within the actual provisions.
ARTICLE 46
In this section, domicile of the corporation shall mean the island
where the corporation is established according to the deed of
incorporation.
ARTICLE 47
If in the deed of incorporation any right is granted to holders
of a number of shares that together constitute a certain part
of the authorized capital of the corporation, or whenever the
presence or approval of said holders is required for the validity
of any resolution taken by the general meeting of shareholders,
the word "capital" shall mean the issued part of the
authorized capital, unless the contrary appears from the deed
of incorporation.
2. THE SHARES
ARTICLE 48
1. Shares are the parts into which the authorized capital
is divided by the deed of incorporation.
2. Fractional shares are the parts into which the shares are
or may be split according to said deed.
3. The provisions of this section concerning shares and shareholders
apply likewise to fractional shares and holders of fractional
shares, unless it appears otherwise from the said provisions.
ARTICLE 49
1. A shareholder cannot be released from the obligation to
pay up the full amount of his share, except as determined by article
67.
2. Those, however, who are professionally engaged in the placing
of shares for their own account, may be permitted, by agreement,
to pay less than the full par value of the shares subscribed by
them, provided that at least ninetyfour percent of the par
value is paid in Netherlands Antilles legal tender.
3. With regard to the obligation to pay shares in full, a setoff
will never take place.
ARTICLE 50
No obligation over and above the payment as referred to in
the preceding article can be imposed upon a shareholder against
his will, not even by an amendment of the deed of incorporation.
ARTICLE 51
1. Share certificates may be issued in either registered
or bearer form.
2. Share certificates to bearer may not be issued to the shareholders
unless for payment of at least the full par value of those shares,
except as determined by the second paragraph of article 49.
ARTICLE 52
As against the subsequent bona fides acquiror, the corporation
cannot claim that a bearer share has not been paid in full, or,
as to a registered share, that the amount stated as paid on the
share certificate by or on behalf of the corporation, has not
been fully paid.
ARTICLE 53
In the event of bankruptcy of the corporation, the trustee
is authorized to demand and collect all amounts payable on the
shares, irrespective of the provisions relating thereto in the
deed of incorporation.
ARTICLE 54
1. As long as the par value of the outstanding shares has
not been paid, the board of managing directors shall keep a register,
in which the names of all holders of partially paid up shares
and the amount paid up on each share shall be recorded.
2. The register shall be updated regularly; therein shall also
be recorded any release of liability for payments not yet made
on shares.
3. The board of managing directors shall keep this register available
for public inspection at the offices of the corporation. Certified
copies or extracts shall be provided at cost.
ARTICLE 55
1. Registered shares are transferred either by serving a deed
of transfer upon the corporation or by the corporation's written
acknowledgment of the transfer. If a share certificate has been
issued, the acknowledgment can only take place by a statement
to that effect on the share certificate itself. If the transfer
concerns partially paid up shares, the acknowledgment can only
occur when there is a deed of transfer with an officially recorded
date.
2. In the event of a transfer of partially paid up shares, the
date of transfer shall also be recorded in the register as referred
to in the preceding article.
ARTICLE 56
1. After the transfer of a partially paid up share, each
of the former shareholders remains severally liable vis-à-vis
the corporation for the amount still payable thereon. In the event
that the managing directors and the supervisory directors, if
in office, have, in connection with a share transfer, explicitly
released the former shareholder from further liability, then such
former shareholder will remain liable only as to payments demanded
within one year from the date of the transfer.
2. In the event that a former shareholder pays, he is subrogated
in the rights which the corporation has against subsequent shareholders.
ARTICLE 57
The provisions of the two preceding articles are also applicable
to the allocation of registered shares resulting from a division
of any community property.
ARTICLE 58
Unless otherwise stipulated in the deed of incorporation,
all shares bear the same rights and obligations in proportion
to their par value.
3. THE CORPORATE ASSETS
ARTICLE 59
Agreements entered into on behalf of a corporation prior to
its incorporation shall establish rights and obligations for the
corporation, if said agreements are explicitly or tacitly ratified
by the corporation after its incorporation.
ARTICLE 60
1. Agreements:
relating to the subscription for shares whereby
special obligations are imposed upon the corporation;
concerning the acquisition of shares on a different
basis than that for which participation in the corporation is
open to the public;
purporting to secure any kind of benefit to
an incorporator of the corporation or to a third party involved
in the incorporation;
regarding payment on shares in another manner
than in Netherlands Antilles legal tender,
must be mentioned in the deed of incorporation.
Failing such statement the corporation shall not be authorized
to ratify the agreements after its incorporation.
2. An agreement, as referred to in the preceding
paragraph, must be attached to the deed of incorporation as true
copy, drawn up in accordance with article 34, third paragraph,
of the Regulations regarding the Notarial Profession in the Netherlands
Antilles, unless such agreement is included in its entirety in
the deed of incorporation.
3. With regard to the filing required in article 39, the attachments
to the deed of incorporation referred to in the preceding paragraph,
will be considered as part of such deed. The announcement likewise
stipulated in article 39 must be drawn up in such wording, that
it appears therefrom that the agreements referred to in the first
paragraph have been entered into.
ARTICLE 61
After the incorporation of the corporation, the board of managing
directors is only authorized to enter into such agreements as
are referred to in the preceding article, without instruction
from the general meeting of shareholders, if and insofar as the
authority to do so has been explicitly granted to the board of
managing directors in the deed of incorporation.
ARTICLE 62
The substance of the agreements, as referred to in article
60, entered into after the incorporation of the corporation, must
be included in the explanatory notes accompanying the balance
sheet and profit and loss account of the financial year in which
the agreement was entered into.
ARTICLE 63
The provisions of articles 60 through 62 shall not be applicable
to the agreements referred to in article 49, paragraph 2.
ARTICLE 64
1. The deed of incorporation may not make stipulations for
the benefit of the shareholders, with regard to payment of interest
on the amount of the compulsory payments on shares, if such payment
of interest is independent of the amount of the net profits, except
for the time that the conduct of business has not yet fully commenced,
and then exclusively at such rate of interest and for such a number
of years as determined by the deed of incorporation, on pain of
nullity of the interest clause. The rate of interest can in no
case be higher than the legal interest as per the day of the deed
of incorporation and the number of years shall not be more than
four.
2. With regard to voluntary payments on shares, the payment of
interest thereon may only be stipulated in the deed of incorporation
under the condition that such can be done out of the net profits.
In the absence of such condition, such payments shall be considered
as loans to the corporation and not as payments on the shares.
ARTICLE 65
1. Each transfer to the corporation of partially paidup
shares in its authorized capital shall be null and void.
2. Fully paidup shares in the authorized capital may only
be acquired by the corporation for its own account for a valuable
consideration up to the amount determined by the deed of incorporation.
Nullity of a transfer contrary to this provision cannot be invoked
vis-à-vis a bona fides transferor.
ARTICLE 66
Partial or total refund of what has been paid up on shares
shall be permitted, if and insofar as there is sufficient net
profit, and, if in addition, it has been determined by the deed
of incorporation to what extent and in which manner this may be
effected.
ARTICLE 67
Repayment on shares, otherwise than determined by the preceding
article, or the release from the obligation to pay up on shares
that have not been fully paid up, may only occur after and insofar
as the authorized capital has been reduced by an amendment to
the deed of incorporation, while the resolution regarding such
amendment shall contain the manner in which the reduction will
be carried out, and with respect to this resolution, the provisions
of articles 68 through 71 have been complied with.
ARTICLE 68
1. A resolution to amend, as referred to in the preceding article,
must be filed at the offices of the Commercial Register for public
inspection. Announcement of such filing must be made by the board
of managing directors in the gazette in which the government publishes
the official announcements.
2. Within two months from the day on which the announcement, as
referred to in the preceding paragraph, has been published, every
creditor shall be entitled to oppose the resolution to amend.
ARTICLE 69
1. Opposition is made by filing a motivated petition for nullification
of the said resolution with the Court in First Instance of the
district in which the corporation is domiciled. Such petition
must be submitted in duplicate. The clerk of the court shall immediately
forward one copy to the other party.
2. The judge of the Court in First Instance attends to the petition
for nullification in chambers as soon as possible. In the event
other petitions have been submitted, same will be adjudicated
jointly.
3. The clerk of the court will notify the corporation and the
opposing party at least one week in advance as to when the hearing
will commence. The clerk of the court shall also make an announcement
thereof in the gazette in which the government publishes the official
announcements.
4. The judge of the Court in First Instance shall decide after
having heard the corporation and the opposing parties in as much
as they have appeared before the court. He shall be obliged to
hear other creditors who may have appeared and is authorized,
also ex officio, to hear witnesses and experts.
ARTICLE 70
1. The judge of the Court in First Instance dismisses the
opposition, if it does not appear that the amendment or the manner
in which it was made, is in violation of public morality or public
order, the law or the deed of incorporation, or that the assets
of the corporation, as a result of the reduction of the authorized
capital, would constitute an insufficient security for the corporation's
creditors.
2. Each party shall bear its own expenses, unless and insofar
as the judge of the Court in First Instance finds cause under
the circumstances for another arrangement.
3. As soon as possible after the judge of the Court in First Instance
has rendered his decision, the clerk of the court shall notify
the parties thereof, stating the date of the decision.
ARTICLE 71
1. During the three weeks after the day of the decision made
by the judge of the Court in First Instance, both the corporation
and the opposing party may file an appeal with the court of appeals.
The motivated motion of appeal shall be submitted in duplicate.
In the event that, in accordance with the second paragraph of
article 69, a decision pertains to several requests jointly, the
motion of appeal must be submitted in as many copies.
2. Furthermore the provisions of articles 69 and 70 apply accordingly.
In the event, however, that the appeal only concerns the costs,
publication of the date of the hearing in the gazette as referred
to in the first paragraph of article 68, shall not be made. In
such case the decision of the judge of the Court in First Instance
regarding the principal matter shall be final.
ARTICLE 72
The provisions of articles 68 through 71 apply accordingly to
a resolution to amend the deed of incorporation, containing a
provision as referred
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