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- Number and
Qualifications
- Number
- Netherlands
Antilles law requires that there
be at least one managing director
in office. The Articles of
Incorporation of the NV can (but
need not) determine a minimum and
maximum number that should be in
office.
- Such
Articles of Incorporation can
also determine that the exact
number is to be determined by the
general meeting of shareholders
(thereby again a minimum and a
maximum can be stipulated).
- Appointing
Managing Directors
- Managing
directors are appointed and
dismissed by the general meeting
of shareholders (Article 109
CCNA). The Articles of
Incorporation of the NV can (but
need not) grant a certain class
of shares (if different classes
are authorized) the priority
right of appointing managing
directors or grant each class of
shares (if more than one class is
authorized) the right to make
binding nominations to the
general meeting of shareholders
which binding character can only
be disregarded if a certain
majority of shares is voted
against such appointment (subject
to a maximum of two thirds of the
votes cast with a maximum quorum
of two thirds of the shares
issued present or represented at
the general meeting of
shareholders).
- Necessary
Qualifications in order to become a
Director
- In
order to obtain and maintain the
requisite exemption from foreign
exchange control regulations and
to obtain and maintain the
business license, at least one
managing director must be
resident in the Netherlands
Antilles; trust and management
companies in the Netherlands
Antilles can provide such
services. Other than that one
managing director must be a
resident of the Netherlands
Antilles (see above) there are no
qualifications in order to be
able to be appointed as managing
director. Managing directors do
not need to be a shareholder of
NV.
- Supervisory
Directors
- Under
the corporate law of the
Netherlands Antilles (Article 118
CCNA) the Articles of
Incorporation can provide for a
Board of Supervisory Directors
(consisting of one or more
supervisory directors) which has,
in principle, the duty to advise
and supervise the board of
managing directors of a NV and
further such duties as defined in
the Articles of Incorporation
(Article 118 CCNA).
- Managing
Directors' (and Supervisory Directors')
Liability
- See
1, B, 3 and 4.
- With
regard to the liability of
managing directors (and
supervisory directors),
vis-à-vis the N.V. it can be
stated that every managing
director (and supervisory
director) should diligently
perform the tasks assigned to him
pursuant to statute and the
Articles of Incorporation of the
N.V. The circumstances under
which a managing director (or
supervisory director) could
suffer legal liability vis-à-vis
the NV are basically limited to
wilful malfeasance or gross
negligence in the performance of
his duties (Articles 106 through
108 and Article 127 CCNA).
- The
liability vis-à-vis the NV shall
be borne jointly and severally if
such duty falls within the scope
of responsibility of more than
one managing director (or
supervisory director). However,
the managing director (or
supervisory director) who
evidences that the relevant fact
cannot be attributed to him and
that he took appropriate steps to
avert the negative consequences
thereof, is not liable (Article
106 CCNA).
- Provided
the managing director (or
supervisory director) who is
being sued can prove that the
relevant damage to the N.V. can
be attributed to him only to a
relatively minor extent, the
Court, in establishing the amount
of compensation to be paid by
such director, may take this fact
into account and thus disregard,
to the extent it deems proper,
the principle of joint and
several liability (Article 107
CCNA).
- If a
N.V. becomes bankrupt as a
result, wholly or partly, of
serious mismanagement or gross
negligence of a certain managing
director (or supervisory
director) the receiver is
authorized to claim compensations
from such director,
notwithstanding the fact that a
discharge pertaining to his
management has been granted.
- Powers and Corporate
Governance
- Actions by
the board of managing directors
(Meetings/Notice requirements/Quorum
requirements/Voting
requirements/Telephonic Meet- ings/Voting
by proxy).
- Meetings
of the board of managing
directors may be held within or
outside the Netherlands Antilles.
Reasonable notice must be given
to all managing directors in
office. The Articles of
Incorporation of the NV usually
provide detailed regulations
regarding notice, quorum and
voting requirements.
- Telephonic
meetings can also be made
possible in the Articles of
Incorporation, provided each
participant can hear, and can be
heard, by all others.
- Voting
by proxy is permissible, provided
the holder of the proxy is a
co-managing director.
- Actions that
may be taken without shareholder approval
- The
Articles of Incorporation can
provide (and normally do) that
all authority, not exclusively
granted to the general meeting of
shareholders by statute or
pursuant to the Articles of
Incorporation, be with the board
of managing directors.
- Actions
requiring shareholder approval
- By
statute, the general meeting of
shareholders has the exclusive
authority to:
- appoint and
dismiss managing
directors (Article 109
CCNA);
- adopt the
financial statements
(Article 75 CCNA);
- resolve to
amend the Articles of
Incorporation (Article 93
CCNA);
- resolve to
liquidate and dissolve
the NV (Article 141
CCNA); and
- to appoint
auditors, if so required
by the Articles of
Incorporation.
- Fiduciary Duties
(Article 106 CCNA)
- Generally it
should be noted that every managing
director should diligently perform the
tasks assigned to him by the laws of the
Netherlands Antilles and the Articles of
Incorporation of the NV. Consequently for
instructions and guidance, each managing
director should, amongst others, have a
detailed knowledge of the Articles of
Incorporation of the NV.
- The Articles
of Incorporation can (but need not)
require approval of the general meeting
of shareholders (or the Supervisory Board
of Directors - if appointed) for certain
actions.
- Removal (Article 111
CCNA)
- Managing
directors can be dismissed by the general
meeting of shareholders with or without
cause. The Articles of Incorporation can
(but need not) stipulate that in order to
do such, certain quorum and majority
requirements must be met.
- Related Transactions
- The managing
director may not continue to act as such
and represent and bind the NV in the
event there is a conflict of interest,
unless the Articles of Incorporation
provide otherwise, as is most often the
case. If the Articles of Incorporation do
not contain such provisions, the entire
Board of Managing Directors is
disqualified to act for and on behalf of
the NV with regard to the transaction
causing the conflict of interest, in
which case an alternative representative,
appointed pursuant to the Articles of
Incorporation, will assume the authority.
- Indemnification and
Insurance
- Common Law
- The
Netherlands Antilles is a civil
law jurisdiction.
- Statute
- According
to the laws of the Netherlands
Antilles managing directors and
supervisory directors may be
indemnified except for actions
taken which are qualified as
grossly negligent or wilful
malfeasant.
- Articles of
Incorporation
- The
Articles of Incorporation can,
and often do, include an
extensive indemnification
provision within the limits
described in F, 2 above.
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