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I. NV's
Articles of Incorporation
- The Articles of
Incorporation must always contain (Articles 36
and 37 CCNA):
- the name
- the
registered address
- the objects
- the duration
- the
authorized capital as well as the
initially subscribed and paid in capital
- the method of
transferring the shares
- the powers of
the managing director(s).
- the fiscal
year
- the
shareholders voting rights
- the
distribution of profits provisions
- liquidation
and dissolution provisions
- The Articles of
Incorporation of a N.V. can be structured from
the very basic regular to the extremely complex.
- On occasion the
sponsors of a N.V. have need for specific
provisions, motivated by either marketing
arguments or to protect themselves and their
interest in the N.V. In nearly all cases in which
such specific requirements have been brought
forth by clients, these have been met in such a
manner that is both acceptable and workable under
Netherlands Antilles law.
- The following, will
give an example of the flexibility of, and
sophistication possible, under the corporate laws
of the Netherlands Antilles.
- The purpose
clause can be made as broad or restricted
as desired, provided the objects concern
viable economic activities and is not
contrary to the public order of the
Netherlands Antilles.
- The share
capital can be expressed in any currency,
whether it be U.S. dollars, Canadian
dollars, Yen, ECU's, etc. Such can be
essential with regard to marketing.
- The
authorized share capital can be divided
into more than one class of stock. Such
classes of stock can be given very
different characteristics;
- the
classes of stock can have
different par values;
- preference
share characteristics can be
given to certain classes of
stock;
- dividend
rights can be limited;
- each
class of stock can be made to
derive its right to profits (and
therefore dividends) from a
specifically designated economic
activity i.e. umbrella funds;
- some
types of shares can be made to be
nonvoting (as long as 20% of
the aggregate authorized capital
is issued and outstanding in the
form of voting shares);
- a
class of stock can be given
priority rights with regard to
certain (specifically listed)
corporate resolutions, (which may
then only be overridden with
qualified majorities of the
aggregate of the votes that may
be cast).
- The shares
can be made to be either nonredeemable,
fully redeemable (provided that at least
20% of the authorized capital remains
outstanding at all times, as described in
the foregoing), or redeemable on certain
dates only (with the same restriction as
mentioned before). The various forms of
redeemability can be considered for each
class of stock separately.
- The Articles
of Incorporation can also provide that
redemption rights may be suspended under
certain (specifically listed)
circumstances e.g. when any securities
exchange or organized inter-dealer
market, on which a significant portion of
the N.V.'s assets are regularly quoted or
traded, is closed (other than a holiday)
or trading thereon has been restricted or
suspended.
- Each
shareholder can be given, or denied, a
preemptive right with regard to future
issues of shares concerning his own class
of stock or any class of stock.
- Individuals
or legal entities with certain
characteristics can be precluded from
becoming shareholders (blocking
provisions).
- Shares can be
issued as bearer or as registered shares.
(Blocking provisions, however, are not
possible with regard to bearer shares due
to the nature of such shares).
- The N.V. can
be organized with an indefinite duration,
or for a limited period.
- The
Articles of Incorporation can
also stipulate that in the event
the net asset value per share
falls below a certain stated
value, the Board of Managing
Directors must convoke, within a
certain stated period, a general
meeting of shareholders before
which a resolution is put to
consider liquidation and
dissolution of the N.V. fund. It
can also be provided that such
resolutions may only be adopted
at the general meeting of
shareholders by a given qualified
majority and that a certain
number of shares must be present
or represented.
- The Articles
of Incorporation can provide for a Board
of Supervisory Directors whose function
it is to advise and supervise the Board
of Managing Directors.
- The Articles
of Incorporation can limit the authority
of the Board of Managing Directors by
requiring, for certain actions, consent
of the general meeting of shareholders
(or the Board of Supervisory Directors).
- Dividends can
be left entirely at the disposal of the
general meeting of shareholders, or the
Board of Managing Directors can be
authorized and empowered to reserve a
certain amount (or all) of the profits
(with regard thereto, there is, however,
a restriction regarding the preferred
dividend payable on preference shares).
- The Articles
of Incorporation can also provide for an
indemnity in favor of managing directors,
supervisory directors,
attorneysinfact, employees or agents
of the N.V.
- The fiscal
year can, but need not be, the calendar
year.
- Different
classes of shares, each with their own
dividend and redemption rights. The par
value of the separate classes of shares
can also differ (the minimum being 1 cent
per share).
- Net asset
value calculations can be regulated in
detail.
- Asset
protection provisions are possible.
- A U.S. style
board structure can be built into the
Articles of Incorporation.
The foregoing lists only a
number of examples, many variations are possible.
The Articles of Incorporation provide the regulations of
the NV by which it is governed and by which it is
governed and by which it has to abide; generally by-laws
are not used.
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