Why Branch Registration in the Netherlands is Important to consider as option to enter a new market
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Are you planning to transfer the shares of your Dutch company? This article will provide you a full explanation on this process, and provide an intake form, which allows you to easily deal with a Dutch notary. This will allow you to get the best quotes from any Dutch notary.
In the Netherlands, the transfer of registered shares in a BV has to follow strict legal procedure. We hereby explain the legal requirements for the transfer of shares in a Dutch BV/NV, which allows you to deal directly with a Dutch notary, and avoid the expenses of a lawyer of intermediary company agent.
The capital of a Dutch BV may be divided into registered shares, which may be ordinary, preferred or priority shares. The registered shares must be issued to an individual or a legal entity. The board of managing directors of a BV with registered shares must deposit a register of shareholders at the registered office of the company for inspection by its shareholders, usufructuaries, pledgees and holders of depository receipts.
Shares do not need to be paid up in full for incorporation and the parties are free to make arrangements as to when the full capital contribution will happen. However, after a transfer of a not fully paid up share, each of the previous shareholders remains jointly and severally liable towards the BV for the amounts that still needs be paid up on the share. Therefore, in practice, it is commonly required that the shares have to be paid up in full before the transfer.
The articles of association can include restrictions on the transfer of shares, as long as the restrictions do not make a share transfer extremely difficult or impossible. A transfer in violation with a restriction in the articles of incorporation is invalid. If the articles of association do not include any provision on the transferability, the other shareholders would be given with a right of first refusal.
The transfer of registered shares in a BV or the transfer of limited property rights in such shares shall take place through the execution of a notarial deed of transfer before a Dutch civil law notary. The notarial deed of transfer must specify:
The legal basis for the transfer and the way in which the share or the limited property right in a share has been acquired;
The name, forename, date of birth, place of birth, domicile (residence) and address of the natural persons who are a party to the notarial deed;
The type, name, domicile (seat) and address of the legal persons which are a party to the notarial deed;
The number and type (class) of shares to which the notarial deed relates, and;
The name, domicile (seat) and address of the Corporation that has issued the shares to be transferred.
The transfer of shares shall be recorded in the register of shareholders. In the case of a sole shareholder, the registration with the Trade Register of the Chamber of Commerce needs to be updated accordingly.
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What does a share transfer cost for a BV/NV?
The costs of a simple share transfer for usual activities, without extensive balance sheet (which you can prepare yourself with the use of templates in our dashboard) are in average:
the costs of the deed of share transfer: € 500.00 excluding 21% VAT
the costs for the minutes of the shareholders' meeting: € 50.00 excluding 21% VAT
for each extract requested from the Chamber of Commerce, € 15.00 excluding 21% VAT will be charged,
for any changes to the Chamber of Commerce, € 25.00 excluding 21% VAT will be charged
the costs for the change of the shareholder register € 25.00 excluding 21% VAT
for a possible declaration on the pre-emptive rights of other shareholders, € 25.00 excluding 21% VAT will be charged, per declaration
For every natural person or legal entity involved in this case, the notary might charge a fee (approx. € 100 excluding 21% VAT) for KYC Due diligence fees (researching the background/regarding personal data)
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Required documents to transfer the shares to a new Buyer
As required by the Dutch laws, both Dutch notary is required to know it’s clients. The following information and documents shall be provided,
Information:
o How many shares will the new shareholder buy?
o Sales price per share.
Documents of the seller, i.e., the current shareholder:
o A scanned copy of the signed register of shareholders, which is included in the original company kit, called aandeelhoudersregister;
o Proof of the paid-in share capital; it must be a bank transaction with clear reference as “capital contribution”, a screenshot from the company bank account is sufficient.
Documents of the purchaser, i.e., the new shareholder:
o In case the purchaser is an individual:
Completed Form A (will be provided by INCO)
A legalized* copy of the passport;
A recent proof of address - e.g. utility bill or bank statement; which must be in English and be issued within 90 days (preferably within 30 days) at the submission to the Dutch notary.
o In case the purchaser is a corporate:
Completed Form B (will be provided by INCO);
A corporate organizational chart clearly showing the directors and shareholders;
A legalized copy of written legal opinion stating that the company is in good standing - It must be drafted by a lawyer or bookkeeper; - It must be in English, or translated into English by a certified translator; and - It must be no older than 30 days at the submission to Dutch notary;
A copy of the Articles/Memorandum of Association (MoA) of the company: - It must be the version registered at the local Trade Register; - It must be in English or translated into English by a certified translator; - It must include a statement that the MoA is the latest version; and the statement must be no older than 30 days at the submission to the Dutch notary;
A legalized copy of the Extract from the Trade Register of the company. - It must be the version registered at the local Trade Register; and - Please be aware that this document has to be no older than 30 days at the submission to the Dutch Chamber of Commerce, which happens after the execution of the deed of incorporation by the Dutch notary. A scanned copy can be provided first, the legalization can be arranged later together with other company documents provided by INCO at a later stage.
A legalized copy of the shareholder register of the company - It must be in English or translated into English by a certified translator; - It must be no older than 90 days (preferably 30 days) at the submission to the Dutch notary;
A legalized* copy of passport and a recent proof of address of the authorized signatory (director);
A legalized* copy of passport and a recent proof of address of each UBO, i.e., the natural person who is (in)directly entitled to 25% or more in the share capital of the company or in the share capital of (a) shareholder(s) of the company. Note: if the corporate shareholder also has (a) holding corporate shareholder(s), the above documents of the holding document(s) are required as well. Therefore, it is very important to provide us the corporate organizational chart at the beginning so that we can provide you a clear list of required KYC documents.
* The legalized copy of passport is not needed if the person can visit the Netherlands and sign the documents in front of the Dutch notary.
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Procedure of transferring shares
The whole procedure can be done remotely, however a Dutch notary must be involved.
Complete the intake form (see below) which you can use to obtain a quote from a notary (see list of notaries)
sign the service agreement and make the payment.
Provide the notary the scanned copy of all KYC documents. - Upon the receipt of the information and documents provided by the seller and the purchaser, the notary will need four to five working days to verify the information and documents. Upon approval, they will send you the following legal documents for your signatures:
Personal data card, for the purchaser to sign;
The draft deed of transfer, for the seller and the purchaser to check and sign;
The power of attorney for the execution of the deed of transfer, for the seller to sign;
The power of attorney for the execution of the deed of transfer, for the purchaser to sign;
Please sign the legal documents and return the scanned copies for the notary’s approval:
All KYC documents;
A legalized copy of the seller’s power of attorney;**
A legalized copy of the purchaser’s power of attorney;**
The deed of transfer, signed by both the seller and the purchaser.
Upon receipt of the documents, the notary (or his clerk) will process the execution of notarial deed of transfer before the Dutch notary for you. The Dutch notary may arrange a phone call with the purchaser.
After two to three working days, you will receive the scanned extract, stating that the shares have been transferred to the purchaser, the original extract will be ready in one to two weeks; and the register of shareholders will be updated accordingly.
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The Transfer of Shares Deed
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In the first place, an agreement must be concluded on the basis of which the future shareholder buys the shares. A distinction must be made between the purchase of the shares and the transfer thereof. Buying the shares means that there is an agreement and that a purchase agreement has been concluded. In order for the buyer to actually become the owner of the shares, they must be transferred (more about this below).
You take over all activities and risks when you buy shares in a B.V. buys. All rights and obligations are transferred to the buyer, such as permits, financing, employees, agreements, contracts, tax debts, etc. Only the actual shareholder / owner changes. It is therefore wise to record agreements made in a purchase agreement for shares. This share purchase agreement includes the following matters:
The price of the shares and how this price will be paid. The buyer does not always have sufficient funds to pay the amount at once. For that reason, it is then agreed that the seller of the shares will provide a loan to the buyer.
Guarantees Relating to the Company. This could include guarantees with regard to current procedures, personnel and their employment, permits and intellectual property rights.
An overview of the company's activities.
A termination arrangement with regard to the seller. Usually the seller will withdraw from the company after the transfer of the shares. It can then be recorded when this will happen and how. This also includes the resignation of the seller as a director of the company.
A dispute settlement. If, after the transfer of the shares, a dispute arises between the buyer and the seller regarding the transfer of the shares, it can be determined how this will be resolved. Usually it is decided to designate a competent court where the dispute should be brought.
Whether there are intellectual property rights and whether they will be transferred.
On what date the shares will be delivered. On this date, all rights and obligations (and therefore also the risks) also pass to the buyer, unless otherwise agreed.
Non-competition clause for the seller. After all, the buyer will not be happy if the seller immediately starts a new company after the shares have been sold, which company is directly competitive with the company that he or she has just sold.
Guarantees regarding the financial position of the company. These are often the most important guarantees for the buyer. After all, he is only prepared to pay a certain amount for the shares on the basis of the financial information of the company that has been made available to him. It also happens that due diligence is carried out. The correctness of the information presented to the buyer is then determined and the risks and opportunities of the company to be acquired are identified. This due diligence investigation is conducted on the basis of the financial information provided. It is then important that these data are complete and correct.
If all guarantees and provisions have been agreed and the purchase agreement has been signed, the purchase of the shares has been effected. However, the buyer has not yet become the owner of the shares. The buyer therefore does not yet have a voting right or a right to dividend. For this, the shares still have to be legally transferred.
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Execution of the Transfer of Shares Deed
In the Netherlands, a notary is required for a legally valid transfer of shares. Shares must therefore be transferred by means of a notarial deed. A number of important matters are recorded in this notarial deed, which are also partly included in the purchase agreement for the shares. This could include the following:
Who the buyer and seller are;
The price of the shares and how it is paid;
Who bears what costs;
From what time the shares are for the account and risk of the buyer;
Guarantees regarding the balance sheet and the company.
The transfer of shares, ie the actual transfer of the shares, can only take place by notarial deed. This means that engaging a notary is mandatory. The notary draws up a deed of delivery.
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Blocking arrangement
When transferring shares in a B.V. the blocking scheme is essential. If the blocking scheme is not complied with, there is an invalid transfer of shares. The shares in a B.V. are not freely transferable. If there is only one shareholder, the blocking scheme will not be an obstacle. This may be the case if there are several shareholders.
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Category | Business Formation
This article will inform you on the different types of Dutch legal entities
How to start a sole proprietorship in the Netherlands in a few simple steps.
A holding company is really just a BV (Private Limited Company).
In this article we will explain you the details of the Formation Deed, and why they are so important.
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