The public limited liability company (N.V.)
An N.V. is a legal entity with one or more registered transferable shares or shares made out to bearer.
The N.V. is incorporated by notarial deed executed by one or more incorporators before a civil law notary in Curaçao. This notarial deed of incorporation constitutes the definitive statutes and regulations governing the company and conduct of its affairs and those statutes and regulations are generally referred to as the articles of association.
Once incorporated, the N.V. must be registered with the Commercial Registry of the Chamber of Commerce and Industry. Details to be filed include the object of the N.V., its share capital (if any) and the particulars of the managing director(s), supervisory director(s) (if any) and possible attorneys-in-fact acting under general powers of attorney (procuratiehouders). There is no requirement to disclose the identity of shareholders.
From a company law perspective, there is no minimum share capital. Based on regulatory requirements, there are, however, minimum capital requirements for finance companies issuing publicly traded debt bonds, investment institutions, insurance companies and banks.
Shares of a N.V. can only be issued in registered form. Due to the change of law in January 2021, the concept of bearer shares no longer exists. When the bearer shares are still circulating, these can be exchanged these for registered shares. Until the conversion has taken place, the rights attached to bearer shares, such as the right to attend meetings, voting rights and dividend rights, cannot be exercised.
A management board (Raad van Bestuur) consisting of one or more managing directors, (bestuurders) who can be individuals or corporations, manages the N.V. The management board represents the company, defines its business policy and manages its affairs. There are no restrictions on the nationality of managing directors. In some cases, it is required to have at least one managing director being a resident of Curaçao (either an individual or a corporation). If provided for in the articles of association a N.V. may have a supervisory board (Raad van Commissarissen) to oversee the management of the company and to advise and to supervise the management board. A supervisory board must exclusively consist of natural persons. Unless the articles of association determine otherwise, managing directors and supervisory directors are appointed by, and can be suspended or dismissed by, the general meeting of shareholders.
General meeting of shareholders
Unless the articles of association determine otherwise, shareholders meetings must be held in Curaçao. Attendance by proxy is permitted. Unless the articles of association state otherwise, a simple majority of votes present and represented at meetings can validly adopt resolutions with no quorum requirements. Written resolutions can also be adopted outside of a general meeting of shareholders, provided no bearer shares are in circulation and all persons entitled to attend a general meeting of shareholders have agreed with this manner of decision-making: An annual general meeting of shareholders should be held at least once a year, usually within eight months after the end of a company’s financial year. At the annual general meeting the financial statements and a report of the managing board should be submitted for approval together with such other matters as may be set out in the notice convening the meeting. Extraordinary general meetings of shareholders may be convened from time to time to deal with matters that arise during the course of the year. Such extraordinary general meetings may also, in certain cases, be convened by the management or supervisory board at the request of shareholders controlling 10% or more of the issued voting shares.
The financial year of a N.V may be the calendar year or any other twelve-month period to be specified in the articles of association. Each year, the management board has to draw up financial statements within eight months after the lapse of the financial year, which statements consist of at least a balance sheet, a profit and loss statement and an explanatory note to these statements. The general meeting of shareholders may extend this period by six months at the most, based on ‘special circumstances’. The Civil Code does not elaborate on what would be considered special circumstances.
Accounting and financial statements
The financial statements have to comply with generally acceptable standards and have to provide such insights, that a sound opinion can be formed on the capital and the results, as well as on the solvency and the liquidity of the company, in as far as the nature of the financial statements allows this. The Civil Code does not state what rules as to financial reporting are considered generally acceptable. For N.V’s designated by Book 2 of the Civil Code as being “large”, specific and more stringent requirements apply with regard to the accounting principles and criteria for the composition of the financial statements, the publication of the financial statements, as well as with regard to the obligation to have them audited by experts.
Profits and distributions
The net profits of a N.V are at the disposal of the shareholders who can either declare a dividend or reserve the profits. If the articles of association so provide, interim dividends may be declared from current year profits by the shareholders meeting or such other corporate body as appointed thereto in the articles of association. Dividends and other capital distributions cannot be paid and made if the equity capital is or becomes negative as a result of such dividend or distribution. If the company has a nominal share capital that capital is considered the limit.