Startup roadmap: Setting up a Dutch B.V.
Setting up and running a startup requires knowledge of the industry that you are in. It also requires knowledge about finance, marketing, customer service, management, and legal matters. There is no way of knowing everything you need to know, which is why the network that supports you becomes a valuable tool and asset.
Mireille Hesselmans-Neijzen is a senior deputy civil-law notary at VBC Notarissen and she specializes in mergers, acquisitions and conversions, joint ventures and other transactions, as well as the reorganization and restructuring of large and medium-sized concerns. Furthermore she loves giving advice and support to startups as legal mentor of the Web & Mobile Program at Rockstart. In this article Mireille explains the proces of Incorporation.
Setting up a Dutch B.V.
In the Netherlands, startups incorporate themselves as a B.V. (which is a limited liability company). This in effect forms a new business entity with its own rights and obligations and as such limits the personal liability of the founders. Creditors can only make claims on the assets of the B.V. and not on the assets of the management board members or the shareholders. Incorporating a B.V. also allows you to create a share capital and issue shares to investors.
The most common way for founders to incorporate a startup company is through a personal holding company, for tax reasons. Each founder will first incorporate a personal holding company and subsequently the personal holding companies of all founders together incorporate an operational startup company (“Startup B.V.”). In case of 3 founders, this means that the company structure will look like this:
As mentioned above, this structure is best for tax reasons. The Dutch Participation Exemption is formulated so that if the proceeds of your Startup B.V. (e.g. exit proceeds or dividends) go into a holding company’s accounts, you don’t have to pay any taxes on these proceeds at the level of your holding company (provided the holding company owns more than 5% in the Startup B.V.). This means you can use the full amount of the exit proceeds or dividend to invest in other companies or leave it within your holding company to save for the future. Only when you distribute money from your holding company to yourself in person, do you have to pay taxes.
The example above assumes that there are 3 founders, each having quite a big piece of the startup pie. In case of smaller shareholders (e.g. employees), ask your notary to advise you on incorporating a special foundation (known as a stichting administratiekantoor or in short STAK) to bundle the shares of the smaller shareholders, to ensure that your startup’s cap table is as clean as possible (i.e. you don’t want too many shareholders to avoid complications in the decision making process).
Incorporate your startup with a notarial deed
To incorporate your company structure, you need to go to a Dutch notary, who creates notarial deeds of incorporation for each founder’s holding company as well as the operational startup company. The notarial deed includes the so called Articles of Association (also known as the bylaws and hereinafter called: Articles), which include several provisions as to how the company will be governed after incorporation. These provisions are mainly an implementation of the default rules under the applicable Dutch corporate law (Book 2 of the Dutch Civil Code). Below we have listed the main elements and a short explanation of what they are. Keep in mind, any time you wish to change the Articles, you need to go back to the notary. In this sense it’s a good idea to keep the Articles as standard and flexible as possible when incorporating. For specific shareholders rights and obligations (such as approval rights, vesting, lock-up and share transfer restrictions), it is recommended to make a shareholders agreement. This is a private agreement (i.e. not available to the public) which will be further explained in a future blog post. For now we concentrate on the Articles:
The B.V. must have a name which is distinguishable from other existing company names.
The Articles describes the core purposes of the B.V.
The B.V. will have a capital divided by shares. The share capital must consist of one or more shares with a certain nominal value. In order to make it easier to issue shares in the future, it is advisable to start with a high number of shares and a low nominal value per share. For example start with 10,000 shares of EUR 0.01 each. When choosing the nominal value for each share, be aware that you are required to actually pay the amount of each share to the company.
You can add different rights to the shares, but it is recommended to start with standard Articles and only start adding or changing rights to shares in the Articles when that is really necessary (e.g. because an investor so requires).
Transfer of shares
In general, every Startup B.V. has a clause that stipulates what happens in the event that one of the shareholders wants to transfer their shares. There are many ways to do this, and having a blocking clause in your Articles will dictate how this happens. The most common blocking clause is if a shareholder wishes to transfer his shares, he must first offer his shares to the other shareholders (a so called: right of first refusal).
Within each B.V. there are two corporate bodies: (i) the Management Board, who is responsible for operations and day to day management, and (ii) the General Meeting, which is comprised of all shareholders. Normally at incorporation, the Management Board consists of the company founder(s). You can choose to say that each single member of the Management Board can represent and enter into obligations on behalf of the company, or that you always need two or more signatures. The General Meeting has all powers that are not specifically assigned to the Management Board and by law has the authority on (among other things) the following matters: appoint and dismiss management board members, issue shares, change the articles of association, adopt the annual accounts and the voluntary liquidation of the company.
The Articles need to state the financial year that the company will follow. The most common financial year is the calendar year. The first financial year can be a short financial year, running up to and including the 31st day of December of the year of incorporation or an extended financial year, running up to and including the 31st day of December of the first year after the year of incorporation. To save administrative costs, a Startup B.V. is almost always incorporated with an extended first financial year.
Timeframe and post-incorporation
The incorporation procedure takes between 1-4 weeks depending on the complexity of the shareholder-structure and whether the founders are located in the Netherlands or in a foreign country. As the notary has to verify the identity of every person that is a party to a notarial deed, the procedure of setting up a company structure will go much more quicker if all founders are in the Netherlands and able to meet with the notary. When the founders are abroad it is still possible to set up a company structure in the Netherlands, but then the founders will need to arrange for legalized and apostilled passport copies and powers of attorney, which may take some time (in some countries this is done super quick, in other countries it may take weeks).
Registration Dutch Trade Register and Shareholders’s Register
After the incorporation of the company structure, the notary will make sure that each company is registered with the Dutch trade register. This is required by law. As part of this registration, the company’s Articles will become public.
Furthermore, the notary will prepare a register of shareholders for each incorporated company and give that to the Management Board. The shareholders’ register includes the contact details and number of shares held by each shareholder. The Management Board is responsible for keeping the shareholders’ register up to date.
As soon as your Startup B.V. is incorporated it is important to make sure that the Startup B.V. becomes the owner of any existing and future intellectual property rights (e.g. the website domain, the designs and products, the company logo, know how, etc etc). Any existing intellectual property rights can be transferred to the Startup B.V. by means of an IP-transfer agreement. For any future intellectual property rights you have to make sure that the creator will be bound by an employment or services agreement, containing a standard IP transfer clause.
Although it is not required by law, it is recommended to have a shareholders agreement to regulate the relationship between the shareholders.
Keep all of these ideas in mind when you are going through the first steps of organizing your startup. Even if you have already gone through this process, we hope that this will give you further understanding to how your current business is established.
VBC Notarissen (‘civil-law notaries’) is the nr.1 stand-alone notarial law firm in the Netherlands. It is a full-service (notarial) law firm with extensive experience in guiding and advising of its variety of clients, from individuals to (international) medium and large enterprises and governmental entities.
This article was posted by Mireille as part of a series of blogs in her role as legal mentor at Rockstart. Rockstart Law School focuses on the Dutch law system and is meant as a resource and gives you lessons learned and suggestions, but is not meant to be used in the place of legal advice. Always consult your lawyer, but we hope these series of posts will give you a greater understanding of the legal needs and points of attention that you may encounter during your startup journey.
Gepubliceerd op 28 november 2016