Changes to the SA/NV regime are much less significant than those of the SRL/BV corporate form. This is because of EU constraints and directives harmonizing the share capital of companies throughout Europe. Below are the main changes made by the lawmaker.
Sole corporate form with share capital
The SA/NV form becomes the only corporate form with share capital. It is intended for (very) large companies with a significant number of shareholders, regardless of identity.
From 1 May 2019, an SA/NV may be incorporated by one shareholder only (individual or legal entity).
Moreover, sole shareholdership will no longer entail the joint liability of such shareholder for the debts of the company in which it holds shares.
Multiple voting rights are possible
The rule of one share equals one vote becomes supplementary. It is now possible to attach multiple voting rights to shares of an SA/NV.
The sole requirement is that an SA/NV must issue at least one share and at least one share must have a voting right attached to it.
For listed companies, a dual voting right (not multiple) may be attached to registered, fully paid-up shares which have been continuously held for two years. Such dual voting right is intended to reward those ‘loyal’ shareholders who invest in a company on a long-term basis, as opposed to short-term investors.
As far as dividend rights are concerned, the supplementary rule is that each share entitles its owner to a portion of the dividends and liquidation proceeds pro rata the amount that share represents in the share capital.
One-tier, two-tier or sole directorship governance
An SA/NV may opt for one of three governance models:
- one-tier governance, which basically consists of a “typical” board of directors; or
- two-tier governance, which consists of two independent bodies, the supervisory board (conseil de surveillance / raad van toezicht) and the executive board (conseil de direction / directieraad); or
- sole directorship.
Explore this topic further under our Governance checklist.
Acquisition of own shares becomes more flexible
The maximum threshold of 20% of own shares has been abolished. An SA/NV can therefore now purchase its own shares without any limitation.
Acquisition by an SA/NV of its own shares will require a 75% majority at the shareholders’ meeting (instead of the previous 80%).
As long as the shares are held by the company itself, there is no right (vote or dividend) attached to them.
Distribution of interim dividends becomes easier
Distribution of interim dividends becomes more flexible. First, the prohibition on distributing dividends during the first six months of the financial year and the waiting period of three months between two distributions have been revoked. In other words, distribution can occur at any time during the financial year.
Second, the board of directors can now distribute interim dividends even in relation to a previous closed financial year, as long as the shareholders’ meeting has not yet approved the annual accounts of such financial year.
Distribution of interim dividends by the management body must still be expressly allowed in the bylaws.
No shareholders’ approval required for change of control clauses
The former rule that a special shareholders’ meeting is required to approve a change of control clause in an agreement has been abolished for a non-listed SA/NV.
It does however still apply to listed companies, and for agreements or transactions that have a significant impact on the assets of such listed companies.
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