The seperator share after withdrawal or exclusion

The Companies and Associations Code (CAC) makes it possible to include a withdrawal and exclusion option in the articles of association of a private limited company (BV). The Accounting Standards Commission (CBN) has now provided an explanation of the accounting treatment for the BV in case a shareholder withdraws or is excluded.

Withdrawal and exclusion from the BV

The withdrawal and exclusion scheme is an optional scheme in a BV. This means that a withdrawal or exclusion from the company's assets is only permitted if the articles of association provide for this possibility.

The CAC does contain a number of modalities that will apply if there is a withdrawal or exclusion regulation in the articles of association.

Voluntary withdrawal

The voluntary withdrawal of a founding shareholder is only possible with effect from the third financial year after the incorporation, regardless of what the articles of association may provide.

Other rules regarding voluntary withdrawal are:

that shareholders can only withdraw during the first six months of the financial year;

that a shareholder withdraws with all his shares, whereby these shares are cancelled;

that the withdrawal takes effect on the last day of the sixth month of the financial year, whereby the amount of the separation share must be paid out at the latest one month afterwards;

that the amount of the separator share per share equals the amount actually paid up for that share and not yet repaid, with a maximum of the net asset value of the share as shown in the most recently approved annual accounts.

It is possible to deviate from these 4 rules via the articles of association.

The distribution of the amount of the separator share is regarded as a distribution to which the distribution tests apply: the net asset test of Article 5:142 of the CAC and the liquidity test of Article 5:143 of the CAC. It is not possible to deviate from this in the articles of association.

The board of directors must report to the ordinary general meeting on the withdrawal requests submitted during the previous financial year.

Withdrawal by force of law or due to the loss of the statutory capacity

The articles of association of a BV may also contain an arrangement whereby it is assumed that a shareholder has withdrawn by force of law in the event of:

death, bankruptcy, apparent insolvency, liquidation or declaration of incompetence of a shareholder; or

no longer meeting the statutory requirements to become a shareholder.

The withdrawal is then deemed to take place at the time that circumstance occurs and the same legal provisions apply as for a voluntary withdrawal, with the exception of the periods. Attention! If the statutes do not provide anything, this is not possible.

Exclusion

The exclusion of a shareholder from the assets of the BV takes place at the initiative of the administrative body. Exclusion is only possible if the articles of association of the BV explicitly provide for the possibility of exclusion, for a legal reason or for other reasons stated in the articles of association.

In order to exclude a shareholder, the administrative body must communicate a reasoned proposal for exclusion to the shareholder concerned. The shareholder concerned is requested to submit his comments in writing to the general meeting within one month after receiving the proposal for exclusion. The shareholder can ask to be heard.

Only the general meeting is authorized to decide on the exclusion and the exclusion must be motivated. The administrative body will then inform the shareholder of the motivated decision of the general meeting within fifteen days and register the exclusion in the share register, stating the date of exclusion and the amounts that will be paid to the shareholder concerned.

The exclusions and the ensuing amendments to the articles of association – because there is a change in the number of shares – are established before the end of the financial year in which the company exits, by means of an authentic deed executed at the request of the board of directors.

The shares of the excluded shareholder will be annulled.

Accounting processing of the seperator share

Unless the articles of association provide otherwise, the excluded shareholder is entitled to payment of a seperator share per share equal to the amount actually paid up for that share and not yet paid back, subject to a maximum of the net asset value of such share as shown. from the most recently approved annual accounts.
The benefit tests also apply here.

The board of directors determines on which components of the equity the amounts for the payment of the separation share are charged for accounting purposes. In doing so, the administrative body must, among other things, take into account the components of the equity capital that are unavailable by law or under the articles of association.

Insofar as the repayment of the separator share is charged on the contribution outside of capital, the following must be booked at the time of withdrawal or exclusion:
11    Contribution outside capital    XXX
        to     48 Miscellaneous debts            XXX

If the repayment of the separator share is charged to the reserves, this is entered in the appropriation of the result. At the time of the decision to withdraw or exclude and, where appropriate, when withdrawing from the reserves, the following entries are made:
697    Other rights holders            XXX
          to    48 Miscellaneous debts           XXX
133    Available reserves              XXX
         to     792 Withdrawal from reserves XXX

The effective payment of the seperator share must be suspended if the distribution tests prevent a full distribution. The suspension lasts until the payment tests allow the effective payment. The Commission is of the opinion that the BV should include this inability to pay out in the notes to its annual accounts.

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