What is the main source of law authorising this entity form?

Belgian Companies and Associations’ Code, Book 7, articles 7:1 through 7:232 (Wetboek van Vennootschappen en Verenigingen/Code des Sociétés et des Associations) (hereafter BCAC).

Give a brief summary of this entity form, including

Does the entity possess separate legal personality?

The NV/SA has legal personality.

(Maximum) period of existence

There is no maximum period of existence, although the Articles of Association can provide for a limited duration.

Governing document(s)

The NV/SA is governed by its Articles of Association (contained in the notarial deed of incorporation, with the subsequent modifications published in the Annexes to the Belgian Official Gazette (Bijlagen tot het Belgische Staatsblad/Annexes au Moniteur belge) (hereafter BOG) – consolidated version available at the clerk’s office of the Enterprise Court or via a publicly available database for consolidated Articles of Association as from May 1st, 2019.

Liability of incorporators / shareholders

Liability of founders (oprichters/fondateurs) if bankruptcy occurs during the first three (3) years and if it is proven that the contributions at the time of the incorporation, considering all financial means made available to the company (such as shareholder or bank loans), were not sufficient to carry out a normal activity during the first two (2) years. It is possible to exclude certain persons contributing to the incorporation of the company from the founder’s liability.

Liability of shareholders (aandeelhouders/actionnaires) is limited to their participation in the company.

(Governing) bodies

The Board of Directors (raad van bestuur/conseil d’administration), composed of directors (bestuurders/administrateurs) acting as a college, or one (1) director.

In case of a dual administration, a Supervisory Board (Raad van toezicht/Conseil de surveillance) and an Executive Board (Directieraad/Conseil de direction).

Other particularities

NA

Can this type of entity be involved in international transactions and restructurings (e.g. cross border mergers, asset acquisitions, equity acquisitions, etc.)?

Under Belgian law, it is possible for an NV/SA to enter into legal mergers (whereby the company ceases to exist by operation of law and its assets are acquired under a universal succession of title) and demergers of all or portion of its assets and liabilities (with a universal succession of title to the relevant assets), and conversions (changing into another legal form without ceasing to exist).

International restructurings like the above are possible, however, only pursuant to specific legal provisions contained in the BCAC.

Can this type of entity be publicly listed or held?

Yes.

Can this type of entity be used for a non-profit or charitable organization?

No, it cannot. Non-profit or charitable organisations opt for specific legal forms such as the (international) non-profit association ((Internationale) Vereniging Zonder Winstoogmerk or (I)VZW/Association (Internationale) Sans But Lucratif or A(I)SBL), the foundation of public utility (stichting van openbare nut/fondation d’utilité publique) or the private foundation (private stichting/fondation privée), described in the BCAC.

Give a brief summary of the process of incorporation, formation, or organization, including

Main documents required

A notarial deed of incorporation must be executed in front of a Belgian notary public and published in the Annexes to the BOG. The deed can be executed pursuant to a power of attorney of the founder(s).

Submission of a financial plan to the Belgian notary public, preferably to be prepared by an accountant or auditor indicating that the company’s share capital, considering all financial means made available to the company (such as shareholders or bank loans) will be sufficient to conduct the business of the company for at least the first two (2) years of its existence.

Paying up of the share capital up to a minimum of EUR 61,500.

If applicable, delivery to the notary public of a bank certificate demonstrating that the contributions in cash to be paid-up at the time of incorporation have been transferred by the founders to a company’s blocked bank account.

If applicable, reports from an external accountant and the founders on the contributions in kind.

Involvement of notary, company register, governmental authorities

The NV/SA must be registered with the Crossroads Bank for Enterprises (Kruispuntbank van Ondernemingen or KBO/Banque-Carrefour des Entreprises) (hereafter CBE) and must file its notarial deed of incorporation and other subsequent modifications, as prescribed by the BCAC, with the clerk’s office of the relevant Enterprise Court (Ondernemingsrechtbank/Tribunal de l’entreprise). The legal personality is acquired as from the filing of the notarial deed of incorporation with the aforementioned clerk’s office.

Timing (estimate)

The incorporation is not subject to any waiting periods. The incorporation process takes an average of 10 working days from the time the file has been completed.

Main costs, including registration and similar fees (excluding legal fees)

Lawyers’ fees;

Notarial fees; and

Publication fees (VAT incl.): approx. EUR 270 (electronic submission) or EUR 335 (paper submission).

Is a description of the anticipated business or purpose of the entity required for incorporation, formation or organization?

The corporate objects/purpose must be stated in the Articles of Association and the VAT activities code must be stated in the CBE upon registration of the company.

Minimum number of incorporators / shareholders and residency requirements

A NV/SA may be established by one (1) shareholder, acting alone, or multiple shareholders, acting together (aandeelhouders/actionnaires), which can be natural persons or legal entities. There is no residency requirement.

Minimum number of directors (or other applicable officers) and residency requirements

There are three (3) systems to choose from for the management of a NV/SA:

The monistic administration:

This system corresponds to the most commonly known system, in which a Board of Directors acting as a single collegiate management body operates the management of the company. This board must be composed of at least three directors.

A single director:

The BCAC provides for the possibility to opt for a single director, whose liability is in principle limited, unless otherwise specified in the Articles of Association. This sole director can be either a natural person or a legal entity. However, in a listed company, this sole director must always be a NV/SA, which in turn has a collegiate Board of Directors.

Dual administration:

Under this system, management is entrusted to two bodies; a Supervisory Board and an Executive Board. The Supervisory Board exercises a supervisory function.

• The following conditions apply in this context –
• the two bodies are collegiate bodies;
• each body must have at least three (3) members (i.e. a total of six (6));
• double mandates are prohibited – a member of one body may not be a member of the other, not even the CEO;
• powers are exclusive – i.e. each organ is entrusted with a set of tasks which are clearly defined in advance in the Articles of Association. In other words, the overall business strategy and control of the Executive Board belong to the Supervisory Board, while the Executive Board is responsible for the operational part of the tasks.

The members of the Executive Board are appointed by the Supervisory Board, whose members are in turn appointed by the shareholders.

There is no residency requirement.

Minimum share capital, or equivalent, and payment requirements (including opening a bank account)

The minimum share capital of the NV/SA is EUR 61,500 and at the incorporation, this minimum share capital must be fully paid-up. In case the subscribed capital is higher than EUR 61,500, a quarter of each share (subscribed in cash or in kind) must be paid-up at the incorporation of the company.

A bank certificate is required for the contributions in cash.

Is the physical presence of incorporators / directors required in the jurisdiction for incorporation, formation or organization?

No, the execution of the notarial deed may be carried out by virtue of a power of attorney.

Is a tax identification number, or equivalent, required? If so, how is it obtained?

Yes, it is obtained upon registration with the CBE.

What is the title of the applicable company registry?

Crossroads Bank for Enterprises (Kruispuntbank van Ondernemingen or KBO/Banque-Carrefour des Entreprises or BCE).

What types of information must be filed at the (company) register, and which of them will it be publicly available, e.g.: Articles , Ownership identification (direct and/or indirect ownership, 'beneficial owners') , Group structure , Share capital , Directors , Accounts , Insolvency, good-standing, liquidation , Liens and encumbrances on the shares , Liens and encumbrances on assets of the entity , Other (e.g. litigation, tax matters)

The information listed below must be filed at the clerk’s office of the relevant Enterprise Court and/or published in the Annexes to the BOG and/or with the National Bank of Belgium and is publicly available –

• Articles of association (extract from the notarial deed of incorporation and modification);
• Any variation of the company’s share capital;
• Appointment and cessation of duties of directors;
• Annual accounts;
• Insolvency and liquidation;
• Mergers and demergers;
• VAT activity code(s); and
• Registered office.

In addition to the foregoing, legislation entered into force in 2019 regarding the mandatory identification of the ‘ultimate beneficial owners’ of Belgian companies with the Federal Public Service of Finance - UBO Register (UBO-register/Registre UBO).

Additional information can be provided, such as contact details.

What is the title of the executive body and its members? What are their main duties, tasks and responsibilities?

The management body of the NV/SA (as explained under section II) shall:

• carry out all acts either necessary or useful to the achievement of the company’s purpose;
• represent the company towards third parties or for judicial purposes; and
• have the residual powers; i.e. all the powers that are not specifically granted by the BCAC or the articles of association to another body of the company.

How are the members of the executive body appointed, dismissed and replaced?

Directors are initially appointed in the notarial deed of incorporation and thereafter appointed by the General Meeting of shareholders (algemene vergadering van aandeelhouders/assemblée générale des actionnaires), or by the Supervisory Board in case of a dual administration (cf. supra). If a legal entity is appointed as director, it has to designate a permanent representative who must no longer be included among its shareholders, managers, directors, or employees. The identity of the permanent representative is subject to a publication requirement in the Annexes of the BOG and at the CBE.

The director(s) may delegate the daily management powers to one (1) or several persons.

Directors can only be appointed for a term of a limited duration of six (6) years. However, there is no legal limit regarding the number of terms, consecutive or not, during which a director can exercise said function. Directors can be dismissed ad nutum, unless the Articles of Association or appointment decision have stated otherwise.

Dismissal and replacements occur by the shareholders (or by the Supervisory Board in case of a dual administration).

Note: Any changes must be registered with the CBE.

Is it possible to appoint corporate directors or must all directors be natural persons?

See Question 17 above. The Board of Directors is also in charge of the daily management of the NV/SA. However, it is possible to delegate the daily management to one (1) or more director(s) and/or third party(ies).

Is there a requirement to have non-executive directors? How are they appointed, dismissed and replaced? Do non-executive directors serve on a separate body (two-tier structure) or can a one-tier board (with executive and non-executives) be appointed, or is some alternate structure used?

There are no requirements to have executive/non-executive directors except for listed NV/SA.

In a non-listed NV/SA, it is possible to have executive and non-executive directors.

In a listed NV/SA, at least half of the directors must be non-executive directors.

The non-executive directors are appointed, dismissed and replaced by the General Meeting of shareholders.

The non-executive directors incur the same liability as the executive directors.

In a listed NV/SA, an audit committee (auditcomité/’comité d’audit) must be created. It will be composed of non-executive directors, who all must meet the independence requirements.

What is the title of the body of owners / shareholders / members, and what are the main tasks / responsibilities / powers of that body?

The body of shareholders is referred to as the General Meeting of shareholders. The General Meeting of shareholders notably appoints and dismisses directors, approves the annual accounts, modifies the Articles of Association and the company’s purpose, resolves on issuance of shares, capital reductions, distributions, and on the dissolution and liquidation of the NV/SA.

What are the majority and quorum requirements for decisions by the shareholders? Can they be varied or changed?

By default, the majority and quorum requirements follow the principle of the simple majority (the majority of the expressed votes – thus excluding blank votes and abstentions – among attendees is required).

The BCAC provides for special quorums and majorities for the decisions listed below:

• Modifications of the Articles of Association and the dissolution of the company require the attendees to represent at least half of the share capital and a voting quorum of at least three-quarters of the votes;
• Modifications of the company’s purpose require the attendees to represent half of the share capital and a voting quorum of four-fifths of the votes;
• Modifications of rights associated with titles require the quorum and majority conditions for the modification of the Articles of Association to be respected in each title category.

The Articles of Associations can contain provisions derogating from the above quorums – i.e. the Articles of Association can impose higher presence and voting quorums.

Any special governance regimes (e.g. depending on size, being listed at a stock exchange, or other criteria)?

Under Belgian law, there is a special large company regime. If a company meets more than one (1) of the following three (3) threshold requirements, then it must comply with the provisions as set out in that regime. The threshold requirements include:

• having an annual turnover (VAT excluded) of at least EUR 9 million;
• having at least 50 employees; and
• having a total balance sheet of at least EUR 4.5 million.

Under the special regime, the company must appoint a statutory auditor (commissaris/commissaire) and have a Works Council (Ondernemingsraad/Conseil d’Entreprise).

What are the periodic accounting obligations incumbent upon the entity? To whom must those accounts be submitted?

Each year, the balance sheet, the profit and loss account, and the annexes (i.e. the annual accounts) and an annual management report must be prepared by the executive body and submitted for approval to the General Meeting of shareholders.

The annual accounts must then be filed with the National Bank of Belgium.

It must be noted that small companies and micro-companies, as defined by the BCAC, may submit simplified versions of the aforementioned documents, and do not have to draft a management report.

Is the entity permitted to determine its own financial year?

Yes. The financial year must not coincide with the calendar year.

Is the entity subject to any statutory (external) auditor obligations?

In large companies (and companies with consolidated accounts), a statutory auditor shall be appointed by the General Meeting of shareholders for three (3) financial years (this appointment is indefinitely renewable).

Small companies can either appoint an accountant or grant a right of investigation and control to each shareholder, or voluntarily appoint a statutory auditor.

Requirements to appoint other persons (officers, secretary, internal auditor / accountants). If so, what are their functions? Are there any residency requirements?

No.

What is the title designated for ‘ownership interests' (e.g. shares, quota, interests, membership)?

Shares (aandelen/actions).

Are different classes of ownership interests possible? If so, what are some examples of different classes?

Yes, different classes of ownership interests are possible.

• Meeting rights are attributed to all kinds of shares. Shares can include a voting right, however this is not required. This is equally the case for dividend rights, shares can be entitled to them, but such right may also be excluded for one (1) or multiple types of shares. However, shares without voting rights can still be entitled to a privileged dividend, if such privileged dividend is embedded in the Articles of Association.
• Certificates (certificaten/certificats) on the shares may also be created, enabling the holder of the certificate to receive all pecuniary rights attached to the shares, while the other rights attached to the shares (e.g. voting rights) are exercised by the issuer of the certificate.
• (Convertible) bonds ((converteerbare) obligaties/obligations (convertibles)) can also be issued.
• Subscription rights (inschrijvingsrechten/droit de souscription) can be created.

Preference shares (winstbewijzen/parts bénéficiaires) can also be issued. The rights and obligations attached to those preference shares are determined in the Articles of Association.

What documentation is required for the transfer of ownership interests?

Bonds and shares are transferred through registration in the shares/bonds register of the company. This registration is a condition for the effectiveness of the transfer towards the company and towards third parties. Both registers must be kept at the registered office of the company, or through an electronic register.

Are there any additional formal requirements required for the transfer of ownership (notary, approvals, stamping, filings, corporate records)?

In principle, the transfer of shares is free in a NV/SA.

However, the Articles of Association or a shareholders agreement can restrict the free transfer of shares by stipulating a pre-emptive right, prior approval (instemming/agrément) of the transferee of the shares etc.

Are there any applicable stamp duties imposed when transferring ownership interests?

No.

How are shares issued? (including information on payment obligations, registration requirements)

Shares represent the share capital of the company. They are issued upon the incorporation of the company or capital increase. In the latter case, it is decided by the General Meeting of shareholders, which resolution must be formalised through a notarial deed, and registered in the share register. The capital increase shall be published in the Annexes to the BOG.

Further information on equity contributions, e.g. , Non-cash payments on shares; (Share premium) contributions without issuance of shares , Can partially paid shares/ownership interests permitted and what are the restrictions on them?

In-kind contributions are possible for any asset which can be economically valued. However, the commitment to provide work or services to the company (inbreng in nijverheid/apport en industrie) cannot be remunerated by shares.

In the event of in-kind contributions remunerated by shares, a special report on their economic value and the valuation methods must be drafted by an auditor. In addition, the Board of Directors or the director(s) must issue a report on the aforementioned auditor’s report. Both reports must be filed with the clerk’s office of the relevant Enterprise Court.

Where an issue premium for the new shares is provided for, the amount of the issue premium must be fully paid-up upon subscription.

Any requirements with respect to share cancellation, share repurchase and other capital reductions

Share repurchases (verkrijging van eigen aandelen/acquisition d’actions propres) are possible if (i) the repurchase is authorised by a prior decision of the General Meeting of shareholders, taken in accordance with the quorum and majority requirements for amending the articles of association, (ii) the amount allocated to the repurchase is available for distribution, (iii) the shares to be repurchased are entirely paid-up, and (iv) the repurchase is offered on the same terms (per class of securities) to all shareholders.

Share cancellation (aflossing van het kapitaal/amortissement du capital) and capital reduction must be approved by the General Meeting of shareholders respecting reinforced quorum and majority thresholds (those applicable to the modification of the Articles of Association) and require sufficient equity.

No other capital reductions are applicable.

Any requirements with respect to distributions to shareholders?

Distributions are not allowed if they would result in the net assets falling below the paid-up capital or, if higher, the called capital, accrued with all the reserves that the law or the Articles of Association prohibit to distribute.

Can the owners or shareholders adopt a restrictive or governing agreement among themselves such as a Shareholders Agreement?

Yes, provided it complies with the Articles of Association and the BCAC.

Which are the typical annual maintenance costs of maintaining the existence and legal good standing of such an entity (excluding legal fees)?

The company must maintain its business address and have a Board of Directors or one (1) or more director(s) acting separately. Each year, the shareholders must hold their annual general meeting (or adopt a resolution in writing). In addition, annual accounts must be prepared and adopted each year and the applicable tax filings must be made and filed.

What are the general corporate tax rates? (Specify if there is a national versus local distinction).

The general corporate tax rate is 25 %, although ‘small’ companies can benefit from a lower tax rate of 20% on the first EUR 100,000 of taxable income.

Summary of any specific matters, e.g. recent or prospective major legal developments

The (new) BCAC entered into force on 1 May 2019 for newly incorporated companies.

For existing companies, the mandatory provisions of the BCAC apply as from 1 January 2020, regardless of the amendment of their Articles of Association.

The existing companies have until 1 January 2024 to have their Articles of Association made compliant with the BCAC. Between 1 January 1 2020 and 1 January 2024, if a provision of the Articles of Association of an existing company would contradict a mandatory provision of the BCAC, the mandatory provision of the BCAC will prevail.

Each company modifying its Article of Associations between 1 January 2020 and 1 January 2024, shall adapt them to the provisions of the BCAC.

One of the important changes included in the updated BCAC concerns the directors’ liability. In short, directors’ liability is limited to a maximum amount, which depends on the company’s turnover and balance sheet total. However, the liability of a director cannot be further limited than what is provided for in the BCAC.

This liability limitation applies both to the company itself and to third parties, regardless of the (contractual or non-contractual) basis of the liability claim.

The maximum amounts also apply to all directors together. They apply to each fact separately or to a whole of facts that may give rise to liability, regardless of the number of claimants or claims.

However, the liability limitation does not apply in the following instances:

• in the event of a minor fault of a habitual (other than accidental) nature, gross negligence, fraudulent intent or with malice aforethought on the part of the person responsible;
• to obligations that have to do with the subscription and paying up of shares or a capital increase;
• to joint and several liability with regard to overdue wage withholding tax and VAT; and
• to joint and several liability with regard to overdue social security contributions.

A director's liability insurance could protect the company’s directors against all financial damages claims by third parties suing them for errors committed as a director. The insurance company then pays the damages claim and might pay for the costs of the director’s defence as well if such coverage would be included in the insurance policy.