Corporation (under the General Corporation Law of the
State of Delaware)
Société Anonyme SA (Stock
Société Anonyme SA (Public
and Private Corporation)
Aktiengesellschaft AG (Stock
Societá per Azioni SpA (Stock
vennootschap NV (Public limited liability
Anónima SA (Stock Corporation)
Limited Company Ltd (Limited Liability
voting shares; different classes of stock allowed with
different voting rights?
|| The company has
wide latitude in assigning varying voting rights to
different classes of stock in its organizational
documents, whether common or preferred. Preferred stock
can have voting rights more limited or more expansive
than common stock. Often, holders of preferred stock are
permitted to vote both their preferred stock and the
common shares into which their preferred stock are
convertible. Voting agreements are also common.
Preferred voting shares are not possible. Each
share confers one vote at the general meeting of
shareholders. It is possible to issue non-voting shares
with special advantages under certain conditions. It is
also possible to issue non-equity shares (parts
bénéficiaires), the rights of which are
determined by the organizational documents.
Different classes of stock are possible in an SA;
certain decisions can require a majority vote of each
Organizational documents may limit the number of
votes which each shareholder holds in the general
meeting, provided such limitation applies to each
| Usually each share
has one vote. Classes of common, preferred and non-voting
shares may be created. Rights within each class must be
equal unless changed by a supermajority vote. Non-voting
shares receive special dividend rights.
|| Each share has one
vote. Voting shares with different economic rights can be
created (e.g, liquidation preference) but different
voting rights are not possible. In addition, preferential
but non-voting shares can be created.
Not possible. Shares may not carry multiple
Organizational documents may limit the voting rights
of preferred dividend shares; limited voting shares may
be issued for an amount up to half of the share
Unless the organizational documents provide
otherwise, all shareholders have equal rights in
proportion to the nominal value of their shares.
Provisions in the organizational documents concerning
voting rights may limit, but not completely eliminate,
these rights. Presently, non-voting rights do not
In addition, the organizational documents can
provide for priority shares (prioriteitsaandelen) which
give their holders certain powers, including:
- the right to make binding nominations regarding
the appointment, suspension and dismissal of board
- the right to veto the issuance of new
- the right to create reserves out of annual
- the right to veto proposed amendments to the
| Not possible.
Different classes of shares with varying rights
Preference shares are usually non-convertible with a
cumulative dividend. They are usually redeemable within
a certain time frame.
Preference ordinary shares usually carry
preferential investor terms and are convertible on a
listing or sale into standard ordinary shares
– there is wide flexibility for a company to
issue shares on a variety of terms.
Rights set out in organizational documents should
also be incorporated in the shareholders'
Convertible Shares (Preferred to
|| Preferred stock
can be designated as convertible into common stock at the
option of the holder or upon the occurrence of specified
|| Possible, subject
to shareholders' approval rights.
|| No express
prohibition against convertible shares; available types
of different classes of shares are limited.
|| The company's
organizational documents can specify that dividends on a
particular class of stock, common or preferred, be
dividends are cumulative. Voting shares with preferential
economic rights receive no cumulative dividends.
|| Not possible,
because a dividend does not exist until the shareholders
meeting declares it payable, based on current income and
earnings set aside from previous years. Cumulative
dividend result can be achieved using debt.
dividends are not possible. However, it is possible to
establish a minimum dividend in the organizational
|| Ordinary or
preference shares may include a right to cumulative
dividends, but this would be more usual in the case of
|| It is possible,
and in fact common, to issue classes of stock or
interests having a preference over common stock in the
payment of dividends.
|| Possible; however,
the Civil Code prohibits the allocation of all the
profits or losses to certain shareholders.
|| Possible; usually
in combination with non-voting shares but also possible
for voting shares.
|| It is possible to
issue shares which have a preference over ordinary shares
in the payment of dividends up to and limited to a
percentage of their nominal value as stated in the
|| Delaware law
generally prevents companies from borrowing money to
effectuate a redemption. Stock of a private company must
be redeemed in compliance with rights and restrictions
outlined in applicable shareholder agreements. Redemption
rights can exist at the option of the holder or the
company, or they can be triggered by external events such
as a liquidation, a change in control or a financing
With limited exceptions, a SA may acquire its own
shares by shareholder resolution (adopted with a quorum
of 50% of the capital and majority of 80% of the
Value of shares acquired may not exceed 10% of the
share capital and accumulated profits must be used to
The buy-back must be authorized by a
- Public SA: may only buy back 10% of its shares.
(Shares must be registered.)
- Private SA: May buy back its shares under certain
| There are limited
circumstances when a company can buy back its shares, and
then only up to 10% of share capital.
|| Possible, but
heavily restricted, due to the registered capital minimum
requirement. Company may only buy back up to 10% of its
share capital after shareholders meeting approval and
within the availability of retained earnings.
|| An NV may
repurchase (inkoop) shares provided that those shares
have been paid in full. The price for the repurchased
shares must be paid out of distributable reserves. The
NV, together with its subsidiaries, can own only 10% of
its own shares.
|| SA may issue
"acciones rescatables" (shares that can be redeemed by
the company). The amount is limited to 25% of the equity.
Otherwise, company may only buy back 10% of its share
capital, or 5% in the case of a listed company.
|| Possible, but
limited circumstances where company can buy back its
shares using capital. Requires 75% shareholder
|| The company can
issue options which allow the holder, during a specified
period of time, to purchase the company's stock at a
specified price. Options are often issued as part of an
employee compensation plan.
|| Possible, with a
10% or 20% limit of share capital. A SA may issue
subscription rights in favor of the beneficiaries.
|| Possible. Public
SA: option price is tied to price of shares. Lock up
period should consider tax position.
|| Possible. In order
to enable the company to issue (new) shares when stock
options are exercised, the company creates as "back-up"
either conditional capital (bedingtes Kapital) or
authorized capital (genehmigtes Kapital); 75% shareholder
| Possible whether
pursuant to employee share plans or otherwise.
Appointment of Directors
|| Directors are
elected for a specified term by vote of the company's
shareholders, in the manner outlined in the company's
organizational documents. The company's organizational
documents may permit the shareholders to remove a
director with or without cause. Shareholders can vote all
as one class or as separate classes and series of stock.
Often, the holders of a particular class or series of
stock (usually preferred) are permitted to elect a
specified number of directors to represent the interests
of that class or series on the board.
Board members are appointed by the general
meeting of shareholders. A SA may have proportional
representation (directors may be appointed from a list
of candidates presented by the different classes of
stock respectively) as long as there is the possibility
of effective choice by the general meeting of
shareholders, i.e. sufficient excess of candidates over
Directors may be removed at any time by the
shareholders' meeting without cause.
Organizational documents may not require a special
majority for removal of directors.
SAs may be managed by a one or two tier system.
- One Tier System: Board of directors are appointed
- Two Tier System: Supervisory board appointed by
shareholders and an executive board whose members are
appointed by the Supervisory Board but dismissed by
shareholders upon Supervisory Board proposal.
Shareholders can only appoint board members
indirectly through two-tier management board structure:
- shareholders may only appoint supervisory board
- supervisory board only may appoint board of
managing directors (Vorstand);
- shareholders may not instruct supervisory board
members to elect certain managing directors.
Directors are appointed by shareholder meetings.
Shareholders can appoint both internal or external
The board of directors can delegate some of its
functions to an executive committee (comitato
esecutivo) or to any one of its members (amministratore
The president and the members of the board of
auditors (collegio sindacale) are appointed by
shareholders' meeting. The members (sindaci) of the
board of auditors can be both internal or external, but
must be enrolled in the register of publicly admitted
| Managing directors
are appointed by the general meeting of shareholders. The
shareholders may be required to accept nominations made
by the management or (if applicable) the supervisory
board, by a particular type or class of shareholders or
any other person or institution, stated in the
organizational documents. These nominations can always be
overruled by a qualified majority of two-thirds of the
votes cast, representing more than half of the issued
The board of directors is elected by the
shareholders' general assembly. In rare cases, the
board may appoint shareholders to occupy vacant
positions until the next general meeting is held.
The directors may be dismissed without cause, at any
time, by a shareholders meeting.
- Directors can be appointed by board resolution or
by 50% shareholder resolution
- The minimum number of directors will usually be
two, but this can be varied by the organizational
documents or by 75% resolution of the
Shareholders Approval, Supermajority
- capital increase or decrease
- issuance of new class of
- modification of organizational
- change of management
| Ordinary business
matters are, by virtue of the company's organizational
documents, delegated by the shareholders to the Board of
Directors and the company's executive officers. However,
shareholder approval is still required for extraordinary
corporate actions. Therefore, shareholder approval must
be obtained for extraordinary corporate actions such as a
merger or consolidation, a sale of all or substantially
all of the corporate assets (other than in the regular
course of business), nonjudicial dissolution,
modification of corporate purpose or modification of the
company's organizational documents, either to change the
company's capital structure or otherwise. Delaware law
generally requires that such matters be approved by at
least a majority of the company's outstanding shares.
Typically, however, a company's organizational documents
will require that such matters be approved by a
supermajority vote, usually two-thirds or three-quarters
of all the outstanding shares.
It is possible to provide for qualified voting
majority in the organizational documents or a
shareholder agreement (other than for change of
management). Some increased majority and/or quorum are
required by operation of law:
- When decided by the general meeting of
shareholders, a capital increase or decrease requires
a quorum of at least 1/2 the capital and a majority
of 3/4 of the votes.
- Modification of corporate purpose requires quorum
of at least 1/2 of the capital and a majority of 4/5
of the votes.
- Dissolution of the company requires a 75%
majority vote (and certain other procedural
- Modification of organizational documents requires
a quorum of at least 1/2 the capital and a majority
of 75% of the votes.
Shareholders may not limit managerial powers of
- 2/3 supermajority vote required for: alteration
of organizational documents; mergers; spin-offs;
stock options; conversion.
- Change of management requires a majority
| No special voting
rights for shareholders. For special issues,
organizational documents may provide that board of
managing directors needs approval of supervisory board,
whereby organizational documents may provide for
supermajority in supervisory board. Special issues (which
directly affect the membership rights of the
shareholders) need approval of shareholders meeting.
Supermajority voting can be set forth in the
organizational documents for certain decisions taken in
extraordinary sessions (assemblea straordinaria).
No supermajority voting can be requested on second
call on certain matters left to the ordinary
shareholder meeting (assemblea ordinaria).
- For a resolution to decrease the capital, at
least a two-thirds majority is required at that
shareholders meeting of an NV if less than one-half
of the issued capital is represented at the meeting.
No qualified majority required for capital
- The organizational documents must be amended in
order to enable the corporation to issue shares of a
new class. No statutory qualified majority required
for the issuance of new class of shares.
- A vote to "split-up" the company is similar to a
vote to amend the organizational documents, except
that if less than one-half of the issued capital is
represented at the shareholders' meeting, a qualified
majority of two-thirds of the votes is required. A
split-up vote for a "qualified division" can only be
taken by a majority of three-fourths of the votes
cast in a meeting where at least 95% of the issued
capital is represented.
- Bylaws of the type commonly drawn up in the U.S.
are unknown in the Netherlands.
- The shareholders' meeting normally has the power
to appoint, suspend or dismiss managing directors
although the organizational documents may require an
increased majority and/or quorum.
It is not possible to limit the managerial powers
of the directors with respect to the business purpose
of the company. Any modification of the organizational
documents requires the prior approval of the
shareholder's assembly with a 2/3 super-majority.
It is possible to appoint directors that must take
decisions jointly (administradores mancomunados).
Spanish law allows:
- a sole director;
- joint and several directors;
- two "administradores mancomunados" for the SA;
- a board of directors.
Supermajority vote needed for increase or decrease
in capital; alteration of the company form; or merger,
splitting of the company.
- Shareholders' resolutions required for capital
- Shareholders may vote on capital increases, new
classes of shares, dissolution of the company or
modification of the organizational documents.
- Directors can be appointed and removed either by
50% resolution of the shareholders or by board
|| Shares of a public
company may be listed and are freely transferable. Shares
of a private company may not be offered to the public at
large and must be transferred in compliance with
restrictions imposed by federal and state securities laws
and any applicable shareholders agreements.
|| Shares are freely
transferable unless organizational documents provide
- Public SAs: Shares are freely transferable.
Restrictions may be placed in shareholders agreement
but have to be disclosed to market authorities.
- Private SAs: Shares are freely transferable.
Restrictions may be placed in company's
organizational documents or in a shareholders
| Shares are freely
|| Shares are freely
transferable. Usually a share in a SpA is transferred by
|| Bearer shares are
transferred by surrendering the share certificates.
Registered shares are transferred by a deed of transfer
executed before a Dutch civil law notary. Unless the NV
is a party to the transfer, shareholders' rights can only
be exercised by the new shareholder after the corporation
has acknowledged the transfer of the registered shares
(erkenning), or the notarial deed has been served upon by
a Dutch court bailiff (betekening).
|| Shares are freely
|| Shares may not be
offered to the public at large. Transfers are governed by
the company's organizational documents and any
Restrictions on Transfer; Right of First
Refusal and Right of First Offer
Registered shares of a public company are freely
transferable. Shares of a private company must be
transferred in compliance with restrictions imposed by:
- federal and state securities laws which may
require registration of the securities and/or the
shares sought to be transferred; and
- restrictions provided for in shareholder
agreements, such as share retention agreements,
rights of first offer or first refusal, tag along
rights, and drag along rights.
| Transfers may be
restricted through pre-emptive rights (clauses de
préemption); including right of first refusal and
right of first offer; or requirement of approval of
transfer by board of directors, group of shareholders or
third parties (clauses d'agrément). Clauses de
préemption and clauses d'agrément may last
for a maximum of six months from approval request or
invitation to exercise preemption rights; corporate
prohibitions on transfer (clauses
d'inaliénabilité) must be limited in time,
and for a definite period.
|| Transfers may be
restricted by organizational documents.
possibility for restrictions at AG level; restrictions
through shareholder agreements are enforceable.
restriction in organizational documents on transfer is
void. Requirement of board approval is not always
allowed. Restrictions on transfer generally contained in
a shareholders agreement.
|| Restrictions on
the transfer of NV shares are optional and must be set
forth in the organizational documents. Restrictions can
only apply to registered shares. Bearer shares are always
freely transferable. Permissible restrictions may include
a right of first refusal, an approval system or a
limitation that registered shareholders be individuals or
entities having certain qualifying characteristics.
Restrictions may not render transfer impossible or
There are no transfer restrictions unless:
- imposed by the organizational documents,
- shares are registered (nominatives).
| Restrictions may
be placed in organizational documents or by shareholders
agreement. Considerable flexibility exists including
pre-emptive rights, rights of first refusal, tag along
and drag along rights.