REPORTING OBLIGATIONS UNDER NETHERLANDS ANTILLES LAW
Reporting obligations which apply to publicly traded securities
The Disclosure of major holdings in listed companies act (the ‘Act’) requires the owners of shares in corporations which (a) are incorporated in accordance with Netherlands Antilles law, and (b) are listed or traded on certain specified stock exchanges to report exceeding or reaching certain threshold holdings.
The threshold values are 5, 10, 20, 33 1/3, 50 and 66 2/3% of the total voting rights in respect of shares issued by the company. The pertinent stock exchanges are specified in a separate decree: these are the Amsterdam, Frankfurt, London, New York, Paris and Tokyo stock exchanges. There is no requirement to report a reduction of a shareholding below a threshold level.
The owner is required to report:
a. its name, its address and the nature of the business conducted by it
b. the number and nature of the shares it ownes and, if the reporter is not the beneficial owner, the name(s) and address(es) of the beneficial owner(s), and
c. the percentage of outstanding shares owned and the percentage of total voting rights the owner can exercise.
In the event the shareholding equals or exceeds 10%, the owner should furthermore report whether it intents to acquire additional shares in the next twelve months and whether during that period it will seek to influence the policy of the company.
The Act is applicable to all securities which grant certain minimum voting rights to the owner thereof with respect to the company. In addition, the Act is applicable to the following related securities:
a. depository receipts for such securities
b. rights of pledge and usufruct on such securities, provided such rights confer the voting rights on the owner thereof, and
c. all contractual right to acquire such securities, including options (derivatives).
With respect to each of these related securities, both the owner of the original securities and the owner of the related securities is subject to the reporting obligations.
The Act applies to both the beneficial owner and to the registered, nominee holder of shares in listed companies and to the beneficial and registered or nominee holders of the derivative rights. The Act, however, is not applicable to shareholdings which result from the capacity of the owner as clearing institution, stockbroker and the like, provided such owner is licensed by one of the specified stock exchanges to conduct such business.
The report should be filed with the company, both to the address on the Island of the Netherlands Antilles where it the company is established and to an address of the company in the city or cities of the stock exchange or stock exchanges where its shares are listed. Both addresses should be registered by the company with the Netherlands Antilles Chamber of Commerce of the company’s Island of establishment. No special forms are required.
The Act requires that the report is filed ‘forthwith’. The requirement is satisfied if the company receives the report within five days after the threshold value was reached, unless the threshold value was reached due to the transfer of registered shares.
The Act requires that the shareholdings of all entities with a common ultimate shareholder be aggregated and that both beneficial and nominee holdings be taken into account. Consequently, the holdings should be aggregated under all circumstances.
Karel Frielink
Attorney (lawyer) / Partner
