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Decision of 18 March 1994 laying down rules on the recognition and granting of grants to private participation companies
We Beatrix, at the grace of God, Queen of the Netherlands, Princess of Orange-Nassau, etc. etc. etc.
On the proposal of our Minister of Economic Affairs of 24 November 1993, No WJA/JZ 93088661;
Having regard to Article 2 of the Framework Law, financial resources EZ;
The Council of State heard (opinion delivered on 15 February 1994, No W10.93 0777);
Having regard to the further report of our Minister of 14 March 1994, No WJA/JZ 94020460;
Have found good and understand:
For the purposes of this Decision and the provisions based thereon, the following definitions shall apply:
a. Bank: de Nederlandsche Bank N. V.;
b. Accountant: an accountant as referred to in Article 393, 1st paragraph, of Book 2 of the Civil Code ;
(c) Group: an economic unit, in which they are organisationally linked,
1 °. a natural or private legal person, directly or indirectly:
-provides more than half of the subscribed capital,
-is fully liable partner of or
-whereas control is controlled by one or more legal persons or companies, and
2. last legal persons or companies.
1 In this Decision and the provisions based thereon, a participation means:
(a) the shares in the capital of a company which has acquired the private participation company directly from the company from one and the same issue:
1 °. against the full payment of such shares in cash,
2 °. conversion of a stake, as referred to in the B , which is registered as referred to in Article 15 , or any part thereof, or
3. by conversion of a loan granted by the private holding company to the company, or to the company in formation, granted in cash for the purpose of obtaining such shares, with an effective maturity of not more than three years; months or part of that loan;
b. A shares convertible subordinated to a company which has acquired the private participation company:
1 °. by lending to the company a loan in cash or
2. by conversion of a loan granted by the private holding company to the company, or the company in formation, in cash, with an effective maturity of not more than three months or part of that loan.
2 In this Decision and the provisions based thereon, a reported participation means a participation within the meaning of Article 1 (1) (b) (b) (b) (b) (b) (b) (b G , from the Guarantee scheme private participation companies 1981, in respect of which the notification has not been recorded, as referred to in Article 13 (4) of that scheme.
3 In the first paragraph of this article and in the Chapter 3 and 4 'a company' means a company which fulfils the following requirements:
a. it is a public limited liability company or private limited liability company;
b. it is established in the Netherlands and operates mainly in the Netherlands;
c. does not employ more than 100 employees and is not part of a group employing a total of more than 200 employees;
d. its activities are not entirely or mainly in the areas of:
1 °. the banking and insurance policies;
2 °; the investment entity;
3 °. financing it in any way from one or more economic operators;
4. the acquisition, transfer, management or operation of immovable property;
5 °. the intermediate or immediate participation in companies the activities of which are wholly or principally in the areas listed below 1 ° to 4 °.
For the purposes of this Decision and the provisions based thereon, a subordinated loan shall mean a cash loan not covered by any form of security, to which the debtor in accordance with an appropriate provision in the deed of money loan in case of such a loan. of dissolution, an agreement after the granting of a payment or an agreement in the event of bankruptcy of the debtor, interest and repayment-to the extent that the time limits have not already been published for the time of the dissolution, the lodging of the agreement Request for the payment of the payment or the filing of the filing of bankruptcy proceedings; first is required to pay after all other debts of the debtor currently existing at that time, with the exception of those resulting from loans to which a provision of a similar nature is linked to that provision, have been fulfilled, has waived all rights to the interest and amortization account by virtue of the instrument of money loan referred to above.
(1) In this Decision and the provisions based thereon, the procurement price of a holding means the amount in money for which the private participation company has acquired the stake.
2 By way of derogation from the first paragraph, the acquisition price of a holding consisting of shares acquired through conversion of a convertible subordinated loan, or a part thereof, shall be the amount of the outstanding amount of the subordinated loan, loan converted into shares, plus less the amount of money paid in cash for conversion to the private participation company.
A limited liability company, a limited liability company, company under firm or limited partnership is recognised on request by the bank as a private participation company, if it fulfils the following conditions: Requirements:
(a) it appears from the notarial deed in which its statutes have been adopted or according to the agreement established by a notarial deed, with the sole purpose of which it is to provide risk capital to the business community;
b. it is established in the Netherlands;
(c) its paid-up share capital, or the capital required by the members of the act referred to above, to be jointly committed shall be at least € 453 500;
d. the shares in which its capital is divided have been drawn up by name;
e. if one or more of the shares in which its capital is distributed with the cooperation of the company were issued, this has been done by a company independent of the company;
f. it does not have shareholders and shareholders respectively, which:
1. is a legal person established under public law; or
2. is a legal person to which legal persons established under public law exercise control, membership, membership or equivalent quality under direct or indirect shareholding, unless the shares of the legal person or its certificates have been admitted to the official listing on the Amsterdam Stock Exchange, or
3. a legal person whose directors are appointed immediately or indirectly by entities established under public law only and whose assets are available exclusively to the liquidation of the person concerned by the winding-up of the legal persons established under public law, unless the shares of the legal person or of the certificates thereof are admitted to the official listing on the Amsterdam Stock Exchange;
g. if she has only one managing partner, this member is a legal person, complying with the provisions of the A and B .
1 An application for recognition as a private participation company shall be submitted, together with the following documents:
a. in the case of a limited liability company or a private limited liability company:
1 °. the statutes of the company;
2 °. an indication of the composition of the board and to the extent that the members of the Supervisory Board of the company are present;
3 °. an indication of the shareholders of the company;
4 °. an indication of the number of shares in the capital of the company holding each of the shareholders and of the amount paid for each share;
5 °. an overall estimate of the size and number of activities for the first three years, accompanied by a cost budget;
(b) in the case of a company or a limited partnership, in the case of:
1 °. the contract to which the company is entered;
2 °. an indication of the members and the non-commandary members;
3 °. an indication of the obligations to contribute capital by the shareholders;
4. an overall estimate of the size and number of activities for the first three years, accompanied by a cost budget.
2 Applications are not submitted by telefax.
Persons designated by the Bank may, to the extent reasonably necessary for the proper implementation of this Decision, request the applicant:
a. Disclosure of business data and documents;
b. letting them make copies of the A particulars and documents, and
c. to cooperate in the provision of data by others.
The bank shall make a decision on the application within eight weeks of receipt of the application.
1 The bank shall decide, in any case, on an application if, on the basis of the expertise, the intentions or the antecedents of one or more persons determining the applicant's policy, there is a fear that it will function properly is not sufficiently guaranteed by the applicant as a private participation company.
2 The bank may decide on an application:
a. if a request as referred to in paragraph 1 is not fulfilled Article 6 or a request as referred to in Article 6 of the Framework Directive Financial Resources EZ;
(b) if the applicant has provided information, in the context of the application, of which he was aware of the fact that they were incorrect or incomplete and that it would have resulted in an incorrect decision on the application.
A recognition as a private participatory company is well known in the Official Gazette , indicating the name and registered office of the private participation company.
A recognition as a private participation company is the one in the Articles 11 , 12 and 13 Commitments entered.
1 The person concerned shall continue to comply with Article 4 requirements.
2 The person concerned shall also meet the following requirements:
(a) interest-bearing debt shall not exceed twice the end of a financial year more than the higher of the following two amounts:
1 °. the paid-up share capital, or, if the person concerned is not a legal person, the capital to be brought into the business by the members;
2 °. half of the total acquisition price of the participations of the person concerned, which are registered as intended Article 15 whether they are reported participations of the person concerned;
(b) the sum of the acquisition prices of the shares of shares of shares of the person concerned, registered as referred to in Article 1 (1) of the Treaty; Article 15 or those reported participations of data subjects, at the end of the third financial year after recognition of the participation company shall not be less than 40%, at the end of the fourth financial year, not less than 50% and at the end of the fifth financial year does not represent less than 60% of the total assets of the private holding company, where the fixed financial assets are valued at cost. As of the sixth financial year, this percentage will not be less than 60% twice at the end of the financial year.
3 If, as a result of occasional large proceeds from the disposal of a holding or any other financing, the second paragraph may not be met, B , the bank may grant a temporary exemption. An application for exemption shall be lodged no later than six weeks before the end of the financial year concerned. The bank shall provide a decision before the end of that financial year.
4 For the purposes of applying the second paragraph, introductory wording and B , in determining the financial years, the period during which the person concerned was recognized as a private participation company based on the Guarantee scheme is also involved in private participation in the accounts for 1981.
1 Within six months of the end of each financial year, the person concerned shall send to the bank:
(a) the annual accounts, approved or adopted by the general meeting of shareholders or members, drawn up for that financial year, put up in accordance with Title 9 of Book 2 Civil Code ;
b. the report and the statement by an auditor, which relates to the financial statements.
2 With the documents referred to in paragraph 1, the person concerned shall forward to all shares in the capital of the capital, checked and approved by an auditor, in accordance with the model established by the Secretary of State, any legal person and all other financing granted by the private equity company to natural or legal persons, which had the private participation company at the end of the last financial year.
1 The person concerned shall inform the bank, in writing, of all relevant particulars and documents, within eight weeks of the event in question being taken, of:
(a) if it concerns a public limited liability company or a private limited liability company:
1 °. an amendment of its statutes,
2 °. the transfer of shares in its capital,
3 °. the placing of shares in its capital and
4. a change in the composition of its board of directors or its board of directors;
(b) where a company is a limited company or a limited partnership:
1 °. the amendment or termination of the contract to which the company is entered;
2 °. a change in the jurisdiction of a member to represent the company and
3 °. a change in the liability of a member for the debts of the company;
c. any condition as a result of which it no longer complies with Article 4 ;
d. the entire or partial estrangement of a participation registered to the disposition as intended in the Article 15 whether a reported participation was;
(e) the declaration of bankruptcy, the provision of provisional or definitive interim payments and a decision to dissolve a company in which the person concerned has one or more participations, registered as referred to in the Annex. Article 15 or that are a reported participation.
2 The person concerned shall comply with requests from persons designated by the bank to the extent that it is reasonably necessary for the proper implementation of this Decision:
a. Disclosure of business data and records;
b. letting them make copies of the A particulars and documents, and
c. to cooperate in the provision of data by others.
1 The bank may withdraw recognition as a private participation company, if:
a. The person concerned has not fulfilled the requirements of the Articles 11 , 12 and 13 Commitments entered;
(b) the bank on the basis of the expertise, intentions or antecedents of one or more persons determining the policy of the person concerned, or on the basis of the policy pursued by the person concerned or on the basis of the circumstances of the person concerned; have resulted in a rejection of an application as referred to in Article 27 Considers that the proper functioning of the person concerned as a private participation company is no longer sufficiently guaranteed;
(c) the decision on the recognition as a private holding company, as a result of the inaccuracy or incompleteness of the information given to the person concerned, would have been different than the case, if the information was correct and would have been provided in full.
2 In the case of the decision to revoke the claim, the bank may provide that the claims for grants are as set out in Article 20 concerning such shares, which has been acquired by the private participation company following the creation of the revocation ground, in a scale to be determined by it, whether retroactive or not, to be void. If the withdrawal is well founded on the first paragraph, C , the bank shall always determine that all claims referred to in the first sentence shall be subject to retroactive effect.
3 The withdrawal shall, as soon as it has become irrevocable, be published in the Official Gazette , indicating the name and registered office of the person concerned.
1 A recognised private holding company may obtain registration of a holding on an application from the bank.
2 An application for registration shall be submitted within thirteen weeks of the acquisition of the stake by the approved private participation company which has obtained the participation.
3 The application is accompanied by a statement from the private participation company, which includes:
(a) the name and description of the activities of the company in which the private participation company has acquired the stake;
b. that this company meets the requirements of the application at the time of the application; Article 2 (3) ;
c. the exact nature of the stake, the date of acquisition, the award price of the participation and the conditions under which it was obtained;
d. that the company has permanent return prospects.
4 The application shall also be accompanied by:
a. the latest annual accounts established or approved by the General Meeting of Shareholders of the Company;
(b) a statement by an auditor, which means that he is responsible for making the declarations referred to in paragraph 3 (3), a, b and C , has checked and found it right.
(c) proof of payment to the bank of a registration fee amounting to 1 per cent of the award price of the participation to which the application relates.
Applications are not submitted by telefax.
The Minister shall fix, by means of a ministerial arrangement, the amount in respect of each calendar year, taking into account the total of the acquisition prices of units for which a decision on registration may be obtained on an application for that year.
1 The bank shall decide on an application for registration if:
(a) the applicant was not a recognised holding company within the meaning of this Decision at the time of the submission of the application;
(b) the applicant was not a recognised holding company within the meaning of this Decision or the Guarantee scheme of private participation companies 1981 at the time of the acquisition of the stake.
c. The applicant shall be the registration premium provided for in Article 15, fourth paragraph, point (c) , not if it has not been satisfied in time.
2 The bank shall decide on an application for registration, provided that:
a. by registering it under Article 16 the amount determined would be exceeded;
b. the participation in the application at the time of the acquisition consisted of a convertible subordinated loan and the applicant did not, prior to, or at the same time, obtain the relevant participation one or more other the shares have acquired shares of shares in the same company which fulfilled the following requirements at the time of acquisition of the first term:
1 °. They together constitute at least one-20th of the subscribed capital of the company;
2 °. they are registered by the bank or they are one or more notified holdings;
(c) the total amount of the acquisition price of the holding and of all other shares acquired, previously or at the same time as the acquisition, by any private participation company in the same company and which at the time of the acquisition is acquired be registered or reported to be registered, more than € 1 140 000;
d. the total amount of the acquisition price of the shares and other financing held by the applicant in the company by the acquisition of that participation exceeds 20% of:
1. the paid-up capital of the applicant, where the holding has been acquired by the end of the third full financial year, has expired since the recognition of the applicant as a private participation company; or
2. the total amount of the acquisition price of all the shares and other financing, including the corresponding holding, of the applicant, if the participation is acquired after the end of the third full financial year, has expired since the recognition of the applicant as a private participation company.
3 For the purpose of applying the second paragraph, introductory wording and Ed , for the purposes of determining the financial years, the period during which the applicant was a private holding company approved for the purposes of the Guarantee scheme for 1981 shall be involved.
1 The person concerned shall meet annually before the end of the month in which the participation is obtained, and for the first time in the year following that in which the application for registration has been submitted, to the bank a registration premium of up to 1% of the procurement price of the participation.
2 The person concerned shall make the payment on the manner to be determined by the bank and accompanied by documents showing the participation in the payment.
3 The bank may withdraw the decision to register if the person concerned has failed to fulfil his obligations under the first paragraph.
For the purpose of calculating the premium referred to in the first paragraph, the amounts redeemed before the date referred to in paragraph 1 shall be counted against holdings consisting of loans not included in the award price.
A decision to register a participation shall lapse as soon as and to the extent that the person concerned is alienating the holding.
1 The bank shall provide for a grant on an application to a recognised private holding company if it suffers from a loss on 1 January 1996 at:
a. whole or partial disposition of such participation;
(b) dissolution of the company in which the applicant holds that participation;
c. in the case of a participation consisting of a convertible subordinated loan, a res judication of an agreement following the declaration of bankruptcy or after the grant of the company's payment where the applicant holds that participation.
2 No grant shall be granted if, at the time of the event referred to in paragraph 1, a, b or C , participation is not registered by the bank.
3 No grant shall be granted if the loss is incurred:
a. whole or partial disposition of the stake to one or more persons, which at the time of the event referred to in the first paragraph, a, b or C , whether at any time in the previous two years were a shareholder of or employed by the applicant, or were involved in the policy or management of that applicant;
b. after repurchase of or redemption by the company on shares which the applicant holds in the company.
4 No grant shall be granted, if at the time of the event referred to in paragraph 1, a, b or C The company's declaration of bankruptcy, less than a year has expired since the private participation company has acquired the stake.
5 In this chapter, it shall be included
a. Under a shareholder: a member and the natural or legal person who, by virtue of an immediate or indirect shareholding, membership, board membership or like quality, whereas control of a exercise shareholder or a member, and
(b) under a driver: a non-limited partner and the natural or legal person who, by virtue of an immediate or indirect shareholding, membership, board membership or a similar quality; exercise over a driver or a non-commandline partner.
In any case, the bank shall decide on an application for a grant where:
(a) the applicant, together with its directors and those shareholders, who have control of the applicant, by or at any time after the acquisition of the stake directly or indirectly in control of at least half of the applicant's the subscribed capital of the company in which the stake has been acquired or has held at least half of the subscribed capital of that company;
(b) the shareholders and directors of the applicant, at the time of or at any time after the acquisition of the stake, immediately or indirectly, other than through one or more other approved private venture capital companies, together with control of at least 10% of the subscribed capital of the company in which the stake has been acquired or have held at least 10% of the subscribed capital of that company;
c. a driver of the applicant or a shareholder who holds at least 10 per cent of the applicant ' s subscribed share capital, or, if the applicant is not a legal person, under the agreement to which the company has entered into the company must bring in at least 10% of the capital at the time of or at any time after the acquisition of the holding alone or together with others has exercised a holding equal or related to the capital of the company, or company in which the stake is acquired and in the exercise of that company has had a permanent customer relationship with the company concerned;
d. in the 12-month period prior to the acquisition of the holding to the company for the benefit of third parties, other than shareholders, the name or form of which exceeds 10% of the name or form one per cent of the company's own funds, including the holding, or an obligation to take out such withdrawal, other than in relation to a reasonable operation to be held;
e. in the period of four years after the acquisition of the holding to the company for the benefit of third parties other than shareholders, funds have been extracted other than in relation to a reasonable operation to be held;
f. if, in the 12-month period prior to the acquisition of the stake to the company for the benefit of one or more shareholders, funds have been removed, by whatever name or in any form or form, including the dividend payments, amounting to more than 10% of the company's own funds, including the participation not included, or an obligation to disene such withdrawal;
g. If, in the four-year period following the acquisition of the stake to the company, funds have been diverted for the benefit of one or more shareholders other than by means of dividend payments reasonably deemed to be
(h) if the applicant or the shareholders or directors of the applicant have, after the acquisition of the stake, indirectly or immediately to the company, by whatever name or in any form, other than in the case of the link to a reasonable operation to be considered;
a grant has already been granted in respect of the relevant part of the participation.
1 The grant price of a shareholding consisting of shares is constituted by the award price or, if the loss is only a part of the stake, the corresponding part of the award price, less than the amount of the acquisition price. with:
a. where the participation is wholly or partly alienated, the price for which that transfer took place or, if the company concerned dissolved, the winding-up allowance and
b. the value determined by the bank of the benefits provided by the applicant and the persons referred to in the event at the time of the event; Article 20 (a), (b) or (c) , or at any time during the previous two years, were a shareholder of the applicant, employed by the applicant or involved in the applicant ' s policy or management, by acquiring or holding the participation or not. by an event as intended in Article 20 (a), (b) or (c) , have obtained or will obtain.
2 The grant price of a shareholding consisting of a convertible subordinated loan is constituted by the award price or, if the loss is only a part of the stake, the corresponding part of the The award price shall be reduced by:
(a) if the participation is wholly or partly alienated, the price for which that transfer took place or the benefit paid on the holding on account of one of the Article 20, first paragraph, point (b) or (c) mentioned events,
b. the amount or, if the loss is only incurred on part of the stake, the corresponding portion of the amount redeemed on participation in the period up to the event, intended to be Article 20 (a), (b) or (c) , and
c. the value determined by the bank of the benefits provided by the applicant and the persons referred to in the event at the time of the event; Article 20 (a), (b) or (c) , or at any time in the previous two years, were a shareholder of the applicant, employed by the applicant, or were involved in the applicant ' s policy or management, by acquiring or holding the participation or by an event as intended in Article 20 (a), (b) or (c) , have obtained or will obtain.
3 If the acquisition price of a shareholding consisting of a convertible subordinated loan is higher than the nominal value of the principal, the nominal value shall be applied to the application of the second paragraph instead of the award price. of the principal amount taken into account.
4 If the applicant has a number of similar registered shares in the corresponding company and only suffers loss on a part thereof, the loss is deemed to have suffered from that registered or reported holding of the species in question, which the applicant has first obtained.
5 If, in addition to one or more registered units, the claimant also holds one or more of the same type of financing of the same type in the company in question and suffers from a loss only on some of those holdings and financing, it shall be Without prejudice to paragraph 4, loss shall be deemed to have been incurred on that part of the registered units, which corresponds to the ratio of the total acquisition price of the registered shares to the total amount of the registered shares. Acquisition price of all registered and reported units and other financing of Same species.
1 The subsidy amounts to 50% of the subsidy amount.
2 This percentage shall be reduced by 10 percentage points for each full year, after the end of the eighth year following the date on which the participation was obtained by the applicant, if the participation was acquired in 1992 and after the end of the year. Seventh, sixth or fifth years, if participation was obtained during 1993, 1994 and 1995 respectively. If the participation consists of shares acquired through the conversion of a convertible subordinated loan, the date on which the subordinated loan in question was obtained shall be deemed to be the date on which the holding was acquired.
3 If participation consists of shares, the percentage referred to in paragraph 1 shall, moreover, be reduced by the number of percentage points resulting from the formula
,
if the result of this formula is positive.
In this formula:
D: the total dividend paid out on this stake in money in the period between the acquisition of the participation by the applicant and the event referred to in Article 20, first paragraph, a, b or C ;
F: the acquisition price of the stake;
Tm: the number of full months elapsed between the acquisition of the participation by the applicant and the event, referred to in Article 20, first paragraph, a, b or C .
1 An advance payment of a grant may be made at the request of the recognised participation company only after the company in which the holding is held has been filed in bankruptcy.
2 The advance payment is no greater than the reasonably foreseeable subsidy.
The bank shall make a decision on the application within eight weeks of receipt of the application.
1 The bank may take a decision on the grant of an advance if a decision has not been taken within three years of the date of the decision, including the grant of a grant in respect of the loss concerned.
2 If application is given to the first paragraph, the financial resources made available shall be payable immediately.
1 An application for grant will be made within six months of the event, Article 20 (a), (b) or (c) , submitted to the bank, using a form, the model of which shall be determined by way of a regulation of our Minister. The application shall be accompanied by:
a. all supporting documents relating to the cause and magnitude of the loss;
b. A statement from the applicant concerning the value of the Article 20, first paragraph, point (b) and (2) (c) , benefits referred to;
c. the names of the persons referred to in the event at the time of the event; Article 20 first paragraph (a), (b) or (c) , or at any time in the previous two years, were a shareholder of the applicant, were employed by the applicant, or were involved in the management of the applicant;
d. a statement by an auditor as to the accuracy and completeness of the information contained in the application and supporting documents sent to the application;
e. the documents referred to in Article 12, first paragraph , concerning the last two financial years expired, unless the bank has already received such documents;
f. the annual accounts drawn up or approved by the general meeting of shareholders of the company or of the members concerning the financial years elapsed since the acquisition of the stake.
2 Applications are not submitted by telefax.
The bank shall make a decision on the application within eight weeks of receipt of the application.
An application may at least be rejected on an application:
a. if a request as referred to in paragraph 1 is not fulfilled Article 6 , or a request as referred to in Article 6 of the Framework Directive Financial Resources EZ;
(b) if, in the course of the application, the applicant has provided information which he knew or was in a position to know was incorrect or incomplete, and the provision of that information would have led to an incorrect decision on the application.
1 A decision on the provision of a grant may be withdrawn or amended by a decision as referred to in the Article 14, second paragraph .
2 Where application is given to the first paragraph, the financial resources made available shall be payable immediately to the extent that it exceeds the amount at which the person concerned has the right to exceed the amount.
Applications for recognition as a private holding company as referred to in Chapter 2 of the Guarantee scheme of private participation companies 1981 submitted before the entry into force of this Decision, and on which it is not yet decided, are taken into account as applications, referred to in Article 4 of this Decision.
2 Notifications as referred to in Article 13 of the Guarantee scheme Private participation companies 1981 which the supervisor has not yet confirmed in writing at the time of the entry into force of this Decision shall be taken into account if: applications for registration as intended Article 15 of this Decision.
The private participation company, which had been recognised as such at the time of entry into force of this Decision on the basis of the Guarantee scheme of private participation in 1981, shall be regarded as having been taken into account in accordance with the provisions of this Decision. bank recognised private participation company.
This Decision shall enter into force from the day following the date of issue of the State Sheet where it is placed.
This decision is cited as: Decision by private participation companies.
Liabilities and orders, that this Decision, together with the accompanying note of explanatory notes in the State Sheet will be placed.
' s-Gravenhage, 18 March 1994
Beatrix
The Minister for Economic Affairs,
J. E. Andriessen
Issued on the 10th of May 1994The Minister of Justice,
E. M. H. Hirsch Ballin
