A complete guide to company acquisitions in the Netherlands
Sometimes entrepreneurs set up a company, but later find out they chose the wrong sector, didn’t invest enough in certain projects, went down a wrong road or simply underestimated their capacity for success. There are other factors that can lead to the demise of a company, such as incorrect business practices or personal problems. In such cases it can be wise to consider selling a company, because there are many business owners out there who might have the right expertise and experience to make the company successful. This is why there are company takeovers; as they provide the seller with some capital to start up again and the buyer with a fresh new project. If you would like to invest in a new company, then you need to acquire knowledge of at least some basic topics about company acquisitions. In this article we have outlined these basics.
Different Dutch legal entities
There are a number of different legal business structures in the Netherlands. These structures can be categorized as structures with a legal personality, and structures without a legal personality. Owners of a structure without a legal personality are personally liable for any debt the company incurs. Structures with a legal personality have to be drawn up and amended by a civil law notary. These structures are not personally liable for the debt of the company, bar some exceptions. The sole proprietorship (eenmanszaak), general partnership (vennootschap onder firma or vof), professional partnership (maatschap) and limited partnership (commanditaire vennootschap or cv) are business structures without a legal personality.
The private limited company (besloten vennootschap or bv), public limited company (naamloze vennootschap or nv), cooperative (coöperatie), association (vereniging) and foundation (stichting) are business structures with a legal personality. The procedure for taking over a company in the Netherlands depends mostly on the current and desired legal structure. We will describe the different procedures for taking over a company based on the legal structure in the next paragraphs, and also provide some insights on how to find suitable companies. You can also giveexpects some tips regarding what to be mindful of.
Business structures without a legal personality
The sole proprietorship, general partnership, professional partnership and limited partnership share the same basis for takeovers: neither of these structures requires an amendment by a civil notary, unless realty/property is involved in the transaction. This section will first discuss the limitations of a sole proprietorship and the difference between the four types of partnerships. Furthermore, it will explain the steps between potential buyers and sellers first, followed by the official steps necessary at the chamber of commerce.
Please be aware that you are only allowed to have one sole proprietorship in the Netherlands. If you already have a sole proprietorship, then you are not allowed to register an additional one. Instead, you have to adjust the business activities as established within the business register (handelsregister) of the Dutch Chamber of Commerce (Kamer van Koophandel). These changes will need to reflect and include your new activities. Alternatively, you may choose to register an additional trade name instead. In the Netherlands, owners of many sole proprietorships are also ZZP’ers (Zelfstandigen zonder personeel), which can be translated as entrepreneurs without personnel.
A general partnership, professional partnership and limited partnership differs from a sole proprietorship in the sense that the first three may have multiple owners, whereas a sole proprietorship always belongs to one person only. The most important owners are called UBO’s (ultimate beneficial owners). When dealing with either of these, you will need to identify who the UBO’s are of the company you wish to take over and if they are correctly registered as such. Additionally, you may also need to register either yourself or possible business partners as UBO’s at the end of the takeover trajectory.
What to do if you find a suitable company?
Moving forward, this section will discuss the trajectory between buyers and sellers assuming that a suitable company has been found already. If you are looking for information on how to find suitable companies, you may read the tips and tricks for finding a company which are mentioned further in the guide. In order to take over a company, you will of course need to discuss a reasonable price. This price is presented within a sales memorandum, and is based on various aspects of the company such as supplies and the customer base for example. Patents and goodwill may also apply. Subsequently, the sales memorandum will also provide an explanation how pricing is established exactly. A nondisclosure agreement (NDA) may be signed to ensure private information stays confidential.
The negotiation phase
During the negotiation phase you will need to sign a letter of intent. A letter of intent encompasses the duration for which the letter and its contents will be valid, any exclusivity agreements, the valuation methods, applicable law, dispute settlements and more relevant information. Please be mindful, that any agreements within the letter of intent are binding. Be sure to discuss exactly which parts of the company you will take over and if any parts of the company are excluded. If so, you also need to specify exactly which parts these are. All buyers are required to perform a due diligence check. All provided information inside and outside the sales memorandum needs to be verified, based on the accuracy and completeness thereof.
It is advised to research if there is important information which may not be presented within the memorandum, such as liability cases, lawsuits, claims or debts. Once all information is verified, you will need to gauge if the takeover is financially feasible. Examples of financing are also mentioned below in the tips and tricks for finding a company. During the finalization, you will need to sign a takeover contract. The letter of intent serves as the basis for this contract. Once everything is agreed upon, you will need to make an appointment with the Dutch Chamber of Commerce. To this end, you will need to prepare and file a registration form specific to the legal structure you wish to take over during this appointment.
A sole proprietorship requires a different registration form, for example, than a professional partnership. The current company owner also has to confirm that he will discontinue his activities, and that the company will be continued by someone else. This can be done easily by filing a form. There is a separate form for a sole proprietorship and general, professional and limited partnerships. You are required to bring this form with you and submit it to the chamber of commerce during your appointment with them. Intercompany Solutions advises to hire a professional party to help you evaluate the sales memorandum, perform the due diligence and UBO check, prepare the relevant files for the chamber of commerce and advise you during negotiations and finalization of the takeover contract. Our professionals are eager to assist you during this trajectory.
Tips and tricks to find a suitable a company
Finding a suitable company to take over is no small feat. There is a surplus of companies varying by type, size and industry. Luckily you can simplify this process, by narrowing down the scope of your search with a so-called search profile. This search profile helps you highlight key elements you are looking for in a company. A search profile may consist of, but is not limited to, the following elements:
- Type of industry
- Type or size of the company
- Stage of the company
- Cost of takeover, cash flow and financing options
- Time frame
- Business plan
Type of industry
You may look for a company within your own industry because of familiarity with the subject, expertise and an already built up network. This is not necessary however; you can choose any industry or sector that you feel drawn to. When trying to establish the type of industry, ask yourself what your expertise and potential within different industries are and which industry you feel most comfortable with. Also make sure that you have at least some in-depth information about the specific industry, or make sure to hire professionals to assist you with certain decisions.
When deciding upon a region you can consider a plethora of factors. Personal factors may be the time it takes you to travel to this location, the quality of the neighborhood and the accessibility of a possible office building. Likewise, some of these can also be applied to your customer base and business network. Other factors may also apply. Is the environment and surrounding area suitable for your industry? Will you need any special permits? Are you expecting a lot of international clients and, thus, prefer a location in close proximity to an airport and hotels? These and other questions are easily answered if you make a list of pros and cons regarding the region.
Type or size of the company
What kind of company are you looking for? An enterprise in the production sector, services or something else? Do you want to import or export goods? Do you want a company with personnel? If so, is there a maximum of employees you are willing to take over? Do you want to do business with consumers or other companies? As you can see, there are many different factors you can take into account. It is important to realize that all companies have strengths and weaknesses, and that there will never be just one company which is a perfect fit.
Stage of the company
Are you looking for a company which you will need to grow, or are you looking for a well-established company that has strong and steady margins already (which is also known by the somewhat undignified term ‘cash cow’)? Additionally, you may also look for a turn-around company. These companies are usually on the brink of collapse and in dire need of change. The price of these companies is usually much lower, but the risk involved is also greater. The effort you will need to put in to stabilize the company is also much more substantial.
Cost of takeover, cash flow and financing options
If you want to take over a company, you will need a source to finance this. The best way is always with existing capital of course, if you want to be safe. You need to think about your budget and what kind of earnings you expect in the future. Are you in need of financing, and if so, what type of financing should you use? Think of bank loans, crowdfunding or investors for example. There are even specialized forms of financing between sellers and buyers, such as seller loans and profit rights. Just make sure the risks don’t outweigh potential benefits. If you are rather new to acquisitions, we strongly advise to hire a professional partner such as Intercompany Solutions who can assist you during every step of the way.
As mentioned above, you need to think about the risks involved, and what the timeframe for the takeover should be. A common misconception is that turnover, costs and company value have a 100% carryover rate. This is incorrect, as customers may have a personal attachment to the previous owner. Thus, it is not guaranteed that these customers will stay if ownership changes. Additionally, any change you implement in the company may also directly impact performance numbers. It is advised to pay special attention to the operating budget and substantiate which parts will be profitable in your new situation. Since a sole proprietorship is essentially an agreement between the owner and the customer, you will also need permission from the customers to use their information. This is due to them factually entering a new agreement with you as a person, and not as a legal business personality.
A business plan can help you identify the strengths and weaknesses of both you as an entrepreneur, the company you would like to acquire and if it’s a match. Concluding, it will need to answer the most important question: whether taking over and running the company is feasible. When taking over a sole proprietorship, you may not be charged any VAT. Consequently, you will start paying income tax based on the profits of the company. Intercompany solutions can provide you with a database of companies for sale and help you create an optimized search profile. We can also identify whether you are eligible for tax breaks, such as self-employment and starters deductions and advise which type of financing is most beneficial for your situation.
The acquisition procedure
Every corporate takeover starts with a merger proposal. This proposal must be deposited within the commercial register (handelsregister) and stay there for a minimum duration of six months. The merger proposal should contain information about the legal structure of the companies, their name and location and what the new management formation will look like. A notary may amend the merger proposal, if certain complaints or objections have been filed within six months after depositing the proposal within the commercial register.
Large companies are subject to an additional set of rules and require permission (concentratiemelding) from the Authority for Consumers & Markets (Autoriteit Consument & Markt, ACM), if they wish to take over another company. The cost of requesting this permission from the ACM is around 17.450 euros. The ACM may deny permission, if the company takeover may influence the competition negatively. Companies may then offer a proposal how to minimize negative effects related to the takeover. If this proposal is denied, companies may apply for a permit application (vergunningsaanvraag). The costs for this permit application are an additional 34.900 euros. Companies will need to request permission from the ACM, if:
- The combined global annual revenue exceeds 150 million euros, and
- At least two of the companies have an annual revenue of at least 30 million euros or more within the Netherlands
Additionally, healthcare providers are subject to even stricter rules in order to keep these facilities accessible for everyone. Takeovers within the health care sector must request permission from the ACM, if:
- The combined global annual revenue exceeds 55 million euros, and
- At least two of the companies have an annual revenue of at least 10 million euros or more within the Netherlands
Finally, pension funds are also subject to different rules. Pension funds must request permission for takeover from the ACM, if:
- The total gross worth of written premiums in the previous year exceeds 500 million euros, and
- of this amount at least two of the companies have received a minimum of 100 million euros from Dutch residents
There are a number of different ways in which a takeover can take place. These are, but are not limited to: shares, assets and mergers.
Takeovers by shares consist of a full offer, partial offer, tender offer and mandatory offer. A full offer is the most common type of public offer within the Netherlands. Within this offer, the acquisition encompasses all issued and outstanding shares. A partial offer is aimed at only acquiring a part of the issued and outstanding shares, with a maximum of 30% minus one voting right in the general shareholders meeting. These offers are often used to disrupt public offers of competitors.
Tender offers will ask shareholders to sell their shares at the price and amount asked by the buyer. This amount may not exceed 30% including a minus one vote. The highest price accepted by the buyer will be paid to all shareholders who wish to sell their shares in this fashion. A mandatory offer is issued by the EU/EEA, when a person or legal entity obtains more than 30% of the voting rights in a company. Shares will be sold for a price based on the highest price paid one year before the announcement of the mandatory offer, or directly before the offer is completed.
Assets and liabilities may also be sold to the buyer. In this example, shareholders are paid for the distribution of the company’s assets. In general, this type of sale has to be approved by a majority of the general shareholders meeting. This option is interesting if there are tax or legal barriers involved with public offers, or if the buyer only wants to buy specific parts of the company.
Companies can only merge if they have the same legal structure. A merger can result in the shares of either company disappearing into the other and being reissued or in the formation of a new legal entity altogether. Usually these kinds of mergers require an absolute majority of the general shareholders meeting, or at least two third of the votes.
Intercompany Solutions can assist you with professional advice and experience
Taking over a company requires a stable and realistic outlook, plus you will also need to be very familiar with various Dutch laws and regulations regarding company acquisitions. If you are interested in the possibilities for you or your existing company, feel free to contact us anytime. We can assist you during every step of the process and are happy to answer any question you might have.
Intercompany Solutions can also assist with the accounting requirements and due diligence for corporate takeovers.
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