Putaran pendanaan startup: daftar periksa hukum untuk BV Belanda

A funding round for a Dutch B.V. closes only when a civil-law notary has executed the deed of issue of the new shares; signing the term sheet or investment agreement is not enough. Before that, investors check your corporate structure, cap table, intellectual property, employment contracts and compliance, and gaps in any of those areas are the main reason rounds are delayed.

The checklist below follows the order in which these points usually come up, from structure to closing. It applies to priced equity rounds and, with some adjustments, to convertible loans. For setting up the company itself, see our article on Memilih pengacara untuk mendirikan perusahaan di Belanda.

Is your corporate structure investment-ready?

Investors want to invest in a B.V. with clean articles of association, a correct shareholders’ register and, often, a holding structure for the founders. Fix this before the round, because every change requires a notarial deed.

• Check that the articles of association allow the share classes the investors want, such as preference shares.
• Make sure the shareholders’ register that the board must keep (Article 2:194 of the Dutch Civil Code, BW) matches the cap table exactly.
• Check the ultimate beneficial owner (UBO) registration at the Chamber of Commerce (KVK).
• Consider whether founders hold their shares through a personal holding B.V.; this is a tax question for your adviser.

Is your cap table correct and documented?

Every share, option and convertible right must be traceable to a notarial deed or a signed agreement. An investor will compare the cap table with the deeds of issue and transfer in the data room.

Include promised but unissued shares, the option pool and every convertible loan with its conversion terms. Differences between what was promised to early employees or advisers and what is on paper are a common source of delay and warranty claims.

What should the term sheet cover?

The term sheet records the commercial deal: valuation, investment amount, share class, liquidation preference, anti-dilution, board seats, veto rights, vesting of founder shares and exclusivity. Usually only confidentiality, exclusivity, costs and governing law are binding.

Under Dutch law, breaking off negotiations at a late stage can still lead to liability if the other party could reasonably trust that an agreement would be reached. State clearly which clauses bind and which do not. Our article on startup term sheets menjelaskan klausa-klausa utama.

Does the company own its intellectual property?

Investors check that the B.V. owns the code, brand and inventions it depends on. Dutch law covers part of this automatically, but not for founders and freelancers.

Copyright in works made by an employee in the course of his duties belongs to the employer (Article 7 of the Copyright Act, Auteurswet). An invention by an employee belongs to the employer if the nature of the job involves making such inventions (Article 12 of the Patents Act 1995, Rijksoctrooiwet 1995). For freelancers, contractors and founders who built the product before the B.V. existed, copyright passes only by a written deed of assignment (Article 2 Auteurswet).

• Have every founder, freelancer and contractor sign a deed of assignment for all relevant IP.
• Register trademarks with the Benelux Office for Intellectual Property (BOIP) or the EU Intellectual Property Office (EUIPO).
• File a patent application before you disclose an invention. The first filing gives you a priority period of twelve months to file in other countries; the Netherlands has no US-style provisional patent.
• Check open-source licences in your software for obligations that conflict with your business model.

Are your employment contracts and option plan in order?

Investors review employment contracts, consultancy agreements and the employee option plan (ESOP). They want key people bound to the company and an option pool that is validly created.

• Use written employment contracts that comply with Dutch law. A non-compete clause must be agreed in writing (Article 7:653 BW) and, in a fixed-term contract, must include a written justification of the substantial business interests involved.
• Include an IP and confidentiality clause in every contract.
• Check whether long-term freelancers are in fact employees; the Belastingdienst enforces against false self-employment.
• Have the option plan adopted by the competent body under the articles and document each grant in a signed agreement with vesting terms.

Employee options are treated as wages in the Netherlands, and the moment of taxation depends on when the shares become tradable. Ask a tax adviser how this applies to your plan before you grant options. See our overview of Hukum ketenagakerjaan Belanda for the wider rules.

Which governance rights will investors ask for?

Investors usually ask for a board seat or observer seat, veto rights on major decisions and regular financial information. These rights are laid down in the shareholders’ agreement and, where needed, in the articles of association.

Limit veto rights to fundamental matters, such as amendments to the articles, new share issues, a sale of the company, large debts and dissolution. Remember that directors of a B.V. must act in the interest of the company (Article 2:239(5) BW), also when they were nominated by an investor. Our shareholders’ agreement guide covers the usual clauses.

Do you comply with the regulations for your sector?

Investors check licences and compliance because a gap can stop your business. Which rules apply depends on your sector.

Payment and e-money companies need a licence from De Nederlandsche Bank (DNB), investment firms and crowdfunding platforms from the Dutch Authority for the Financial Markets (AFM). Any company processing personal data must comply with the GDPR, with processing agreements for suppliers and a privacy statement; the Dutch Data Protection Authority (Autoriteit Persoonsgegevens) supervises compliance.

How do convertible loans work in the Netherlands?

Early-stage startups often raise money through a convertible loan, which converts into shares in the next priced round, usually at a discount or with a valuation cap. US-style SAFEs are sometimes used, but they must be adapted to Dutch law.

Conversion still requires the issue of shares by notarial deed, so the agreement should oblige existing shareholders to cooperate and to waive their pre-emptive rights (Article 2:206a BW). Record every convertible loan and its conversion terms on the cap table.

Apa yang terjadi saat penutupan?

The investment agreement sets out the warranties, conditions and closing steps; the notarial deed creates the shares. Under Article 2:196 BW, the issue of shares in a B.V. requires a deed executed before a civil-law notary established in the Netherlands.

1. The general meeting resolves to issue the shares and, if needed, to amend the articles of association.
2. Existing shareholders waive or the competent body excludes their pre-emptive rights.
3. The investors pay the subscription amount, usually into the notary’s third-party account.
4. The notary executes the deed of issue and, if needed, the deed of amendment of the articles.
5. The board updates the shareholders’ register and the KVK and UBO registrations.

Negotiate the warranties in the investment agreement: knowledge qualifiers, a cap on liability and a time limit for claims, often 12 to 24 months.

Apa yang harus Anda periksa sebagai seorang pendiri?

• Does the shareholders’ register match the cap table, including options and convertible loans?
• Have all founders and freelancers signed deeds of assignment for their IP?
• Is the data room complete: deeds, register, contracts, IP, licences and financial statements?
• Are the veto rights in the term sheet limited to fundamental decisions?
• Are your founder vesting and leaver provisions acceptable to you if you leave early?
• Is the notary instructed in time and are all resolutions and waivers ready?

Apa yang harus Anda periksa sebagai investor?

• Do the deeds of issue and transfer support every shareholding on the cap table?
• Does the B.V. own its core IP, including work by founders before incorporation?
• Are the articles of association amended to include your share class and rights?
• Are pre-emptive rights waived or excluded for this issue?
• Do the warranties cover the risks you found in due diligence?

What can we do for you with a funding round?

Mitra pengacara perusahaan in Eindhoven ke Amsterdam advise startups and investors in the Brainport region and beyond.

• We review the term sheet and negotiate the investment agreement and shareholders’ agreement.
• We check your articles of association, shareholders’ register and cap table and prepare corrections.
• We draft IP deeds of assignment for founders and freelancers.
• We set up the legal side of your option plan and the grant agreements.
• We prepare the resolutions and coordinate the deed of issue with the civil-law notary.

Ringkasan

• New shares in a B.V. are issued only by notarial deed (Article 2:196 BW).
• Investors check structure, cap table, IP, employment, compliance and governance before closing.
• IP created by founders and freelancers passes to the B.V. only by written assignment.
• Convertible loans also need a notarial deed and a waiver of pre-emptive rights on conversion.
• Preparing these points before you approach investors shortens the due diligence phase.

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