NETHERLANDS Law and Practice Contributed by: Vilmar Feenstra, Robert Veenhoven, Joyce Kerkvliet and Sebastiaan Verkerk, Loyens & Loeff N.V.
3.1.3 Limited Liability FGR
3.1.4 Disclosure Requirements UCITS The ManCo has to publish the following disclo - sures on its website: • a prospectus including the information required pursuant to Article 4:49 of the AFS in conjunction with Article 118 of the Market Conduct Supervision Financial Institutions Decree (the “Decree”) and Annex I to the Decree (such as certain information about the fund, the (co-)policymakers, changes in con - ditions, the provision of information, the fund activities and investment strategy, costs and remuneration, participation rights, risk profile of the fund and valuation of assets); • the fund rules or the articles of association of the UCITS; and • if made public, the annual accounts of the UCITS of the two preceding years (based on Article 4:50 of the AFS). Pursuant to the PRIIPS Regulation, a KID must be made available to retail investors before they invest in a UCITS fund and thereafter on a con - tinuous basis. AIFM With Retail Top-Up In principle, a licensed AIFM with a retail top- up will have to meet all the (disclosure) require - ments that apply to licensed AIFMs under the fully licensed regime (as set out in 2.1.2 Com- mon Process for Setting Up Investment Funds ). With respect to an AIF that is closed-ended and with tradable units, an approved prospectus should be published pursuant to the Prospectus Regulation (EU 2017/1129), unless an exemption applies. With respect to an AIF whose units are not trans - ferable and open-end AIFs, unless an exemp -
See 2.1.3 Limited Liability for a description of the FGR, and the limited liability of investors in an FGR. NV An NV is a legal entity with capital divided into one or more transferable shares, which has legal personality. A shareholder of an NV is, in princi - ple, not liable for acts performed in the name of the company and does not have to contribute to the losses of the company in excess of the amount to be paid up on their shares. However, the liability of a shareholder for the obligations of the NV may arise if: • such shareholder committed a tort; • such shareholder qualifies as a policymaker or a co-policymaker of the company and there is evidently improper management of the company; • such shareholder voluntarily assumes liability for the obligations of the company; • in exceptional circumstances, where “hiding” behind separate legal identities constitutes an abuse of law, such shareholder may be identi - fied with the company; or • a shareholder receives a distribution in excess of the company’s freely distributable reserves while being aware – or when they should reasonably have been aware – that such distribution was not permitted. When a shareholder supports or effects a divi - dend or other distribution while knowing that the NV would, as a consequence, not be able to continue paying its debts when these become due, it may qualify as acting in a tortious manner.
414 CHAMBERS.COM
Powered by FlippingBook