Conditions for validity of non-competition clauses in share purchase agreements and mitigation power of the court

Conditions for validity of non-competition clauses in share purchase agreements and mitigation power of the court

As set out in a former blog article (“Non-competition clause in acquisition agreements: a necessity?” – Matthias Jans, 14 April 2016 – see link), the buyer of shares who wants to prevent that the seller conducts competing activities after the transfer, must explicitly include a non-competition clause in the share purchase agreement. Pursuant to the French d’Allarde Decree of 1791, the freedom of trade and industry prevails. This principle is now included in Book II of the Code of Economic law, Title 3 (Freedom of enterprise). As a non-competition clause restricts this freedom, the parties have to consider a certain…


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Update: tolerance period until 31 December 2019 for the mandatory registration of the ultimate beneficial owner(s) of enterprises

Update: tolerance period until 31 December 2019 for the mandatory registration of the ultimate beneficial owner(s) of enterprises

In our blog post of 21 December 2018, updated by our blog post of 2 April 2019, we informed you about the legally required transparency as to the ultimate beneficial owners of enterprises, by means of registration in the so-called UBO-register. According to the royal Decree of 30 July 2018, the information concerning the ultimate beneficial owners of the enterprise had to be registered for the first time at the latest on 30 November 2018. The FPS Finance however allowed to postpone the registration until 30 September 2019. Meanwhile, the FPS Finance announced a tolerance period until 31 December 2019….


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Transfer of shares not fully paid up: can the transferor be held liable for calls made for the unpaid portion?

Transfer of shares not fully paid up: can the transferor be held liable for calls made for the unpaid portion?

Shares that were not fully paid up at the time of issue can of course be transferred. But who is held liable for calls on these shares: the transferor or the transferee? The (old) Belgian Company Code included complex regulations for public limited companies (‘NV’ / ‘SA’): both the transferor and the transferee could be held liable up to the amount of the unpaid portion for the payment of company debts incurred before the transfer became effective, i.e. before registration in the share register if the claim is made by the company, or before publication of the list of shareholders…


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Update: additional postponement of the mandatory transparency about the ultimate beneficial owner(s)

Update: additional postponement of the mandatory transparency about the ultimate beneficial owner(s)

In our blog post of 21 December 2018 we informed you about the new legally required transparency as to the ultimate beneficial owners of enterprises, by means of registration in the so-called UBO-register. According to the royal Decree of 30 July 2018, the information concerning the ultimate beneficial owners of the entreprise had to be registered for the first time at the latest on 30 November 2018. After a first postponement of the deadline, until 31 March 2019, the FPS Finance announced that entreprises are allowed to postpone the registration until 30 September 2019.   This blog post has been…


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Mandatory transparency about the ultimate beneficial owner(s) of the enterprise

Mandatory transparency about the ultimate beneficial owner(s) of the enterprise

The new legally required transparency as to the ultimate beneficial owners of an enterprise is an important additional action point in the M&A practice after completion of an acquisition (“post-closing action”). What? Belgian Companies, (international) non-profit organisations, foundations, trusts and legal entities that are comparable to trusts, have the following new obligations under the Belgian “Law of 18 September 2017 on the prevention of money laundering and terrorism financing and on the restriction of the use of cash”: The Law adds to the Belgian Companies Code (Articles 14/1 and 14/2) and to the Belgian NPO and Foundations Law[1] (Articles 58/11…


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