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Contribution in kind
The capital of a company can be increased in different ways, via a cash injection or via a contribution in kind. A contribution in kind is a capital increase that is not in cash : e.g. incorporation of liabilities in equity, contribution of assets, of a business, receivables or goodwill and which is remunerated by issuance of new shares (either at incorporation of a new company or an increase in share capital).
The Companies Code (NL / FR) provides specific procedures applicable for a public limited liability company, a partnership limited by shares, a private limited liability company and a cooperative limited liability company. If the company does not have a statutory auditor, it will have to appoint an auditor ad hoc who is a member of the IBR/IRE (NL / FR).
The auditor has to:
- describe the contribution,
- validate the ownership title to the assets contributed and
- review the valuation methods used for the asset and liabilities and
- indicate that the result of the valuation methods used are at least equal to the remuneration (shares and other if applicable).
The audit program, the form and content of the report and the duties of the auditor have been specified in a standard by the IBR/IRE (NL / FR). The auditor may not express an opinion on the value of the contribution nor its remuneration, but only on the valuation methods used by the company. The auditor may not express a fairness opinion on the operation either.
The board of directors has to prepare a report justifying the contribution in kind and its valuation to the shareholders. They will, if needed, explain why they diverge from the conclusions of the auditor. The reports of the auditor and of the board are presented to the shareholders; the capital increase through contribution in kind is effective only after approval by the shareholders, in a meeting in the presence of a notary and transcribed in an official notary deed.
