FREQUENTLY ASKED QUESTIONS/A change to your company's statutes/

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What if I want to bring a change to my company's statutes?

 

During a company's lifespan, every entrepreneur may be required to implement important changes, which affect the articles of incorporation. A statutory modification should not be taken lightly, as it may have several consequences on the internal functioning of the company, but also exchanges with third parties.

To incorporate a company, the shareholders agree unanimously upon a set of rules and establish, more or less freely- always in accordance with applicable laws governing the form chosen - a pact. Changing the company's statutes therefore can call into question this pact. However, it is completely understandable and normal that the shareholders decided to implement various statutory modifications: a company is a living entity, which must adapt to an ever-changing environment! The shareholders therefore cannot seek to insert a clause in the statutes which would prevent the modification of certain provisions.

Changing a company's statutes therefore is the response to two necessities: to not disproportionately alter the initially agreed-upon pact, all the while allowing the company to adequately respond to various challenges. As a result, the statutes can usually only be changed by a unanimous shareholders decision, unless a clause in the statutes provides otherwise.

Only the shareholders have the power to decide upon a statutory modification. This point is crucial, especially since a decision taken by another body can result in an indirect modification: such a decision will be null and void.

Even if the law makes no distinction between decisions made during Ordinary General Meetings and the decision to modify the statutes, the articles of incorporation generated and proposed by Alf also make special mention of the Extraordinary General Meeting decisions, which aim to modify the statutes.

In the case of the SAS, only a unanimous shareholder decision can result in a share capital change, in a merger or a liquidation. In other cases, however, the shareholders are free, to provide for other situations in which a unanimous shareholder decision during a General Meeting is necessary.

For an SCI, a statutory change can only occur following a unanimous shareholder decision, unless there is an express in the statutes which provides for a different definition of a majority.

To invoke a statutory change, at least three-quarters (if incorporated before August 4, 2005) or two-thirds (if incorporated after this date) of the shareholders of an SARL must be in agreement. It is not possible to bypass this rule by inserting a stricter rule in the statutes.

Furthermore, all statutory modifications must appear in the relevant publications in order to protect all interested third parties. This is the same formality which applies to the original statutes at the incorporation stage.

You'll find below the various formalities proposed by Alf, which require a statutory modification.

1. relocate the company's headquarters

Your company's articles of incorporation will certainly mention the headquarters. As such, a change of headquarters will require a statutory modification. A relocation must be decided by way of a General Meeting, with special conditions potentially applying according to the company's form.

If your company is an SAS, you should refer to the articles of incorporation which indicate whether the decision to change headquarters must be made by the shareholders (according to the rules regarding the required quorum and voting methods) or whether another internal body (a specially-appointed board, for example) is competent. All depends on the degree of freedom the founding shareholders have established the SAS' statutes.

If your company is an SCI, the transfer is the result of a unanimous shareholder decision (usually following a General Meeting), unless there is a clause in the statutes which says differently. As such, the shareholders can establish their own rules regarding the transfer and set out different rules according to the change envisaged: transfer in the same department, in the same region, just outside of the region...

In the case of an SARL, even if this requires a statutory modification, the decision to relocate the headquarters must be taken by one or several shareholders who, in total, hold more than have of the shares.

In the event where a headquarters change results in a change in department, two separate legal publications will be made and extra tribunal fees will apply.

Alf handles your headquarter change from A to Z: we check your documents and organise, if necessary, a General Meeting, change your statutes and will get your Kbis updated. For more information, you can visit our website and contact our experts.

 

2. Adding a shareholder

 

The arrival of a new shareholder requires a modification of the share capital structure. The finalisation of this operation requires a vote during a General Meeting to approve the share capital review and issuance of new shares. In general, this will be the case during a share capital increase.

The introduction of a new shareholder can also result in a share capital transfer.

Alf aims to facilitate the entry of a new shareholder: verification of your documents, filing with the tax authorities, application for an updated Kbis: our experts handle everything from start to finish!

3. Increase the company's share capital

 

The company's share capital is the total of the investments made by the founders. It can be changed during the company's lifespan for various reasons: the entry of investments, recapitalisation or activities aimed at growing the company.

In the case of the SAS, the decision to increase the share capital is taken collectively by the shareholders. In this regard, the SAS is therefore similar to the Société Anonyme (SA). It is the statutes which determine what constitutes a legitimate decision.

Should there be no statutory dispositions indicating the contrary, a decision to increase a company's share capital must be made unanimously.

The shareholders of an SARL can benefit from a more flexible regime for share capital increases through the incorporation of reserves or profits: the decision is made as if there were no statutory change, as such, by the majority of actions. Should this not be the case, the decision is made during an Extraordinary General Meeting (3/4 f incorporated before August 4, 2005 or ⅔ if incorporated after this date). A unanimous decision is required if the modification will result in an increase in the value of the shares.

The increase in share capital can be accompanied by underwriting, thereby resulting in the issuance of new shares. The underwriters can be existing shareholders or new shareholders who must be approved by the existing shareholders.

With Alf, the official documents will be automatically updated in the public registers and your contacts will be notified by a legal publication. We invite you to visit our dedicated page on our website for more information on our services and discuss with our experts.

4. Share transfers

 

A share transfer will result in a statutory change: every company is based on a common agreement made by the shareholders with regard to the way and proportions which the capital is to be shared. The transfer of shares by a shareholder is therefore subject to the approval of the other shareholders. However, the shareholder who wishes to transfer his shares will never be forced to keep them, as they are ways which allow him/her to leave the company.

It is important to refer to the statutes and, if applicable, the shareholders' agreement, which may limit the cases under which share transfer may occur. This documents may contain different clauses which have an impact on the procedure to be followed:

  • Approval clause: the shareholders have their say on the entry of a new shareholder (transferee)
  • Preemption clause: certain shareholders can opt to acquire the shares up for transfer;
  • Preferential clause: the shareholder wishing to transfer his shares must first propose them to the individuals listed in this clause, before proposing to a third party.

It is recommended to draft a share transfer agreement, in which the names of the parties, the number of shares sold, the price of the transaction and the method of payment are indicated. Further, it is important to reproduce the document indicating the agreement of the other shareholders, as this may be key in the event of a disagreement.

With an SAS, the share transfer must be indicated in the company's share register. The SAS' articles of incorporation must be changed if they specify the capital split with the names of the shareholders. The same applies in the case of a transformation of an SAS into an SASU.

For the most part, a unanimous decision is required for any statutory modification of an SCI, unless less rigid conditions are listed in the articles of incorporation. A change of shareholders must be accompanied by a notification to the Registry of Commerce.

With regard to the SARL, the modification of the share capital split in the statutes in decided following an Extraordinary General Meeting, according to the quorums indicated above.

Should you choose to transfer your shares with Alf, we will generate your documents at an unbeatable price: we verify your documents, follow the transfer procedure provided for in your company's statutes, modify your statutes, file the necessary paperwork the with competent tax authorities and propose, as an option, the drafting of your share transfer agreement to be reviewed by your attorney.

Visit our website for more details!

 

5. Change your company's name

We invite you to visit our FAQ on how to change your company name.

The name chosen at the incorporation stage can be freely modified as many times as you wish during the company's lifetime. The official documents will automatically be updated in the public registers and your contacts will be informed by a legal publication.

Visit our website to talk to our experts, who are more than happy to help.