General amendments concerning Luxembourg s law of 1915 on commercial companies
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1 FFF NEWS October 2016 Dear Reader, We hope you enjoyed our last edition of FFF NEWS. This newsletter will introduce you to the following topics: General amendments of the law Amendments concerning the S.A. Amendments concerning the Sàrl The SAS The Sàrl-S Independent director s VAT status THE MODERNISATION OF THE COMPANY LAW By adopting the laws of July 23 rd, 2016 and August 10 th, 2016, amending the law of 1915 on commercial companies, Luxembourg s legislator provided a full modernisation of the company act. The new laws provide more certainty on a wide range of common used methods or practices, and in order to make Luxembourg s commercial market more attractive, two new types of legal entities were introduced, namely the simplified public limited liability company called SAS and the simplified private limited liability company, the Sàrl-S. The latter will enter into force only on January 17 th, The law of August 10 th, 2016 became effective by its publication in the official gazette Mémorial C on August 23 rd, All legal entities, which are incorporated from August 23 rd, 2016, will have to comply immediately. However, legal entities already existing before the said date have a transition period of 2 years to amend their articles or constitutional documents, as far as these would not be compliant with compulsory provisions of the company law following the amendment. In the present newsletter, we present you the main amendments considering the SA, Sàrl and we will introduce you to both new forms of commercial companies the SAS and the Sàrl-S. We wish you a nice reading. GENERAL AMENDMENTS General amendments concerning Luxembourg s Civil Code Clarification on usufruct and bare ownership rights added by article 1852bis and 1865bis. For example, the usufrucuary has the right on profit that the company gives out for distribution. The law on commercial companies gives more clarification on this topic (Articles 32-1bis, 32-3 (7), 69-1 (1), 73, 154, 189 and 198). Article 1865bis of the Civil Code now recognises the simple dissolution of a company where one shareholder would hold 100 % of shares. The dissolution does not occur automatically but the sole shareholder must expressly demand it. This practice was widely used and granted for a faster and less complicated dissolution method without the liquidation of a company. Introduction of trackable shares by article General amendments concerning Luxembourg s law of 1915 on commercial companies One or more shareholders representing at least 10 % of share capital (minority shareholders) can pose questions in written forms to the board of director to get clarification on management operations. If the board refused to reply within one month, the minority shareholders can demand a magistrate of the commercial court to elect an expert charged to draw up a report on the management operations in question (Article 154). To give more clarity on the transformation of companies, a new section Section XV quarter. La transformation was added by Articles 308bis-15 to All companies are permitted of issuing bonds (Articles 11ter and 11quarter). 1 5
2 AMENDMENTS CONCERNING THE S.A. Capital structure The minimum share capital necessary for the incorporation of the SA decreased from EUR 30, to EUR 30, (Article 26). Shares without the designation of a nominal value can be issued below par value of existing shares, under the conditions set by Article 32 (6) and 32 (7) (Article 26-5). This can be fortunate for companies to attract new equity in case of losses. Furthermore, it is even possible to issue shares with different nominal values (Article 37 (1)) and in addition to said article, high and low tier-voting structures are now possible for the SA, if expressly listed by the articles of association (Article 67(4)). This is especially beneficial for major shareholder or founders, which are giving higher voting rights in proportion to a higher nominal value of detained shares for example. Articles of association can now authorise the board of directors or executives to give out free shares to employees (Article 32-3 (5bis)) and restrict transfer conditions of all shares (Articles 37(2)). The distribution of dividends on treasury shares has now been clarified (Article 49-5). Convertible bonds are recognised as cash contribution and will therefore not require any audit report (Article 32-4). The regime of non-voting shares was modernised by Articles 45 to 46. It is no longer prohibited for an SA to issue more than 50% of share capital as non-voting shares. Management and governance Considering the Management of the company, the board of directors or the executive board is now permitted to create committees that exercise their activities under the responsibility of the afore-mentioned boards (Article 54 and 60bis-6 (5)). The board of directors can also delegate their administrative tasks to the executive body or to a general director. Both are put under the constant surveillance of the board. However, the delegation cannot relate to the general policy of the company or the total of tasks reserved to the board of directors (Article 60-1). The board may also, if prescribed by the articles of association, move the registered office of the company from one municipality to another or within the same municipality (Article 67-1 (1)). The process of board decisions became more flexible by allowing the possibility of taking circular resolutions. Such resolutions are supposed to take place at the headquarter of the company. This method must be authorised by the articles of association (Art 64. (1)). The meeting of the board can take place by using modern communication technologies like video conference or other communication tools that permit a liable identification of the board members. A board meeting held by such communication tools is supposed to take place at the headquarter of the company (Article 64 bis (3)). New rules to prevent conflict of interest have been established. For example, a board member with a direct or indirect patrimonial interest in the company in relation to a board operation, is obliged to inform the board at the meeting. He is then excluded from voting (Article 57). More rules are provided by Article 60, 60-2, 60bis-8 and 60 bis-18. General meetings With regard to general meetings, convocation formalities have been softened. If 100% of shares are in registered form, prior notification is reduced to 8 days and convocation can be done by new means of communication like s or by phone (Article 70). Also 8 days prior to the general meeting, all shareholders have the right to take knowledge of all related documents like annual accounts, the composition of the board of directors or the executive board, management and audit report or drafts of statutory amendments (Article 73). 2 5
3 Extraordinary meetings can modify the articles of association without unanimity of shareholders (Article 67-1). However, said articles must expressly list this action. If the company s net assets reduce to more than half of share capital, the board of directors has to compose a special report, which has to be available to the shareholders 8 days before a general meeting which decides over the continuing of the company (Article 100). Minority shareholders with 10% of shares or less, are granted the right to take action against the board of directors, the executive board, the surveillance committee or the statutory auditor of the company, in reference to the Articles 59, 60bis-16 and 62 par. 3 (Article 63bis). Further, they can also demand the prorogation of a general meeting to a maximum of 4 weeks. The articles of association can give power to the board of directors or the executive board to suspend voting rights of every shareholder in breach with his statutory obligations (Article 67 (8)). The same article provides that shareholders are granted temporarily or permanently suspension of their voting rights, and are bound to inform the company in such case. This practice is commonly referred as waivers. The law induced finally clarification that attendant s lists are mandatory for all general meetings. (Article 67 (2)). AMENDMENTS CONCERNING THE Sàrl Capital structure The Sàrl serves more and more as private equity and investment vehicle. In order to make it even more attractive and to increase its range, the maximum number of shareholders permitted was raised from 40 to 100 in consequence (Article 181). The mechanism of authorised share capital has been added in the law for the Sàrl (Article 199) and at the same time, its minimum amount needed for its incorporation decreased from EUR 12, to EUR 12, (Article 182). The Sàrl is now permitted to issue beneficiary shares, public bonds (Article 127), founder shares and redeemable shares (Article 182) but still remains prohibited from issuing public shares. Article 182 also gives the possibility for the Sàrl to issue shares below par value of pre-existing share or with a different nominal value. If expressly permitted by the articles of association, know-how contribution ( apports en industrie ) enables the possibility for shareholders to subscribe sweat equity shares followed-up by the right of profit sharing (Article 183). Such non-transferable shares are not considered as share capital and therefore will not be subjected to any audit report. Management and governance Considering the management of the company, the Sàrl can now form a board of managers and has the possibility to elect a delegated manager for the handling of day-to-day affairs. The process of board decisions became more flexible by allowing the possibility to take circular resolutions but again, those resolutions are supposed to take place only at the head office of the company. This method must be authorised by the articles of association (Article 191 bis). New rules to avoid conflict of interest have been established (Article 191bis). General meetings With regard to general meetings, a company with 60 or less shareholders is not forced to hold a general meeting except for the modification of the articles of association (Article 193). The voting majorities required for the amendment of the articles of association, become more flexible with only a majority of 75% in terms of share capital and no more in terms of shareholders needed (Article 199). Since the amendment of the law, new communication tools like video conference or conference calls are accepted for the conduct of the general meetings. Such communication tools have to be listed by the articles of association and 3 5
4 must permit a liable identification of the participants. A general meeting held by such methods is supposed to take place at the company s headquarter (Article 196). The articles of association can provide for the directors to suspend voting rights of every shareholder in case of multiple owners of shares (Article 186) or infringement of statutory obligations (Article 195). In addition to the same Article, Shareholders are granted with temporarily or permanently suspension of their voting rights, and are bound to inform the company in such case (waivers, same as for the SA). The procedure of share transfer has changed and now only requires a majority of 50% of share capital (Article 189). Finally, it became mandatory for every general meeting to establish an attendance list (Article 196 (3)). THE NEW COMPANY FORM THE SAS The SAS or simplified public limited liabilities company Société par actions simplifiée was inspired by its French counterpart already introduced in In order to make Luxembourg more pleasant to foreign investors, Luxembourg Parliament took over this type of company together with the amendment of the company law. The SAS is a company limited by shares like a normal SA but in direct comparison, the SAS is more designated as a branch or holding company of non-listed companies. The management of a SAS is entrusted to physical or legal persons who will adopt the title of elected president or director. Both are not personally liable for the company s engagements. All rules regarding the SA with exception of Articles 50 to 60bis-18, 64 to 68 and 70 are applicable to the SAS. The main benefits lie in its freedom in establishing the articles of association, in particular for the determination of decisions, which must be collectively taken by the shareholders. THE Sàrl-S IN DETAIL By voting the law of July 23 rd, 2016, Luxembourg s Parliament adopted bill N 6777, creating a new type of commercial company called the simplified private limited liability company, the Sàrl-S ( Société à responsabilité limitée simplifiée ). The Sàrl-S aims to stimulate the market; making it more competitive, easier to access and mainly provides a cheap solution for future small businesses and startups. The Sàrl-S has been inspired in its construction by already existing foreign small company forms like the Belgian SPRL-Starter or the Dutch Flex BV. Its main attraction compared to traditional corporate entities lies mostly in its modest request for share capital for its formation. We will show you the most important details of this form of company. General dispositions The general regulations for the Sàrl also apply to the new Sàrl-S (Article 202-1). Constitution The Sàrl-S can be incorporated by a private contract or a notarial deed. This makes its constitution clearly less expensive compared to a classic Sàrl where a notarial deed is required by law (Article 4). Share Capital The minimum share capital needed is set between EUR 1,00 and a maximum of EUR 12, (Article 202-4). The low-cost equity comes with the obligation to withhold a yearly reserve of at least 5% of annual net profits until it reaches the criteria for a classic Sàrl (EUR 12,000.00). The Sàrl-S is basically a convenient and cheap way for start-ups to build a strong base and later to transform themselves to a classic Sàrl after some time. 4 5
5 Corporate range The Sàrl-S only operates for commercial, industrial, artisan purposes and for certain liberal professions. In consequence, it cannot be used as a holding company (Article 202-3). Shareholders Only physical persons can be associated with a Sàrl-S (Article (1)). At the same time, one physical person can hold shares of only one Sàrl-S at a time, except if shares have been transferred by an event of death (Article (2)). If the conditions of Article (2) are breached by holding shares of additional Sàrl-S, the physical person becomes personally liable for said companies. Governance Physical persons can only perform the management of the company. Therefore, it is not allowed to appoint a company as manager (Article 202-6). Publication obligations A new paragraph was inserted in the modified law of December 19 th, 2002 (the register of commerce law). The Sàrl- S is bound to publish following elements: Name, private or professional address of the shareholder(s) Number of shares held by each shareholder Registration number of the authorisation of establishment CLARIFICATION ON INDEPENDENT DIRECTOR S VAT STATUS On September 30 th, 2016, Luxembourg s VAT authorities Administration de l Enregistrement et des Domaines published Circular N 781 confirming that the activity of independent directors counts as an economic activity subject to value-added tax VAT. As consequence, independent directors obtain the status of VAT subservient. Directors residing in Luxembourg, whose annual turnover does exceed EUR 25,000.00, are taxed with the standard VAT rate of 17%, where in the case of non-resident directors, the companies they work at become liable for VAT payment (reverse charge) but only if the companies activity is subject to VAT. Employees exercising a directorship for representing their employer are not concerned by this new regulation. Further, service provisions performed as part of honorary activities which are remunerated by attendance fees and exercised by members of public organisations, professional chambers, boards or committees of management and similar organisations, are exempted from VAT, provided that the remuneration is only for refund purposes. (Article 44 of Luxembourg s VAT law). The new VAT regulation applies on January 1 st, 2017 and shall be strictly respected. If you want to receive more information, do not hesitate to contact us. Offering tailor made services of high quality is our profession. This newsletter highlights certain issues and is not intended to provide comprehensive or legal advice. Fiduciaire Fernand Faber S.A. is not liable for any damage resulting from shown information. 5 5
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