The statutes of a simplified joint stock company (SAS) are very versatile and little regulated by the Commercial Code. Certain elements must absolutely appear in it in order to guarantee the proper functioning of the SAS and the founding partners can add additional provisions.
Let's start by determining the required items which must appear in the statutes of an SAS, then the other elements which are generally found there. We will also discuss the rules to follow in terms of formalism when drafting the statutes of an SAS.
The statutes of a simplified joint stock company (SAS) are very flexible and little regulated by the commercial code. It is essential to include information for the SAS to work properly and partners can add additional clauses.
To begin, we will examine the essential elements which must appear in the statutes of an SAS, then the other elements which are usually included. Finally, we will discuss the rules to follow in terms of formalism when drafting the statutes of an SAS.
Mandatory articles for the drafting of the statutes of a simplified joint-stock company
The statutes of an SAS must include the following elements (articles):
the contact details of the persons (natural and legal) who signed the articles of association or in whose name they were signed,
the legal form of the company (SAS),
the life of the SAS,
the corporate name,
the corporate purpose,
headquarters,
the amount of share capital,
the capital variability clause,
the number of shares and their nature (specific rights attached to each category of shares issued),
the share of the share capital represented by each category of shares issued or the nominal value of the shares that compose them,
the form of the shares (registered or bearer under certain conditions),
the procedures for subscribing to shares in industry,
the valuation of contributions in kind (one by one), the identity of the contributor and the number of shares received in return,
the identity of the first manager(s) (at least, appointment of a chairman),
the composition, operation and powers of the governing bodies,
the form and conditions related to the decisions taken by the partners,
the identity of the beneficiaries of particular advantages and the nature of the latter,
the identity of the first statutory auditors,
and finally the provisions relating to the distribution of the result, the constitution of reserves and the distribution of the liquidation surplus.
Here are some details on some of these must-have items:
The clause relating to the life of the SAS
The articles of association must mention the duration of SAS, who cannot exceed 99 years from the date of registration in the trade and companies register.
In general, the founding partners indicate a duration of 99 years. At the end of this period, a decision will have to be taken as to a possible extension of the duration of the company.
The clause relating to the company name of the SAS
The founding partners are free to choose the company name of the SAS but they must ensure that it is available. For this, it is necessary to carry out a prior art search with the INPI. A change in the corporate name may be considered at a later date (for more information: modify the company name of an SAS).
The clause relating to the corporate purpose of the SAS
The founding partners must specify in detail theobject of the SAS. It must be lawful and have a civil, commercial or liberal nature.
The following sentence is usually added at the end of this article: “ The SAS may carry out all industrial, commercial and financial, movable and immovable transactions that may be directly or indirectly related to the corporate purpose and to any similar or related purposes that may promote its development."
In addition, a last sentence often indicates that the SAS can take stakes in other structures, new or existing, having a link with its corporate purpose.
The clause relating to the registered office of the SAS
The partners must fix the registered office of their company. They must choose a place that the company uses, regardless of whether it owns or rents it. It can also be a direct debit at the domicile of the president, under certain conditions.
Le registered office of an SAS is important since it notably determines the nationality of the company; and therefore all the rules of law that will be applicable to it.
Drafting of the clause relating to the amount of the share capital of the SAS
It must be specified in the articles of association that the share capital is fixed at the sum of “X” euros. The law does not require a minimum amount to create an SAS.
Afterwards, it is essential to determine how the actions are divided between the different types of actions.
Drafting of the capital variability clause
An SAS may have variable capital. In this case, the founding partners must provide for the procedures in the articles of association.
It is essential to define:
the minimum amount,
the maximum amount,
and the procedures to be followed in order to modify the share capital within these limits.
Drafting of the clause relating to contributions in kind
When contributions in kind are made to the SAS, it is necessary to specify for each contribution in kind:
the first and last name of the partner concerned,
the description of the property and its value in euros,
the number of shares obtained in consideration.
A contribution auditor must be appointed in the event of a contribution in kind and his report must be attached to the articles of association of the SAS unless:
No contribution in kind has a value greater than €30,
And if the sum of the contributions in kind does not exceed half of the amount of the share capital.
Drafting of the clause relating to the management of the SAS
When creating an SAS, a president must be appointed. It is then possible to provide several other management bodies.
The names of the first managers must be mentioned in the statutes of the SAS.
The founding partners have the possibility of providing several other management or supervisory bodies: general manager, deputy general managers, supervisory committee, board of directors, etc.
Drafting of the clause relating to collective decisions
The statutes of the SAS must provide the rules of form and operation related to collective decisions.
Composition of the statutes of an SAS: additional elements
In addition to the mandatory components explained above, it is essential to include other clauses in the statutes of an SAS in order to regulate its functionality.
Data associated with cash contributions
It is practically necessary to insert several information in case of cash contribution such as:
and the important elements appearing on the certificate of the custodian of the funds.
Appointment of the president and other officers
The president of SAS can be designated in the statutes but this is not recommended. For reasons of practicality, it is more judicious to proceed with the appointment by separate act. The same applies to any other management bodies.
It is necessary to stipulate the functioning of the management bodies: scope of powers, term of office, remuneration, etc.
Start and end date of the accounting year
This clause specifies the date on which the accounting year begins and ends. The sentence to be included in the SAS statutes is: “the financial year begins on … and ends on … of each year. »
Normally, each accounting period should have a duration of 12 months. However, it is possible to go against this principle for the first financial year without the latter being able to extend over 3 different calendar years (for example the beginning of December N and the end of March N+2).
Mandate to conclude contracts for the benefit of the SAS in formation
It is also possible to provide in the statutes of the SAS that the founding partners appoint a person to perform acts in the name and for the benefit of the company, then to list these acts which will then be validated by the company upon registration.
Management of conflicts between partners
Providing in the articles of association for the resolution of conflicts between partners is very useful. We could, for example, provide for arbitration or mediation, and the process to follow if the conflict persists.
Other clauses of the SAS statutes
The following clauses can also be found in the SAS statutes:
the methods of consultation by correspondence of the partners.
Drafting of SAS statutes and its legal consequences
It is strongly recommended for the founding partners to start by drafting a draft statute. These can be written by the partners themselves or by an expert. Once this plan is approved, the final statutes can be established.
It is mandatory that the statutes of SAS be written, either on plain paper, or by a notarial deed (if a property subject to land registration is contributed in kind). It is no longer mandatory to register them for tax purposes in the month following their signature.
To be legally valid, the statutes must be initialed and signed by all founding partners of the SAS (or their representative) and be accompanied by the words "read and approved".
Each founding partner must also have his own copy of the articles of association.
Additional documents to the SAS statutes
Several documents can complete the statutes of an SAS, including:
the contribution auditor's report,
the statement of acts performed on behalf of the company being formed,
and the operating conditions for advances on a partner's current account when they are provided for in a separate document.
It is recommended that the attachments be signed by each founder of the SAS.
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Summary on the drafting of SAS statutes
In comparison to statutes of LLC, the statutes of SAS are freer. There creation of an SAS is formalized by a K-bis extract and it is strongly advised to call upon a lawyer in business law. It is also possible to modify the statutes later.
CEO & founder of the blog fondation-entreprise-ricard.com, passionate about French law, I write my blog articles to help companies in their legal procedures. Find me every week for new articles on business and entrepreneurship.
