Foundation-company-ricard takes stock of the is them shareholders by SAS must do. The law requires their consultation for certain special decisions, while it offers them great freedom for the rest.
Mandatory actions for partners according to the law
The law requires a joint decision-making by SAS partners concerning the following operations:
- Capital increase (depreciation or reduction),
- Merger, demerger and partial asset contributions subject to the demerger regime,
- Approval of the annual accounts and allocation of profits,
- Dissolution and liquidation,
- Transformation into another form of company,
- Control of regulated agreements entered into between the SAS and its chairman or its partners holding more than 10% of the voting rights.
For these operations, consultation conditions must be defined in the statutes, as well as the quorum and majority criteria. On the other hand, theunanimity partners is compulsory for certain decision-making, without the possibility of deviating from it:
- Adoption of an inalienability clause, an approval clause for the transfer of shares, an exclusion clause (unless the clause does not increase the commitments of the partners – it is then necessary to respect the conditions provided for in the articles of association ) or a change of control clause of a legal entity partner with the aim of guaranteeing the stability of the capital of the SAS,
- Transfer of the registered office abroad,
- Transactions leading to an increase in the commitments of one or more partners.
Finally, for certain decision-making, theunanimity is also required in the absence of precision in the statutes. But the statutes of SAS can derogate :
- Statutory changes (change of corporate name, modification of corporate purpose, transfer of SAS head office, Etc.),
- Extension of duration of the society,
- Appointment of the liquidator after having dissolved the SAS and approval of the annual liquidation accounts.
Measures to be taken by the partners within the framework of the statutory provisions
The SAS statutes offer great flexibility: for all other decision making not mentioned previously (appointment of the chairman, transfer of the registered office to France, change of name, etc.), a collective decision is not mandatory. However, it may be provided for in the articles of association.
It is also possible to provide for decisions to be taken by the chairman, a board of directors, a majority shareholder or in some other way.
Be careful though, if the articles of association do not contain any mention as for the methods of taking a decision, it must be determined whether this will result in modifying the statutes of the SAS or not. In this case, the decision can only be taken at theunanimity partners. Otherwise, the decision-making power generally rests with the president.
Ways of establishing choices by the members of an SAS
The conditions for determining the collective decisions of the members of an SAS are equally free. These are the statutes which will determine the criteria of substance and form in which the choices will be made. The following consultation modes are then authorized:
- Meeting of an assembly at a specific location or organization of the event by videoconference, teleconference or telephone,
- Vote sending by correspondence, fax, e-mail or any other means of remote transmission,
- Constitution by private deed or by notarial deed.
It is even conceivable to choose a mode of consultation for a category of decision and another mode for different decisions.
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Certain decisions must necessarily be made by the partners under the law. Others are only if the statutes so indicate. Finally, certain decisions require the unanimity of the members, either by a legal provision (from which it is impossible to deviate), or in the event of silence in the statutes.
