When developing the rules of a company with several partners, particular attention should be paid to the securities transfer regulations. Miscellaneous statutory clauses can be planned for supervise the transfer of securities : approval clause, right of pre-emption, inalienability commitment, etc.
Limiting the transfer of a company's securities offers the founding partners greater security in the shareholding and protects against a takeover by persons outside the company.
Different legal measures can be taken to regulate the transfer of securities:
If the statutes of the joint-stock company do not provide for limiting the transfer of securities, a partner can sell them to whomever he sees fit. However, for the SARL and SNCs, the Commercial Code governs the sale of shares to third parties.
La licensing provision is a tool to control the movements of titles. This clause can be adapted according to the needs:
When the approval decision is up to the shareholders' meeting, the articles of association cannot prevent the shareholder concerned from taking part in the vote.
The Commercial Code provides for an approval procedure for all transfers of SARL shares to third parties.
The articles of association cannot contradict the approval provided for by law. On the other hand, they can extend the scope of the approval procedure to other types of transfer and strengthen the decision-making methods. Only the shareholders' meeting is entitled to judge the approval.
This point is discussed in detail in this post: The approval clauses in LLCs
The Commercial Code does not provide for approval for the transfer of shares of SAS. However, the partners have the option of including a provision relating to approval in the company's articles of association. This approval can apply to any type of transfer and the articles of association freely determine which body is competent to decide on the approval.
This point is discussed in detail in this post: SAS approval clauses
As for the SAS, the Commercial Code does not provide for compulsory approval for the transfer of shares of SA. However, the partners may include in the articles of association a provision relating to approval, but only for transfers of shares to third parties or to shareholders. SAS statutes freely determine which body is competent to decide on the approval.
In addition, approval clauses are not authorized if the shares of the SA are admitted to trading on a regulated market.
En CNS, the Commercial Code provides for the application of a provision relating to approval for any transfer of shares. Approval must be decided unanimously by the partners and in the event of refusal of approval, the partner remains the owner of the shares he wishes to sell.
THEincorporation of the right of first refusal confers on all the associates (or on some of them) the privilege of acquiring in priority the units or shares whose sale is envisaged. The partner who benefits from this clause thus sees his participation in the capital of the company increase. This clause aims to achieve several goals:
To be valid, the right of first refusal must not have the effect ofprevent the partner from selling his shares or shares.
This clause may be included in the statutes of LLC, SAS, SA or SNC. For a SARL or an SA, a transfer of securities carried out in violation of a pre-emption clause remains valid (damages will be due) whereas in SAS, the transfer is void.
A obligation of inalienability means that the securities must be kept for a defined period. During this period, the shareholders or associates undertake to keep their shares. The rules vary according to the legal status of the structure:
