The introduction of the Code of Companies and Associations (“CCA“) is accompanied by unprecedented flexibility: partners have ample opportunity to model articles of association and shareholder agreements according to the company’s own specific needs. It is important to thoroughly examine your shareholder agreements in the light of the CCA and to adapt them to the new rules. Drafting these agreements will be a matter of precision work. In this article, Deminor gives you an overview of the clauses that you should preferably revise.
Shareholder agreements: raison d’être
As a result of their publication, articles of association have a far-reaching applicability. Shareholders’ agreements are intended to consolidate specific agreements between two or more parties in a more discrete manner in order to shape the ins and outs of the company in a structured way. Common themes in shareholder agreements are the transferability of shares, profit distribution, the organisation of the management board and the handling of conflicts.
- Transfer of shares
A first remarkable novelty concerns the private nature of the BV/SRL (the former BVBA/SPRL), which will become a supplementary right, meaning that BV/SA’s can opt for an ‘open’ – instead of closed – company in accordance with the articles of association, if they wish to do so. This fundamental change ensures that, in the future, contractual provisions, similar to those of the present NV/SA, will make their appearance in many shareholders’ agreements within the BV/SRL. The most common clauses concerning the transferability of shares concern the inalienability and approval clause, the pre-emptive and resale rights and the follow-on obligation.
In the NV/SA today, non-transferability clauses must be justified based on the company’s interests and be limited in time. The CCA requires a purely legitimate interest and, moreover, these clauses no longer need to be limited in time. However, if you include an inalienability clause of indefinite duration in a shareholders’ agreement, you must always bear in mind the possibility of terminating the agreement subject to a reasonable period of notice.
The current rule in the NV/SA stating that the application of an approval clause or pre-emptive right may not result in a non-transferability lasting more than six months, will continue to apply in the future. Note that this ‘six-month rule’ does not apply to the BV/SRL, which gives you a little more freedom regarding the inclusion of an approval or pre-emption clause.
The CCA provides for the obligation for the management to enter contractual transfer restrictions in the share register, if one of the parties so requests, under penalty of director’s liability. This inclusion ensures that contractual transfer restrictions become more visible to the company and its shareholders.
For legal or statutory restrictions on transfers, the CCA renewed the sanction in the event of non-compliance. This no longer concerns the nullity of the transfer, but the non-opposability of it, regardless of the good or bad faith of the buyer-purchaser. This means that the latter cannot exercise the rights attached to the acquired shares.
For contractual transfer restrictions, the same sanctions continue to apply in case of non-compliance: the transferor who is in breach of contract is liable for non-performance. Compensation (provided for in the contract) may thus be due. In addition, the court may annul the sale of shares if it appears the purchaser was aware of the restrictions (so-called third-party complicity in breach of contract).
It is important to thoroughly examine your shareholder agreements in the light of the CCA and to adapt them to the new rules.
- Conflict resolution
The new company law does not affect the foundations of the dispute settlement system. However, the CCA stipulates that the judge is bound by price provisions in articles of association or shareholders’ agreements in the event of the acquisition of shares as a result of the exclusion or resignation of a partner. This is subject to the condition that the pricing is specifically related to the hypothesis of judicial exclusion or resignation and does not lead to a manifestly unreasonable result. If a contractual price fixing is only of a general nature rather than a specific one (e.g. included in the exercise of a pre-emptive right), the court may consider it as a factual element of assessment.
- Securities and their rights
The CCA introduces the principle that the BV/SRL can issue all securities that are not prohibited by virtue of the law. As a result, it will also be possible for BV/SRL’s to issue different categories of securities such as convertible bonds and subscription rights (the former warrants), just as the NV/SA could under the current law. Shareholders can agree in the future which securities can or will be issued and under which circumstances and modalities.
The new code provides for the possibility of introducing double voting rights in listed NV/SA, and even multiple voting rights in unlisted BV/SRL’s and NV/SA’s. The profit rights in the BV/SRL can now be freely determined per share, just as they could in the NV/SA. The shareholders’ agreement will become even more important to manage these opportunities, create a balance between shareholders and install vigorous governance.
- Voting agreements
Current law states that voting arrangements in shareholder agreements in the NV/SA and BVBA/SPRL must be justified based on the company’s interests. The CCA stipulates that these may be ‘not contrary’ to the company’s interests – a more flexible wording that gives more leeway. However, voting agreements must still be limited in time. The regulations also retain the list of some voting agreements that are null and void.
The main part of the amendments to be made concerns clauses relating to the transfer of shares.
The CCA allows you to choose between different forms of governance: for example, you can choose a college of directors, a single director, or even a board consisting of two bodies. The definition of ‘daily management’ has also been extended in all types of companies. In the future, these will be acts of management of minor importance or of an urgent nature. You may also deviate from the principle that directors can be dismissed at any time during their term of office. All this means that you can include numerous new clauses in a shareholders’ agreement to organise the board. Precise editing in accordance with the legal limits is of great importance.
Many new opportunities are being created in the new Code of Companies and Associations. Deminor will be happy to assist you in every step of the transition to the new regime. Do not hesitate to contact Jan-Baptist Cooreman (email@example.com) for any further information.