SHAREHOLDERS WITHIN A COMPANY: WHAT IF IT DOESN'T MATTER BETWEEN SHAREHOLDERS? (PART 2)

When tensions arise between shareholders, this can have a major impact on the operation of the company. These tensions will usually be situated in the professional sphere, for example because the shareholders do not agree on the future of the company, but can also be caused in the private lives of the shareholders. This includes a relationship breakdown, family quarrels or serious bullying.

Such situations are often untenable, which necessitates the departure of one (or more) shareholder(s). But what options are there for this?

In a previous contribution, Mr. Deracourt the dispute settlement procedure [https://vsadvocaten.be/aandeelhouderschap-binnen-een-vennootschap-wat-als-het-tussen-de-aandeelhouders-niet-meer-botert-deel-1/].

The new Code of Companies and Associations also introduces the possibility of exclusion or withdrawal charged to the company's assets. The withdrawing or excluded shareholder returns his shares, as it were, to the company that destroys them. The main difference with the statutory dispute settlement procedure is that it is not the remaining shareholders who finance the takeover of the shares of the excluded or withdrawing shareholder, but the company itself. This procedure already existed in the old CVBA and today exists in the BV and the CV. 

In the BV, the procedure must be provided for in the articles of association. Companies that have not yet adapted their articles of association to the CAC can therefore not make use of this arrangement (see this contribution: https://vsadvocaten.be/inwerkingtreding-wetboek-vennootschappen-en-verenigingen-wvv/).

The articles of association freely determine the terms of withdrawal or exclusion at the expense of the company's assets.

We advise you to regulate the following aspects in the articles of association:

  • For what reasons can a shareholder be excluded? Does a leaving shareholder have to provide a motivation in order to leave?
  • Is a withdrawal possible at any time or only during part of the financial year? If nothing is foreseen, withdrawal is only possible during the first six months of the financial year, which may not be desirable.
  • Can a shareholder in need of money partially “return” his shares and remain a shareholder for the rest? In the absence of a stipulation to the contrary, this is not possible and therefore all shares must be withdrawn at the same time. 
  • What is the divorce share of the excluded or retiring partner? If the articles of association do not provide anything, the separation share is limited to the shareholder's contribution (insofar as this does not exceed the net asset value of these shares). If the company has accrued profits, these are therefore not paid out. The divorce share will therefore in principle be lower than the actual value of the company. It is recommended to modulate this according to the Articles of Association.  

For example, a formula can be included as a function of the actual value of the shares. In the case of the exclusion of a shareholder, for example, a distinction could be made between “good leaver” situations (e.g. exclusion after an involuntary dismissal) and “bad leaver” situations (e.g. exclusion after a dismissal due to a serious misconduct).

  • How much time does the company have to pay the divorce share? The law provides that the withdrawal takes effect on the last day of the sixth month of the financial year and the divorce share must be paid no later than one month afterwards, but this can therefore be deviated from. In any event, no distributions may be made as long as the company is not sufficiently solvent or does not have sufficient liquidity.

However, the articles of association cannot deviate from the principle that founders can only retire with effect from the third financial year after incorporation. In this way it is prevented that founders could evade their founder's liability. Exclusion of founders during this period is possible.

Only the general meeting can decide on the exclusion of a partner. Nor can it be deviated from.

Another special feature: the exclusion or resignation of a partner at the expense of the company's assets does not require an amendment to the articles of association. Once a year, before the end of the financial year, all withdrawals and exclusions are recorded in an authentic deed drawn up at the request of the administrative body. This makes the scheme particularly flexible in use.

The withdrawal or exclusion at the expense of the company's assets is therefore a more flexible mechanism for settling disputes. It gives the partners the freedom to record the agreements about their exit in advance. In this way, the partners avoid lengthy proceedings in court, the outcome of which is uncertain.

Unfortunately, there is also a flip side to the coin. A statutory regulation on the withdrawal or exclusion at the expense of the company's assets can only supplement but not replace the statutory dispute settlement. In other words, the two mechanisms co-exist. This leads to the undesirable consequence that the partners still have a choice between the two mechanisms at the time of the dispute. The shareholder who wishes to leave will opt for the option with the highest separation share. A shareholder who wishes to exclude another shareholder, on the other hand, will probably opt for an exclusion at the expense of the company's assets in order not to have to bear the financing. This legal uncertainty may not have been the intention of the legislator.

For more information about your options in the event of a shareholder conflict, you can always contact us (sofie.mombaerts@vsadvocaten.be).

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