The simplified shareholder company (société par actions simplifiées - SAS) is a legal form of company recently introduced in Luxembourg.

The company's capital is divided into shares. It is made up of one or more persons who only commit a specific stake.

Certain rules of the public limited company (SA) also apply to the SAS. The main appeal of this form of company lies in the limitation of the mandatory provisions applicable to its operation.

However, the freedom left to the partners in its incorporation requires that particular care is taken in the drafting of the articles of association.

Who is concerned

An SAS can be established by either a natural or a legal person.

Prerequisites

At least one partner is required. There is no limit to the number of partners.

Any person wishing to set up in Luxembourg in order to create a business must have the authorisations/approvals required to carry out the activity.

Costs

Setting up an SAS entails certain costs, including:

• notary fees;
• the cost of publication in the Trade and Companies Register (Registre de commerce et des sociétés – RCS);
• the remuneration of the auditor, if applicable;
• a share capital contribution of at least EUR 30,000;
• any costs related to the issuance of administrative permits.

How to proceed

Deed of incorporation

An SAS must be formed in the presence of a notary. An auditor's report is required in the case of a contribution in kind.

The articles of association are published in full in the RCS.

The law specifies a list of 14 pieces of mandatory information that must be included in the articles of association:

• the identity of the signatories to the deed of incorporation;
• the form of the company and the company name;
• the SAS's corporate purpose and registered office;
• the amount of subscribed share capital and, where applicable, the amount of authorised share capital;
• the amount initially paid into the subscribed share capital;
• the share classes and their characteristics;
• whether the shares are registered, bearer or dematerialised shares, and any additional or derogation clause which may override the law;
• a description of each contribution in kind;
• the cause and content of special benefits granted upon the company's formation;
• where applicable, the number of securities or shares that do not form part of the share capital, and the rights attached thereto;
• the rules that determine the number of and method of appointing the members of the bodies representing the company with respect to third parties, administering, managing, overseeing or auditing the company; and the rules that determine the distribution of authority among these bodies if it deviates from the law;
• the duration of the company;
• at least an approximation of the company's formation costs.

Company name

The SAS must have a company name that is established in its articles of association.

The name must be different from that of any other existing company.

To find out whether the company name is available, contact the RCS.

Duration

The duration of the SAS's existence must be set by its articles of association.

The company may be established for a limited duration or an unlimited duration.

Conversion

An SAS may change its corporate form in the course of its lifetime by decision of the partners.

The rules on mergers and demergers, which are likely to bring about a change in legal form, apply to an SAS.

Dissolution

The company is automatically dissolved at the end of the duration of its lifetime specified in the deed of incorporation.

It may be dissolved by the partners, e.g. in the event of loss of share capital, or by court order for just cause or unlawful activities.

Each voluntary dissolution must be accompanied by administrative certificates from:

• from the Joint Social Security Centre;
• the Luxembourg Inland Revenue (Administration des contributions directes);
• the Registration Duties, Estates and VAT Authority (Administration de l’enregistrement, des domaines et de la TVA).

The dissolved company retains its legal personality for the purposes of its liquidation.

Capital

The minimum amount of capital needed to form an SA is EUR 30,000.

The SAS may be formed by means of subscriptions. The capital must be fully subscribed and paid up to the level of at least one quarter.

Cash contributions or contributions in kind are permitted.

Contributions in kind must be covered by an assessment report drawn up by a statutory auditor (réviseur d’entreprises).

The SAS cannot carry out a public issue of shares.

Form of shares

In the absence of specific provisions applicable to the SAS, the rules applicable to the public limited company also apply to the SAS.

Fully paid up shares are bearer shares, registered or dematerialised shares.

Shares:

• are registered until they are fully paid up;
• can:
  • have a designated face value; or
  • have no face value.

Registered or bearer shares may be converted into dematerialised shares and recorded in a securities account managed by an account holder, provided the conversion is provided for by the articles of association.

Shares may be created that are not representative of the share capital and that are designated as "profit shares". The articles of association determine the rights attached to these shares.

An SAS may issue shares without voting rights:

• when the company is formed, if stipulated in the articles of association; or
• when a capital increase takes place; or
• through the conversion of ordinary shares.

A record of registered shares that establishes ownership is to be kept at the registered office. Owners may request a certificate.

Bearer shares must be deposited with an authorised custodian.

Dematerialised shares are materialised when they are recorded in a securities account with an authorised body.

Transfer of shares

The articles of association determine the rules for the transfer of shares. They may provide for conditions regarding the approval of new partners.

Any transfer of shares made in violation of the provisions to the articles of association shall be null and void. This provision makes it possible, in particular, to ensure the closed nature of an SAS.

Managerial structure

An SAS has the possibility to adopt a management structure.

The articles of association set out the conditions under which the company is managed as well as the decision-making procedures.

Meeting of partners

The articles of association may freely determine the functioning of the meeting of partners, such as the procedures for convening the meeting, the communication of documents, the voting and quorum procedures, etc.

The articles of association also determine the decisions that must be taken collectively by the partners in the forms and under the conditions laid down therein. This liberty is not total. As in the case of public limited companies, the law determines the decisions that must be taken collectively by the partners, namely:

• capital increase;
• amortisation or capital reduction;
• merger;
• division;
• dissolution;
• transformation into a company of another form;
• appointment of auditors;
• annual accounts and allocation of profits.

The terms and conditions for the exercise of these prerogatives are set out in the articles of association.

At the first general meeting, before any vote on other resolutions, a special report shall be made on transactions in which the chairman would have had an interest opposed to that of the company.

If the company only has a single partner, the partner's decisions shall be recorded in the minutes or drawn up in writing.

Management of an SAS

The management of the company's affairs as well as the representation of the company with regard to such management shall be entrusted to a chairman. The chairman is vested with the broadest powers to act in all circumstances in the name of the company and within the limits of the corporate purpose.

The articles of association shall determine the procedures for his appointment, resignation or the duration of his term of office. The chairman can be one of the partners or a third party.

The law does not provide for mandatory management bodies other than the chairman. The articles of association may, however, create such bodies for the purposes of internal management and organisation of powers.

The articles of association may lay down the conditions under which a director may exercise the management powers of the chairman. The director has the same powers with regard to third parties as the chairman.

The office of chairman or director may be entrusted to a legal person.

In this case, the company must appoint a permanent representative to carry out this task in the name and on behalf of the legal person. It can only be revoked if a successor is designated at the same time.

If the chairman has, directly or indirectly, an interest of a proprietary nature opposed to that of the company on the occasion of a transaction that he is entitled to decide, this must be mentioned in the minutes of the transaction.

If a director has, directly or indirectly, an interest of a proprietary nature opposed to that of the company, the decision must be taken by the chairman. This must be recorded in the minutes of the decision.

These provisions do not apply to current transactions concluded under normal conditions.

Liability

In relations with third parties, the company is bound by the acts of the chairman even if they do not fall within the company's purpose. In the event of litigation, the company will be able to establish that the third party knew that the act exceeded the company's corporate purpose or that the third party could not have been unaware of it.

The mere fact that the articles of association are public is not sufficient proof.

The restrictions on a chairman's powers are not binding on third parties.

The chairman or the director take on no personal obligation concerning the commitments of the company.

The representative of a legal person entrusted with management is subject to the same conditions and assumes the same civil liability as if he were to carry out this task on his own account, without prejudice to the joint and several liability of the legal person that he represents.

The appointment and termination of the duties of the permanent representative are subject to the same rules of publicity as if he were performing such duties in his own name and for his own account.

Actions for or against the company are validly made in the name of the company alone.

The partners are liable to the extent of the amount of their contribution to the share capital.

Obligations

Auditor oversight

The legal audit of accounts must be delegated to one or more approved statutory auditors (réviseur d’entreprises agréé) in any company which, on the balance sheet date after 2 consecutive financial years, exceeds 2 out of the following 3 criteria:

• balance sheet total: EUR 4.4 million;
• net turnover: EUR 8.8 million;
• average number of (full-time) staff: 50.

For companies that do not meet these criteria, oversight is nevertheless mandatory by one or more internal auditors (commissaires aux comptes), who may or may not be shareholders.

Legal publications

The articles of association are published in full in the RCS.

In order to register the company with the RCS, information about the company must be disclosed.

In addition, the SAS must file the following with the RCS:

• the deed of incorporation in its entirety;
• information on the appointment and discontinuation of the various management bodies and on liquidators, where applicable;
• information on the custodians of the bearer shares;
• certain legal decisions;
• where applicable, information on the dissolution of the company;
• annually, the status of the share capital, following the balance sheet;
• the annual financial statements;
• the management report;
• the internal auditors' report or statutory auditors' report.

Any subsequent changes must be filed with the RCS.

The corporate financial statements must be filed with the RCS within one month of their approval and no later than 7 months after the close of the financial year.

Accounting

An SAS must produce: balance sheet, profit and loss account, notes to the financial statements and management report, which must be approved by the general meeting of partners;

An SAS can draw up an abridged balance sheet if, on the balance sheet date, they do not exceed 2 out of 3 of the following criteria:

• balance sheet total: EUR 4.4 million;
• net turnover: EUR 8.8 million;
• average number of (full-time) staff: 50.

An SAS can draw up an abridged profit and loss account if, on the balance sheet date, they do not exceed 2 out of 3 of the following criteria:

• balance sheet total: EUR 20 million;
• net turnover: EUR 40 million;
• average number of (full-time) staff: 250.

The financial statements must be drawn up in accordance with the "Lux Gaap" rules.

Taxation

The SAS is subject to the provisions concerning:

• a fixed registration fee;
• property tax;
• business tax.
  
• net wealth tax;
• corporate income tax;
• VAT returns, based on the following criteria:
  • annual turnover excluding tax of less than EUR 112,000 -> annual declaration;
  • annual turnover excluding tax between EUR 112,000 and EUR 620,000 -> quarterly and annual declaration;
  • annual turnover excluding taxes exceeding EUR 620,000 -> monthly and annual declaration.

Who to contact