Foundation, operation and liquidation of a company (in particular a private company)
Jan de Bray, The managers of the Haarlem Orphanage
Foundation.
There is no longer any question of capital, and therefore also no starting capital. At the foundation, there must be sufficient capital (own funds), taking into account other sources of financing, to cover the planned activities financially. A contribution in kind (eg building, machine, etc..) must be valued and justified by the founders, with assessment by a company auditor.
A financial plan must be available, the composition of which is now more precisely defined (including precise description of activities, presentation of all sources of financing, projection of a balance sheet and income statement for 24 months, budget of income and expenditure for 2 years, presentation of the assumptions in determining the assumed turnover and profitability).
Inadequacy of this financial plan could lead to the founders becoming liable to creditors. Attention, not all parties mentioned in the deed of incorporation are founders (as a starting point, but contribution without any benefit can remove that capacity; also shareholders - who represent at least 1/3 of the shareholders - can be referred to in the deed of incorporation as founders, which as a consequence has that other appearances in that deed do not have the status of founders).
Input
Is possible through money or in kind. A special form of the latter is the contribution of activity. This is an incentive for start-ups. One contributes capital, the other mainly his work and capacities.
The PC (private company) can not only distribute shares, but can also work with certified shares, bonds, and convertible bonds.
As a rule, each share gives the same rights (voting rights and right to dividends). However, this is additional right. This means that the deed of incorporation can provide for the existence of shares without and with voting rights (the right to dividends cannot be withdrawn). The statutes and especially the shareholders' register provide the information about the rights attached to the shares ( or classes of shares ).
Classes of shares can even be created. With or without voting rights, or privileged shares with one or simple voting rights.
When new shares are issued (usually by the general meeting, 3/4 majority and at least half of the capital represent; unabridged delegation of authority to the board of directors for 5 years), the issue price must be stated in a report by the board of directors. The existing shareholders then have a pre-emptive right, unless otherwise decided by the shareholders (or board of directors by delegation of authority).
Government
by 1 or more directors. There are statutory directors and non-statutory directors. From now on, directors are only self-employed. Written decision-making is now possible. A director with a conflict of interest (with the company) abstains from now on. The minutes with the conflict of interest must be shown in the annual report. If only 1 director, draw up a special report with the inclusion of contracts between him and the company. A day-to-day management can be organized (for daily activities or in case of urgency (thus also for important matters)).
A statutory director can only be removed for legal reasons and by simple majority. The statutes or the GA (General Assembly) may provide for a notice period or compensation. If the director himself quits (and it is of course in his interest that this is known quickly), the company (administrative body) must publish this. If the company doesn’t publish this, he can do this himself.
The directors responsibility is discussed separately.
The General Assembly.
The communication between shareholders and the company can now take place via e-mail, website. The shareholder can provide an e-mail address at any time in order to communicate officially with the company (ie in both directions) general meetings can therefore also be convened by e-mail. Shareholders with 10% of the voting rights can compel the company to hold a general meeting.
Directors must be present at the general meeting. From now on, abstentions will not be counted during voting.
Transfer of shares.
In a PC, transfer restrictions apply to shares with the consent of at least 1/2 shareholders, who represent at least 3/4 of the capital, unless statutes provide otherwise (ie unlimited possibility). In a joint-stock company as a rule there is a free transfer of shares. Clauses of inalienability must be limited in time (if not, they can be terminated) and must be justified by a legitimate interest (formerly "company interest" and therefore stricter. Transfers of shares in violation of the statutory transfer restrictions are not enforceable. Conventional transfer restrictions (e.g. listed in the share register ) are not enforceable. Transfer of shares is recorded in the share register, and this can now be noted by the company and transferring party. From now on, the share register must not only state the total declared shares, but also the designation how much voting right and how much profit right is attached to a share. Third parties can now only demand access to the share register through a court order. On the other hand, registration in the share register is only a formality for the objection but not a condition for the validity of a transfer. He who is registered there is considered to be the holder. An electronic share register is now promoted even more, but this does not change the strict access control (art.7:12 § 5 KB CAC).
Directors' liability:
Obvious gross negligence that contributed to bankruptcy, specific liability for social security debts, wrongfull trading (concluding contracts at the moment when the company can no longer repay the debts, actions apparently by normal and careful directors, are the grounds according to the Economic Law Code. In addition, the error in accordance with art. 1382 CC (but taking into account the theory of concurrence) Unique system (compared to other countries) there is a "cap" of responsibility for a director (125,000 when turnover (€ 250,000 and balance sheet total (€ 175,000); € 250,000) turnover (€700,000 and balance sheet total (€350,000), etc.. up to a maximum of 12 million).
Nullity of decisions:
Not only the decisions of the GA but also of the board of directors (or director if 1 person), the liquidator, the appointed provisional administrator. The appeal must be made within 6 months. The reason must be "any irregularity in the manner in which a decision is reached, if the claimant demonstrates that the irregularity committed could have influenced the deliberation or the vote, or was committed with fraudulent intent" (art.2:42.1 ° Companies and Associations Code). (misuse of rights, aversion or exceeding of powers). The nullity entails the nullity of the decision taken if the null vote could have influenced the deliberation. The judge can substitute his vote for abused votes. As a rule, this request can only be made by partners, shareholders, bondholders, members of the board of directors. Creditors can only intervene on the basis of a lateral or Paulian claim.
The rights of third parties in good faith (they were not aware of the default, or should not have known it) are protected and are entitled to compensation in the event of nullity. This does not apply to members of administrative/governing bodies.
Liquidation:
A special general meeting is first held when dissolving the company and appointing the liquidator. A company auditor is appointed who prepares a statement of assets and liabilities.
The further elaboration differs depending on the result. (in connection with the intervention of the chairman of the company court and the responsibilities).
See also: Transitional arrangement for companies
The liquidation of companies
Company disputes between shareholders