The regime of resignation at the expense of the company’s patrimony must imperatively be provided for by the statutes.
If an option of resignation is provided for in the articles of association, it is important to specify the modalities. Indeed, the regime applicable by default is not entirely complete.
Regardless of the terms specified in the articles of association, the voluntary resignation of a founding shareholder is only permitted from the third financial year following the incorporation.
The following rules apply, unless otherwise provided by statute:
- shareholders may only resign during the first six months of the financial year;
- a shareholder resigns for all of his shares, which will be cancelled;
- the resignation takes effect on the last day of the sixth month of the financial year, and the value of the withdrawal share must be paid no later than the following month;
- The amount of the withdrawal share shall be for each share equivalent to the amount actually paid up and not yet repaid for that share, but shall not exceed the amount of the net asset value of that share as shown in the latest approved annual accounts.
The distribution of the amount of the withdrawal share to which the shareholder is entitled upon resignation is subject to distribution tests. If, as part of these distribution tests, the withdrawal portion cannot be paid in whole or in part, the right to payment shall be suspended until distributions are permitted again. The statutes may not derogate from it. The amount remaining due on the withdrawal portion is payable before any further distribution to shareholders.
In addition to resignation at the initiative of the individual shareholder, the articles of association of a SRL may also provide for a regime by which a shareholder is deemed to have resigned by operation of law at the expense of the assets of the SRL:
- in the event of death, bankruptcy, collapse, liquidation or prohibition of the shareholder;
- when the shareholder no longer meets the statutory requirements to become a shareholder.
In this case, the resignation is deemed to take place at the time of the occurrence of the event and the same legal provisions apply as for a voluntary resignation, with the exception of the deadlines determined in Article 5:154, § 1, paragraph2, 1 ° and 2 ° of the CSA.
