The Belgian private limited company (société privée à responsabilité limitée/besloten vennootschap met beperkte aansprakelijkheid) is roughly equivalent to the English private limited company, the French société à responsabilité limitée, the German Gesellschaft mit beschränkter Haftung, or the Italian societè a responsabilita limitata.

It is incorporated in a notarial deed by at least two shareholders who present a financial plan covering the first two years of activity to the notary. No prior authorisation needs to be obtained. The private limited company can be incorporated by a single individual shareholder; a sole corporate shareholder would be held liable for all the debts and obligations of the company until such time as it finds a second shareholder.

Capital

The minimum share capital required is €18,550, of which at least €6,200 must be paid up. However, where there is only one founder, €12,400 only is required. Where capital is subscribed in cash only, each share must be paid up to at least 20 per cent, so that the total amount paid is €6,200. Furthermore, where the capital is entirely in other than cash, each share must be fully paid up.

Shares have no minimum value and where capital is subscribed other than in cash, a statutory auditor (reviseur d'entreprises/bedrijfsrevisor) needs to report on the assets involved and their value.

Capital increases and capital reductions as well as any important acquisitions from shareholders or directors in the start-up phase of the company are subject to a report by a statutory auditor. The directors cannot be authorised to increase the share capital.

Shares

The shares of the private limited company must be in registered form.  Bearer shares are not allowed.

The private limited company cannot issue non-capital shares, nor can it issue bonds unless these are in a registered form with or without a nominal value.

Non-voting shares may be issued as long as these shares do not represent more than one-third of the capital and confer a right to a preferential dividend as well as to the preferential reimbursement at the time of liquidation of the share capital, and to an equal share in the distribution of surplus assets. The shares can recover their voting rights in cases where these conditions are no longer complied with or whenever the general shareholders' meeting is convened to modify the respective rights connected to the shares or to wind up, merge or split up the company, modify its object, reduce the company's capital or the preferential rights attached to shares or to authorise the board of directors to increase the capital to the amount of the authorised capital.

Shares are transferred through a declaration of transfer in the shareholders' register.  Any transfer of shares (be it by way of a donation, a sale or an inheritance) needs to be approved by at least 50 per cent of the other shareholders, holding at least 75 per cent of the share capital (excluding the transferred shares). This prior authorisation is not required for transfers between shareholders, spouses or parents and children. The articles of incorporation may impose more stringent rules.

The private limited company cannot subscribe any increase of its own capital and it cannot under any circumstances finance the acquisition of its own shares. Moreover it can only redeem its shares after prior approval of the general shareholders' meeting and by decision taken by a simple majority of the shareholders representing at least 75 per cent of the shares excluding those shares which would be redeemed. However, such redemption cannot be used to avert any takeovers or to give shares to its personnel.

Management

The private limited company is run by one or more directors elected for an indefinite period of time by the shareholders' meeting by simple majority unless the articles of incorporation provide otherwise.

The director does not have to be a shareholder or a Belgian resident or national, but a company can never be appointed as a director of a private limited company.

Each director can individually exercise all the powers which (in a public limited company) are granted to the board of directors as a body and any restrictions of their powers cannot be opposed by third parties.

Each director is liable for any damages due to his management where he did not abide by the articles of association or the Companies Code. He can be sued by the company, at the instigation either of the shareholders' meeting or of minority shareholders, who hold shares which represent 10 per cent of the voting rights. The minority shareholders can request the court to have an independent audit carried out on the accounts whenever they have presumptions that the interests of the company are (or risk being) harmed.

If in the case of bankruptcy the assets are insufficient, the directors can be sued for serious cause in certain circumstances, generally where neglect can be shown.

General shareholders' meeting

The director or the board of directors can convene the general shareholders' meeting. They are obliged to do so if shareholders representing one-fifth of the share capital require them to do so.

Unless the articles of association state to the contrary, the shareholders may appoint their proxy holder or vote by correspondence.  A public invitation to be granted proxies is not allowed. The shareholders' voting rights are not limited and they are proportional to the number of shares.

Agreements between shareholders limiting their voting rights cannot be agreed upon for a period exceeding five years and cannot contain any clauses which are contrary to the company's law or the interest of the company. Moreover the shareholders cannot undertake to vote according to instructions issued by the company, a subsidiary, or the board.

Annual shareholders' meeting

The company must hold an annual general shareholders' meeting to discuss and approve the annual accounts, the annual management report and the annual audit report of the statutory auditor, and to decide about the distribution (or reservation) of profits and to grant discharge to directors.

Decisions are usually taken by a simple majority vote.

Before any distribution of dividends, 5 per cent of the net profit is to be retained as a statutory reserve until such time as the statutory reserve amounts to 10 per cent of the share capital. Moreover a distribution of dividends is only allowed on the condition that it does not bring the amount of the net assets (i.e. total assets less liabilities) under the amount of the paid-up capital plus reserves which are not available for distribution.

The articles of association cannot allow the board to distribute interim dividends.

Special shareholders' meeting

Special shareholders' meetings may be convened to supervise and ratify the operations of the company, appoint directors or remove them. An extraordinary general shareholders' meeting has to be convened in cases of substantial loss.

Unless specified differently in the corporate charter, decisions by an extraordinary general shareholders' meeting are taken by a simple majority vote. However a special majority is always required for:

  • any amendments to the articles of incorporation;
  • any modification of the object clause;
  • any increase or reduction of the share capital; and
  • early liquidation of the company when, due to losses, the value of the net assets is reduced to under 50 per cent of the share capital.

At least 50 per cent of the share capital must be present or represented at the shareholders' meeting, failing which a new meeting is to be convened where a quorum of 25 per cent is sufficient, and the decision is to be taken by a 75 per cent majority or even an 80 per cent majority for a modification of the object clause.

 

 

User Menu