The business world is full of twists and turns. Within the framework of a limited liability company, various personal or professional reasons can lead partners to disagree. When mistakes are made, or when there is no longer a shared vision in the interests of the company, it is preferable for everyone to consider a separation. However, while partners have obligations within the SARL, they also have rights. Withdrawal or exclusion from an SARL: what procedure should be put in place to organize the voluntary or forced departure of an inactive partner?
Voluntary departure of a SARL partner
The Limited Liability Partnership is a legal form of commercial enterprise with a legal framework for managing relations between partners, in terms of rights and obligations. However, there is room for maneuver when it comes to drafting the articles of association. That's why this stage must be considered with great care.
An SARL can have up to 100 partners, both individuals and legal entities. To join a SARL as a partner, you must be able to make a cash or in-kind contribution to the share capital, either when the company is incorporated or when the capital is increased. Another option is to purchase all or part of a partner's shares, particularly in the event of voluntary departure.
It is preferable that this movement of shareholders out of the company be planned from the outset, when exchanges take place in a cordial and impartial manner. A specific clause in the SARL's articles of association, or a shareholders' agreement, may then be considered.
The partners' agreement is a contract which, as its name suggests, is signed by all the partners. It establishes the rules of governance of the SARL and defines the formalities of relations between the parties. Failure to carry out the tasks set out in this contract triggers procedures for claims, sanctions, damages, etc.
Exclusion of an inactive partner from a limited liability partnership
If a voluntary departure clause can be included in the articles of association, it is also possible to record the terms of a forced departure. Indeed, a disagreement between partners that cannot be resolved amicably can paralyze the operation of the structure and jeopardize the SARL's viability.
It should be noted that the basic principle, by virtue of the right of ownership conferred by Articles 544 et seq. of the French Civil Code, is that a partner cannot be excluded from an SARL against his will, nor can he be forced to sell his shares. In order to apply an exception to this rule, it is imperative that the articles of association include an exclusion clause.
In this case, the clause may be set at the time of incorporation of the SARL, or it may be incorporated by a subsequent decision, provided it is unanimously adopted by the partners. To facilitate practical implementation, the articles of association should specify the conditions and procedures for applying the clause concerning the exclusion of a partner.
A detailed description should be included in the SARL's articles of association, specifying:
- Reasons for exclusion, with as exhaustive a list as possible (breach of a statutory provision, divergence of strategy, mismanagement, etc.).
- Conditions for informing the partner concerned
- The decision-making process, the decision-making body and voting arrangements
- Terms and conditions for the sale of shares (calculation of the purchase price, authorization for purchase by a partner or designated third party, etc.).
- The clause suspending the non-pecuniary rights of the excluded shareholder, pending transfer of the shares (right to information, right to attend meetings, voting rights, etc.).
These provisions may be supplemented by various clauses included in the shareholders' agreement: approval clause, pre-emption clause, inalienability clause, buy or sell clause, etc.
What is the procedure for excluding a partner?
When the exclusion clause has been precisely drafted in the SARL's articles of association or partners' agreement, it is sufficient to follow the defined procedure when a disagreement corresponding to an established reason arises.
Generally, the exclusion of a SARL partner follows the following procedure:
- The associate is informed officially, by means of a notice sent by the company's legal representative by registered letter with acknowledgement of receipt. The notice must state the reasons for initiating the exclusion procedure.
- Members vote on a collective exclusion decision at a General Meeting, which the excluded associate may or may not attend.
- The sale price of the shares held is set by mutual agreement or by a third-party expert, appointed if necessary by the Commercial Court.
- The deed of sale is drawn up after the right of pre-emption and/or the approval procedure has been applied. It must then be registered with the SIE (Service des Impôts des Entreprises) and the Registrar's Office.