Commercial Companies Act of 10 August 1915

Transcription

1 Commercial Companies Act of 10 August 1915 consolidated version in force as at 19 December 2017

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3 Commercial Companies Act of 10 August 1915, in force as at 19 December 2017 as consolidated by: - the Grand-Ducal Regulation of 5 December 2017.

4 Disclaimer: This is an unofficial translation of the "Loi coordonnée du 10 août 1915 concernant les sociétés commerciales" courtesy of NautaDutilh Avocats Luxembourg S. à r. l. It is provided for information and ease of reference purposes only and may not be relied upon. NautaDutilh Avocats Luxembourg S. à r. l. may not be held liable in relation to this translation or its use. In case of discrepancies between the French and the English text or any ambiguity about the meaning of certain translated terms, the French text shall prevail.

5 TABLE OF CONTENTS: TITLE I. GENERAL PROVISIONS... 1 TITLE II. GENERAL PARTNERSHIPS TITLE III. LIMITED PARTNERSHIPS AND SPECIAL LIMITED PARTNERSHIPS Chapter I. Limited partnerships Chapter II. Special limited partnerships TITLE IV. Chapter I. Chapter II. PUBLIC LIMITED-LIABILITY COMPANIES AND EUROPEAN COMPANIES (SE) The nature and characterisation of public limited-liability companies and European companies (SE) The incorporation of public limited-liability companies and European companies (SE) Chapter III. Shares and share transfers Chapter IV. Management and supervision of public limited-liability companies and European companies (SE) Section 1. The board of directors Section 2. Board of management and supervisory board Sub-section 1. The board of management Sub-section 2. The supervisory board Sub-section 3. Provisions applicable to both the board of management and the supervisory board Section 3. Audit by the statutory auditors Section 4. Common provisions applicable to management organs, the supervisory board and statutory auditors Chapter V. General meetings Chapter VI. Inventories and financial statements et de certaines indications a faire dans les actes Section 1. Inventories and financial statements Section 2. Certain indications to be included in deeds Chapter VII. Issue of bonds Chapter VIII. The term and dissolution of public limited-liability companies and European companies (SE) Chapter IX. Transfer of the statutory registered office of a European company (SE) Section 1. Procedure for transfer of statutory registered office from the Grand-Duchy of Luxembourg to another Member State Section 2. Effective date of the transfer of statutory registered office TITLE V. SIMPLIFIED JOINT STOCK COMPANIES TITLE VI. PARTNERSHIPS LIMITED BY SHARES TITLE VII. PRIVATE-LIMITED LIABILITY COMPANIES... 81

6 Chapter I. General provisions Chapter II. Special provisions applying to simplified limited-liability companies TITLE VIII. COOPERATIVE SOCIETIES Chapter I. Cooperative societies in general Section 1. The nature and formation of cooperative societies Section 2. Changes in the personnel and business assets of the society Section 3. Measures in the interests of third parties Chapter II. Cooperative societies organised as public limited-liability companies Chapter III. European cooperative societies (SEC) Section 1. General provisions Section 2. Formation Sub-section 1. Formation by way of merger Sub-section 2. Sub-section 3. Transformation of a cooperative society into a European cooperative society (SEC) Participation in a European cooperative society (SEC) by a company having its central administration outside the European Community Section 3. Organs Sub-section 1. Administration Sub-section 2. General meeting of shareholders Sub-section 3. Corporate litigation Section 4. Move of statutory registered office Section 5. Financial statements and consolidated financial statements, and their audit. Special provisions applying to the double-organ system Section 6. Dissolution, liquidation, insolvency and cessation of payments Section 7. Transformation of a European cooperative society (SEC) into a cooperative society Section 8. Criminal provisions Section 9. Final provisions TITLE IX. JOINT VENTURE COMPANIES AND PARTICIPATION COMPANIES TITLE X. RESTRUCTURINGS Chapter I. Transformation Chapter II. Mergers Section 1. Merger by absorption Section 2. Merger by formation of a new company Section 3. Absorption of a company by another possessing 90% or more of the shares and securities conferring voting rights in the first company Section 4. Other transactions equated to a merger Chapter III. Divisions Section 1. Division by absorption

7 Section 2. Division by formation of new companies Section 3. Other transactions equated to a division Chapter IV. Transfer of assets, branches of activity and totalities of assets Chapter V. Transfers of net business assets TITLE XI. THE LIQUIDATION OF ENTITIES TITLE XII. THE DISSOLUTION AND JUDICIAL CLOSURE OF COMMERCIAL COMPANIES TITLE XIII. ENTITIES INCORPORATED ABROAD TITLE XIV. COURT ACTIONS AND PRESCRIPTION PERIODS TITLE XV. CRIMINAL PROVISIONS TITLE XVI. ADDITIONAL PROVISIONS TITLE XVII. CONSOLIDATED FINANCIAL STATEMENTS Chapter I. Terms and conditions for preparing consolidated financial statements Section 1. Terms for preparing consolidated financial statements Section 2. Methods for preparing consolidated financial statements Chapter II. Consolidated management report Chapter III. Consolidated non-financial statement Chapter IV. Obligation and liability concerning preparation and publication of the consolidated financial statements and the consolidated management report Chapter V. Audit of the consolidated financial statements Chapter VI. Consolidated report on payments made in favour of governments Chapter VII. Publication of consolidated financial statements Chapter VIII. Consolidated financial statements prepared according to international accounting standards Chapter IX. Miscellaneous provisions Appendix I Conversion table

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9 TITLE I. Article GENERAL PROVISIONS (amended by the Act of 10 August 2016 (Official Gazette A167 of 19/08/2016, p. 2742) Commercial entities are those whose corporate purpose is to carry on commercial activities. They are governed by the agreements between the parties, mercantile law and practice and the civil law. They are divided into commercial entities in the strict sense and commercial joint ventures (sociétés commerciales momentanées) and undisclosed commercial partnerships (sociétés commerciales en participation). Article (amended by the Act of 18 September 1933 (Official Gazette A48 of 02/10/1933, p. 749), supplemented by the Act of 31 May 1999 (Official Gazette A77 of 21/06/1999, p. 1681), amended by the Act of 25 August 2006 (Official Gazette A152 of 31/08/2006, p. 2684), the Act of 21 December 2006 (Official Gazette A228 of 27/12/2006, p. 4070), the Act of 12 July 2013 (Official Gazette A119 of 15/07/2013, p. 1856), the Act of 10 August 2016 (Official Gazette A167 of 19/08/2016, p. 2742); the Act of 23 July 2016 (Official Gazette A157 of 4/08/2016, p. 2662)). The law recognises as commercial companies endowed with legal personality: 1) société en nom collectif (general partnership); 2) société en commandite simple (limited partnership); 3) société anonyme (public limited-liability company) and société par actions simplifiée (simplified joint stock company); 4) société en commandite par actions (partnership limited by shares); 5) société à responsabilité limitée (private limited-liability company) and société à responsabilité limitée simplifiée (simplified private limited-liability company) (inserted by the Act of 23 July 2016 (Official Gazette A157 of 4/08/2016, p. 2662)); 6) société coopérative (cooperative society); 7) société européenne (SE) (European company). Each constitutes a legal person separate from the legal personality of its members. A European company (SE) acquires legal personality on the date of its registration in the register of commerce and companies. The domicile of a commercial company is at the place where its central administration is carried on. The central administration of an entity is deemed to be the same as its registered office according to its articles of association unless proved otherwise. In addition there are sociétés commerciales momentanées (temporary commercial ventures), sociétés commerciales en participation (commercial participation ventures) and sociétés en commandite spéciale (special limited partnerships), which not have distinct legal personality separate from that of their members. The acquisition of a holding in any company falling under this article does not constitute a commercial act per se. Article (amended by the Act of 18 September 1933 (Official Gazette A48 of 02/10/1933, p. 749), the Act of 7 September 1987 (Official Gazette A77 of 15/09/1987, p. 1792), the Act of 25 August 2006 (Official Gazette A152 of 31/08/2006, p. 2684), the Act of 23 March 2007 (Official Gazette A46 of 30/03/2007, p. 816), Act of 10 August Commercial Companies Act of 10 August

10 2016 (Official Gazette A167 of 19/08/2016, p. 2742), Act of 23 July 2016 (Official Gazette A157 of 4/08/2016, p. 2662)) Entities with non-commercial corporate purpose that opt to be subject to the rules set out in articles 1832 et seq. of the Civil Code also have distinct legal personality from that of their members, and service of any process on behalf of or on such entities is valid if made in the name of the entity alone. Article applies to them. However, entities with non-commercial corporate purpose may use any of the commercial entity forms listed in article 100-2, first paragraph. In this case, however, the entity and any transactions it conducts are deemed commercial in nature and thus subject to mercantile law and practice. Non-commercial entities, regardless of the time at which they were incorporated, if there is no provision in their deed of constitution prohibiting same, may be transformed into one of the commercial forms of entity, with the exception of a simplified private limited-liability company, by resolution of a general meeting of shareholders called specially for that purpose. The meeting will set down the articles of association of the entity. Its resolution is only valid if supported by shareholders representing three-fifths or more of the shares in the entity. (Amended by Act of 23 July 2016 (Official Gazette A157 of 4/08/2016, p. 2662).) A European economic interest grouping may be transformed into an entity endowed with legal personality, with the exception of a simplified private limited-liability company, under this act. Conversely, an entity endowed with legal personality may be transformed into a European economic interest grouping. (Amended by Act of 23 July 2016 (Official Gazette A157 of 4/08/2016, p. 2662).) Finally, any of the types of entities listed in article 100-2, first paragraph, may, regardless of the original nature of their corporate purpose or the date of their incorporation, provided their instruments of incorporation do not prohibit same, be converted into another form of entity provided for in that same article or into a non-commercial company, with the exception of a European company (SE) and a simplified private limited-liability company. (Amended by Act of 23 July 2016 (Official Gazette A157 of 4/08/2016, p. 2662).) A public limited-liability company governed by Luxembourg law may be converted into a European company (SE) if, for at least the last two years, it has had a subsidiary governed by the laws of another Member State of the European Economic Area, hereinafter referred as a Member State. The provisions of this act relative to transformation apply also to the transformation of legal persons other than entities into one of the forms of entity endowed with legal personality pursuant to this act, with the exception of a simplified private limited-liability company, to the extent that the special statutes relative to such legal persons provide for that and in accordance with the special provisions contained in the said special statutes. (Amended by Act of 23 July 2016 (Official Gazette A157 of 4/08/2016, p. 2662).) A European company (SE) that has its registered office in the Grand-Duchy of Luxembourg may convert into a public limited-liability company governed by Luxembourg law. The conversion decision may not be taken within two years from its registration or before approval of its first two sets of financial statements. The conversions referred to in this article do not give rise to the dissolution of the entity or the creation of new legal personality. The rights of third parties are reserved. 2 Commercial Companies Act of 10 August 1915

11 Article (amended by the Act of 18 September 1933 (Official Gazette A48 of 02/10/1933, p. 749), the Act of 23 November 1972 (Official Gazette A72 of 13/12/1972, p. 1586), the Act of 12 July 2013 (Official Gazette A119 of 15/07/2013, p. 1856), the Act of 23 July 2016 (Official Gazette A157 of 4/08/2016, p. 2662) General partnerships, limited partnerships, cooperative societies, non-commercial companies, special limited partnerships and simplified private limited-liability companies may only be validly established by means of special deeds, notarially recorded or under private seal, in the latter case in accordance with article 1325 of the Civil Code, failing which they are void. Two originals are sufficient for non-commercial entities, cooperative societies, limited partnerships and special limited partnerships. Public limited-liability companies, partnerships limited by shares and private limited-liability companies must be incorporated by means of special notarially recorded instruments, failing which they are void. Article (inserted by the Act of 10 August 2016 (Official Gazette A167 of 19/08/2016, p. 2742) (1) The entities referred to in article 100-2, first paragraph, as well as special limited partnerships are designated by a trading name that may be either the individual name or a reference to the object of their business. This name or designation must be distinct from that of any other entity. If it is identical or its resemblance thereto is apt to induce error, any party having an interest may have it changed and claim damages if cause be shown. (2) Only European companies (SEs) may incorporate the abbreviation SE into their company name. However, companies and other legal persons registered in a Member State before the date on which Regulation (EC) no. 2157/2001 of the Council of 8 October 2001 on the Statute for a European company (SE) entered into force whose company name includes the abbreviation SE are not obliged to amend their company name. Article (inserted by the Act of 10 August 2016 (Official Gazette A167 of 19/08/2016, p. 2742) The deeds of incorporation of general partnerships, limited partnerships and non-commercial companies must, on pain of nullity, include the following particulars: 1) the entity s name and its registered address; 2) the entity s objects; 3) identification of the members contributions. Article (amended by the Act of 12 July 2013 (Official Gazette A119 of 15/07/2013, p. 1856)) The deeds or instruments of a partnership, a limited partnership and a special limited partnership are published in extract form at the partnership s expense. Article (amended by the Act of 12 July 2013 (Official Gazette A119 of 15/07/2013, p. 1856)) The extract must contain the following information, failing which the penalties laid down in article apply: 1) precise designation of the general partners; Commercial Companies Act of 10 August

12 2) the partnership s name or appellation, together with stipulation of its corporate purpose and the address of its registered office; 3) the names of the managers, their signing authority and, for general partnerships, the nature of, and limits on, their powers; 4) the term for which the partnership exists. Article The extract of the deed or instrument is signed: for public deeds, by the notary with whom the engrossment is lodged; and, for instruments under private seal, by all the general partners. Article (amended by the Act of 18 September 1933 (Official Gazette A48 of 02/10/1933, p. 749), the Act of 23 November 1972 (Official Gazette A72 of 13/12/1972, p. 1586), supplemented by the Act of 20 April 2009 (Official Gazette A80 of 27/04/2009, p. 946), amended by the Act of 27 May 2016 (Official Gazette A94 of 30/05/2016, p. 1730), the Act of 10 August 2016 (Official Gazette A167 of 19/08/2016, p. 2742)) The deeds of incorporation of public limited-liability companies, partnerships limited by shares, private limited-liability companies, cooperative societies and non-commercial companies are published in full. Powers of attorney, both officially recorded and private, which are annexed to such deeds need not be published in the Electronic Digest of Companies and Associations, or lodged with the register of commerce and companies. By derogation from the first paragraph, the deed of incorporation of non-commercial entities that are regarded as family companies within the meaning of Article III of the Act of 18 September 1933 instituting the private limited-liability company and making certain changes to the legal and tax rules applicable to commercial and non-commercial entities may be published in the form of an extract signed by the managers, failing whom by all the members, which must contain the following information, failing which the penalties laid down in article shall apply: 1) precise designation of the members; 2) the name of the company, its corporate purpose and the address of its registered office; 3) designation of the managers and the nature of, and limits on, their powers; 4) details of the assets provided or to be provided by each member, with a precise valuation of contributions in kind; 5) the date on which the term for which the partnership exists starts and ends. Article (amended by the Act of 23 November 1972 (Official Gazette A72 of 13/12/1972, p. 1586), the Act of 24 April 1983 (Official Gazette A35 of 16/05/1983, p. 864), the Grand-Ducal Regulation of 23 December 1994 (Official Gazette A116 of 24/12/1994, p. 2735, implicitly modified by the Act of 1 August 2001 (Official Gazette A117 of 18/09/2001, p.2440), amended by the Act of 27 May 2016 (Official Gazette A94 of 30/05/2016, p. 1730)) Any legal action brought by an entity whose deed of incorporation has not been published in the Electronic Digest of Companies and Associations in accordance with the provisions of Chapter Vbis of Title I of the amended Act of 19 December 2002 on the Register of Commerce and Companies and the Accounting and Annual Accounts of Undertakings shall be inadmissible. Article (supplemented by the Act of 18 September 1933 (Official Gazette A48 of 02/10/1933, p. 749), amended by the Act of 23 November 1972 (Official Gazette A72 of 13/12/1972, p. 1586)) In order to be valid, any contractual amendment to a deed or instrument must be made in the form required for the entity s deed or instrument of incorporation. 4 Commercial Companies Act of 10 August 1915

13 Article (inserted by the Act of 23 November 1972 (Official Gazette A72 of 13/12/1972, p. 1586), amended by Grand- Ducal Regulation of 23 December 1994 (Official Gazette A116 of 24/12/1994, p. 2735), supplemented by the Act of 31 May 1999 (Official Gazette A77 of 21/06/1999, p. 1681), amended by the Act of 25 August 2006 (Official Gazette A152 of 31/08/2006, p. 2684), supplemented by the Act of 12 July 2013 (Official Gazette A119 of 15/07/2013, p. 1856), the Act of 28 July 2014 (Official Gazette A161 of 14/08/2014 p.2484), amended by the Act of 27 May 2016 (Official Gazette A94 of 30/05/2016, p. 1730), the Act of 10 August 2016 (Official Gazette A167 of 19/08/2016, p. 2742)). (1) The following shall be lodged and published in accordance with the provisions of Chapter Vbis of Title I of the amended Act of 19 December 2002 on the Register of Commerce and Companies and the Accounting and Annual Accounts of Undertakings: 1) extract from documents relating to the appointment to office or cessation of office of: a) directors, members of the executive committee, the chief executive officer, members of the board of management and supervisory board, managers and statutory auditors of public limited-liability companies, partnerships limited by shares, private limited-liability companies, limited partnerships, special limited partnerships and non-commercial entities as well as the chairmen and managers of simplified joint stock companies; b) the persons to whom the daily management of public limited-liability companies and of private limited-liability companies has been delegated; c) liquidators of entities with legal personality and, where appropriate, of special limited partnerships. If the liquidator is a legal person, the extract must contain designation or amendment to the designation of the natural person representing it for the purposes of exercising the liquidation powers. d) custodians of public limited-liability companies and of partnerships limited by shares designated in application of article (Inserted by the Act of 28 July 2014 (Official Gazette A 161 of 14/08/2014, p. 2484) The extract shall clearly indicate the last and first names and the private or professional address of the persons referred to therein; 2) extract from deeds or instruments determining the manner of liquidation and the powers of the liquidators if these powers are not exclusively and expressly defined by law or the articles of association; 3) extract from any judicial decision which has either become final or is provisionally enforceable, dissolving a company or declaring it void or declaring amendments to its articles of association to be void. This extract shall contain: a) the name of the entity and its registered office; b) the date of the decision and the court that rendered it; c) where applicable, the appointment of a liquidator or liquidators, with exact particulars of the surnames and first names as well as their private or professional address; if the liquidator is a legal person, the extract must contain designation or amendment to the designation of the natural person representing it for the purposes of exercising the liquidation powers. 4) extract from any judicial decision which has either become final or is provisionally enforceable ordering the setting-aside or suspension of a decision by the shareholders in general meeting. Such extract shall contain: a) the name of the entity and its registered office; Commercial Companies Act of 10 August

14 b) the date of the decision and the court that rendered it. 5) Any extract of a judicial decision overruling any judicial decision that is provisionally enforceable as falling under items (3) and (4), above. (2) The following shall be set down in a statement signed by the competent corporate organs: 1) dissolution of the entity due to expiry of the term for which it was incorporated or on any other ground; 2) the death of a person referred to in subarticle (1) point 1 of this article; 3) for private limited-liability companies and non-commercial entities, any changes in the membership structure. These statements shall be lodged and published in accordance with the provisions of Chapter Vbis of Title I of the amended Act of 19 December 2002 on the Register of Commerce and Companies and the Accounting and Annual Accounts of Undertakings. (3) There shall be filed and published by mention of their filing, in accordance with the provisions of Chapter Vbis of Title I of the amended Act of 19 December 2002 on the Register of Commerce and Companies and the Accounting and Annual Accounts of Undertakings: 1) the full text of the articles of association, updated after each amendment to the articles of association of public limited-liability companies, partnerships limited by shares and private limitedliability companies, 2) the annual accounts, the consolidated financial statements and all other documents and information relating thereto and which require to be published by law. (4) Deeds and particulars whose publication is required by the preceding subarticles are binding against third parties in accordance with the conditions laid down in article 19-3 of the amended Act of 19 December 2002 on the Register of Commerce and Companies and the Accounting and Annual Accounts of Undertakings. Article (inserted by the Act of 10 August 2016 (Official Gazette A167 of 19/08/2016, p. 2742)) Any entity may issue bonds. Articles to apply to any issue by an entity of bonds. However, the bond issue document may deviate from those provisions. These provisions may also be made wholly or partly applicable to any issue of securities other than shares by Luxembourg or foreign companies. Article (inserted by the Act of 10 August 2016 (Official Gazette A167 of 19/08/2016, p. 2742)) The issue of convertible bonds, any other debt instruments convertible into capital or subscription rights, whether isolated or attached to another security, by entities other than public limited-liability companies is subject to the legal provisions concerning the transfer of shares or to those concerning the approval of non-members. The same provisions apply in the case of transfers inter vivos and mortis causa. Approval can be given ahead of time to certain or ascertainable non-members in the approval decision either upon issue of the bonds or instruments or at a later time. Such approval is irrevocable if stated to be such in the approval decision. 6 Commercial Companies Act of 10 August 1915

15 Article (supplemented by the Act of 23 November 1972 (Official Gazette A72 of 13/12/1972, p. 1586), amended by the Act of 25 August 2006 (Official Gazette A152 of 31/08/2006, p. 2684), the Act of 10 August 2016 (Official Gazette A167 of 19/08/2016, p. 2742)) Entities act through their managers, directors, the members of their board of management or their chairman, as the case may be, whose powers are determined by law or their deed or instrument of incorporation and by later deeds or instruments in execution of the deed or instrument of incorporation. With respect to persons who have power to bind entities in their capacity as a corporate organ, completion of the publication formalities renders any irregularity in their appointment not binding against third parties unless the entity proves that the third party was aware thereof. Article (inserted by the Act of 23 November 1972 (Official Gazette A72 of 13/12/1972, p. 1586)) Persons who, on behalf of an entity in formation that has not yet acquired legal personality, incur a commitment pursuant to any title, including under a covenant or as a negotiorum gestor, shall be personally and jointly and severally liable for the obligation, unless agreed otherwise, if the commitments are not assumed by the entity within two months from its incorporation or if the entity is not incorporated within two years from the inception of the commitment. Where the commitments are assumed by the entity, they shall be deemed to have been contracted by the entity from the outset. Article (inserted by the Act of 23 November 1972 (Official Gazette A72 of 13/12/1972, p. 1586), amended by the Act of 24 April 1983 (Official Gazette A35 of 16/05/1983, p. 864), the Act of 10 August 2016 (Official Gazette A167 of 19/08/2016, p. 2742)) (1) A public limited-liability company, partnership limited by shares and private limited-liability company may be declared void only in the following cases: 1) the deed of incorporation is not drawn up in notarised form; 2) that deed does not indicate the name of the entity, its corporate purpose, the capital contributions or the amount of subscribed capital; 3) the corporate purpose are unlawful or contrary to public policy; 4) there is not at least one founder who is validly bound. If the clauses of the deed of incorporation regarding the allocation of profits or losses are contrary to article 1855 of the Civil Code, they shall be deemed non-existent. (2) Other than in cases constituting a breach of article 100-4, a non-commercial entity, general partnership or limited partnership may be declared void only in the following cases: 1) if the objects are unlawful or contrary to public policy; 2) if the deed of constitution contains no particulars as to one or more of the matters set forth in article 100-6; 3) if, in the case of a non-commercial entity or a general partnership, it does not comprise at least two founders who are validly bound or, in the case of a limited partnership, it does not comprise at least one general partner and one limited partner who are separate and validly bound. If the clauses of the deed of constitution regarding the allocation of profits or losses are contrary to article 1855 of the Civil Code, they shall be deemed non-existent. Commercial Companies Act of 10 August

16 Article (inserted by the Act of 23 November 1972 (Official Gazette A72 of 13/12/1972, p. 1586), amended by the Act of 12 July 2013 (Official Gazette A119 of 15/07/2013, p. 1856), amended by the Act of 27 May 2016 (Official Gazette A94 of 30/05/2016, p. 1730), the Act of 10 August 2016 (Official Gazette A167 of 19/08/2016, p. 2742)) (1) A judicial decision is needed in order for an entity endowed with legal personality to be declared void. The effects of the entity s being void commence as from the date of the judicial decision ordering same. However, it is only binding against third parties as from publication of the decision, as required by article , subarticle (1), point 3) and under the conditions set out in the provisions of Chapter Vbis of Title I of the amended Act of 19 December 2002 on the Register of Commerce and Companies and the Accounting and Annual Accounts of Undertakings. (2) An entity or member may not assert the fact of an entity endowed with legal personality being void on grounds of formal irregularities, pursuant to articles or articles , subarticle (1), points 1) or 2), and subarticle (2), point 2) and 811-3, subarticle (2), point 1), or the fact of a special limited partnership being void on grounds of formal irregularities pursuant to article 320-1, subarticle (8), point 1), against third parties, even as a preliminary plea, unless it has been confirmed by a judicial decision published in accordance with subarticle (1). (3) Subarticles (1) and (2) apply to voidance of contractual amendments to deeds of incorporation pursuant to the provisions of Chapter Vbis of Title I of the amended Act of 19 December 2002 on the Register of Commerce and Companies and the Accounting and Annual Accounts of Undertakings. Article (inserted by the Act of 23 November 1972 (Official Gazette A72 of 13/12/1972, p. 1586)) The fact of an entity s being void pursuant to a judicial decision in accordance with article results in liquidation of the entity as in the case of dissolution. The fact of its being void does not per se affect the validity of the entity s commitments or those entered into in its favour, without prejudice to the effects of its liquidation. The courts may determine the method of liquidation and appoint the liquidators. Article (inserted by the Act of 23 November 1972 (Official Gazette A72 of 13/12/1972, p. 1586)) No third-party application to set aside a judicial decision declaring an entity endowed with legal personality or a contractual amendment to its articles of association to be void is admissible after the expiry of a period of six months from publication of the judicial decision in accordance with article , subarticle (1), point 3). 8 Commercial Companies Act of 10 August 1915

17 Article (inserted by the Act of 10 August 2016 (Official Gazette A167 of 19/08/2016, p. 2742) (1) Any decision taken by shareholders in general meeting as provided for under this act shall be void: 1) where the decision taken is tainted with formal irregularity if the claimant proves that that irregularity could have had an influence on the decision; 2) in the event of a breach of the rules relative to its operation or in the case of deliberation on a matter not set out on the agenda where accompanied by fraudulent intent; 3) where the decision taken is tainted with any other excess of or abuse of power; 4) where voting rights suspended pursuant to a legal provision not contained in this act have been exercised and, but for those illegally exercised voting rights, the quorum or majority required for the decision taken by the general meeting would not have been attained; 5) any other cause set down in this act. (2) To be void, a decision by shareholders in general meeting must be declared such by judicial decision. A claimant shall lack standing to claim a decision is void where he voted in favour of it unless his consent was vitiated or he expressly or tacitly waived such right unless the fact that the decision is void results from a rule of public policy. (3) An action to set aside is directed against the entity. The claimant may raise urgent application proceedings seeking provisional suspension of execution of the decision attacked. The suspension order and the judgment ordering that decision is void take effect as of the decision pronouncing same. However, they are not binding as against third parties until publication of the decision as required under article , subarticle (1), point 4) and under the conditions set down in Chapter Vbis of Title I of the amended Act of 19 December 2002 on the Register of Commerce and Companies and the Accounting and Annual Accounts of Undertakings. (4) Where the voidance is such as to harm rights acquired in good faith by a third party vis-à-vis the company on the basis of the meeting s decision, the court may order that the decision shall not be void as against such rights, subject to the claimant s right to claim damages if cause be shown. Article (amended by the Act of 12 July 2013 (Official Gazette A119 of 15/07/2013, p. 1856)) Temporary commercial ventures and commercial ventures are not subject to the formalities laid down for commercial entities endowed with legal personality. Their existence may be determined by the means of proof accepted in mercantile matters. Commercial Companies Act of 10 August

18 TITLE II. Article GENERAL PARTNERSHIPS (Amended by the Act of 10 August 2016 (Official Gazette A167 of 19/08/2016, p. 2742) A general partnership is an entity in which all the partners are jointly and severally liable without limitation for the commitments of the partnership. 10 Commercial Companies Act of 10 August 1915

19 TITLE III. LIMITED PARTNERSHIPS AND SPECIAL LIMITED PARTNERSHIPS (the Act of 12 July 2013 (Official Gazette A119 of 15/07/2013, p. 1856)) Chapter I. Limited partnerships (inserted by the Act of 12 July 2013 (Official Gazette A119 of 15/07/2013, p. 1856), the Act of 10 August 2016 (Official Gazette A167 of 19/08/2016, p. 2742)) Article (amended by the Act of 12 July 2013 (Official Gazette A119 of 15/07/2013, p. 1856)) (1) A limited partnership is a an entity contracted for a limited or unlimited period of time by one or more general partners with unlimited, joint and several liability for all commitments of the partnership and one or more limited partners, who only commit a specific stake, constituting an ownership interest, which may or may not be represented by securities, in accordance with the terms of the partnership agreement. (2) Partners may make contributions to the partnership in cash or in kind or contribute services. Contributions, including the admission of new partners except in the event of the transfer of ownership interests, shall be made in accordance with the terms and formalities set down in the partnership agreement. (3) The partnership may issue debt securities. (4) Unless the partnership agreement provide otherwise, a general partner may also be a limited partner, provided there is at all times at least one general partner and one limited partner who are legally distinct from each other. (5) A limited partnership must keep a register containing the following information: a) a true, up-to-date copy of the complete partnership agreement; b) a list of all partners, stating for each their surname, first names, occupations and private or business address or, for legal persons, their corporate name, legal form, precise address and registration number in the register of commerce and companies if the law of the State by which the company is governed provides for such a number, and the ownership interests held by each; c) a record of transfers of ownership interests in the partnership and the date of notification or acceptance of such transfers. All partners may inspect this register, subject to the limitaitons laid doyn in the partnership agreement. Article (amended by the Act of 12 July 2013 (Official Gazette A119 of 15/07/2013, p. 1856), the Act of 27 May 2016 (Official Gazette A94 of 30/05/2016, p. 1730)) Management of a limited partnership shall be carried on by one or more managers, who need not be general partners, appointed in accordance with the partnership agreement. Managers who are not general partners shall be liable in accordance with article The articles of partnership agreement may allow the managers to delegate their powers to one or more representatives who are liable solely for the performance of their mandate. Unless the partnership agreement provide otherwise, each manager may, on behalf of the partnership, carry out all acts necessary or useful to achieve its corporate purpose. Any limitations imposed on the powers of the managers by the partnership agreement are not binding against third parties, even if published. Nevertheless, the partnership agreement may authorise one or more Commercial Companies Act of 10 August

20 managers to represent the partnership alone or jointly, and this clause is binding against third parties under the conditions laid down in Chapter Vbis of Title I of the amended Act of 19 December 2002 on the Register of Commerce and Companies and the Accounting and Annual Accounts of Undertakings. The partnership is bound by any acts carried out by its manager(s), even if such acts are ultra vires, unless it can be demonstrated that the third party in question knew or, in view of the circumstances, could not have been unaware of their ultra vires nature. Each manager represents the partnership in dealings with third parties and in legal procedures as plaintiff or defendant. The service of process on behalf of or on the partnership shall be valid if done in the name of the partnership alone. Article (amended by the Act of 12 July 2013 (Official Gazette A119 of 15/07/2013, p. 1856)) A limited partner may enter into any transaction with the limited partnership without his ranking as a unsecured or preferred creditor, in accordance with the terms of the transaction in question, being affected by the mere fact of him being a limited partner. He may not perform any act of management with regard to third parties. A limited partner shall be jointly and severally liable without limitation to third parties for any commitments of the partnership in which he has participated in breach of the preceding paragraph. In addition, he shall also be jointly and severally liable without limitation to third parties, even for any commitments of the partnership in which he has not participated, if he usually makes management decisions with regard thereto. Exercise of the prerogatives of partners, the provision of opinions and advice to the partnership, its affiliates or their managers, acts of audit and supervision, the granting of loans, guarantees or collateral or any other assistance to the partnership or to its affiliates, as well as authorisations to the managers in the cases provided for in the partnership agreement for ultra vires acts shall not constitute management decisions for which a limited partner may be held jointly and severally liable without limitation to third parties. A limited partner may serve as member of a management organ or as the representatives of a manager of the partnership, even a general partner, or sign on behalf of the latter, even when acting as a representative of the partnership, without thereby incurring joint and several liability without limitation for the partnership s commitments, provided the representative capacity in which he acts is stipulated. Article (amended by the Act of 12 July 2013 (Official Gazette A119 of 15/07/2013, p. 1856)) Distributions and repayments to partners, as well as the conditions under which the limited partnership may request the return thereof, are governed by the partnership agreement. Unless the partnership agreement provides otherwise, each partner s share of the profits and losses of the partnership shall be in proportion to his ownership interest. 12 Commercial Companies Act of 10 August 1915

21 Article (amended by the Act of 12 July 2013 (Official Gazette A119 of 15/07/2013, p. 1856)) Unless the partnership agreement provides otherwise, the voting rights of each partner shall be in proportion to his ownership interest. Any amendment to the corporate purpose, nationality or legal form or decision to liquidate must be adopted by the partners. The partnership agreement shall determine, from amongst the other decisions, those which are not taken by the partners. They shall also determine the forms in which and the conditions under which these decisions must be taken. Failing such stipulations in the partnership agreement: a) the decisions of the partners shall be taken in general meeting or by means of written consultation, with each partner receiving the text of the expressly formulated resolutions or decisions to be taken and voting in writing; b) no decision shall be validly taken unless it is approved by a majority of the votes cast, regardless of the percentage of ownership interests represented, except decisions to change the corporate purpose, nationality or legal form of or liquidate the partnership, which must be approved by partners representing at least three-quarters of the ownership interests and, in any case, all the general partners; c) these meetings or written consultations may be called or initiated by the manager(s) or by partners representing more than half the ownership interests. At least once a year, the partners shall approve the financial statements by means of a special vote on the date set out in the partnership agreement and at the latest six months from the closing of the financial year. The partnership agreement may provide that the first special vote can take place within eighteen months following the formation of the partnership. Fifteen days, or any longer period provided for in the partnership agreement, before the date on which the partners must approve the financial statements, they may inspect and obtain a copy of the following at the registered office: 1) the annual financial statements; 2) the management report, if applicable; 3) the report by the accredited company auditors, if applicable; 4) any other information provided for by the partnership agreement. Article (amended by the Act of 12 July 2013 (Official Gazette A119 of 15/07/2013, p. 1856)) The ownership interests of limited partners may only be transferred, divided or pledged under the terms and in the manner set out in the partnership agreement, failing which same shall be void. Unless the partnership agreement provide otherwise, any transfer other than a transfer by the reason of death, a division and a pledge of a limited partner s interest shall require the consent of the general partner(s). The ownership interests of general partners may only be transferred, divided or pledged under the terms and in the manner prescribed by the partnership agreement, failing which same shall be void. Unless the partnership agreement provide otherwise, any transfer other than transfer by reason of death, a division and a pledge of any portion of a general partner s ownership interest must be approved by the partners deliberating according to the procedures for an amendment of the partnership agreement. Transfers and divisions of ownership interests are binding against the partnership and third parties only after being notified to or accepted by the partnership. They may not, however, be relied on Commercial Companies Act of 10 August

22 against third parties as regards any commitments of the partnership incurred prior to their publication, unless the third party knew or could not have been unaware thereof. The partnership agreement may authorise the management or the partners to reduce or repurchase, in whole or in part, as appropriate, if requested by one or more partners, of the ownership interests of one or more partners and define the procedure to this end. Article (amended by the Act of 11 August 1996 (Official Gazette A53 of 20/08/1996, p. 1660), the Act of 12 July 2013 (Official Gazette A119 of 15/07/2013, p. 1856)) In the event of the death, dissolution, legal incapacity, recall, resignation, impediment, bankruptcy or any other situation involving the solvency of a general partner, if there is no other general partner and it has been provided that the partnership is to continue in existence, arrangements shall be made for a replacement. In the absence of specific provisions in that regard in the partnership agreement, the judge presiding the division of the local court sitting in commercial matters may, on a petition by any interested party, appoint a provisional administrator, who need not be a partner, who shall engage in all urgent acts and all simple administrative measures, pending a decision by the partners, which the administrator shall procure within fifteen days of his appointment. The administrator is only liable for the exercise of his mandate. Any interested party may appeal the order appointing the provisional administrator; the appeal is served on the company as well as on the appointee and the petitioner requesting the appointment. It is ruled on under the urgent applications procedure. Chapter II. Special limited partnerships (inserted by the Act of 12 July 2013 (Official Gazette A119 of 15/07/2013, p. 1856)) Article (inserted by the Act of 12 July 2013 (Official Gazette A119 of 15/07/2013, p. 1856), amended by the Act of 10 August 2016 (Official Gazette A167 of 19/08/2016, p. 2742)) (1) special limited partnership is a partnership contracted, for a limited or unlimited period of time, by one or more general partners who are jointly and severally liable without limitation for all commitments of the partnership and one or more limited partners who commit only a specific stake, constituting ownership interests, which may or may not be represented by securities, in accordance with the terms of the partnership agreement. (2) A special limited partnership does not have separate legal personality from its partners. (3) Partners may make contributions in cash, in kind or in services. Contributions, including the admission of new partners aside from transfers of ownership interests, shall be made in accordance with the terms and formalities laid down in the partnership agreement. (4) The partnership may issue debt securities. (5) Unless otherwise stipulated in the partnership agreement, a general partner may also be a limited partner, provided there is at all times at least one general partner and one limited partner who are legally distinct from each other. (6) A special limited partnership must keep a register containing the following information: 1) a true; up-to-date copy of the complete partnership agreement; 2) a list of all partners, stating for each their surname, first names, occupations and private or business address or, for legal persons, their business or name or appellation, legal form, precise address and registration number in the register of commerce and companies, if the law of the State by which the entity is governed provides for such a number, and the ownership interest held by each; 3) a record of transfers of ownership interests and the date of notification or acceptance of such transfers. 14 Commercial Companies Act of 10 August 1915

23 All partners may inspect this register, subject to the limitations laid down in the partnership agreement. (7) The domicile of a special limited partnership is at the place where its central administration is carried on. it s the central administration is deemed to be the same as the location of the registered office according to its partnership agreement unless proved otherwise. (8) A special limited partnership may be declared void only in the following cases: 1) the deed of incorporation does not state the partnership s name or its corporate purpose; 2) the corporate purpose is unlawful or contrary to public policy; 3) there is not at least one general partner and one limited partner, distinct from each other, who are validly bound. Articles to apply. Article (inserted by the Act of 12 July 2013 (Official Gazette A119 of 15/07/2013, p. 1856)) (1) Registration and other formalities relating to the common property of a special limited partnership or to property to which it has any rights shall be made in the name of the special limited partnership. (2) The common property of a special limited partnership may be used to satisfy creditors rights only insofar as such rights arose on the occasion of the formation, running or liquidation of the partnership. Article (inserted by the Act of 12 July 2013 (Official Gazette A119 of 15/07/2013, p. 1856), amended by the Act of 27 May 2016 (Official Gazette A94 of 30/05/2016, p. 1730)) Management of a special limited partnership shall be entrusted to one or more managers, who need not be general partners, appointed in accordance with the partnership agreement. Managers who are not general partners shall be liable in accordance with article The articles of partnership may allow the managers to delegate their powers to one or more representatives who are liable solely for the performance of their mandate. Unless the partnership agreement provides otherwise, each manager may act in the name of the partnership in carrying out all acts necessary or useful to achieve its corporate purpose. Any limitations on the powers of the managers in the partnership agreement are not binding against third parties, even if published. Nevertheless, the partnership agreement may authorise one or more managers to represent the partnership, alone or jointly, and this clause is binding as against third parties subject to the conditions laid down in Chapter Vbis of Title I of the amended Act of 19 December 2002 on the Register of Commerce and Companies and the Accounting and Annual Accounts of Undertakings. The partnership is bound by any acts carried out by the manager(s), even if such acts are ultra vires, unless it can be demonstrated that the third party knew or, in view of the circumstances, could not have been unaware of their ultra vires nature. Each manager represents the company in dealings with third parties and in legal procedures as plaintiff or defendant. The service of any process on behalf of or on the special limited partnership is valid if done in the name of the partnership alone, represented by one of its managers. Commercial Companies Act of 10 August