The Modernisation Of Luxembourg Company Law: Changes To Incorporation And Capital Increase Procedure

Luxembourg's changes to the Companies Act, adopted in July 2016, include important changes to incorporation and capital increase procedures.

Luxembourg's changes to the Companies Act, adopted in July 2016, include important alterations to incorporation and capital increase procedures.

Preference shares without vote may now represent more than 50% of the share capital (art. 45) - these will not be taken into account when determining a quorum or presence requirements (art. 46). Conversion of convertible bonds (art. 32-4) and certain, liquid and due receivables (art. 32-1 (5)) are considered as contribution in cash -> no auditor report necessary. Subscription below par possible for placement agent who need to pay at least 90% of par value (art. 26-5 (2)+(3)). Authorised capital possible for S.à r.l. (art. 199). Issue of "free" shares is possible (eg. for employee participation): - By capital increase, in which case the fact that the shares will be issued below par value needs to be expressly mentioned in the agenda, the Board needs to prepare a report outlining the financial consequences of the operation for the shareholders and an independent auditor has to confirm that the figures in the Board report are accurate; both reports need to be included in the convening notice and are filed with the RCS.

- By authorised capital, if the issue below par is expressly included in the authorization; the reports of the Board and the auditor need to be submitted at the EGM which introduces the authorised capital, and the minimum subscription price needs to be mentioned.

Rules of capital increase applicable to the issue of convertible bonds or other convertible instruments (art. 32-4); in addition, the issue of convertible instruments by an S.à r.l. to non-shareholders is subject to the approval of the existing shareholders (art. 11quater) In addition to contribution in cash and in kind, shareholders of a S.à r.l. may contribute industry and receive shares without par value (art. 183 (3)) Bonds may now also be listed by a S.à r.l. (art. 11ter) Minimum...