La société d’avocats Damy
La Société d'avocats Damy à Nice assure une prestation de haut niveau, de la consultation d’un avocat à la représentation en justice. Les avocats du cabinet sont compétents en droit des affaires, des sociétés, droit immobilier, droit bancaire, droit social, droit des victimes et cas de dommages corporels. Membre de l’Association des avocats praticiens en droit social, Maître Grégory Damy dispose de certificats de spécialisation.
Your legal questions
Transfer of shares, instructions for use
The sale of shares requires a certain number of guarantees, both for the purchaser and the seller. The lawyer's act allows both parties to protect themselves against possible disputes that could arise after the assignment.
The importance of the spouse:
The transferor often forgets the impact of his matrimonial regime and the need to involve his spouse in the act of transfer. Even if the spouse is not a partner, he or she must consent to the deed of transfer and sign it, provided that he or she is married to the transferor under the legal community regime and that the transferor has not used his or her own property to acquire the shares. Failing this, the spouse may request the cancellation of the deed of assignment, even if the purchaser is acting in good faith.
The approval procedure:
The transfer is only valid if it has been authorised in accordance with the legal approval procedure and the provisions of the Articles of Association. The proposed sale must then be notified by registered letter to each of the partners, who have a period of three months to decide. The solicitor's document must mention the compliance with the approval procedure and the fact that all partners have approved the assignment.
The lawyer must alert the assignor to the need to obtain the creditors' agreement to discharge their surety undertaking. A substitution clause must therefore be included in the deed of assignment. The buyer will then assume the ceding party's guarantee obligations. In the absence of a substitution clause, the assignor remains committed as surety on everything he has ceded and can be sued.
The deed of sale must provide for the distribution of dividends in order to avoid any conflict. In principle, unless otherwise agreed by the parties, the purchaser is entitled to dividends not yet distributed on the day of sale. If the dividends are granted to the purchaser, an increase in the sale price must be considered for the portion of the dividends that the seller should have received for the period preceding the sale. This is all the more important when the transfer is carried out in several stages. In this case, dividends paid to the transferee may be deducted from the balance of the transfer price to be paid.
Acquirers are not always aware that by taking control of a company, they also inherit its liabilities. The legal guarantee for latent defects does not cover the value of the transferred securities, but only their existence. A contractual clause must therefore be included. This may be a net asset guarantee clause, a price revision clause, or a liability guarantee clause. The latter is advisable because it aims to guarantee the buyer against any liabilities not disclosed at the date of the transfer and whose origin is prior to the sale. In addition, it obliges the seller to guarantee the buyer against the decrease in value of the shares due to the undervaluation of the liabilities. Another advantage: it does not have a ceiling, unlike the price revision clause.
The assignor must guarantee itself with the act of attorney against the purchaser's insolvency, especially if the assignment is carried out in several steps with a staggered payment. There are several types of guarantees. It is possible to enter a resolutory clause that allows the assignment to be cancelled in case of incomplete payment. The lawyer may also provide for the pledging of the shares, which enables the shares to be taken over in the event of an incomplete payment. It is also possible to include a bank guarantee commitment where the bank will replace the buyer in case of default.