An SA can be incorporated by one or more founding shareholders. In the case of a single shareholder, refence is made to a société anonyme unipersonnelle (a one-man SA).

As with a Sàrl, an SA can opt to be taxed as a Soparfi (a financial holding company or Société de participation financière) when explicity specifying such in its articles of association.

In contrast to a Sàrl, there is no limit to the number of shareholders in an SA. As with a Sàrl, an Sa can benefit from contributions in both cash and kind. However a contribution in the form of work - i.e. a partner providing services, skill or know-how as his contributions -  is not possible in an SA context.


Capital

The share capital of an SA amounts to exactly €31.000. It may be denominated in a currency other than Euro. One quarter of capital must be paid in on incorporation, i.e. €7.500, with the rest due within a certain period of time. When a company is incorporated through a contribution in kind, the capital must be paid in within a period of five years.

In the context of a contribution in kind, this is subject to an evaluation of the asset by a company auditor. The auditor must verify exactly whether the asset in question really has a value correponding to the equivalent amount of the company's share capital to be paid in.

Proof of the share capital having been paid in cash is done by a bank creating a blocking certificate (certificat de blocage des fonds). This certificate is deposited with the notary on incorporating the company. Should the shareholders fail to pay in their contribution to the share capital, the jointly liable founders have the obligation to pay up the shares, to an amount of 25%. As the whole capital has not been paid in, the shares remain registered.

The contribution made to the company is subject to capital duty (droit d'apport) at the rate os 1%. The deed establishing the company is a notarised deed.

Where the capital is fully paid in, the shares may be issued to the bearer, i.e. giving the holder(s) legal ownership and all rights associated with the bearer shares.


Registered shares

Should the company's capital not be fully paid up, a certificate can be issued to the shareholder indicating that he is entitled to a number of shares subscribed by the said shareholders.


The management structure of an SA

For a long time, Luxembourg opted for the traditional (monistic) legal structure, i.e. a structure involving the company being managed by a board of directors appointed by the general meeting of shareholders. However, the Law of 25 August 2006 governing Luxembourg companies introduced a further (dualistic) adminstration structure for SAs, providing for a supervisory board (conseil de surveillance) and a management board (directoire).

When drafting their articles of association, companies may now choose between these two systems: under the monistic system, the company is managed by the board of directors appointed by the general meeting; under the dualistic system, the day-to-day management of the company is in the hands of the management board, a basically collegial organ under the control of the supervisory board.

 

A monistic SA

Under this form, the board of directors is responsible for the company's management. The board must be made up of at least three directos when the company has more than one shareholder.

In a single-shareholder structure the board of directors can consist of just one director with the funcion of representing the board of directors alone.

The directors of an SA may be third parties or company shareholders. A director's term of office may not exceed six years, thought in many cases they are appointed just for onde fiscal year.


The managing director:

The articles of association may delegate the company's day-to-day management to an administrator, in particular a director from the board of directors, i.e. managing director. The latter is empowered to take decisions committing the company and represents it vis-à-vis third parties (Article 60 of the Luxembourg Companies' Code).

It should be emphasised that the managing director is, vis-à-vis third parties, an organ of the company within the limits of the day-to-day management assigned to him. Depiste being a director, he may also be a salaried employee of the company.


A dualistic SA

The Law of 25 August 2006 introduced a dualistic governance from for SAs, meaning that an SA is administered by two bodies: the management board (directoire) and the supervisory board (conseil de surveillance).

The management board:

The company is managed by a management board, the number of members of which is set down in the articles of association or, where this is not the case, by the supervisory board. In a one-man SA with share capital under €500.000, a single person can exercise the functions delegated to the management board.

The management board exercises its functions under the strict control of the supervisory board, which also nominates the members of the management board. It is possible to appoint a legal person as a member of the management board, in the person of a permanent representative responsible for executing this mission in the name and on behalf of the legal person. Management board members may also be appointed by the General Meeting when the articles of association provide for such.

The management board is empowered to perfom all acts necessary or of use in fulfilling the compny's purpose as laid down in the articles of association, with the exception of those strictly reserved for the supervisory board.

The management board represents the company vis-à-vis third parties. Day-to-day management may also be delegated to one or more management board members, a managing director and other agents, whether associates or not. Supervisory board members acting alone or jointly may not take on day-to-day management responsibilities.

The supervisory board:

The supervisory board exercises permanent control over the management board's management of the company, thought without the right to interfere in such management. The supervisory board thus has an unlimited right to inspect all operations perfomed by the company. It may for instance demand from the management board information of whatever nature necessary for fulfilling its supervisory role.

Supervisory board members bear responsibility for the company pursuant to common law. No person can be a member of the management board and of the supervisory board ate the same time. It should be noted that the work of both management board and supervisory board membres can be remunerated. The management board and the supervisory board elect from their midst their respective chairman.


The auditor

An SA must have an auditor with responsibility for auditing the accounts presented by the SA.


Shares issued by the SA.

A distinction is made between registered shares and bearer shares. The shares, i.e. the marketable shares of various associates in the company, are either bearer or registered shares.

Bearer shares (actions au porteur):

For a company's shares to be bearer shares, its capital must be fully paid up, implying that a share does not bear its owner's name. Such shares are freely transferable, i.e. share ownership is transferred via simple possession of the share, including all rights attached to it.

Registered shares (actions nominatives):

The owner of a registered share receives a certificate showing that he is the owner of his shares. However, proof of the existence of the share lies in the registration of the shareholder in a register kept by the company: the register of registered shares. With the register listing the holder of the shares and the number of shares held, any transfer of the share(s) will be recorded therein at the request of the holder, thereby ensuring the traceability of the shares over the course of successice transfers.

Different types of shares exist: ordinary shares and prederential shares according greater voting rights. There are also shares with voting rights and shares without voting rights but with a dividend.


One of the reasons why the SA form of company is so successful is that the shareholders remain anonymes, in contrast to a Sàrl.

Though the way an SA functions is more complicated than that of a Sàrl, this type of structure is very appropriate for an expanding company and for setting up an operation of certain size.

In contrast to a Sàrl, an SA may be classed as an "open" company, making it easier for its associates to accumulate capital to finance an expansion or investment project.