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DIVISION-DISSOLUTION
(Division-dissolution. Extension)
1. The division-dissolution mentioned in subparagraph b) of paragraph 1 of article 293 shall include all the patrimony of the company to be divided.
2. If the resolution for division did not set criteria for the attribution of assets or liabilities that are not mentioned in the definitive division project, the assets shall be distributed among the new companies in accordance with the proportion arising from the division project; the new companies are jointly and severally liable for any debts, and a company that pays debts of an amount higher than the proportion arising from the division project has a right of return against the new companies.
(Participation in new company)
The shareholders of a company divided by division-dissolution participate in each of the new companies in accordance with the proportion in which they participated in the former, except if there is an agreement among the interested parties to the contrary.
(Applicable provision)
Article 287 is especially applicable to division-dissolution, with the necessary adaptations.
DIVISION-MERGER
(Special requirements)
The requirements to which the transfer of certain assets or rights may be subject in accordance with the law or contract are not dispensed with in the case of a division-merger.
(Creation of new companies)
1. In the creation of new companies by the simultaneous division-merger of two or more companies, only these can intervene.
2. The participation of the shareholders of the divided company in the formation of the capital of the new company cannot exceed the value of the assets separated, liquid of any debts that contractually accompany them.
(Applicable provisions)
1. The provisions of article 279 and of articles 288 and 289 are especially applicable to the division-merger, with the necessary adaptations.
2. The provisions of articles 299 and 300 are also applicable to the division-merger if the divided company keeps its legal personality; the provisions of articles 287, 290, 301 and 302 are applicable in the opposite case.
TRANSFORMATION OF COMPANIES
(General principles)
1. Except in the case of legal prohibition, any company can adopt a different type after its creation and registration.
2. Civil companies can transform themselves into commercial companies, provided that they adopt one of the types mentioned in paragraph 1 of article 174; the rules on the creation and registration of companies shall apply to this, with the necessary adaptations.
3. The transformation of a company does not cause its dissolution.
(Impediments to transformation)
A company cannot be transformed:
a) if the capital participations mentioned in the articles of association, and already matured, have not been fully paid;
b) if the balance sheet of transformation shows that the net worth of the company is lower than its capital;
c) in the case of a public company, if it has issued bonds convertible into shares which have not yet been fully refunded or converted.
(Report by administration)
1. The administration of a company shall organize a report justifying the transformation, which shall have attached:
a) an especially prepared balance sheet of the company;
b) a draft of the articles of association that shall regulate the company.
2. If the general meeting that decides upon the transformation takes place within 60 days following the approval of the balance sheet of the last accounting period, the presentation of a special balance sheet shall be dispensed with, and the former shall be attached to the report.
3. The provisions of this Code on the supervision of the project and the consultation of documents in case of merger of companies shall apply, with the necessary adaptations.
(Resolutions)
1. The following matters shall be object of separate resolutions:
a) the approval of the balance sheet;
b) the approval of the transformation and of the articles of association that shall regulate the company.
2. Resolutions for transformation causing for all or some shareholders the assumption of unlimited liability, or that imply the elimination of special rights, are only effective if approved by those shareholders who will assume that liability or by the holders of the affected special rights.
3. The new articles of association cannot set longer time limits for the payment of capital participations not yet matured, nor can they contain provisions that hinder or in any way limit the previously existing rights of bondholders.
(Formalities of transformation)
The provisions on amendment of articles of association shall apply to the transformation of companies in all matters that are not especially regulated in this Section.
(Participations of shareholders)
1. The proportion of each participation in relation to the capital cannot be modified, except with the agreement of all shareholders.
2. If, as a consequence of transformation, it becomes impossible to have industry shareholders, an agreed capital participation shall be attributed to them, and the participations of the other shareholders shall be proportionally reduced.
(Exoneration of opposing shareholders)
1. Those shareholders who did not vote in favor of the resolution for transformation can exonerate themselves from the company, communicating that intention in writing within 30 days from the registration of the transformation.
2. Shareholders who exonerate themselves from the company in accordance with the previous paragraph shall be paid the value of their participation, in accordance with article 343.
3. If the payment of the value of the participations of shareholders exonerating themselves from the company affects the company capital, all shareholders shall be called on to decide on a revocation of the transformation or on a capital reduction.
4. Exoneration is effective from the date of its registration.
(Guarantees of third parties)
1. Transformation does not affect the personal and unlimited liability of the shareholders for previously created company debts.
2. The personal and unlimited liability of the shareholders that may result from the transformation of a company does not include previously created company debts.
3. The rights of enjoyment or of guarantee existing over company participations at the date of the transformation are maintained, and shall have as object the new corresponding participations.
DISSOLUTION AND LIQUIDATION
DISSOLUTION
(Causes of dissolution and their registration)
1. Companies are dissolved in the cases mentioned in the law, in the articles of association, and also:
a) by a resolution by shareholders;
b) by the expiry of the time limit for its duration;
c) by the suspension of activity for a period longer than three years;
d) by the non-exercise of any activity for a period longer than 12 consecutive months, if activity is not suspended in accordance with article 193;
e) by the extinction of its object;
f) by supervening illegality or impossibility of its object if, within 45 days, its amendment has not been decided by shareholders, in accordance with the rules applicable to the amendment of the articles of association;
g) if the accounts of the accounting period show that the net worth of the company is less than half of the value of the company capital, except as provided in article 206;
h) by bankruptcy;
i) by judicial decision determining dissolution.
2. In case of doubt as to the occurrence of a cause of dissolution and in the case mentioned in subparagraph e) of the previous paragraph, a general meeting shall be called to decide on the recognition or not of the dissolution or on the extension of the duration of the company or on the amendment of its object.
3. Any creditor or the Public Ministry has legitimacy to request from the court a declaration of dissolution of a company due to the occurrence of any fact that causes it, even if there is a resolution by shareholders not recognizing the dissolution in accordance with the previous paragraph.
(Effects of dissolution)
1. The effect of dissolution is the commencement of the liquidation of the company.
2. Dissolution takes effect from the date on which it is registered or, in relation to the parties, on the date from which the judicial decision declaring or determining it can no longer be appealed.
(Obligations of the administration of a dissolved company)
1. After dissolution, administrators shall submit to the approval of the shareholders, within 60 days, the inventory, balance sheet and profit and loss account, prepared on the basis of the date of registration of the dissolution.
2. Once the accounts are approved by the shareholders, those administrators who do not become liquidators shall deliver to the liquidators the documents, books, papers, records, money and goods of the company.
3. The administrators shall also provide all information and clarifications on the activity and situation of the company that may be requested by liquidators.
LIQUIDATION
(General rules)
1. A company in liquidation continues to have legal personality; except if there is an express provision to the contrary, the provisions that regulated it until the dissolution shall continue to apply.
2. A company in liquidation keeps the same firm, with the addition of the expression 'in liquidation' ['em liquidação'].
(Time limit for liquidation)
1. An extrajudicial liquidation cannot last more than two years from the date of registration of the dissolution until the registration of the closure of the liquidation.
2. If the liquidation is not completed within that time limit, it shall continue by judicial means; the liquidators shall request the judicial continuation of the liquidation within eight days after the expiry of the time limit mentioned in the previous paragraph.
(Liquidators)
1. The administrators of a company shall become its liquidators, except if there is a clause of the articles of association or a resolution to the contrary.
2. Collective persons cannot be appointed liquidators, with the exception of lawyers' partnerships or firms of accounting auditors.
3. If there is just cause, any interested party can request the judicial dismissal of the liquidators.
4. The liquidators commence their functions on the date of approval of the accounts mentioned in paragraph 1 of article 317.
(Rules applicable to liquidators)
1. With the exception of the legal provisions that apply especially to them and of the limitations resulting from the nature of their functions, liquidators, in general, have the duties, powers and liability of company administrators.
2. Liquidators can only initiate new operations in the framework of the object of the company, or borrow funds, if there is a previous resolution by shareholders.
3. Liquidators shall especially close the transactions and operations already initiated by the date of dissolution, collect the credits and perform the obligations of the company and, except if there is an unanimous resolution of the shareholders, transform the remaining patrimony into funds.
4. Liquidators shall demand from shareholders any contributions not paid, to the extent that these may be necessary to the performance of the obligations of the company or to pay the costs of liquidation.
(Annual accounts, final accounts and report of liquidators)
1. Besides the accounts that by the end of each accounting period must be presented to shareholders on the financial position of the company and the progress of liquidation, liquidators shall present final or closing accounts, together with a complete report on the liquidation and a proposal for the distribution of the remaining assets.
2. After the approval of the final accounts and the proposal for distribution, the shareholders shall appoint a depositary for the books and documentation of the company, which shall be kept for five years.
3. The final accounts can only be presented to the shareholders after all third party credits known to the liquidators have been paid or provided for.
4. Liquidators are directly liable to creditors for damage caused to them as a result of the non-fulfillment of the previous paragraph.
5. If the assets of the company are not sufficient for the payment of all its debts, the liquidators shall file for bankruptcy of the company as soon as they realize this, except if the unlimited liability shareholders pay those debts.
(Approval of final accounts, distribution, registration and extinction of company)
1. After the approval of the final accounts, the assets, liquid from the expenses of the liquidation and from tax and registration debts not yet matured, are distributed among the shareholders in accordance with the articles of association or, in their absence, in accordance with the following paragraphs.
2. The remaining assets shall be used first to reimburse the amount of capital contributions effectively paid; this amount shall be the fraction of the capital corresponding to each shareholder, without prejudice to any provisions of the articles of association for the case in which the assets with which a shareholder contributed his entry have a value higher than such nominal fraction.
3. If a full refund cannot be done, the existing assets are distributed among the shareholders in such manner that the shortage falls on each of them in accordance with the proportion of his respective part in the losses of the company; to such effect, account must be taken of the contributions due from shareholders.
4. If after the full reimbursement there is a balance, it shall be shared in accordance with the ratio applicable to the distribution of profits.
5. Any balance from liquidation which cannot be handed to the respective shareholder shall be deposited in his name in an authorized bank of the Territory.
(Registration and extinction of company)
1. Liquidators shall request the registration of the resolution closing the liquidation within 15 days, attaching the documents mentioned in paragraph 1 of article 322.
2. The company is extinguished as of the date of registration of the closure of liquidation.
(Supervening assets and liabilities)
1. After registration of the closure of liquidation and the extinction of the company, the former shareholders are jointly and severally liable for company liabilities that have not been considered in the liquidation, up to the amount that they have received in the distribution of the balance of the liquidation, without prejudice to the provisions on unlimited liability shareholders.
2. Any judicial proceedings in which the company is involved shall continue after its extinction; the company is considered as replaced by the shareholders as of the date of dissolution; proceedings are not suspended and habilitation [habilitação] is not necessary.
3. If after registration of the closure of the liquidation assets of the company that were not distributed are found, any of the shareholders mentioned in the previous paragraph can propose to the others an additional distribution, which shall be made in accordance with terms agreed by all.
PUBLICITY OF COMPANY ACTS
(Publication)
1. The publication of company acts, required by the law or by the articles of association, shall be done in accordance with article 62.
2. If publications have to be made in both official languages, the translation from one language to the other shall contain a statement declaring that the text was faithfully translated; such statement shall made before the company secretary or, if he does not exist, before an administrator, and certified by them.
(Liability for discrepancy)
1. A company is liable for damage caused to shareholders or third parties by any discrepancy between the content of acts practiced, the content of registration and the content of publications; the administrators and the company secretary, if there is one, are jointly and severally liable with the company, except if they prove that they acted without fault.
2. The administrators and the company secretary, if there is one, shall adopt the measures necessary for the correction of discrepancies, in the shortest time possible, from the date when they gained knowledge of these.
3. In the case of discrepancy between the content of any publication and of registration, the company cannot invoke the published text against third parties, but the third parties can invoke it, except if the company proves that the third party knew of the text mentioned in the registration.
(Mentions in documents addressed to third parties)
Without prejudice to the provisions of special laws, all contracts, correspondence, publications, announcements and generally all documents addressed by the company to third parties shall always mention the firm, registered office, registration number and company capital, as well as the amount of capital effectively paid, if this is different.
SUPERVISION BY PUBLIC MINISTRY
(Supervision by Public Ministry)
1. The Public Ministry shall request, without the need for a prior declarative procedure, the judicial liquidation of companies that:
a) not being registered, exercise activity for more than three months;
b) are not incorporated or do not function in accordance with the law; or
c) have an object which is unlawful or contrary to public order.
2. The court shall order the notification of the request to the company and to the shareholders and, if correction of the situation is possible, shall set a reasonable time limit for it.
LIMITATION OF ACTIONS
(Limitation of actions)
1. The rights of a company against shareholders, administrators, members of the supervisory board or single supervisor, company secretary and liquidators, as well as their rights against the company, are barred five years from:
a) the start of delay, regarding the obligation of payment of capital or supplementary payments;
b) the end of willful or negligent conduct, or from its revelation if it has been hidden, and from the occurrence of damage, irrespective of whether the damage has fully occurred, in relation to the obligation to compensate the company;
c) maturity, in relation to any other obligation.
2. The rights of shareholders and of third parties arising from liability towards them by other shareholders, administrators, members of the supervisory board or single supervisor, company secretary and liquidators shall be barred five years from the moment mentioned in subparagraph b) of the previous paragraph.
3. Credit rights of third parties against the company which can be exercised against former shareholders, and rights that the latter can exercise against third parties, in accordance with article 325, shall be barred five years from the registration of the extinction of the company, if they are not earlier barred in accordance with other provisions.
4. The rights to compensation mentioned in article 289 are barred five years from the date of registration of a merger.
5. If the fact from which the obligation arises is a crime for which the law sets a longer period of limitation of actions, such period shall apply.
GENERAL PARTNERSHIPS
GENERAL PROVISIONS
(Characteristics)
1 In a general partnership each partner is subsidiarily liable in relation to the partnership and jointly and severally with the other partners for the obligations of the partnership, even if these have been contracted prior to the date when he joined.
2. A partner who pays for obligations of the partnership has a right of return against the other partners, in the proportion in which they share in the losses of the partnership.
3. In case of the mismatch mentioned in paragraph 4 of article 201, the other partners are subsidiarily liable towards the partner at issue, and jointly and severally liable among themselves for the payment of the difference in money.
4. A person who, not being a member of the partnership, acts in any way towards third parties as if he was, is jointly and severally liable with the partners towards the persons who have negotiated with the partnership in the belief that he was a partner.
(Partners and their contributions)
1. General partnerships can only be created by at least two partners, who can contribute with capital or with industry.
2. The time limit of delay of payment of capital participations cannot exceed five years.
(Content of articles of association)
1. The articles of association of a general partnership shall especially mention:
a) the complete name of each partner;
b) the value attributed to the industry contributions, in order to determine the distribution of profits.
2. Industry partners shall, in an attached statement, describe in summary form the activities that they undertake to perform.
(Industry partners)
1. The value of industry contributions is not computed in the capital of the partnership.
2. In internal relations, industry partners do not share in losses, unless there is a clause of the articles of association to the contrary.
(Competition and participation in other partnerships or companies)
1. A partner can only exercise, for his own or other persons' account, an activity covered by the object of the partnership, or be an unlimited liability partner of another partnership, or be a shareholder with a participation of more than 20% in the capital or in the profits of a partnership or company whose object coincides totally or partly with the former, with the express assent of all the other partners.
2. A partnership can demand that a partner transfers to it the right to the profits obtained or to be obtained in breach of the previous paragraph, and shall do so within 30 days from knowledge of the forbidden fact and, in any case, within six months from its occurrence.
3. The assent mentioned in paragraph 1 is presumed if the exercise of the activity or the participation in another partnership or company is prior to the joining of the partner, and all the other partners had knowledge of such facts.
(Right to information)
1. Besides the right to information provided for in this Code, a partner who is not an administrator has the right to be informed of the state of business and the patrimonial situation of the partnership; the administrators shall allow him to inspect the property of the partnership and to consult, at the registered office, the respective accounting, books and documents.
2. In consulting accounts, books or documents and in inspecting the property of the partnership, the partner can be accompanied by an expert, and can also make use of the powers mentioned in the Civil Code regarding reproduction of documents.
(Inter vivos transfer of participations)
1. The assent of all the others is necessary for a partner to transfer inter vivos his participation in the partnership.
2. Special rights are not transmitted with the participation.
REDEMPTION, DECEASE, EXECUTION, EXONERATION AND EXCLUSION
(Redemption of participations)
1 The participation of a partner shall be redeemed in the following cases:
a) decease of the partner, unless any of the cases mentioned in the following article takes place;
b) execution of the participation, in accordance with the law;
c) exclusion or self exoneration of the partner.
2. If the redemption of a participation is not accompanied by a corresponding reduction of the capital, the participations of the other partners shall be proportionally increased; this fact shall be registered.
3. Partners can, however, pass a unanimous resolution creating one or more participations, of a nominal value equal to the one that was extinguished, for immediate transfer to partners or third parties.
4. The redemption of participations shall be done in accordance with article 343.
5. After registration of the redemption of a participation, the liability of the partner or of his heirs in case of death, continues for two years, in relation to transactions concluded before that moment.
6. The redemption of a participation cannot take place if, at the moment of its execution, the net worth of the partnership, after the payment of the redemption, will become lower than the capital of the partnership.
7. If redemption of a participation is to take place as a result of the decease of a partner, or of the self-exoneration of a partner on the basis of paragraph 2 of article 341, and it cannot be effected due to the reasons mentioned in the previous paragraph, no profits shall be distributed until the payment of the redemption is made without breach of the previous paragraph.
8. If by exclusion of a partner the redemption cannot take place for the reasons mentioned in the previous paragraphs, the partner gains the right to profit and to a share in the liquidation, until payment is made to him.
(Decease of a partner)
1. If the articles of association do not provide to the contrary, in case of decease of a partner the remaining partners shall redeem the respective participation; however, they can continue the partnership with the heirs if the latter agree to this within 90 days, or instead decide to dissolve the partnership, in which case they shall inform the heirs within 60 days from the moment at which any of the partners knew of the decease.
2. If the heirs are called to the partnership they can freely divide the participation of the deceased, or entitle one or some of them to it.
(Execution of participation)
1. If other assets of a partner enable payment, a private creditor of such partner can only execute his right to profit and to share in the liquidation.
2. If the other assets of such partner become insufficient, the creditor can demand the redemption of his participation.
(Exoneration)
1. Besides the cases mentioned in the law or in the articles of association, if the duration of a partnership is for an undetermined period of time or if it was established for the duration of the life of a partner or for a period longer than 30 years, any partner who has had this capacity for at least 10 years has the right to exonerate himself.
2. The same right is recognized to any partner if, against his express vote and despite the existence of just cause, the partnership has resolved not to dismiss an administrator or exclude a partner, if such right is exercised within 90 days from the date at which he gained knowledge of the fact allowing exoneration.
3. Exoneration only becomes effective at the end of the annual accounting period in which the respective communication is made, but never sooner than 90 days from it.
(Exclusion of partner)
1 A partnership can exclude a partner in the cases mentioned in the law and in the articles of association, and also:
a) if a serious breach of his obligations towards the partnership is imputable to him, namely the obligation of non-competition, or if he is dismissed from the administration on the basis of a just cause consisting in a negligent fact that may cause damage to the partnership;
b) in case of interdiction, inability, declaration of bankruptcy or insolvency of the partner;
c) in the case of an industry partner, if it becomes impossible for him to render to the partnership the services for which he is obliged.
2. A resolution of exclusion must obtain the votes of all other partners, and shall be approved within the 90 days following the day on which any of the administrators gained knowledge of the fact that allows the exclusion.
3. If the partnership has only two partners, the exclusion of either of them, on the basis of any of the facts mentioned in subparagraphs a) and c) of paragraph 1, can only be declared by the court.
4. The calculation of the value of the participation of the excluded partner shall be made with reference to the moment of the resolution of exclusion or, if it is the result of a judicial decision, the date by which the sentence can no longer be appealed.
(Appraisal of participation)
1. In cases of death, exoneration or exclusion of a partner, the value of his participation shall be determined by an accounting auditor on the basis of the state of the partnership at the date on which the fact determining the redemption occurred or produced effect; if there is business underway, the partner or the heirs shall participate in the profits or losses resulting from it.
2. The applicable part of paragraphs 2 to 4 of article 323 shall apply to the appraisal of participations, with the necessary adaptations.
3. Without prejudice to paragraph 6 of article 338, the payment of the redemption value shall be made, unless there is an agreement to the contrary, within six months from the day in which the fact determining the redemption occurred or produced effect.
RESOLUTIONS OF PARTNERS AND ADMINISTRATION
(Resolutions of partners)
1. Except if there is a provision of the law or articles of association to the contrary, resolutions that obtain the favorable votes of the majority of the partners are considered as passed.
2. The following can only be approved by unanimity: amendments to the articles of association, merger, division, transformation, dissolution and appointments of administrators who are not partners.
3. Each partner has one vote.
4. Paragraph 1 of article 379 applies to the calling of general meetings.
(Administration and supervision)
1. Except if there is a stipulation of the articles of association to the contrary, all partners are administrators, whether they have created the partnership or acquired that capacity later.
2. Persons who are not partners can be elected as administrators by means of an unanimous resolution by partners.
3. Except if there is a stipulation of the articles of association to the contrary, a partner administrator can only be dismissed if there is just cause, either by means of a resolution taken by the majority of the other partners or by a judicial decision issued in proceedings initiated by any of them.
4. The removal of a partner administrator, if the partnership has only two partners, or if the former has been appointed through a special clause of the articles of association, can only be decided by the court.
5. An administrator who is not a partner can be dismissed at any time, with the votes of all partners, or of the majority if there is just cause.
6. In the absence of a supervisory board or a single supervisor, the supervision of the partnership is a competence of all partners.
(Functioning of administration)
1 The management and representation of a partnership is conducted by the administrators; in the absence of a stipulation of the articles of association to the contrary, all have equal and independent powers.
2. An administrator binds the partnership with his signature, mentioning the capacity in which he intervenes; the latter can be indicated by means of the apposition of a stamp of the administration or a seal of the partnership.
3. Any administrator can oppose acts that the others intend to execute; it is for the majority of the administrators to decide on the merits of the opposition.
DISSOLUTION AND LIQUIDATION
(Dissolution and liquidation)
1. Besides the cases mentioned in the law, a partnership is dissolved if the number of partners is reduced to one and, within three months, a plurality of partners is not reestablished or the partnership transformed into a single shareholder private company.
2. The partnership can also be judicially dissolved upon request of an heir of a deceased partner or upon request of a partner who has exonerated himself on the basis of paragraph 2 of article 341, if the situation mentioned in paragraph 6 of article 338 lasts for three years.
3. In order to pay the debts of a partnership, liquidators shall claim from the partners, besides the unpaid capital participations, the amounts necessary, in accordance with the proportion in which they share in losses; the part of an insolvent partner shall be divided by the others in accordance with the same proportion.
4. If dissolution by reason of the expiry of a time limit stated in the articles of association takes place, an extension can be agreed by the majority of the partners; the rules on the redemption of participations shall apply to partners who exonerate themselves.
LIMITED PARTNERSHIPS
(Types of limited partnerships)
A limited partnership can be created as a simple limited partnership or, if the participations of the silent partners are represented by shares, as a partnership limited by shares.
(Characteristics)
1. The distinctive elements of a limited partnership are the general partnership, which comprises the general partners, and the silent partnership of funds.
2. Each silent partner is liable only for the payment of his capital participation, and cannot contribute with industry; general partners are liable for the obligations of the partnership in the same manner as the partners of a general partnership.
3. Private companies and public companies can be general partners.
(Content of articles of association)
1. The articles of association of a limited partnership shall indicate separately the silent partners and the general partners.
2. The articles of association shall specify if the partnership is created as a simple limited partnership or as a partnership limited by shares.
(Rules applicable to limited partnerships)
1. The rules on general partnerships shall apply to limited partnerships, to the extent that they are compatible with the norms of this Chapter.
2. In partnerships limited by shares, the provisions on public companies shall apply to the silent partnership of funds in everything that is not especially regulated in this Chapter.
(Resolutions)
1. Silent partners and general partners vote separately; each general partner has a vote, and each silent partner has a vote for each 100 patacas of capital held.
2. Resolutions approved by an absolute majority of the votes of general partners and by an absolute majority of the votes of silent partners are considered as passed, without prejudice to different provisions of the law or articles of association.
3. Resolutions on dissolution, merger, division or transformation of the partnership and those that have as effect an amendment to the articles of association, are only considered approved if they obtain the unanimous vote of the general partners and two-thirds of the votes of the silent partners.
(Administration)
1. Except if there is a stipulation in the articles of association to the contrary, all general partners are administrators, whether they have created the partnership or acquired that capacity later.
2. Persons who are not general partners can be elected as administrators by means of a unanimous resolution of the general partners and of two-thirds of the silent partners.
3. Except if there is a provision in the articles of association to the contrary, an administrator general partner can only be dismissed if there is just cause, by a resolution passed with the favorable votes of the majority of the other general partners and the majority of the silent partners, or by a judicial decision pronounced in proceedings initiated by any of them.
4. If the partnership has only one or two general partners and any of them or both are the only administrators, they can only be dismissed by a judicial decision, if there is just cause, upon petition of any partner.
5. An administrator who is not a partner can be dismissed at all times; the same votes required for his election are necessary, unless there is just cause, in which case the concurrence of the votes of the majority of the general partners and of the majority of the silent partners suffices.
(Transfer of participations)
1. The transfer inter vivos and for reason of death of the participation of a general partner requires the unanimous assent of the other general partners, as well as a resolution approved by the majority of the votes of the silent partners.
2. The transfer inter vivos of the participation of a silent partner of a simple limited partnership requires a resolution passed by the majority of both the general partners and the silent partners.
3. In case the transfer of the participation of a silent partner is not authorized, the provisions on redemption of participations shall apply, with the necessary adaptations.
(Dissolution)
1. A partnership is dissolved by the absence of all general partners if, within 45 days, a new partner is not admitted or the transformation of the partnership into a private or public company is not decided.
2. In the absence of all silent partners, a partnership is dissolved if, within 90 days, a new silent partner is not admitted or the partnership is not transformed either into a general partnership or, if the partnership has only one general partner who is not a collective person, into a single shareholder private company.
PRIVATE COMPANIES
GENERAL PROVISIONS
(Characteristics)
1. The capital of a private company is broken down into shares and the shareholders are jointly and severally liable for the payment of all shares in accordance with the provisions of article 362.
2. Shares cannot be embodied in negotiable instruments and cannot be designated as stock.
3. In addition to the requirements of paragraph 5 of article 179, the articles of association of private companies shall specify the share of capital held by each shareholder.
(Direct liability of shareholders towards company creditors)
1. The act of incorporation can stipulate that one or more specified shareholders are also liable, up to a certain amount, towards the company creditors, in addition to their liability towards the company in accordance with paragraph 1 of the previous article.
2. The act of incorporation can either provide for a joint and several liability with the company or for a subsidiary liability; however, the type of liability shall be the same for all shareholders that have such liability.
3. The liability regulated in the previous paragraphs includes only obligations undertaken by the company while the shareholder is a member of it, and is not transferred as a result of the death of the shareholder, without prejudice to the transfer of his former obligations.
4. A shareholder who pays company debts in accordance with this article has a right of return against the company for the full amount that he has paid, but not against the other shareholders.
(Maximum number of shareholders)
1. A private company cannot have more than 30 shareholders.
2. No act which causes the number of shareholders of a private company to become greater than 30 shall have effect in relation to such company before it is transformed, by a shareholders' resolution, into a public company.
3. If the fact that causes the number of shareholders to exceed the limit stated in paragraph 1 is mortis causa, the heirs can request the court to set a reasonable time limit, under penalty of dissolution, in order to decide upon transformation into a public company.
4. Whenever a share is held in common by several persons, they shall be regarded as only one shareholder for the purpose of this article.
(Minimum company capital)
1. Company capital shall always correspond to the sum of the nominal value of the shares.
2. A private company cannot have a capital lower than 25 000 patacas.
[As amended by Law no. 6/2000, of April 27]
RELATIONS BETWEEN SHAREHOLDERS AND THE COMPANY
SHARES AND THEIR PAYMENT
(Shares)
1. The nominal value of each share shall be expressed in patacas, shall be equal to or higher than 1 000 patacas, and shall represent a multiple of 100.
2. The previous paragraph applies to shares arising from division.
3. The capital subscribed by each shareholder in the act of incorporation can only correspond to one share; the capital that any shareholder subscribes or holds after an increase of capital can only correspond to one new share.
4. Shares to which special rights are attached are always independent and indivisible.
(Moment of payment of shares)
1. The payment of shares due in money can be delayed, up to half of their nominal value, provided that the amount thus paid in money, in addition to the nominal value of the shares paid in kind, make up a value equal to or higher than the minimum capital stated in paragraph 2 of article 359.
2. Payment of shares can only be delayed, for a period of no more than three years, until a specified date indicated or to be indicated by the administration.
3. If the administration has to indicate such date and fails to do so, the payment shall mature three years from the date of registration of the act of incorporation of the company, or from the resolution of increase of capital.
(Liability of other shareholders for payment of shares)
1. If a shareholder does not punctually pay his share, the other shareholders shall pay the delayed part in proportion to their shares, but jointly and severally with the company.
2. Before notifying the other shareholders to pay the part in debt in accordance with the previous paragraph, the administration of the company shall serve notice to the shareholder in delay, by means of a registered letter, that he has a supplementary time limit of 60 days from the sending of the letter to pay the share, without prejudice to paragraphs 2 and 3 of article 204.
3. If the shareholder in delay does not pay the share within the time limit set in accordance the previous paragraph, the company shall notify the other shareholders to pay the part in delay.
4. The share, in its totality, shall belong to the shareholders who pay the missing part, in accordance with the proportion of the amount of their payments; for this purpose, the share shall be divided and added to their respective shares.
5. A shareholder who loses his share in accordance with the previous paragraphs does not have the right to reimbursement of the amounts already paid for the account of the payment of the share.
6. The shareholder shall be served notice of these consequences in the letter mentioned in paragraph 2.
7. The company secretary or, if one does not exist, an administrator shall enter the corresponding amendments in the books of the company and arrange registration.
(Pre-emption right in case of increase of capital)
1. Shareholders have a pre-emption right in the subscription of capital increases.
2. Paragraph 4 of article 469 shall apply to the limitation or exclusion of the pre-emption right mentioned in the previous paragraph.
DIVISION OF SHARES
(Division of shares)
1. Without prejudice to paragraph 1 of article 360, a share can only be divided as an effect of partial redemption, partial or fractional transfer, distribution of an estate or division among co-holders.
2. Any acts implying a division of shares shall be made in writing, and can be done by private document, except if the law provides otherwise.
3. The division of a share does not have to be allowed by shareholders, without prejudice to the provisions of the law or the articles of association regarding transfer of shares; the share shall not for any purpose be regarded as divided if the division has not been entered in the books of the company and registered.
(Share held in common by various persons [quota indivisa])
1. The co-holders of a share held in common by various persons shall exercise the rights and fulfill the obligations inherent to such share by means of a common representative.
2. Company acts that must be personally notified to shareholders shall be notified to the common representative or, in his absence, to any of the co-holders.
3. Co-holders are jointly and severally liable for the obligations inherent to a share.
4. The appointment and dismissal of a common representative shall be communicated in writing to the company, under penalty of not producing effect.
5. Towards the company, the common representative shall exercise all rights and fulfill all obligations inherent to the share held in common; any restriction to his powers of representation, necessary for such purpose, cannot be invoked against the company.
6. Except if there is a legal provision to the contrary, this article applies to shares included in an autonomous patrimony that is to be distributed.
TRANSFER OF SHARES
(Form and registration of transfer)
1. The inter vivos transfer of a share shall be made in writing, with certification by a notary of the signature of the contracting parties, except if there is a legal provision stating otherwise, and is subject to registration.
2. A copy of the document mentioned in the previous paragraph shall be filed with a notary.
3. The transfer of a share has no effect in relation to the company until it has been communicated to it in writing.
[As amended by Law no. 6/2000, of April 27]
(Transferability of shares)
Except if there is a provision of the articles of association to the contrary, the inter vivos transfer of shares is free.
[As amended by Law no. 6/2000, of April 27]
REDEMPTION OF SHARES
(Redemption of shares)
1. Redemption of shares can only take place if a shareholder is excluded or exonerates himself from the company.
2. The effect of redemption is the extinction of the share; paragraph 2 of article 338 shall apply, with the necessary adaptations.
3. It is not allowed to pass a resolution redeeming a share that is not fully paid.
4. If a company has the right to redeem a share, it can purchase it instead, or have a shareholder or a third party purchase it; in the former case, paragraph 3 of article 373 shall apply.
5. Shareholders can only pass a resolution redeeming a share in accordance with paragraph 2 of article 373.
(Form and effect of redemption)
1. Redemption is effected by means of a resolution by shareholders in case of exclusion of a shareholder, or upon a shareholder's intention in case he wants to exonerate himself from the company.
2. Once a fact that allows the exclusion of a shareholder in accordance with the law or with the articles of association has taken place, the other shareholders can, within 90 days from knowledge of such fact by the administration, decide the redemption of the shares held by him.
3. A resolution of redemption takes effect with registration and notification to the excluded shareholder.
4. Once the fact that allows a shareholder to exonerate himself from the company has taken place, he can communicate to the company his intention to redeem the respective shares, by means of a registered letter, within 30 days from knowledge of such facts.
5. Once registered, the redemption becomes effective 30 days after the receipt of the notification by the company but, if the requirements of paragraph 2 of article 373 are not met, the payment of the redemption shall be made only after they are met.
(Settlement of redemption)
1. The settlement of a redemption consists in payment to the shareholder of an amount corresponding to the value of the share, resulting from an appraisal expressly prepared for this purpose by an accounting auditor without any connection with the company.
2. The settlement shall be paid in two equal installments, which mature respectively six months and one year from the date at which the redemption becomes effective or on which the requirements of paragraph 2 of article 373 are met.
(Exclusion of shareholder)
1. A shareholder can be excluded in the cases especially mentioned in the articles of association and also, by judicial decision, if his behavior causes relevant damage to the company.
2. The exclusion of a shareholder does not preclude his duty to compensate the company for any damage that he may have caused to it.
3. An amendment to the articles of association regarding exclusion of shareholders is allowed only by means of a unanimous resolution.
(Exoneration of shareholder)
1. In addition to the cases stated in the articles of association, a shareholder can exonerate himself from the company if, against his vote, the shareholders decide:
a) an increase of capital to be totally or partly subscribed by third parties;
b) a modification of the object with the scope mentioned in article 271;
c) a relocation of the registered office of the company outside the Territory.
2. A shareholder can exonerate himself only if his shares are fully paid.
ACQUISITION OF OWN SHARES
(Acquisition of own shares)
1. A company can acquire its own shares against payment by means of a resolution of the shareholders, and can acquire them gratuitously by means of a resolution by the administration.
2. The company can only acquire own shares that are fully paid if, as a result of the acquisition, its net worth does not become less than the sum of the capital of the company, the legal reserve and the reserves compulsory in accordance with the articles of association.
3. All rights inherent to the shares held by the company are suspended, with the exception of the right to receive new shares or increases of the nominal value of participations following a capital increase arising from incorporation of reserves.
SUPPLEMENTARY PAYMENTS
(Obligation of supplementary payments)
1. The articles of association can foresee supplementary payments to be made in money.
2. The articles of association shall set the maximum global amount of supplementary payments; in the absence of such limit they cannot be demanded.
3. Supplementary payments are not part of the capital of the company, do not bear interest or confer the right to a share in the profits.
4. Shareholders shall effect supplementary payments in accordance with the proportion of their shares.
(Demand for supplementary payments)
1. A demand for supplementary payments always depends upon a resolution by shareholders setting the amount due, within the limit stated in paragraph 2 of the previous article, and the time limit for payment, which cannot be less than 60 days.
2. The resolution shall be approved by the majority required to amend the articles of association.
3. Shareholders cannot decide to require supplementary payments if the subscribed capital has not been fully paid, or after the dissolution of the company for any cause.
4. Company creditors cannot subrogate shareholders in the exercise of the right to demand supplementary payments.
5. Article 204 applies to the obligation to make supplementary payments.
(Refund of supplementary payments)
1. Supplementary payments can only be refunded to shareholders if, as result of such refund, the net worth of the company does not become less than the sum of the capital, the legal reserve and the reserves which are compulsory in accordance with the articles of association.
2. Company capital cannot be increased before any supplementary payments made by shareholders have been refunded to them, except in case of their partial or total conversion.
3. Refund of supplementary payments depends upon a resolution by shareholders.
PROFITS AND LEGAL RESERVE
(Profits and legal reserve)
1. The distributable profits of an accounting period shall be disposed of in accordance with a resolution by shareholders.
2. The articles of association can stipulate that a certain percentage of the distributable profits of the accounting period, of no less than 25% and no more than 75%, shall be compulsorily distributed to shareholders.
3. Shareholders' credit to profits matures 30 days after the registration of the resolution approving the accounts of the accounting period and of the resolution that decided on the apportionment of the results.
4. A part of the profits of the accounting period of no less than 25% shall be retained as legal reserve by the company, until it reaches an amount equal to half of the capital.
5. The provisions of paragraphs 2 and 3 of article 432 apply to private companies, with the necessary adaptations.
SPECIAL RIGHTS
(Special rights of shareholders)
Special rights of a patrimonial nature can be transferred together with the respective share, except if the act of incorporation or the articles of association reveal that they were created for personal reasons [intuitu personae]; the latter, and non-patrimonial special rights, are not transferred together with the share.
GENERAL MEETING AND ADMINISTRATION
(General meeting)
1. The call for a general meetings shall be made by means of a letter, addressed to the shareholders, which shall contain the call notice and shall be sent at least 15 days before the date of the session of the meeting, except if the articles of association state that the call notice must be published or set a longer time limit.
2. No shareholder can be deprived of the right to attend sessions of general meetings, even if he is barred from exercising the right to vote.
(Allotment of votes and calculation of majority)
1. Each 100 patacas of capital correspond to one vote.
2. Abstentions are not counted in order to determine if a proposal has obtained a majority of votes, for its approval or rejection.
(Competence of shareholders)
Without prejudice to other matters that depend upon a resolution by shareholders in accordance with the law or the articles of association, the shareholders have competence to pass resolutions on:
a) amendments to the articles of association, without prejudice to paragraph 2 of article 181;
b) exercise of pre-emption rights in inter vivos transfers of shares;
c) extrajudicial exclusion of a shareholder and redemption of the respective shares;
d) acquisition of own shares by the company;
e) demand for and refund of supplementary payments;
f) approval of the annual accounts of the company and the report of the administration;
g) distribution of profits;
h) appointment and dismissal of administrators;
i) appointment and dismissal of the single supervisor or members of the supervisory board;
j) merger, division, transformation and dissolution of the company;
l) approval of the final accounts by liquidators;
m) acquisition of participations in companies with unlimited liability or having a different object or in companies regulated by special laws.
(Majorities)
1. Without prejudice to cases in which the law or the articles of association require a higher percentage of votes, the following shall be regarded as passed:
a) resolutions concerning matters mentioned in paragraphs a) and j) of the previous article, if they obtain favorable votes corresponding to at least two thirds of the company capital;
b) resolutions concerning other matters if, in a first call, they obtain favorable votes corresponding to the absolute majority of the company capital or, in a second call, to the absolute majority of the company capital that is present or represented.
(Composition of the administration)
1. Private companies shall be managed and represented by one or more administrators, who may or may not be shareholders.
2. The articles of association can provide for specific titles for the position of administrator, such as manager, director or others.
[As amended by Law no. 6/2000, of April 27]
(Appointment and term of office of administrators)
1. Administrators are appointed in the act of incorporation or elected by a resolution by shareholders.
2. If the articles of association do not provide to the contrary, the term of office of administrators is for an undetermined period of time.
3. Administrators can be represented by third parties in the exercise of their functions, provided that the articles of association expressly allow this.
[As amended by Law no. 6/2000, of April 27]
(Substitution of administrators)
If all administrators are temporarily or permanently absent, any shareholder can practice urgent acts that cannot be delayed until the election of new administrators or until the absence ceases.
(Functioning of administration)
1. If there is only one administrator, the company is bound by acts practiced by him in its name, within the limits of his powers.
2. If the administration is made of two administrators, both have equal powers of administration; the company is bound by the acts practiced by either of them in its name, within the limits of their powers, or practiced jointly by both if the articles of association so provide.
3. The articles of association can create a board of administration made of at least three members; except if there is a provision of the articles of association to the contrary, resolutions which obtain the favorable votes of the majority of the administrators are considered as passed.
4. Except if there is a provision of the articles of association to the contrary, the company is bound by legal transactions concluded by the majority of the administrators, or ratified by the majority.
5. The provisions of the previous paragraphs do not prejudice the application of the rule stated in article 236 to relations between the company and third parties.
6. If the articles of association do not provide otherwise, the board of administration can delegate powers to one or more administrators to deal, together or separately, with specific matters concerning the management of the company or to practice certain acts or categories of acts.
7. The delegation of powers mentioned in the previous paragraph shall be written in the minutes of the session of the organ in which it is approved, or in a private document signed by the majority of the administrators, with certification of the respective signatures.
8. The board of administration meets informally or whenever called by any administrator. Minutes shall be drawn up from every session, which, if the secretary is absent or does not exist, shall be signed by the administrators attending, in the minutes book or on a loose sheet or in a separate document; in the latter case, the signature of the administrators present shall be certified by a notary.
9. In the exercise of their powers, the administrators shall act in compliance with resolutions by shareholders, regularly taken, on matters of company management.
[As amended by Law no. 6/2000, of April 27]
(Remuneration of administrators)
1. Administrators have the right to a remuneration set by means of a resolution by shareholders.
2. Any shareholder can request the court to reduce the remuneration of the administrators, if it is manifestly out of proportion to the services rendered or to the situation of the company.
3. If an administrator is dismissed without just cause, he has the right to receive as compensation the remuneration that he would have earned until the end of his term of office or, if no time limit was set, the remuneration corresponding to two accounting periods.
(Renunciation of administrators)
1. An administrator can renounce his mandate by means of a written statement, with certification of his signature; this decision shall be communicated to the company.
2. Renunciation takes immediate effect upon registration.
3. If a mandate has a specified time limit, the renouncing administrator shall compensate the company for damage arising to it from his renunciation.
4. Renunciation shall be communicated to third parties by adequate means, failing which it cannot be invoked, unless it is shown that it was known by them at the moment of conclusion of the transaction.
[As amended by Law no. 6/2000, of April 27]
(Dismissal of administrators)
1. Shareholders can decide the dismissal of administrators at any time.
2. The articles of association can require that the dismissal of one or more administrators shall be decided by qualified majority.
3. If the articles of association grant a special right to administration to a shareholder, he cannot be dismissed by resolution of the other shareholders.
4. If there is just cause, any administrator can be dismissed by decision of the court, upon request of any shareholder or administrator.
5. A serious or repeated breach of the duties of administrator is just cause for dismissal; the following namely shall be regarded as serious breaches of the duties of administration:
a) the non-registration or the late registration of acts subject to it, or the lack of maintenance in order and updating of the company books;
b) the exercise, for his or other persons' account, of an activity in competition with the company, except if there is prior assent by shareholders.
6. Paragraph 4 of article 388 shall apply, with the necessary adaptations.
[As amended by Law no. 6/2000, of April 27]
SINGLE SHAREHOLDER PRIVATE COMPANIES
(Single shareholder private companies)
1. Any individual can create a private company the capital of which, consisting of a single share, he is initially the single holder; the provisions of this Section and the provisions applicable to private companies shall apply, with the necessary adaptations.
2. The provisions of this Section apply to private companies that have a single shareholder from the outset, for as long as there is a single shareholder, and to private companies that subsequently come to have a single shareholder, if after 90 days the plurality of shareholders is not reestablished.
(Legal transactions between single shareholder and company)
1. Any legal transactions agreed, directly or through a middle party, between a company and the shareholder shall always be done in writing, and must be necessary, useful or convenient for the pursuit of the company object, under penalty of nullity.
2. The legal transactions mentioned in the previous paragraph shall always be the object of a prior report drawn up by an accounting auditor not connected with the company, which shall namely declare that the interests of the company are duly protected and that the transaction is in accordance with normal market conditions and price; otherwise they cannot be concluded.
(Decisions of single shareholder)
Decisions upon matters that are, according to the law, included in the competence of shareholders shall be taken personally by the single shareholder and entered in a book kept for that purpose, and shall be signed by the shareholder and by the company secretary.
PUBLIC COMPANIES
GENERAL PROVISIONS AND PUBLIC SUBSCRIPTION
GENERAL PROVISIONS
(Characteristics)
1. Public companies can only be created by a minimum of three shareholders and their capital cannot be lower than 1 000 000 patacas.
2. The capital shall be divided into shares, all of the same nominal value, which cannot be lower than 100 patacas, represented by instruments.
3. The liability of a shareholder is limited to the value of the shares he subscribes.
(Payment of capital)
1. Public companies cannot be created without the full subscription of the company capital and the payment of at least 25% of it.
2. The payment of capital due in kind and, if it exists, the payment of a premium of issue, cannot be delayed.
(Act of incorporation)
Shareholders shall intervene in the act of incorporation, unless the company is created by public subscription; in addition to the requirements stated in paragraph 5 of article 179, the following shall be mentioned in the articles of association:
a) the nominal value and number of the shares;
b) the nature of the instruments representing the shares, either nominative or to bearer, and rules of conversion;
c) the authorization for the issue of bonds, if it exists;
d) the amount up to which the administration can raise the company capital without the need for a resolution by shareholders;
e) the types of shares, ordinary or preference, if they are different;
f) the various categories of ordinary shares, if equal rights do not attach to all of them.
CREATION THROUGH PUBLIC SUBSCRIPTION
(Creation through public subscription)
1. The creation of a company through public subscription is initiated by one or more promoters, individuals or collective persons, who are jointly and severally liable for all the process until the registration of the company.
2. The promoters themselves shall subscribe and pay, in money, shares the nominal value of which must add up to at least 1 000 000 patacas or 20% of the capital, depending on which is higher; such shares cannot be transferred or charged before the approval of the accounts of the third accounting period.
3. In companies created through public subscription there can only be ordinary shares of a single category.
(Project)
1. The promoters shall prepare a project mentioning:
a) the full draft articles of association, precisely specifying the company object;
b) the number of shares for public subscription as well as their nature, nominal value and the issue premium, if it exists;
c) the estimated amount of the costs paid by the promoters, if these are to be refunded by the company in accordance with paragraph 2 of article 188;
d) the time limit for subscription and the credit institutions at which it can be done;
e) the time limit within which the incorporating meeting shall take place;
f) a technical, economic and financial study forecasting the evolution of the company for three years, prepared on the basis of faithful and complete data and taking into account the known circumstances and forecasts available at that date, in order to inform clearly any persons possibly interested in the subscription;
g) rules on the allocation of the subscription, in case it becomes necessary;
h) the conditions under which the company shall be created if the public subscription is incomplete, or a mention that, in such case, it shall not be created;
i) the amount of capital subscribed that must be paid in the act of subscription, the time limit for payment of the remainder, and the time limit for refund of such amount if the company is not created.
2. The project shall also contain the full identification of the promoters and of the authors of the study mentioned in subparagraph f) of the previous paragraph, if they are different.
(Liability)
1. All promoters of the company are personally, jointly and severally and without limit liable for the accuracy of the factual elements mentioned in the project.
2. For this purpose, the authors of the study mentioned in subparagraph f) of paragraph 1 of the previous article are also considered as promoters.
(Supervision of project and offer)
1. A copy of the project mentioned in article 397 shall be delivered to the Monetary and Foreign Exchange Authority of Macao.
2. Fifteen days after the delivery mentioned in the previous paragraph, the promoters shall formulate a public offer of subscription, signed by them, which must be registered together with the project.
(Publicity)
1. After registration of the offer and the project, these shall be fully published, without prejudice to the following paragraph.
2. The publication of the study mentioned in subparagraph f) of paragraph 1
of article 397 can be replaced by an indication that copies
of it are available
to any interested party, free of charge, at the credit institutions where
subscription can be done.
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