- 26 Nov
Ancillary Capital Contributions
Contrary to supplementary capital contributions, which always have money as an object, Ancillary Capital Contributions can consist of entries in kind, specific obligations or also money.
- Both private companies limited by Shares and Public Limited companies are admitted.
- Ancillary Capital Contributions depend on statutory disposition that established an obligation to make the instalments. The article of association may impose to all or some of the partners the obligation to make payments besides the entries, as long as the essential elements of this obligation are set and the payments to be done whether in return for payment or free of charge are specified (article no. 209 of the Portuguese Commercial Companies Code for limited companies limited by shares, no. 287 for public limited companies).
The statuses may affect the obligation of additional instalment to a prior deliberation of a general assembly, but its accomplishment is not mandatory – the execution of the contract may be established by the governance body.
- Ancillary Capital Contributions may be free of charge or in return for payment, in other words, can include interest or not, and they may or not have a counterpart from the company.
- If the rewarding is established, the consideration may be paid regardless the existence of profit from the company (article no. 209 of the Portuguese Commercial Companies Code); however, with public limited companies, the rewarding shall not exceed the value of relative instalment – in other words, the value of the consideration cannot exceed the value of the additional Instalment itself.
Contrary to supplementary instalments, the non-fulfilment of Ancillary Capital Contributions doesn’t affect the situation of the partner as such!
The non-fulfilment of the obligation to make the Ancillary Capital Contributions has as consequence the creation of a credit right over a partner. Nevertheless the mention non-fulfilment doesn’t allow the end of participation and exclusion of the partner from the company, except if the article of association establishes that exclusion.
- To assess the regime to be applied in the event of non-compliance, as the debt or equity will depend essentially of the onerous or free of charge nature of the Ancillary Capital Contributions, and the possibility of their restitution.
- Ancillary Capital Contributions expire with the dissolution of the company.
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