An LLC’s director (Limited Liability Company) is the person in charge of representing the company and ensuring its overall management.

According to the provisions of the law 5-96, the director of an LLC can be, though not necessarily, a shareholder of the company. Moreover, the law provides that the company can be directed by several directors. In such a case, they are called co-directors.

Mandate of an LLC’s director(s)

The appointment of the first director(s) usually occurs when the company is established.

In fact, they are chosen by the shareholders:

Either, in the articles of association
Or, in separate legal act subsequent to the creation

The articles of association or legal acts must specify the duration of their mandates. In the absence of statutory provisions, the director, whether a shareholder or not, is appointed for a period of 3 years.

Directors are liable for the acts they perform on behalf of the company. Given the responsibility entailed, all directors must express their consent, in writing, on the appointment act.

Powers of an LLC’s director

There are two levels of analysis of a director’s powers:

First, powers in dealings with the shareholders

When dealing with the company’s shareholders, the powers of an LLC’s director are determined in the articles of association. Thus, a director cannot, for example, perform :

– First, acts that do not fall within the company’s purpose;

– Second, acts outside the limits of power set by the articles of association;

– And finally, acts that go against the company’s interests.

Thus, the partners can sue directors for liability if they exceed these limits.

Second, powers in dealings with third parties

When dealing with third parties, an LLC’s director is vested with the most extensive powers to act in all circumstances on behalf of the company. The only exception corresponds to the powers that the law expressly assigns to the shareholders.

For example, a director cannot decide to revise the articles of association or increase the company’s share capital.

However, clauses in the articles of association limiting the powers of directors are not enforceable against third parties. Moreover, the company is committed to third parties even by acts, performed by a director, which do not fall within the scope of its corporate purpose.

In case of several directors, each one has separate powers as provided by law for a sole director.

An LLC’s director’s obligations towards the shareholders’ general meeting

The director must provide shareholders at the general meeting with the following items :

First, the financial statements for the year (audited by a legal auditor if necessary);

Responsibility of an LLC’s director

Director(s) are liable, individually, or jointly and severally, as the case may be, to the company or to third parties of:

First, violations of the legal provisions applicable to limited liability companies;
Second, violations of the articles of association or misconduct in their management.

If several directors are involved in the same facts, the court shall determine the contribution of each to the compensation of the damage.

Note that any shareholder can sue a director in case of infringement even in the absence of agreement of the general meeting.

Change of an LLC’s director

The change of director is decided by a general meeting under the conditions of a simple majority. In terms of formalities, you must:

First, draft the general meeting minutes;
Second, proceed with the legalization and registration of the minutes
Third, submit the minutes to clerk’s office of the commercial court
Fourth, make an amending entry in the trade register
Finally, fulfill legal publicity obligations

Upsilon can assist you with your formalities of appointment, resignation and change of directors (advice, review of acts, administrative formalities). Contact us

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