Running a French SAS Agrément: From Signed Deal to Closing

Running the agrément: what actually happens between deal and closing

When a French SAS's bylaws contain an approval (agrément) clause, a shareholder with a buyer in hand cannot simply close: the company must approve the transferee first, through the procedure the bylaws organise, and a transfer made in breach is null by operation of law (C. com. Art. L 227-15). What most sellers underestimate is how much of that procedure is pure bylaws drafting. Unlike the SA, the SAS has no statutory safety net behind a refusal: the Cour de cassation has declined to extend the buy-out machinery of Art. L 228-24 to the SAS agrément (Cass. com. 8 March 2018, n° 17-40079) — so the deadline, the buy-out cascade, the price route and any right to change your mind all exist only if someone wrote them in.

This guide runs the procedure from the seller's chair: the pre-notification review, the notification and its content, the decision window and the vote — including the two rules the case law imposes on every design: the seller keeps their vote, and an approval must be pure and simple — the closing on approval, and the refusal scenario with its buy-out, its six-month rule for company purchases, and its endgame where nobody buys. The design of the clause itself is covered in our guide to approval clauses; the closing mechanics in our transfer-mechanics guide; the wider deal in our seller's guide. This is the procedure, hour by hour.

Before notifying: read the clause like the court will

The pre-notification review answers six questions, each of which changes the strategy. Scope — which operations the clause reaches: third-party cessions only, or transfers between shareholders, to spouses and PACS partners, successions (with heirs proving their quality), intra-group movements (often exempted), capital increases and cessions of subscription rights, even mergers where the drafting extends to universal transmissions. The organ — president (fast, but check who approves the president's own sale), the collectivity, a category of shareholders, or a committee. The windows — the decision period, and the drafted endpoint the treatise treats as essential: the deadline after which, absent approval and absent a buy-out offer, the seller may transfer freely. The buy-out cascade — who acquires on refusal, in what order, at what price route. The repentance — whether the seller may withdraw the project on refusal or on an unsatisfactory price: in the SAS this right exists only by stipulation. The neighbours — a pre-emption clause (usually sequenced first, with the agrément running on what pre-emption leaves), a lock-up, the pacte's contractual restrictions.

Two structural points close the review. Category designs are common and lawful — class A approving class B's cessions, approval targeting only the minority, or financial investors exempted entirely so their exit stays free — so the seller's own position under the clause may differ from their neighbour's. And the sanction's geometry matters: the L 227-15 nullity attaches to the statutory clause; an agrément living only in the pacte yields damages — unless a bylaws clause bridges to the pacte, importing the nullity (Cass. com. 27 June 2018, n° 16-14097). The case law also treats the nullity as absolute while restricting who may invoke it, the point remaining to be settled for the SAS specifically — one more reason no party should build a strategy on surviving a breach.

Notification, decision window, vote

The notification opens the procedure and starts the clock, so its form and content follow the bylaws to the letter: identification of the seller and the proposed transferee (with the ownership chain for a corporate buyer), the number of shares, the price and material terms, delivered in the drafted form — registered letter in most drafting — with proof of the date. A notification that misses the drafted form or content invites the company to treat the window as never opened; sellers should assume the clock will be litigated and paper it accordingly.

The decision window is whatever the bylaws say, and its expiry consequence is the drafting's most important sentence: well-drafted clauses provide that, failing a decision and failing a buy-out offer within the period, the seller may freely complete the notified transfer. During the window the organ deliberates as the bylaws organise — for a collective decision, through the company's ordinary forms with their convening and information discipline.

The vote carries the two rules no drafting can escape. First, the selling shareholder votes: the right to take part in collective decisions implies the right to vote, the bylaws can derogate only where the law allows, and Art. L 227-14 does not deprive the transferor of their vote — clauses stripping the seller's vote are exposed to challenge (Cass. com. 23 October 2007, n° 06-16537, echoing Cass. com. 9 February 1999). The seller can therefore vote for the approval of their own buyer; thresholds should be modelled accordingly. Where the president holds the approval power and sells their own shares, the case law by analogy even lets a silent drafting leave the president approving their own cession — which is precisely why careful bylaws reassign that scenario to the collectivity. Second, the decision is binary: an approval must be pure and simple, and any conditions the approving organ attaches are deemed unwritten (Cass. com. 17 January 2012, n° 09-17212) — a « yes, provided that » is a yes, with the proviso erased. No reasons are owed for a refusal unless the bylaws require them; the outer limit is abuse — a refusal machinery operated to deny a shareholder any real exit invites an abuse-of-majority challenge, though ordinary unwelcome-buyer refusals are the clause working as intended.

Where are you in the procedure?

Pick your position — the check shows the rules that govern it and the next move.

Approval: closing on the notified terms

With the approval in hand — express, or acquired through the bylaws' expiry rule — the sale completes on the ordinary machinery: the seller signs the ordre de mouvement referencing the approval, the company inscribes the transfer at the date the parties fixed and notified, ownership passes at the inscription, and the buyer files the 0.1 % registration duty within the month. Two boundaries keep the approval honest. It covers the notified transaction — this buyer, these shares, these terms; a materially renegotiated deal (a different price, a different transferee entity in the buyer's group) is a different transaction, and the safe course is a fresh notification rather than an argument about the old approval's breadth. And it spends itself at closing: the buyer becomes a shareholder subject to the same clause, facing the same procedure at their own exit — the approval admits a person, it does not license a chain.

Refusal: the buy-out the bylaws built — or the litigation they didn't

A refusal blocks the notified sale; what happens next is entirely a question of drafting, because the SAS has no statutory answer. Art. L 228-24 organises the SA's refusal scenario — acquisition by a shareholder or third party, or by the company with the seller's consent for cancellation, within a statutory window, with deemed approval on failure and a statutory repentance right. The Cour de cassation has declined to transpose that machinery to the SAS agrément, finding no case law supporting its application there (Cass. com. 8 March 2018, n° 17-40079), and the treatise's advice follows: write equivalent solutions into the bylaws, adapted to the SAS's own organs — precisely because a refusal with no organised exit invites the heavy litigation argument that a shareholder holds an absolute right to sell their shares.

The drafted cascade typically runs: acquisition by one or more shareholders, by a third party the company designates, or by the company itself; a period for the offer to arrive; a price at the notified terms, by bylaws formula, or by expert valuation (C. civ. Art. 1843-4 — or Art. 1592 where the drafting prefers a contractual expert); and the endpoint — failing approval and failing a buy-out offer within the drafted period, the seller transfers freely. Two case-law rules discipline the execution. Once the company, refusing the buyer, offers to buy the seller's shares with an expert to fix the price and the seller accepts, there is agreement on the thing and on the price mechanism — the company cannot go back (Cass. com. 4 January 2023, n° 21-10035). And where the seller would rather stay than sell to the cascade, the repentance right — renouncing the sale on refusal or on an insufficient price — exists in the SAS only where the bylaws created it, a stipulation the agrément-plus-pre-emption combinations can silently destroy if the drafting does not preserve it.

Company purchases carry their own regime. A buy-back on refusal is an exception to the self-purchase prohibition: the SAS that acquires its own shares under a refusal (or another control clause producing a buy-back) has six months to transfer or cancel them (C. com. Art. L 227-18); beyond, cancellation and the capital reduction it entails are the obligation, part of the doctrine adding the equivalent-offer discipline of the SA's reduction procedure. The management of the self-held shares is the president's to conduct in the company's interest: offers to buy the treasury shares can be declined without even consulting the shareholders where they are contrary to the company's interest or made after the six-month window has cast doubt on the shares' position (Cass. com. 18 September 2019, n° 17-18143).

Map your procedure: from notification to the endpoint

Enter your notification date and the windows your bylaws set — the planner maps the decision deadline and the buy-out endpoint.

Where a pre-emption clause runs first

Many SAS bylaws pair the agrément with a pre-emption clause — a statutory pacte de préférence (C. civ. Art. 1123) giving designated shareholders, a category, or the whole table priority to buy what a seller notifies. The sequencing is usually pre-emption first, agrément after — the approval then bearing only on what the pre-emptors left. The drafting disciplines the treatise insists on: the two procedures must stay compatible, their deadlines chaining rather than overlapping, the shares covered identical; the clause must not become a device that prevents sales — hence an obligation to complete the pre-emptive purchase within a set period (in the order of three months from notification), failing which the seller transfers freely; the price runs at the notified terms or by expert (Arts. 1592 or 1843-4); and cascades are possible — category A first, then category B, then the rest. One quiet casualty to check: a seller's repentance right can disappear in the combination, since a pre-emption exercised at the notified price leaves nothing to repent — if the seller is meant to keep the exit door, the drafting must say so across both procedures.

Edge cases the drafted procedure should already answer

The buyer walks mid-procedure. The notified transaction disappears; the procedure attached to it lapses. A new buyer means a new notification and a new clock — which is why sellers with fragile buyers front-load the procedure rather than letting the window and the diligence run in parallel toward different exits.

The terms move mid-procedure. The approval bears on the notified transaction; a renegotiated price or a substituted acquiring entity is a different one. Rather than litigate the old approval's breadth, re-notify — or draft, at incorporation, the tolerance the procedure allows (an approval valid for any price at or above the notified figure, for instance).

Succession opens mid-procedure. Where the clause reaches transmissions by death, the heirs prove their quality and the drafted succession track applies; where it does not, the procedure on the notified sale continues with the estate. The bylaws' succession drafting — heirs already shareholders exempted, others approved — decides most of it.

The fusion case. Where the clause extends to universal transmissions, the drafting should make the merger subject to a suspensive condition of approval and organise the refusal consequences — knowing that after completion the absorbed company no longer exists to take the shares back, so the clause should oblige the issuer to cause the acquisition of the shares (or acquire them itself) as on a refusal, unless it renounces the operation's nullity and accepts the transmission. An unextended clause simply does not reach the merger — the intuitu personae protection stops where the drafting stopped.

The disappointed buyer. A refused transferee has no seat in the procedure: the clause protects the company and its shareholders, and the case law restricts who may invoke even the nullity regime. The buyer's remedies, if any, live in the SPA's conditions — which is why buyer-side counsel drafts the agrément condition precedent with termination and fee language rather than counting on French company law for comfort.

Frequently asked questions about the SAS share-sale approval procedure

This article is for general information only and states French law as published in the sources available at the date shown above. It does not constitute legal advice. Every approval procedure turns on its bylaws; always seek qualified legal advice before notifying, voting, refusing or closing under an agrément clause in a French company.