Purchase and sale of company shares
The following is the Buying and selling of company shares, an issue that worries partners who want to get rid of all or part of their share in a company , and they want to know the limitations that the law imposes on them. In the same way, this study may be of interest to those who intend to acquire shares or participations of other partners of a limited company or of a public limited company.
The acquisition of shares or participations can mean the increase in the share that a partner has over a company, or also the entry into the shareholding quota of the company whose shares are acquired. The greater the percentage that one owns, the greater his capacity and influence in the management of the company and in decision-making.
Since decisions within the company are adopted by majority, acquiring a percentage greater than 50% of the shares, real control over the company is achieved.
We will therefore analyze the regime for the transfer of shares or participations, their limitations, the pre-emptive right of acquisition, the transfer by title other than the Purchase and sale of company shares< /strong> (for example, by donation) or the purchase of the shares by the company itself.
Regime of transmission inter vivos
The regulations applicable to commercial companies establish a strict regime for the regulation of purchase and sale of shares or company shares by partners, up to the point that article 108 of the Law on Capital Companies prohibits the bylaws from regulating the free disposal of shares.
The reason is to guarantee the law so as not to harm the rights of the other holders of shares, allowing all the partners to have the right to acquire the shares for sale.
In the absence of such regulation in the bylaws, the voluntary transfer of company shares by acts inter vivos is governed by a set of rules whose compliance is mandatory. Failure to comply with any of them implies the ineffectiveness of the transmissions before the company.
As a first limitation, art. 34 LSC prohibits the transfer of shares and participations until the company is registered in the Mercantile Registry. If the shares subject to transfer result from a capital increase process, the same prohibition will apply as long as the increase has not been registered in the Mercantile Registry.
By legal imperative, all transfers must be documented in a public deed. The acquirer will then be able to exercise all the rights, equally to the rest of the partners, from the moment the company becomes aware of the acquisition.
Different limitations are distinguished depending on the identity of the acquirer. Thus, unless the statutes provide otherwise, the transfer will be free between those who already grant the status of partner, in favor of the spouse, ascendants or descendants of the partner, or in favor of other companies belonging to the same business group of the transferring company.< /p>
However, in all other cases, the partner who intends to dispose of his shares must notify the company, informing of the identity of the acquirer, the price and other conditions of sale. The company may adopt in a general meeting the agreement not to consent to the sale, in which case it must notify the transferor by notary of the identity of one or more partners or third parties who acquire all the shares.
Given account of the various modifications to the applicable regulations regarding the limitations of the sale, the regime for the transfer of company shares will be in force on the date on which the partner would have communicated to the company the purpose of transmitting them.
Regimen of transmission mortis causa
Art. 110 of the LSC provides that the heirs of the deceased partner acquire the status of partners through hereditary succession. However, this same article allows the company to modify this regime in the bylaws, establishing a right in favor of the rest of the partners or even in favor of the company itself, for the preferential adjudication of the shares of the deceased partner.
In this type of case, a conflict may arise between the heirs and the partners who exercise their right of preferential acquisition, in relation to the determination of the price that the purchasers must pay to the heirs. The law speaks of the “reasonable value they had on the day of the partner’s death“. In this sense, it is convenient to distinguish, to avoid confusion, the “book value” that the company itself assigns to the shares in its accounting, from the “fair value” consisting of the real market price that these shares had on the date of death.< /p>
Pre-emptive right
Any of the other partners of the entity has the right of first refusal on the purchase of the shares put up for sale, totally or partially, and if they concur with other partners, their right will be distributed among those interested in their acquisition in proportion to the shares that each one holds (art. 107 LSC 2.c)
In short, any decision to transfer the shares to a person outside the company must be submitted to the General Shareholders’ Meeting, in which any of the Other partners can exercise their right of pre-emptive acquisition of all or part of the shares put up for sale.
The shareholder who exercises this preferential right will do so for the same amount set as the sale price of the shares and complying with the rest of the conditions communicated by the acquirer to the company. Any postponement proposed in the proposal submitted to the company must be guaranteed by a credit institution.
Once the company communicates to the seller or sellers the identity of the person or persons who are going to acquire them in exercise of their preferential right, “ the public transmission document within a month” (art. 107 LSC 2.e)
The decision of a partner to transfer their shares to a person outside the company, if it is not assumed by any of the other partners in exercise of their preferential right, or the Board General does not communicate the identity of the person interested in its acquisition, it will allow the former to transfer their shares to the proposed acquirer within three months (art. 107 LSC 2.f)
Compraventa de participaciones sociales por título diferente
La posibilidad de transmitir las acciones mediante un título oneroso distinto de la compraventa (permuta, aportación, etc.) o de forma gratuita (donación), tiene su especificidad en la ley, a fin de evitar discrepancias en cuanto al precio de las mismas, que el artículo 107 2.d) fija en los siguientes términos:
“En los casos en que la transmisión proyectada fuera a título oneroso distinto de la compraventa o a título gratuito, el precio de adquisición será el fijado de común acuerdo por las partes y, en su defecto, el valor razonable de las participaciones el día en que se hubiera comunicado a la sociedad el propósito de transmitir. Se entenderá por valor razonable el que determine un experto independiente, distinto al auditor de la sociedad, designado a tal efecto por los administradores de ésta.”
Es obligada la intervención de un experto independiente nombrado por el Registrador Mercantil en los casos de aportación a sociedad anónima o comanditaria por acciones, a fin de que emita informe para fijar el valor real de las participaciones puestas en venta.
Acquisition by the company itself
The so-called derivative acquisition consists of the possibility that the company itself acquires the shares for sale. The company would then be acquiring its own shares. Article 146 LSC regulates this option in a restrictive manner, imposing the following conditions:
- That the purchase of shares has been expressly authorized by the general meeting through a resolution adopted for that purpose.
- That as a consequence of the operation, the net worth does not fall below the share capital plus the unavailable reserves.
- That the nominal value of the shares owned by the company never exceed 20 percent of the total.
José Luis Casajuana Ortiz
Partner at J. L. Casajuana and head of the international area
09/21/2016
