Accordion operation in companies
The accordion operation. Give yourself a new chance
Every business venture is a bet that can be successful or, on the other hand, can mean an accumulation of losses that leads to its abandonment and consequent dissolution.
It is true that the existence of losses may have a structural reason, because the business is not viable or, on the other hand, it may be temporary because the business has a certain path in the long term
Legislation must have the purpose of being able to refloat businesses that find themselves in this current situation of losses and, in this sense, one of the financial-accounting measures that allow the Law on Capital Companies (arts. 343-345) is known as the “accordion operation”.
What is the Accordion Operation in companies
Let’s get into the situation. A company has accumulated losses of 100, which means that its net worth is less than 50% of the share capital (which is 180).
The adoption of an accordion operation supposes a reduction of capital that compensates said losses to, simultaneously, increase capital above the legal minimum required
In this way, the “resurrection” of the company through the entry of new capital allows it to have another opportunity to achieve its success when it comes to achieving its corporate purpose.
Requirements to adopt an Accordion Operation
For this measure to be adopted legally and unassailable, 3 requirements must be met:
The reduction and increase of the share capital must be adopted by the General Meeting simultaneously. The share capital cannot be reduced so that, some time later, the entry of new partners to contribute new capital takes place.
That is not possible, because that “ghost” company (without share capital) would not have legal and financial support to act in the market. Thus, before adopting this measure, the company must be clear about who or who is going to contribute this new capital and in what amount so that the General Meeting can vote and, where appropriate, adopt this decision as soon as possible. important for the future of the company.
Given the importance and scope of this operation, being a legal and financial mechanism that avoids the mandatory liquidation of a company that is in the process of dissolution , its approach to the General Meeting by the administrative bodies must be totally transparent.
Thus, although the law does not expressly require it, an audit report is recommendedthat clearly indicates the financial situation of the company on the date of the call
In this, the proposal for this measure must be indicated, with the utmost clarity, providing the necessary documentation to the partners so that they vote with the greatest possible knowledge.
In the same way, it is necessary that in the adoption of the agreement the pre-emptive right of the old partners is respected, although their resignation is usually a common practice, complying with the requirement of the new ones partners.
An accordion operation represents a change within the social structure of the company. Thus, the new partners will have an important block of shares that even entails the real power of decision within the management bodies.
For this reason, former partners are affected by the capital reduction which makes their shares worth much less in their new “status< /em>” of the social mass of the company after the entry of new partners with new capital.
For this reason, there is a temptation to be a measure used precisely to reduce the ability of influence on the part of former partners whose shareholding package resulting would be significantly lower.
Therefore, it is required that there be considerable losses (more than half of the share capital) for an accordion operation to be adopted, being challenged by void the resolution adopted by the General Meeting in this regard when this prior financial situation does not exist (Supreme Court Judgment of November 9, 2007).
In short, making use of the accordion operation is giving a new opportunity to a company confident that its business has a future and what it really needs is an injection of capital and an improved and different management that the new partners will provide.