Transmision acciones sociedad anonima
how to sell a corporation
The general principle is that of freedom of transfer of shares, which is one of the principles of the company, but the legislator admits the possibility of establishing restrictions in the bylaws.
It is possible that the bylaws may have established restrictions to this freedom, and the whole mechanism or way of proceeding must be regulated: notification to the company, notification to the partners, term, price, etc. General rules
The bylaws may provide that the actual value be determined by the auditor of the company’s accounts and, if the company does not have one, by the auditor appointed, at the request of any interested party, by the Mercantile Registrar of the company’s registered office (art. 123 RRM). The Resolution of December 1, 2003 of the DGRN [j 2] admitted that the acquisition price, in case of disagreement, is that which corresponds to the real value of the shares determined by the Auditor of the company or, if the company is not obliged to verify the annual accounts, by the Auditor appointed by the Mercantile Registrar (the Registrar understood that the price could not be fixed by the auditor of the company).
how to leave a company
One of the most problematic aspects of a company is the transfer of shares. Probably the most important thing of a company, limited or anonymous, are its participations and shares. In the case of a limited company, they will be participations and in the case of a public limited company they will be shares. The most important thing is to bear in mind that we are in the framework of private law, which implies that the will of the contracting parties prevails. Therefore, in order to transfer participations or shares, the most important thing is that the seller, the buyer and the partners agree. This is particularly relevant in the context of a limited partnership.
It is therefore important to take into account the provisions of the articles of association. This is the basic limit. It is possible that the articles of association may stipulate that the transfer is between partners or between partners and their family members.
To sell shares the partner must communicate it in writing to the administrators, exposing the condition of the sale. It must be approved by the General Meeting by ordinary majority. The meeting can oppose, but to do so it must activate the mechanism of preferential subscription that the same partners have. In short, it must be taken into account that in the limited partnership the already existing partners have a preferential right of purchase over an outside third party.
The transfer of shares can take place inter vivos or mortis causa, or by forced transfer, but above all, in public limited companies the principle of free transferability of shares applies, so that the holder will be able to sell them as he wishes, to whomever he wishes and in whatever way he wishes. Because of this freedom, the public limited company is called an open company, or open-door company, which is not the case with a limited liability company.
An important fact to take into account is that according to art. 34 LSC, until the registration of the company in the Mercantile Registry, the company’s shares may not be transferred, nor may the shares be delivered or transferred. Beyond the principle of free transfer of shares, it is possible that a series of restrictions to this freedom may be imposed by the bylaws, but with some limits that are included in the LSC:
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a) Bylaws: can be restricted by the bylaws, although it is understood that, due to the open nature of corporations, these clauses must be interpreted restrictively (article 123 LSC and 123 RRM). Shares may be issued in bearer form if the bylaws do not provide for any restriction on transferability; otherwise, they must be registered shares. Restrictions must state which registered shares are affected and the content of the restriction. The following restrictions are admissible:
(b) Limitations agreed between partners (reserved covenants): it is valid between them but not vis-à-vis the company (Article 29 LSC). Therefore, the company will recognize as a shareholder the legitimate holder of the shares who has complied with the statutory formalities without taking into account whether or not the agreements between shareholders regarding the transfer of shares have been respected in the acquisition.