Transmision participaciones sociedad limitada
Capital companies law
One of these differences lies in the form of transfer of these securities representing the capital of the company. While in corporations, the transfer of shares is carried out freely without the consent of the rest of the partners, in LLCs the partner who wants to sell his shares must take into account a series of conditions before carrying out the transfer.
In this way, the owners of the shares can be identified at all times by the rest of the partners, while in corporations this does not have to be the case, as there may be thousands of shareholders, unrelated to each other, who own the company.
Therefore, if one of the partners intends to sell his shares in a limited liability company, he must be aware of the requirements and limitations established in the Capital Companies Law in relation to the transfer of these shares.
Unless otherwise provided in the bylaws, the voluntary transfer of shares between partners will be free, as well as those made in favor of the partner’s spouse, ascendant or descendant or in favor of companies belonging to the same group as the transferor. Consequently, it will not be necessary to obtain the approval of the Shareholders’ Meeting, and the transaction must be carried out directly at the notary’s office.
In all other cases, the transfer is subject to the rules and limitations established in the bylaws and, in the absence thereof, those established in the LSC, and there is a preferential right of acquisition by the remaining shareholders.
The Capital Companies Law does not allow the bylaws to prohibit the transfer of shares or to establish restrictions to that effect. However, they may do so in certain specific cases:
Steps to carry out the sale of a corporation
Unless the articles of association of the company provide otherwise, the voluntary transfer of shares by inter vivos acts between shareholders is free, as well as the transfer in favor of the spouse, ascendant or descendant of the shareholder or in favor of companies belonging to the same group as the transferor.
The transfer is subject to the consent of the company, which is expressed by means of a resolution of the General Meeting, after inclusion of the matter on the agenda, adopted by the ordinary majority established by law.
The company can only refuse consent if it informs the transferor of the shares, through a notary public, of the identity of one or more shareholders or third parties acquiring all the shares.
The partners attending the general meeting have preference for the acquisition, if there are several partners interested in acquiring, the shares will be distributed among all of them pro rata to their participation in the capital stock.
One of the most problematic aspects of a company is the transfer of shares. Probably the most important thing of a company, limited or public limited company, are its shares and stocks. In the case of a limited liability company, they will be participations and in the case of a joint stock 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.