Share Transfer Restrictions and Corporate Purpose in Spanish Limited Liability Companies (SL)
Assumption 6
Three partners decide to form a corporation with limited liability (SL) with an amount of share capital of €50,000. They decide to issue equity to cover that amount. The writing which contains the requirements for registration is taken to register and enroll. But after two years of functioning of the company and not having planned anything in the statutes, one partner transfers his shares to a brother, another to a spouse, and the third partner to a friend. None of them have previously informed the Company either before or since. The three partners in the articles of association appointed a tax advisor who had nothing to do with the company as administrator. The Board convened, with the administrator, partners in the first three months of operation of the company. In the articles of association, the objects were not specified, nor the will or intention to form a limited liability company.
1) Questioning the broadcasts? Are all, anywhere? What?
Article 29. Régime in the voluntary transfer inter vivos acts.
- Salvo otherwise provided in the statutes, the voluntary holdings by acts inter vivos between partners will be free, as well as performed for the spouse, ascendant or descendant of the partner or to companies belonging to the same group as the transferor. In other cases, the transfer is subject to the rules and limitations established by the statutes and, failing those established in this Law.
- In the absence of statutory regulation, the shares transferred by acts inter vivos shall be governed by the following rules:
- The member who proposes to transfer his participation or shares must communicate it to the administrators, noting the number and characteristics of units that are intended to be conveyed, the identity of the purchaser, and the price and other terms of the transmission.
- The transmission will stay subject to the consent of the company, which is expressed by resolution of the General Board, after inclusion of the matter in its agenda, adopted by an ordinary majority established by the Law.
- The company may refuse consent only if the transmitter communicates, through a notary, the identity of one or more partners or third parties acquiring all the shares. It will not be necessary to communicate to the transferor if he attended the General Meeting which adopted such agreements. Members attending the Annual General Meeting will take precedence for the acquisition. If there are several concurrent partners interested in purchasing, the shares will be distributed among them in proportion to their participation in the capital.
Where it cannot disclose the identity of one or more partners or third-party purchasers of all the shares, the Board may agree that the company itself is acquiring the shares that any partner or third party accepted by the Board wishes to acquire, as provided in Article 40.
The price of the shares, the form of payment, and other terms of the transaction will be agreed upon and notified to the company by the transferor partner. If payment of all or part of the price were delayed in the transmission project, for the purchase of shares, the prerequisite shall be credit guaranteeing payment of the deferred price.
In cases where transmission was proposed for consideration other than the sale or free of charge, the purchase price will be determined by mutual agreement of the parties and, in effect, the fair value of shares on which the matter was intended to be conveyed on the day the company was informed. The term “fair value” is determined by an auditor other than the auditor of the company, appointed for that purpose by the managers.
In cases of contributory corporations or limited by shares, the actual value of the shares means the value resulting from the report by the independent expert appointed by the Commercial Register.
The public document transmission will be distributed within one month from the communication by the company of the identity of the purchaser or purchasers.
A member may transfer the shares on the terms notified to the company when three months have elapsed since he had made known its intention to pass it without the company having communicated the identity of the purchaser or purchasers.
Article 30. Articles of Association prohibited.
- Statutory clauses that render virtually free the will of the transmission of shares as acts inter vivos are void.
- The articles of association by which the partner that provides all or part of its shares is obliged to transmit a different number than those offered will be void.
- Clauses prohibiting the voluntary transmission of shares by acts inter vivos are only valid if the rules provide the member’s “right to secede from the company at any time.” The inclusion of these clauses in the statutes requires the consent of all partners.
- Notwithstanding the provisions in the preceding paragraph, the statutes may prohibit the voluntary transfer of shares by acts inter vivos, or exercise the right of separation, for a period not exceeding five years from the incorporation, or for shares from a capital increase, after granting the public deed of execution.
2) Is it possible in the SL general social objects?
Article 178. Objects.
- The corporate purpose shall be stated in the statutes, determining the activities in it.
- Legal acts necessary for the conduct or development of the activities may not be included in the object.
- In no case shall the carrying out of any other lawful activities of trade or generic terms used in a similar meaning be included as part of its objects.
3. The industrial partners supported SRL?
Industrial partners are not allowed in an SRL. They are capitalist societies where the fundamental element is capital, so professional work is not supported in the concept of social capital.