- By Daniel SOT
Understanding that a limited liability company (SL or Sociedad de Responsabilidad LImitada in Spain) is one of a closed company type, there are certain limitations for the sale of its shares, and that the limited liability companies are characterized, unlike the Stock Corporations (Sociedad Anonima in Spain), in companies with few partners, all of them known, and in which the personal aspects of them. Therefore, it is intended with the existing regulation, to avoid that strangers to the other partners, can enter be part of the company or even manage it and therefore, it is granted to the other partners of the company a right of preferential acquisition.
1.- Review the bylaws , which will prevail over any other legal standard. In these bylaws, accessible through the Mercantile Registry, the steps to be carried out in order to sell the participations to someone who is interested in acquiring them will be indicated. It must be borne in mind, however, that if the statute rule allows free transfer of shares to third parties, it should be considered a null rule, as established in art. 108 of the Capital Companies Law. Unless a statutory amendment has been made, the bylaws may be found in the deed of incorporation of the limited liability company, and a copy may also be obtained from the Mercantile Registry.
2.- In the event that you want to sell the shares to another partner, or to your spouse, ascendants, descendant or companies belonging to the same group of companies of the transferring partner, unless the bylaws indicate otherwise, it will be free and as a consequence, the approval in the Members' Meeting will not be necessary, and the notary will directly to approve the operation.
3.- In the case of subjects other than those previously indicated, or in the absence of a statute regulating the transfer or case that the statute itself refers to the law, according to Article 107 of the LSC, the partner that intends to transmit your participation it must be communicated in writing to the administrators. In this communication you must state the number, characteristics of the shares you wish to transfer, the identity of the purchaser and the price and other conditions of the transfer, including the form of payment (deferred payment, cash, etc.).
4.- Once the above is verified, the administrator will convene a General Meeting , debating the operation within one of the fixed agenda items. The board, by ordinary majority, may give consent to the sale. The company may only refuse to consent if it informs the transferring partner, through notarial channels, of the identity of one or more partners or third parties that acquire all the shares.
No communication to the transferring partner will be necessary if you attended the general meeting where these agreements were adopted. The partners who attended in person or represented the general meeting will have preference for the acquisition. If there are several partners interested in acquiring, the shares will be distributed amongst all of them in proportion to their participation in the share capital. In addition, the general meeting may agree that it is the company itself that acquires the shares that no member or third party accepted by the Board wishes to acquire, in accordance with the provisions of the Article 140 of the LSC. If a company partner, the company itself or a third party is the one who wants to exercise preference over them, the transaction must be carried out within a maximum period of one month from the date of communication by the company of the identity of the purchaser or acquirers.
5.- If the foregoing does not concur, either in the manner or periods indicated, or the company informs it that no one is interested in purchasing its shares, the shareholder may transfer the shares under the conditions communicated to the company (point 2.-) to the third party with whom it has agreed, provided that at least three months have elapsed since it had been notified of its intention to transmit without the company having communicated the identity of the purchaser or purchasers.
As it is to see in the previous regulation, the law in this type of society gives a very specific regulation -the intention is that a stranger can never take control of society, always favouring the other partners, or like-minded and trustworthy people to them who can acquire social shares. Hence, it will be extremely important if we intend to sell our social holdings, in following the previous steps since, if not done, the nullity of the operation could be urged and therefore, the sale would be deemed not made.
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