I.- INTRODUCTION
The global transfer of assets and liabilities is becoming, in the current economic climate, which is prompting companies to redesign their operations areas, a useful tool for transferring “financial units” of the same company in exchange for a consideration. Said transfer is regulated by articles 81 to 91 of Law 3/2009 on Structural Modifications (LSM), and is defined as “a corporate operation consisting of a block transmission of all company assets and liabilities to a shareholder or third party, by way of universal transmission, in exchange for a consideration which may not be made up of shares, participations (limited liability company shares) or stakes in the assignee.
II.- STUDY OF THE OPERATION.
In order to carry out an operation of this type, the law-maker has established a series of conditions to be fulfilled by both the assignor and the assignee:
a) Article 81 of the LSM sets forth that the assignor company must be duly registered at the Companies Registry and that there may be one or more assignees, and even allows for the assignees to be shareholders of the very same assignor company.
b) The transmission of all of the company’s net worth is carried out in a block, by way of a universal transmission. Therefore, partial transmission is not allowed, unless each of the assignees receives what the law defines as an “economic unit”.
c) The consideration handed over by the assignee may be money or goods, but not shares, participations (limited liability company shares) or stakes in the assignee.
d) In cases where the consideration is fully received directly by the shareholders, the assignor company may find itself in a situation for liquidation.
This type of operation must always be carried out with maximum transparency, therefore, the law establishes a series of both external and internal mechanisms to protect shareholders, creditors and third parties.
a) Internal mechanisms:
– Global transfer project:
According to article 85 of the LSM, the execution procedure for the transfer is determined by the requirement to prepare a global transfer project, thus providing the basic characteristics of the project to be undertaken.
– Managing Directors Report:
Article 86 of the LSM sets forth the obligation of the Managing Directors of the assignor company to draft a report explaining and justifying the operation in detail.
– Absence of a report from independent experts:
It is interesting to note that the law-maker has not regulated the requisite for a report from independent experts.
– Absence of a balance sheet for the global transfer:
Likewise, the law-maker omits the obligation to provide a specific balance sheet for the global transfer.
– Global transfer agreement:
In accordance with article 87 of the LSM, the transfer project must be agreed by the shareholders’ meeting of the assignor company.
b) External mechanisms:
– Deposit of the transfer project in the Companies Registry in accordance with article 85.2 of the LSM.
– Publication of the global transfer agreement in the Official Bulletin of the Spanish Companies Registry (BORME) and in a newspaper with a large distribution in the province of the registered address of the assignor company.
– Creditors’ right to opposition:
Creditors’ of the assignor or assignee companies may oppose the transfer within the term of one month following the date of the publication of the most recent announcement, under the same conditions and with the same effects provided for in merger operations.
– Once the agreement has been made by the shareholders’ meeting, it must be registered with the Companies Registry.
– Under the mechanisms for the protection of shareholders, creditors’ and third parties, it is possible to object to the global transfer, if the objection is filed before the transfer is registered at the Companies Registry.
– Joint and several responsibility for the non-fulfilment of obligations:
The protection is complemented by the precept penalised by article 91 of the LSM, which sets forth that the obligations acquired by an assignee shall be responded to by the remaining assignees and in some cases, shareholders of the assignor.
III.- CONCLUSIONS
According to the above, we may observe how this corporate operation poses new possibilities for companies in need of restructuring, with a series of protection mechanisms for shareholders, creditors and third parties.
Vilá Abogados
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14th of February 2013
