Asset deal vs. share deal in small market M&A transactions: key considerations for structuring wisely
In the field of small market M&A transactions, the choice between structuring a transaction as a transfer of assets or as a sale of shares
During a general meeting of a limited liability company, disagreements arose among the shareholders as to the ownership of shares in the company. The chairman did not comply with the obligation to draw up the attendance list correctly, omitting the percentage of share capital represented by each shareholder. This resulted in the failure to proclaim the results of the voting on the items on the agenda, including the annual accounts.
A shareholder filed a lawsuit challenging the adopted resolutions, although the Commercial Court declared that there was no object of challenge, as the resolutions had not been formalised. The Provincial Court, after analysing the appeal filed, focused on determining whether the lack of proclamation of the results affected the validity of the corporate resolutions.
Article 97.1.7 of the Mercantile Register Regulations (RRM) requires that the minutes of general meetings include the results of the votes, indicating the majorities obtained. This obligation is reinforced when the minutes are notarised, and must reflect the chairman’s proclamation of the results (Art. 102.1.4 RRM).
The Supreme Court has pointed out that company agreements are not perfected until the results of the vote are proclaimed. However, the Audiencia qualified this interpretation, holding that the proclamation is not a constitutive requirement of the resolutions. The lack of proclamation, according to this ruling, does not invalidate the resolutions if it can be proved that they were adopted with the necessary majority.
In this case, the Audiencia concluded that the president’s failure to proclaim the results was not arbitrary, but caused by the impossibility to compute the votes. However, the parties did not question the existence of the agreements, and they were therefore considered valid.
In the field of small market M&A transactions, the choice between structuring a transaction as a transfer of assets or as a sale of shares
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