Right of separation due to change in corporate purpose
The Provincial Court (AP) of Madrid considers that the lack of coincidence between the corporate purpose and the activities actually carried out by a company
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In 2020, a public limited company adopted by majority vote a resolution to convert into a limited liability company. In 2023, also by majority resolution, it sought to annul the previous transformation, already filed, on the grounds that, following the first transformation resolution, one of the shareholders exercised his right of separation, which would jeopardize the viability of the company, according to an independent expert’s valuation report.
Following the negative classification of registration made by the Commercial Register of the second resolution, the DGSFP heard the appeal and confirmed the impossibility of registering the second resolution.
The new resolution constitutes a modification and not a reinstatement of the previous situation, which has important material and formal consequences, implying that the company cannot act as if the first resolution had not existed, so that the effects of the new agreement can only be ex nunc, not producing a reinstatement but a modification that will not have retroactive effects in the legal sphere of shareholders and third parties.
Likewise, the adoption of the new resolution must meet the regulatory requirements to produce the effects of transformation into a different type of company, which in this case are (i) the resolution approving the transformation balance sheet; (ii) the independent expert’s report on the non-cash assets; (iii) publication or notification of the transformation resolution; (iv) the identity of the shareholders who exercise their right of separation in a timely manner. In addition, the Mercantile Registry and the DGSJFP point out that the new resolution must comply with the regulatory change that occurred pursuant to Real Decreto-ley 5/2023, de 28 de junio, which repealed the regulations in force for the first agreement (Law 3/2009, of 3 April, on structural modifications of commercial companies).
It is reiterated that a company may rectify, withdraw, repent or renounce a previously adopted resolution, but in this procedure, it must respect the rules in force and may not render ineffective those that have already taken place and effect.
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