Validity of a clause in the articles of association on the fair value of company shares

The DGSJFP confirms that the articles of association may establish their own procedures for the exercise of the right of pre-emptive acquisition, provided that they comply with legal principles and the corporate interest, while the inclusion of a specific mechanism for the valuation of the shares does not infringe the supplementary regime of article 107.2.d) LSC, since the latter only operates in the absence of regulation in the articles of association.

The registration of a clause in the articles of association regulating the fair value of company shares, in the context of the right of pre-emptive acquisition, has been the subject of legal analysis by the Directorate General for Legal Certainty and Public Faith (RDGSJFP) in its resolution of 11 October 2024.

The incorporation deed of a limited liability company was submitted for registration, but was rejected due to several defects in the bylaws. Among them, a provision establishing a procedure for determining the fair value of the shares in the exercise of the pre-emption right in the event of inter vivos transfers was objected to. According to the clause, the board of directors would appoint, either unanimously or by drawing lots, an independent expert belonging to one of the four main audit firms in Spain, who would carry out the valuation.

The registrar refused registration on the grounds that the clause did not include the possibility for the commercial registrar to appoint the independent expert, as provided for in Article 107.2.d) of the Capital Companies Act (LSC).

Following the challenge to the qualification, the RDGSJFP confirmed that the clause was valid and registrable. The ruling pointed out that article 107.2.d) LSC is supplementary in nature, applying only when the bylaws are insufficient or do not provide for a specific procedure. In this case, the bylaws established a specific mechanism for determining the fair value of the shares, so it was not necessary to resort to the supplementary rule.

The RDGSJFP recalled that article 28 LSC allows companies to design their own valuation criteria, provided that the legal limits and the principles that shape the type of company chosen are respected. This includes the possibility of appointing an independent expert other than the one appointed by the commercial registrar, both in limited companies and in cases of contributions to public limited companies or limited partnerships by shares.