Guide to Doing Business in Asturias 2024
The main difference between acquiring a part of the share capital of an S.A. or that of an S.L. is the need for notarial intervention, mandatory in the case of an S.L. (although not invalidating the legal transaction in event of a lack of form) and in S.A. necessary only when the corporate articles of incorporation or regulations provide for this (or the parties have agreed to it).
To complete the acquisition, the notary public must be able to access:
In addition, the form D-1A must be submitted electronically – signed electronically by the natural or legal person making the investment, their representative or person authorised for this purpose, counter-signed by the notary public – before the Ministry of Trade, Industry and Tourism (through the electronic office of the Directorate-General of International Trade and Investment) , indicating the protocol number and date of the public document whereby the investment is formalised.
Investment in already established companies grants investors (members) certain rights such as the distribution of dividends which, if not carried out after the fifth year has elapsed since registration with the Registrar of Companies of the company, will entitle the member to withdraw from the company, taking into account the requirements set forth in article 348 bis of the LSC.
In both cases it will be necessary to provide the documentation required by the regulations.
This requires the intervention of a notary public or a Spanish consul located abroad, having to provide the documentation that the regulations require and complying with the requirement of registration with the relevant Land Registry by territory.
Another form of investment: private equity operations (Venture Capital and Private Equity, amongst the various nomenclatures accepted in the industry). It is an activity carried out by specialised entities, which consists of the contribution of financial resources on a temporary basis (3-10 years) in exchange for a stake (it may be either majority or minority) to unlisted companies with high growth potential. This injection of capital is complemented by added value: advice on specific problems, credibility with third parties, professionalisation of management teams, openness to new business approaches, experience in other sectors or markets etc. The purpose of private capital is to contribute to the birth, expansion and development of the company, so that its value increases.
Private capital provides the company, in addition to financial resources, with professionalism, credibility and experience in the design of new value creation strategies. It is capable of aligning the interests of shareholders and managers, developing attractive remuneration and motivation schemes for the latter. When a few years pass by and the company has generated the expected value and is ready to be divested, it organises a sale process which maximises the value of its investment and also that of the other members/shareholders and managers accompanying this type of project.
Through a participatory loan, the lending entity will receive variable interest, which will be determined based on the evolution of the activity of the borrowing company and the criterion to determine said evolution may be: net profit, turnover, total equity or any other freely agreed upon by the contracting parties. Furthermore, fixed interest may be agreed upon regardless of the evolution of the activity, and this instrument will be regarded as net equity for the purposes of the dissolution and liquidation of the company, making it a very useful financing tool which is close to the share capital.
Furthermore, a penalty clause may be agreed in the case of early repayment and, in any case, the borrower may only repay the participatory loan early if said repayment is offset by an increase for the same amount of its own funds and provided that this does not derive from the updating of assets on its balance sheet.