In the world of M & A, the Global transfer of assets and liabilities is a tool used constantly to give legal form to many operations.
These operations have two facets. In the first place, a legal one, where the framework of action is determined by the law and the Commercial Registrar. The second is a prosecutor. This facet is more insecure due to the permanent risk that the administration considers the “absence of a valid economic reason.”
Let’s have a look at, broadly speaking, the mercantile aspects of the global transfer of assets and liabilities.
Global transfer of assets and liabilities, the concept
The global transfer of assets and liabilities is a legal transaction by which a company transmits all its assets in block.
Thus, the inheritance is transferred by universal succession to one or several assignees in exchange for a consideration, although the consideration may not consist of shares or quotas of the transferee.
The global transfer of assets and liabilities is regulated in articles 85 to 91 of the Structural Modifications Law. Everything that is not included in the aforementioned articles will be governed by what is established for the merger procedure.
Global Transfer: Characteristics
Regarding the characteristics of the Global Transfer of Assets and Liabilities, we should mention the following:
- The transferor must be a commercial company registered with the Mercantile Registry (RM).
- Regarding the fact that the global transfer is made to two or more assignees, the following should be considered: Each part of the asset that is transferred must constitute an economic unit. On this concept, we specifically cite the Supreme Court Judgment 433/2013 of January 3.
It can be possible that the transferor is a company in liquidation, provided that the distribution of its corporate assets has not begun.
The transferee may be a natural or legal person.
The consideration to be received by the transferor company may consist of money or any other good or right. However, actions of the transferee are not admitted.
The direct perception by all the partners considered will determine the extinction of the transferor company. In any case, the consideration received by each member must respect the rules applicable to the settlement fee.
Of the obligations assumed by a transferee that are not fulfilled, they will respond:
Individually to the other assignees. They will only respond to the limit of what they would have received as consideration for the assignment.
The partners of the transferor company (up to the limit of what they would have received as consideration for the transfer).
The transferring company itself (for the entire obligation).
The joint and several liability of the assignees and partners will expire after five years.
Process and phases
The process and phases of the global transfer of assets and liabilities are described very briefly below:
- Drafting of the project of Global Transfer of Assets and Liabilities by the administrative body of the transferor company. The project must include: (i) the business data of the company; (ii) date of accounting effects of the assignment; (iii) information on the valuation of assets and liabilities; (iv) considerations to be received by the partners; (v) and the consequences of the assignment on employment.
- Drafting and making available the documents that will serve as the basis for the approval of the global transfer. This phase guarantees the right to information of the partners of the transferor company.
- Approval by the management body of the company of the request for deposit in the RM of the assignment project. You must also approve the balance of transfer of assets and liabilities.
The Structural Modifications Law does not mention the need for a balance sheet of global transfer of assets and liabilities. However, the majority jurisprudence understands that said balance is necessary.
- Presentation of the Project of the Assignor Company in the Commercial Registry. In this regard, the rules relating to the merger apply. This is because there are registries that understand that the said project must be published equally in the BORME.
- Subscription and approval of the Administrators’ Report on the Assignment Project. In the assignment there is no Independent Expert Report.
- Call for the General Meeting of Shareholders of the Assignor to approve the Assignment transaction.
- Holding of the General Shareholders’ Meeting that will approve the assignment.
- Month of opposition of creditors.
- Granting of public deed and presentation of same in the Mercantile Registry for registration.
The global transfer of assets and liabilities is one of the operations framed within the Law of Structural Modifications. It is an operation commonly used in the field of business (M & A).
Among its drawbacks is the insecurity due to the risk that the Administration considers the “absence of a valid economic reason”.