Is it possible to ban the sale of shares to prevent the entry of new partners?
In a company, trust between the partners is often a key factor, and in many cases the partners want to restrict the entry of new partners as much as possible by preventing the transfer of shares. To this end, the law must be taken into account. Thus, if the shareholders do not agree anything in the articles of association, the law establishes a free sale regime in favour of specific persons (other shareholders, or the spouse, ascendants and descendants of the selling shareholder).
On the other hand, when the sale is proposed in favour of other persons, there is only a preferential right of acquisition in favour of the remaining shareholders and the company itself (so that the latter, if they want to prevent the entry of third parties, must bear the cost of such acquisition).
If one wants to be more restrictive, e.g. because a lasting connection of the founding shareholders is desirable, additional restrictions on transfer can be included in the articles of association. However, it is not possible to introduce a prohibition of sale without further ado, nor is it possible to establish such restrictive agreements that, in practice, they amount to a disguised prohibition of sale.
Notwithstanding the above, a total prohibition of sale can be established in SLs in two cases:
- Temporary. The articles of association can include a total prohibition of sale during the first five years after incorporation.
- Permanent. It is also possible to totally prohibit the transfer of shares by inter vivos acts (excluding inheritance or forced transfers -for example, by seizure-) provided that the shareholders are granted the right to withdraw from the company at any time. In this case, the formula for calculating the value of the shares should be agreed in the articles of association, as the SL will acquire the shares of the separating partner.
If these restrictions are not included in the articles of association, they can be included at a later date by unanimous agreement of all the partners. However, if a bona fide third party buys before the registration of the agreement in the Commercial Register, the sale will be valid (although the defaulting partner may be held liable).
Our advisors will study your case and inform you of the possibilities for new partners to enter your company and the best way to restrict the sale of shares in your particular company as much as possible.
