This is the notarial document that reflects the agreement to modify any of the elements that make up the corporate bylaws of a company, adopted by the competent body for this purpose, for the purpose of recording this decision in a public deed, a necessary requirement for this modification to have full effect once it has been registered in the Mercantile Registry.
This is a merely informative and non-binding estimate. This estimate is calculated based on two criteria: 1) our knowledge of the Notarial Tariff and 2) our daily experience in the preparation of this type of notarial document. (Royal Decree 1426/1989, November 17, 1989). and 2) our daily experience in the preparation of this type of notarial document. However, any variation (upward or downward) will be duly justified at the time of issuing the final invoice for the notarial service rendered.
As already explained when analyzing the articles of incorporation of capital companies, commercial companies are legal instruments that our legal system has designed to promote and facilitate economic and commercial activities that create wealth and employment for the community, all this through the execution of a contract by which two or more persons undertake to pool money, goods or industry, with the intention of dividing the profits between them, thus creating entities with their own legal personality and with assets separate from those of their partners with which to finance their corporate activity and with which they can respond to the debts and corporate liabilities that they may incur.
The fact is that in today's globalized world, with an economy in continuous transformation, the capital companies that operate in the different markets must constantly adapt their activities and structures to the changes that the market undergoes, which, on many occasions, translate into legal modifications that require an adaptation of their corporate bylaws.
Changes of corporate name to find trade names with greater projection, changes of registered office to adapt to market realities or to protect entities from geopolitical risks (as recently highlighted in the Catalan case), changes of corporate purpose to include new lines of business in the list of corporate activities, changes of the corporate year to adapt to changes in the demand cycles of its consumers, changes in the rules governing the convening of general meetings to adapt them to the irruption of new technologies, changes in the rules governing the way in which the company is managed to adapt it to the personal circumstances of its administrators or in the rules regulating the transfer of its shares or holdings to facilitate or restrict business dealings with them, depending on the interests of the shareholding structure, are some of the most common examples of amendments to bylaws that will require the corresponding legal channel for their approval and subsequent publication, all in the interests of guaranteeing the legal security of the companies themselves and of all the legal and economic operators that participate in the traffic with them.
As can be seen, a multitude of bylaw amendments can be generated in the life of a capital company, all of which will require a legal instrumentation that will be detailed below, so that all interested parties are aware of the particulars thereof, the generic rules that regulate them and the main specific characteristics of each of the aforementioned bylaw amendments.
The generic regulation of the amendment of the bylaws of a capital company can be found in the first place in Articles 285 to 294 of Royal Legislative Decree 1/2010, of July 2, which approves the revised text of the Capital Companies Act (hereinafter referred to as the "Capital Companies Act").
The aforementioned regulation establishes that, reiterating what has already been indicated in Article 160 of the Capital Companies Law, in general, the power to agree on any amendment to the bylaws will correspond to the general meeting (Article 285 of the Capital Companies Law), that is, the body formed by all the shareholders of the capital company, which will adopt the resolutions by the legal or statutory majorities that have been established.
However, as an exception to this general rule, Article 285.2 of the Capital Companies Act confers on the governing body the power to change the registered office of the company within the national territory, unless otherwise provided in the bylaws (which shall only be deemed to exist when the bylaws expressly state that the governing body does not have such power).
Thus, as indicated above, most amendments to the bylaws will require that such resolution be adopted by the general meeting of shareholders. To this end, the administrators or partners making the proposal must draft the full text of the proposed amendment, i.e., they must propose the new wording of the article or articles of the bylaws that they intend to amend, and in the case of a corporation, they must also draft a written report justifying the amendment (Article 286 of the Capital Companies Act).
Once this procedure has been completed, the corresponding general meeting must be called, and the notice of the meeting must clearly state the points to be amended and state the right of all shareholders to examine at the registered office the full text of the proposed amendment and, in the case of corporations, the report thereon, as well as to request the delivery or sending of such documents free of charge (Article 287 of the Capital Companies Act).
Once the day and time for the general meeting have arrived, the shareholders of the company shall deliberate and agree on the resolution to amend the bylaws, for whose approval, as required by Article 288 of the Capital Companies Act, shall be required:
Finally, once the resolution has been adopted at the general meeting by the majorities and with the formal requirements indicated above, it will be necessary to record the resolution in a public deed, which must be registered in the corresponding Mercantile Registry.
In any case, it must also be taken into account that if these amendments to the bylaws imply new obligations for the shareholders, they must be adopted with the consent of the affected parties (Article 291 of the Capital Companies Act) and when they affect individual rights of shareholders, they must be adopted with the requirements of Articles 292 of the Capital Companies Act for limited liability companies (which requires the consent of the affected parties) and 293 for public limited companies (see the same for details).
Regarding this particular modification, it should be noted that there is a specific section on this website that is analyzed in detail. However, a brief summary of the most relevant issues to be taken into account is set out below.
Therefore, in accordance with Article 23 of the Capital Companies Law, the corporate bylaws, which are the internal rules of the company governing its operation, must necessarily detail the corporate purpose of the company, determining the activities that comprise it, i.e., all those economic activities that the company intends to carry out.
Along the same lines, Article 178 of the Mercantile Registry Regulations establishes, in addition to the above, that the corporate purpose may not include the legal acts necessary for the performance or development of the activities in question, and that under no circumstances may the performance of any lawful commercial activities be included as part of the corporate purpose, nor may generic expressions of analogous meaning be used.
In practice, there is considerable conflict in the definition of the corporate purpose and the negative qualifications by the Mercantile Registrars, so that the doctrine of the General Directorate of Legal Security and Public Faith must be taken into account, which, generically and without going into greater detail here, has established that it must be defined with sufficient specificity (resolution of March 23, 2011), without encroaching on the corporate objects of special types of companies other than limited liability companies or public limited companies, as may be the case with financial credit establishments (resolution of October 24, 2000), insurance agencies or brokerage firms (resolution of January 25, 2012) or the activities of professional companies (resolution of March 16, 2013).
Likewise, in the modification of the corporate purpose of corporations, it is necessary to take into account that according to the requirements of Article 163 of the Mercantile Registry Regulations, it will be necessary to accredit in the deed that is granted the publication of an announcement in a newspaper of wide circulation in the province in question.
Regarding this particular modification, it should be noted that there is a specific section on this website that is analyzed in detail. However, a brief summary of the most relevant issues to be taken into account is set out below.
Thus, in accordance with Article 9 of the Capital Companies Law, capital companies shall establish their domicile within Spanish territory at the place where their effective administrative and management center is located, or where their principal place of business or operation is located.
As can be seen, the legislator requires all companies to formally establish a specific physical space in which to locate the company, which must be located in the place where the company has focused the core of its economic and/or productive activity, all with the aim of establishing a real physical link of the company in a specific place, so that all market operators can locate it and locate it in a fast, effective and undoubted way.
As regards the power to adopt the resolution to change the registered office, as already mentioned, the Capital Companies Act confers on the administrative body the power to change the registered office of the company within the national territory, unless otherwise provided for in the bylaws, which will only be deemed to exist when the bylaws expressly state that the administrative body does not have such power.
Thus, breaking the general rule according to which any amendment to the bylaws must be approved by the general meeting, in this case, most companies will be able to change their registered office within the national territory by the mere decision of the administrative body, which gives this type of decision a much greater degree of agility and speed than in the other cases of amendments to the bylaws.
Finally, it is necessary to take into account that this modification of the registered office of the commercial companies may also entail changes in the tax domicile of the company, which in accordance with Article 48 of Law 58/2003, of December 17, 2003, General Tax Law, will be the place of location of the taxpayer in its relations with the Tax Administration, which must be established for legal entities at their registered office, provided that their administrative management and the management of their business is effectively centralized there.
In any case, interested parties should bear in mind that the aforementioned tax provision establishes the obligation for all taxpayers to notify the tax authorities of a change of tax domicile, which is understood to be the case on most occasions in which the registered office of a capital company is changed.
Regarding this particular modification, it should be noted that there is a specific section on this website that is analyzed in detail. However, a brief summary of the most relevant issues to be taken into account is set out below.
Thus, as is known to all, capital companies must present a legal name, which is technically known as corporate name, that is, a name or identification that allows them to be identified, singled out and distinguished from the rest of the companies operating in the legal-commercial traffic.
With regard to the legal regulation of the corporate name of capital companies, it is necessary first of all to take into account the following:
Firstly, and in accordance with Article 6 of the Capital Companies Law, the name of a limited liability company must necessarily include the words "Sociedad de Responsabilidad Limitada", "Sociedad Limitada" or their abbreviations "S.R.L." or "S.L.", while the name of a public limited company must necessarily include the words "Sociedad Anónima" or its abbreviation "S.A.".
Secondly, Article 7 of the Capital Companies Law establishes that the corporate name of capital companies must be unique, since they may not adopt a name identical to that of any other pre-existing company. In this respect, Articles 407 and 408 of the Mercantile Registry Regulations have developed this prohibition, establishing that companies whose name is identical to any of those included in the name section of the Central Mercantile Registry (referred to below) may not be registered in the Mercantile Registry, This will be understood to exist not only in cases of total coincidence, but also when the same words are used in a different order, gender or number, when the same words are used with the addition or suppression of generic or accessory terms, or when different words are used that have the same expression or a notorious phonetic similarity.
In any case, interested parties should bear in mind that this is an area that has traditionally generated a lot of conflict and litigation between companies, both in terms of administrative appeals at the registry level and even in court, in which companies with similar names litigate to prevent one or the other from adopting the allegedly coinciding name.
Having made this introduction, as is well known, any company that is incorporated must have a corporate name that identifies it and distinguishes it from all the others. However, companies, once incorporated, in order to adapt to the changing reality of the market, to a new orientation of their activity or even to differentiate themselves from other companies with similar names, may need to modify their corporate name, for which purpose they must execute the appropriate deed of change of corporate name, in which, in a formal and solemn manner, they will certify this change of nomenclature that from that moment on will identify them in the market and for their relations with the Public Administrations.
In this area, it will be necessary to take into account articles 409 to 419 of the Mercantile Registry Regulations, relating to the denomination section, which will be in charge of accepting or rejecting the denomination proposals submitted by the companies.
Thus, when a company wishes to change its name, it must file an application with the Central Mercantile Registry indicating the new name it wishes to assign to the company, to which the Registrar must issue a certification within three days, stating exclusively whether or not the name is registered and, if so, the legal precepts on which it bases its unfavorable qualification.
Once the interested parties have obtained the negative certification (i.e., that there is no other company with the new name chosen), which will be valid for a period of three months, it must be presented at the act of execution of the deed of change of company name to be attached to it as proof of this, taking into account in any case that if the proposed new name is not registered, it will be reserved for a period of 6 months.
The fiscal year of the capital companies is the period of time that divides the activity of the companies into periods. In our legal system, the corporate year of commercial companies lasts for one calendar year and, in accordance with Article 26 of the Capital Companies Law, in the absence of a provision in the bylaws (i.e., if the company's bylaws are silent on the matter), the corporate year will be understood to end on December 31 of each year.
In most commercial companies, the fiscal year effectively ends on December thirty-first of each year. However, in certain companies that mainly carry out seasonal activities, i.e. most of their commercial activity or sales are carried out during a specific period of the year, it is usual, and even advisable, for their fiscal year to end at the time when such seasonal activity concludes, in order to contribute to reflecting a more accurate and true picture of the evolution of the company's activity, compacting the company's results into periods that reflect the actual productive and commercial activity.
<ejemplo>“Por ejemplo, ello puede ser recomendable en una empresa que fabrica helados, pues la mayor parte de su facturación se concentrará en verano, de modo que si su ejercicio social finaliza el 30 de septiembre, se podrá reflejar de forma más adecuada cómo ha sido el año a nivel de ventas”.<ejemplo>
Therefore, when a company finds itself in the situation described above, it may agree to modify its corporate year in order to adapt it to the reality of its productive activity. In these cases, the corresponding resolution of the general meeting will be necessary (Article 160 of the Capital Companies Act), in accordance with this modification, for which it will be necessary to provide the corresponding certificate of the corporate resolutions under the terms of Article 109 of the Mercantile Registry Regulations, i.e., issued by the Secretary or the Deputy Secretary of the board of directors, with the approval of the Chairman or, if applicable, the Vice Chairman of the body, by the sole director or any of the joint directors or by the directors who have the power of joint representation.
A formal issue, although essential in the operation of capital companies, is the way in which the general meetings are to be called. As is well known, the general meetings of capital companies are the representative body of the company's shareholders, i.e. its owners, who are responsible for adopting the most important decisions for the company, such as, among others, the approval of its accounts, increases or reductions in capital stock, the dissolution of the company, and the appointment and removal of directors, among others.
For the adoption of such resolutions, the general meeting must have a sufficient quorum, both in terms of the number of attendees and in terms of the adoption of the resolutions and the majorities that are legally or statutorily required. As it is logical and can be intuited, the call of the meetings is an extremely sensitive issue, since all the partners must have the right to know in a sure, certain and indubitable way the call of a meeting, to be able to attend or not to attend it and to exercise in the same all the rights that the law or the statutes of the company can come to recognize him.
Compliance with this formality is a fact of vital importance, since its non-observance will cause the denial of the registration of the deed that has been granted, as it results, among many others, from the Resolution of the General Directorate of Legal Security and Public Faith of May 23, 2014.
In order to ensure that this call is made in an adequate manner, guaranteeing the rights of all the shareholders, the legislator has dedicated a specific precept to the manner in which these meetings must be held, specifically establishing in Article 173 that the general meetings shall be called:
In this matter, both the legislator and the General Directorate of Legal Security and Public Faith itself have tried to direct the drafting of the law and its interpretation towards a more agile and simple system that simplifies these requirements of form in the calling of general meetings, in order to facilitate that the decisions of the companies can be adopted in a faster way, Thus favoring the speedy implementation of the resolutions and decisions adopted therein, to such an extent that today the law allows the possibility of imposing on the company the telematic management of a system of alerts to the shareholders of the notices of call inserted on the company's website.
Thus, for all those older capital companies that present a more rigid, inoperative and economically costly system of convocation (such as the convocation by means of announcements in the BORME and in newspapers), the modification of their bylaws to introduce electronic convocation systems, much more agile and economical, can be of great interest and help to contribute to the dynamism and good functioning of the company and its governing bodies.
In this matter it is necessary to point out that the law, at present, provides for the possibility of attending general meetings by telematic means in the case of corporations, which, undoubtedly, taking into account the current context of pandemic and the subsequent social distancing that this imposes, can be very interesting.
For this to be possible, this option must be expressly provided for in the company's bylaws, as can be seen in article 182 of the Capital Companies Act, so that if your company does not have this possibility, modifying its bylaws to include it can be very interesting, since a telematic meeting can undoubtedly be much more agile and economical for the company.
Regarding this particular modification, it should be noted that there is a specific section on this website that is analyzed in detail. However, a brief summary of the most relevant issues to be taken into account is set out below.
Having said this, it is necessary to indicate that the directors of the company, in accordance with Article 209 of the Capital Companies Act, are responsible for the management and representation of the company, in the terms established by law. In practice, the company's administrators will be the persons in charge of managing the company on a day-to-day basis, adopting the commercial, financial and human capital management decisions that are most appropriate at any given time, all in the interest of maximizing the company's resources and achieving the most favorable results.
In this task, which is so transcendental for the future of the company, beyond the people who at any given time carry out this responsibility, the design and structure adopted by the administrative body at any given time is undoubtedly of great importance, since depending on its structure, strategic decision-making for the company will take place in one way or another.
Of all the possibilities that the legal system has provided for, in accordance with Article 210 of the Capital Companies Law, the administration thereof may be entrusted to a sole administrator, to several administrators acting jointly or severally or to a board of directors, and it should also be indicated that:
As can be seen, each of these systems has its obvious advantages and disadvantages. For example, it is evident that with a sole administrator the company will be able to adopt decisions in a much faster and more agile way, while when it is a board of directors the adoption of the decisions will be much more complex, although these can be more accurate because they have been adopted with the experience and knowledge of a plurality of people.
As is logical, capital companies, in the course of their development, depending on the economic cycle, their economic-financial situation, the evolution of their turnover or the needs of reorientation of their activity, may need different ways of organizing their administration, Thus, in order to modify the administrative body provided for in the articles of association, it will be necessary to execute the corresponding deed of amendment of the articles of association, in which the shareholders agree to organize the company with one type of body or another, among the different options offered by the law described above, in order to adapt their needs to the reality of the company.
Another of the major issues that the partners of a capital company may consider is the modification of their company's bylaws to establish rules regulating the transfer of shares or participations among the owners of the company's capital stock.
These rules are undoubtedly of great importance, since the composition of a company's capital stock can have a decisive influence on the direction and course of the company. Creating a company with initial partners with whom we have trust and harmony does not guarantee, far from it, that they will be our "traveling companions" throughout the social life of the company, since it may happen that they decide to sell their shares or participations, giving entry to third parties in the shareholding structure, with whom we do not have the necessary harmony or complicity to successfully carry out the business activity. It is therefore to try to avoid these situations that companies, in their bylaws, can establish rules to regulate or limit the transfer of their shares or participations.
In this regard, the doctrine has traditionally distinguished four main types of clauses:
The specific regulation of these cases can be found in Articles 106 to 112 of the Capital Companies Law with respect to Limited Liability Companies, and in Articles 120 to 125 of the aforementioned law for corporations.
With regard to limited liability companies, the legislator starts from the principle of freedom of transfer of the shares of the partners by inter vivos acts, although this general principle is limited by the rules, limitations and precautions established by the bylaws in this respect (Article 107 of the Capital Companies Law). That said, the bylaws of the limited liability company may establish the rules or clauses they deem appropriate on this matter (see the different typologies described above) with the following limitations (Article 108 of the Capital Companies Act):
Likewise, in the event of a seizure of the shares (Article 109 of the Capital Companies Act) in the context of an executive proceeding that concludes with an auction of the shares, prior to the approval of the auction and the awarding of the shares, this situation will be notified to the company and the latter in turn to all the shareholders so that, if there is a preferential acquisition right, they may exercise it within a period of one month, subrogating themselves to the position of the auctioneer.
With regard to corporations, the legislator (Article 120 of the Capital Companies Act) also establishes that once the original certificates have been printed and delivered, the registered shares (which may also be freely transferable), once the transfer has been accredited, it shall be immediately recorded in the book-register of registered shares by the administrators, while in the case of bearer shares, these shall be transferred by the simple tradition of the document.
Having said this, with regard to the rules to be taken into account when establishing clauses limiting the transferability of shares, it is necessary to bear in mind the provisions of Article 123 of the Capital Companies Act, which establishes the following issues:
The deeds of statutory modifications in which the sole proprietorship of the company is declared, as well as the increase or reduction of capital stock, given the substantive nature and importance of the same, will have an ad hoc section dedicated to them, which those interested may consult on this same web page.
Beyond the assumptions described in the previous questions, the deed of statutory amendments may refer to any other aspect of the company's bylaws, such as its duration, the name of its website, the possibility and rules that may allow the issuance of bonds or other debt instruments, the remuneration or not of the directors, the duration of their office, the creation of subcommittees delegated by the Board to deal with specific matters of the company, the rules that will govern its dissolution and liquidation, etc.
In order to execute a deed of statutory modification, it is simply necessary to contact the notary's office (by calling the notary's office telephone number or email address mercantil@jesusbenavides.es) and make an appointment on the day and time that is most convenient for the grantors.
On the agreed date and time, the grantors must simply go to the notary's office with the necessary documentation (see section on necessary documentation) to sign the corresponding deed, which will be drafted based on the minimum legal content required and the forecasts and needs of the clients in question.
In any case, if the interested parties need assistance in relation to the models of certificates resulting from the adoption of the necessary corporate resolutions for the amendments to the bylaws to be dealt with, they can contact the notary's office for assistance and advice in this regard.
On many occasions, it is a controversial or doubtful question for companies as to who has the authority to appear before a Notary Public to execute the corresponding deed of amendment of corporate bylaws.
We will try to answer this question below so that those interested in this type of document will have a clear idea of who should proceed and how, depending on the type of agreement and the body issuing it:
Pursuant to Article 108 of the Mercantile Registry Regulations, regarding the persons empowered to notarize, the notarization of corporate resolutions adopted by the General or Special Meeting or by a collegiate administrative body, corresponds to the person empowered to certify them, which, by virtue of Article 109 of the aforementioned regulations, shall correspond, in relation to the minutes and resolutions of the collegiate bodies of mercantile companies:
In all these cases, it will be necessary that the persons issuing the certification have their position in force at the time of issuance, since in order to register the agreements contained in the certification, the position of the certifier must have been registered, previously or simultaneously.
And, in any case, as a formal matter, it will also be necessary to take into account that agreements that do not appear in approved and signed minutes or in notarized minutes may not be certified.
The decisions of the sole shareholder, recorded in the minutes under his signature or that of his representative, may be executed and formalized by the shareholder himself or by the directors of the company.
It may also be carried out by any of the members of the administrative body with a valid appointment and registered in the Mercantile Registry, when they have been expressly empowered to do so in the corporate deed or in the meeting in which the resolutions have been adopted.
If the interested party so wishes, he/she may be given an authentic copy of the deed of amendment of the bylaws on the same day of the signing, but in such case, he/she must go to the Commercial Registry to register it, since this is a necessary step for the amendment to be fully effective.
Of course, if so desired, it is possible to entrust this management to the notary's office itself, which will telematically send the deed to the Commercial Registry in order to obtain its registration.
Once this has already taken place, the authentic copy of the deed will be delivered to the grantors, which will be much more useful, since from that moment on the document will be able to have all its effects.
It is enough that the administrator or representative of the company goes to the notary's office with his ID card. In the case of a foreign person, he/she must present to the notary his/her original and valid passport. In addition, the NIE must be presented together with the aforementioned passport.
Normally, it will be necessary to provide a certificate of the resolution of the general meeting or of the decision of the sole shareholder, indicating all the resolutions adopted and the articles of the articles of association to be amended with the new proposed wording. The certificate of the resolution to amend the articles of association must contain the new wording of the amended article or, as the case may be, a consolidated version of all the articles of association if the amendment affects several articles and the company prefers to have a new unitary version that includes all the current wording. The notary's office can advise and assist in the preparation or preparation of this type of certificate at no additional cost.
The relevant documentation relating to the company within which the resolutions to amend the articles of association are adopted must be submitted to the notary. For this purpose, the authentic copy of the deed of incorporation of the company must be provided, as well as any subsequent deed modifying the articles of association. However, from the notary's office we can access telematically to the Mercantile Registry where the company is registered to verify part of such documentation and to corroborate the data that are in force at the moment of granting the deed.
Practically every time someone goes to sign at a notary's office in the name and on behalf of a company, it is mandatory to identify at that moment, before the notary, which partners (even if not present) within the company hold more than 25% of the capital stock of the company at that moment. In order to carry out such identification, the Law obliges to exhibit the authentic copy of the corresponding notarial deed called "Acta de titular real".
If the persons issuing the certificate of the corporate resolution to amend the by-laws do not go to the notary's office to execute the public deed (since a different representative of the company does so) and these persons have not previously signed other documents at the notary's office in question (so that it is not possible to validate their signature), it will be necessary for said certificate of the corporate resolution to be provided with the signatures notarized, in order to verify its validity.
If the corporate resolution to amend the by-laws was adopted by a General Meeting that was not of a universal nature (i.e. not attended by all the shareholders), it will also be necessary to provide a copy of the notice of the meeting, drawn up in accordance with the requirements of the by-laws.
In the case of a corporation, the report justifying the proposed amendment of the bylaws must also be provided.
