Capital increase against minority partners

ampliacion de capital

Can minority shareholders avoid a capital increase?

In principle, You can not override this capital agreement, if you fulfilled all the formalities, it is not considered harmful to social interests.

The minority shareholders, suelen alegar que el acuerdo de ampliación de capital es injustificado y arbitrario y que la única finalidad del mismo es conseguir la dilución en la participación social de aquéllos. "Abuse majority" and "lack of information" are the reasons most commonly alleged.

The extension agreement would be voidable by abusive and lacked a real cause and lawful justifying the same, for contravening the provisions of Article 7 the C.Civil.

But the general meeting of partners, es soberana para adoptar un acuerdo de ampliación del capital cuando lo estime preciso. The mere "disagreement" minority partner is not enough to get your cancellation.

It would be the minority partner, el que debería probar que realmente ha habido una maniobra abusiva para diluir su participación en la sociedad, or that the capital increase was not at all justified by the situation of the company.

If the capital increase responds to a legitimate aim, the minority partner will not oppose it.

The general meeting of partners, It is sovereign to adopt the extension agreement when deemed necessary, no other limit than the respect for the law, the statutes and not to sacrifice the social interest for the benefit of a third party.

The partner who does not want to invest more, You can not help to lower its stake in the share capital, unless other reasons concur challenge we discussed.

1st as the Board of Supreme Court in its judgment of 4 November 2004:

"It is not acceptable that a capital increase which has not been denied access to any of the partners, which going to the same could have retained their relative position in society, involving the expropriation of any right of those ".

Para que la capital increase the payments fall abuse of rights proscribed in Article 7.2 Civil Code, should be the following circumstances:

  1. Using an objective right and legal appearance.
  2. Damage to an interest not having a legal provision protection.
  3. Immorality or antisocial damage (u subjective objective).

Otro motivo para anular la ampliación del capital social podría ser el prejudice the corporate interest, with benefit to one or more partners or a third party, together with the existence of a causal link between injury and benefit (SSTS 4 March 2000 and 17 February 2002).

The disadvantage to a particular partner, that was not detrimental to the public interest or would generate benefits for other partners or third parties, It is not sufficient cause to challenge the agreement capital.

Last, we must remember that "Doctrine of abuse of rights" It should be applied restrictively (STS 1 February 2006).

Ultimately, in cases where the minority shareholders of a corporation, are diminished their participation by a capital increase, only may contest the extension agreement, when circumstances arise to which we have alluded above, plus, it can provide sufficient proof.

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