Buying companies is a daily phenomenon in any country in the world. Particularly in Costa Rica, one of the vehicles used for its simplicity is the purchase of shares, that generates a change in its shareholders.
(After many years of not having any significant change, the shareholders register will be different from this year. The Law to Improve the Fight against Tax Fraud, which came into force on January 1 2019, presents obligations whose purpose is to know the subsequent beneficiaries of the various existing legal figures and thus avoid hiding the true economic capacity of taxpayers. The regulation establishes the duty of individuals, legal structures and legal representatives of companies domiciled in the country to identify to the Central Bank of Costa Rica (BCCR) all the shareholders or those who hold substantive interests in the entity, the final beneficiaries or cash and its share of shares.) It is possible to say that with this process, both assets and liabilities of the company, are indirectly acquired since those are maintained under its name without the need, unless exception, to make further changes.
Obviously this method of acquisition of shares involves a number of risks to the new shareholders, since as stated, are acquiring all the liabilities related with the company.
Also, one might think of the interests of third persons involved in this type of transactions made by those creditors that hold rights over the company, which, in many cases, can see this right affected by the new payment policies of the new owners regardless of the company having their right legally guaranteed by an invoice, purchase order or any similar figure.
The existence of the concept of “buying and selling of commercial and industrial establishments”, which is regulated from Article 478 to Article 489 of the Commercial Code of Costa Rica, have a very interesting and viable solution to these problems that may derived from a pure and simple acquisition of shares.
Article 478 of the Commercial Code starts by defining what are the elements of a comprehensive commercial and industrial property to establish that “are integral elements of a commercial establishment, for the purposes of its transmission by any title: the electric, telephone and any facilities otherwise, the furniture, the existence in merchandise, invention patents and trademarks manufacturing, accounting comprising the complete files of the business, drawings and industrial designs, the honorable distinctions and other rights arising from the commercial property, industrial or artistic.”
As it is possible to notice, in the purchase and sale of commercial and industrial establishments all claims arising from a commercial, industrial and artistic property can be acquired. Also, keeps saying the same article that “The sale of a commercial or industrial establishment includes all its elements and everything that forms its assets and liabilities, unless expressly agreed otherwise.” Uniting these concepts, it is possible to think that the purchase and sale of commercial and industrial establishments is practically the same as an outright purchase of shares, in the sense that in both figures are available all the elements of a corporation, including assets and liabilities.
However, both figures are separated by a very different method for its validity and effectiveness. If they are not fully implemented in the case of the purchase and sale of commercial and industrial establishments, the penalty can be the nullity of the same. Thus, Article 488 of the Commercial Code states that “The sale of a commercial or industrial establishment in which they have not completed the formalities of this chapter, shall be absolutely void as to third parties and the buyer will not make good payment.”
Among the main steps of this process are the following: a) notice of the sale in “the official newspaper for notice to be published three times in succession, in which creditors and stakeholders will be cited for appearing within the term of fifteen days from the first publication, to assert their rights”; b) the price, if it were cash, will be deposited in the buyer or in a third party, besides being able to be deposited in a bank or Notary Public before whom the public deed of transfer was issued; c) creditors must present their credits, which must necessarily come from the commercial traffic of the commercial and industrial establishment, within fifteen working days from the date of the first publication of the edict, and d ) once the fifteen days are overdue, the depositary will convene the creditors to take the agreements they deem for the payment of their credits
In addition and as complement to these steps, the Commercial Code provides a number of guarantees to all the parties of the negotiation as well to all the creditors of the establishment to be sold. The protection given to creditors lies primarily in the fact that if they are not paid during the bankruptcy process, their current legal situation would be very affected because the assets of the company to which they are creditors, could be seriously diminished and even removed entirely with the sale of the property.
The rules to be indicated as follows may constitute, in our opinion, one more differentiation with the outright purchase of shares, which assures to the buyer the non- acquisition of debts, unless otherwise agreed by the creditors, and good payment is performed of the existing debts with greater assurance and security for those paid creditors and for the seller and the buyer who will be released of their debts.
Article 480 of the Commercial Code provides that the price will not delivered to the seller, under any circumstances, if the above steps have not been complied, particularly the payment of the claims submitted and that were approved for been part of the commercial business of the company . Clearly, this rule generates a guarantee, security and benefit to creditors and the buyer.
The article 482 also exclude as possible credits to pay those that are personal of the seller or that were not contracted for the benefit of the property and due to its commercial twist.
Aim Article 483 that “The credits not submitted within the specified term, will be collectible to the seller without the sold establishment been responsible.” Again, this represents a great advantage for the buyer.
Also, as a guarantee for the creditors who filed their credits within fifteen days but were not recognized, “will be able to sue for the full amount its recognition in accordance with the nature of the title on which they base their credit, and an equal part to its value shall be deposited to the order of the trial judge, to be delivered promptly as it may be decided in judgment.”
Also and as protective article of the rights of creditors and that can protect a buyer from acquiring a commercial and industrial property in bankruptcy, “If the amount of the credits is higher than the deposit rate, or all of them cannot be met due to the existence of titles that are part of the same and are not liquid and payable, the whole will be deposited in the competent judicial authority so that the procedures for the settlement of the case continue.”
But not only the process includes the determination and payment of debts, it contemplates that creditors can oppose to the transfer if they reliably demonstrate that the price is lower in a “ten percent to that rationally and given the conditions market and merchandise specials, could have been achieved.” That is, if a transfer in fraud of creditors has taken place. However, for this procedure to be effective, the debtors will have to acquire the company for the actual amount that they demonstrated as real or present a buyer that deposits in cash such amount.
Also and for this situation not to become a constraint that prevents the original agreement between buyer and seller to take place, may either of these two, cover the difference in price claimed by the creditors, which would give firmness to the transfer.
Like any buying shares outright, the buyer can pay with cash or securities commercially discountable. In the latter case, and because the deposit must be in cash for the payment of creditors, the discount should be performed before the publication of the notice. However, creditors may agree that the cash discount should not be made.
The last rule governing the procedure of purchase and sale of commercial and industrial establishments also of great importance for the benefit of creditors, as it requires that the price be deposited in full, unless the creditors unanimously agree otherwise, which might imply the acceptance of the buyer as new debtor in substitution of the seller, being the seller finally liberated from its existing obligations.
We conclude that by the procedure, rights and guarantees mentioned above: a) the buyer can purchase a commercial and industrial establishment free of debts and with absolute guarantee that is not inheriting contingencies that might not have been detected in a due diligence process, b) the seller could make good payment of all existing debts legally liberating himself from its payment obligations, with the possibility of receiving a balance in the prices free of all duty, and c) the creditors may receive the payment of all of its debts, if they so accepted; go to the ordinary judicial roads if they were not paid and acquire the commercial and industrial establishment if they can demonstrate that its price is lower than the market price of a business of this type.
All these guarantees have made that this figure is widely accepted by the parties and even the financial institutions that may be part of a transfer like these as creditors of the buyer, see that their warranties may be strengthened in their entirety due to the absence of previous debts that could have affected them.
CENTRAL LAW has extensive experience in Corporate Finance and Corporate Mergers and Acquisitions having being recognized by international directories amongst the best lawyers in Latin America in these areas.
For more information contact firstname.lastname@example.org
CENTRAL LAW – Costa RIca