Among the novelties introduced by Law 16/2022, of 5 September, we should highlight, in the corporate law field, the capital increase in execution of the insolvency agreement stipulated in the new article 399 bis of the Consolidated Text of the Insolvency Act, which will come into force twenty days after its publication in the Official State Gazette (BOE), i.e. on the 26th of September 2022. The novelty consists of introducing a new modality of capital increase through the conversion of insolvency credits into stocks or shares of the insolvent company,
empowering the company’s administrators to increase the share capital to the extent necessary for the conversion of the credits, without the need for a resolution of the general shareholders’ meeting, in the event that the insolvency agreement whereby such conversion of insolvency credits into shares or holdings of the insolvent company is envisaged is approved by the judge. This power of the administrators of the insolvent company must be understood in accordance with the provisions of Article 126 of the Consolidated Text of the Insolvency Law, regardless of the effects that the intervention or suspension of the powers of administration and disposal of the assets and rights of the active mass may have on the administrators’ functions.
Furthermore, in these cases, the shareholders’ pre-emptive rights are removed.
Finally, notwithstanding the limitations on free transferability that the bylaws may establish, the new stocks or shares issued or created in execution of the agreement will be freely transferable until ten years have elapsed from the registration of the capital increase in the mercantile registerIt is clarified that for public limited companies (sociedades anónimas) this free transfer will be in the case of inter vivos transfers, but nothing is said with regard to limited liability companies (sociedades de responsabilidad limitada), so it would seem that with regard to the latter this freedom would also apply in the case of mortis causa transfers.
