August 9, 2020

The Government will have no obligation to launch a takeover bid for the rescued companies, even if it takes stakes.


Madrid

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The fine print of the new Fund to support the solvency of strategic companies begins to know each other. The State will resolve within a maximum period of six months the requests of companies of the new Fund, which endowed with 10 billion euros and also will be exempt from launching a takeover bid (takeover bid) if it has to acquire shares in the capital stock charged to the fund, even in the event that such participation exceeds 30% of the share capital, a percentage from which the law currently requires to launch takeover bids for the entire company.

This follows from Royal Decree-Law on urgent measures to support economic recovery and employment, published this Monday in the Official State Gazette (BOE) for its entry into force from tomorrow, Tuesday, and which are collected new measures amounting to more than 51,000 million euros to cope with the Covid-19 crisis and promote reactivation.

The standard includes the creation of the Solvency Support Fund for strategic companies, a fund without legal personality, attached to the General State Administration, through the Ministry of Finance, and which will be managed, by the State Society of Industrial Participations (SEPI), by the newly created Management Council, an inter-ministerial collegiate body attached to the Ministry of Finance.

The fund aims to contribute temporary public support to strengthen business solvency, in particular through the granting of participative loans, subordinated debt, subscription of shares or other capital instruments, to non-financial companies that are experiencing severe temporary difficulties as a result of the Covid-19 pandemic and that are considered strategic for the fabric productive national or regional.

The initial endowment of the fund amounts to 10,000 millioneuros and the amount of dividends, interest, capital gains and any other remuneration will be integrated into the Public Treasury that result from the investments or operations that are carried out, from the participation, where appropriate, in the administrative bodies of the requesting companies, as well as the results of the divestments and reimbursements made, reduced by the losses and expenses.

Six months maximum to resolve requests

The competence to resolve on the requests corresponds to the Management Council, being the authorization of the Council of Ministers is necessary for the approval of operations, and the maximum term to resolve will be six months from the presentation of the request of the company.

After the maximum term to resolve without an express resolution has been issued and notified, it will be understood that the request has been rejected. The resolutions of the Management Council put an end to the administrative route and against them a contentious-administrative appeal may be filed.

Financial compensation for SEPI

In all operations and actions related to the Fund, SEPI will act on behalf and on behalf of the AGE and all the operations carried out against the Fund will be recorded in a specific accounting, separate and independent from that of the members of the Management Board. The fund’s responsibilities will be limited, exclusively, to those contracted by the Management Board, according to the norm.

For the development of the actions that correspond to SEPI in execution of the royal decree-law, said entity may contract with the fund all those external support services that are necessary. Annually, with charge to the fund and prior authorization by agreement of the Delegate Commission of the Government for Economic Affairs, the costs incurred by SEPI in the development and execution of its delegated management functions of the fund in the previous year will be subject to the corresponding financial compensation.

No taxes, duties or fees

In addition, the norm establishes that all the patrimonial transfers, corporate operations and acts derived, directly or indirectly from the application of the provision and, even, the contributions of funds or capital increases, that are eventually executed for the capitalization and / or restructuring financial and equity of the investee companies charged to the fund, will be exempt from any state, regional or local tax, without, in the latter case, compensation for local taxes.

Likewise, all transmissions, oroperations and acts shall be exempt from the payment of any fees and professional fees accrued by the intervention of public notaries and property and commercial registrars.

In cases of participation in the share capital of the company, the votes that correspond to the Management Board, its consequent political rights and its incorporation into the entity’s administrative body by designating the number of directors equivalent to its participation quota rounded to the nearest whole number, will be determined without the need for any act or agreement except the notification to the Mercantile Registry.

Likewise, the responsibility that may correspond, where appropriate, to the public employee as a member of the boards of directors of the companies subject to participation in his capital stock, will be directly assumed by the Administration, although the Management Council may demand ex officio the responsibility that it would have incurred for the damages and losses caused in their assets or rights when there has been intent, or fault or gross negligence, in accordance with the provisions of administrative laws in matters of property liability.

Exempted from launching OPA

It is also established that the acquisition of the shares in the capital stock charged to the fund “Will be exempt from the obligation to make a public takeover bid in the cases provided for in articles 128 and 129 of Royal Legislative Decree 4/2015, of October 23, which approves the revised text of the Securities Market Law ».

Therefore, the State is exempted from having to launch a takeover bid in the event of having to ‘rescue’ a strategic company even when the participation exceeds 30% of the voting rights of a listed company, percentage from which currently the law establishes the obligation to present a takeover bid for the entire company.

For its part, the operation, mobilization of resources and liquidation of the fund, as well as Applicable conditions and requirements to be met in operations will be determined by agreement of the Minister’s Councils, without requiring further regulatory development, and will comply with the State Aid regulations of the European Commission and in particular.

The royal decree-law also states that the data, documents and information held by the Management Board and SEPI will be reserved and, with the exceptions provided for in current regulations, “” they may not be disclosed to any person or authority, nor used for purposes other than those for which they were obtained. “

They will also be obliged to keep the auditors, legal advisers and other experts secret and no longer use the information independent appointed by the Board of Directors and by SEPI. This reserved character will cease from the moment in which the interested parties make public the facts to which the data, documents and information refer.

Finally, the background suppression It will be agreed by order issued by the Minister of Finance, after a report from the Government’s Delegate Commission for Economic Affairs and at the time of the abolition of the Fund to support the solvency of strategic companies, the balance will be paid into the Treasury.

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