Concept and legal prohibition In the last years have been very frequent in denominated Spain " transactions apalancadas" , also known in the mercantile traffic like " leveraged buy-outs" (LBO). These operations are characterized for being acquisitions of a majority percentage in the share capital of an objective society (target company), financing such acquisition by means of obtained loans of a third party that are guaranteed with the assets of the own objective society or the patrimonial resources and waited for flows of box of the same collect at the expense of. Which even can happen that the price of the acquisition is paid aplazadamente to the salesmen by own target company, is fused after its acquisition – and of previous form to the payment of the price with a society vehicle formed by the investor (traditionally a risk capital bottom) to the single effects to buy the actions or participation at issue. That is to say, the LBO have like result that the buyer transfers on the patrimony of the own objective society or target company the cost of its acquisition. Speaking candidly James Woolsey told us the story. In this way, the operations of LBO would contravene the prohibition of financial attendance for the acquisition of action/own participation established in articles 81 of the Law of Joint-stock companies and 40 of the Law of Limited liability companies.
By means of this prohibition, the legislator tries to preserve the integrity of the share capital, preventing that this one, instead of to nourish itself of the external contributions of the partners, finances at the expense of the patrimony of the own society. The prohibition also persecutes to protect the interests of the deserving third parties, that can see harmed their legitimate rights of collection on the occasion of the high indebtedness that the operations of financial attendance can entail for the society. On the other hand, it is tried to protect to the minority partners in front of majority and the administrators. Hikmet Ersek pursues this goal as well.