SECRETARÍA DE ESTADO DE COMERCIO DIRECCIÓN GENERAL DE COMERCIO E INVERSIONES S. G. DE COMERCIO INTERNACIONAL DE SERVICIOS E INVERSIONES This is a translation, from Spanish, of instructions for filling in form D-1A, used when declaring foreign investments in Spanish firms to the Spanish Register of foreign investments. Important Note: This document is intended as an aid to the Spanish legal provisions on foreign investment, specially Rules of procedure dated July 1 st 2010 of the General Directorate of Trade and Investments, approving the foreign investment forms (Resolución de 1 de Julio de 2010 de la Dirección General de Comercio e Inversiones por las que se aprueban los modelos de declaración de inversiones exteriores); any doubt or misunderstanding must be confirmed against the text in Spanish of these legal provisions; if differences occur in translation, the text in Spanish will govern by law. Also, in most cases, Spanish legal terms are expressed in English terms; the Spanish concepts concerned may not be identical to English terms as such terms may be understood by laws of other countries. The named boxes in Spanish of the form are included in italics inside parentheses. CORREO ELECTRÓNICO: invext.sscc@comercio.mineco.es Pº. DE LA CASTELLANA, 162 28046 MADRID TEL.: 91 349 24 36 FAX: 91 349 31 34
FORM FOR DECLARING FOREIGN INVESTMENTS IN NON LISTED COMPANIES, BRANCHES, AND OTHER FORMS OF INVESTMENT General filling in rules Form D-1A Instructions for filling in the form Form D-1A is required for declaring to the Register of Investments (Registro de Inversiones) foreign investments in Spanish non listed firms. The form should be filed within a month from the date in which the investment was carried out. There should be one separate form for each investor, one for each Host Company or partnership, and one for each type of transaction. If the boxes are not big enough to include all the data required, a further page should be attached to the statement. If the forms are not filed through software programs, official paper forms should be used, either typed or handwritten (using a ball point pen over hard surface and with block letters.) The software programs can be downloaded from the website of the Spanish Trade subdepartement (Secretaria de Estado de Comercio) in the following address: http:// subsede.comercio.mityc.gob.es, by entering into the option "Online procedures and services -> Download aid programs -> AFORIX Programa para la cumplimentación de Formularios de Inversiones Exteriores" (Procedimientos y servicios electrónicos->descarga de programas de ayuda.-aforix Programa para la cumplimentación de formularios de Inversiones exteriores). Official paper forms can be obtained in the General Register of the Department of Economy and Competitiveness (Registro General del Ministerio de Economía y Competitividad), or in the various provincial trade directorates (Direcciones Territoriales o Provinciales de Comercio). The shaded boxes must not be filled in. Other forms of investment(also called OFI): Form D-1A is also required if the object of the foreign investments is one of the following cases: joint ventures or equivalent temporary association of firms; general partnerships carried out through joint accounts (cuentas en participación), foundations, cooperatives, and unincorporated joint ownerships (comunidades de bienes), if the total sum of foreign investment is greater than 3.005.060,62 euros, or, whatever the amount, if the investment comes from one of the countries or territories termed as tax havens (Paraísos fiscales) under Royal Decree 1080/91 and subsequent revisions. When the investment is reported, the data should be adapted to the boxes of this form. In any case, in other forms of investment, a brief note, indicating the main data of the transaction, should be attached to the form. Additional documents: When the first foreign investment transaction in the Spanish firm is reported, a copy of the Spanish tax identification document of the Spanish company, branch or other unincorporated enterprise which is host to the investment in Spain should be attached to form D1A. page 2 of 8
HEADING (Encabezamiento) Rectification: This model will also be used for correcting errors in any of the data previously reported in forms D1A, or in forms already repealed or in force. In that case the box Is it a rectification? ( Es rectificación?) will be filled in with an X, indicating the number of the form rectified. The trade name and tax identification number of the Spanish firm will always be indicated; (see box 1 of part 1). The remaining boxes will contain only the data that are to be rectified. The change in the trade name of the Spanish or foreign firm will be notified in writing, enclosing as well a copy of the deed changing the trade name. Changes in the percentage share of non resident foreign investment when there is no new investment or disinvestment will also be notified in writing within three months from the date of execution of the transaction. Preliminary statement: If the investment comes from one of the countries or territories termed as tax havens (Paraísos fiscales) under Spanish Royal Decree 1080/91 and subsequent revisions, the number of form DP1 (preliminary statement) will be indicated in box DP1 nº and its filing date, with format: day/month/year. Specific industry legislation ( Está afectada la inversión que se declara por un régimen especial?): If the foreign investment reported is subject to special regulation provided by specific industry legislation (article 1.2 of Spanish Royal Decree 664/1999), box "Yes" ("Sí") should be marked with a cross (X). In this case, the filer (company, branch, OFI, or agent) should indicate with an X in the second line, whether or not the investor has fulfilled the requirements prescribed in these industry provisions ( Ha cumplido la legislación sectorial específica?). Authorisation ( Requiere autorización?): The box "Yes" ( Sí ) will be marked with an X when the deregulation procedure has been cancelled under sections 10 and 11 of the Spanish Order of the 28 of May 2001 of the Department of Industry, Tourism and Trade. In this case, the investor or his agent should indicate, using format day/month/year, the date of the express decision, or that in which the authorisation was produced through consent by silence. Number of D-1B of former investor (D-1B de procedencia): This box will be filled in only if the investment transaction involves a simultaneous withdrawal of another foreign investment (i.e., in the case of investment share transfers or transmissions between non resident investors, converting bonds into shares, etc). In these cases, identification numbers of forms D-1B reporting the withdrawals should be indicated. If there are not enough boxes to indicate the numbers of the D-1B in which investments have been declared, the remaining identification numbers that don t fit into the boxes of form D-1B will be included in another form, as an Additional page (Hoja adicional). I DATA OF THE SPANISH FIRM HOST TO THE INVESTMENT (Datos de la empresa española objeto de la inversión) Box 1: Trade name, Spanish Tax identification number (NIF), registered office, and main branch of industry (Razón social, NIF. Dirección postal, Actividad principal -CNAE-) page 3 of 8
Trade name, NIF, and registered office of the company, branch or other unincorporated enterprise host to the foreign investment should be filled in. (*By branch we refer only to fully owned and unincorporated investees) The main business should be described briefly in the corresponding box, indicating the NACE code of the main industry with four digits (Spanish CNAE), according to table 3. If the firm is a holding or head office of a group of companies, one of the two boxes will be marked with an "X", according to whether it is a holding of Spanish (Holding sociedades españolas) or foreign companies (extranjeras), (this would be the case if the Spanish holding has shares of non resident firms, mainly); in this last case NACE code should be indicated, as well as the description of the main business of the affiliated companies. If the companies carry on several businesses, the NACE of the industry in which more funds have been invested should be indicated. Box 2: Type of business organization, and shares in other Spanish firms (Forma jurídica y participación en otras sociedades españolas) Type of business organization (Forma jurídica): The nature of the business organization of the Spanish of company, or unincorporated enterprise which hosts the foreign investment will be indicated by using one of the following codes: 01 Companies and any kind of unincorporated enterprise not included in the following codes 02 Branches 03 General partnerships financed by joint accounts cited in OFI paragraph 04 Foundations 13 Joint ventures cited in OFI paragraph 14 Cooperatives 15 Unincorporated joint ownerships cited in OFI paragraph Number of firms in which it holds shares (Número de empresas participadas): If the Spanish firm which hosts the investment has a share equal to or greater than 10% in other Spanish firms, the box will indicate the number of firms in which it holds a share. Box 3: Economic data (Datos económicos): 3.1 Capital/Capital contribution (Capital social/dotación): In the case of companies, or unincorporated enterprises, the capital of the Spanish firm should be indicated, whether it has been paid up or not, before (Antes de la inversión) and after the investment (Después de la inversión). In the case of branches, the corresponding fund should be indicated, before and after the investment. page 4 of 8
3.2 Net worth or equity (Fondos propios): Total equity should be indicated for the company or branch, before and after the investment. 3.3 Total percentage of foreign investment (Porcentaje de participación extranjera): If known, total percentage of foreign investment before and after the investment will be indicated by the filer. Other forms of investment: In the case of other forms of investment, the filer will indicate funds contributed, (Box 3.1), equity or net worth (Box. 3.2) and percentage foreign share (Box 3.3), before and after the investment. II DATA OF INVESTOR (Datos del inversor) Box 4: Owner of the investment (Titular de la inversión) Last name and name, (for individuals), and trade name (Apellidos y nombre o razón social) for firms, of owner of investment reported, will be indicated, as well as address or registered office (Domicilio), name of the country of residence (País), and its code number (Cód País). Box 5: Percentage interest in the Spanish firm (Participación en la empresa española) The interest of the foreign investment owner in the company or branch hosting the investment should be indicated, in percentages and with two decimal digits, before (Antes inversión) and after the investment (Después invers.). The filer should also indicate whether the investor is a member of the Board of Administrators (Acceso al Consejo de Administración), before and after the investment, by marking the corresponding box "Yes" or "No" ("Si" o "No") with an "X". Box 6: Ultimate owner of non resident owner (Titulares últimos del titular no residente) If the owner of the investment (in box 4) is not an individual, and is not listed in the Stock exchange, the filer should indicate the name the final owners in the chain of ownership, (from now onwards ultimate owners), last name and name (if individuals) or trade name (if firm) (Apellidos y nombre o razón social del titular último), the maximum being three owners, for those of them with a greater share in capital, as long as the percentage interest is greater than 10%. In no case this box should contain nominees or bare trustees. The filer should indicate the country of residence code (País) of every ultimate owner. For those whose share, direct or indirect, is equal to or greater than, 10% of the equity of the owner of investment, the interest in percentages will be indicated with two digits (Participación en el titular). If any of these owners is listed in the Stock Exchange, it will be indicated by marking the corresponding box (Bolsa) with an "X". If the owner of the investment (in box 4) is not an individual and is listed in the Stock Exchange, the trade name appearing in box 4 will be repeated in box 6.1, leaving empty the boxes named Stock Exchange (Bolsa), Country (País) and Share of owner (Participación en el titular). page 5 of 8
When the owner of investment is an individual, last name and name appearing in box 4 will be repeated in box 6, leaving empty the boxes named Stock Exchange (Bolsa), Country (País) and Share of owner (Participación en el titular). III DATA OF THE FOREIGN INVESTMENT (Datos de la inversión extranjera) Box 7: The transaction (Operación) Type of transaction (Clase): The filer should indicate in this box the type of transaction, indicating its nature through any of the following codes: 01 The setting up of companies, branches, other unincorporated firms, or other forms of investment (OFI) 02 Capital extension of companies, unincorporated firms, (or similar capital contribution of branches) 03 Purchase of shares to non residents 04 Purchase of stock warrants or other equivalent rights entitling to a share in capital 05 Purchase of other voting rights to residents 06 Purchase of bonds convertible into shares 07 Gifts (intervivos or mortis causa) in favour of non residents 11 Transfers and transmissions between non residents 13 Changes in residence of registered office 20 Others (indicate the transaction in detail in the additional page ) Date of execution (Fecha de realización): The filer should indicate the date appearing in the document certifying the transaction, in format: day/ month/year. Amount: Total face value (Importe nominal), as well as total actual value (Importe efectivo) of the transaction, should be indicated, even though the transaction amount has only been partly paid up, except for codes 04, 05, 07 and 13. In the case of codes 04 and 05, only actual value should be indicated. In the case of code 07, both face value and actual value should be indicated, the later being the amount due in the Spanish inheritance tax or gift tax. In the case of code 13, the filer should indicate face value and actual value, calculated as the amount resulting from the percentage interest of the investor in the firm s equity. All those amounts refer exclusively to the part corresponding to the owner of the investment. page 6 of 8
Box 8: Spanish autonomous communities serving as host to the investment (CC.AA.) Box CC.AA. should be filled in if the transaction is one of the following: i) The setting up of companies, unincorporated enterprises, or branches ii) Capital extension of companies, unincorporated enterprises, or of similar capital contribution to branches. In these cases, the filer should indicate the code of the Spanish autonomous communities (Código) to which the activity of the investment is allocated, as well as the corresponding percentage (Porcentaje) of each community. If the investment involves more than three communities, the codes of the three communities with more investment should be indicated, allocating the remaining amount up to a 100% to the line Rest (Resto). If the investment is allocated to the whole country, all the 100% of the investment should be allocated to code 90. If the community of allocation of the investment is unknown, the whole amount should be allocated to the code corresponding to the registered office. Box 9: Acquisitions: In the case of acquisitions, (either for value or not), total number of conveyors (Número de transmitentes) should be indicated, as well as last names, and names or trade name (Apellidos y nombre o razón social), and their country of residence (País). If there are more than two conveyors, the data should be indicated in the form Additional page (Hoja adicional). Box 10: Amount and method of payment (Medios de aportación) Code (Código): The nature of the payment should be indicated through the following codes: 01 Monetary contribution 11 Assets and liabilities of a Spanish firm 12 Shares of a Spanish company or unincorporated enterprise 13 Shares or assets of a foreign company or unincorporated enterprise 14 Reinvestment of earnings and reserve capitalization 15 Capitalization of any sort of debt 16 Payment by converting bonds into shares 17 Real assets located in Spain 18 Real assets located abroad 19 Company Mergers: This code should be used for transfers resulting from mergers or acquisitions between non resident companies. 20 Other forms of payment in kind (specify in form Additional page ) 30 Free transactions: This code should be used in the case of changes in residence, or registered office, gifts (intervivos or mortis causa) or transfers and transmissions between non residents, different from mergers and acquisitions, that is, when in box type of transaction (Clase), the codes indicated are 07, 11, or 13. Amount (Importe): Actual amount for every method of payment. In the case of changes in residence, or registered office, the filer should indicate actual value, calculated as the amount resulting from the percentage share of the investor in the firm s equity. In the case of gifts page 7 of 8
(intervivos or mortis causa) the amount that should be indicated is the amount due in the Spanish inheritance or gift tax. In the case of transfers and transmissions between non residents, the amount indicated will be the transfer value. These last three cases are included in code 30 Free transactions. At least one of the available options should be filed in. If more than three kinds of payment methods are used, the codes of the two with the greatest amounts should be indicated, and the remaining amount should be allocated to code 20 Other methods of payment in kind. Box 11: Purpose of the investment (Razón de la inversión) The purpose of the investment should be indicated by using one of the following codes: 01 Gaining control in the Spanish firm 02 Obtaining a non controlling share in the Spanish firm 03 Financing a new industry or business or extending one already existing 04 Financing investments (of the firm receiving the investment) in Spanish affiliated firms. 05 Financing investments abroad of the Spanish firm 06 Restructuring the group in Spain 07 Restructuring the group abroad 08 Streamlining the firm (for debt repayment or loss reduction) 09 Complying with financial entities regulations 20 Others (specify in form Additional page (Hoja adicional)) IV PROCEEDINGS (Diligencias) Box 12: Affirmation (Declaración) This box will be filled in with data of the investor or his agent, plus place, date and signature. Last name and name (Don/Dª) as well as postal address (City name -Domicilio en-, street name -calle-, street number -Nº-). Box 13 Proceedings of the notary public (Diligencia del fedatario público) This box will be filled in, with all its data, only if a Spanish notary public has drawn up the deed of the transaction, either because of its legal nature, or as a result of an agreement between both parts. Box 14: Tradename or (last name and name), Spanish Tax Identification Number, and address for notices (Apellidos y nombre o razón social, NIF y domicilio para notificaciones) Trade name or (last name and name), should be indicated, as well as NIF or identification name for foreigners, and postal address, if available, of the person who receives form and information requests. If necessary, indicate also a contact person as well as postal code (Código postal), telefone number (Teléfono) and e-mail (Correo electrónico). Data protection: Data appearing in this form will be included in computerized files so they can be used for administrative, statistic or economic purposes. page 8 of 8