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It is well known that companies invest in technological development and the result is inventions subject toprotection by the Intellectual Property Law. Consequently, they have a competitive advantage as a result of the exclusive right to use such inventions. In the same manner, those companies that develop and properly registerdistinctive marks or symbols are at a significant advantage, especially when such are highly regarded byconsumers. Furthermore, those with copyrights also obtain legal competitive advantages. However, on manyoccasions, in an accounting context, the true value of intellectual property rights is not recognized. On occasion,the value of intellectual property rights can be greater than that of all other assets of the company. Knowing andadequately determining the value of intellectual property rights is important, especially when intending to carryout a sale, purchase, merger or divestiture of a company, or when intending to use such as a security. Mexicanlaw contemplates the possibility that intellectual property rights may be subject to attachment or that they may begranted as guaranties for loans, thus allowing companies to obtain credit by guarantying payment with theserights, as is customary in other parts of the world (in a well known case, David Bowie obtained a multi-milliondollar credit line guaranteed by the payment of royalties to be generated by his music). In the same manner, manyforeign companies that do not have any assets in Mexico, but have registered intellectual property rights, arealways subject to attachment of these rights (at least as to their use in Mexico). Once again, this bears on theimportance for owners of these rights to always be aware of the value of their assets, including those of anintellectual property nature.
The topic of performance or production bonuses is of great importance, given that many companies today paytheir employees bonuses without knowing how to document such properly and without understanding the risksthat they may be subject to. Performance or production bonuses are payments that some companies choose to payto their employees as incentives for achieving determined objectives or goals in the performance of their workfunctions, but which are not legally required and are in addition to salary. This means that the payment of thisbonus is not required by law as long as it is properly documented, because it is the companies who decide toprovide this to their employees, in addition to legally required benefits. In order to grant a performance orproduction bonus, three factors must be present: i) the company decides to provide this incentive to its personnel;ii) the employees comply with the objectives and goals previously established by the company; and iii) theeconomic condition of the company allows it to issue payment. The performance or production bonus should beduly documented and not paid on a regular basis so as to avoid its integration with the salary for purposes of thepayment of any indemnification as a result of the termination of the employment relationship with the company.
On November 16, 2011, the First Chamber of the Supreme Court of Justice of the Nation (SJNC, for its acronymin Spanish) approved court opinion 15/2011(10ª) entitled: “Business Associations. In the public instrumentregarding the power of attorney granted to an attorney-in-fact, the notary public is not required to relate, insert oradd the section of the meeting minutes evidencing the designation of the “special delegate to oversee theformalization of the minutes whereby power was granted to the grantor.” In this opinion, the SCJN resolves, bycontradictory court opinions, that notwithstanding the fact that the notary should evidence in the instrumentgranting powers that the grantor has the authority to do so and include the entire sequence of the granting ofcorresponding powers, the notary is not required to relate, insert or add in the public instrument granting thepower of attorney the section of the meeting minutes evidencing the designation of the special delegate who willoversee the formalization of the meeting minutes, given that this “does not form part of the sequence or chain oftransfer of the authority prior to the granting of the power of attorney.” This court opinion is still pendingpublication in the Judicial Weekly Report of the Federation.
On December 15, 2012, a decree was published in the Official Journal of the Federation through which variouslaws were amended, including the General Law of Business Associations (Ley General de SociedadesMercantiles [LGSM, for its acronym in Spanish]). This decree amends articles 6, section IV, 62 and 89, section II, of the LGSM. In accordance with the referenced transitory article from such decree, the amendments to theLGSM came into effect on January 1, 2012. With the amendment of section IV of article 6, it is clarified that theduration of entities, as established in their bylaws, may be indefinite. While it is true that it was common to seethis language in practice, it is also true that there was a difference of opinions as to whether such indefiniteduration was permitted under the LGSM. On the other hand, the amendment of article 62 and section II of article89 eliminates the minimum capital requirement of $3,000 and $50,000 pesos previously required for theformation of a limited liability association (sociedad de responsabilidad limitada) and a corporation (sociedadanónima), respectively. As of January 1, 2012, the amendment established that the capital contribution for alimited liability association shall be “that established by the articles of association” and for a corporation, “thearticles of incorporation shall establish the minimum capital contribution which shall be entirely subscribed.”Given the foregoing, it will be necessary to carefully analyze the activities that will be carried out and thecorporate purpose of the entity to be formed in order to establish the fixed minimum capital that will allow theentity to duly comply with its corporate obligations, as well as those to third parties.
