On January 1, 2017, article 348 bis of the Capital Companies Law (LSC) definitively entered into force, after it was initially approved in 2011, but remained suspended later from June 24, 2012 until December 31, 2016. An article that guarantees the right of the partners to separate from a company in those cases in which at least one third of the dividends obtained in the profits of the company are not distributed.
The suspension of this article was carried out as a result of the controversy it caused, since it deals with the non-distribution of dividends as a violation of the rights granted to the partners to obtain a percentage of the profits of a company, provoking in turn criticism for being a concept contrary to the freedom of enterprise and the pacts of wage moderation or refinancing of the total investment of profits.
The ultimate objective of the right of separation for lack of dividends is to protect those minority shareholders of unlisted companies that suffer the excesses of the majority shareholders,when they decide not to distribute the dividends obtained with the profits.
This decision in most cases arises because the majority shareholders receive remuneration from other parties, either a remuneration of directors or through a linked contract.
But the right of separation for lack of dividends does not mean that a company is obliged to distribute the profits among the partners of a company, but it does mean that those minority shareholders who vote in favour of the distribution of dividends
may separate from the company obtaining the fair or market value of the shares or shares they hold.
Essential requirements to qualify for the right of separation for the non-distribution of dividends
To be eligible for the right of separation for the non-distribution of dividends, the following essential requirements must be met:
- It must be an unlisted company.
- You can only opt for the right from the fifth year from the date of registration of the company in the Mercantile Registry.
- It is essential that the minority shareholder has voted in favour of the distribution of dividends from profits.
- The partner must have received a refusal from the majority shareholders after requesting the distribution.
In case of complying with these essential requirements, a minority shareholder will have a period of one month to exercise his right from the celebration of the Ordinary General Meeting in which it was agreed not to proceed with the distribution of dividends.
If an amicable agreement is not reached on the valuation of the shares or participations, it must be an expert independent of the company, who will be appointed by the Commercial Registry, the one in charge of appraising and fixing their value. Once the shares or participations have been assessed, the value of the shares must be repaid by the company within two months of the signing of the valuation report.
the distribution limits represent at least an amount equivalent to 33% of the profits from the exploitation of the corporate purpose, or what is the same, the profits obtained throughout a year from the activity of a company, in terms of the development of the corporate purpose marked in the bylaws.
With these limits it is possible to avoid that a company has to distribute those dividends obtained from the extraordinary profits and that could endanger the future of society, which would be considered an abuse of the minority.
From AYCE Consultores
we offer our services through our large team of professionals,to those minority partners of companies that are unhappy with the company policy and do not receive their share corresponding to dividends. Do not hesitate to contact us, we will be happy to assist you.
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