Act 11/2018, of December 28, which modifies the Commercial Code, the revised text of the Capital Companies Act approved by Royal Legislative Decree 1/2010, of July 2, and Law 22 / 2015, of July 20, of Audit of Accounts, in the matter of non-financial information and diversity (BOE 29.12.2018) modifies article 348 bis of the Capital Companies Law, modification that will be applicable to all the Boards that are held as of 30.12.2018 (Transitory Provision and Seventh Final Provision). The new wording (1) extends to the groups of companies (Article 42 of the Commercial Code) the application of the right of separation of the partner due to lack of distribution in the form of dividends of at least twenty-five percent of the profits obtained during the previous year that are legally distributable provided that benefits have been obtained during the previous three years; and (2) contemplates cases of exclusion of such separation right that refer to (a) listed companies, (b) sports stock companies (SAD) and bankruptcy situations, refinancing agreements, extrajudicial payment agreements, and the communication to the Court of negotiations aimed at obtaining said measures (Article 5 bis of the Insolvency Act).
The new text is the following:
Article 348 bis.. Right of separation in case of lack of distribution of dividends.
1. Except as otherwise provided in the bylaws, after the fifth fiscal year as of the date of registration in the Company’s Commercial Registry, the member who had recorded in the minutes his / her protest due to the insufficiency of the dividends recognized shall have the right of separation in the case that the general meeting does not agree on the distribution as a dividend of at least twenty-five percent of the profits obtained during the previous fiscal year that are legally distributable provided that benefits have been obtained during the previous three years. However, even when the above circumstance occurs, the right of separation will not arise if the total of the dividends distributed during the last five years equals, at least, twenty-five percent of the legally distributable benefits registered in said period.
The provisions of the preceding paragraph shall be understood without prejudice to the exercise of the actions to challenge corporate resolutions and liability that may correspond.
2. For the suppression or modification of the cause of separation referred to in the previous section, the consent of all the partners will be necessary, unless the right to be separated from the company is recognized to the member who has not voted in favor of such agreement.
3. The period for the exercise of the right of separation shall be one month from the date on which the ordinary general meeting of shareholders was held.
4. When the company is obliged to draw up consolidated accounts, the same right of separation must be granted to the partner of the parent, although the requirement established in the first paragraph of this article is not given, if the general meeting of the mentioned company does not agree the distribution as a dividend of at least twenty-five percent of the consolidated positive results attributed to the parent company of the previous year, provided that they are legally distributable and, in addition, consolidated positive results attributed to the parent company during the previous three years have been obtained .
5. The provisions of this article shall not apply in the following cases:
a) In the case of listed companies or companies whose shares are admitted to trading in a multilateral trading system.
b) When the company is in competition.
c) When, under the insolvency law, the company has informed the competent court for the declaration of its insolvency the initiation of negotiations to reach a refinancing agreement or to obtain accessions to an advance proposal for an agreement, or when has informed the court of the opening of negotiations to reach an out-of-court settlement of payments.
d) When the company has reached a refinancing agreement that satisfies the conditions of irrescindibility established in the bankruptcy legislation.
e) In the case of Sports Public Limited Companies.