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Separation of the partner in the capital company

Since the modification and rewriting, there is a possibility that the right of separation can be abolished or modified through the statutes, although this requires unanimity of all partners.

For the first time, this right can be exercised at the Meeting held from the sixth financial year after the company's registration in the Commercial Register.

Furthermore, the conditions for such withdrawal are tightened in the sense that not only is it required that the shareholder has voted in favour of the distribution of the corporate profits, but also that he "has recorded in the minutes his protest at the insufficiency of the dividends recognised"; while on the other hand the minimum percentage of profits is reduced to do so from 33% to 25%.

It also introduces the need for profits to have been obtained during the previous three financial years and makes it impossible to exercise the right of separation if "the total of the dividends distributed during the last five years is at least equivalent to twenty-five percent", so that this prior distribution of profits leaves out the exercise of this right, a circumstance that did not occur with the previous wording.

This new and broad wording of article 348 bis extends the cases of this right, also recognizing this right to the partner of the dominant company, in order to avoid this majority partner blocking the distribution of dividends.

Lastly, whereas the old wording of the article only excluded listed companies from its application, the new wording extends its exclusion to five cases instead of one, namely listed companies, companies that are in bankruptcy or pre-competition proceedings, companies that have reached a refinancing agreement that satisfies the conditions and, lastly, sports companies.

In short, the new wording of article 348 bis of the Law on Capital Companies regulates in a more detailed way the right to separation of the participating shareholders, firstly because it puts an end to some of the doubts generated by the previous wording, secondly because of the new possibilities it opens up, now making it possible to eliminate or modify this right by means of the company's own articles of association, and finally because it redefines the case in fact, on the one hand extending it to the shareholders of the parent company, and on the other hand limiting it by adding new companies in which the application of the aforementioned law is impossible.