We help you in the elaboration of members pact to avoid surprises by separation of partners. In this article we want to give you the keys to get out if a partner decides to leave the business before takeoff. In refining we can help you to develop the partners Pact prior to avoid any kind of danger.

Societies are one of the most practical solutions when it comes to getting a business going. As it may be a good idea to share the business with a partner who has complementary skills, to contribute new ideas and capital, and to help us share the expenses. But in practice, there are situations that can make society not survive even before it takes off.

Above all, because in the initial moments that are usually the hardest due to the stress and handling of important expenses that can come to be produced. In many cases there are even breaks between partners who can break any project.

The partner’s right to leave

Any partner has the right to leave selling their shares. Although the outgoing partner can never force the other partners to purchase their capital. However, the law also contemplates that the withdrawal of a partner can be made by reintegrating its capital contributed or with some compensation agreed. Practice that can bring inconveniences and serious headaches to other partners and the administration of society. ”

If you are in doubt you can consult our experts on the law of Capital companies.

Capital Companies Act

Both corporations and limited liability companies, listed corporations and joint stock companies are governed by the Royal Legislative Decree 1/2010, of July 2, of the Capital Companies Act.

Mainly to create any type of Capital society is necessary the holding of a constituent general meeting, a certificate of the Central Mercantile registry, to enter the shares that each partner will contribute and determine the body of government.

History of the Capital Companies Act

Before the Royal Legislative Decree of 2010 in which the law of Capital companies is governed today, these types of companies were governed by law 3/2009 on structural modifications of the mercantile companies.  Although their oldest antecedents are in the Laws of 1951 and 1953 with independent texts that governed the disciplines of the capital companies separately. After the great reform of 1989 and 1995 there were still some discoordination, imperfections and certain gaps that had to be abolished. Fortunately, these texts have now been repealed.

The current law of Capital companies

The main idea of this reform is to have a single text that will normalize the situation of Capital companies.  One had the opportunity to overcome the traditional forms of regulation of this type of societies which were uncoordinated and there were a series of imperfections.  The result of the reform was to obtain a single text where all the legal rules on the capital companies were available, bearing in mind also the compatibility with the law of the stock market and the trade code.

In summary, the consolidated text has been developed to provide rules for certain reforms to be determined as revisions of traditional legal solutions, the dynamics of the trustees ‘ fiduciary duties can be expanded, there is a Regulation of more detailed quoted companies… Etc. This was repealed:

• Law 2/1995, of 23 March, of limited liability companies.
• Section 4 of title I of book II. Specifically from articles 151 to 157 of the current Code of commerce, relating to the stock-market partnership.
• Royal Legislative Decree 1.564/1989, of 22 December of the consolidated text of the Law of corporations.
• Title X (articles 111 to 117), of Law 24/1988, of 28 July, of the stock market, relating to listed companies, with the exception of article 114 (2) and (3) and articles 116 and 116 bis.

Last changes

Right of separation in case of lack of distribution of dividends. On December 29th, the new law 11/2018 of 28 December was published and entered into force, which modifies, among other important things, the Capital Companies Act of the Royal Legislative Decree 1/2010. This law that talks about such important issues as the separation of partners directly affects corporations, also limited liability companies, and stock partnerships. In addition, those entities of public interest with a higher number of 500 workers in their last year. Finally, to those large companies according to directive 2013/34.

This right has been amended. Now the listed companies or with shares negotiated within a multilateral system, those that are in competition or under the bankruptcy legislation, refinancing agreements and agreements for adhesions of anticipated proposals of agreement They are exempt from the new partner separation system in this case. When there is a lack of dividend distribution. Also excludes sports corporations and companies that have a prior agreement where the conditions of irrescindibilidad of the bankruptcy legislation are fixed.

In accordance with the amendment to article 348 bis, unless a provision contrary to the social statutes is included, after the fifth period counted since the registration in the Mercantile Register, the member which makes the statement of the General meeting its protest by The inadequacy of recognised dividends shall be entitled to separation.

How to act if a partner leaves the business before it takes off

What can you do? Although in addition to the circumstances indicated for a partner to enjoy the right of separation, it will have no effect if the total dividends in recent years amount to less than 25% of the legally registered benefits. Although there are other legal aspects to consider in these cases. In fine business we can help you with our advice and management in these delicate moments. But we all want you to understand how important it is to have a previous agreement. I mean, a partnership pact.

 The ideal would be to plan well the strategy to prevent any unfavourable outcome from occurring and if it happens to be as shielded as possible. So you have to pay close attention to preparing a good agreement to guarantee the survival of your society if at the last moment your partner decides to leave you. Remember that many of the societies are broken by the first disagreements. We help you to elaborate the clauses in a rigorous way including:

• Confidentiality and competence agreements. Develop statutes that prohibit the partner from leaving work for the competition.
• Help to specify appropriate clauses for the initial business commitments and difficulties.
• Perform a previous study. It is important to avoid mistakes when it comes to creating a society. The existence of different mistakes in the constitution of a society can help to avoid the loss of partners. Our team will help you to rectify them.

Refines always recommends before establishing a new company to make a pact of partners. It will avoid having to go through heavy litigation. However, we can also help you and advise you otherwise. We will advise you on existing legal procedures if you are a partner who decides to separate from a company.