Los socios tienen derecho a desvincularse en los casos que establece el artículo 346 the TRLSC and the company must reimburse the financial content of its shares.
The following is the work of Juan Rafael Juan Sanjosé, Alternate Judge of the Provincial Court of Castellón.
As a member exclude
During the life of a society produces many vicissitudes and sometimes a partner ceases to be the right partner for our business trip. ¿How to exclude a partner that instead of contributing to society, has become a burden?
Fortunately, legal mechanisms to solve this situation.
First, we must anticipate everything that can go wrong in a pact partners. In this, behaviors will post required to partners, and thus, find out the truth and the failure disuadiremos.
Moreover, Article 86 and following of the Companies Act allows for ancillary:
Article 86. Character statutory.
1. The statutes of capital companies may be established other than ancillary contributions, expressing specific content and determined and if be performed free of charge or pay, well as any penalty clauses inherent in their failure.
2. In no case may integrate ancillary capital.
3. The statutes may set them mandatory for all or some of the partners or link the requirement for ancillary services to the ownership of one or more shares or shares specifically certain.
Namely, in the bylaws must specify the ancillary services that require their partners, in a particular way, in amount and time, and penalty clauses can be set even to reinforce. We can establish professional dedication, exclusivity, or other preferably quantifiable objectives.
Last, the Corporations Act, allows in Article 350 ff, the exclusion of the partner for breach (provided it is not involuntary) of an ancillary:
Article 350. Legal causes of exclusion of members.
The limited liability company may exclude the partner who voluntarily fails the requirement for ancillary, well as the managing partner who violates the non-competition or been convicted in society to compensate for damages caused by acts contrary to this Act or the bylaws or made without due diligence.
Article 351. Statutory causes of exclusion from membership.
In limited liability companies, with the consent of all partners, statutes may join specific causes of exclusion or modification or deletion that might include them in advance.
Article 352. Exclusion procedure.
1. The exclusion will require agreement of the general meeting. In the minutes of the meeting or annexed shall include the identity of the members who voted in favor of the agreement.
2. Except condemning the managing partner to indemnify the company, the exclusion of a partner owns at twenty-five percent in the required capital, and the agreement of the general meeting, final judgment, provided that the member does not comply with the agreed exclusion.
3. Any member who voted in favor of the agreement will be entitled to institute foreclosure action on behalf of society when it has not been made within one month from the date on which the resolution of exclusion.
Namely, if the member has less than 25% society, will require the default, over the resolution of the Annual General. If the member has more than 25% society, require a final judgment. In either case, irrespective of any penalty clauses, will have to liquidate the value of their shares. It is essential that the endpoint is provided previously in the statutes or in pact partners.