Capítulo 3: La generación del 37 Los precursores del subgénero
3.3. Entre el panfleto y la novela
A
Arrttiiccllee 4455..-- AArrbbiittrraattiioonn ccllaauussee
Subject only to the exceptions specifically laid down by Law, any disputes arising among the shareholders, between the shareholders and the Directors, and between any of the Directors and the Company, must be submitted to legal arbi- tration, for which purpose the parties in disagreement shall be obliged to take any action necessary for the arbitration to be effective, and in particular, they shall be obliged to appoint the arbitrators and identify the subject under dispu- te. Should the two parties fail to reach agreement over the appointment of a single arbitrator, the arbitration shall be performed by three arbitrators, one of whom shall be appointed by each party and the third shall be appointed by mutual agreement between the other two arbitrators.
TRANSITIONAL PROVISIONS
Until the necessary licences have been obtained in order for the Company to acquire the direct or indirect ownership of shares and ownership interest securities of companies that manage securities registration, clearing and settlement systems and secondary markets, and the related capital increase through which such acquisition is instrumented has been completed, the Company's corporate purpose shall be to promote the contribution of the shares directly or indirectly comprising the share capital of the institutions that manage the markets and the Spanish securities registration, clearing and settlement systems.
The voluntary transfer of shares is not allowed until the public instrument relating to the capital increase mentioned in the previous transitional provision has been duly registe- red, although under no circumstances shall the period of prohibition last more than two years from the date on which the Company was set up. This prohibition does not affect compulsory transfers, including those taking place as a result of merger, spin-off or similar operations.
Until the Company's shares are subject to an organised tra- ding regime their transfer shall be governed by the rules set forth below:
Any shareholder seeking to transfer all or some of his sha- res for valuable consideration or at no cost to any person, including another shareholder, must notify the Board of Directors in writing, specifying the number of shares that he wishes to transfer, the name, address and nationality of the person to whom he wishes to transfer them, the price or
74
annual report 2005
annual report 2005
06
75
valuable consideration of each share and the conditions of the transaction. This notification of the proposed transfer shall have the effect of an irrevocable contract offer. Within fifteen calendar days of receiving the notification, the Board of Directors shall notify the rest of the shareholders in case they wish to make use of their pre-emptive right to acquire the shares.
Within fifteen calendar days of the date on which the copy of the notification was sent, any shareholders who wish to do so may exercise their pre-emptive right of acquisition by notifying the Board of Directors by any written means, sta- ting that they are aware of and accept the regime that these transitional provisions of the Company's Articles of Association apply in allocating the shares that are subject to such a pre-emptive right of acquisition.
Within fifteen calendar days of the day after the date of expiry of the period given to the shareholders in which to exercise their pre-emptive right of acquisition, the Board of Directors shall distribute the shares in accordance with the following rules and circumstances:
(a) Transfer arranged with an individual or entity that is alre- ady a shareholder of the Company
The Board of Directors shall inform that shareholder of the number and name of the shareholders who have exercised their pre-emptive right of acquisition, specif- ying the number of shares initially due to each of them, which shall be the result of applying their percentage hol- ding in the Company's share capital to the number of shares to be transferred.
The shareholder to whom it was wished to transfer the shares shall have three calendar days in which to inform the Company whether he wishes to acquire the rest of the shares not included in the initial allocation.
If this notification is received, the initial allocation of sha- res to the shareholder or shareholders who have exerci- sed their pre-emptive right of acquisition shall be confir- med, and the rest of the shares shall be allocated to the shareholder to whom it was wished to transfer the shares. If such notification is not received from the shareholder to whom it was wished to transfer the shares or if the answer is negative, the Board of Directors shall amend the initial allocation made to the shareholder or shareholders who have exercised their pre-emptive right of acquisition and shall allocate them the shares to be transferred in propor- tion to the sum of the face value of the shares they own. (b) Transfer arranged with an individual or entity that is not a shareholder of the Company
If the person to whom it is wished to transfer the shares is not a shareholder, the Board of Directors shall allocate the shares in question to each of the shareholders who have exercised their pre-emptive right of acquisition in propor- tion to the sum of the face value of the shares they own. After allocating the shares, the Board of Directors shall notify the selling shareholder within ten days of the name and address of the shareholders who have been allocated sha- res and the number of shares allocated to each of them. The same notification shall be sent within the same time limit to each of the shareholders who have been allocated shares. Subsidiarily, if none of the shareholders wish to exercise their pre-emptive right of acquisition, this right may be exer- cised by the Company, which must notify the selling share- holder by any written means within five calendar days of the date of expiry of the deadline set for shareholders to exerci- se their pre-emptive right of acquisition.
The price for which the Company or, as appropriate, the shareholders may acquire the shares for sale shall, at the option of the holder of the pre-emptive right of acquisition, be either the price offered by the third party to the sharehol- der interested in transferring his shares, or the price set by the Company's auditor based on the real value of the shares being transferred. If the Company is not obliged to have its annual financial statements audited, an auditor shall be appointed at the request of any of the shareholders or Directors by the Companies Registrar of the locality where the Company is registered. In the latter case, the auditor's fees shall by paid by the transferor and the acquires, who shall pay half each.
If the offeror has not received the notifications referred to in the third and sixth paragraphs of this Article within three months of giving the Board of Directors notice of his inten- tion to transfer the shares, then he shall be free to transfer the shares as proposed. The transfer must be completed within a maximum of one month.
If the transfer is not completed in this time, the shareholder may not submit any further transfer proposal until a year after the previous one.
The provisions set forth above shall similarly apply to the transfer of pre-emptive subscription rights. The time limits set for the various formalities shall be reduced proportiona- tely so that they can be completed in the time allowed in each case for exercising the pre-emptive subscription right. The foregoing restrictions shall not apply to share transfers made to companies belonging to the same group as the transferring shareholder.