Bs. As., 1/4/93
VISTO Law No. 23.696, its Rule Decree No. 1105 of 20 October 1989, and Decrees No. 435/90, 2074/90, 2423/91, 2686/91, 369/92 and Resolution No. 683/90 of the ex-MINISTERY of ARTWORKS and PUBLIC SERVICES and:
That Participated Property Programs have been conceived as valid instruments within the process of privatization of state entities. In this context, existing legislation has established the principles to which the procedures for the implementation of the proposed objectives should be subject.
That Law No. 23.696, contemplates in Chapter III the application of Participated Property Programs as a specific way for the acquisition of all or part of the representative actions of the share capital of companies, societies, establishments or productive haciendas declared "subject to privatization".
That, pursuant to article 21 of Act No. 23,696, the Executive Power is empowered to use or not the Participated Property Programmes as a valid instrument within the various privatization processes, evaluating such use according to the criteria of opportunity and convenience.
That the enumeration of the types of subjects acquired in the Participated Property Programs, made in article 22 of Law No. 23.696 is taxative.
Article 26 of the Act states that each acquirer participates individually in the ownership of the entity to privatize, whose share of the share will be estimated in direct relation to a mathematical coefficient.
Article 30 of Act No. 23.696 establishes the principle of onerosity for the acquisition of actions.
That the same article 30 mentioned above consecrates the need to conclude a General Agreement on Transfer, in which the price of the actions to be acquired by the employees - acquirers, as well as the number of annuities and the way of payment.
That, according to the provisions of Article 23 of the Law, for the purposes of the implementation of the Participated Property Programs is a necessary condition for the entity to privatize the form of an Anonymous Society.
That according to article 38 of Law No. 23.696, the management of the actions assigned to a Participated Property Program, while such actions have not been paid and released from the garment will be mandatoryly syndicated.
That it is necessary to regulate in more detail Chapter III of Law No. 23.696, in order to enable the implementation of the Participated Property Programmes in an organic and coordinated manner with the privatization process carried out by the National Government.
This Decree is issued in the use of the emerging powers of article 86 (2) of the National Constitution.
THE PRESIDENT OF THE ARGENTINA NATION
CHAPTER I: GENERAL PRINCIPLES AND INSTRUMENTATIONArticle 1 El MINISTERY OF WORK AND SECURITY SOCIAL shall determine for each company, society, establishment or productive hacienda declared "subject to privatization" the feasibility of implementing a Participated Property Programme as a means of acquiring the entire or part of the shareholder's share capital, without prejudice to the other powers granted by Decree No. 2686/91. The Authority of Application in the process of privatization shall implement such Program, in such a case, to foresee in the Pliegos of Bases and Conditions for the public tender, the development of the same. Art. 2° . When the privatization of a state entity takes into account the participation of the subjects listed in article 22 (a) of Law No. 23.696, this will be carried out through a Participated Property Programme, except that another form of participation is expressed and founded. Art. 3rd The Authority of Implementation should express the reasons for the non-inclusiveness of a Property Program Participated in the process of privatization of a State entity. Such a decision should be shared by the Ministry of Labour and Social Security. Art. 4° Determined the feasibility of implementing a Participated Property Programme, the Implementing Authority, exercising the powers conferred by articles 6 and 7 of Law No. 23.696, shall organize the entity to privatize under the form of an Anonymous Society, and must also establish the necessary regulations in the social statutes. In the event that the subjects listed in Article 22 meet with private investors, at the time of the constitution of the Anonymous Society all the actions will be of the same type for all kinds of acquirers, except in those cases where by the nature of the society to transfer, it is appropriate to introduce a functional distinction between some categories of shareholders, the actions assigned to the implementation of a Participated Property Program will always be scriptural. Art. 5° . The only subjects legitimized to access the property of the entity subject to privatization through a Participated Property Program are those enumerated taxatively in article 22 of Law No. 23.696. Their participation in the property shall always be individual, in accordance with article 26 of the same Law. Art. 6° . Within the time period established, the subjects legitimized to participate in the Programme must express their intention to adhere to it; such an expression must be individual, voluntary, and may not be carried out through representatives. Art. 7° Las The actions for a Participated Property Programme shall be fully paid by the acquirers, whether in the event of sale, concession, licence or permit, in accordance with article 30 of Law No. 23,696. The acquisition of shares in a Participated Property Program is always onerous. Art. 8° . The economic, political and any nature rights arising out of the ownership of actions corresponding to a Participated Property Programme shall be exercised exclusively by the acquirers provided for in article 22 of the Law No. 23,696 or by representatives who so designate especially.
CHAPTER II: GENERAL AGREEMENT OF TRANSFERArt. 9° . For the purpose of formalizing the sale of shares of a Participated Property Program, a General Transfer Agreement shall be held. This Agreement shall include the share of the share of the sale, the amount of shares represented by it, its price and the mode and time of payment. Art. 10. . Will be part of the General Transfer Agreement, the acquisitions of the actions assigned to a Participated Property Programme, the Vendor State and the Trust Bank. Art. 11. de For the purposes of articles 34, 35 and 36 of Act No. 23,696, the General Agreement on Transfer shall contain: (a) The designation of the Trust Bank, and as an annex, the Trust Agreement with that Bank; (b) If applicable, the garment contract provided for in article 34 of Act No. 23,696. Art. 12. El The General Transfer Agreement must be implemented as an accession contract. Art. 13. Los The consensual mechanisms mentioned in article 40 of Law No. 23,696, not only in an exemplary capacity, can be made available in the General Agreement on Transfer of other mechanisms that lead to the best development of the company.
CHAPTER III: DISTRIBUTION COEFITArt. 14. Las Conceptual bases and mathematical methods for the determination of the coefficients of participation defined in article 27 of Law Nro. 23,696, to be approved by the Ministry of Labour and Security SOCIAL, at the proposal of the respective Authority of Implementation.
CHAPTER IV: LIMITATIONS TO TRANSMISIBILITY OF ACTIONSArt. 15. Las The actions corresponding to a Participated Property Program that have been paid, released from the garment and assigned to the acquirers will be of free availability.
The Authority of Implementation may impose limitations on transmissibility, more extensive than the principle envisaged in the preceding paragraph, and must establish such a decision. Such limitations shall be temporary and shall be conditional on the issue of actions, in social statutes, or within the General Agreement on Transfer.
Once the actions have been paid, or if any, the limitations established by the Application Authority may be extinguished: (a) establish new limitations on the transferability, through the holding of a binding agreement for all the acquiring parties; or (b) disabling such actions from the Participated Property Programme, transforming them into actions of free transferability to third parties. These decisions should be made by a simple majority of acquiring individuals gathered in the Special Assembly, convened for that purpose. Each acquiring subject shall have one vote and the decision taken shall be binding on all of them. In these cases representation is not permitted.Art. 16. . When limiting the transferability for actions assigned to a Participated Property Program, these can only be transferred within each class of acquirers. In these cases, a Guarantee and Repurchase Fund should be established to acquire the actions of the acquiring individuals who cease to belong to the Property Program Participated by death, resignation, dismissal, withdrawal or any other legal or statutory cause and to sell such actions to the original subject-acquiring or to those who subsequently enter. As long as the actions remain in the Guarantee and Repurchase Fund, the political rights of such actions will be exercised by the Trust Bank, who will act as the president of the subject-acquirants.
CHAPTER V: SINDICATION OF ACTIONSArt. 17. Las The actions subject to a Participated Property Program will be syndicated, in terms of the exercise of the right to vote, while they are not fully paid and released from the garment. To that end, a Convention on the Prohibition of Actions should be concluded, which is annexed to the General Agreement on Transfer.
CHAPTER VI: REPRESENTATIONArt. 18. . The election of at least one Director and one Director will be ensured in representation of shareholders belonging to the Participated Property Programme, in the governing body of each Society. The Director shall be elected by the subject-acquirers, assembled in the Special Assembly, in accordance with article 262 of Act No. 19.550. This right may not be exercised if, once the original distribution has been made, the share of ownership assigned to the Participated Property Programme will be reduced by more than one ACCOUNT per SCIENT (40%).
CHAPTER VII: CAPITALArt. 19. In cases of capital gains, the purchasers who are holders of shares covered by a Participated Property Programme shall have the right to subscribe and integrate the amount of shares of their class necessary to maintain, at least, the share of ownership, either through the procedure provided for in Act No. 23.696 or Act No. 19.550. The emission and integration conditions of these actions may not be more burdensome for their purchasers than for the rest of the actions. The actions not subscribed in time and form may be acquired by the shareholders of other classes. The regulation of this precept must be contained in the statutes of the anonymous companies that are created by privatization.
CHAPTER VIII: BONS OF PARTICIPATIONArt. 20. La The Authority of Application must in all cases foresee, at the time of the transformation of the state entity into the Anonymous Society, the issue of participation bonds for the staff, by the same Society. The issuance of such bonds shall be recorded in the social statutes, as required by article 227 of Act No. 19.550.
CHAPTER IX: FIDEICOMISOArt. 21. . The functions of trustee provided for in articles 34, 35 and 36 of Act No. 23,696 shall always be exercised by a financial entity, authorized by Act No. 21,526 to perform such contracts. Art. 22. La The respective Implementation Authority shall designate the Trust Bank. Art. 23. El The deposit in the Trust Bank of the actions given in pledge in favour of the seller State constitutes a guarantee trust. The Trust Bank shall act in this case as custody in the interest of the creditor State, article 3207 of the Civil Code being applied. Art. 24. El The trust contract with the bank must contemplate the way in which the mechanisms of collection, payment, release of shares and distribution of them will be implemented in the case, established in articles 35 and 36 of Law No. 23.696 and any other contractual provision for the implementation of the Participated Property Programme. Art. 25. El The Trust Bank, while there are limitations on the transferability of actions, will administer the Guarantee and Repurchase Fund.
CHAPTER X: ACTION FUNDArt. 26. . The subjects-acquirants shall be in favour of the State - a real right-holder on the actions subject to the Participated Property Programme, as a guarantee of payment for the price of those, as provided for in article 34 of Law No. 23.696. Art. 27. . While the obligation to pay the price of the actions has not been fully complied with, the regime of syndication of the actions corresponding to the Participated Property Programme shall be maintained, without prejudice to the partial release of the constituted garment in guarantee at the time of the transfer. Art. 28. . Subject-acquirants shall retain the exercise of political rights arising from their shareholders ' status, by virtue of the assignor and/or the Trust Bank to facilitate such exercise by notification to the issuing company as provided for in article 238 of Act No. 19.550. Art. 29. La The entity that will keep the record of the actions of the anonymous company in question, will register the constitution of the royal right of garment and, if any, the transfer of ownership of the actions if the seller State executed the guarantee of the goods. Art. 30. . In order to give effect to the garment guarantee for breach of the subject-acquirers, the provisions of article 585 of the Trade Code shall apply.
CHAPTER XL: COMPLEMENTARY PROVISIONSArt. 31. . WORKING MINISTERIES AND SOCIAL SECURITY AND ECONOMY AND ARTWORKS AND PUBLIC SERVICES shall issue a joint resolution within the time limit of VEINTE (20) working days from the entry into force of this Decree, where the steps to follow in the implementation of the Participated Property Programs are regulated. Art. 32. Decree No. 1105/89, article 58, paragraph 2, of Decree No. 435/90, as amended by Article 71 of Decree No. 1757/90; article 59, paragraph 2, of Decree No. 435/90, article 73, of Decree No. 1757/90; article 63, paragraph 2, of Decree No. 435/90; article 19 of Decree No. 20743/90; article 4 Art. 33. . Communicate, publish, give to the National Directorate of the Official Register and archvese. . MENEM. . Domingo F. Cavallo. . Enrique O. Rodriguez.