1/1/1900
1. THE LEGAL PROCEDURE REGARDING THE TRANSFER OF SHARES OF A JOINT STOCK COMPANY
The present legal opinion refers to the transfer of shares of a joint stock company in Romania – respectively SEMROM TRANSILVANIA), given that this company is not enlisted with the traded companies (where it is applied the special law of the capital market), that the share capital consists only of nominal shares and the transferor is a major shareholder of this joint stock company (owning 84.72% of the share capital).
The transfer of shares represents a change of the Articles of association of the company (as it consists of changing the structure of the shareholders). In accordance with the dispositions of Art. 113 of the Romanian Law no. 31/1990 regarding the companies, in order to make decisions which lead to the change of the Articles of association, it is mandatory to be convoked the Extraordinary General Meeting of Shareholders. The convocation shall be made by the Board, or by the directors, at the request of the major shareholder. The deadline for the meeting cannot be less than 30 days after the convocation is published in the Official Gazette.
In the text of the convocation, it will be mentioned the place and date of the meeting, the agenda, with specific reference to all matters to be discussed. In case of the transfer of shares, the convocation will include the full text of the proposals (respectively all the details regarding the share transfer).
The convocation shall be published in the Official Gazette and in a newspaper of wide spreading from the town where the company has its registered office of from a near town.
Given that all shares of the joint stock company are nominal shares, the convocation can only be done by registered letter or, if the Articles of association allows, by letter sent electronically, having attached the extended electronic signature, sent at least 30 days before the date of the meeting, at the address of the shareholders, as these addresses are mentioned in the shareholders’ Register. Changes of address can not be opposed to company if the Company was not notified in writing by the shareholder in this respect.
In accordance with the dispositions of Law 31/1990, the decisions are taken with the vote of the majority of the shareholders who are present or represented at the meeting, provided the fact that in the Articles of association it may be stipulated different quorum and majority requirements. In the present case, since the transferor is a major shareholder, the decision may be taken only by him, provided that there aren’t special provisions in the Articles of Association, regarding different requirements for the quorum and majority.
Also, in case of the share transfer, there may be stipulated in the Articles of Association a preemtion right of the other shareholders to buy the shares. In this case, if the other shareholders express their option to buy the shares, therefore the share transfer to another third party cannot be performed. The preemtion right is subject to certain requirements regarding the term of acceptance and the price – which are stipulated in the Articles of Association.
The General meeting of the shareholders shall take decisions by open vote.
The shareholders who are present at the General Meeting shall make a written report, which will be signed by the president and the secretary of the meeting, in which shall be mentioned that there were fulfilled all the formalities regarding the convocation, the date and the place where the General Meeting is held, the present shareholders, the number of shares they have, a brief presentation of the discussions, the decision which was made. At the report it will be attached the documents reagarding the convocation, and the list of the shareholders present at the meeting. This report will be written in the Register of General meetings, which is an internal document kept by the company.
In order to be opposable to any other third party, the decisions made by the General meeting will be submitted in copy to the Trade Registry, within 15 days, for the registration with the Trade Registry and to be published in the Official Gazette.
The decision which was made by observing the conditions stipulated by law, is mandatory for the shareholders who did not attend the meeting and for those who voted against.
Under the laws of Romania, the transfer of shares of a joint stock company, is not required to be registered with the Romanian Trade Registry. Thus, the registration in this case depends on the shareholders’ option. The shareholders can do the registration of the share transfer with the Trade Registry if they deem necessary, in order that third parties to know their identity and position in the company.
In this respect, the Article 134 (3) from the Methodology Rule regarding the Trade Registry records (part of the Order of Government no. 2594/2008), stipulates that: "(3) The transfer of ownership of shares is not subject to registration with the Romanian Trade Registry. If, however, the registration is required, it shall be done based on the extract from the Register of shareholders, certified by the company administrator (director), who will certify the share transfer of the shares in this register.
In conclusion, the share transfer agreement concluded between the transferor and transferee is perfectly valid. The transfer shall produce full effects only by concluding it with the observance of the Romanian law regarding the convocation procedure and based on the decision of the shareholders, and will be registered in the Register of shareholders, which is an internal document of the company. In this Register of shareholders, which is kept by the company, is recorded the current structure of company.
In case the transferee wants to do the registration of the share transfer with the Trade Registry, then the registration may be requested based on an extract from the Register of shareholders, which will be certified by the administrator (director) of the joint stock company.
2. IS IT POSSIBLE TO MAKE THE SHARE TRANSFER ONLY WITH THE REQUEST OF THE PERPETRATED WITHOUT THE APPEARANCE OR APPROVAL OF THE TRANSFEREE FOR THE TRANSFER?
Taking into account that:
(1) Kolal Holding Romania is the company which, according to the Services Agreement concluded with the individual, undertook to transfer to the individual the shares which it will hold in the Romanian joint stock company;
(2) Kolal Holding Romania is the major shareholder of the joimt stock company Semrom Transilvania, Kolal Holding Romania can make the decision to transfer the shares it owns in Semrom Transilvania, without being needed the consent of the other minor shareholders of the joint stock company (provided that there aren’t special provisions in the Articles of Association, regarding different requirements for the quorum, majority and preemption rights),
THEREFORE, IN OUR OPINION, subject to the fulfillment of all the conditions stipulated by law, the individual who is part of the Services Agreement may sue KOLAL HOLDING ROMANIA, asking the compentent court to sentence a decision in order to oblige KOLAL HOLDING ROMANIA to conclude the share transfer agreement.
The present legal opinion is based on the information provided by the Client, on the information from the official site of the Romanian Trade Registry and to the information from the official site of the Bucharest Stock Exchange, and provided that there aren’t special provisions in the Articles of Association, regarding the right of preemption of other shareholders in case one of the shareholders wishes to sell his shares or the provisions of quorum and majority requirements higher than those stipulated by Law 31/1990.
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