Increase in share capital. Obligation to gather unanimity of votes when achieved by increasing the value of existing shares in exchange for new contributions

DREPTUL AFACERILOR/ASPECTE DE DREPT PROCESUAL

Abstract

From the interpretation of Article 210 of Law no. 31/1990 it results that the share capital of a joint stock company can be increased in two ways: the issuance of new shares or the increase of the nominal value of the existing shares, in exchange for new contributions. In the latter case – the increase of the share capital by increasing the nominal value of the shares – the law requires the unanimous vote of all shareholders, unless it is achieved by incorporating reserves, benefits or issuance premiums, when the majority vote is sufficient. Such a provision is explained by the fact that, in case of increase of the share capital by incorporating the reserves for the increase of the share capital, the company's reserves are used and the shareholders are not obliged to bring additional contributions, the value of shares of all shareholders increasing pro-rata with the value of reserves included therein, without any other counter-performance or contribution.

Adoption, by a majority of votes, of a decision to increase the share capital, giving minority shareholders, who voted against, a right of option – to agree to new contributions for the preservation of their own shares or to lose the shares held in exchange for compensation – is not in line with the legal requirements. As long as obligations have been established for some shareholders to bring new contributions for the increase of the share capital and the preservation of their own shares, such a decision could be taken only with the unanimous vote of all shareholders, according to Article 210 paragraph (4) thesis I of Law no. 31/1990, and the adoption of the decision only with the vote of the majority clearly and indisputably contradicts these legal provisions.