Spin-off. Effects of the distraint upon the shares of a shareholder within a limited liability over the lawfulness of the partial spin-off of the company

DREPTUL AFACERILOR

Abstract

According to art. 66 para. (2) of Law no. 31/1990, the shareholder’s creditors may attach, during the company duration, the shares due to the shareholders by winding-up or may seize and sell the shares of their debtor. Thus, it follows that the assignment of shares to another entity following a partial spin-off, cannot be legally opposed to such creditors before the settlement of their debt, as this is an issue of legality of the assignment of the equivalent value of the company equity. The concrete value of shares is represented by what could be obtained in their exchange following a possible winding-up, so that this value is different depending on the company equity of each legal entity. Therefore, the court cannot validate the legal nature of an operation of partial spin-off of a company, by assigning a share of this company equity to the new company, under the circumstances in which the shares of either shareholder are subject to a distraint.