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Company Law: simplification in the procedures for mergers and spin-offs

With a view to observe the commitment undertaken by the Romanian Government in respect of continuing the development of the economic and financial reforms for maintaining the stability of the Romanian economy, the Government Emergency Ordinance no. 2/2012 for amending and supplementing of the Company Law was published in the Official Gazette no. 143/2012 (G.E.O 2/2012) [in Romanian, Ordonanta de urgenta nr. 2/2012 pentru modificarea si completarea Legii 31/1990 privind societatile comerciale].

The main amendments refer to the merger/spin-off procedure and provide the following:

  • There is no need for a merger or spin-off report to be filed with the trade registry if the merger/spin-off project was examined by an expert (i) in case of companies incorporated through a merger or spin off procedure; or (ii) in case the share capital increase was made with a view of a merger/spin-off procedure and for the cash payment of the shareholders pertaining to the absorbed or divided company. Also, G.E.O  2/2012 provides the option for the involved companies to publish the merger/spin-off project on their websites, instead of publishing it in the Official Gazette;
  • Adequate protection for the creditors of the company involved in a merger or spin off procedure. As such, any creditor owning a certain and payable receivables, which receivables is prior to the publication date of the merger/spin-off project, and which is not due at the publication date, can file an opposition if its receivables are endangered by the aforesaid procedure;
  • The term for filing an opposition is of 30 days from the publication date of the merger/spin-off project and the opposition will be submitted to the trade registry which will further send it to the competent court;

Other amendments refer to the right of a shareholder to withdraw from a company:

  • The shareholder can exercises its right to withdraw from the company within 30 days from the publication date of the decision of the general meeting of shareholders in the Official Gazette and
  • The rights of the shareholder withdrawn from the company are established based on a shareholders’ agreement or by an expert assigned by them, or by the court, in case an agreement cannot be reached; the evaluation costs being born by the company;
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