The transfer of shares can be done through a contract of assignment of the shares of a company to one or more persons, already associated in the company or foreign to it, who thus acquire the quality of partners.
Usually, in practice, the transfer of shares occurs if:
– one / more partners wishes to leave the company,
– it is desired to co-opt new members,
– it is desired to change the participation percentages of the associates.
In order to be opposable to third parties (individuals, legal entities, public authorities) it is necessary to register the transfer operation at the Trade Register Office where the company has its headquarters.
The assignment can be of two types:
1. Assignment between shareholders,
2. Assignment to persons outside the company.
The transfer of the shares between the associates is regulated by art. 202 para. (1) of Law no. 31/1990.
In order to operate the transfer of the shares, it is necessary to conclude an assignment contract between the assigning partner and the assigning partner, as well as to update the articles of association with the new structure of the associates.
The transfer of the shares must be registered in the Trade Register and in the register of associates of the company.
The assignment produces effects towards third parties only from the moment of its registration in the Trade Register.
The partial or full transfer of shares to persons outside the company involves a more complicated procedure and is carried out in two stages.
The first stage is the submission of the Decision of the Shareholders’ Meeting or the Decision of the Sole Shareholder to the Trade Register.
After analyzing it and the relevant forms, the Trade Register communicates the decision to the Official Monitor of Romania, to be published.
the decision on the transfer will be sent by the Trade Register Office immediately, to the National Agency for Fiscal Administration and to the general directorates of the county public finances and of the municipality of Bucharest.
The interested persons, in this case the fiscal bodies and the social creditors, but also “any other persons prejudiced by the decision of the associates regarding the transmission of the social parts” benefit from a term of 30 days from the publication of the decision in the Official Monitor of Romania – Part IV , to formulate a request for opposition requesting the court to oblige, as the case may be, the company or associations to repair the damage caused, and if necessary, to bring the civil liability of the partner who intends to transfer its shares.In order to avoid such a situation, the company’s representatives must ensure that both the company and its associates have no debts to the Romanian State or to other persons who could oppose the transfer.
After the 30-day period has elapsed, if no such opposition has been made, the second stage may be moved.
This stage involves the preparation of the assignment contract, the updating of the articles of association, the preparation of all documents provided by law for this situation and the registration of the operation at the Trade Register.
It should be noted that the transfer of shares may be made at their nominal value, or at a higher value.
In this case, the transferor owes a tax of 16% on the gain obtained, represented by the difference between the nominal value and the value of the transfer.
With regard to dividends, after the date of transmission of the shares they belong to the transferee, unless the parties have agreed otherwise.
Another situation that can be encountered is the transfer by inheritance.
If the articles of association provided for the possibility of continuing the company with the heirs, they become associates of the company, acquiring fractions of the share capital and implicitly voting rights in the general meeting of shareholders, in proportion to the shares due to them.
If, following the succession transfer, the number of 50 associates is exceeded due to the number of heirs, they will be obliged to designate a number of holders who must not exceed the legal maximum.
The assignment of the shares by succession must also be registered in the Trade Register and in the register of the company’s associates.
In conclusion, given that the transfer of shares may become quite complex, it is recommended that the parties turn to a specialist.
For more information, you can contact us here.
Law Office “Andreea Sersea”
Zefirului Street, No. 19, Sector 2, Bucharest