The establishment of a company is based on a constitutive act that incorporates the desire of the shareholders (founding shareholders) to undertake commercial activities for the realization of profit. Of course, over time there is a risk that the relationship between the partners will deteriorate and divergences will arise between them which can lead to the liquidation of the company, as most of the time the partners no longer get along and can no longer take mutual decisions within the company.
In this sense, Law 31/1990 provides the cases in which the shareholders can withdraw from an LLC. The cases of withdrawal are provided in art. 226 of Law 31/1990 which presents the following content that we are going to analyze:
1) The shareholder in the general partnership, in the limited partnership or in the limited liability company may withdraw from the company:
a) in the cases provided in the article of incorporation;
a1) in the cases provided in art. 134;
b) with the consent of all other shareholders;
c) in the absence of some provisions in the articles of incorporation or when the unanimous agreement is not reached, the shareholder may withdraw for good reasons, based on a decision of the court, subject only to appeal.
(11) The right of withdrawal may be exercised, in the cases provided in par. (1) letter a) and b), within 30 days from the date of publication of the decision of the general assembly of the shareholders in the Official Gazette of Romania, Part IV. The provisions of art. 134 para. (21) shall apply accordingly. (2) In the situation provided in par. (1) letter c), the court shall order, by the same decision, also regarding the structure of the participation in the share capital of the other shareholders. (3) The rights of the withdrawn shareholder, due for his social shares, are established by the agreement of the shareholders or by an expert appointed by them or, in case of misunderstanding, by the court. The evaluation costs will be borne by the company.
Withdrawal of shareholders from an LLC occurs in the cases listed in art. 226 para. (1) of the Companies Law. The enumeration is limited, the shareholders do not have the possibility to establish the situations in which the latter could withdraw from the company, except for the case from letter a) of this paragraph.
The cases provided by letters a) and b) represent in fact a conventional termination of the agreement – article of incorporation, the shareholder who wishes to withdraw does nothing but exercise his subjective right provided by the clause inserted in the articles of incorporation (if any). The convening of the general meeting of the shareholders will be necessary in both cases, since it will be necessary, even formally, to decide on the confirmation of the withdrawal or the expression of the shareholders’ agreement regarding the shareholder’s decision to waiver the his quality in the company.
In all cases, the shareholders will have to decide by the respective decision, the new structure of the company, the level and the value of the share capital, as these mentions must be registered at the Trade Register Office for opposability. If the shareholders do not meet in the general assembly to take note of the withdrawal, the withdrawn shareholder can address the court with a declaratory action.
The third case is provided by letter a1 which refers to the provisions governing joint stock companies. In these situations, the shareholder may request withdrawal from the company if the other partners decide by the decision of the general meeting on: change of the main object of activity, moving the company’s headquarters abroad, changing the legal form of the company or merging or dividing the company. Thus, the shareholder who votes against these decisions, will simultaneously acquire the right to withdraw from the company, regardless of whether or not it is provided in the articles of incorporation.
The last case (letter c) stipulates that the shareholder may withdraw, only for good reasons, based on a court decision that is subject only to appeal, but two conditions must be met: (i) there are no provisions in the articles of incorporation regarding the exercise of the right or (ii) the other shareholders have rejected the request for withdrawal.
If the action in question regarding the withdrawal of the shareholder is to be admitted by the court, the social share of the withdrawn shareholder are to be annulled, with the consequence of the corresponding reduction of the share capital.
Therefore, the shares cannot be acquired by the company in its own name, by the other shareholders or by third parties, but only by an assignment made between the shareholders or those interested, an assignment that must be made before withdrawal, since, once the decision is pronounced, the quality of shareholder is lost simultaneously with the property right over the social shares.
Once the decision is pronounced, the withdrawn shareholder will acquire a right of claim against the company, respectively the equivalent value of the previously held shares, as a percentage of the company’s value. This value is either established by mutual agreement with the other shareholders or will be established by the court within the same judicial procedure by which the withdrawal of the shareholder was requested. The value of the shares will be established by an authorized expert appointed by the court.