Page 186 - Albanian law on entrepreuners and companies - text with with commentary

3. Articles 29 (4) and 40 Second Directive require a qualified majority for the restriction
of withdrawal of the right to acquire shares on pre-emptive basis. Majorities are clearly dealt
with by Article 174 (2) first sentence of the new Law: the reference is to Article 145 which
requires three-quarters majority for all cases of capital increase.
If banks or other financial institutions subscribe the capital increase shares in order to
offer them to the shareholders on behalf of the company ‘indirectly’, this is not considered an
exclusion of the pre-emptive right, Article 29 (7) of the Second Directive. The Company Law
does not deviate from this rule; it does not mention the case at all. This means that this fact
must be interpreted ‘in the light and spirit’ of the Directive. In other words, should this
solution occur in Albania, it will not be considered an exclusion of the pre-emptive right in
compliance with Article 29 (7) Second Directive. There was no need to explicitly mention this
case in the Law.

CHAPTER III
LIMITED CAPITAL INCREASE

Article 175
Conditions for the Limited Capital Increase 160
(1) The General Meeting may decide to increase the capital by issuing new shares
to be offered for subscription only from current shareholders, pro rata to the shares
owned by them prior to the increase, or by increasing the nominal value of each share.
(2) Except for cases of increase of the nominal value of each share is resolved to be
realized by capitalizing the company assets pursuant to Article 177, the limited capital
increase may only be carried out following unanimous approval of all shareholders. 161

Comment:

Article 27 of the Law No. 129/2014 amended Article 175 to clarify a concern raised by
the stakeholders in relation to the possibility of increasing a joint-stock company’s capital
through increase of nominal value. Under the amendment, the cases of limited capital increase
that are agreed by all the shareholders of the company include the increase of capital through
nominal value increase. Unanimity is not required where the increase of the nominal value of
shares is done through the capitalization of company assets under Article 177 of Law No.
9901.

CHAPTER IV
AUTHORIZED CAPITAL

160 Amended by Law No. 129/2014, Article 27.
161 Article 27 of the amending law.
185