Page 221 - Albanian law on entrepreuners and companies - text with with commentary

share exchange are thinkable and must be allowed to be chosen in the division agreement with
respect to the Sixth Directive:

 The division maintains previous share proportions. In this case, envisaged by
Article 17 (1) of the Sixth Directive, members or shareholders of the divided
company receive shares of all receiving companies and their proportion in the
receiving company corresponds to the proportion they had in the divided company.
 The division does not maintain previous share proportions. In this case, envisaged
by Article 5 (2) of the Sixth Directive, the share proportions in the receiving
companies differ from the previous ones.
 A member or shareholder of the divided company gets only shares of one of the
receiving companies. This case, envisaged by Article 17 (1) letter b) of the Sixth
Directive, allows for the division of groups of members or shareholders.

Article 227 (4) does not exclude any of these modalities and is therefore in line with the
Directive. Independently from these modalities, members or shareholders of the divided
company must receive adequate compensation: the value of shares and of additional cash
payments attributed to them must correspond to the value of the shares they held in the
divided company.
The protection of creditors of the divided companies is particularly important. As the
creditors may not oppose the division of their debtor, they would need to raise their claims
against the recipient company to which their obligation has been transferred according to the
division agreement. In this case, not only would they compete with the creditors of this
recipient company, but they might have to accept that the recipient company in question has
not been equipped with sufficient property. Also the old creditors of the recipient company
require protection as they run the risk that their debtor receives additional obligations without
being sufficiently equipped with assets for all creditors involved. They may, as well as all the
other creditors concerned by the division, request adequate safeguards from their company
according to Article 227 (2), 221 (1). Moreover, Article 227 (3) establishes in favour of the
creditors of the divided company that the recipient companies are also jointly and severally
liable together with the divided company for the latter’s commitments.

5. Transformation: Change of legal form is an important way of restructuring. For
example, a successful LLC of the communication sector may want ‘to go public’ and list at
the stock exchange as a ‘public’ JSC. Such a company receives a new legal form without
changing its legal identity as debtor or creditor: The transformation does not change rights
and duties assumed by the company, Article 228 (2).
Transformation requires a decision of three-quarters of the General Meeting, Article
229 (3). Members or shareholders who did not attend are publicly called to state their
approval or disapproval in written within 60 days, Article 229 (3) and (4). If they do not react,
their approval is deemed given.

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