In practice, the procedure for increasing the share capital of an LLC most often comes down to adopting a single resolution of the shareholders’ meeting, which is then submitted to the APR for registration. This approach is partly encouraged by the practice of the APR itself, bearing in mind that the APR website, in the Forms section, suggests precisely such a model of resolution.

However, we believe that such a procedure is not entirely correct.

The resolution on increasing the share capital, by its legal nature, constitutes solely a preparatory act expressing the company’s intention to increase its capital. In itself, it cannot create an obligation on the part of the members to subscribe for and pay/contribute new contributions. Such an obligation may arise exclusively on the basis of a separate statement by the members whereby they accept the subscription and payment/contribution of new contributions.

In our opinion, the individual will of the members cannot be considered to have been expressed through the shareholders’ meeting resolution, since the shareholders’ meeting is a body of the company. The member’s statement should therefore be given separately and addressed to the company, i.e. its legal representative.

• The correct procedure should, in fact, look as follows:
• resolution on increasing the share capital (as a kind of offer of the company addressed to the members);
• invitation to the members to subscribe for new contributions;
• individual statements by the members on the subscription and acquisition of new shares; and
• registration of the increase of the share capital before the APR, on the basis of the resolution and the members’ statements.

The main problem created by the practice described in the first paragraph, and which best exposes its incorrectness, is the impossibility of properly implementing the pre-emptive right to subscribe under Article 146, paragraph 4 of the Company Law, when the resolution on the increase of capital is at the same time the “final” act. Namely, how can a member of the company at all be given the opportunity to state their position regarding their pre-emptive right to subscribe if everything is already resolved by the resolution itself?

The practical solutions we have encountered, such as a statement by a member entered into the minutes of the shareholders’ meeting that they wish or do not wish to exercise their pre-emptive right to subscribe, are not adequate. They cannot cover all situations, particularly in the case where one of the members does not attend the shareholders’ meeting and therefore cannot give a statement that would be included in the minutes.

All of the above, somewhat ironically, represents the biggest problem precisely for the majority member of the company. Although they have a sufficient number of votes to adopt a resolution on increasing the share capital, the question of legal certainty remains open with regard to the procedure for exercising the pre-emptive right to subscribe vis-à-vis the other members who were outvoted, as well as the question of how the APR will view such a procedure. In other words, will the APR accept the registration of the increase of capital under a model that deviates from the form published on its website? Finally, a key question arises: regardless of the formal majority they hold, is the majority member in fact “blocked” from implementing the resolution on the increase of capital, financing the company, and registering the increase of capital and the payment of the contribution with the APR? We currently do not have a clear answer to this question from practice, but we will try to clarify it from a normative perspective, by obtaining an opinion from the competent ministry.