Article 186
(application of Subsection 4.4.4)
(1) The change in the share capital with the purpose of executing financial restructuring shall be:
1. a change in the share capital with new in-kind contributions, the subject of which are claims by creditors against the debtor, and
2. a simplified reduction in the share capital due to covering losses that have not been offset, if it is carried out, pursuant to the financial restructuring plan, at the same time as an increase in the share capital referred to in point 1 of this paragraph.
(2) Subsection 4.4.4 of this Act shall apply to change in the share capital with the purpose of executing financial restructuring if:
1. compulsory settlement proceedings have been initiated against an insolvent debtor organised as a public limited company, and
2. the insolvent debtor makes, or intends to make, an alternative offer as referred to in the first paragraph of Article 144 of this Act, or an offer referred to in the second paragraph of Article 144 of this Act.
Article 187
(mutatis mutandis application of the subsection for a limited liability company) (1) The rules of Subsection 4.4.4 of this Act concerning an insolvent debtor organised as a public limited company shall apply mutatis mutandis also for an insolvent debtor organised as a limited liability company.
(2) In the mutatis mutandis application of the rules referred to in the first paragraph of this Article:
1. instead of the terms „number of shares“ and „nominal or pertaining amount of a share“ the term „nominal amount of the subscribed contribution“ shall be used,
2. instead of the term „memorandum and articles of association“ the term
„shareholders agreement“ shall be used.
Article 188
(application of rules of ZGD-1 concerning a change in the share capital) (1) Change in the share capital of an insolvent debtor with the purpose of executing financial restructuring shall be subject to the rules of ZGD-1 concerning changes in
the share capital of a public limited company or a limited liability company, unless otherwise provided for in Subsection 4.4.4 of this Act.
(2) An increase in the share capital of the insolvent debtor with the purpose of executing financial restructuring shall not be subject to Article 334 of ZGD-1.
Article 189
(calling a general meeting)
Notwithstanding the first paragraph of Article 297 of ZGD-1, the general meeting to decide on a change in the share capital with the purpose of executing financial restructuring shall be called at least fifteen days prior to the session of the general meeting.
Article 190
(claims of creditors who may be the subject of in-kind contribution upon an increase in share capital with the purpose of executing financial restructuring) (1) Each ordinary claim of the creditor against the insolvent debtor included in the list referred to in point 3 of the first paragraph of Article 142 of this Act may be the subject of an in-kind contribution upon an increase in the share capital with the purpose of executing financial restructuring, irrespective of whether it has been lodged in compulsory settlement proceedings.
(2) If the insolvent debtor makes an offer as referred to in point 2 of the first paragraph of Article 144 of this Act also to creditors who are the owners of subordinated claims, every subordinated claim of the creditor against the debtor included in the list referred to in point 4 of the first paragraph of Article 142 of this Act may also be the subject of an in-kind contribution upon an increase in the share capital with the purpose of executing financial restructuring, irrespective of whether it has been lodged in compulsory settlement proceedings.
(3) If the insolvent debtor makes an offer as referred to in point 2 of the first paragraph of Article 144 of this Act also to creditors who are the owners of secured claims, every secured claim of the creditor against the debtor included in the list referred to in point 5 of the first paragraph of Article 142 of this Act may also be the subject of an in-kind contribution upon an increase in the share capital with the purpose of executing financial restructuring, irrespective of whether it has been lodged in compulsory settlement proceedings.
Article 191
(resolution on a change in share capital with the purpose of executing financial restructuring)
(1) The resolution on the change in share capital with the purpose of executing financial restructuring shall contain the following decision:
1. that the share capital is to be increased by new in-kind contributions, 2. that the subject of the in-kind contributions are:
– the ordinary claims of creditors indicated in the list referred to in point 3 of the first paragraph of Article 142 of this Act,
– if the insolvent debtor makes the offer referred to in point 2 of the first paragraph of Article 144 of this Act also to creditors who are the owners of subordinated claims:
also the subordinated claims of creditors indicated in the list referred to in point 4 of the first paragraph of Article 142 of this Act,
– if the insolvent debtor makes the offer referred to in point 2 of the first paragraph of Article 144 of this Act also to creditors who are the owners of secured claims: also the secured claims of creditors indicated in the list referred to in point 5 of the first paragraph of Article 142 of this Act,
3. on the content of rights deriving from shares to be issued with the purpose of executing an increase in the share capital (hereinafter referred to as: new shares), 4. on the number and nominal or pertaining amount of new shares acquired by the creditor referred to in point 2 of this paragraph when transferring his claim against the debtor with the purpose of paying an in-kind contribution,
5. that the execution of the increase in the share capital involves issue of a number of new shares which is equal to the number of shares to be subscribed and paid up by creditors through the transfer of their claims referred to in point 2 of this paragraph to the debtor,
6. that the share capital is to be increased by an amount equal to the number of new shares referred to in point 5 of this paragraph multiplied by a nominal or pertaining amount of such shares,
7. the resolution has effect under a deferral condition that the compulsory settlement is to be finally confirmed.
(2) The amount of claim indicated in the list referred to in points 3, 4 or 5 of the first paragraph of Article 142 of this Act shall not be lower than the nominal or pertaining amount of new shares acquired by the creditor when transferring such claim against the debtor with the purpose of paying an in-kind contribution.
(3) If, pursuant to the financial restructuring plan, at the same time as an increase in the share capital with new in-kind shares, the share capital is reduced in a simplified manner due to covering losses that have not been offset, the resolution on the change in share capital with the purpose of executing financial restructuring shall contain also the components as provided for by ZGD-1.
Article 192
(time limit for the adoption of the resolution on the change in share capital with the purpose of executing financial restructuring)
(1) The rules laid down in this Article shall apply when the alternative offer referred to in the first paragraph of Article 144 of this Act, or the offer referred to in the second paragraph of Article 144 of this Act is included in the financial restructuring plan on the basis of which the court has issued the resolution on the initiation of compulsory settlement proceedings.
(2) The general meeting of the insolvent debtor shall adopt the resolution on the change in share capital with the purpose of executing financial restructuring with the content provided for by the financial restructuring plan, within four months following the initiation of compulsory settlement proceedings.
(3) Within three working days following the receipt of the resolution on the change in share capital with the purpose of executing financial restructuring, the insolvent debtor shall notify the court of the adoption of such resolution, and attach to the notification:
1. a copy of the notary's minutes of the general meeting where such resolution has been adopted and
2. a call to creditors to subscribe and pay up shares with the content referred to in Article 193 of this Act.
(4) The court shall terminate compulsory settlement proceedings and issue a resolution on the initiation of bankruptcy proceedings:
1. if the general meeting of the insolvent debtor does not, within the time limit referred to in the second paragraph of this Article, adopts the resolution on the change in share capital with the purpose of executing financial restructuring with the content provided for by the financial restructuring plan, and pursuant to Article 191 of this Act, or
2. if the insolvent debtor does not, within three working days following the receipt of the resolution on the change in share capital with the purpose of executing financial restructuring, submit documents to the court referred to in the third paragraph of this Article.
Article 193
(call to creditors to subscribe and pay up new shares) (1) A call to creditors to subscribe and pay up new shares shall include:
1. the content of the resolution of the insolvent debtor's general meeting concerning the change in share capital with the purpose of executing financial restructuring, 2. the content of the creditor's statement concerning the subscription and paying up of new shares with a transfer of his claim to the insolvent debtor with the components as provided for in Article 195 of this Act,
3. a time limit for the subscription and paying up of new shares pursuant to the second paragraph of this Article,
4. a warning to creditors to submit a statement on the subscription and paying up of new shares not later than by the expiry of the time limit for the subscription and paying up of new shares in two copies to the court instead to the insolvent debtor, including data on the address of the court to which the statement is to be submitted.
(2) The time limit for subscription and paying up of new shares shall be one month following the publication of the call under Article 194 of this Act.
(3) The call to creditors to subscribe and pay up new shares shall not apply to an offer of such shares to the public under the act regulating the financial instruments market.
Article 194
(publication of the call to creditors to subscribe and pay up new shares) The court shall publish the call to creditors to subscribe and pay up new shares:
1. if the call is attached to the request for the change to financial restructuring plan:
within the time limit referred to in Article 185 of this Act,
2. if the call is attached to the notification referred to in the third paragraph of Article 192 of this Act: within three working days following the receipt of such notification.
Article 195
(statement of creditor on subscription and paying up of new shares)
(1) The statement of a creditor on the subscription and paying up of new shares shall contain:
1. identification data on the creditor,
2. the court and the reference number of the case under which the court conducts compulsory settlement proceedings,
3. identification data on the debtor,
4. a statement by the creditor to transfer his claims to the insolvent debtor and thereby subscribes and pays up new shares pursuant to the resolution of the insolvent debtor concerning the change in the share capital with the purpose of executing financial restructuring, under a deferral condition that the compulsory settlement is to be finally confirmed,
5. the total amount of claims which are the subject of the statement referred to in point 4 of this paragraph,
6. information on whether the claims which are the subject of the statement referred to in point 4 of this paragraph are ordinary, secured or subordinated, and
7. if the creditor has lodged his claim in compulsory settlement proceedings: also a statement by the creditor to vote for compulsory settlement.
(2) If, besides ordinary claims, also the secured or subordinated claims of the creditor are the subject of the in-kind contribution, he shall give a separate statement on the subscription and paying up of new shares in respect of each type of claim.
(3) A statement by the creditor which does not comply with the first paragraph of this Article shall have no legal effect of subscription and paying up of new shares.
(4) If the subject of the in-kind contribution of the creditor is a claim secured by a mortgage, a notarised land permission for the deletion of the mortgage shall be attached to the creditor’s statement on the subscription and paying up of new shares;
otherwise, the statement has no legal effect.
(5) The fourth paragraph of this Article shall apply mutatis mutandis also if the claim is secured by a lien entered in the central register of dematerialised securities.
(6) If the creditor has subscribed and paid up new shares pursuant to the first to fifth paragraphs of this Article:
1. he shall not be liable to submit a special ballot paper on voting for compulsory settlement,2. he may not revoke the statement referred to in point 7 of the first paragraph of this Article, and his ballot paper for voting against compulsory settlement shall have no legal effect.
Article 196
(procedure with a creditor’s statement on the subscription and paying up of new shares)
(1) The creditor shall, by the expiry of the time limit referred to in the second paragraph of Article 193 of this Act, submit to the court two copies of the statement on subscription and paying up of new shares.
(2) It shall be considered that the creditor submitting the statement on the subscription and paying up of new shares under the first paragraph of this Article:
1. has given such statement to the insolvent debtor and
2. has submitted a ballot paper on voting for compulsory settlement, unless the creditor has failed to lodge the claim, which is the subject of such statement, in due time in compulsory settlement proceedings.
Article 197
(the report of the administrator on the subscription and paying up of new shares)
(1) The administrator shall submit to the court and the insolvent debtor a report on the subscription and paying up of new shares (hereinafter referred to as: administrator’s
report on subscription and paying up of new shares) together with a report on the results of the voting on the adoption of compulsory settlement referred to in Article 206 of this Act. (2) The administrator’s report on subscription and paying up of new shares shall contain:
1. in respect of each creditor who subscribed and paid up the shares:
– identification data on the creditor,
– the total amount of ordinary and eventual secured or subordinated claims which are the subject of his statement on the subscription and paying up of shares,
– the number of new share belonging to the creditor,
2. the total amount of claims, separately for ordinary and eventual secured or subordinated claims which the creditors have transferred to the debtor with statements on subscription and paying up of shares,
3. a statement by the administrator as to the success of the procedure of subscription and paying up of new shares,
4. if the procedure of subscription and paying up of new shares is successful:
– the total number of new shares to be issued due to the increase in share capital and – the amount of increase in share capital.
(3) The court shall publish the administrator’s report on the subscription and paying up of new shares within three working days following the receipt.
Article 198
(legal consequences of an unsuccessful procedure for the subscription and paying up of new shares)
(1) A procedure for the subscription and paying up of new shares shall be unsuccessful if the total amount of ordinary or secured claims, transferred by creditors within the time limit referred to in the second paragraph of Article 193 of this Act with statements on the subscription and paying up of new shares as an in-kind contribution is lower than the total amount, stipulated in the financial restructuring plan under the first indent of point 3 of the seventh paragraph of Article 144 of this Act.
(2) When the procedure for the subscription and paying up of new shares fails, within three working days following the receipt of the administrator’s report on subscription and paying up of new shares the court shall terminate compulsory settlement proceedings and issue a resolution on the initiation of bankruptcy proceedings.
Article 199
(entry of a change in the share capital in the court register)
(1) If the compulsory settlement is finally confirmed, as of the day when the court resolution on confirmation of compulsory settlement becomes final, it shall be considered that:
1. new shares have been paid up,
2. the creditor who subscribed and paid up the new shares has also transferred to the insolvent debtor the total amount of interest on the amount of the claim which is the subject of the in-kind contribution, accrued until the resolution of the confirmation of compulsory settlement has become final, in spite of not having been included in the amount of such claim indicated in the list referred to in points 3, 4 or 5 of the first paragraph of Article 142 of this Act and
3. the share capital has changed.
(2) The insolvent debtor shall lodge the proposal for the entry of a change in share capital with the purpose of executing financial restructuring, and related changes to the memorandum and articles of association, in the court register within fifteen days after the finality of the resolution confirming the compulsory settlement.
(3) The proposal for the entry referred to in the second paragraph of this Article shall be attached by:
1. a certified copy of the notary's minutes of the general meeting where the resolution was adopted on the change in the share capital with the purpose of executing financial restructuring,
2. a resolution on the confirmation of compulsory settlement with a certificate on finality,
3. a report of the administrator on the subscription and paying up of new shares.
(4) If the insolvent debtor does not lodge the proposal for entry of a change in the share capital with the purpose of executing financial restructuring, and the related changes to the memorandum and articles of association in the court register within the time limit laid down in the second paragraph of this Article, such proposal may be lodged by any creditor who has subscribed and paid up new shares.
Article 200
(creditors’ decisions on the adoption of compulsory settlement) (1) The adoption of compulsory settlement shall be decided by creditors by ballot.
(2) Each creditor the claim of whom against the insolvent debtor is in compulsory settlement proceedings recognised or plausibly demonstrated shall have the right to vote on compulsory settlement, unless otherwise provided for in the third paragraph of this Article.
(3) The creditor shall not have the right to vote on compulsory settlement concerning:
1. secured claims, except if he has transferred such claim to an insolvent debtor in the procedure for changing the share capital with the purpose of executing financial restructuring pursuant to Subsection 4.4.4 of this Act, and
2. priority claims.
Article 201
(calculation of proportion of creditor's voting rights when voting on the
(calculation of proportion of creditor's voting rights when voting on the