On 11 June The Council of Ministers adopted the draft amendment of the Commercial Companies Code prepared by the Ministry of Justice, the main assumptions of which are the introduction of compulsory dematerialisation (i.e. the change of the form of shares from paper to the entry in the IT system) and the creation of a register of shareholders.
Dematerialisation of shares and shareholder register
At this stage, the proposed amendment provides for a new wording Article 328(1)(2) KSH. According to new content Article 328(1) KSH shares will not have the form of a document, which will form the basis for mandatory dematerialisation of all shares, and at the same time the ban on issuing a document for shares.
By Article 328(2) The KSH provisions on shares will apply mutatis mutandis to utility certificates, initial certificates and other titles for participation in income or for the division of the company's assets.
Designed Article 3281(1) KSH provides that shares of a non-public company will be subject to registration in the shareholders register. The register of shareholders will be kept in electronic form by entities which under the provisions of the Act of 29 July 2005 the trading of financial instruments is entitled to keep securities accounts.
The government project envisages that the registry may have a charatker distributed decentralised database, which will allow the registry to be kept using blockchain technology. Registration entities shall bear the burden of keeping the register in a manner that ensures the security and integrity of the data contained therein.
What data will be included in the register?
According to Article 3283(1) The shareholder register shall contain:
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- the company, its registered office and the address of the company;
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- the registration court and the number at which the company is entered in the register;
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- the date of registration of the company and the issue of shares;
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- the nominal value, series and number, the type of action concerned and the specific entitlement of the action;
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the name or business name of the shareholder and the address of his residence or registered office or other address for service, as well as the e-mail address if the shareholder has agreed to communicate with the company and the entity holding the shareholders' register using electronic mail;
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at the request of a person of legal interest, an alert on the transfer of shares or liens to another person or on the establishment of a limited right in kind on a share, together with the date of entry and the indication of the buyer or lien or user, their address of residence or registered office or other address for service, as well as an e-mail address, where they have agreed to communicate with the company and the entity holding the shareholder register using electronic mail and the number, type, series and numbers of shares acquired or held;
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at the request of a pledge or user, the entry that he has the right to exercise the voting rights of the debited share;
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at the shareholder's request, an alert to remove the burden on its shares limited by a limited right in kind;
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whether the shares have been fully covered;
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restrictions on the management of the action;
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the provisions of the statutes relating to the share of obligations vis-à-vis the company.
He deserves special attention point 6, according to which the inclusion of alerts in the register at the request of a person of legal interest, in the cases specified, will enable the identification of persons who are materially entitled to exercise rights from shares.
According to the project promoter, the scope of the information contained in the shareholders' register is essential for the certainty and safety of trading. The data in the register will also be necessary for issuing a registration certificate.
Selection of the entity keeping the shareholder register by the company
The selection of the entity keeping the register of shareholders for the company will be possible by means of a resolution of the general meeting. When setting up the company, the founders make the choice.
Following the selection of the entity keeping the register of shareholders, the company will be required to enter into a shareholder register agreement with the entity selected in the above-mentioned manner without delay.
The termination of such an agreement by the company will only be admissible if a new shareholder register agreement is concluded. On the other hand, the shareholder register holder will be able to terminate the shareholder register agreement only for valid reasons, with a notice of not less than three months.
In the explanatory memorandum of the draft amendment, the project promoter argues that dematerialisation of the shares will contribute to increasing the security of trading. In addition, it aims to simplify the legal structure of these securities.
The compulsory dematerialisation of shares of public limited-liability companies and limited-liability companies, which are not a public company, is intended to contribute to the attainment of the abovementioned objectives and, in the opinion of the project promoter, should cover both registered and bearer shares.
Author:
Michał Skwarek - counsel application in the legal department Russell Bedford Poland. Graduated from the Faculty of Law and Administration of the University of Warsaw.