PSA creates different emotions – one they would metaphorically ‘kill’ him, and others would ‘wisely raise’ him.
On 13 June 2019 adopted at the session of the Sejm after 3rd reading Act dated 13 June 2019 amending the Act – Code of Commercial Companies and certain laws that introduces a new type of commercial law company – Simple Equity Company (PSA).
According to the Projector Prosta Spółka Akcyjna is to combine the corporate nature of the company as a legal person and its basic manifestation of which is the exclusion of personal liability of shareholders for its obligations with the considerable freedom to form the relationship of the company.
The project promoter emphasizes that PSA is a modern form of private equity company intended for innovative projects.
Farewell to share capital
First, the share capital and the associated "capital entry barrier" will be forgotten. The Simple Stock Company will be equipped with PLN share capital, for which cash and non-monetary contributions are allocated. The share capital should be at least 1 PLN, and its amount is not specified in the articles of association. Importantly, the provisions on amending the articles of association do not apply to changes in the amount of share capital.
Works and services shares
According to 3002 section 2 KSH will be able to make a non-monetary contribution to the coverage of shares, in particular in the provision of work or services. Often in the innovation industry, know-how and human capital represent the market power of a particular undertaking to a greater extent than measures of a strict material nature.
Digital shares only
The legislator accepted that the shares of the Simple Equity Company would not have the form of a document, so they would be dematerialized and it would be necessary to register them in the shareholder register.
Although negotiable, they will not be allowed or marketed within the meaning of the rules on trading in financial instruments (as planned). Article 30036(1)(2) KSH, and thus will not be listed on the stock exchange and the company itself will not have the status of a public company.
This is to avoid imposing numerous restrictive obligations on PSA
Although the shares themselves will be dematerialised, it should be remembered that according to the planned 30036 section 4 KSH divestment or burden of shares should be carried out in documentary form under the rigor of nullity.
Returning to the shareholders register, it should be indicated that it will be carried out in electronic form, which may take the form of a distributed and decentralised database. which allows to create registers in the popular blockchain technology. This obligation will rest on the entity entitled under the Act on Trading in Financial Instruments to keep securities accounts or notary operating a notarial firm in the territory of the Republic of Poland.
What about liability?
The main assumptions concerning liability for the obligations of a simple public limited liability company are a duplication of existing legal solutions. As planned Article 3001(4) KSH shareholders are not responsible for the company's liabilities and on the basis of Article 3001(3) KSH is only obliged to benefit from the contract.
On the other hand, if the enforcement against the company is unsuccessful, the members of the board of directors are jointly and severally responsible for their obligations (Article 300132(1) KSH).
However, a member of the Management Board may be released from the responsibility described above in the following cases:
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- demonstrates that a request for bankruptcy has been made in due time or that provisions for the opening of the restructuring procedure have been issued at the same time;
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- Whereas provision was made at the same time for the approval of the Agreement in the approval procedure;
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- the failure to file for bankruptcy was not attributable to him;
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In spite of the failure to file for bankruptcy and the failure to give a decision to open restructuring proceedings or not to approve the arrangement, the creditor did not suffer any damage in the procedure for approving the arrangement.
Acquisition of all assets by the designated shareholder
However, there will be a possibility, according to the planned Article 300122(1) KSH, the acquisition of all the assets of the company by the designated shareholder. Such acquisition shall entail the obligation to satisfy creditors and other shareholders, if the general meeting so provides. The resolution must be adopted by majority third fourth votes cast in the presence of shareholders representing at least half of the total number of shares, and the registration court shall authorise the acquisition.
PSA – kill or raise?
By the time the amendment even reached the Sejm, it was already controversial at the stage of the project. There were some very critical voices in relation to the amendment, expressively referring to M. Hłaski's work, calling for "killing PSA" 1 , as well as voices indicating that “instead of killing PSA, it is better to raise him wisely” 2 .
It is doubtful that the scope of the regulation itself is already at stake. It is difficult to accept without being skeptical to provide the legislator with a desire to provide a simple and transparent PSA structure, while realizing that in KSH the new company will take a little over another 130 articles.
The legislator, contrary to the assurances, does not leave much freedom to the founders of the company, eagerly reaching for mandatory provisions, which are intertwined with often dispositive standards. In the new regulation, it also seems to manifest a too causistic and even detailed approach in the design of regulations that were supposed to be simple and transparent.
Having put aside disputes concerning the theoretical and legal view of the individual normative solutions contained in the Simple Equity Company, such as considerations on the necessity (or lack of it) to preserve the company's share capital, which the author leaves to the representatives of the doctrine, it is difficult to get rid of the impression that with the Simple Equity Company it will not be as simple as that, but the answer to the question of whether to metaphorically "kill PSA" or "bring up" can be given only by practice.
1 Kidyba A., second Killing PSA. three barriers for start-ups became a justification for producing around 200 the provisions, ‘Dziennik Gazeta Prawna" of 20 March 2018
2 Granicki A., instead of killing PSA, it is better to raise him wisely, “Dziennik Gazeta Prawna” of 27 March 2018
Author:
Michał Skwarek - Council applicant in the legal department Russell Bedford Poland. Graduated from the Faculty of Law and Administration of the University of Warsaw.