The division of companies is in practice the most difficult to properly conduct the restructuring process. The situation is even more complicated with regard to KSH implemented on the day 15 September 2023 provisions enabling the division of the limited-stock company.
According to the revised Article 528(1) KSH may be divided into two or more capital or limited-stock companies, the division of SKA being permitted subject to the full coverage of the share capital.
In the context of the distribution forms acceptable under the KSH (529 § 1 point 1 – 5 KSH) already at first glance it seems that the division of SKA (despite a small amount of provisions directly related to it) will not be the easiest.
Why? – SKA is, on the ground of KSH, the most unobvious legal structure due to the specific integration of the personal and capital substrate.
The coded, theoretical divisional capacity of SKA (if the condition of covering share capital is met) will be determined by several factors: the initial structure of the split SKA (both in the personal and capital stratum), selected by the company in the category of division according to Article 529(1) KSH, as well as the legal form of the acquiring companies or of the newly established companies.
In my opinion, we will deal with the simplest situation in the case of the division of SKA, which will result in the creation of capital companies only on the part of the acquiring and/or newly bound companies. In these companies, unlike SKA, we deal with only one type of shareholders (shareholders in sp. z o.o., shareholders in S.A.
and P.S.A.). Thus, as a result of the division of the SKA between two or more capital acquisitions and/or newly established companies, both the subcontractors and the shareholders of the SKA divided companies will be able to obtain in the acquiring company or the newly established shareholder status the form of the company determines.
It will be different with regard to the property substrate divided by SKA, because the legislature does not indicate clear (or in principle any guidelines) as regards the allocation of shares or shares of the acquiring company to the shareholders of the split company (newly bound).
The plan for dividing SKA does not have to specify the so-called exchange parity, i.e. the ratio of the exchange of shares or shares of the company divided into shares or shares of the acquiring companies/newly bound companies and the amount of any cash payments.
In this respect, the legislator limited the allocation plan to determine the number and value of the shares or shares of the acquiring company or the newly bound company granted to the shareholders of the split company and the amount of any cash payments (Article 55025 KSH).
It will therefore be possible to determine the number and value of shares with a large margin of freedom, but on the basis of certain objective and verifiable parameters.
In view of the advantages of the personal nature of the split SKA, it appears appropriate to determine the number and value of the rights of shares based on the share capital of the company's statutes or their share of the profits.
The situation will vary with regard to the situation when SKA is not only a divided company, but as a result SKA will be companies:
- the acquirers - at the division by acquisition;
- Newly-bound, when split up by setting up new companies;
- acquiring and newly affiliated - when divided by acquisition and incorporation of new companies;
- acquiring and/or newly bound - when divided by separation;
- acquiring and/or newly tied - when divided by separation.
On the side of both the split company and the acquiring companies/new ones, we will continue to deal with two categories of shareholders – the subcontractors and shareholders.
The new provisions of the KSH do not, however, give guidance on whether the status of a partner of a particular category (complementary or shareholder) in a shared company determines the need to maintain the same status in the acquiring or newly established company.
In my view, the answer to such a question may differ from one category to another, from the number of acquiring or newly bound companies involved in the division, as well as from whether the division will result in SKA being a acquiring or newly bound company.
As a general rule, it seems appropriate to state that a member having a certain status in a shared company does not need to obtain an analogous status in the acquiring or newly bound companies – he may obtain the same status in both companies, only in one of them, or in either of them (receiving the status of a partner of another category).
In the case of a multiplicity of partners shared by SKA, the configuration of personal partners can be very many.
However, with regard to the acquiring SKA (as existing companies), I consider that it will apply to the Article 136(1) KSH, according to which if the Statute permits the admission of a new subsidiary to the company, the existing shareholder may obtain subsidiary status, or a third party may join the company as a complementary, with the agreement of all the members.
By applying this provision in the split procedure, we therefore conclude that the existing shareholder will not be subject to any conditions. On the other hand, the possibility of adopting a new subsidiary must be expressly provided for in the statutes of the acquiring company when it is assumed to be a subsidiary. The content of the Articles of Association of the acquiring company may therefore completely prevent the company's shareholder from joining as a new subsidiary.
Therefore, in order to simplify this argument, the assumption that the division of the SKA will always result in two further SKAs, is correct in the light of the provisions of the KSH:
In the event of a division by the acquisition of existing shareholders of the split company, they will always be able to obtain shareholder status in the acquiring company, and the acquisition of subsidiary status will depend on whether the statutes of the acquiring company according to Article 136(1) KSH allows the admission of a new associate;
As a result of the division by setting up a new company, the former partners of the split company will be able to obtain the status of both categories of shareholders and subcontractors in the new company (due to the lack of application of the Article 136 KSH to a newly established company;
As a result of the division by the acquisition and the incorporation of a new company, in relation to the acquiring company, the shareholders of the company will always be able to obtain shareholder status in the acquiring company and the acquisition of subsidiary status will depend on whether the statutes of the acquiring company according to Article 136(1) KSH allows the admission of a new associate.
In turn, in a company newly established partners of the split company will always be able to obtain the status of both categories of shareholders – both a subsidiary and a shareholder (in the absence of a basis for applying to the newly established company Article 136 KSH).
Similarly, the situation will present itself for division by division, depending on whether we are dealing with the acquiring company or the newly established company, with the condition that the structure of the split company may also be changed.
This company will not lose its legal existence, but it may happen that as a result of the division by division it will function in a changed structure from both the personal and capital sides.
It is also necessary to emphasise that, as a result of the division by the division of the SKA, it must continue to fulfil any security reserved to such a company in accordance with the KSH.
With regard to the recent addition to KSH of the form of division, i.e. the division by separation at least in theoretical terms, it appears that in both the acquiring and newly bound SKA resulting from the separation from another SKA (divided), the company will be able to obtain the status of both a shareholder and a subsidiary, but the condition that in the acquiring SKA the subsidiary will be obtained only if the possibility of joining the company is provided for by its statutes (Article 136(1)) KSH).
It will therefore be necessary to make a number of arrangements in both the personal and capital terms of all companies involved in the division in order to determine the possibility of dividing the initial SKA and to obtain certain effects of that division.