Participation in a limited liability company which also determines its ownership structure is the shares of that company. The share capital of the company is divided into shares of equal or unequal nominal value (152 k.s.h.). Whether a partner can only have one, or more shares, the articles of association shall decide, subject to the condition that, under the articles of association, the shareholder may have more than one the share, then all share capital should be equal and indivisible (Article 153 k.s.h.).
The systems cited above and permitted by the legislator to participate in the company are alternative (disconnective) systems.
There is therefore no possibility that within the framework one the company has a specific shareholder one the shares differing from the shares of the other partners, while these partners will hold more shares, equal and indivisible.
Under the multiplicity system of shareholders, under model conditions, the product of the total number of shares in the company and the nominal value one the share represents an amount equal to the share capital of the company.
The provisions of k.s.h. allow the redemption of the share. According to Article 199(1) k.s.h., the share may be decommissioned only after the company has been entered in the register and only if the articles of association so provide.
The share may be decommitted with the consent of the shareholder by way of acquisition of the share by the company (voluntary redemption) or without the consent of the partner (compulsory redemption). The terms and conditions for compulsory redemption shall be determined by the articles of association.
At the stage of the establishment of the company, the sum of the shares must necessarily correspond to the amount of share capital in the contract. The waiver of participation is therefore only allowed after registration of the company in the KRS (in the target form of its activities).
As a general rule, decommitment should entail a simultaneous reduction in share capital, which in turn requires a convocation procedure (Article 264(1) k.s.h.).
However, it should be pointed out that the redemption of the shares can take place without a reduction in the share capital from a pure profit (Article 199(6) k.s.h.) or be unpaid (Article 199(3) k.s.h.), which will not require a reduction in share capital and conduct a convocation procedure.
The different sources of ‘financing’ of redemption lead to different legal consequences for the creditors of the company.
The voluntary redemption of the shares without remuneration and without lowering the share capital (i) and the redemption of the shares without lowering that capital from a clean profit (ii) therefore leads to a situation where the product of the total number of all shares in the company remaining after redemption and their nominal value gives an amount less than the unchanged share capital. The redemption of shares without affecting the share capital consists in reducing their number, while maintaining the unchanged level of share capital, thus leading to the creation of a kind of ‘luca’ corresponding to the difference between two above in size.
The redemption of shares without a simultaneous reduction in the share capital is therefore the only possible one on the basis of k.s.h. where the product of the total number of shares and their nominal value is less than the share capital. This situation is correct and may (but does not have to) be permanent. In fact, no provision k.s.h.
or other legislation requires the company to return to the state that the amount of the share capital represents the product of the nominal value of the share and all shares in the company.
However, there are situations in the practice of trading where customers decide to carry out an adjustment procedure for the nominal value of the remaining (unresigned) shares in the company, to the current share capital, aiming for a kind of mathematical balance between the quantity and value of the shares and the share capital.
In the resolution of the Supreme Court of 9 April 1997, reference no.
III CZP 15/97, considering a legal issue In the case of redemption of shares in a limited liability company from a pure profit, is it permissible for shareholders to adopt a resolution amending the company's contract and adjusting the value of the remaining shares after redemption to the unchanged share capital?, The Supreme Court pointed out: As a rule of freedom of contract (Article 3531 (c) the right of shareholders to associate the redemption of shares with the adoption of a resolution amending the company's contract and adjusting the value of the remaining shares after the redemption to the unchanged share capital should be removed.
At the same time, the shareholders would remain free to decide how to agree on the sum of shares with the share capital. Such a solution will not undermine the guarantee function of share capital vis-à-vis the creditors of the company. The wording of this resolution, in principle, should be agreed. Why in principle?
In the resolution of the Supreme Court cited above, there is a controversial passage in which the Supreme Court points to the freedom of the shareholders to decide on how to agree the sum of shares with the share capital.
Therefore, let us assume that we are dealing with a company with a share capital of 10,000 PLN, in which created and covered 200 shares 50 PLN every part. If the company has been decommissioned without reducing the share capital combined 100 the shares, i.e. as a result of the redemption carried out, the product of the number of remaining outstanding shares (100) and nominal value one share (50 PLN) is 5,000 PLN.
From a purely mathematical point of view, the adjustment of the above situation to the amount of share capital could take place in two variants:
by increasing the nominal value 1 share of the amount 50 PLN up to amount 100 PLN, Therefore, for the share capital of the company in the amount 10,000 PLN will consist 100 shares of nominal value 100 PLN each share (i.e. with a total nominal value) 10,000 PLN);
by increasing the number of shares from 100 to 200 with a nominal value of the share 50 PLN, Therefore, for the share capital of the company in the amount 10,000 PLN will consist (as before redemption) 200 shares of nominal value 50 PLN every part.
In theory, both versions of the adaptation presented above are in line with the resolution III CZP 15/97 and such models are found in practice.
However, in my assessment, it should be pointed out that the model described in point (b) above is to be regarded as incorrect, and the only correct way to adjust the share capital after redemption is to change the nominal value of the share without interfering with the total amount of shares remaining after the redemption.
The correct solution to this issue is in Article 157, Article 163(258) k.s.h. and refers to the need for shareholders to take part.
Depending on the stage of operation of the company, the acquisition of shares by the shareholder is presented differently.
In the phase of the formation of the company, the number and nominal value of the shares covered by the individual shareholders determine the content of the company's contract, and the statement of participation itself is therefore an element of its founding act/contract.
Otherwise, the question of the inclusion of shares in the operation of the company in the target form is raised. This is the case in the event of an increase in the share capital of the company combined with the creation (establishment) of new shares or an increase in their nominal value (Article 257(2) k.s.h.).
In the event of the creation of new shares, the form of a notarial act requires both a statement by the former shareholder of the new share or shares (Article 258(2) k.s.h.) as well as the statement by the new shareholder of joining the company and taking up a share or shares with a nominal value (Article 259 k.s.h.).
Finally, it should be concluded that, when examining the possibility of adjusting the value and quantity of shares to the amount of share capital, the possibility presented above in point (b), i.e. the acceptance of the possibility of increasing the number of shares while maintaining the nominal value of the share to date, would lead to a situation where the shareholders would have shares which were not covered by them (either at the company's establishment stage or during its existence).
In my opinion, therefore, the content of the Supreme Court resolution of 9 April 1997 reference no. III CZP 15/97 is acceptable only if, in order to adjust the share capital amount to the number and value of the shares in the company by increasing the number of existing shares, it would involve the submission by shareholders in the form of a notarial act of a statement of the participation thus created (by applying per analogy Article 258(2) and Article 259 (k.s.h.)