Undertaking the first steps to start business activity in a form of limited liability company in Poland usually we win over the shareholders, determine the rules of cooperation and hope for success. Sometimes it may turn out that cooperation among the shareholders does not raise in harmony and the only way to conduct effective business activity is to exclude irritable shareholder.
Provisions of Polish Code of Commercial Companies (hereinafter referred to as: CCC) provide a solution to the problems with a bad-tempered shareholder. According to article 266 of CCC, at the request of all other shareholder, the court may decide to exclude the shareholder from the company if the shares held by the shareholders requesting such exclusion represent more than one-half of the share capital. The articles of association may confer the right to file the statement of claim also upon a lower number of shareholders if the shares represent more than one-half of the share capital.
What is more, abovementioned exclusion has to be based only on important reasons concerning the given shareholder. It should be noted at this point that expression ?important reasons? was not explained in CCC, so each case of important reasons concerning the shareholder should be analysed separately. In accordance with the opinions expressed in the civil jurisprudence and court judgements, a shareholder may be excluded for example due to reason of his disloyalty to the company, conducting competitive business activity which may be a serious threat for the company, acting to the detriment of the company, permanent conflict among the shareholders caused by a given shareholder resulting in paralysis of the company as a consequence of a lack of possibility to pass the resolutions by a Shareholders? Meeting.
The shares of the excluded shareholder must be taken over by the other shareholders or third parties. The take-over price shall be set by the court on the basis of the actual value of the shares to be taken over as at the date of delivery of the statement of claim to the excluded shareholder. This price is usually set according to accounting books and documents or annual balance sheet of the company.
When ruling on the exclusion, the court shall set a period within the take-over price shall be paid to the excluded shareholder, including interest counted from the date of delivery of the statement of claim. If the payment is not made or deposited with the court within the above date, the court decision on exclusion shall become ineffective. Where the ruling on exclusion has become ineffective due to abovementioned reason, the shareholder who was ineffectively excluded shall have the right to claim to redress the damage.
The shareholder validly excluded who received a timely payment for his shares which were taken over shall be deemed excluded from the company as of the date of delivery of the statement of claim. However, this shall not affect the validity of actions in which such shareholder participated following the delivery of the statement of claim.
Summarising above information, exclusion of the shareholder form the limited liability company is possible however the remaining shareholders shall have important reasons to do this and should specify reasons of this exclusion. It is possible to exclude only a shareholder which holds less than one-half of the share capital. Moreover the shareholders shall have in mind that the excluded shareholder must be timely paid for his shares – in the other case this shareholder will be excluded ineffective what means that he still will be the shareholder in the company having all the rights connected with this position and will be entitled to claim for redress of the damage.
