An amendment to the articles of association leading to an increase in benefits or a depletion of shareholders’ rights requires the consent of all the shareholders affected. An obvious example of a power that depletes the rights of the shareholders is in the case of an amendment conferring or removing personal rights or dividend preference in relation to one of the shareholders. However, in the practice of corporate litigation, it is often the case that the determination of whether, in fact, an amendment to the agreement leads to a depletion of corporate rights is not so obvious.
Nowe kategorie PKD
The limited liability company’s contract provided for a non-compete clause for both members of the company’s bodies and shareholders. The sanction for breaking the ban was the payment of an appropriate contractual penalty. The majority shareholder (almost 80% of shares) decided to introduce into the agreement seemingly insignificant from the point of view of Art. 246 KSH, which consisted in a significant expansion of the company’s scope of business activity (PKD), clarification of what is understood under the agreement as competitive activity and introduction, in addition to the existing contractual penalty, of a new sanction – the obligation to sell the shares to the other shareholders within 30 days of ascertaining the infringement, at a price corresponding to the value of the share in the share capital (5% of a company with share capital of PLN 5,000 gives PLN 250, while the value of net assets attributable to these shares may be much more).
In the provisions added to the agreement, competitive activities are covered more broadly than in Article 211 of the Companies Act, i.e. not only through involvement in the bodies of competing companies, but also as any financing of competing companies or entering into any mandate or service contracts with them.
Celowe uszczuplenie praw wspólników okiem Sądu
The main activity of the company was focused on the broadly defined IT industry, while the resolution to amend the agreement broadened the company’s subject of activity with, among others, the PKD for tourist services, road transport or hairdressing services. In turn, the key to the selection of new PKD was the sphere of professional activity of the minority shareholder and his family members. Registration of the resolution would open the possibility for the majority shareholder to compulsorily buy out the shares, which is not provided for in the Commercial Companies Code for a limited liability company, and at a price detached from their economic value, i.e. ignoring the balance sheet value and the market value of the company’s assets. In this way, the majority shareholder could take over the shares of the other shareholders even if there are no grounds for excluding a shareholder under Article 266 of the Companies Act in the case and the articles of association do not provide for compulsory redemption. Hence, the provision on the obligation to sell the shares was intended to circumvent the Act.
The Regional Court in Warsaw, in its judgment XXVI GC 181/17, held that a resolution that ostensibly only specifies the already existing restrictions on competitive activities is a resolution affecting the depletion of the shareholders’ rights and as such requires unanimity of the shareholders. In view of the fact that the resolution to amend the agreement was adopted with the opposition of the minority shareholder, the court held that it was invalid as contrary to the law.
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