Temat: management board in join stock company
Legal basis of the Management Board activity is regulated in: Act of 15 September 2000 The Code of commercial partnerships and companies (“CCPC”), Articles of Association and Rules of the Management Board. Those acts under the Polish law contain details and conditions governing the management and organisation.
The role of the Management Board is to manage the Company, which means, among other things, that it is responsible for achieving the company’s aims, strategy and policy, and results. The Management Board is accountable for this to the Supervisory Board and to the General Meeting. In discharging its role, the Management Board shall be guided by the interests of the Company and its affiliated enterprise, taking into consideration the interests of the Company's shareholders. The Management Board shall provide the supervisory Board in good time with all information necessary for the exercise of the duties of the Supervisory Board.
The management board is responsible for complying with all relevant legislation and regulations, for managing the risks associated with the Company activities and for financing the Company. The Management Board shall report related developments to and shall discuss the internal risk management and control systems with the Supervisory Board and its auditor.
Representative duties
The Management Board member’s right of representing the Company shall encompass all court and out-of-court acts of the Company. The Management Board member’s right of representing the Company cannot be subjected to limitations effective against third parties.
Pursuant to the Articles of Association Companies statements can be made in the name of the Company by two members of the Management Board acting jointly. One of the acting members shall be the President or vice President of the Management Board.
Within the scope of out-of-court acts members of the Management Board shall in particular negotiate with contractors and conclude civil law contracts in reference to the company’s policy and current needs.
In respect to court actions members shall in particular bring legal actions, motions, appeal against the courts unfavorable decisions etc. The members shall also contact with the Regulatory and other public institutions to develop the best solutions for the company.
The Management Board shall act with due diligence regarding the company’s interest.
Management of the affairs of the Company:
All members have the duty and right to jointly manage the affairs of the Company. The General Meeting and the Supervisory Board may not issue to the Management Board binding instructions as to the running of the affairs of the Company.
Within the scope of management of the affairs duties, the members shall participate in Board meetings, supervise the internal activity of the company in particular adopt the work regulations, arrange and supervise activity of the high rank employers pursuant to the company’s policy.
The Management board shall prepare and submit a financial statement for acceptance of the General Meeting.
The Management Board (in gremio) shall in particular:
(i) to submit the list of shareholders to the court of registration;
(ii) to keep a register of shares pursuant to the provisions of the CPCC
(iii) to convene a General Meeting;
(iv) to provide the auditor with explanations and prevent auditor for discharging his duties;
(v) to present the registration court with an application for appointment of expert auditors;
(vi) to announce the submission of an opinion of an expert auditor in the registration court.
Management Board’s by laws:
The Management Board may adopt its rules. The rules organize the Management Board activity in a technical aspect.
Members of the Management Board shall, in their relationship with the Company, be subject to the limitations indicated below.
In the event of a conflict of interest between the Company and the Management Board member, or the member’s spouse relations and in-laws within the second degree and persons with whom the member has a personal relationship, the Management Board member shall abstain from participating in deciding such matters and he may request that this be recovered in the minutes. A Management Board member shall not take part in any discussion or decision-making that involves a subject or transaction in relation to which he has a conflict of interest with the Company. A Management Board member shall immediately report any conflict of interest or potential conflict of interest that is of material significance to the Company and/or to him, to the to the other members of the Management board and shall provide all relevant information, including information concerning his personal relationship.
The Management Board member shall not, without consent of the Company, involve himself in a competitive business or participate in a competitive partnership or Company whether as partner in such partnership or as member of a body of such Company, nor shall he be involved with another competitive legal person by sitting on its body. This prohibition shall apply equally to having interests in a competitive Company, in the event that the Management Board member should hold 10 per cent or more shares in it or have the right of appointing at least one member of the Management Board. The consent shall be given by the General Meeting.
Civil liability to creditors:
Pursuant to the relevant provisions of the CPCC members of the Management Board are liable to creditors for performing its duties.
Where members of the Management Board have deliberately or through negligence give false information in the statement made by all Management Board members that contributions towards shares have been made, and where non-cash contributions are to be made upon company by the date fixed in the resolution on initial capital increase is assured shall be liable to creditors of the Company jointly and severally with the company for three years from the initial capital increase registration date.
A member of the Management Board who in connection with increasing company’s initial capital secures through his own fault, whether for himself or for another, a remuneration unreasonably in excess of transfer value of non-cash contributors or assets acquired, or a remuneration or special benefits incommensurate with the services rendered, shall be liable to make good on the damage inflicted upon the Company.
Civil liability to the Company:
A Management Board member shall be liable to the Company for damage caused through negligence or an action which is against the law or provisions of the Company Articles, unless he be not at fault.
Where execution against the Company has proved ineffective, the members of the Management Board shall be liable jointly and severally for obligations of the company.
A member of the Management Board may extricate himself from the liability referred above by showing that a petition for declaration of bankruptcy was filled or arrangement proceedings were instituted in due time, or that the failure to file a petition for declaration of bankruptcy or institute arrangement proceedings was not due to his fault, or that creditor suffered no damage even though no petition for declaration of bankruptcy was filed or no arrangement proceedings instituted.
Penal provisions:
Members of the Management Board are liable for its acts in the scope defined in Penalty Code and CPCC.
The CPCC plays the significant role in forming liability in the scope of regarding the issue of the Memorandum. Bearing this fact on mind the Memorandum includes only the penalty provisions of this Act.
Acting to detriment of the Company:
A member of the Management Board who acts to the Company’s detriment shall be liable to a penalty of a deprivation of liberty of up to 5 years and fine. The same penalty is referred to a member who assists a member committing such offence.
To avoid such situation, in particular a Management Board member shall:
(i) not provide unjustified advantages to third parties to the detriment of the Company;
(ii) not participate in concluding disadvantageous contracts (credit contracts, mandate contracts etc.);
(iii) not demand or accept valuable gifts from the Company for himself or for his relatives.
Penal liability in the scope of acting contrary Board’s major duties:
A member of Management Board, who against his duties allows the Management Board:
(i) not to submit the list of shareholders to the court of registration;
(ii) not to keep a register of shares pursuant to the provisions of the CPCC;
(iii) not to convene a General Meeting;
(iv) not to provide the auditor with explanations and prevent auditor for discharging his duties;
(v) not to present the registration court with an application for appointment of expert auditors;
(vi) not to announce the submission of an opinion of an expert auditor in the registration court
shall be liable to a fine of up to 20.000 zl.
Other penal provisions:
A member of the Management Board who does not submit an application for the declaration of bankruptcy of the company in spite of the existence of conditions being pursuant to the provisions, grounds for bankruptcy of the company shall be liable to a fine, a penalty of restriction of liberty or deprivation of liberty of up to one year.
A member of the Management Board when performing its duties announces untrue information or presents such information to bodies of the company, State authorities or a person appointed to conduct audit shall be liable to a fine, a penalty of restriction of liberty or deprivation of liberty of up to one year.
A member of the Management Board who allows the company to acquire its own shares or to create a pledge on them shall be liable to a fine, a penalty of restriction of liberty or deprivation of liberty up to six months.
A member of the Management Board who allows the company to issue registered documents, bearer documents or documents to order in respect of shares or rights to profits in the company shall be liable to a fine, a penalty of restricition of liberty or deprivation of liberty of up to six months.
A member of the Management Board who allows the release of share title deeds:
(i) which have not been paid up sufficiently;
(ii) before registration of the company;
(iii) in the case of increase of the initial capital – before the registration of such increase shall be liable to a fine, a penalty of restriction of liberty or deprivation of liberty of up to one year.
A member of the Management Board who allows that the letters and commercial orders do not contain the particulars specified in the relevant provisions of CPCC shall be liable to a fine of up to 10,000 zl.
Kind regards,
Tomasz Święch
пропозиції роботи
