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Judge Grzegorz Mazur denied motion to liquidate a well-functioning business "Kraków Business Park LLC"
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Case IX GC 64/12
JUDGMENTIN THE NAME OF REPUBLIC OF POLAND
November 22, 2012
District Court in Krakow, IX Commercial Division composed of:
Chairman:Cłerk:
District Court Judge Grzegorz MazurSenior court recorder Małgorzata Wegrzyn
after hearing on November 22,2012 in Krakowproceedingin a case brought by Jan Domanus, Andrew Kozłowski and Izabeła Kozłowskiagainst KRAKOW BUSINESS PARK Ltd.in Zabierzowwith incidentał intervening of Adam Swiech
for dissołution of company
l. petition is denied;II. orders the Płaintiffs Jan Domanus, Andrew Kozłowski and Izabeła Kozłowski to
jointły pay to the Defendant KRAKOW BUSINESS PARK Ltd. in Zabierzow thesum ofPLN 58,737.00 (fifty eight thousand seven hundred thirty seven) asrepayment of the court costs;
III. orders the Płaintiffs Jan Domanus, Andrew Kozłowski and Izabeła Kozłowski tojointły pay to Adam Swiech the sum of PLN 6,797.00 (six thousand sevenhundred ninety seven PLN) as repayment ofthe court costs.
SealoJDistrict Courtin Krakow
Case IX GC 64/12
[Stamp): appropriate signatures a.ffixed on the originalCertified true copyMalgorzata Wegrzyn, Senior Clerk
JUSTIFICATION.Of the judgment dated November 22, 2012
Plaintiffs Andrew Kozlowski, Izabela Kozlowski and Jan Oomanus petition this Court for
dissolution of a limited liability company known as Krakow Business Park Ltd. located in
Zabierzow. Besides the Plaintiffs the above mentioned company has an additional shareholder
Adam Swiech who owns majority stake. As a basis for dissolution ofthe Company it was pointed
out: actions of the majority shareholder, who committed numerous crimes against minority
shareholders and the Company; questions as to real number of shares held by the individual
shareholders, with exemption of Izabela Kozlowski; discrimination of minority shareholders by
Adam Swiech through, among others, making access to documentation of the Company
impossible; lack of reaction from Adam Swiech to the questions raised in relation to payments
made by subsidiary company for services performed by non-existing American company; taking
possession of shares of Jan Oomanus by Adam Swiech and exercising voting rights contrary to
previous assurances; not reporting Jan Oomanus in the Book of Shares and not reporting him and
Izabela Kozlowski in Registrar Court; not maintaining the Book of Shares; issue of alleged loan
to Jan Oomanus which in fact was a dividend; appropriation by Adam Swiech the funds
belonging to John Oodmanus; organizing an Extraordinary Meeting of Shareholders with the use
of remote communication means; existence in a Company so called "Silent Shareholders";
creation of a structure of organization with a goal of aggrieving minority shareholders; payments
made to Cypru s Company despite the fact that the Company did not perform any consulting
services; lack of dividends; falsification of minutes of the Shareholders Meeting and attendance
list dated March 26, 2008. The aforementioned circumstances prove that there is an open and
sharp conflict between the shareholders, which makes the Company's operations impossible.
In response to the petition the Defendant Company Krakow Business Park Ltd. asked
the Court to dismiss the claim as unjustified. In the justification it was stated that the Defendant
created one of the largest office complexes in the Małopolskie Province, what was the
Company's main goal, accepted by ali the shareholders. The aforementioned undertaking
couldn 't be successfully achieved without mutual cooperation of all shareholders. Lack of
payment of dividend was, among other, a result of the resolution adopted in this respect in
connection with the loan taken by KBP-l Ltd. The Company's Board of Oirectors has never
limited access of the Plaintiffs to the Company's documents. Furthermore, the Plaintiffs have
never exercised the right provided for in Article 212 point 4 Code of Commercial Companies.
Plaintiff Andrew Kozlowski was one of major authors of KBP's development strategy and alI
other shareholders actively participated in this project. There is no court case in the matter of
determining a real number ofshares held by Andrew Kozlowski and Jan Domanus. New Board of
Directors undertook actions necessary for recreation of the Book of Shares, sending necessary
letters to the shareholders. Lack of registration of Izabela Kozlowski and Jan Domanus in Court
Registrar as the shareholders is compliant with the law regulations. Circumstance of Adam
Swiech's temporary detention doesn't obstruct proper functioning ofthe Defendant Company. It
should also be pointed out that the shareholders are capable of adopting binding resolutions,
therefore there are no reasons for dissolution ofthe Company.
In the a motion from May 12, 2009 Adam Swiech petitioned this Court for incidental
intervening on the side of the Defendant Company joining the argumentation of the Defendant
Company and requesting the Court to deny the petition in its fuli scope and awarding him the
court costs.
District Court in its verdict dated April 30, 2009 dissolved the Defendant Company,
however the Court of Appeals cancelled this verdict. The Court of Appeals ordered that
evidentiary procedure should be carried out and explanation found, why the Company operated
until 2008 without a Book of Shares being kept.
After conducting entire evidentiary procedure petitioned by both sides and incidental
intervening party, the Court found as follows.
Facts of the case are as folIows:
Company Krakow Business Park Ltd. With its registered office in Zabierzow was
incorporated on June 24, 1997.
Proof: certified copy of entries in the National Court Register
On July 24, 1997 contract for sale of shares between Stanislaw Lewak and Richard
Swiech was signed. On the basis ofthe aforementioned contract Stanislaw Lewak sold to Richard
Swiech 40 shares in Krakow Business Park Ltd.
Proof: contract pages 1072-1074
On July 24, 1997 contract for sale of shares between Stanislaw Lewak and Czeslaw
Obodzinski was signed. On the basis of the aforementioned contract Stanislaw Lewak sold to
Czeslaw Obodzinski 20 shares in Krakow Business Park Ltd.
Proof: contract pages 1074-1075
On September 10, 1997 Extraordinary Meeting of Shareholders was held, where all ofthe
shareholders where present. At that time resolution granting consent to sale of shares was voted
and approved.
Proof: minutes page 1077
On September 10, 1997 contract for sale of shares between Richard Swiech and Adam
Swiech was signed. On the basis of the aforementioned contract Richard Swiech sold to Adam
Swiech 8 shares in Krakow Business Park Ltd.
Proof: contract pages 1082- 1083
On September 16, 1997 contract for sale of shares between Stanislaw Lewak and Andrew
Kozlowski was signed. On the basis of the aforementioned contract Stanislaw Lewak sold to
Andrew Kozlowski 8 shares in Krakow Business Park Ltd.
Proof: contract pages 66-67
On September 18, 1997 contract for sale of shares between Stanislaw Lewak and Izabela
Kozlowski was signed. On the basis ofthe aforementioned contract Izabela Kozlowski acquired 8
shares in Krakow Business Park Ltd.
Proof: contract pages 157-158
On October 2, 1997 contract for sale of shares between Richard Swiech and Derek
Lewicki was signed. On the basis of the aforementioned contract Derek Lewicki acquired 16
shares in Krakow Business Park Ltd.
Proof: contract pages 1084-1085
On September 14, 1998 Extraordinary Meeting of Shareholders of Krakow Business Park
Ltd. was held, on which all shareholders where present. At that time, among other, the resolutions
on increasing the initial capital, purchase of real estate and sale of real estate were voted and
approved.
Proof: protocol pages 1090-1094
On November 19, 1998 Extraordinary Meeting of Shareholders of Krakow Business Park
Ltd. was held, on which ali shareholders where present. At that time, among other, the resolutions
on increasing the initial capital, were voted and approved.
Proof: protocol pages I 100-1 102
On December 9, 1998 a resolution ofthe Board of Krakow Business Park Ltd. allocating
the shares in the initial capital not taken up until that time was voted and approved. Adam
Swiech, Andrew Kozlowski and Stanislaw Lewak took up newly issued shares on the basis ofthis
resolution.
Proof: resolution page 1099
On February I, 1999 a contract for financial consulting between Krakow Business Park
Ltd. and TSP Ltd. in connection with the extensions of the first phase of Business Park by
construction 8,000 square meters of office space.
Proof: contract pages I 109-11 17
On May 14, 1999 Extraordinary Meeting of Shareholders was held, on which all
shareholders were present except for Czeslaw Obodzinski. The resolution on increase of the
initial capital was voted and approved, amon g other.
Proof: protocol pages 1103-1105
On July 15, 1999 a resolution ofthe Board ofKrakow Business Park Ltd. allocating the
shares in the initial capital not taken up until that time was voted and approved. Adam Swiech,
Andrew Kozlowski and Stanislaw Lewak took up newly issued shares on the basis of this
resolution.
Proof: resolution page 1099
On February 23, 2000 Extraordinary Meeting of Shareholders of Krakow Business Park
Ltd. was held, on which all shareholders where present except for Czeslaw Obodzinski. The
following resolutions were voted and approved: on increase of the initial capital, on dismissal of
Stanislaw Lewak and Andrew Kozlowski frorn the Board of Directors, and on appointing Adam
Swiech as a President ofthe Board.
Proof: protocol pages 275-277
On May 22, 2000 Extraordinary Meeting of Shareholders of Krakow Business Park Ltd.
was held, on which alI shareholders where present except for Czeslaw Obodzinski. The resolution
on increase ofthe initial capital was voted and approved, among other.
Proof: protocol pages I 141-1 146
On May 22,2000 Andrew Kozlowski sent to Adam Swiech a Memorandum prepared by
CMS Cameron McKenna Ltd. concerning expansion of the organizational structure of Krakow
Business Park Ltd. The aforementioned document proposed, among other, creation of II
Subsidiary Companies.
Proof: document pages 907-919
On July 6, 2000 Extraordinary Meeting of Shareholders of Krakow Business Park Ltd.
was held, on which ali shareholders where present. Resolution granting consent to sale of shares
by Czeslaw Obodzinski to Adam Swiech was voted and approved.
Proof: protocol pages 278-279
On October 18, 2000 Extraordinary Meeting of Shareholders of Krakow Business Park
Ltd. was held, on which all shareholders where present. The following resolutions were voted and
approved: on increase of the initial capital, on granting consent to sale of shares by Richard
Swiech and Derek Lewicki to Adam Swiech.
Proof: protocol pages 280-282
On May 16, 2003 an Extraordinary Meeting of Shareholders of Krakow Business Park
Ltd. was held in the Notary Office, on which all shareholders where present. The following
resolutions were voted and approved during the meeting: on increase of the initial capital, on
changing By-Laws of the Company, on selecting auditor to audit financial statements of the
company, on granting consent to sale of shares by Stanislaw Lewak to "SMALL Ol" Ltd. in
Zabierzow.
Proof: protocol pages 283-298
On July l, 2003 a lease contract between KBP-l Ltd. (the Lessor) and Business Center
Solution Ltd. (the Lessee) was signed. In accordance with the contract lease payments where to
be updated by price index on January l of each year. In addition the Lessee was responsible for
covering maintenance costs ofthe building.
Proof: contract
On August 20, 2003 Meeting of Shareholders of Krakow Business Park Ltd. was held, on
which all shareholders where present. The following resolutions where voted and approved; on
approving the report on work ofthe Board, approving the Company's balance sheet and profit &
loss statement for the year 2002, on covering losses from future profits and acknowledgement of
fulfillment ofBoard's duties in the year 2002.
Proof: protocol pages 680-681
In July of 2004 Meeting of Shareholders of Krakow Business Park Ltd. was held, on
which all shareholders where present. The following resolutions where voted and approved; on
approving the report on work of the Board, approving the Company's bal ance sheet and profit &
loss statement for the year 2003, on covering losses from future profits and acknowledgement of
fulfillment ofBoard's duties in the year 2003.
Proof: protocol pages 695-696
On September 9, 2004 in the Notary Office a loan agreement, among other, was signed
between Stanislaw Lewak (borrower) and Jan Domanus (lender). On the basis of that loan
agreement Jan Domanus obligated himselfto pay to Stanislaw Lewak the amount of $157,000.00.
In order to secure repayment of the loan Stanislaw Lewak reassigned 1145 shares in Krakow
Business Park Ltd. ofthe total value PLN 572,500.00 and transferred them to Jan Domanus.
Proof: Notary Act pages 273-274
On September 17, 2004 Adam Swiech as a President of the Board of Krakow Business
Park Ltd. submitted to Registrar Office an up-to-date list of shareholders showing Andrew
Kozlowski, Izabela Kozlowski Adam Swiech and Jan Domanus. The aforementioned list was
attached to Registrar files ofthe Company.
Proof: documents pages 72-73
Registrar Court Decision page 74
On November 22 and 23, 2004 Jan Domanus signed Exhibits 17 and 22 to the loan
agreement with KBP-1, in which he obligated himself, among other, to granting subordinated
loans to Krakow Business Park Ltd., and not to adopt resolution, among other, on paying
dividends to shareholders.
Proof: exhibits pages 893-896
Between December 9 and 14, 2004 Adam Swiech Andrew Kozlowski and Izabela
Kozlowski signed Exhibit 22 to the agreement ofloan granted to KBP-1, in which they obligated
themselves not to adopt resolutions described in detail in the document (it concerned, among
other, a resolution on paying dividends to the shareholders).
Proof: exhibits pages 891-893
In March of 2005 Meeting of Shareholders of Krakow Business Park Ltd. was held, on
which all shareholders where present. The following resolutions where voted and approved: on
approving the report on work ofthe Board, approving the Company's balance sheet and profit &
loss statement for the year 2004, on covering losses from future profits and acknowledgement of
fulfillment ofBoard's duties in the year 2004.
Proof: exhibits pages 710-711
On November 1, 2005 a lease agreement was entered into between Business Center
Solution (the Lessor) and KBP-1 Ltd. (the Lessee). Subject ofthat agreement was office space,
which was a subject of the lease agreement dated July 1, 2003. In accordance with a lease
agreement rent was set at the equivalent to $34.00 for one square meter, and the Lessee was
responsible for payment ofmaintenance costs.
Proof: agreement
In March of 2006 Meeting of Shareholders of Krakow Business Park Ltd. was held, on which all
shareholders where present (Adam Swiech, Andrew Kozlowski, Jan Domanus and Izabela
Koziowski). The following resolutions where voted and approved; on approving the report on
work of the Board, approving the Company's bal ance sheet and profit & loss statement for the
year 2005, on covering losses from future profits and acknowledgement offulfillment ofBoard's
duties in the year 2005.
Proof: exhibits pages 725-727
On June l, 2006 the lease agreement was signed between Business Center Solution (the
Lessor) and KBP-2 Ltd. (the Lessee). According to the agreement the lease rent was set at $34.00
per square meter.
Proof: agreement
On December 15, 2006 the lease agreement was signed between KBP-2 Ltd. (the Lessor)
and Business Center Solutions Ltd (the Lessee). According to the agreement the rent was set at
equivalent to EURO 10.00 per square meter. In addition the Lessee was responsible for paying
maintenance charges ofthe building.
Proof: agreement
On December 15, 2006 the lease agreement was signed between KBP-2 Ltd. (the Lessor)
and Business Center Solutions Ltd (the Lessee). According to the agreement the rent was set at
equivalent to EURO 4.00 per square meter. In addition the Lessee was responsible for paying
maintenance charges ofthe building.
Proof: agreement
In March of2007 Meeting of Shareholders of Krakow Business Park Ltd. was held, on which ali
shareholders where present (Adam Swiech, Andrew Kozlowski, Jan Oomanus and Izabela
Koziowski). During the aforementioned meeting report from work of the Board was submitted,
balance sheet and profit & loss statement of the Company for the year 2006 were presented. Ali
the shareholders unanimously approved the presented documents by adopting an appropriate
resolution. A resolution was also adopted, according to which the profit generated in 2006 was to
be allocated to cover the losses generated in the previous years. AIso fulfillment of Board's duties
in the year 2006 was acknowledged.
Proof: minutes and attendance list pages 114-116
On May 21 2007 Extraordinary Meeting of Shareholders of Krakow Business Park Ltd
was held., and voting on resolutions was carried out in electronic matter.
Proof: minutes pages 305-306
On September 27,2007 Extraordinary Meeting of Shareholders of Krakow Business Park
Ltd. was held, on which alI shareholders where present (Adam Swiech, Andrew Kozlowski, Jan
Domanus and Izabela KozIowski). The following resolutions where voted and approved:
commitment not to sell shares for the period of 36 months, on granting consent to sale of shares
by Jan Domanus and Andrew Kozlowski to Adam Swiech, on selecting PROTORlUS Ltd. as the
main adviser to the Board with a remuneration of $20,000.00, on appointing Adam Swiech as the
President of the Board, on making a decision on commencement of works on transferring the
Company in to public joint stock company and (spółka akcyjna) and preparing the Company for
its listing on Stock Exchange, on granting consent to establish security instruments on the
Company's shares and assets.
Proof: minutes pages 307-321
On November 16, 2007 the sublease agreement was signed between Business Center
Solutions Ltd. (the Lessor) and KBP-9 Ltd. (the Lessee). According to the agreement the rent was
an equivalent to EURO 34.00 for one square meter. The Lessee was obligated to pay maintenance
charges for the building.
Proof: agreement
On November 30, 2007 two contracts of support were entered into between KBP-5 Ltd.
(supported) and Krakow Business Park Ltd. and between KBP-6 Ltd. and Krakow Business Park
Ltd. The aforementioned agreements also set forth monthly remuneration due to Krakow
Business Park Ltd. in the amount ofPLN 92,500.00.
Proof: two support agreements
In March of2008 Meeting ofShareholders ofKrakow Business Park Ltd. was held, on which alI
shareholders where present (Adam Swiech, Andrew Kozlowski, Jan Domanus and Izabela
KozIowski). During the meeting report from work of the Board was submitted, bal ance sheet and
profit & loss statement of the Company for the year 2007 were presented, which were
unanimously approved by all the participants. The resolution was also adopted, according to
which the profit generated in 2007 was to be allocated to cover a part the losses generated in the
previous years. AIso fulfillment ofBoard's duties in the year 2007 was acknowledged.
Proof: minutes and attendance list pages 132-134
On August 14, 2008 Extraordinary Meeting of Shareholders of Krakow Business Park
Ltd. was held, the minutes of which was prepared by a Notary. On the aforementioned meeting
alI shareholders where represented by their attomeys. The following resolutions where voted on
and approved: on amending Section 15 of the Company By-Iaws; on approving report of the
Board and financial statements for the year 2007; an appointing President ofthe Board; on setting
a monthly remuneration for the President ofthe Board. The attorney ofthe minority shareholders
voted against all ofthe aforementioned resolutions and objected to them.
Proof: minutes pages 135-139
District Court in Krakow, IX Commercial Division in a verdict dated November 18,
2008, case num ber IX GC 331/08 ruled null and void the resolution dated August 14, 2008 on
amending Section 15 ofCompany By-Iaws and dismissed the remaining petitions.
Proof: copy ofthe verdict page 830
Adam Swiech and Andrew Kozlowski had consultations concerning tax structure of land
ownership by Krakow Business Park Ltd. Th~ Opinion issued as a result of that cooperation
assumed among others a creation of 11 Companies, i.e. entities which would be the property
owners.
Proof: pages 907-919
In a letter dated June 2, 2008 Andrew Kozlowski, Jan Domanus and Izabela Kozlowski
submitted a notice of suspicion of committing criminal offence by Adam Swiech.
Proof: notice pages 769-799
On August 7, 2008 the investigation was initiated concerning suspicion of committing a
number of criminal offences against Andrew Kozlowski, Izabela Kozlowski, Jan Domanus and
the Company Krakow Business Park Ltd., as well as State Treasury.
Proof: Decision ofinitiating investigation pages 162-163
On September 13, 2008 District Attorney for Krakow decided to charge Adam Swiech
with four charges concerning criminal offences committed in organized crime group to the
detriment of Andrew Kozlowski, Izabela Kozlowski, Jan Domanus and the Company Krakow
Business Park Ltd., as well as the State Treasury.
Proof: Decision to charge pages 164-167
With the decision dated September 15, 2008 case number XIV Kp 915/08/ Regional
Court for Krakow Śródmieście in Krakow, XIV Criminal Department applied to Adam Swiech a
preventive measure in the form of pre-trial detention.
Proof: a decision
With a decision dated October 23, 2008 District Attorney in Krakow secured on the
shares held by Adam Swiech in Krakow Business Park Ltd. a pen alty of a fine and penalty
punitive measures in the form ofthe forfeiture or obligation of compensation for damages.
Proof: decision
Andrew Kozlowski and Jan Domanus filed petitions dated October 23, 2008 about
establishing alegal evidence ofbeing a shareholder in Krakow Business Park Ltd.
]
Proof: petitians
On November 18, 2008 Extraordinary Meeting of Shareholders of Krakaw Business Park
was held, on which alI of shareholders where present, except for Izabela Kozlowski. Resolution
on changing agenda ofthe meeting was approved unanimously.
Proof: minutes pages 897-900
On November 18, 2008 President of the Board of Krakaw Business Park Ltd. submitted
documents concerning loan agreements to the attorney of minority shareholders.
Proof: letter page 906
On May 7, 2009 Extraordinary Meeting of Shareholders of Krakaw Business Park Ltd.
was held on which alI of the shareholders where present, except for Izabela Kozlowski. It was
decided that that meeting was incorrectly convened.
Proof: minutes pages 1285-1288
On May 22, 2009 Extraordinary Meeting of Shareholders of Krakaw Business Park Ltd.
was held, on which alI of the shareholders where present with exception of Izabela Kozlowski
and Andrew Kozlowski. The following resolutions were voted and approved: on dismissing Jan
Blajer from a position of President of the Board of Directors, on electing new President of the
Board, on changing remuneration of the President of the Board, on electing an attorney to sign
contracts with members ofthe Board.
Proof: protocol pages 1300-1304
By the verdict dated March 9, 2010 District Court in Krakaw, Department IX
Commercial case num ber IX GC 177/09 dismissed a petition of Izabela Kozlowski to establish
ownership of 1,028 shares in Krakaw Business Park Ltd. and obligation to publish those shares in
the Book of Shares.
Proof: capy ofthe verdict
By the decision dated November 22, 2010 District Attorney in Krakaw changed and
supplemented previous charges against Adam Swiech and presented him with tata I of 25 charges
ofcriminal offences shown in the Criminal Code and Criminal Treasury Code.
Proof: decision on changing and supplementing decision about charges
By the decision dated February 22, 2011 District Attorney In Krakaw changed and
supplemented previous charge s against Adam Swiech and presented him with additional 26-th
charge.
Proof: decision changing and supplementing decision about charges
By the decision dated March 29,2011 District Court for Krakaw Sródmieście in Krakaw,
Department XI Commercial ofthe National Court Register, empowered Adam Swiech to convene
Extraordinary Meeting of Shareholders of Krakow Business Park Ltd. in the subject, among
other, of adopting a resolutions on acknowledgement of fulfillment of the Board's duties, on
dismissing existing members ofthe Board and electing new members ofthe Board.
Proof: decision
On April 28, 20 l I Extraordinary Meeting of Shareholders of Krakow Business Park Ltd.
was held, on which all of the shareholders where present with exception of Izabela Kozlowski
and Andrew Kozlowski. The following resolutions where voted and approved: on
acknowledgement of fulfillment their duties by the members of the Board and President of the
Board, on dismissing existing members ofthe Board President ofthe Board, and on electing new
Board members and new President ofthe Board in person of Alicja Gostek-Swiech. The attorney
of Jan Oomanus voted against all above resolutions and objected to them.
Proof: protocol pages 1971-1979
On April 16,2012 Extraordinary Meeting ofShareholders ofKrakow Business Park Ltd.
was held, on which all ofthe shareholders where present.
Proof: minutes pages 2563-2566
On April 26, 20] 2 Extraordinary Meeting of Shareholders of Krakow Business Park Ltd.
was held, on which alI ofthe shareholders where present.
Proof: minutes pages 2726-2727
On May 2, 2012 Extraordinary Meeting of Shareholders of Krakow Business Park Ltd.
was held, on which alI of the shareholders where present. During the meeting the resolution,
among other, on increase of the Company's capital was adopted. The attorneys of Jan Oomanus,
Andrew Kozlowski and Izabela Kozlowski voted against that resolution and raised objection to
this resolution, without j ustification.
Proof: minutes pages 2567-2574
National Court Register file kept for Krakow Business Park Ltd. shows as the
shareholders: Adam Swiech holding 16,393 shares worth PLN 500.00 each and Andrew
Kozlowski having 4,346 shares worth PLN 500.00 each. In addition, the shareholders are: Izabela
Kozlowski holding 257 shares worth PLN 500.00 each and Jan Oomanus holding 1,145 shares
worth PLN 500.00 each. Proof: copy ofthe National Court Register Record
In relation to the companies from the Capital Group created by the Defendant Company
there was a num ber of investigations concluded by Directors of Office of Fiscal Control and
Treasury Chamber in Krakow in the subject of imposing additional tax amounts. Defendant
Company admitted existence of this circumstance, provided that that in the course of the
proceedings carried out by the tax authorities a presurnption of guilt was applied, therefore, they
do not constitute a basis for putting in allegations against the Defendant Company in the
proceedings. The decision documented by the Plaintiffs with copies concern various entities, not
only the Defendant Company (in file binder XI and XII).
The aforementioned actual state of affairs was determined by the Court based on the
documents included in the case file, with regard to which the court found no grounds to question
their credibility. At same time in the Court's mind they are sufficient for fuli reconstruction ofthe
Company's activities. It should be pointed out, that Plaintiffs did not provide accurate data
concerning existence of the Defendant Company and activities undertaken by it, and oniy
emphasized an existing conflict between the shareholders. The Plaintiffs themselves pointed out
that all information is included in the case file and they referred to it.
At the request of the Plaintiffs filed before closing the case, the Court allowed and
conducted (within the scope requested by the Plaintiffs) proof from opinion of court experts
called on by the Oistrict Attorney in a course of the proceeding VI Ds. 49108/Sp. The Defendant
did not challenge existence of financial operations shown there, however it challenged alegal
assessment of such operations, and furthermore pointed out that that the criminal investigation
has not led to indictment until that time. In particular the Court examined conclusions ofthe court
experts. It should be pointed out; that opinion issued by expert Magdalena Kupiec dated February
4, 2011 (page 3020) includes analysis of capital flows on the basis of documentation made
available to her in a course of criminal investigation. Court expert did not formulate definitive
conclusions. The expert in fact analyzed accounting records, picturing the financial tlows and
showing which documents are missing to present a full picture of the flows. In her concluding
remarks the expert indicates where one should look for further financial documents.
The Plaintiffs referred also to the opinion of expert of the certified auditors Lech Stanczyk, and
Beata Cala dated July 31,2010 (page 3158) issued in the course ofthe criminal proceedings VI
Ds. 49/08 Sp. Plaintiffs drew attention to the conclusions of the experts. The experts stated, that
transactions selected by them (page 3418) raise their doubts as to the reality of the services
performed. On the following pages (page 3421) the experts expressed their opinion that money
transferred out by Adam Swiech in the form of loans came from fictitious transactions that took
place in the companies belonging to the KBP Capital Group.
Plaintiffs allege that this is the evidence of the "transfer-out" of financial resources from the
Defendant Company to the benefit of Adam Swiech. In the opinion of the Court a significant
difficulty in interpreting the opinion of experts formulated in such way, results only from the use
of the term "fictitious". Experts' opinion does not allow for determining what defects of the
statements of will should be assigned to the individual transactions. The opinion is a material
associated with other evidence compiled in criminal proceedings, evidence not known to this
Court. Civil Court is unable to eonduet a separate qualification of these transactions on the basis
of presented opinions. What is important, considerable financial flows relate to relationships of
the Defendant Company with its "subsidiaries", what does not seem to violate rights of the
Defendant Company as a shareholder in "subsidiaries". What is even more important, model of
Capital Group was created during the harmonious existence of the Defendant Company, what is
clearly indicated by the documents from pre-filing period. It should be noted that the transactions
before the spring of2008 took place with the fuli possibilities of control by the Plaintiffs, and the
resolutions indicate their acceptance in the unanimous vote. In a later period, at the request ofthe
Plaintiffs, the Defendant Company is being extensively controlled by tax authorities and District
Attomey's Office. These controls reveal a num ber oftransgressions, but this does not change the
assessment of the evidence, indicating that the Plaintiffs actively participated in undertaking and
accepting activities ofthe Company.
The Court considered evidence from testimonies of Plaintiffs (page 2741) from the
Defendant (page 3011 b) and incidental intervening party (pages 2747 and 3009b). Testimonies
ofthe Plaintiffs do not eonfirm the claims included in the petition concerning gradual build-up of
conflict among the shareholders, which led to the filing of this action in 2008. In light of the
above cited documents the shareholders harmoniously co-created the company, which was
already pointed out by the Court of Appeal when considering appeal to the previous judgment in
the case. Violent eruption ofconflict occurred only in the spring of2008. The culmination ofthe
Plaintiffs' actions was the decision for the temporary detention of Adam Swiech.
The court tried to find an answer to the question why such violent conflict erupted among
partners in mid-2008 in the shareholders' testimonies. Testimonies are fuli of subjective
comments about who is responsible for a conflict of shareholders. In the opinion of the Court,
shareholders do not report what financial issues evoke in the Plaintiffs feeling that they have
invested more than the incidentaI intervening party wants to repay them nowo This confirms
believes of the Court that the presented grounds for the c1aims included in the petition do not
correspond to the real relations among partners, which led to violent conflict and bringing an
action for dissolution ofthe Company.
The Plaintiffs pointed out that at the tum of 2007 and 2008 they decided to cash in their
shares, but shareholders have failed to agree on a price. They pointed out that later on, due to lack
of agreement by incidental intervener to pay claims submitted by them, they wanted to sell the
company, but intervener objected to such sale. Then they obtained c1ues pointing to financiaI
irregularities in the Company and informed District Attomey. Their allegations are confirmed in
the criminal proceedings. Plaintiffs feel "trapped" in the Company not being able to sell their
minority shares at their real value.
Intervener explained that after a period of harmonious development and cooperation, in
2008 the Plaintiffs wanted to sell the Com pany, which he refused. Then the Plaintiffs took actions
to take away from him the Company, where he was a majority shareholder, in fact actions leading
to destruction of the Company as a business entity. Despite these activities the Company
continues its development.
Chairman of the Board of the Defendant Company declared fulI co-operation with the
Plaintiffs as to interests ofthe Company.
Ultimately, the Court found that, despite the conflict of the shareholders, it does not
affect directly operations of the Company, which continues to develop the model of a capital
group, co-created by the shareholders a long time before 2008.
District Court found the followiog:
Finally, the Plaintiffs pointed out that the claim included in the petition was justified by
permanent and unavoidable conflict among the shareholders. Plaintiffs feel trapped in the
Defendant Company, which was appropriated by the incidental intervener. This situation causes
that the objective ofthe Company carmot be achieved. The factual basis ofthe claim was indicted
by the Plaintiffs in the petition in 2008, and the Court is bound by it. The fact of escalating
conflict of shareholders in the course of these proceedings, it is an inevitable consequence of the
Plaintiffs decision from 2008 to initiate criminal and present proceedings. As a result of the
Plaintiffs' action the Defendant Company is fully transparent. Intensive controls by tax
authorities and law enforcement agencies are undertaken. The Defendant Company maintains
liquidity; since - as indicated by the Defendant - the banks did not halt financing of extensive
investment (fact known to the Court on its own initiative). The Plaintiffs carry out current
controls by prosecuting resolutions to Court.
Conflicts among shareholders in companies are a natural phenomenon. Shareholders,
including minority shareholders, benefit from the protection provided for in the regulations ofthe
Code of Commercial Companies. The right to request dissolution of a company is a most far-
reaching right. Enforcement of this right is therefore the last resort. In the opinion of the Court,
the evidence gathered in course of the case, failed to show that the circumstances specified in
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Article 271 ofthe Code ofCommercial Companies occurred for dissolution ofKrakow Business
Park Ltd..
Pursuant to Article 271 of the Code of Commercial Companies, except in the cases
referred to in Article 21, the court may declare dissolutions of the company when demanded by
shareholder or member of the company's governing body, if attaining the company's objective
becomes impossible or, if another important reason exists caused by the Company's relationships.
Court decisions consistently state that a failure to achieve the objective of the company may be
caused by the conf1ict that exists between its shareholders, as a result of frictions between two
fractions of shareholders with a balanced number of votes, when is not possible to pass
resolutions, which hinders the proper operations of a company (see Decision of the Supreme
Court dated April 10, 2008 TV CSK 20/08). An objective of each commercial company, both
personal as well as capital, similarly to every corporation, i.e. association of people, is pursuit to
achieve a common objective (Article 3 Code ofCommercial Companies). It does not only refer to
business objectives, but also social ones, and the basie feature of every company is an idea of a
co-operation among partners (shareholders). Shareholders of a limited liability company should
pursuit to achieve a com mon objective during the entire period of its existence. When reaching
company's objectives becomes impossible, the Act indicates, as fundamental, lian important
cause" for dissolving a company by the court (Article 271 paragraph I of the Code of
Commercial Companies). The impossibility of achieving the objective should be permanent and
continuous. It is assumed that the impossibility ofachieving a limited liability company's purpose
must be objective, which means that such company is not able to reach an agreed objective,
despite making legal and organizational efforts. Other important causes include: lack ofability to
make a decision in the company (decision-making "lock"), lack of governing bodies and inability
to appoint them, permanent use of majority shareholder's position, lack of interest in the
company's affairs by its shareholders, permanent conf1icts between board members, depriving a
shareholder of its rights by other shareholders, a breach of Article 20 of the Code of Commercial
Companies.
In the literature, there are also opinions, that dissolution of a company, which has the
ability to operate in the market, should be the final solution. A mere violation of some minority
shareholder's (shareholders') rights, even ofa notorious character, is not a sufficient circumstance
for a court to issue ajudgment on dissolution ofa company. Violations ofthese rights should lead
to further negative consequences in the functioning of the company, for example majority
shareholders when adopting resolutions violate good manners and hurt minority shareholder, who
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then effectively brings an action against such resolution (see Dominika Wajda, Glossary to the
Court of Appeal judgment ofNovember 9, 2006 and Aca 575/2006, Glossary 2008.2.53).
With regard to the allegation of non-disclosure in the National Court Register of the
shareholders Jan Domanus and Izabela Kozlowski, it should be noted that, pursuant to Article 36
paragraph 8 letter C ofthe National Court Register Act dated August 20, 1997, only shareholders,
who own at least 10% ofthe shares should be recorded in the register. Therefore, ifthe shares of
Jan Domanus and Izabela Kozlowski did not cross the aforementioned threshold, they should not
be recorded in the register. The fact of not recording them doesn't cause that Jan Domanus and
Izabela Kozlowski are not shareholders in the Company and do not have any rights. Despite the
fact that they where not recorded in the register, they may exercise their rights arising from
ownership of shares in Krakow Business Park Ltd. In addition, it should be noted that both Jan
Domanus and Izabela Kozlowski were present at the Meetings of Shareholders, as shown by the
attendance lists and exercised their rights to vote on them. Thus, their position as shareholders
was never in danger, since they exercised the powers available to shareholders. It is significant
that until 2008, none of the partners raised any doubts about the amount of their shares; and also
that the resolutions were passed easily and have not been objected by anyone either in the formaI
or substantive context. General Meetings of Shareholders were held on a regular basis and there
were no problems with adopting resolutions. For a period of II years there were no disputes
between the shareholders as to their shares in the Company, which would find its final in court
proceedings. The Plaintiffs did not prove that the lack of the Book of Shares, or any irregularity
in keeping it, had any impact on functioning of the Company. In the opinion of the Court in the
light of the minutes of shareholders meetings, it should be considered that any deficiencies in
administration of the Book of Shares did not constitute an obstacle to efficient development of
Krakow Business Park Ltd.
It should also be noted that from the documents contained in the pages 72 and following
it arises that Adam Swiech, as the President of Krakow Business Park Ltd., filed on September
17, 2004, with the Court Registrar a current list of shareholders, which included Andrew
Kozlowski, Izabela Kozlowski, Adam Swiech and Jan Domanus. The aforementioned list of
shareholders was included by order of the Court to the Registrar files of the Company on
September 21, 2004.
It should also be noted that Jan Domanus was present at the meetings of shareholders and
took an active part in them, by voting. He did not question at that time the amount of his shares.
Thus, the current dispute between him and Adam Swiech about the fact of holding shares, in itself
can't constitute the ground for dissolution ofthe Company.
In the light of the gathered documents it cannot be admitted that the Plaintiffs were
discriminated by Adam Swiech as minority shareholders, and aJso that they had no influence on
the decisions made and directions ofthe Company's development. In the opinion ofthe Court the
Plaintiffs knew the financial and legaJ situation of Krakow Business Park Ltd. and actively
participated in its operations. The minutes from shareholders' meetings, which were held until
2008, and attendance Jists, show that al! shareholders were present at them, and that the resolution
where adopted unanimously. Minority shareholders did not raise any objections to the adopted
resolutions and did not challenge them in Court. The fact that since 2008 the Plaintiffs do not
agree with adopted resolutions and challenge them in Court, which some ofthem considered to be
invalid due to the violation of the rights of minority shareholders, carmot lead to a simple
presumption that during the entire period of existence of the Company the Plaintiffs were
discriminated, and their rights violated.
The Plaintiffs' attorney's claims that adopting resolutions and then challenging them in
court demonstrates a permanent status ofthe conflict cannot be considered as true. In the opinion
of the Court concordant adoption of resolutions over a period of 11 years in fact indicates that
there was no conflict between the shareholders at alI. In addition, gathered evidence indicates that
by mid-2008 no resolution was ever challenged in court by any ofthe shareholders. It should also
be noted that the Plaintiffs themselves admitted that the conflict between the partners existed
since mid-2008. Thus, it carmot be regarded as a permanent, growing over the years, since until
2008 actions where taken unanimously. It should also be noted that, if the circumstances
presented in this case would be found to be true, it would not be possible for the Company to
operate, and certainly not for a period of II years. In particular, it would be impossible to create
new organizational structures and generating profits by the Defendant Company. Shareholders
acting rationally in this situation should immediately take actions to "cure" the situation in the
Company, and not to wait passively for II years.
As a side remark it should be noted that the court proceedings initiated by the minority
shareholders since the second half of 2008 concerning the resolutions, in most cases ended with
dismissal of the actions. Thus, it should be considered that they were in line with the law
reguJations and do not infringe the shareholders' rights.
Plaintiffs repeatedly claimed that the majority shareholder's activity was based on a
number of irregularities in functioning of Krakow Business Park Ltd. and its subsidiaries, and by
numerous fictitious transactions. Nevertheless, in the opinion of the Court evidence gathered in
the case did not demonstrate that the actions of Adam Swiech were aimed against the minority
shareholders. It should also be noted that the documents col!ected in the case, the minutes from
Shareholders Meetings in particular, indicate that the Plaintiffs knew the real situation of the
Company, and also its undertakings or agreements concluded with the subsidiary-companies. It
should be noted that until 2008 the Plaintiffs also did not question the organizational structure of
the Defendant Company and creation of so called "Subsidiaries". In addition, the Plaintiff
Andrew Kozlowski, during questioning at the hearing admitted that all shareholders ordered from
an independent tax firm issuing opinions concerning financial and legal concepts of Krakow
Business Park Ltd. operations. Therefore, the doubt as to the validity or legality ofthe structure of
Krakow Business Park Ltd. should be considered as occurring suddenly, based on the subjective
grounds, not supported by any evidence. Until mid-2008, the cooperation between all
shareholders developed concordantly, without any conflicts. Thus, Plaintiffs' claims that for the
entire period of 11 years since the incorporation of the Company, they did not know about the
activities of Adam Swiech and did not have the opportunity to take appropriate actions, are hard
to believe. It should be underlined that until mid-2008 alI the shareholders were present at
Shareholder Meetings, in concordantly adopted resolutions, which then were not challenged in
Court. Thus, currently raised claims of numerous irregularities to the detriment of the Plaintiffs
find no support in the presented documentation, illustrating the operations of Krakow Business
Park Ltd. over 11 years.
The irregularities found in the course of the control procedures result, if applicable, in
responsibility of Krakow Business Park Ltd. to the State Treasury, and not against the minority
shareholders. The gathered evidence showed that the Plaintiffs knew the ways of functioning of
the Defendant Company, as well as the actions taken by it. Thus, if the Plaintiffs participated in
the meetings of the shareholders, voted on them, inter alia, on the approval of the financial
statements and the reports of the Board, they cannot now claim, that they were not aware of the
activities carried out by the Company. Therefore the irregularities found, whether in criminal or
other proceedings in the course of other inspections, in the structure of organization cannot be the
basis for the dissolution ofthe company.
One of the grounds authorizing the Court to dissolve the company under the Code of
Commercial Companies is inability to make any resolutions, which results in the inability to
manage the affairs of the company. In this case, the Company functioned well and, what should
be underlined, continues its operations. Although this fact is not disputed, the testimony of the
Defendant Company CEO (page 3011), which leaves no doubt about the condition of the
Company, should be indicated. The above indicates that there are no grounds for dissolution of
the Company.
The accusation that throughout the existence of the Company alI the time Adam Swiech
sought to "dilute" the shares of the minority shareholders through a share capital increase, should
also be considered as irrelevant. It should be noted that since the incorporation of the Company,
the resolutions on the capital increase were adopted unanimously. The aforementioned resolutions
where not accompanied by any objections raised by the minority shareholders. Therefore, the
present claims ofthe Plaintiffs that the increase ofthe share capital is intended to their detriment
have not been proved.
The allegation of existence of so-called "quiet shareholders", who among others was
supposed to be Ryszard Swiech, who acted on behalf ofthe Company without any authorization,
is groundless. It should be noted that, according to a copy of entries in the National Court
Register, Ryszard Swiech served as Company's commercial proxy, so he could make decisions
on its behalf and to represent it.
According to the adopted resolutions the losses initially incurred by the Company were to
be covered by the profits generated in subsequent years, and the subsequent resolutions referred
to it. So one cannot make accusations that no dividend was paid to the shareholders, when the
Company initially generated losses, which in subsequent years where to be paid out of profits. It
should be pointed out that all the members unanimously approved the financial statements for the
preceding years and adopted appropriate resolutions, under which income generated in particular
year was to be allocated to cover the losses generated earlier. So there was no ground to pay
dividends. It should also be noted that all shareholders, including the Plaintiffs, made obligations
to the credit institutions not to adopt resolutions on the payment of dividends. This is intended to
secure loans granted to subsidiary companies. Therefore the Plaintiffs now cannot accuse the
Company ofunlawful depriving them oftheir dividends.
In the opinion ofthe Court the matter of Jan Domanus' dividend, if any, which according
to the Company was a loan, is also not a reason for dissolution,. It should be noted that the parties
have not submitted any document confirming the transfer of money. Thus, the Court was unable
to evaluate on its own the true nature of the transfer of these funds. Nevertheless, from the
resolutions adopted by all the shareholders, as well as from other documents it arises that the
Company was holding up payment of dividends. Because it initially generated losses, which in
the later years were covered by the profits generated by the Company. In addition the
shareholders agreed not to take resolutions on payment of dividends in connection with securities
for the loans granted to "subsidiary companies". So in the light of the circumstances described
above, it should have been assumed that the money given to Jan Domanus was not a dividend.
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Moreover, in the Court's opinion, even if one assumes that Jan Domanus received a
dividend, this would not constitute the basis for dissolving the Company. This issue should be
resolved between the shareholders, and not in the proceedings against the Company. It should be
noted that the accusation ofpaying the dividend was raised by one ofthe Plaintiffs A. Kozlowski,
acting in the proceedingjointly with the beneficiary ofthe payment J. Domanus, together turning
it in to as an accusation against the Company.
In the Court's opinion, also the allegation that the Plaintiffs cannot exercise their rights as
shareholders, including being left without access to documents of the Company, turned out to be
irrelevant. As it is elear from the letters included on the pages from 247 to 279, representative of
the minority shareholders had an opportunity to examine the Company's documents after he
delivered original powers ofattorney. The Parties had a problem with finding an appropriate time
to meet and examine the documents, but it cannot be considered as avoided by the Defendant
Company's default. In addition, the Defendant Company provided possibility of making the
company's documents available only to the shareholders acting personally, and not by their
attorney. It also did not consent for copying the documents. This cannot be regarded as a sign of
bad will on the part of the Company. Specified decisions should be considered as rational and
taken in the interest of the Company itself. In addition, the attorney of the Plaintiffs fai led to
appear at the date and time indicated for access to the Company's documents. It should also be
noted that the PlaintiffIzabela Kozlowski, during questioning at the hearing in course ofthe court
suit, said that the Company had made the documentation available to her and she was able to
inspect it.
In the opinion of the Court the fact that at present a criminal investigation against Adam
Swiech is in progres s in respect to criminal offences committed with the use of organizational
structure of Krakow Business Park Ltd., does not constitute grounds for the dissolution of the
Company. The above is not an evidence for stating that the majority shareholder acted without
knowledge and to the detriment of the minority shareholders. Only a final and binding judgment
convicting him would eonfirm the guilt of Adam Swiech. Prior anticipation of the final outcome
of the criminal proceedings against a majority shareholder would violate constitutional
guarantees. One cannot make a presumption that, if criminal proceedings are conducted against
the majority shareholder, then the actions taken by him were to the detriment of Plaintiffs. The
more so because, in the opinion ofthe Court, alI the members concordantly worked together until
2008, adopting unanimous resolutions and approving the financial statements and the work ofthe
Board.
The fact that the District Attorney in Krakow established security interest on the shares of
Adam Swiech in Krakow Business Park Ltd. is irrelevant to the Company's operations. Adam
Swiech in fact may exercise, directly or through an attorney, the powers in respect of the shares
hel d, including the right to vote. This is demonstrated, inter alia, by the fact that the majority
shareholder was authorized by the District Court to convey Extraordinary Meeting of
Shareholders.
The Plaintiffs did not prove that Adam Swiech falsified the minutes of the shareholders'
meeting held in March 2008 and the attendance list. References made in the course of this hearing
by the Plaintiffs to the expert's opinion drawn up in the preparatory proceedings is not sufficient
for a positive resolution ofthe aforementioned issue in this proceeding.
It should also be noted that is incurring legal costs is a naturaI consequence of
participating in litigation. These costs are higher if the proceedings are taking place abroad. So
allegations should not be made against the Defendant Company, that it pays to USA attorneys,
who represent it before a court in the United States.
The fact that there is a conflict between the partners is undisputed. However, in the
opinion of the Court the conflict is present from mid-2008, and despite it Krakow Business Park
Ltd. is still operating. It is worth pointing out that in course ofthis proceeding the Plaintiffs filed
a motion - withdrawal of the action. It is true that the Plaintiffs withdrew that motion, but the
Plaintiffs were not able to explain to the Court the circumstances, in which they made such
important decisions. In the opinion of the Court this is yet another indication that the Plaintiffs
continuing the case put pressure on the incidental intervener in order to obtain a more favorable
price for their shares. When trying to persuade the parties to reach a settlement the Court received
information that the dispute boils down to the value, which the Plaintiffs would like to receive as
a settlement oftheir contributions, and the incidental intervener would not accept this value.
For the aforementioned reasons, the Court found no basis for dissolution ofthe Company.
The costs ofthe proceedings where decided pursuant to Article 98 ofthe Civil Code, according to
the principle of responsibility for the outcome of the process. Amount of granted expenses
includes the Defendant's attorney's fee and the incidental intervener separately, at the minimum
rates provided for in the Regulation of the Minister of Justice for the reimbursement of incurred
costs and expenses. The items that make up the granted expenses are calculated in the same way
as in the justification to the decision to discontinue, page 2090 binder X
SealoJDistrict Courtin Krakow
[StampJ: appropriate signatures ajjixed on the originalCertified true copyMalgorzata Wegrzyn, Senior Clerk
I, Jacek Stępak, registered on the Minister of Justice's List of Certified Translatorsunder the number TP/2969/05, hereby certify that I verified submitted translationinto English and I found its content to be compliant with the content of the documentwritten in Polish. The document consists of 56,287 characters, which constitutes 50pages of certified translation (§ 8; Minister of Justice's Regulation of 24 January2005).
Krakow, 15 March 2013. Number in the Repertory: 117/2013.