What is an investment agreement? Good to know
Polish law regulates a number of different contracts - the largest part of them can be found in the provisions of the Civil Code. However, this does not apply to an investment contract, which belongs to the category of unnamed contracts. We can already say that it is directly related to a new type of economic activity. in the article we present what an investment agreement is and what requirements must it meet?
Named and unnamed contracts
Civil law divides contracts into two main categories:
named - those whose regulation is included in specific statutory provisions (e.g. the Civil Code or the developer act);
unnamed - being a combination of contracts of various types and not having a uniform statutory regulation.
The possibility of concluding unnamed contracts results directly from the content of Art. 3531 of the Civil Code, according to which the parties concluding the contract may arrange the legal relationship at their discretion, as long as its content or purpose does not contradict the properties (nature) of the relationship, the law or the principles of social coexistence. An investment agreement may therefore be established on the basis of the above regulation, unless, of course, it violates other generally applicable provisions of law.
As the name suggests, an investment contract is concluded in connection with a specific project. However, it is not about the construction process - in this case we would apply specific provisions of the Civil Code relating to the contract for construction works. An investment contract refers to an agreement concluded between the founder of a new enterprise (usually in the form of a start-up) and an investor who wants to financially support the idea of such a business. The investment here consists in implementing capital in a new company and obtaining the right to participate in profits that are to be achieved by it in the future.
The investment agreement should be concluded in writing. It is true that the legislator does not forbid concluding an oral contract in this respect, but a written contract is much safer, as it is an excellent proof of the arrangements made between the parties in the event of any conflicts related to its implementation.
The subject of the contract in question is primarily the transfer of a specific amount of money or specific material resources to the created enterprise. Thus, the originator of the company gains funds to establish it, and the investor has the right to demand a share in the profits of the new entity (e.g. in the form of a certain number of shares, if the enterprise will operate in the form of a commercial company). Investment agreements are the most popular when setting up a business in the form of a start-up, i.e. with young innovative enterprises focused mainly on the service and trade industry. Of course, the investment agreement can be concluded for any legally permissible purpose, not only for the establishment of a start-up.
The content of the investment agreement
Like any contract, this one must have specific content indicating the rights and obligations of the parties. The liability is made by the investor (the person donating money for the creation and development of a new company) and the entrepreneur (the person who will actually be considered the founder of a given business). Remember that the investor may also be a partner of the entrepreneur - however, it must be clearly specified in the signed contract.
The basic elements that should be included in every investment agreement are:
designation of the type of contract, date and place of its conclusion;
identification of the parties to the obligation - the investor and the creator of the economic undertaking (including contact details, PESEL number, NIP number);
indication of the basic rights and obligations of the parties to the contract, i.e. contributing a specified amount of money or fixed assets to invest in a new enterprise, describing the planned business activity and its exact scope;
description of the share structure of all partners in the company - in this section we specify who is a shareholder in a given enterprise, what number of shares he is entitled to and how many votes he may use when making decisions on business matters. In practice, it is one of the most important elements of any investment agreement;
introducing the principles of conducting business activity - in the event that the enterprise will operate in the form of a commercial company, it is necessary to define all the basic organs of the company and their competences;
description of the specific rights of the investor and founders - in this regard, we distinguish priority rights, pre-emption rights, prohibition to sell shares, tag along clauses;
listing the declarations and assurances of the parties to the contract - e.g. providing the investor with key information about the company's condition (both from the legal and business side);
appendices - they are a collection of important documents from the investor's point of view, including the articles of association, regulations of the company's bodies and the company's development plan.
The judgment of the Supreme Court of September 16, 2016 (IV CSK 748/15)
Investment agreements related to private offerings regarding the issue and acquisition of new issue shares by selected investors may be considered - also if they bring the company an advantage in the form of recapitalization and improvement of results - as agreements for the acquisition of shares in a public company within the meaning of Art. 87 sec. 1 point 5 of the Act of July 29, 2005 on Public Offering, Conditions Governing the Introduction of Financial Instruments to Organized Trading, and Public Companies.
How much does it cost to prepare an investment agreement?
In fact, the investment contract can be drawn up in a regular written form, which means that you do not need to visit a notary's office. In fact, such a contract can be written down by both the investor and the founder of the company. On the other hand, an investment agreement should contain a number of detailed provisions, the correctness of which can only be verified by an experienced lawyer.
In the case of an independent preparation of an investment contract, its costs are actually symbolic. If the investor and founder decide to use the help of a law firm, they will oscillate around several hundred zlotys (in rare cases up to 5,000 zlotys).
If the new enterprise operates in the form of a commercial company, it may be necessary to incur other costs, including fees for the notarial form of the contract and registration court fees payable to the National Court Register.
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The investment agreement belongs to the category of unnamed civil law agreements and may be based on the provisions proposed by the investor and the founder of the new company. We should remember, however, that although the parties may freely shape such an obligation, the contractual provisions must comply with applicable regulations and the principles of social coexistence. An investment agreement may include provisions used in other civil law agreements. Although its content may be written down by the parties to the commitment themselves, it is worth considering hiring a lawyer who will prepare such a contract in a professional manner.