In Poland, a business is usually purchased by way of (i) a share purchase or (ii) an asset purchase (either through the acquisition of specific assets of the target or part of or the entire enterprise of the target). Although a merger, demerger and other forms of corporate reorganization are also available, they are commonly applied as part of a pre-transaction, interim period or post-transaction group or assets reorganization, rather than for acquisition purposes directly.

The transaction structure highly depends on the specifics of a given transaction (such as tax considerations, non-transferability of permits or specifics of the assets forming the target, etc.). Most common transaction structure is a share deal. As certain limitations and a different tax treatment may be applicable to a transfer of assets or part of or the entire enterprise (both described in the sections below), such transactions are more commonly structured as a transfer of shares performed following a target reorganization. In addition, in September 2023 a new form of demerger was introduced into Polish law which provides for a transfer of the assets or business to an existing or newly established company in exchange for shares being issued to a divided entity, which simplifies the structuring of a transfer of assets or part of an enterprise of the target and is expected to become commonly used.

Transactions are still usually performed by way of a sale of the target to an interested buyer, either through direct discussions between the parties or as part of an auction processes. If an auction process is applied, it is usually divided into at least two stages: (i) in the first stage, interested bidders provide indicative, nonbinding offers, on the basis of which those attractive for the seller are selected for the next stage of the auction; (ii) in the second stage, selected bidders are permitted to perform due diligence of the target, after which they are requested to submit a binding offer, usually together with comments to the draft transaction documents. On that basis, a preferred bidder or bidders are chosen.

The limited liability company (spółka z ograniczoną odpowiedzialnością (sp. z o.o.)) and the joint-stock company (spółka akcyjna (S.A.)) are the two most common corporate forms in Poland. Both have legal personality, with the economic liability of shareholders limited to the amount of their equity contribution. Shares in these kinds of companies are freely transferable unless their statutory documents provide otherwise.

The limited liability company (sp. z o.o.) is well suited to carrying out business activities of all kinds. The shareholders' liability is limited to the amount of their contributions to capital. The minimum share capital of a limited liability company is PLN 5,000. The shares are not represented by security instruments and, assuming no restriction is provided for in the articles of association, may be transferred in written form by way of signed and notarized agreement. A limited liability company is managed by a management board consisting of one or more directors appointed by the shareholders (unless the articles of association provide otherwise). The management board must be composed of one or more members. Certain strategic decisions, in particular those relating to approval of annual reports, distribution of profits, claims for the reparation of damages, etc., are made at the shareholders' meeting.

There are no restrictions on the number of shareholders for any company. However, in limited liability companies (sp. z o.o.) where the share capital exceeds PLN 500,000 and the number of shareholders exceeds 25, there is an obligation to establish a supervisory board.

It must be noted that a limited liability company cannot be formed solely by another limited liability company (or foreign equivalent), although such a company can subsequently become the sole shareholder of a limited liability company.

The acquisition of a target company may be achieved by acquiring its shares, which will result in the acquisition of the target company shareholder's rights and liabilities.

The acquisition of a target company may be achieved by acquiring the assets of that company. If the assets acquired, in aggregate, form an independent business, subject to meeting conditions specified in Polish legislation, such a transaction may be qualified as an acquisition of part of or an entire business. Whether a transaction involves a standard acquisition of assets or an acquisition of a business will depend on the nature of the assets being acquired. Similar but not identical concepts are used by civil, employment and tax regulations, and it needs to be analyzed on a case-by-case basis whether the assets acquired form: (i) a business from a civil law perspective; (ii) an employment establishment from an employment perspective; and/or (iii) a going concern from a tax perspective.

The acquisition of a business involves the acquisition of all elements of the business, unless specifically excluded from the transfer by the acquisition contract or by provisions of law. The buyer of a business will be liable jointly and severally with the transferor for the transferor's debts and obligations relating to running the business unless, at the time of acquisition, the buyer was not aware of those obligations despite having investigated this with due care. The statutory liability of the buyer is limited to both of the following:

• The value of the acquired business at the time of the acquisition
• The amount owing to the creditors of the business at the time of the acquisition.

The condition and composition of the acquired business at the time of acquisition is assumed for valuation purposes. This liability cannot be excluded or limited without the creditor's consent.

If assets to be acquired do not form a business pursuant to Polish regulations, the transaction needs to be performed on an asset-by-asset basis. In such a case, all such assets should be listed in a detailed inventory to ascertain which elements are subject to the transfer.

Both the acquisition of assets and the acquisition of the business require the consent of creditors before the seller's liabilities arising out of contractual obligations relating to the acquired assets will be validly transferred. In addition, commercial agreements (which often form part of the acquisition of assets or the acquisition of a business) usually require that the seller obtains the other party's consent in order to transfer the benefit of the seller's rights under the agreement to the buyer.

In September 2023, a new form of demerger was introduced into Polish law, which provides for a transfer of assets or a business to an existing or newly established company in exchange for shares being issued to a divided entity. A demerger must be approved by and registered with the relevant registry court to become effective. An acquiring company or a newly formed company assumes, at the date of the demerger, all the rights and obligations of the divided company pertaining to the assets or business being transferred. The same applies to administrative permits, consents and reliefs; however, specific provisions of law (or the permits, consents or reliefs themselves), may contain provisions preventing such a transfer. As such form of demerger simplifies a transfer of assets or part of an enterprise of the target, it is expected to become commonly used as a pre-transaction or interim period reorganization followed by a transfer of shares in a newly formed or existing company.