On making a transaction with interest sample. The procedure for approving interested party transactions LLC - legal services of Legas company. Validity of the decision to approve a major related party transaction

A transaction with an interest in an LLC is a transaction in which any of the following persons is interested (paragraph 1, clause 1, article 45 of Federal Law No. 14-FZ of February 8, 1998):

member of the board of directors (supervisory board);
sole executive body (general director, president, etc.);
a member of the collegial executive body of the company (board, directorate, etc.);
a person controlling the LLC or a person entitled to give instructions to the company that are obligatory for it.

When such persons are considered interested in the transaction and how the decision to approve a transaction with an interest in 2017 is drawn up, we will tell you in our consultation.

When a transaction is considered to be of interest

The above persons are considered interested in the transaction by the company if they, their spouses, parents, children, full and half brothers and sisters, adoptive parents and individuals (organizations) adopted or controlled by them (paragraph 2, clause 1, article 45 of the Federal Law dated 02/08/1998 No. 14-FZ):

are a party, beneficiary, intermediary or representative in the transaction;
are a controlling person of an entity that is a party, beneficiary, intermediary or agent in a transaction;
hold positions in the management bodies of an organization that is a party, beneficiary, intermediary or representative in the transaction, as well as positions in the management bodies of the managing organization of such a company.

Is it always necessary to approve a related party transaction?

The law does not require obtaining a mandatory prior consent to a transaction with an interest (paragraph 1, clause 4, article 45 of Federal Law No. 14-FZ of 08.02.1998).

However, this does not relieve the LLC from the obligation to notify disinterested members of the company, as well as disinterested members of the board of directors (supervisory board) of the LLC about the upcoming transaction with an interest (paragraph 1, clause 3, article 45 of the Federal Law of 08.02.1998 No. 14-FZ) . Not later than 15 calendar days before the date of the transaction, these persons must be sent a notice in which it is necessary to provide information on the transaction (the person who is a party to it, the beneficiary, the price, the subject of the transaction and its other essential conditions, a person who has an interest in making transactions, and the grounds for such interest).

The preliminary approval procedure involves obtaining from the board of directors (supervisory board) of the LLC or the general meeting of participants consent to the upcoming transaction. The requirement for prior approval of an interested party transaction may be submitted by the sole executive body, a member of the collegial executive body of an LLC, a member of the board of directors (supervisory board) or a participant (participants), whose shares in the aggregate amount to at least 1% of the charter capital of the LLC (paragraph 2 of paragraph 4 article 45 of the Federal Law of February 8, 1998 No. 14-FZ).

In any case, a report on interested party transactions entered into by an LLC in the reporting year must be submitted in preparation for the annual general meeting of participants. In this case, in fact, we will talk about the subsequent approval of an interested party transaction

Decision on approval of an interested party transaction: sample

Let us give an example of the decision of the sole participant of an LLC to approve an interested-party transaction. If there are several participants, the adopted decision is drawn up in the form of a protocol on the approval of an interested-party transaction.

Federal Law No. 343 amended Federal Laws No. 208 and No. 14. The amendments affected some of the provisions governing major transactions and related-party transactions. Their qualifications, the procedure for internal corporate approval, and the disclosure of information about them were changed. In addition, the adjustments affected the ways to protect participants in the turnover, the rules by which major transactions and related-party transactions are appealed. Let's consider the innovations in detail.

Controlling person

In accordance with the amendments introduced by Federal Law No. 343, affiliation has been excluded from the criteria for qualifying an interested party transaction for an LLC. Instead of this term, the concept of "controlling person" is introduced. This innovation has significantly narrowed the circle of subjects that can be recognized as interested. The fact is that "affiliation" is a broader concept than "control". If the first involves influence, then the second is the ability to determine the decision to enter into an interested party transaction. The ability to act as a controlling person was retained for members of the board of directors, the collegial management structure, the sole body, as well as the entity entitled to issue mandatory instructions.

Innovation specifics

Analyzing the concept of "controlling person", it is easy to see that it completely duplicates a similar term that is present in the Law regulating the securities market. In this case, the legislator chose the path of formalizing the criteria, not considering supervision as a basis for accountability. According to experts, various difficulties will arise in law enforcement practice in this regard. It is worth saying that since 2017, according to the law, for the purposes of regulatory regulation of interested-party transactions, the municipality, the Russian Federation or its subject are not recognized as controlling persons.

Foundations

What is an interested party transaction? This category may include contracts that are concluded by persons, certain norms, their spouses, children, sisters/brothers (half and half), parents, adoptive parents/adopted or entities controlled by them (including organizations) with a number of special conditions. In particular, a transaction in which there is an interest is recognized as such if the said persons simultaneously act as participants in another legal relationship. At the same time, they can be a party, beneficiary, intermediary, representative. These are far from all the criteria by which an interested party transaction is determined. The contract will also be referred to this category if the specified entities hold a position in the governing bodies of a legal entity that is an intermediary, beneficiary, representative in the execution of the agreement. It is worth saying that the current legislation does not provide for the participants of a legal entity the opportunity to establish other criteria in the charter. Accordingly, any other transaction is not an interested party transaction, even if it is specified in the founding documents.

Property valuation

The rules for determining the monetary value of material assets were also changed by Federal Law No. 343. Since January 2017, the assessment procedure is not made dependent on the number of participants. The main criterion is the publicity or non-publicity of the company. In the latter case, the price of the property, in relation to which a transaction with the interest of the JSC is concluded, is determined by a majority of votes in the board of directors. At the same time, the legislator establishes an important requirement. These persons should have no interest in the transaction by the company. As for public entities, in addition to this criterion, mandatory compliance with a number of requirements is added (83 article of the Federal Law No. 208). The charter may establish the need to obtain more votes than provided for in the law.

Nuances

If the number of directors who do not have an interest, and in a public entity - additionally meeting the requirements stated in Article 83, paragraph 3 of the Federal Law No. 208, is insufficient (is less than the quorum established by the charter), property valuation is carried out unanimously by the members of the board. However, the votes of retired members may not be taken into account. This is allowed if the articles of association do not provide that the valuation should be carried out by decision of the meeting, adopted according to the rules for approving transactions in which there is an interest.

Exceptions

The amended Federal Laws No. 14 and 208 provide for several circumstances in the presence of which the contract cannot be considered as an interested party transaction. For example, the relevant regime does not apply to certain agreements entered into in the ordinary course of business. In order for the contract not to act as an interested party transaction, the association must enter into similar legal relations for a long period on similar conditions. Carrying out a comparative analysis of this provision and paragraph 5 of Article 83 of the Federal Law No. 208 in the previous edition, one can notice an important feature. Until 2017, the execution of such agreements could be agreed with the board of directors only within a certain time frame - until the next annual meeting. An important difference between the current wording is that the terms of the agreement should now be compared with all similar association agreements, in the conclusion of which there is no interest. Another important requirement of the new edition. It is necessary that agreements are drawn up repeatedly over a long period of time.

Interested party transaction approval

Consent before the conclusion of the contract may be obtained from the board of directors or the meeting of shareholders. Legislation determines the circle of persons who may apply with the relevant requirement. This is the sole management body, members of the collegial executive structure, the board of directors or a shareholder with at least 1% of voting shares. If an interested-party transaction for an LLC is agreed, then the shares of the circulating participants in the aggregate must be at least 1% of the authorized capital.

Possible problems

According to experts, the legislator, when establishing the criteria, compliance with which allows obtaining the approval of an interested-party transaction, did not determine the time frame within which these entities, from the moment of notification, may demand the convening of a meeting or board of directors. Experts point out that situations are possible when a positive answer will be received after the execution of the contract. And in some cases, the decision to approve an interested-party transaction may come after the fulfillment of its conditions.

General approval rules

The procedure in accordance with which the approval decision is made differs for public and non-public associations. Consent may be given by the general meeting. In this case, a protocol is drawn up. Interested party transactions may also be approved by the board of directors. In any of these cases, however, a number of rules apply. First of all, requirements are established for the content of the document, according to which the approval of an interested party transaction is carried out (a sample act is presented in the article). In addition, persons associated with the execution of the contract should be excluded from participation in the discussion. Accordingly, their votes are not counted. The exception is the situations provided for in clause 4.1 83 of article FZ No. 208. The board of directors must make a decision by a majority, unless a different number is fixed by the charter.

Qualified Requirements

The possibility of their establishment is provided for by Federal Law No. 208. Qualified requirements are determined by the organization itself. They are enshrined in the statute. When establishing qualified requirements, a quorum for meetings of the board of directors must also be determined, which, in turn, must consist of at least two persons. If the number of entities for approval of which an interested party transaction is submitted (the sample agreement does not differ in content from a regular contract) is less than that established by the charter, it is discussed by the shareholders.

Members meeting

The legislation provides for several cases when an interested party transaction is agreed upon by shareholders. These include situations:

When the subject of an agreement or several interrelated agreements is property worth (according to information from accounting records) 10% or more of the balance sheet price of assets as of the last reporting calendar date. The establishment of this minimum threshold will significantly liberalize the procedure for approving transactions. Prior to the approval of the amendments to Federal Law No. 343, agreements were required for approval, the cost of which was more than 2%.
If the transaction involves the sale of ordinary or preferred shares that make up more than 2% of the previously placed shares, and also into which equity securities can be converted, unless a smaller number is specified in the charter.

There are rules for special situations:

If, when a non-public association concludes an agreement requiring consent from the general meeting, all shareholders owning voting shares are recognized as interested, and one of them requires approval, it is granted by a majority participating in the discussion. At the same time, the right to apply for approval of the agreement must be secured by the charter.
If at the conclusion of the agreement all shareholders who own voting shares are recognized as interested, and a third party is interested in the transaction, the agreement is approved by the majority participating in the discussion.

This order is considered as an exception to the general rules.

Possibilities of non-public associations

These companies are subject to dispositive regulation. The charter of the association may fix the procedure for coordination, which differs from that provided for in the legislation. The constituent document may also determine that the relevant norms of the law are not applied in the implementation of the enterprise's activities. Such provisions of a non-public entity are introduced upon its creation, as well as in the event of amendments to the charter. The corresponding decision must be taken at the general meeting unanimously. A similar rule applies in case of exclusion from the constituent document of certain items. Experts note that this feature is revolutionary to a certain extent. By applying the rule, shareholders, at their discretion, may unanimously exclude the need to approve an interested-party transaction. As experts point out, this opportunity is useful in the framework of a family business, as well as for economically dependent economic entities.

Coordination in LLC

In the case of the formation of the board of directors, the procedure may be included in its competence. The corresponding provision should be fixed by the charter. However, the law provides for a number of exceptions. They relate to transactions, the price of which or the value of property in which is more than 10% of the balance sheet value of assets. The latter is determined in accordance with the financial statements for the last control period. The approval decision is made by a majority of non-interested directors. This rule is valid if the charter does not provide for the need for a larger number of votes. The decision can be made by shareholders who are also not interested in the transaction. The principle of dispositivity also applies to these associations. As in non-public organizations, the charter of an LLC may establish an agreement procedure that differs from that established by law, or provide for the non-application of relevant provisions.

conclusions

Significant changes that have affected transactions with interest, therefore, are aimed at simplifying the procedure for negotiating contracts of insignificant value. At the same time, shareholders and the board of directors are currently provided with ample opportunities. In particular, they can freely, at their own discretion, establish the procedure for approval, exclude the need to approve transactions with an interest. According to experts, in general, regulatory regulation can significantly facilitate the activities of holdings. The current provisions of the law relieve groups of companies from the need to obtain consent when concluding contracts with the participation of subsidiaries. In those associations in which there are shareholders (participants) with different, often conflicting interests, where it is not possible to reach a unanimous decision, the approval procedure has not become more comfortable. First of all, the problem is created by the uncertainty of the grounds and terms for presenting a claim by authorized entities.

Recognition of invalidity

For transactions made with interest, contestation is governed by the rules of Article 174 of the Civil Code (clause 2). The initiation of proceedings is carried out at the suit of the association or its shareholders, who own at least 1% of the voting shares in total. These requirements are provided for JSC. As for legal entities with limited liability, entities that own at least 1% of the total number of votes of all participants can file a claim. It should be noted that the new provisions of Federal Law No. 14 and No. 208 do not link the ability of board members and shareholders to challenge an interested-party transaction with the fact that they demand a meeting to approve it. This circumstance, according to a number of experts, entails significant uncertainty for associations. It is expressed primarily in the possibility of delayed contestation of contracts.

Article 174 Rules

As the norm indicates, a transaction concluded by a body acting on behalf of a legal entity without a power of attorney, to the detriment of its interests, may be declared invalid by a court. The claim is accepted for consideration if the other party to the relationship knew or could have known about the obvious harm to the company or there were factors that testified to collusion or other joint actions of the guilty party and the other party. In Article 84 of the Federal Law No. 208 (clause 1), as well as Art. 45 of the Federal Law No. 14 (clause 6), it is possible to recognize the invalidity of a transaction if it was concluded to the detriment of the interests of the enterprise and it is proved that the counterparty should have known or knew that it is a contract for the company in which there is an interest, or that there is no consent for it. At the same time, the latter circumstance in itself cannot be considered by the court as a ground for contestation. It is also worth noting the difference between related party agreements and major transactions. When contesting the latter, the subjects do not need to prove the damage (causing losses, the onset of other adverse consequences from the conclusion of the contract). In order to invalidate an interested-party transaction, confirmation of the harm done to the interests of the economic entity is required.

Conditions

The legislation assumes the presence of damage caused to the interests of the company when concluding an agreement, subject to a number of requirements. They are:

Lack of consent to the commission or subsequent approval of the disputed transaction.
The subject who filed the claim was not provided with information related to the contract, at his request. We are talking, among other things, about creating barriers to access to documents and other materials certifying that the agreement does not cause damage to the enterprise, is concluded on conditions that do not significantly differ from those existing on the market, etc.

If an interested-party transaction was concluded in the absence of approval for completion, shareholders who own at least 1% of the securities, or a member of the board, may apply to the association with a request to provide information related to it. The data must be received within a period not exceeding 20 days. from the date of the relevant application. By establishing this rule, the legislator sought to ensure the protection of these persons. However, according to experts, it can provoke significant instability in economic relations. The implementation of this rule can be considered as a basis for the potential to require approval for an already concluded contract. According to lawyers, it is advisable to apply the rules of the subsequent approval procedure in order to exclude negative consequences. The presumption of damage is intended to encourage the association, represented by its authorized bodies, to properly fulfill the obligations that were assigned to them by the charter, to provide timely complete and reliable information about transactions in which there is an interest.

(see text in previous edition)

1. An interested party transaction is a transaction in which there is an interest of a member of the board of directors (supervisory board) of the company, the sole executive body, a member of the collegial executive body of the company or a person who is the controlling person of the company, or a person who has the right to give obligatory instructions to society.

These persons are recognized as interested in the transaction by the company in cases where they, their spouses, parents, children, full and half brothers and sisters, adoptive parents and adopted and (or) persons controlled by them (controlled organizations):

are a controlling person of a legal entity that is a party, beneficiary, intermediary or representative in the transaction;

hold positions in the management bodies of a legal entity that is a party, beneficiary, intermediary or representative in the transaction, as well as positions in the management bodies of the managing organization of such a legal entity.

For the purposes of this article, a controlling person is a person who has the right, directly or indirectly (through persons controlled by him) to dispose of by virtue of participation in a controlled organization and (or) on the basis of contracts of trust management of property, and (or) a simple partnership, and (or) instructions , and (or) shareholder agreement, and (or) other agreement, the subject of which is the exercise of rights certified by shares (stakes) of the controlled organization, more than 50 percent of the votes in the supreme management body of the controlled organization, or the right to appoint (elect) the sole executive body and ( or) more than 50 percent of the collegiate management body of the controlled entity. A controlled person (controlled organization) is a legal entity that is directly or indirectly controlled by the controlling person.

For the purposes of this article, the Russian Federation, a constituent entity of the Russian Federation, a municipal entity are not recognized as controlling persons.

2. The persons specified in paragraph one of clause 1 of this article must bring to the attention of the general meeting of participants in the company, and if the company has a board of directors (supervisory board) - also to the attention of the board of directors (supervisory board) of the company information:

about legal entities controlled by them;

about legal entities in which they hold positions in management bodies;

on the presence of relatives specified in the second paragraph of paragraph 1 of this article, and on persons controlled by the said relatives (controlled organizations) (if such information is available);

about the ongoing or proposed transactions known to them, in the commission of which they can be recognized as interested.

3. The company is obliged to notify the non-interested participants of the company about the completion of a transaction in which there is an interest, in the manner prescribed for notifying the participants of the company about the holding of a general meeting of participants in the company, and if the company has a board of directors (supervisory board) - also non-interested members of the board of directors (supervisory board) of the company.

The notice must be sent no later than fifteen days before the date of the transaction, unless another period is provided for by the charter of the company, and it must indicate the person (s) who is a party to it, the beneficiary, the price, the subject of the transaction and its other essential conditions or the procedure for their determination, as well as the person (persons) having an interest in the transaction, the grounds on which the person (each of the persons) having an interest in the transaction is such.

When preparing for the annual general meeting of the company's participants, persons entitled to participate in the annual general meeting of the company's participants must be provided with a report on the transactions concluded by the company in the reporting year, in which there is an interest. The report must be preliminarily approved by a person who has the right to independently exercise the powers of the sole executive body of the company (if the powers of the sole executive body are exercised by several persons jointly, by all such persons), as well as by the board of directors (supervisory board) of the company and the audit commission (auditor) of the company if their creation is provided for by the charter of the company.

4. A transaction in which there is an interest does not require a mandatory prior consent to its completion.

A transaction in which there is an interest may be obtained prior to its completion by the consent of the board of directors (supervisory board) of the company or the general meeting of participants in the company in accordance with this article at the request of the sole executive body, a member of the collegial executive body of the company, a member of the board of directors (supervisory council) of the company if their creation is provided for by the charter of the company, or participants (participants), whose shares in the aggregate amount to at least one percent of the authorized capital of the company.

The decision on consent to the transaction, in which there is an interest, is taken by the board of directors (supervisory board) of the company by a majority of votes of directors (unless the need for a larger number of votes is provided for by the charter of the company) who are not interested in making it, or by a general meeting of participants in the company by a majority of votes ( if the need for a larger number of votes is not provided for by the charter of the company) from the total number of votes of the company's participants who are not interested in making such a transaction.

5. The provisions of paragraph 3 of Article 46 of this Federal Law shall apply to the decision on consent to the conclusion of a transaction in which there is an interest. In addition, the decision on consent to the transaction must indicate the person (s) having an interest in the transaction, the grounds on which the person (each of the persons) having an interest in the transaction is such.

6. If a transaction in which there is an interest is made in the absence of consent to its conclusion, a member of the board of directors (supervisory board) of the company or its participants (participant), having at least one percent of the total number of votes of the company's participants, has the right apply to the company with a request to provide information related to the transaction, including documents or other information confirming that the transaction does not violate the interests of the company (it was made on conditions that do not differ significantly from market ones, and other). The specified information must be provided to the person who filed the request within a period not exceeding 20 days from the date of receipt of the relevant request.

A transaction in which there is an interest may be declared invalid (paragraph 2 of Article 174 of the Civil Code of the Russian Federation) at the suit of the company, a member of the board of directors (supervisory board) of the company or its participants (participant) holding at least one percent of the total number of votes participants of the company, if it is committed to the detriment of the interests of the company and it is proved that the other party to the transaction knew or obviously should have known that the transaction was for the company a transaction in which there is an interest, and (or) about the absence of consent to its conclusion. At the same time, the absence of consent to the transaction in itself is not a basis for recognizing such a transaction as invalid.

The limitation period for a claim to recognize a transaction in which there is an interest is invalid if it is missed is not subject to restoration.

Damage to the interests of the company as a result of a transaction in which there is an interest is assumed, unless proven otherwise, if the following conditions are combined:

there is no consent to the conclusion or subsequent approval of the transaction;

The person who filed a claim for the recognition of the transaction as invalid was not, at his request, provided with information regarding the disputed transaction in accordance with the first paragraph of this clause.

ConsultantPlus: note.

Art. 45 does not apply to individual transactions involving banks, insurance companies, mortgage agents and specialized financial companies, as well as to transactions necessary to participate in the purchase and sale of electricity on the wholesale market.

7. The provisions of this article shall not apply:

to transactions made in the ordinary course of business of the company, provided that the company repeatedly makes similar transactions over a long period of time on similar terms and conditions, in which there is no interest, including transactions made by credit institutions in accordance with Article 5 Federal Law "On Banks and Banking Activities";

to companies consisting of one participant who is at the same time the only person with the powers of the sole executive body of the company;

to transactions in which there is an interest of all participants in the company, in the absence of interest in the transaction of other persons, except for the case when the charter of the company provides for the right of the participant to require consent to the conclusion of such a transaction before its conclusion;

to relations arising from the transfer to the company of a share or part of a share in its authorized capital in the cases provided for by this Federal Law;

to transactions on the placement by the company by means of an open subscription of bonds or the acquisition by the company of bonds placed by it;

to relations arising from the transfer of rights to property in the process of reorganization of the company, including under merger agreements and accession agreements;

to transactions, the conclusion of which is obligatory for the company in accordance with federal laws and (or) other legal acts of the Russian Federation and settlements for which are made at prices determined in the manner established by the Government of the Russian Federation, or at prices and tariffs established by the authorized Government of the Russian Federation by the federal executive body, as well as to public agreements concluded by the company on terms that do not differ from the terms of other public agreements concluded by the company;

to transactions concluded on the same terms as the preliminary agreement, if such an agreement contains all the information provided for in paragraph 5 of this article, and consent was obtained to conclude it in the manner prescribed by this article, the management body of the company, whose competence includes providing such consent to the conclusion of the main contract;

to transactions concluded at open auctions or based on the results of open auctions, if the conditions for conducting such auctions or participation in them are previously approved by the board of directors (supervisory board) of the company or the general meeting of participants in the company;

To transactions, the subject of which is property, the price or book value of which is not more than 0.1 percent of the book value of the company's assets, determined according to its accounting (financial) statements as of the last reporting date, provided that the size of such transactions does not exceed the limit values established by the Central Bank of the Russian Federation. Information on the completion of such transactions shall be disclosed in the manner prescribed by paragraph 3 of this article.

8. If a board of directors (supervisory board) of the company is formed in the company, the adoption of a decision on consent to transactions in which there is an interest, in the case provided for in paragraph 4 of this article, may be attributed by the charter of the company to the competence of the board of directors (supervisory board) company, except for cases where the transaction price or the value of the property that is the subject of the transaction exceeds 10 percent of the book value of the company's assets, determined on the basis of accounting data for the last reporting period.

9. The charter of a company may establish a procedure for approving transactions in which there is an interest different from that established by this article, or it may be established that the provisions of this article do not apply to this company. Such provisions may be provided for by the charter of the company when it is established or when amendments are made to its charter by decision of the general meeting of participants in the company, adopted by all participants in the company unanimously. The exclusion from the charter of the company of these provisions is carried out by decision of the general meeting of participants in the company, adopted by all participants of the company unanimously.

Updated on 20.10.2017 12:59

STAGE 1. CHECKING THE TRANSACTION CONCLUDED BY THE COMPANY FOR SIGNS OF INTEREST

1.1. Checking the transaction concluded by the company for signs of interest

Main applicable standards:

Art. Art. 173.1, 181, 182 of the Civil Code of the Russian Federation;

Art. 45 of the Federal Law of 08.02.1998 N 14-FZ "On Limited Liability Companies" (hereinafter - the Law on LLC);

Clauses 1, 5 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of May 16, 2014 N 28 "On Certain Issues Related to Challenging Major Transactions and Interested Party Transactions" (hereinafter referred to as Resolution N 28);

P. 319 Ch. Part VII B of the Corporate Governance Code recommended for use by Bank of Russia Letter No. 06-52/2463 dated April 10, 2014 (hereinafter referred to as the Corporate Governance Code).

According to the LLC Law, a transaction with signs of interest is made in accordance with the rules of Art. 45 of this Law.

Therefore, when concluding any transaction by the company, it is necessary to establish whether there are signs of interest in it or not. The list of persons interested in the transaction is established by paragraph 1 of Art. 45 of the LLC Law.

A transaction made in violation of the requirements stipulated by the LLC Law may be declared invalid at the suit of the company or its participant (clause 5, article 45 of the LLC Law). Such a claim is subject to consideration according to the rules of paragraph 5 of Art. 45 of the LLC Law, since the specified norm is special in relation to the provisions of Art. 173.1 and paragraph 3 of Art. 182 of the Civil Code of the Russian Federation (paragraph 1, clause 1 of Resolution No. 28). Claims for the recognition of transactions with interest as invalid and the application of the consequences of their invalidity may be filed within the period established by paragraph 2 of Art. 181 of the Civil Code of the Russian Federation for voidable transactions (paragraph 1, clause 5 of Resolution No. 28).

Persons who may be interested in the transaction

1. Members of the board of directors (supervisory board).

2. Persons exercising the functions of the sole executive body of the company.

3. Members of the collegial executive body of the company.

4. Members of the company owning independently or jointly with affiliates 20 or more percent of the votes of the total number of votes of the members of the company.

5. Persons entitled to give mandatory instructions to the company.

For more details, see: Procedure for resolving corporate disputes. Issues of jurisprudence: Interest in a transaction by a limited liability company

According to paragraph 2 of Art. 45 of the LLC Law, these persons are obliged to inform the company about the presence of interest in the transaction.

It is recommended to establish in the charter of the company an expanded list of grounds on which persons provided for by law are recognized as interested in the transactions of the company. At the same time, the relationship of the actual interest of such persons should be taken into account. For example, if a member of the board of directors (supervisory board) of a company or its affiliate is an employee of the counterparty vested with managerial powers, but is not formally a member of the management bodies of the company’s counterparty, then he is also considered to be interested in the company’s transaction with this counterparty (clause 319 of Ch. VII Part "B" of the Corporate Governance Code).

Signs of interest

A transaction is recognized as an interested party transaction if the persons who may be interested, or their spouses, parents, children, full and half brothers and sisters, adoptive parents and adopted children and (or) their affiliates:

For the interpretation of the term "affiliate" in relation to interested party transactions, see: Procedure for resolving corporate disputes. Issues of jurisprudence: Interest in a transaction by a limited liability company

1. They are a party to the transaction or beneficiaries of the transaction.

There is no provision in the LLC Law that a transaction is made with interest if the persons who may be interested in it are the beneficiaries of it. However, the courts recognize such transactions as made with interest. For more details, see: Procedure for resolving corporate disputes. Issues of jurisprudence: Interest in a transaction by a limited liability company

For detailed information on the concept of "beneficiary" in relation to transactions with interest, see: Procedure for resolving corporate disputes. Issues of jurisprudence: Interest in a transaction by a limited liability company

2. Own (each individually or in aggregate) 20 or more percent of shares (interests, shares) of a legal entity that is a party to the transaction.

3. Own (each individually or in aggregate) 20 or more percent of shares (interests, shares) of a legal entity acting in the interests of third parties in their relations with the company.

4. Hold positions in the management bodies of a legal entity that is a party to a transaction or acts in the interests of third parties in their relations with the company, as well as in the management bodies of the managing organization of such a legal entity.

According to paragraph 1 of Art. 45 of the LLC Law, other signs of interested party transactions may be determined by the charter of the company.

Note!

An analysis of judicial practice makes it possible to single out a list of transactions that are considered to be committed with interest. For more details, see: Procedure for resolving corporate disputes. Issues of jurisprudence: Interest in a transaction by a limited liability company

STAGE 2. PREPARATION FOR THE EXTRAORDINARY GENERAL MEETING OF LLC SHAREHOLDERS ON THE APPROVAL OF A TRANSACTION WITH INTEREST

2.1. Deciding to hold an extraordinary general meeting of LLC participants on the issue of approval of an interested party transaction

Main applicable standards:

P. 2 Art. 157.1 of the Civil Code of the Russian Federation;

Art. Art. 12, 32, 35 - 38, 45 of the Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies" (hereinafter - the LLC Law);

Clause 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation, the Plenum of the Supreme Arbitration Court of the Russian Federation N 90/14 dated 09.12.1999 "On Certain Issues of the Application of the Federal Law "On Limited Liability Companies" (hereinafter referred to as Resolution N 90/14);

Clause 1, 1.1.1, 1.1.2, 6, 8, 10, 11, para. 2 p. 21 ch. Part I "B" of the Corporate Governance Code recommended for use by Bank of Russia Letter No. 06-52/2463 dated April 10, 2014 (hereinafter referred to as the Corporate Governance Code).

Note. According to par. Clause 6, Clause 4 of the introduction to the Corporate Governance Code, the provisions of this document may be applied, in particular, by limited liability companies. When presenting the relevant norms in this Guide, the information is provided taking into account the specifics of the LLC.

In accordance with paragraph 3 of Art. 45 of the Law on LLC, the decision to approve a transaction with interest must be taken by the general meeting of the company's participants, regular or extraordinary. In practice, the issue of approval of such a transaction is more often submitted for consideration within the framework of an extraordinary general meeting.

By unanimous decision of the participants (founders) of the company, its charter may include provisions on which certain issues, by virtue of law, referred to the competence of the general meeting, are transferred for consideration by the collegial management body of the company or its collegial executive body (clause 1, clause 3, article 66.3 of the Civil Code of the Russian Federation).

Thus, by decision of the participants (founders), adopted unanimously, the charter may include a provision on the transfer of the issue of approval of interested-party transactions for consideration by the supervisory board or collegial executive body (clause 1, clause 3, article 66.3 of the Civil Code of the Russian Federation).

Note!

The adoption of decisions on the approval of transactions made with interest may be attributed by the charter of the company to the competence of the board of directors (supervisory board), if such a body is formed (clause 7, article 45 of the LLC Law). At the same time, the board of directors (supervisory board) may approve only those transactions, the amount of payment for which or the subject of which is property worth no more than two percent of the value of the company's property.

Bodies authorized to prepare, convene and hold a general meeting of LLC participants on the issue of approval of an interested party transaction

Similar to the bodies authorized to prepare, convene and hold both regular and extraordinary general meetings of participants.

Bodies authorized to prepare, convene and hold the next general meeting of LLC participants

Bodies authorized to prepare, convene and hold an extraordinary general meeting of LLC participants

The procedure for the adoption by authorized bodies of a decision to hold a general meeting of LLC participants on the issue of approval of an interested party transaction

1. If the issue of approval of an interested party transaction is planned to be considered within the framework of the next general meeting, then it must be included in the agenda of the next general meeting

2. If the issue of approval of an interested-party transaction is planned to be considered within the framework of an extraordinary general meeting, then the body authorized to prepare, convene and hold a general meeting must decide on holding an extraordinary general meeting on this issue. The procedure for making a decision to hold a meeting corresponds to the procedure for making a decision by the authorized body on holding an extraordinary general meeting

1. Date, place and time of the meeting (if the meeting is held in the form of absentee voting, only the date shall be indicated in the decision).

The company must provide the most favorable conditions for participation in the general meeting (Clause 1.1.1, Chapter I, Part "B" of the Corporate Governance Code).

The date of the extraordinary general meeting must be chosen in such a way that the 30-day period for sending a notice of the holding of this meeting is observed (clauses 1, 4, article 36 of the LLC Law).

The date of the next general meeting must correspond to the date established by the charter (Article 34 of the LLC Law). If the charter defines only the period during which the meeting must be held, the authorized body may determine the exact date on its own.

It must be taken into account that in this case, the date of the general meeting is set in such a way that the 30-day period for sending the corresponding notice is observed, unless the charter of the company provides for a shorter period (paragraphs 1, 4, article 36 of the LLC Law).

For more details on the issue, see: Procedure for resolving corporate disputes. Issues of judicial practice: General meeting of participants in a limited liability company

2. Form of the meeting (joint attendance or absentee voting (by poll)).

3. Agenda of the general meeting of LLC participants.

Matter 1. Approval of an interested party transaction.

4. The procedure for notifying participants of the convened meeting.

By email;

In print edition.

See supporting jurisprudence

5. Postal address to which completed ballots should be sent and the deadline for their acceptance (in case the meeting is held in the form of absentee voting).

6. Information (materials) provided to the company's participants in preparation for the meeting, and the procedure for its provision.

2.2. Sending a request to hold an extraordinary general meeting of LLC participants on the issue of approval of an interested party transaction

Main applicable standards:

Art. Art. 12, 32, 35 - 38 of the Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies" (hereinafter - the Law on LLC);

Art. 55 of the Federal Law of December 26, 1995 N 208-FZ "On Joint Stock Companies" (hereinafter - the Law on JSC);

Clause 2.1 of the Regulations on additional requirements for the procedure for preparing, convening and holding a general meeting of shareholders, approved by Order of the FFMS of Russia dated 02.02.2012 N 12-6/pz-n (hereinafter - Regulation N 12-6/pz-n);

P. p. 1, 1.1.1, para. 2 p. 21 ch. Part I "B" of the Corporate Governance Code recommended for use by Bank of Russia Letter No. 06-52/2463 dated April 10, 2014 (hereinafter referred to as the Corporate Governance Code).

Persons and bodies entitled to demand an extraordinary general meeting of participants on the issue of approval of an interested party transaction

Similar to persons and bodies entitled to demand an extraordinary general meeting of participants

The procedure for sending a request to hold an extraordinary general meeting of LLC participants on the issue of approval of an interested party transaction

Similar to the procedure for sending a request to hold an extraordinary general meeting of LLC participants

The LLC Law does not regulate the content of the requirement to hold an extraordinary general meeting of LLC participants. Article 55 of the JSC Law contains relevant provisions regarding the extraordinary meeting of shareholders. Their analysis allows us to conclude that it is possible to apply the rules to the requirement to hold an extraordinary general meeting of LLC participants.

1. An indication of the form of holding the meeting being convened (joint attendance or absentee voting (by poll)).

Note!

In accordance with par. 4 p. 2 art. 12 of the LLC Law, the charter of the company must contain, among other things, information on the procedure for making decisions by the company's bodies. In this regard, the possibility of holding an extraordinary meeting of LLC participants in the form of absentee voting should be provided for in the charter.

In addition, according to paragraph 3 of Art. 38 of the LLC Law, the internal document of the company should regulate the procedure for conducting absentee voting. This procedure should provide for the obligation to inform all participants of the company of the proposed agenda, the possibility of familiarizing all participants of the company with the necessary information and materials before the start of voting, the possibility of making a proposal to include additional issues on the agenda, the obligation to inform all participants of the company before the start of voting of the amended agenda, as well as the end date of the voting procedure.

2. Wording of issues on the agenda (the wording of decisions on issues on the proposed agenda may also be included).

Decision 1: "Approve the interested-party transaction ________ (name of the transaction) between __________ (indicate the parties to the transaction, if necessary, indicate the beneficiaries of the transaction) on the following conditions: __________ (subject of the transaction) __________ (price of the transaction) ___________ (other material conditions )".

The decision on approval must indicate the persons who are parties, beneficiaries in the transaction, the price, the subject of the transaction and its other essential conditions (clause 3, article 45 of the LLC Law).

3. Signature of the person (chairman of the body) requiring the holding of the meeting.

4. Information about the person or body requiring the meeting, and his signature.

Who submits the request		Information to be included in the request
1. Sole executive body	Individual	Passport data
	Manager	Full name, TIN and PSRNIP
	Managing organization	Name, TIN, PSRN
2. Collegial executive body		Data on the decision taken by the collegial executive body, on the basis of which the request is sent to hold a general meeting of participants (number and date of the minutes)
3. Board of Directors (Supervisory Board)
4. Audit Commission	Audit Commission established in LLC	Data on the decision on the basis of which the request to hold a general meeting of participants is sent (number and date of the minutes)
4. Audit Commission		Passport data
5. Auditor	Individual	Passport data; entry number in the register of auditors and audit organizations of the self-regulatory organization of auditors
5. Auditor	Entity	Name, TIN, OGRN, entry number in the register of auditors and audit organizations of the self-regulatory organization of auditors
6. Participants (participant) of the company	Individuals	Passport data
	Minor under the age of 14	Birth certificate information; passport details of the legal representative
	Legal entities	Names, TIN, OGRN

From the literal interpretation of para. 1 p. 2 art. 35 of the LLC Law, it follows that only a group of LLC participants holding in aggregate at least one tenth of the total number of votes of the company's participants can demand the convening of an extraordinary general meeting. In this regard, one member of an LLC, even if it has at least one tenth of the total number of votes of the company's members, is not entitled to demand the convening of a meeting.

However, the analysis of judicial practice indicates the opposite. A participant in an LLC holding at least one tenth of the total number of votes of the company's participants has the right to demand that a meeting be convened.

For more details, see: Decree of the Federal Antimonopoly Service of the Urals District of August 25, 2005 N F09-2663 / 05-C5 in case N A34-7974 / 04, Decree of the Federal Antimonopoly Service of the West Siberian District of December 10, 2009 in case N A45-2333 / 2009, Decree of the FAS of the North-Western District of February 10, 2011 in case N A42-393 / 2010, Resolution of the FAS of the Ural District of October 9, 2007 N F09-8253 / 07-C4 in case N A50-3745 / 2007-G13.

In addition, the Constitutional Court of the Russian Federation established that the provisions of paragraph 2 of Art. 35 of the LLC Law do not contradict the Constitution of the Russian Federation. This position is based on the Decree of the Plenum of the Supreme Court of the Russian Federation N 90, the Plenum of the Supreme Arbitration Court of the Russian Federation N 14 of 09.12.1999. Paragraph 17 of this Decree states that, since, by virtue of Art. 10 of the LLC Law, the decisive circumstance giving the right to apply to the court with an application to exclude a participant from the company is the size of the share in the authorized capital of the company; not only several participants whose shares in the aggregate amount to at least 10 percent of the authorized capital of the company, but also one of them, provided that its share in the authorized capital is 10 percent or more.

5. Date, place and time of the meeting (if the meeting is held in the form of absentee voting, only the date is indicated).

6. Rationale for the need to consider the proposed issue.

7. Postal address to which completed ballots should be sent, and the date of completion of their acceptance (in case the meeting is held in the form of absentee voting).

8. Procedure for notifying participants of the meeting.

9. Information (materials) to be provided to LLC participants in preparation for the meeting.

Draft agreement to be approved;

Information about the person concerned and the subject of his interest;

Other information (materials) provided for in the charter of the company.

If the issue is planned to be considered at a meeting of the board of directors (supervisory board), then the composition of the information provided will be similar.

Documents attached to the request to hold a general meeting of LLC participants on the issue of approval of an interested party transaction

Similar to the documents attached to the request to hold a general meeting of LLC participants

Consequences of violation of the procedure for sending a request to hold a general meeting of LLC participants on the issue of approval of an interested party transaction

Similar to the consequences of violating the procedure for sending a request to hold a general meeting of participants in an LLC

2.2.1. Receipt by the company of a request to hold an extraordinary general meeting of LLC participants on the issue of approval of an interested party transaction

Main applicable standards:

P. 2 Art. 35 of the Federal Law of 08.02.1998 N 14-FZ "On Limited Liability Companies";

Procedure for obtaining a request to hold a meeting

Similar to the procedure for a company to receive a request to hold an extraordinary general meeting of LLC participants

2.2.2. Consideration of the requirement to hold an extraordinary general meeting of LLC participants on the issue of approval of an interested party transaction

Main applicable standards:

P. 2 Art. 35 of the Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies".

Procedure for considering a request to hold a meeting

Similar to the procedure for considering a request to hold an extraordinary general meeting of LLC participants

2.2.3. Adoption on the basis of a request of a decision to hold or refuse to hold an extraordinary general meeting of LLC participants on the issue of approving an interested party transaction

Main applicable standards:

Art. 165.1 of the Civil Code of the Russian Federation;

Clause 2.9 of the Regulation on additional requirements for the procedure for preparing, convening and holding a general meeting of shareholders, approved by Order of the FFMS of Russia dated 02.02.2012 N 12-6/pz-n (hereinafter - Regulation N 12-6/pz-n);

Items 1, 1.1.1, 1.1.2, 6, 8, 10, 11 Ch. Part I "B" of the Corporate Governance Code recommended for use by Bank of Russia Letter No. 06-52/2463 dated April 10, 2014 (hereinafter referred to as the Corporate Governance Code).

After considering the request, the competent authority, in the absence of grounds for refusal, decides to hold a general meeting of participants in the LLC.

1. The body that considered the request to hold an extraordinary meeting.

2. The person or body that sent the request to hold a regular meeting.

3. Date, time, place of the meeting (if the meeting is held in the form of absentee voting, only the date is indicated).

The procedure for holding a general meeting of participants in the part not regulated by the LLC Law, the company's charter and its internal documents may be established by a decision of the general meeting (clause 1, article 37 of the LLC Law).

It is advisable to regulate such a procedure, for example, by the regulation on the general meeting, approved by the general meeting (clause 1, chapter I, part "B" of the Corporate Governance Code).

The company should provide the most favorable conditions for participation in the General Meeting (Clause 1.1.1, Chapter I, Part "B" of the Corporate Governance Code).

The time of the meeting should be determined taking into account the interests of the participants.

The general meeting is held in the settlement (city, township, village) that is the location of the company, unless another place of its holding is established by the charter (clause 2.9 of Regulation N 12-6 / pz-n).

For more details, see: Procedure for resolving corporate disputes. Issues of judicial practice: General meeting of participants in a limited liability company

4. The form of the meeting being called (joint attendance or absentee voting (by poll)).

Note!

If the decision to hold an extraordinary general meeting of participants was made on the basis of a request, the body whose competence, according to the charter of the LLC, is the issue of preparing, convening and holding a general meeting of participants, is not entitled to change the form of the meeting proposed by persons or bodies requiring it (paragraph 1 clause 2, article 35 of the LLC Law).

5. Formulation of the agenda.

In accordance with paragraph 2 of Art. 35 of the Law on LLC, if the decision to hold an extraordinary general meeting was made on the basis of a request, the body in whose competence, according to the charter of the LLC, is the issue of preparing, convening and holding a general meeting of participants, is not entitled to make changes to the wording of the issues proposed for inclusion in the agenda . However, he has the right not to include in the agenda issues that do not fall within the competence of the general meeting of participants or do not comply with the requirements of federal laws, and he also has the right to include additional issues on his own initiative.

Matter 1. Approval of an interested party transaction.

When preparing the agenda of the general meeting, it is recommended to indicate by whom the relevant issue was proposed (clause 8, chapter I, part "B" of the Corporate Governance Code).

6. The procedure for sending a message to the participants about the holding of the meeting.

The procedure for notification of a general meeting should provide participants with the opportunity to properly prepare for it (Clause 1.1.2, Chapter I, Part B of the Corporate Governance Code).

In accordance with the requirements of the legislation on limited liability companies, notification of the convening of a general meeting is carried out (clause 1, article 36 of the LLC Law):

a) in the manner prescribed by the charter of the company;

b) if the company's charter does not specify the notification procedure, the notice of convening a general meeting shall be sent by registered mail to the addresses indicated in the list of company participants.

Violation of the procedure for notifying a participant of a general meeting may be recognized as a material violation, entailing the invalidation of the decision of such a meeting.

See supporting jurisprudence

In addition, the following additional methods of notifying participants may be provided:

By email;

In print edition.

If the charter does not specify the media in which a message about holding a general meeting of LLC participants can be posted, and the target audience of the media where the message is posted does not provide real notification of participants, the latter are not considered properly notified of the meeting.

See supporting jurisprudence

7. List of information and materials provided to participants in preparation for the general meeting, and the procedure for their provision.

Such information (materials) includes:

Information about the person concerned and the subject of his interest;

Other information (materials) provided for by the charter of the company.

In addition, it is advisable to provide the following (paragraphs 2, 4, paragraph 10 of Chapter I, Part "B" of the Corporate Governance Code):

Information on the position of the board of directors (supervisory board) regarding the agenda of the general meeting, as well as on special opinions of the members of the board of directors (supervisory board) on each agenda item;

Materials confirming the need to make a decision to approve an interested-party transaction and containing information about the consequences that will occur if such a decision is made.

If the issue is planned to be considered at the next general meeting of LLC participants or at a meeting of the board of directors (supervisory board), then the composition of the information provided on this issue will be similar to that indicated.

Information and materials must be provided to all participants for review at the premises of the executive body of the LLC within 30 days before the general meeting. At the request of the participant, the company is obliged to provide copies of these documents. The fee charged for providing copies cannot exceed the costs of their production (paragraph 3, clause 3, clause 4, article 36 of the LLC Law).

It is recommended not to refuse to familiarize the participant with the materials if, despite typographical errors and other minor shortcomings, the participant’s requirement as a whole allows determining his will and confirming his right to familiarize himself with the specified materials. If there are significant shortcomings, it is advisable to immediately inform the participant about them so that he can eliminate these shortcomings in a timely manner (Clause 11, Chapter I, Part B of the Corporate Governance Code).

If the procedure and methods for obtaining information are not defined by the charter, it must be sent along with a notice to convene a general meeting (paragraph 2, clause 3, article 36 of the LLC Law).

According to judicial practice, failure to provide a participant with the information and materials necessary to prepare for the general meeting is recognized as a material violation. For more details, see: Procedure for resolving corporate disputes. Issues of judicial practice: General meeting of participants in a limited liability company

9. Postal address to which completed ballots should be sent and the deadline for their acceptance (in case the meeting is held in the form of absentee voting).

Deciding to refuse to hold an extraordinary general meeting of LLC participants on the issue of approving an interested party transaction

The body whose competence, according to the charter, includes the issue of preparing, convening and holding a general meeting, has the right to decide to refuse to hold it (clause 2, article 35 of the LLC Law).

Similar to the content of the decision to refuse to hold an extraordinary general meeting of LLC participants

Consequences of the authorized body's decision to refuse to hold a general meeting of LLC participants on the issue of approval of an interested party transaction

Similar to the consequences of the authorized body's decision to refuse to hold a general meeting of LLC participants

STAGE 3. NOTIFICATION TO THE MEMBERS OF THE LLC ABOUT THE EXTRAORDINARY GENERAL MEETING ON THE APPROVAL OF A TRANSACTION WITH INTEREST

3.1. Sending a notice on holding an extraordinary general meeting of LLC participants on the issue of approval of an interested party transaction

Main applicable standards:

Art. Art. 12, 35 - 38 of the Federal Law of 08.02.1998 N 14-FZ "On Limited Liability Companies" (hereinafter - the Law on LLC);

Items 1, 1.1.2, 5, 6, 10, 11 Ch. Part I "B" of the Corporate Governance Code recommended for use by Bank of Russia Letter No. 06-52/2463 dated April 10, 2014 (hereinafter referred to as the Corporate Governance Code).

Bodies or persons convening an extraordinary general meeting of participants in an LLC are required to notify each participant of the company about this (clause 1, article 36 of the LLC Law).

Deadline for sending a notice of convening an extraordinary general meeting of participants on the issue of approval of an interested-party transaction

It is similar to the deadline for sending a notice of convening an extraordinary general meeting of LLC participants and is 30 days before the date of its holding (clause 1, article 36 of the Law on LLC).

The procedure for notifying the company's participants of an extraordinary general meeting of participants convened on the issue of approval of an interested-party transaction

The procedure for notification of a general meeting should provide participants with the opportunity to properly prepare for it (Clause 1.1.2, Chapter I, Part B of the Corporate Governance Code).

In accordance with the requirements of the legislation on limited liability companies, notification of the convening of a general meeting is carried out (clause 1, article 36 of the LLC Law):

a) in the manner prescribed by the charter of the company;

Violation of the procedure for notifying a participant of a general meeting may be recognized as a material violation, entailing the invalidation of the decision of such a meeting.

See supporting jurisprudence

In addition, the following additional methods of notifying participants may be provided:

By email;

In print edition.

See supporting jurisprudence

1. Date, time, place of the meeting.

It is advisable to regulate such a procedure, for example, by the regulation on the general meeting, approved by the general meeting (clause 1, chapter I, part "B" of the Corporate Governance Code).

When determining the date of the meeting, the following dates must be taken into account:

Within five days from the date of receipt of the request, the board of directors (supervisory board) must consider it and decide on holding or refusing to hold a meeting (paragraph 2, clause 2, article 35 of the LLC Law);

Not later than 30 days before the date of the meeting, the board of directors (supervisory board) must notify each member of the company of the meeting (clauses 1, 4, article 36 of the LLC Law);

If a decision is made to hold a meeting, it must be held no later than 45 days from the date of receipt of the request (clause 3, article 35 of the LLC Law).

The time of the meeting should be determined taking into account the interests of the participants.

For more details, see: Procedure for resolving corporate disputes. Issues of judicial practice: General meeting of participants in a limited liability company

2. Form of holding the meeting (joint attendance or absentee voting (by poll)).

3. Proposed agenda.

Matter 1. Approval of an interested party transaction.

4. Information (materials) to be provided to LLC participants.

Such information (materials) includes:

Draft contract to be concluded;

Information about the person concerned and the subject of his interest;

Other information (materials) provided for by the charter of the company.

In addition, it is advisable to provide the following (paragraphs 2, 4, paragraph 10 of Chapter I, Part "B" of the Corporate Governance Code):

Materials confirming the need to make a decision to approve an interested-party transaction and containing information about the consequences that will occur if such a decision is made.

If the issue of approval of an interested-party transaction is planned to be considered at the next general meeting or at a meeting of the board of directors (supervisory board), then the information provided on such an issue will be similar to that specified.

STAGE 4. SENDING PROPOSALS BY MEMBERS OF LLC IN PREPARATION FOR THE EXTRAORDINARY GENERAL MEETING OF SHAREHOLDERS ON THE APPROVAL OF A TRANSACTION WITH INTEREST

4.1. Submission of proposals on the inclusion of additional issues on the agenda of the general meeting of LLC participants on the issue of approval of an interested party transaction

Main applicable standards:

The procedure for sending proposals for the inclusion of additional issues on the agenda

Similar to the procedure for sending proposals to include additional issues on the agenda of both the regular and the extraordinary general meeting of LLC participants

4.2. Submission of proposals on the inclusion of additional issues on the agenda and on the nomination of candidates to the management bodies of the LLC within the framework of the general meeting on the approval of an interested party transaction

Main applicable standards:

P. 3 Art. 36 of the Federal Law of 08.02.1998 N 14-FZ "On Limited Liability Companies";

Clause 2.1 of the Regulation on additional requirements for the procedure for preparing, convening and holding a general meeting of shareholders (approved by Order of the Federal Financial Markets Service of Russia dated 02.02.2012 N 12-6/pz-n).

The procedure for sending proposals on the inclusion of additional issues on the agenda and on the nomination of candidates to the management bodies of LLC

Similar to the procedure for sending proposals within the framework of both the regular and extraordinary general meetings

STAGE 5. CONSIDERATION OF PROPOSALS OF THE COMPANY MEMBERS AND DECISION-MAKING ON THE RESULTS OF THE CONSIDERATION DURING PREPARATION FOR THE EXTRAORDINARY GENERAL MEETING OF MEMBERS OF LLC REGARDING THE APPROVAL OF A TRANSACTION WITH INTEREST

5.1. Receipt of proposals by the company

Main applicable standards:

P. 2 Art. 36 of the Federal Law of 08.02.1998 N 14-FZ "On Limited Liability Companies";

Clause 2.5 of the Regulation on additional requirements for the procedure for preparing, convening and holding a general meeting of shareholders (approved by Order of the Federal Financial Markets Service of Russia dated 02.02.2012 N 12-6/pz-n).

Procedure for the Company to receive proposals

Similar to the procedure for receiving proposals within the framework of an extraordinary general meeting of participants

5.2. Consideration of proposals to include additional issues on the agenda and (or) to nominate candidates to the management bodies of the company within the framework of the meeting on the issue of approval of an interested party transaction

Main applicable standards:

The procedure for considering proposals of the company's participants

Similar to the procedure for consideration of proposals within the framework of an extraordinary general meeting of participants

5.3. Making a decision based on the results of consideration of proposals to include additional issues on the agenda and (or) to nominate candidates to the management bodies of the LLC within the framework of the meeting on the approval of an interested party transaction

Main applicable standards:

P. 2 Art. 36 of the Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies".

The procedure for making a decision based on the results of consideration of proposals

Similar to the decision-making procedure based on the results of consideration of proposals within the framework of an extraordinary general meeting of participants

STAGE 6. HOLDING AN EXTRAORDINARY GENERAL MEETING OF LLC SHAREHOLDERS ON THE APPROVAL OF A TRANSACTION WITH INTEREST

6.1. Registration of LLC participants who arrived at an extraordinary general meeting on the issue of approval of an interested party transaction

Main applicable standards:

Art. 37 of the Federal Law of 08.02.1998 N 14-FZ "On Limited Liability Companies";

P. p. 17, 18 Ch. Part I "B" of the Corporate Governance Code recommended for use by Bank of Russia Letter No. 06-52/2463 dated April 10, 2014 (hereinafter referred to as the Corporate Governance Code).

The procedure for the registration of participants

Similar to the procedure for registering participants who arrived at an extraordinary or regular general meeting

6.2. Opening of the general meeting of participants, election of the chairman and organization of keeping minutes

Main applicable standards:

Pp. 10 p. 2.1 art. 32, pp. 3, 6 art. 37 of the Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies".

Procedure for opening a meeting, choosing a chairperson and organizing minutes

It is similar to the procedure for opening a general meeting of participants, choosing a chairman and organizing the keeping of minutes within the framework of both a regular and an extraordinary general meeting

6.3. Introduction by LLC participants of additional issues to the agenda of the general meeting on the issue of approval of an interested party transaction

Main applicable standards:

The procedure for adding additional issues to the agenda by LLC participants

Similar to the procedure for adding additional issues to the agenda within the framework of both the regular and extraordinary general meetings

6.4. Approval of the agenda of the general meeting of LLC participants on the issue of approval of an interested party transaction

Main applicable standards:

P. 7 Art. 37 of the Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies".

Procedure for adopting the agenda

It is similar to the general procedure for approving the agenda of both the regular and extraordinary general meeting of LLC participants

6.5. Holding an extraordinary general meeting of participants on the issue of approval of an interested-party transaction in the form of absentee voting (by poll)

Main applicable standards:

Art. 38 of the Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies".

The procedure for holding a general meeting in the form of absentee voting

Similar to the procedure for holding an extraordinary general meeting in the form of absentee voting (by poll)

6.6. Adoption by the general meeting of a decision on the agenda item on the approval of an interested party transaction

Main applicable standards:

P. p. 7 - 10 Art. 37, paragraph 8, paragraph 9 of Art. 46 of the Federal Law of 08.02.1998 N 14-FZ "On Limited Liability Companies" (hereinafter - the Law on LLC);

Clause 7 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of May 16, 2014 N 28 "On some issues related to contesting major transactions and transactions with interest" (hereinafter - Resolution N 28);

P. p. 1.1.5, 1.1.6, 20 - 22, 25, 28 Ch. I, item 323 ch. Part VII B of the Corporate Governance Code recommended for use by Bank of Russia Letter No. 06-52/2463 dated April 10, 2014 (hereinafter referred to as the Corporate Governance Code).

After the approval of the agenda, the chairman of the extraordinary general meeting of participants submits for discussion the agenda item "On approval of a transaction made with interest" and other issues (if any).

All participants must be given the opportunity to freely exercise the right to vote (Clause 1.1.5, Chapter I, Part "B" of the Corporate Governance Code). Paragraph 1.1.6 of Ch. I part "B" of the Corporate Governance Code stipulates that the procedure established by the company for conducting a general meeting should provide all persons present at the meeting with the opportunity to express their opinion and ask questions of interest. The meeting should be conducted in such a way that the participants can make informed decisions on all issues on the agenda. In this regard, participants should be given sufficient time to speak on the agenda items and discuss these issues (Clause 25, Chapter I, Part B of the Corporate Governance Code).

Meeting participants should be given the opportunity to freely communicate and consult with each other on voting issues without violating the meeting procedure (Clause 28, Chapter I, Part B of the Corporate Governance Code).

The decision is made by open (as a general rule) or closed (if provided for by the charter) voting "for" or "against". If there are appropriate technical conditions, the company is recommended to create a system that allows voting by electronic means (Clause 20, Chapter I, Part B of the Corporate Governance Code).

The decision is considered adopted if the number of votes required in accordance with the LLC Law is cast for it.

If there is a conflict of interest or other actual interest in the transaction being approved, even if there is no formal interest, the participant actually interested in the transaction is recommended not to participate in the voting on its approval (Clause 323, Chapter VII Part B of the Corporate Governance Code).

The decision on the approval of an interested party transaction is made by a majority of the total number of votes of the company's participants who are not interested in such a transaction (paragraph 2, clause 3, article 45 of the LLC Law).

The decision to approve an interested-party transaction must indicate the persons who are parties, beneficiaries in the transaction, the price, the subject of the transaction and its other essential conditions (paragraph 3, clause 3, article 45 of the LLC Law).

This decision may indicate the following (clause 2, clause 7 of Resolution No. 28):

General parameters of the main conditions of the approved transaction (for example, an upper limit on the purchase price of property or a lower limit on the sale price has been set, and a number of transactions of the same type have been approved);

Alternative options for such conditions;

Information about the permission to make, on the basis of approval, only several transactions at the same time (for example, issuing a loan only with the simultaneous conclusion of a pledge or guarantee agreement);

Validity period of the approval.

The approval is considered valid for one year from the date of the relevant decision, unless the approval period is specified and another period follows from the essence and conditions of the approved transaction (paragraph 4, clause 2, clause 7 of Resolution No. 28).

See the wording of the decisions on the agenda items on the approval of an interested-party transaction

Solution 1

"Approve transaction ________ (name of transaction) with interest between __________ (indicate the parties to the transaction, if necessary, indicate the beneficiaries of the transaction) on the following terms: __________ (subject of the transaction) __________ (transaction price) ___________ (other material conditions)".

It should be noted that if the issue is considered at the next general meeting of LLC participants or at a meeting of the board of directors (supervisory board), then the wording of the decision on the approval of an interested party transaction will be similar to that presented.

The procedure for conducting a general meeting must ensure that the rights of participants are observed when summing up the results of voting. The procedure for counting votes should be transparent and exclude the possibility of falsifying the results. It is recommended to announce the voting results before the end of the general meeting. This will eliminate doubts about the correctness of their summing up (Clause 22, Chapter I, Part "B" of the Corporate Governance Code).

In the charter or internal document of an LLC regulating the procedure for holding a general meeting, it is necessary to determine the procedure for monitoring the vote count (provide for the powers of persons appointed to exercise this control, including the powers to familiarize themselves with the ballots, if the meeting is held by poll, the right to make notes, conduct audio and video recording, etc.).

Main applicable standards:

P. p. 7 - 10 Art. 37 of the Federal Law of 08.02.1998 N 14-FZ "On Limited Liability Companies";

Art. 63 of the Federal Law of December 26, 1995 N 208-FZ "On Joint Stock Companies";

Regulations on additional requirements for the procedure for preparing, convening and holding a general meeting of shareholders (approved by Order of the Federal Financial Markets Service of Russia dated 02.02.2012 N 12-6/pz-n).

Similar to the procedure for entering voting results into the minutes of both the regular and extraordinary general meeting of participants

Note!

The general meeting of participants must inform the person who requested consent or another interested person about the approval of an interested-party transaction or about its refusal within a reasonable time after receiving the appropriate request (clause 2 of article 157.1 of the Civil Code of the Russian Federation).

STAGE 7. SENDING COPIES OF THE MINUTES OF THE EXTRAORDINARY GENERAL MEETING OF PARTICIPANTS HELD ON THE APPROVAL OF A TRANSACTION WITH INTEREST TO ALL PARTICIPANTS OF LLC

Main applicable standards:

P. 6 Art. 37, art. 50 of the Federal Law of 08.02.1998 N 14-FZ "On Limited Liability Companies";

Ch. 11 Art. 15.23.1 of the Code of Administrative Offenses of the Russian Federation.

The procedure and terms for sending copies of the protocol

Similar to the procedure and terms for sending copies of the minutes of both the regular and extraordinary general meeting of LLC participants

It is considered that if the supplier has not provided such data, then the conclusion of the contract does not fall into the category under consideration for him. But, as practice shows, even the decision of a single participant to approve a major transaction, just in case, is attached to the general package of documents. It is important not to make a mistake here. Otherwise, there is a risk of rejection of the auction participant due to the fact that he provided false information. Such cases are disputed by the Federal Antimonopoly Service, but the period for concluding a contract increases. What to look for when drawing up: form and content First of all, it should be noted that in the legislation of the Russian Federation there is no single model for a decision on a major transaction. But paragraph 3 of Art.

Approval of a transaction with an interest in LLC

The charter of an LLC determines how a major transaction is conducted:

with the consent of the members of the company;
with the permission of the board of directors;
without any consent or permission.

In the absence of these instructions in the charter, paragraph 3 of Art. 46 of Law No. 14-FZ, namely, approval by the general meeting of participants. More details about a major transaction can be found here: What is a major transaction for an LLC?.

When a certificate of smallness of a transaction may be needed The laws, including Law No. 14-FZ, do not provide any information on the preparation and submission of a certificate of the smallness of a transaction.

Sample decision to approve a major transaction

It includes the following steps:

Check whether there is a need for consent to its implementation.
Determine if a transaction is major.
Make an approval decision.

Exceptions To make a major transaction, you do not need to obtain permission from the company's participants if:

the company consists of one participant with the powers of the executive body;
there is a transfer of rights to property as a result of reorganization;
it must be produced without fail in accordance with existing laws;
it is carried out on the basis of a previously concluded agreement, in which all its conditions are stipulated and approval has been received for it.

Making a decision on approval Such a decision, according to existing legislation, is made by the competent body of the organization.

Letter stating that the transaction is not an interested party transaction

Attention

Re: Decision to make an interested party transaction Hello! please tell me the reference form, LLC is the only participant. IDGC completely confused, the application is almost like a thesis. Here is what is written in the tender documentation: Russian Federation, or (in the event that the transaction, according to the law, is not a transaction of interest for the Participant) - a certificate in any form; Such documents are: for a limited liability company - an extract from the protocol containing the decision to conclude the transaction, in the commission of which there is an interest, accepted and executed in accordance with Art.

Decision on approval of an interested party transaction sample

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We draw up a certificate of the small size of the transaction for LLC - sample

Is not: - a subsidiary business company, in the authorized capital of which more than 50% of the shares in the aggregate belong to the following legal entities: state corporations and companies, subjects of natural monopolies, organizations engaged in regulated activities in the field of electricity supply, gas supply, heat supply, water supply, sewerage, cleaning sewage, disposal (burial) of solid domestic waste, state and municipal enterprises, autonomous institutions, as well as business entities in the authorized capital of which the share of participation of the Russian Federation, a constituent entity of the Russian Federation, a municipality in the aggregate exceeds 50%; — a subsidiary economic company, in the authorized capital of which more than 50% of the shares in the aggregate belong to the said subsidiary economic companies.

Interested party transactions

A transaction with an interest in an LLC is a transaction in which any of the following persons is interested (paragraph 1, clause 1, article 45 of Federal Law No. 14-FZ of February 8, 1998):

member of the board of directors (supervisory board);
sole executive body (general director, president, etc.);
a member of the collegial executive body of the company (board, directorate, etc.);
a person controlling the LLC or a person entitled to give instructions to the company that are obligatory for it.

When such persons are considered interested in the transaction and how the decision to approve a transaction with an interest in 2017 is drawn up, we will tell you in our consultation.
The auction commission of the customer is responsible for verifying the data (clause 1, part 6, article 69 No. 44 of the Federal Law). It is important to note that individual entrepreneurs, unlike LLC, do not belong to legal entities.

Therefore, they are exempted from the obligation to submit such a document for accreditation at the ETP. Approval of a major transaction by the sole founder of LLCs, in which there is only one founder who acts as the sole executive body, are not required to draw up such a document (p.
7 art. 46 No. 14- FZ). At the same time, in paragraph 8 of Part 2 of Art. 61 No. 44-FZ states that in order to be accredited on the ETP, participants in an electronic auction must submit such information, regardless of their form of ownership. Otherwise, it will be impossible to bid.
But it is not necessary to include this information in the second part of the application.

Decision on interested party transaction for tender sample

The requirement for prior approval of an interested party transaction may be submitted by the sole executive body, a member of the collegial executive body of an LLC, a member of the board of directors (supervisory board) or a participant (participants), whose shares in the aggregate amount to at least 1% of the charter capital of the LLC (paragraph 2 of paragraph 4 article 45 of the Federal Law of February 8, 1998 No. 14-FZ). In any case, a report on interested party transactions entered into by an LLC in the reporting year must be submitted in preparation for the annual general meeting of participants.

In this case, in fact, we will talk about the subsequent approval of an interested party transaction Decision on the approval of an interested party transaction: a sample Let's give an example of the decision of the sole participant of an LLC to approve an interested party transaction.

On making a transaction with interest sample. The procedure for approving interested party transactions LLC - legal services of Legas company. Validity of the decision to approve a major related party transaction

When a transaction is considered to be of interest

Is it always necessary to approve a related party transaction?

Decision on approval of an interested party transaction: sample

Controlling person

Innovation specifics

Foundations

Property valuation

Nuances

Exceptions

Interested party transaction approval

Possible problems

General approval rules

Qualified Requirements

Members meeting

Possibilities of non-public associations

Coordination in LLC

conclusions

Recognition of invalidity

Article 174 Rules

Conditions

Approval of a transaction with an interest in LLC

Sample decision to approve a major transaction

Letter stating that the transaction is not an interested party transaction

Decision on approval of an interested party transaction sample

We draw up a certificate of the small size of the transaction for LLC - sample

Interested party transactions

Decision on interested party transaction for tender sample

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