How to determine a big deal or not. Big deal: we execute according to all the rules

In 2017, long-predicted changes to the part of the legislation that relates to the definition of large transactions came into force. The changes also touched upon the issues of qualifying signs, the approval procedure, and made adjustments to the process of issuing a decision on the permission of such transactions by the governing state bodies. Now a transaction is qualified as a major one only if it goes beyond the normal business activities of the company.

The concept of a major transaction for legal entities

Despite a number of common qualifying features, the concept of a major transaction varies depending on the form of the legal entity that intends to make it. This type is carried out by the following organizations:

• Business companies (LLC, JSC).
• unitary enterprises.
• State and municipal institutions.

As far as LLC is concerned, Art. 46 of the Federal Law No. 14 of 08.02.1998 for them it represents a major transaction, as one in which property is acquired or alienated for an amount exceeding 25% of the value of the property of the company itself. It is determined on the basis of accounting reports for the period preceding the date of the transaction. The exceptions are cases when the Charter of the LLC sets a higher amount for a major transaction. If such is committed in the course of ordinary economic activity, then it cannot automatically be considered large.

Thus, a major transaction for an LLC always meets the following criteria:

• With it, the property of the LLC is always acquired or alienated.
• It can be not only single, but also represent a chain of transactions interconnected.
• The charter of the company may make adjustments to the list of possible transactions for this particular organization.

A major transaction for a JSC is regulated by Federal Law No. 208 of 26.12. 1995 He determines that in this case, such a transaction can be considered as a transaction in which the company's property is acquired or alienated in the amount of at least 25% of the total book value of assets. It is calculated from the accounting reports for the last reporting period. Such transactions may include loans, credits, etc.

Transactions of unitary enterprises are determined by Federal Law No. 161 dated 14.11. 2002 In this case, a major transaction is one in which the property of an organization is acquired or alienated for an amount exceeding 10% of its authorized capital or 50,000 times the minimum wage in Russia. The value of the property is calculated on the basis of accounting reports

Federal Law No. 7 of 12.01. 1996 defines the concept of a major transaction for budgetary organizations. It is recognized as such provided that it operates with cash or property in excess of 10% of the book value of the assets of this institution. They are determined on the basis of accounting reports for the last reporting decade. Exceptions will be situations in which the Charter of the organization allows you to recognize a major transaction with smaller amounts.

Major transactions of autonomous institutions are considered by Federal Law No. 174 of 03.11. 2006 They are considered as such provided that in the process of conducting they operate with amounts of money or property in an amount equal to or greater than 10% of the book value of the assets of this institution. An exception is the recognition by the Charter of an autonomous organization of the possibility to consider a major transaction of a smaller size.

What is considered a major transaction for an LLC

When determining the size of a transaction for an LLC, they are currently guided by two main criteria:

• First, they compare the amount of the transaction with the value of the assets of the institution.
• Secondly, determine whether it goes beyond the standard business activities of the organization.

When considering the amount of property being alienated or acquired, it should be understood that these are not only immovable objects, equipment, etc., but also products of intellectual labor, shares, cash, etc.

The following financial transactions can act as transactions in this aspect:

• An agreement under which property is alienated or acquired (credit, loan, acquisition of shares, etc.).
• Agreements under which property is withdrawn from the assets of the organization for a long time (transferred to another institution under a lease agreement, etc.).

Read also: Changing the legal address of an LLC - step by step instructions in 2019

The charter of the company may also give an individual definition of a major transaction for a particular LLC. Rather, starting from 2017, these can only be the principles of extending them to other transactions.

The concluded contract is evaluated according to two main criteria:

• Organizations that acquire and alienate property.
• Actions that are supposed to be performed with this property.

And the main thing here will be a quantitative criterion, i.e. the ratio of the value of the transaction and the amount of assets.

Company operations that fall into a high price range are necessarily subject to analysis. If they are carried out by a single transaction, then it is easier to analyze them. Difficulties arise when they are a chain of interrelated transactions. In this situation, the analysis procedure is simplified if the participants are the same.

The following types of LLC transactions will not be recognized as major ones:

• In cases where they are carried out as part of the normal business activities of the company.
• If such operations involve the placement of ordinary shares of the enterprise or issue-grade securities.

• donation procedure.
• Credit loans.
• Purchase - sale of goods.
• Property exchange operations.

If the transaction is of a large nature, then in addition to its approval, you will also need consent to conclude additional agreements, preliminary agreements and labor contracts.

A number of small transactions can be recognized as one major transaction if they meet the following requirements:

• They have a homogeneous character.
• They were committed at the same time or in a short time period.
• They involve the same objects and subjects.
• It is possible to trace a single goal in them.

The Charter of an LLC should clearly spell out the mechanism for conducting a major transaction:

• The need to obtain the consent of all the founders of the company.
• With the consent of the Board of Directors.
• No need for additional approvals.

If such information was not included in the Charter, then when implementing the contract, one should be guided by Federal Law No. 14, which establishes that approval is the right of the general meeting of members of the company. It is also possible to fix a higher price ceiling for the transaction in the Charter.

Calculation of a major transaction for an LLC

To calculate the fineness, the following mechanism of action is provided:

• At the first stage, the total cost of the transaction is calculated.
• The amount received is compared with the value of the LLC's property. To do this, take the data of accounting reports for the last reporting period. In this case, all assets are taken into account.

Since 2017, a large amount is considered to be an amount that equals or exceeds 25% of the amount indicated in line 700 of the balance sheet.

Before entering into an agreement, the following checks must be made:

• Calculate the value of assets. Based on the most recent financial statement.
• Compare the amount of the contract with the value of the company's assets.
• Determine the causal relationship with the property.
• If the asset already has contracts with a similar meaning, then you should establish a relationship with them.
• Correlate the transaction being concluded with the normal business activities of the company.

Balance calculation

To carry out the book value of assets, you need to take the amount of the last balance sheet. At the same time, it should be taken into account that debts are not taken into account in such calculations, i.e. take the total assets, but take into account the residual value.

For all such calculations, only property that is officially the property of a legal entity is considered. Other objects or leased property are not taken into account.

If the company has one founder

Federal Law No. 14 establishes that transactions concluded by an LLC, where only one person acts as a founder, cannot be considered large. To confirm this fact, it is enough to submit an extract from the Unified State Register of Legal Entities. If over time the composition of the society expands, then in order to avoid unnecessary claims, it is better to secure the approval of the contract by all participants, even if it is made by prior agreement concluded with a different composition.

Size information

Judicial contestation of transactions is not uncommon. In such situations, when considering the case, the judge is obliged to consider all the primary accounting documents of the company and appoint the necessary expertise. For this purpose, a certificate of the size of the transaction is requested from the accounting department of the company.

Every chief accountant should know the procedure for compiling it. The document must be certified by the signatures of the head of the LLC and the chief accountant. After receiving a certificate, as a rule, they provide it to Rosreestr in order to record the fact of the transfer of property and rights to it.

The development of corporate relations in modern Russia has passed a short but very specific path. If even 10-12 years ago shareholders and participants were just extras who transferred funds to the management of companies, who did not always know the “fate” of their investments and were excluded from making managerial decisions, then in the last few years the situation has changed: shareholders and participants began to actively defend their the right to make claims against top management. Both management and shareholders are interested in building new types of relations with shareholders and participants. This is due to the achievement of a certain level of transparency of companies, the need to attract foreign investors and prepare reports in accordance with international standards, and enter international markets. One of the important aspects of the participation of shareholders and founders in the management of companies in which their funds are invested is the approval of major transactions.

The legal essence of large transactions: where not to make a mistake

What applies to large transactions

A major transaction is a transaction involving the alienation or possible alienation of property. For joint-stock companies, regardless of their "open - closed", and limited liability companies, there are different approaches to determining what falls under the concept of "big deal".

For joint stock companies , in accordance with the Law of December 26, 1995 No. 208-FZ "On Joint-Stock Companies" (hereinafter - Law No. 208-FZ), a major transaction is a transaction (including a loan, credit, pledge, surety) or several transactions, associated with the acquisition, alienation or the possibility of alienation of property, the value of which is 25 percent or more of the book value of the company's assets, determined according to the financial statements as of the last reporting date, with the exception of transactions concluded in the ordinary course of business, transactions related to the placement ( sale) of ordinary shares of the company, and transactions related to the placement of issue-grade securities convertible into ordinary shares of the company (Article 78). The charter of a joint-stock company may also establish other cases in which transactions made by a joint-stock company are subject to the procedure for approving major transactions and which will be classified as major.

For limited liability companies , in accordance with the Law of 08.02.1998 No. 14-FZ “On Limited Liability Companies” (hereinafter - Law No. 14-FZ), transactions related to the acquisition, alienation or possible alienation of property, the value of which is 25 percent of the value of the company's property, determined on the basis of accounting data for the last reporting period preceding the day the decision was made to complete the above transaction, unless the charter of the LLC provides for a higher threshold for a major transaction.

For large transactions concluded by JSC and LLC, the following is common:

• a major transaction is related to the acquisition, alienation, possible alienation of the property of the company;
• the transaction can be direct or a chain of interconnected transactions;
• the charters of companies may amend and/or supplement the procedure and list of major transactions;
• transactions in the ordinary course of business are not considered major transactions.

Big deal difference JSC and LLC is as follows:

• for JSCs, a major transaction is considered to be 25 percent of the value of assets, while for an LLC - 25 percent of the value of property.

Such an identity is not surprising, because all corporate legislation in our country "was cut according to the same patterns."

What transactions can be classified as transactions carried out in the ordinary course of business

This issue is very important, since the entire procedure for approving or (in its absence) recognizing the transaction as invalid is connected with it. To a greater extent, this applies to a joint-stock company, since, due to the specificity of its organizational and legal form, it is joint-stock companies that have a large number of controversial issues.

In joint-stock companies, major transactions include not only loan, credit, and guarantee transactions. In accordance with clause 30 of Resolution No. 19 of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 11/18/2003, major transactions can also include transactions for the assignment of rights of claim, the transfer of debt, the contribution of funds as a contribution to the authorized capital of a business entity in payment for shares (shares) . And according to the norms of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 13, 2001 No. 62, all special norms and requirements related to JSCs apply to LLCs.

However, it is not large transactions that are of the greatest interest in consideration, but transactions in the ordinary course of business. Unfortunately, the current legislation does not establish clear boundaries and definitions of what relates to current business activities, and what to major transactions of an investment and strategic nature that may affect the future financial and economic activities of the company.

Unfortunately, in a number of credit institutions, not only managers, but also lawyers and loan officers misinterpret the concept of "a major transaction made in the ordinary course of business." So, this even means obtaining loans for the development of production, the purchase of equipment and components, etc.

Example 1

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The confectionery factory, created in the form of a CJSC, has submitted documents to the bank for a large loan, the amount of which exceeds 25 percent of the value of assets. The loan amount is 35,000,000 rubles, and assets - 20,000,000 rubles. In a feasibility study for a loan, the joint-stock company indicated that this loan is taken to ensure production purposes, therefore it is not considered a major transaction and it does not require the approval of the general meeting of shareholders. However, the bank refused to obtain a loan, since such a transaction is classified as a large one by law and requires mandatory approval. The bank's actions can be considered erroneous, since the transaction falls under the category of ordinary business activities. CJSC requested a loan to pay for current business operations.

Transactions entered into in the ordinary course of business include the following transactions:

• on the acquisition of raw materials and materials necessary for the implementation of production and economic activities;
• for the sale of finished products;
• to perform work;
• to get a loan to pay for current operations.

It is this list that is given in the joint resolution of the Plenum of the Supreme Court of the Russian Federation No. 90 and the Plenum of the Supreme Arbitration Court of the Russian Federation dated 09.12.1999 No. 14.

Litigation practice

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According to the joint resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 4/8 dated April 2, 1997, the rules established by Articles 78 and 79 of Law No. 208-FZ "On Joint Stock Companies" that determine the procedure for concluding major transactions by a joint stock company do not apply to transactions committed by the company in the course of its ordinary business activities (related to the acquisition of raw materials, materials, the sale of finished products, etc.), regardless of the value of the property acquired or alienated under such a transaction.

When referring economic transactions to the category of major arbitration courts proceed, first of all, from an analysis of the types of economic activities carried out by companies. And if the transaction is concluded in order to ensure the performance of a certain type of economic activity or is directly due to this type of economic activity, then it will be recognized as a transaction concluded in the course of ordinary economic activity. This is also confirmed by the decisions of arbitration courts, in particular, by the decisions of the Federal Antimonopoly Service of the Moscow District of September 12, 2006 No. KG-A41 / 7615-06, the Federal Antimonopoly Service of the North-Western District of October 17, 2007 No. A56-51025 / 2006.

Litigation practice

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The Federal Antimonopoly Service of the North-Western District, in its resolution No. A21-4740/2007 of December 14, 2007, indicated that, in accordance with the charter of a limited liability company, the priority areas of its activity are the development and implementation of construction projects for civil housing and the implementation of the functions of a developer. Consequently, the general contract for the construction of a residential building cannot be challenged and classified as a major transaction.

However, the concepts of "statutory activity" and "current economic activity" are not identical. In order for a transaction to be classified as a current business activity, it is necessary to confirm that it is carried out by the company on an ongoing basis and that there are other transactions of a similar nature in its work.

Example 2

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A limited liability company operates in the field of transportation. The property of the company is 1,000,000,000 rubles. The management decided to acquire commercial real estate worth RUB 800,000,000. Mistakenly believing that this transaction belongs to the category of transactions related to current business activities, the CEO did not receive approval from the shareholders. By its economic nature, this transaction did not fall into the category of current business operations, but fell into the category of long-term investments. This transaction was not a transaction carried out by the company on a permanent basis. As a result, it was declared invalid.

A number of employees of credit institutions arbitrarily interpret the above concepts and sometimes do not know from which sources to take confirmation that the transaction relates to current business activities. Confirmation that the transaction is carried out by the company on an ongoing basis is:

• data of statutory and constituent documents, minutes of the meeting of the Board of Directors and/or the General Meeting of Shareholders;
• extract from the Unified State Register of Legal Entities;
• accounting and tax reporting data.

Thus, a major transaction requiring approval will be considered a transaction related to the long-term immobilization of assets (for JSC), property (for LLC) or funds for purposes not related to the implementation of a typical and characteristic type of activity for this legal entity.

Approval mechanism for major transactions in a business entity

Approval of major transactions in joint-stock companies

Approved major transactions in a joint-stock company can be divided into transactions approved by the board of directors and major transactions that require the approval of the general meeting of shareholders. The division of transactions into those approved by various management bodies depends on the value of the property that is the subject of the transaction.

JSC Board of Directors approves major transactions if the subject of the transaction is property, the value of which is from 25 to 50 percent of the book value of the assets joint-stock company. Moreover, the transaction must be approved unanimously by the entire board of directors (clause 2, article 79 of Law No. 208-FZ). If any member of the board of directors is absent, the major transaction approval meeting must be rescheduled or written confirmation of approval must be obtained from the absentee. In the decision-making process, only the votes of retired members of the board of directors are not taken into account: the deceased, who resigned ahead of schedule until the moment of the general meeting of shareholders. All other absences will not be considered justified and a limited quorum approval decision will not be considered legitimate.

If the subject of the transaction is property, the value of which is more than 50 percent of the book value of the assets company, then the transaction, in accordance with paragraph 3 of Article 79 of Law No. 208-FZ, is subject to approval by the general meeting of shareholders. Moreover, a major deal must be approved by shareholders owning voting shares. Owners of preferred shares do not participate in voting. A major transaction will be considered approved if 3/4 of the votes of shareholders owning ordinary shares (qualified majority) vote for it. If the shareholders have violated the procedure for approving a major transaction, then in accordance with clause 6 of Article 79 of Law No. 208-FZ, it will be declared invalid. Moreover, the invalidity of the transaction can be recognized both at the claim of the shareholder and at the claim of the company.

If the joint stock company has only one shareholder owning 100 percent of the shares, then to approve the transaction, the CEO must obtain his written consent. This is precisely the position taken by the Presidium of the Supreme Arbitration Court of the Russian Federation, which indicated in the information letter dated March 13, 2001 No. 62 that in companies consisting of one shareholder, written consent (approval) by a shareholder of a major transaction is equivalent to a decision of the general meeting of shareholders. If the company has two shareholders who own shares in equal shares (i.e., 50% each), then the decision of the General Meeting is already necessary, since in this case the full composition of shareholders will be considered a qualified majority.

The larger the size of the assets of the joint-stock company, the higher the bar of the approved amount. Modern Russian corporate practice is such that the approval of major transactions can generally be attributed to the competence of the board of directors (in particular, such a practice exists in OJSC Mineral and Chemical Company EuroChem). This allows you to respond more quickly to emerging investment opportunities or other necessary large property transactions: after all, it is easier to convene a board of directors than a general meeting of shareholders. And the general meeting can approve the transaction at a subsequent meeting. Arbitration practice also allows this possibility.

Litigation practice

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The resolution of the Federal Antimonopoly Service of the West Siberian District dated June 15, 2004 No. F04 / 3280-713 / A46-2004 states that if there is a subsequent approval of the transaction in accordance with Article 79 of Law No. 208-FZ, the procedure for the transaction is recognized as observed and in accordance with the law.

The above order subsequent approval of a major transaction by the general meeting meets the standards of large foreign corporations. However, in Russia this practice has not yet become widespread.

Approval of major transactions in limited liability companies

In accordance with paragraph 2 of Article 32 of Law No. 14-FZ, limited liability companies may create board of directors (supervisory board), if it is provided for by the charter. The range of issues resolved by the board of directors of an LLC includes the approval of major transactions in accordance with Article 46 of Law No. 14-FZ, which is similar to the powers and competence of the board of directors of a joint-stock company. In practice, if a board of directors is created in an LLC, then its competence in terms of approving transactions includes transactions with property, the value of which is from 25 to 50 percent of the value of the company's property.

However, in most cases, the LLC does not have a board of directors, and the decision is made by the general meeting of participants.

Litigation practice

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The resolution of the Federal Antimonopoly Service of the Moscow District dated September 25, 2006 No. A-41-K-1-2943/06 states that the decision to conclude a major transaction is made by the general meeting of LLC participants in accordance with paragraph 3 of Article 46 of Law No. 14-FZ.

A major transaction approved by the general meeting of LLC participants in violation of the law may be challenged and declared invalid in court (Article 46 of Law No. 14-FZ). If there is only one participant in the LLC, then the approval of the transaction can be made by him in writing, without drawing up the minutes of the general meeting of participants. That is, the procedure is similar to the procedure adopted for a joint-stock company.

Mechanism for ensuring the rights of shareholders in terms of approval of major transactions

The mechanism for ensuring rights is considered in relation to joint-stock companies. In limited liability companies, the problem of securing rights is not so acute and is mainly associated with the expulsion of one of the founders. And it is not difficult to notify several people, who almost always occupy administrative positions in an LLC, about holding a meeting.

Another thing is a joint-stock company. Here, the observance of the rights of shareholders comes to the fore. Their loyalty and readiness to support all economic initiatives depend on how the management can observe the rights of shareholders. In many large and dynamically developing Russian corporations, special subdivisions dealing with issues of relations with shareholders and investors have been created for relations with shareholders. And AFK Sistema has even introduced a special position of a corporate secretary who deals with compliance with corporate procedures and the corporate management system. For more fruitful communication with shareholders, you can arrange an investor day in the company.

Shareholder and his rights

Non-observance of the rights of shareholders in a number of cases is due to the fact that the shareholders themselves are unaware of their rights and opportunities, or they associate them only with the receipt of dividends and remember their rights only in cases where the amount of dividends is reduced.

The shareholder can get acquainted with all the documents of financial and accounting statements that are listed and enshrined in the charter of the company.

Litigation practice

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According to the resolution of the Federal Antimonopoly Service of the North-Western District dated November 18, 2002 No. A56-15780/02, a joint-stock company is obliged to provide shareholders with access to the documents listed in paragraph 1 of Article 89 and in Article 91 of Law No. 208-FZ.

Information that shareholders can receive from the company upon their request is presented in Table 1.

A joint stock company is obliged to provide shareholders with unhindered access to the following documents listed in Article 91 of Law No. 208-FZ:

• an agreement on the establishment of a joint-stock company;
• the charter of the company with all registered changes and additions;
• documents confirming the unconditional and indisputable rights of the JSC to the property on its balance sheet;
• internal documents of the company;
• regulations on branches and representative offices of JSC;
• annual reports;
• financial statements in full;
• minutes of general meetings of shareholders, meetings of the board of directors and the audit commission;
• lists of affiliates;
• other documents stipulated by the current legislation and internal acts of the joint-stock company.

All of the above documents are submitted within 7 days from the date of submission of the request for review.

In this regard, it is necessary to pay attention to the fact that shareholders must clearly indicate which documents they want to see. In this matter, arbitration courts take the side of the management of joint-stock companies.

Litigation practice

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According to the Ruling of the Supreme Arbitration Court of the Russian Federation of August 29, 2007 No. 10481/07, in order to receive the requested information, the shareholder must specify which documents he wants to receive.

Otherwise, the process of providing information may be delayed, and not through the fault of the management of the joint-stock company, but through the fault of the shareholder himself.

At the general meetings of shareholders their ability to exercise their rights depends on the percentage of the total number of votes(from the block of shares). Table 2 shows the relationship between the number of votes and the rights and obligations of shareholders, considered from the standpoint of the approval of major transactions.

As an example of preparation for the general meeting, one can cite RTS OJSC, in which shareholders have the right to receive complete and reliable information about the state of affairs in JSC; for the preliminary receipt of complete, reliable and objective information necessary for making a correct and beneficial management decision for the joint-stock company.

Responsibility for violation of shareholders' rights

In this case, the responsibility for the violation of rights will be assigned to the board of directors and/or the collegial/sole executive body. This is due to the excess of the limits of their powers by the officials of the JSC, which is a violation of Articles 173, 174 of the Civil Code.

And according to Article 168 of the Civil Code, any transaction that does not comply with the requirements of the law or other legal acts is invalid. From the point of view of the legislation, all major transactions executed with violations fall under the definition set out in Article 168 of the Civil Code and are declared invalid.

Litigation practice

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According to paragraph 10 of the joint resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 2, 1997 No. 4/8, the decision of the board of directors or the executive body of a joint-stock company may be challenged in court by filing a claim for its invalidation both in cases in which the possibility of contestation is provided for by Law No. 208-FZ, and in the absence of a corresponding indication, if the decision made does not meet the requirements of the law and violates the rights and interests of the shareholder protected by law. The defendant in this case is a joint-stock company.

The expression “the defendant is a joint-stock company” should be understood that the responsibility lies with the executive body and the board of directors.

Officials of joint-stock companies committing offenses of an administrative nature, are liable in accordance with the Code of Administrative Offenses for the following types of violations:

• under article 14.21 of the Code of Administrative Offenses - for improper management of a legal entity, the use of powers to manage an organization contrary to its legitimate interests and / or the legitimate interests of its creditor, resulting in a decrease in the equity capital of this organization or the occurrence of losses (losses);
• under article 14.22 of the Code of Administrative Offenses - for the conclusion by a person performing managerial functions in an organization of transactions or other actions that go beyond his authority.

All of the above offenses are administrative and will be considered in the arbitration proceedings.

If the crimes committed by officials of the joint-stock company are related to causing significant property damage, fraud or theft, then they are criminal in nature and liability arises in accordance with the Criminal Code:

• under article 159 of the Criminal Code - for fraud (theft) of another's property or acquisition of another's property by deceit or breach of trust;
• under article 165 of the Criminal Code - for causing property damage to the owner or other owner of property by deceit or abuse of trust in the absence of signs of theft;
• under article 177 of the Criminal Code - for the malicious evasion of a citizen (head of an organization) from paying off accounts payable on a large scale after the entry into force of the relevant court decision.

Ways to deceive creditors using the mechanism of approval of large transactions

Approval of large transactions can be used not only for the legal purposes of investment, business development, etc., but also to deceive creditors in order to obtain additional funds or property.

Offenses related to defrauding creditors can be divided into three groups:

• offenses related to incorrect execution of documents for the conclusion of major transactions;
• offenses related to excess of authority by officials (executive body) of the company;
• offenses related to collusion between the shareholders and the management of the company in order to invalidate the transaction.

Often, in practice, one has to deal with the opinion of the offending party that what has been committed is a simple flaw, a mistake by the performer, etc. Of course, the fact of proving the unlawfulness of the actions of the debtor lies with law enforcement agencies, which should reveal this in the course of operational and investigative measures. However, the identification of inconsistencies between the actions taken and the norms of legislation and statutory documents can be identified already at the stage of preliminary consideration of documents.

Offenses related to incorrect paperwork

• lack of documented approval of a major transaction by shareholders (founders);
• retrospective approval of a major transaction by shareholders.

Lack of documentary evidence of approval of a major transaction by shareholders (founders)

This approval must be submitted prior to the conclusion of a major transaction. To prevent such illegal action, it is necessary to analyze the charter of the company in order to find out which governing body should approve this type of transactions.

If the transaction, according to its parameters, is subject to approval by the board of directors, then it is necessary to obtain the minutes of the meeting of the board of directors, dated no later than the day preceding the submission of documents to the counterparty.

If the transaction falls under the category of transactions approved by the general meeting of shareholders, then it is necessary to submit the minutes of such a general meeting, dated no later than the day preceding the submission of documents to the counterparty.

References to the fact that a major transaction was not pre-planned, but arose unexpectedly, should not be taken into account, since every more or less large organization draws up budgets and forecast plans for the year, which are approved at general meetings of shareholders. The only possible situation is with an extraordinary meeting of shareholders, when it will be assembled to approve this particular transaction.

Retroactive approval of a major transaction by shareholders

The situation when the executive body of the company or its general director enter into a major transaction, and then it is approved by the general meeting or the board of directors, is, in principle, possible. But such a procedure should be enshrined in the charter of the company and in the power of attorney issued to the general director. If this is not the case, then the transaction must be cancelled.

A number of heads of limited liability companies refer to the fact that, in accordance with Article 46 of Law No. 14-FZ, approval of a major transaction can be obtained from the founders after its conclusion. But this is only possible if the subsequent approval is enshrined in the charter of the LLC.

Offenses related to excess of authority by an official (executive body) of the company

• conclusion of transactions by an official who does not have the appropriate authority;
• conclusion of transactions by a person whose authority has expired.

Conclusion of transactions by an official who does not have the appropriate authority

Even if all the documents for the conclusion of the transaction are signed by the current general director of the company, this does not mean that the transaction is legal, since his powers must be enshrined in the charter, power of attorney and in the internal regulations of the organization.

Litigation practice

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The resolution of the Federal Antimonopoly Service of the Moscow District dated June 7, 2007 No. KG-A40 / 4031-07 states that, according to Article 174 of the Civil Code, if the powers of a person to make a transaction are limited by an agreement or the powers of a body of a legal entity - by its constituent documents compared to as they are defined in the power of attorney and in the law, or as they may be considered obvious from the environment in which the transaction takes place, and in its execution such person or body went beyond these restrictions, the transaction may be declared invalid by the court.

This category of violations bears legal risks for the creditor in terms of denial of a lawsuit due to the fact that if the contract indicates that the counterparty's official acts on the basis of the charter, and it is unconditionally considered that the plaintiff has familiarized himself with the contract and unconditionally accepts it conditions. In this case, it will be considered that the plaintiff knew about the limited powers of the counterparty's official and agreed to a deal with an unauthorized person voluntarily, and therefore there are no grounds for prosecuting the defendant. The subsequent fate of the CEO, who (after the transaction was declared invalid) was dismissed of his own free will and the shareholders / founders did not present any financial or legal claims against him, can also be a sign of obvious fraud.

Conclusion of transactions by a person whose authority has expired

In most cases, the CEO or other executive is appointed for a fixed term. The term of office of these persons is fixed in the statutory documents of the company and is duplicated in its internal documents (regulations, job descriptions, etc.). An indirect confirmation that the authority of an official has expired is the replacement or amendment of the signature sample card submitted to the bank (but only credit institutions can have such an opportunity).

Offenses related to collusion between the shareholder and the management of the company in order to invalidate the transaction

This offense already falls under the criminal, and not administrative or arbitration legislation. A collusion between a shareholder/a group of shareholders and management is possible with the aim of stealing money or property with their subsequent non-return, disruption of contractual relations. This usually happens in those companies that are either on the verge of ruin and bankruptcy or were created for fraud purposes, as well as in cases where a legal entity has “completed its journey” and, by decision of shareholders, must be closed.

Moreover, to give credibility, the claim is filed some time after the conclusion of the transaction (after it is no longer possible to return the loan, property or property rights). And the claim in such cases is filed by a shareholder with a small percentage, or a minority shareholder.

To prevent illegal actions of this type, it is necessary to request the minutes of the general meetings of shareholders prior to the conclusion of a major transaction. If the issue of approval of this major transaction was submitted for discussion by the shareholders, and the shareholder-truth seeker voted for approval, then it is possible to reject claims and carry out procedures to recover funds, property and property rights and punish those responsible.

In addition, it is necessary to find an opportunity to check whether the shareholders were informed about the agenda of the meeting in a timely manner and whether they had the opportunity to familiarize themselves with the materials of the agenda. In addition, it is necessary to proceed from the identity of the shareholder-applicant. If, due to their personal and educational characteristics, the applicant objectively could not understand the issues of corporate law, then the issue of collusion should be considered in the first place. In addition, a situation is possible when a shareholder has transferred his shares to the executive management of the company for management. In this case, there is a conspiracy, and it will not be difficult to prove an interest in recognizing the transaction as invalid.

In a number of cases, the shareholders claim that the shareholders/founders of the companies did not approve the transactions, the management was not authorized, and the protocols were falsified by the creditors. In this case, it is necessary to conduct a graphological examination.

This is just a small list of possible falsifications and frauds. Of course, along with the improvement of corporate legislation, fraudsters are improving their methods of illegal actions.

In conclusion, we note that the recognition of a major transaction as invalid entails not only financial losses in the form of an unpaid loan, property or property rights, but also reputational risks for the creditor. Indeed, if the organization has not previously familiarized itself with the presence of approval from the shareholders or founders of the economic company, then this casts doubt on the qualifications of the employees who checked the documents and indicates an unsatisfactory level of the internal control system in the organization.

The transaction will be considered major if it goes beyond the boundaries of ordinary economic activity and is associated with the purchase or sale of property of a joint-stock company (more than 30% of shares) or provides for the transfer of property for temporary use or under a license (clause 1 of article 46 No. 14- FZ). Moreover, in both cases, the price of such operations must be at least 25% of the book value of the assets of a limited liability company (LLC).

If required, they approve major transactions in accordance with the legislation of the Russian Federation (14-FZ, 174-FZ, 161-FZ, etc.) or according to the rules established in the Charter of the procurement participant. In other embodiments, this is done by a supplier representative authorized to obtain accreditation for .

In an LLC, approval is the responsibility of the general meeting. If the organization has a board of directors, then on the basis of the Charter, the adoption of agreements on such operations can be transferred to its jurisdiction.

On June 26, 2018, the Supreme Court issued a Resolution of the Plenum. In this document, he revealed the main disputes regarding the approval of major transactions and agreements in which there is an interest.

Download Resolution of the Plenum of the Supreme Court No. 27 dated 06/26/2018

When is such approval required in the contract system?

To start participating in public procurement, you need. To do this, provide a common package of documents, which includes the consent to the transaction. Moreover, this is always required, including when the purchase does not belong to the category of large ones. As for suppliers who were accredited before 12/31/2018, they are required to register with the EIS by the end of 2019. Both of them will need an up-to-date sample decision on a major transaction 44-FZ.

Information must also be included in the second part of the application, if required by law or constituent documents, as well as when and or, and the contract itself will be large for the participant. In the absence of this information at any stage before the conclusion of the contract. 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 with a single founder

LLCs, in which there is only one founder, who acts as the sole executive body, are not required to draw up such a document (clause 7 of article 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.

But it is not necessary to include this information in the second part. 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. 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 compiling: form and content

First of all, it is worth noting 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. 46 No. 14 FZ explains that such a document should indicate:

1. A person who is a party to an agreement and a beneficiary.
2. Price.
3. Subject of the agreement.
4. Others or the order in which they are defined.

The beneficiary may not be indicated if it is impossible to determine it by the time the document is agreed, and also if the contract is concluded as a result of the auction.

At the same time, Art. 67.1 of the Civil Code of the Russian Federation establishes that the decision made by the executive bodies of the LLC must be confirmed by a notarized certificate, unless another method is provided for by the Charter of such a society or by a decision of the general meeting, which was adopted unanimously by the participants.

P. 4, Art. 181.2 of the Civil Code of the Russian Federation fixes the list of information that must be reflected in the decision of the in-person meeting of the founders. The protocol requires the following information:

• date, time and place of the meeting;
• persons who participated in the meeting;
• results of voting on each item on the agenda;
• the persons who counted the votes;
• persons who voted against the approval of the agreement and requested that a record be made of it.

In 2019, it happens that customers reject a participant if the decision indicates the total amount of approved transactions, and not each agreement individually. Therefore, we recommend using the wording “Approve the transactions on behalf of the Limited Liability Company “_______________” based on the results of the procurement procedures for goods, works, services. The amount of each such transaction shall not exceed the amount of ____________ (_____________) rubles 00 kopecks.”

Modest in terms of content, articles of laws on the procedure for coordinating transactions have changed and become more detailed. The usual decision to approve the transaction will change its name. Now it will be a decision on consent to the transaction or on the subsequent approval of the transaction. A restrictive threshold of 1 percent of voting shares for minority shareholders has been set. It is no longer necessary to approve a related party transaction. It is enough to send a notice according to the established requirements on time. The usual rules for approving transactions have changed. It is not yet known how much the changes will change the current practice. But we can study them in more detail.

Expanded list of major transactions

Now major transactions include only transactions related to the acquisition, alienation or the possibility of alienation of property, the value of which is 25 percent or more of the book value of the company's assets (Article 78 of the Federal Law of December 26, 1995 No. 208-FZ "On Joint Stock Companies", hereinafter referred to as Law No. 208-FZ, Article 46 of Federal Law No. 14-FZ dated February 8, 1998 “On Limited Liability Companies”, hereinafter referred to as Law No. 14-FZ). Purchase and sale, donation, pledge, guarantee, loan and mortgage fall under the concept of major transactions.

From January 2017, transactions involving the transfer of property for temporary possession or use will be added to major transactions. To a greater extent, this change was made specifically in order to include the lease agreement in the number of large transactions. The courts have previously recognized the lease as a major transaction, but now this will be enshrined at the legislative level (subparagraph 5, paragraph 8 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 16, 2014 No. 28 “On Certain Issues Related to Challenging Major Transactions and Transactions with Interest”, further - Decree No. 28; Decree of the FAS SZO of March 18, 2011 No. A56-38981 / 2010).

Intellectual property also made the list of major transactions. Back in 2003, the courts invalidated contracts for the transfer of intellectual property. The reason was the violation of the procedure for concluding such transactions (decision 13 of the AAC of 12.12.07 in case No. A56-21604 / 2003).

Determining the value of a major deal just got easier

The procedure for comparing the value of the company's assets with the value of the transaction has been expanded. The old version contains an indication only of cases of alienation or acquisition of property.

QUOTE THE DOCUMENT:
In the event of the alienation or the possibility of alienation of property, the book value of the company's assets is compared with the value of such property, determined according to accounting data, and in the case of the acquisition of property, the price of its acquisition (clause 2, part 1, article 79 of Law No. 208-FZ).

Similar provisions are contained in Law No. 14-FZ (clause 2, article 46).

The value of property, determined according to accounting data, is often significantly less than the alienation price. This led to abuse by persons interested in the transaction. The transaction will not fall under the category of major.

In the new wording of the article, the ratio of the price or book value to the company's assets will be determined depending on the nature of the transaction. In case of alienation (or probability of alienation) of property, the value of assets is compared with the highest value (price or book value of the alienated item). In case of transfer of property into temporary possession, the book value of the transferred property is recognized as the estimated value.

For example, a company sells premises for 1,000,000 rubles. The carrying value of the property at the time of sale is RUB 250,000. The value of the company's assets at the time of the sale of the premises is 2,000,000 rubles. As a result, the cost of the transaction will be equal to 50 percent of the value of the company's assets, the transaction will be large. If the same property is transferred to temporary possession, the transaction will not be large, since the ratio of values ​​(the value of assets and the book value of property) will be 12.5 percent.

In order to reduce the number of abuses with estimating the value of a transaction, the new version of the law establishes that the advantage in determining the price of a transaction has the largest value - the book value or price (clause 1.1 of article 78 of law No. 208-FZ in a new edition). This rule is designed to protect the interests of society and its participants, since the likelihood of a transaction falling into the category of a major one increases.

Instead of affiliation, the concept of control appeared

Now, instead of the concept of "affiliated person" the term "controlling person" and "controlled person (controlled organization)" will be used. These concepts will be needed to determine the signs of interest in the transaction.

Controlling persons will include persons who can dispose of more than 50 percent of the votes in the supreme management body of the controlled organization. Or such persons have the right to appoint (elect) the sole executive body and (or) more than 50 percent of the composition of the collegial management body of the controlled organization. A controlled person (controlled organization) is a legal entity that is directly or indirectly controlled by the controlling person (Article 81 of Law No. 208-FZ, Article 45 of Law No. 14-FZ).

The requirement for mandatory prior approval of an interested-party transaction is abolished. It is sufficient to notify members of the Board of Directors no later than 15 days prior to the date of the transaction. The notice must indicate the parties and beneficiaries, the price, the subject of the transaction and its other essential conditions. The notice also contains information about the persons interested in the transaction, and the grounds on which these persons are interested. The charter of the company may contain the obligation to notify shareholders along with members of the board of directors (clause 1.1 of article 81 of law No. 208-FZ in a new edition, clause 3 of article 45 of law No. 14-FZ in a new edition).

Now, when preparing for the next general meeting of shareholders, the company will need to prepare a report on transactions concluded in the reporting year, in which there is an interest (Article 82 of Law No. 208-FZ).

A shareholder who owns at least 1 percent of voting shares will be able to initiate the approval procedure for transactions in which, in his opinion, there may be an interest (clause 1, article 83 of Law No. 208-FZ, as amended). To do this, he needs to send a request to hold a general meeting of shareholders of the company to resolve the issue of consent to the transaction, in which there is an interest. The demand is sent and considered in the manner prescribed by Article 55 of Law No. 208-FZ.

Lack of consent to the conclusion of an interested party transaction will not be an independent basis for recognizing such a transaction as invalid. To declare it invalid, two conditions will be required: the transaction was made 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 an interested party transaction for the company, and (or) that consent to it commit is missing.

Interested parties before applying to the court must present a requirement to the company to provide information on the transaction. The company is obliged to provide the necessary information within 20 days from the receipt of such a request (clause 1, article 84 of Law No. 208-FZ, as amended).

There is a 1% threshold for minority shareholders

At first glance, the new version of the laws on business entities restricts the rights of minority participants. But no one restricts such shareholders in their right to make statements collectively. This possibility is not prohibited by legislators.

Minority shareholders may be most concerned about the new wording of paragraph 6 of Article 79 and paragraph 1 of Article 84 of Law No. 208-FZ, which sets a threshold of 1 percent for shareholders to initiate an appeal procedure for transactions. True, the threshold of 1 percent of voting shares can be overcome by the joint efforts of interested shareholders. To do this, shareholders are given the opportunity to file a claim to challenge the transaction collectively.

QUOTE THE DOCUMENT:
A major transaction made in violation of the procedure for obtaining consent to its conclusion may be declared invalid (Article 1731 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 shareholders (shareholder) owning in the aggregate at least one percentage of voting shares of the company. The limitation period for a claim to declare a major transaction invalid if it is missed is not subject to restoration (clause 6, article 79, clause 1, article 84 of Law No. 208-FZ, as amended).

A similar restriction is fixed in the new version of Article 84 of Law No. 208-FZ. In order to receive information on an interested party transaction, a shareholder must hold at least 1 percent of voting shares.

From a formal point of view, innovations limit the rights of minority shareholders and reduce the ability to challenge transactions. To understand the scale of the restrictions, it is necessary to recall the current regulations. Thus, paragraph 6 of Article 79 of Law No. 208-FZ gives the right to challenge major transactions to any shareholder, but the court will refuse to satisfy this requirement if:

• the voting of the shareholder who applied to the court could not affect the results of the voting (subclause 3, clause 6, article 79 of Law No. 208-FZ);
• the applicant will not prove that harm has been caused to the company or that there is a possibility of causing losses.

In order to prove that the joint-stock company was harmed or there is such a possibility, it is necessary to obtain accounting documents and protocols of the collegial executive body. And only shareholders who own at least 25 percent of the voting shares of the company have such an opportunity. This is the limitation.

Please note that from January 2017 these requirements will be excluded from paragraph 6 of Article 79 of Law No. 208-FZ. It will no longer be necessary to prove losses or other adverse consequences. And the plaintiff's ability to influence the voting results of the general meeting of shareholders will no longer matter to the court.

Details in the consent decision can be subject to abuse

The decision to approve a transaction will be referred to as consent to the transaction or its subsequent approval. The explanatory note to the bill says nothing about the reason for the change in terminology. The law will now describe in more detail the mandatory and optional requirements for the content of the decision on consent to the transaction. The duration of the consent becomes mandatory. If it is not specified, the law establishes its duration - a year from the date of signing the consent.

The decision on consent to a major transaction now specifies:

• a person who is a party to or beneficiary of a transaction;
• the price, the subject of the transaction and its other essential conditions or the procedure for their determination;
• general parameters of the main terms of the transaction requiring consent to its completion;
• consent to similar transactions;
• alternative options for the main terms of the transaction;
• consent to the transaction, subject to the completion of several transactions at the same time;
• the period during which the consent to the transaction will be valid.

The structure of consent to a major transaction will become more complicated and will require special care when drafting the document. Any mistake will entail additional grounds for challenging the transaction.

Another situation is also possible, when the texts of decisions on consent to major transactions will be drawn up with deliberate violations of the form. Such violations may become the basis for applying to the court to recognize the transactions as invalid.

Cases when it is not required to obtain consent to conclude a major transaction

The legislator supplemented the list of cases when the provisions of Chapter X of Law No. 208-FZ are not applied (Clause 3, Article 79 of Law No. 208-FZ, new edition):

• if 100 percent of the voting shares belong to one person. And this person is both the sole executive body of the company and a shareholder;
• if the transactions are related to the provision of services for the placement (public offer) and (or) organization of the placement (public offer) of the company's shares and equity securities of the company convertible into company shares;
• if the transactions are related to the transfer of rights to property in the process of reorganization of the company, including under merger agreements and accession agreements;
• when concluding public contracts concluded by the company on terms that do not differ from the terms of other public contracts concluded by the company;
• when acquiring shares (other equity securities convertible into shares) of a public company on the basis of a transaction concluded on the terms provided for by a mandatory offer to acquire shares of a public company;
• to transactions concluded on the same terms as the previously concluded preliminary agreement, if consent has been received to conclude the preliminary agreement itself.

The legislator brought the list of exceptions in line with the established judicial practice on this issue. In general, judicial practice has had a significant impact on the changes that were made to Law No. 208-FZ and Law No. 14-FZ regarding the approval of transactions.

Big deal for LLC, as for other business entities, requires the approval of the business owners. We will study what are the criteria for classifying transactions as large, as well as how the owners of the company agree to conclude a "major" contract.

Definition (concept) of a major transaction in the Federal Law on OJSC and LLC

What is a major transaction for LLCs and JSCs? Despite the fact that these organizational and legal forms of business have significant differences, the criteria for determining a major transaction with their participation are almost the same.

1. Outside the normal economic activities of the organization.

At the same time, such transactions do not include those that are typical for legal relations entered into by an organization or other firms engaged in similar types of economic activity (provided that such transactions do not lead to the liquidation of the company, a change in its type or a significant change in the scale of the organization).

2. It involves the acquisition, alienation or lease of property or the issuance of a license for the use of intellectual development.

3. It is characterized by the price or book value of property (which is the subject of the transaction) exceeding 25% of the book value of all assets of the company as of December 31 of the year preceding the one in which the transaction was made.

When purchasing more than 30% of PJSC shares in the manner regulated by Chapter XI.1 of Law No. 208-FZ, the buyer is obliged to send a public offer - a proposal to acquire shares to other owners of securities. At the same time, the cost of the transaction includes not only the price of the purchased shares, but also the price of other shares, which the buyer must try to buy back from the current owners.

On our forum you can discuss any question that you have on tax and not only legislation. For example, we figure out how to notify the tax authorities about a controlled transaction.

How can you tell if a deal is a big one?

1. Take the balance sheet for the year preceding the one in which the transaction is concluded and familiarize yourself with the book value of all assets of the company (line 1100).

2. Familiarize yourself with the cost of property purchased (sold or leased) under an agreement with a counterparty.

3. Compare the value of the property under the contract with the carrying amount (which may include other costs associated with acquiring the asset, such as shipping costs).

If the property is purchased by a participant in the transaction, then the purchase price of the property is taken into account in the further calculation; if sold - the largest value when comparing the book value and selling price; if rented out - the book value (clause 2, article 46 of Law No. 14-FZ, clause 1.1 of Article 78 of Law No. 208-FZ).

4. Divide the amount taken into account in paragraph 2 by the amount in paragraph 1.

If the score is greater than 0.25, then the deal is considered a major deal (subject to meeting the other criteria discussed above) and will require the approval of the business owners, unless otherwise provided by law.

What is the significance of the fact that a transaction is classified as a major one?

The presence of legal grounds for recognizing a transaction as a major one makes it possible for the owners to actually protect their business from undesirable and uncoordinated actions of the general director. If a transaction that meets the criteria of a major transaction is carried out without the approval of the owners, then they will have a legal opportunity to challenge it.

The conclusion of a major transaction for an LLC or JSC, as a rule, imposes a number of large-scale obligations on the business entity. Most often financial (for example, related to the payment of purchased goods). Acceptance of such obligations without the knowledge of the owners of the company or their proxies is in many cases an extremely undesirable scenario for business.

There may be a corruption component here (when the director negotiates a large purchase from “his” supplier), and the lack of competence of the manager (when the supplier is not “his”, but not the most profitable, which only the owners know about, and the director, due to inexperience, does not suspects it).

Let us now consider in more detail the specifics of conducting large transactions by limited liability companies.

Do I need approval for a major transaction in an LLC?

It is important for the head of a company registered as an LLC, as well as the director of a JSC, to obtain consent to this transaction from certain authorized persons (later in the article we will consider how it can be given).

The corresponding transaction, carried out without approval, can be challenged in court on the basis of the provisions of Art. 173.1 of the Civil Code of the Russian Federation. At the same time, persons owning at least 1% of the authorized capital of an LLC can challenge it (clause 4, article 46 of Law 14-FZ). Approval of a major transaction for an LLC can also be obtained upon its completion. The main thing is that the consent of the authorized persons is obtained before the case is considered in court (clause 5, article 46 of Law 14-FZ).

At the same time, the legislation provides for the conduct of transactions that fall under the criteria of large ones, without obtaining the consent of any persons. For example, if an LLC has a single founder, who is also the general director.

The acquisition by the sole founder of the company of the powers of the general director has nuances - you can study them in the article "Sample employment contract with the general director of LLC" .

However, there are still a number of reasons to use the opportunity to disapprove a major deal. Let us study the specifics of “large” contracts concluded freely in more detail.

Is a deal with one founder considered non-approval?

Yes, it is, as we noted above, so. In addition, a large - in accordance with the above criteria - a transaction involving an LLC does not require approval if (clause 7, article 46 of Law 14-FZ):

1. It is carried out as part of the reorganization of an LLC (as an option - under an agreement on a merger with another company or accession to it).

You can learn more about the specifics of the reorganization of an LLC in the article. "Step-by-step instructions for the reorganization of an LLC by merger" .

2. Assumes the receipt by the company of a share in its authorized capital in cases provided for by law 14-FZ.

3. It is carried out by the company by virtue of law at a price established in regulatory enactments.

4. LLC buys PAO securities as part of a mandatory offer.

5. The conclusion of a major transaction for an LLC is carried out according to the rules determined by the preliminary agreement, and also on the condition that this agreement:

• contains information certifying the fact of approval of the transaction;
• is concluded with the approval of the persons giving consent to the transaction.

Let us now study how to ensure the legitimacy of a major transaction, which in turn requires consent to its implementation.

What is the approval process for a major LLC transaction?

Concludes a major deal for LLC, as we noted above, its CEO. At the time of its completion (or, if it happened, at the time the court considered the claim for the recognition of the transaction as invalid), he should have in his hands - as a condition for recognizing the "major" contract as legal - a decision to approve the conclusion of the contract:

1. Published by authorized persons - participants in the general meeting of LLC owners. If the firm has a board of directors, then issued by it on the condition that:

• the board of directors has the relevant competences under the charter of the LLC;
• the value of the property in the framework of the transaction is 25-50% of the value of the property of the LLC.

• on the persons acting as parties to the transaction;
• beneficiaries;
• price, subject of the contract;
• on other material terms of the transaction or the mechanism for determining them.

• on the upper or lower limit of the value of the sale of property or the procedure for their establishment;
• permission to conclude a number of similar agreements;
• alternative terms of the contract, the conclusion of which requires approval;
• approval of the transaction subject to the conclusion of several contracts at the same time.

When this period is not specified, the decision is considered valid for 1 year from the date of its adoption, unless otherwise predetermined by the specifics of the approved major transaction or due to the circumstances of the decision.

Results

A major transaction is one whose value exceeds 25% of the company's total assets. At the same time, the terms of the contract must meet the criteria established by Art. 46 of the Law "On LLC" dated February 8, 1998 No. 14-FZ and Art. 78 of the Law "On JSC" dated December 26, 1995 No. 208 (for LLC and JSC, respectively).

You can learn more about the features of legislative regulation of legal relations with the participation of an LLC in the articles:

• “What is the procedure for the withdrawal of participants from the LLC?” ;
• "Registration of the transfer of a share in an LLC to another participant" .