The procedure for holding a meeting of shareholders in a year. Who draws up the minutes of the annual general meeting of shareholders and how
New rules for preparing, convening and holding a general meeting of shareholders. New ways to inform about the meeting. New ways to vote in a meeting. Planned changes in regulation.
16.00 - 16.15 Coffee break 11.45 - 13.15 ROUND TABLE: TOPICAL ISSUES AND NON-STANDARD SITUATIONS AT THE SHAREHOLDERS MEETINGCurrent and controversial issues arising from the application of new rules, including:
- voting and counting of votes on the issue of consent to the transaction with interest;
- the procedure for consideration, voting and counting of votes on the issue of consent to the conclusion of a major transaction, which at the same time is an interested party transaction;
- options for holding a face-to-face general meeting using information and communication technologies that allow for the possibility of remote participation without being present at the place of the meeting;
- the procedure for voting and counting votes in case of disproportionate voting on the basis of a shareholder agreement, etc.
Annual report; report on transactions in which there is an interest; annual financial statements; auditor's report; audit committee report. Content and disclosure requirements.
15.45 - 16.00 Coffee break 16.00 - 17.30 VIOLATIONS WHEN CONVENING AND HOLDING THE GENERAL MEETING OF SHAREHOLDERSViolations committed during the preparation and holding of the General Meeting of Shareholders. New rules for contesting decisions of the general meeting of shareholders. Judicial practice in cases of recognition of decisions as invalid. Administrative responsibility for violations committed during the preparation and holding of general meetings of shareholders: the procedure for identifying, the practice of involvement.
17.30 - 18.00 Answers on questionsThe Central Bank of the Russian Federation in corporate relations is a unique “source of law”. On the one hand, most of its documents are advisory in nature, on the other hand, the consequences of violating such “recommendations” can be more than serious. Such a politely caring dad, at the same time, ready at any moment to scold a naughty child not only with a belt, but also with something heavier.
Therefore, we suggest that you take a close look at what the representatives of the Central Bank of the Russian Federation recommend that we do by the next general meeting of shareholders (hereinafter referred to as the GMS), and together think about how best to draw up documents confirming that you follow these recommendations.
Letter from the Central Bank of the Russian Federation regulates cases of holding general meetings of shareholders in the form of joint participation. Recall that this is only one of the possible forms of holding the GMS, provided for by the Law on Joint Stock Companies. It is a joint presence of shareholders to discuss agenda items, incl. the possibility of speeches, and making decisions on them (Article 47, paragraph 11 of Article 49 of the JSC Law).
The letter specifies certain requirements of the Corporate Governance Code (another “recommendatory” act of the Central Bank of the Russian Federation) in terms of creating the most favorable conditions for shareholders to participate in the general meeting, as well as providing them with the opportunity to express their opinion on the issues under consideration. In particular, the Central Bank of the Russian Federation specifically stipulates that the procedure for conducting a general meeting of shareholders (regulations) should provide for equal rights for participants in terms of the opportunity to speak at a meeting or ask questions to speakers. To this end, in preparation for the General Meeting recommended:
1. Analyze the attendance of shareholders at general meetings of shareholders for the previous 3 years. This is done in order to select a suitable venue for the GMS, taking into account the expected maximum attendance of shareholders.
2. Determine when preparing for the OCA its location and the manner in which it is organized in such a way as not to restrict or hinder access(passage) of shareholders to the place of registration for the meeting and directly to the premises intended for its holding.
3. Analyze the activity of shareholders at the AGM for the previous 3 years and determine the duration of the AGM, including based on the estimated maximum number of shareholders who may wish to participate in speeches and discussions on the agenda items of the meeting.
4. If the GMS provides for the possibility participation of shareholders in the discussion of agenda items via video conferencing - notify shareholders in preparation for the AGM.
Which AOs are required to invite the registrar to the general meeting of shareholders? How to implement it? What will the registrar do at the meeting? What composition of the signatories in this case should be indicated in the documents: the minutes and the report of the counting commission, in the minutes of the meeting itself? It turns out that the requirements of the OFAS in this matter sometimes go beyond the requirements of the legislation and clarifications of the Bank of Russia. Details are in the article Participation of the registrar in the general meeting of shareholders» magazine № 11′ 2017
Of course, the approach to holding a general meeting of shareholders should be individual.
A fairly large number of corporations created through privatization have hundreds, thousands, and even tens of thousands of small shareholders with one or two shares in the register, who have never taken part in their activities. Many of these shareholders have either forgotten their shares or are ignoring their rights. Some have already left this mortal world, but their heirs, for various reasons, are in no hurry to formalize the transfer of shares in the register of shareholders. At the same time, decisions in such corporations are made by 2-3 majority shareholders. Why does such a company need a large hall if 4-5 people come to the general meeting of shareholders?
On the other hand, there are modern JSCs, many shareholders of which strive to keep abreast of what is happening in the company, and large public JSCs, whose general meetings are arranged as a show with a free buffet and distribution of memorable gifts. Such companies require large premises to gather everyone who wants to listen to management reports and vote in person.
All this is understandable, and the recommendations of the Central Bank of the Russian Federation, of course, reflect the current practice. However, it is completely unclear from his letter how it is necessary to reflect in the documents of the society that these recommendations were taken into account?
However, before thinking about how to follow the recommendations of the Central Bank of the Russian Federation, let's think about whether this is necessary at all? If you want to minimize the risks - definitely yes. Of course, if the meeting is held in a regular mode, any confirmation that all the recommendations of the Central Bank of the Russian Federation were taken into account during its convening will not be required. But suddenly this time there will be an emergency? For example, will there be 2 times more shareholders than usual? Or will an attack by a corporate blackmailer begin against the organization and complaints will go to the Central Bank of the Russian Federation? You will definitely have to confirm with documents that even at the stage of convening the meeting you tried to take into account possible scenarios.
An analysis of the attendance and activity of shareholders should be carried out at the very first stages of preparation for the GMS. This should be done by the body that prepares for the CCA. According to sub. 2 p. 1 art. 65 of the JSC Law, this issue is referred to the competence of the Board of Directors (Supervisory Board). In companies with less than 50 shareholders - owners of voting shares, this may be another body determined by the charter (clause 1, article 64 of the JSC Law). Therefore, it is natural to conclude that the results of the analysis should also be reflected in the documents of this body - for example, in the minutes or minutes of a meeting of the board of directors. These issues can be considered both during the final meeting dedicated to the preparation of the AGM, and during one of the intermediate meetings. Arguments in favor of holding a separate meeting and, accordingly, fixing its results in a separate protocol:
- firstly, such recommendations should be taken into account when searching for premises, and this process is not very fast, therefore, it is necessary to offer them to the executive body as early as possible;
- secondly, even if the place of the meeting is known in advance (the building of the AO itself, for example) and the recommendations will be deliberately formal, during the meeting dedicated directly to the appointment of the GMS, a large number of issues are resolved. There is no need to load it with additional discussion of formal recommendations;
- thirdly, in a single document, the JSC will have a complete answer to the question of whether the organization has complied with the latest recommendations of the Central Bank of the Russian Federation on the preparation and conduct of the OSA (whether it “missed” them), while nothing more, for which they could “ catch on”, will not be in the protocol.
But a separate meeting is not necessary. Of course, the decision on when and what issues the board of directors will discuss is made by the board of directors.
Recall that the law requires a general meeting of shareholders to be held at least once a year. The required meeting is called annual, and any other meeting - extraordinary. The annual meeting of shareholders is held within the time limits established by the charter of the company. However, paragraph 1 of Art. 47 of the JSC Law defines the boundaries of this period: not earlier than 2 months and not later than 6 months after the end of the financial year.
A joint-stock company must approve the annual financial statements by the general meeting of shareholders, if the company's charter does not refer this to the competence of the board of directors / supervisory board (subclause 11, clause 1, article 48 of the JSC Law). However, in accordance with Part 2 of Art. 18 of the Accounting Law, reporting must be submitted no later than 3 months from the date of the end of the reporting period (calendar year). And it would be logical to submit financial statements to the tax authority that have passed all the corporate procedures for their approval. Then the period of the annual general meeting of shareholders is narrowed to 1 month - March!
Scheme 1
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And the board of directors should decide on the organization of the annual general meeting of shareholders much earlier in order to send notices to its participants about the place, time and other aspects of its holding no later than 20 days before the meeting (clause 1, article 52 of the JSC Law).
Example 1 shows the minutes of the meeting of the board of directors, which reflects the implementation of the recommendations of the letter of the Central Bank of the Russian Federation of December 19, 2017 No. IN-06-28/60. It is a short version of logging:
- only whom they heard about (without fixing the course of the discussion) and
- decisions taken with voting results (without showing who voted how, and without any dissenting opinions).
If there is no conflict of opinions of the participants, then there is no point in reflecting the position of individual members of the collegiate body in the minutes. In any case, the degree of detail of the reflection of the discussion and decisions taken at the meeting is determined by its chairman, and the secretary only executes it.
In the standard format of the protocol, it is customary to first give a numbered list of agenda items, and then put the corresponding number and indicate for each item at least: who was heard about what, what was decided and how they voted for it. But in our situation, there will be only 1 question on the agenda “On determining the place and duration of the annual general meeting of shareholders” (marked with the number 1 in Example 1), and we will place the analysis that the Central Bank requires from us in the “HEARD” section (see . number 2 ibid.).
The annual holding of the annual general meeting of shareholders is the obligation of a joint-stock company, which is enshrined in law. That is why there are strict requirements for the proper preparation of this event and its documentation. Let's try to figure out how to prepare for the general meeting and draw up its minutes.
Clause 1 of Article 47 of Federal Law No. 208-FZ of December 26, 1995 (hereinafter referred to as the Law) prescribes that an annual general meeting of shareholders be held. Requirements for the organization of this event are also specified in this legislative norm. Let's consider how to properly prepare for the general meeting of shareholders (hereinafter referred to as the GMS) and draw up its minutes.
Preparing for the annual OCA
The OCA is the supreme governing body of the society. The frequency of meetings of shareholders is determined by the charter of the joint-stock company. However, the annual meeting must be held no earlier than two months and no later than six months after the end of the financial year.
Help: according to Art. 12 BC RF, the fiscal year is equal to the calendar year. Therefore, the timing of the GMS for 2020 is: 11/01/2017-06/30/2018.
During this event, the co-owners of the business address key issues that determine the future course of the entire company. Among them, for example:
- reorganization and liquidation of the company;
- change and addition of the charter;
- election of the board of directors;
- termination of powers of the board of directors;
- distribution of dividends;
- change in the size of the authorized capital.
The initiators may be the board of directors, company executives, shareholders or other persons who own at least 2% of voting shares in the company's charter capital.
The decision on the collection is made by the board of directors. This is evidenced by subparagraph 4 of paragraph 1 of Art. 65 of the Law. The board of directors also determines other details: the list of participants, date, time. The list of details is clearly defined in Art. 54 FZ-208. Responsibility for preparation also lies with the board of directors.
Formation of the list of participants and their notification
After the decision to hold the meeting is made, it is necessary to form a list of its participants. According to paragraph 1 of Art. 51 of the Law, it must be ready at least 25 days before the date of the event. If the issue of reorganization of the company is raised on its agenda, then this period will be 35 days. Participants must be notified at least 20 days before the scheduled date. If the agenda will address the issue of reorganization, this period is 30 days.
Notification can be made in various ways: by registered mail, in the media, on the company's website, by phone call or email.
Minutes of the annual general meeting of shareholders in 2020
A registrar or notary must be present at the GMS. Their role is to develop the scenario for the event and also to ensure that it is followed in full order. In fact, these specialists are managers. They may also be responsible for the preparation of the protocol.
According to Art. 63 of the Law, the protocol must be prepared no later than three days after the event. The protocol is prepared in duplicate, which must be signed by the secretary and the chairman of the meeting. Its content is regulated by the same article and clause 4.29 of the Regulations on holding meetings of shareholders (approved by order of the Federal Financial Markets Service of Russia dated February 2, 2012 No. 12-6/pz-n). The protocol must include the following information:
- place and time of the event;
- the full name of the joint-stock company and its location;
- type and form of OSA;
- date of compilation of the list of participants;
- the total number of votes held by the owners of voting shares;
- the number of votes held by the participating shareholders;
- information about the chairman and secretary;
- agenda.
The minutes record the main theses of speeches, questions put to vote, its results and decisions taken. In addition, the time of the beginning and end of the counting of votes and the number of votes for each option are indicated. The decisions made must be certified by a notary.
What changes have occurred in the rules for holding the annual general meeting of shareholders in 2016-2017?
What items must be included on the agenda of the annual meeting in 2017?
1. In 2017, the rules for the preparation and holding of the annual general meeting of shareholders are in force, which entered into force on July 1, 2016. Effective July 1, 2016, Federal Law No. 208-FZ of December 26, 1995 “On Joint Stock Companies” amended the rules for holding a general meeting of shareholders (hereinafter referred to as the JSC Law). These changes are relevant for 2017.
a) The General Meeting of Shareholders cannot be held without a prior decision on it. Such a decision is within the competence of the board of directors of the JSC (subclause 2, clause 1, article 65 of the JSC Law). The Board of Directors decides on the meeting of shareholders, manages the preparation and holding (Subclause 4, Clause 1, Article 65 of the JSC Law). If the JSC does not have a board of directors, all these functions are assumed by a person or body specially prescribed in the charter (clause 1, article 64 of the JSC Law).
b) The Board of Directors specifies all the important points in the resolution on the meeting. What kind of general meeting of shareholders to hold: annual or extraordinary. When, where and what time to hold, when to start registering participants. In addition, the decision determines: when the list of participants should be ready; What is the meeting agenda? how to inform attendees about the meeting; what is included in the list of information for participants; holders of what types of preferred shares can vote at the meeting. The agenda depends on the type of meeting and the range of topical issues.
c) The annual meeting of shareholders in 2017 must be held on the same dates as before. The dates when a JSC holds meetings are fixed in its charter, they can be set within the limits from March 1 to June 30 (clause 1, article 47 of the JSC Law). For extraordinary meetings, the rule applies: they are held within a period of 40 days from the moment the meeting was requested. If they choose a collegial management body, no more than 75 days must pass from the receipt of the request for a meeting to the meeting itself (clause 2, article 55 of the JSC Law).
d) The decision on the annual meeting was made, the date was determined. After that, a list of participants is formed. It is necessary to set the date of readiness of this list taking into account that date of the decision on the meeting. The interval between them must be at least 10 days. The list must be ready no later than 25 days before the meeting (clause 1, article 51 of the JSC Law). If they are elected to the board of directors of a JSC, no more than 55 days should pass from the decision on the meeting to the date of compiling the list. The date of readiness of the list is set no more than 35 days before the meeting, if the meeting is devoted to the reorganization of the JSC.
e) In 2017, the same deadlines for notifying shareholders of the upcoming AGM will apply. At the same time, it should be borne in mind that from July 1, 2016, the period for notifying shareholders was reduced (clause 1, article 52 of the JSC Law) if the meeting is devoted to: elections to the board of directors; reorganization issues; elections to the collegial governing body of the new JSC. In such cases, the period for notifying shareholders is no later than 50 days before the meeting.
f) In 2017, the shareholder notification rules, which began operating on July 1, 2016, continue to apply. Shareholders must be notified by registered mail or delivery against signature. At the same time, the charter of a JSC may contain other ways of notifying the general meeting of shareholders: through the media or the company's website; by email; by written communication over the phone.
7) In 2017, general meetings of shareholders, including annual ones, can be attended remotely. For this, modern communication technologies are used. Remote participants can discuss agenda items and vote if it is allowed by the charter (clause 11 of article 49, clause 1 of article 58, article 60 of the JSC Law). Voting of remote participants is provided by means of electronic ballots.
h) According to Art. 63 of the JSC Law, the minutes of the general meeting of shareholders are drawn up within three days after the meeting. The minutes are prepared in duplicate, the chairman of the meeting and the secretary must endorse both copies of the minutes. The minutes indicate: the date and time of the meeting, the agenda, the total number of votes, etc. In addition, in accordance with clause 4.29 of the Regulations on holding meetings of shareholders (approved by order of the Federal Financial Markets Service of Russia dated February 2, 2012 No. 12-6 / pz- m) the protocol must contain: the full name of the JSC and its location; collection type; the form of the meeting; date of compilation of the list of participants; the number of votes for each of the voting options; the time when the counting of votes began, if the shareholders were notified of the voting results immediately at the meeting. The decision of the meeting must be certified by a notary.
2. According to paragraph 2 of Art. 54, paragraph 1 of Art. 47 of the Federal Law of December 26, 1995 N 208-FZ "On Joint-Stock Companies" (hereinafter referred to as the JSC Law), the agenda of the annual general meeting of shareholders must necessarily include issues on the election of the board of directors (supervisory board) of the company, the audit commission (auditor) company, the approval of the auditor of the company, as well as the issues provided for in paragraphs. 11 p. 1 art. 48 of the JSC Law (on the approval of annual reports, annual financial statements, including profit and loss statements (profit and loss accounts) of the company, on the distribution of profits (including the payment (declaration) of dividends, with the exception of profit distributed as dividends based on the results of the 1st quarter, half a year, nine months of the financial year) and losses of the company based on the results of the financial year.
Sergei Karulin, Vladislav Dobrovolsky,
How to hold the next general meeting of participants
At least once a year, LLC participants must be directly involved in the management of the company, meeting at the next general meeting.
The general meeting of participants is the supreme governing body in an LLC (clause 1, article 32 of the Federal Law of February 8, 1998 No. 14-FZ "On Limited Liability Companies"; hereinafter - the Law on LLC).
An LLC lawyer needs to know how to prepare a meeting, conduct it and formalize its results so that later the decisions of the participants are not invalidated.
Attention: for violation of the requirements for the preparation and holding of the meeting, the organization and its officials may be fined.
Failure to comply with the requirements for the preparation and holding of the general meeting of participants described below may result in the invalidation of the decision of the general meeting of participants of the LLC, as well as the imposition of a fine on the company - in the amount of 500 thousand to 700 thousand rubles, on officials - in the amount of 20 thousand up to 30 thousand rubles (Part 11, Article 15.23.1 of the Code of Administrative Offenses of the Russian Federation).
Attention: the charter of the company may provide for a special procedure for convening, preparing and holding general meetings of participants, and making decisions by them.
This procedure may differ from that established by law.
At the same time, the new procedure should not deprive participants of the right to participate in the meeting and receive information (subclause 5, clause 3, article 66.3 of the Civil Code of the Russian Federation).
Dates and frequency of the meeting
The next general meeting of participants must be held within the time limits specified by the charter, but at least once a year.
Thus, the regular meeting is not always only the annual meeting.
If the next meeting is planned to be held once a year, then it will need to approve the annual results of the company's activities. The law establishes a special requirement for such a meeting (with such an agenda): it must be held from March 1 to April 30. However, in fact, the meeting is better to have time to hold no later than three months after the end of the year.
Situation: when is the best time to hold an annual general meeting to approve the annual results of an LLC
To answer this question, it is necessary to take into account the requirements not only of the LLC Law, but also of the Federal Law of December 6, 2011 No. 402-FZ “On Accounting”; hereinafter referred to as the Accounting Law.
Thus, the meeting must be held no earlier than two months and no later than four months after the end of the financial year (Article 34 of the LLC Law).
The concept of "fiscal year" is not defined in the legislation. But the concept of "reporting year" ( ) has been established. The reporting year is a calendar year - from January 1 to December 31 inclusive. Financial statements are prepared for the reporting year. Thus, the financial year is understood as the reporting year, which in turn coincides with the calendar year. This means that the meeting should be held from March 1 to April 30.
But there is one more requirement. Annual reports must be submitted to the state statistics authority within three months after the end of the year (clause 2, article 18 of the Accounting Law). At the time of submission, it must be approved by the general meeting (clause 9, article 13 of the Accounting Law).
To comply with this requirement, the meeting must be held no later than three months after the end of the year.
If regular meetings are planned to be held several times a year, then it is necessary to indicate at which of them the annual results of the activity will be approved. Such a meeting must also be held within the period mentioned above.
Even if the LLC consists of one participant, the deadlines for approving the annual results of the company's activities must be observed ( ).
Approval of the LLC's annual performance results is within the exclusive competence of the general meeting of participants ( ).
The procedure for convening a general meeting of the company's participants is defined in the LLC Law. Also, separate requirements may be provided for by the charter of the company.
The executive body of the company (director or board) prepares, convenes and holds the next general meeting of participants. These issues can be referred to the board of directors, if this is expressly fixed in the charter (hereinafter referred to as the person authorized to hold the meeting of participants, the director is indicated).
Attention: From September 1, 2014, a company may have several directors. The authority to prepare, convene and hold a general meeting of participants may be assigned to one of them on the basis of the charter or other internal document of the company.
Such a rule is established in paragraph 3 of Article 65.3 of the Civil Code of the Russian Federation.
The law allows dividing the powers of the sole executive body into several persons. At the same time, society can independently decide how exactly they will act - jointly or independently of each other - and what powers each of them will exercise.
Information about the presence of several directors should be in the Unified State Register of Legal Entities.
Notifying attendees of a meeting
At least 30 days before the date of the meeting, the director must notify each participant of this by registered mail to the address indicated in the list of participants.
The charter may provide for a shorter period for notifying participants of the meeting (clause 4, article 36 of the LLC Law).
In addition, the articles of association may provide for another method of notifying participants of the meeting. For example, an announcement about this in a mass media (media) determined by the participants.
It is best to send notification by insured letter, a description of the attachment, and an acknowledgment of receipt.
This is not required by law, but if a dispute arises, the company will have to prove that the participant was duly notified of the meeting (decree of the Federal Antimonopoly Service of the North-Western District of April 2, 2009 in case No. A56-16863 / 2007). It will be possible to confirm by the inventory of the attachment that the notification was sent to the participant, and not any other correspondence or blank sheets (decree of the Federal Antimonopoly Service of the Volga District of February 27, 2009 in case No. A12-11698 / 2008). Judicial practice confirms that the proof of proper notification is a postal receipt for sending a valuable letter with a list of attachments (decree of the Federal Antimonopoly Service of the Moscow District dated March 31, 2011 No. KG-A41 / 2517-11-P-1.2 in case No. A41-1635 / 10 and 20 January 2010 No. KG-A40/14003-09 in case No. A40-44834/09-83-352).
If the charter provides for notification by registered mail, then in order to formally comply with the requirement of the charter, in addition to the valuable letter, you must send a registered letter with a return receipt. For a registered letter, an inventory of attachments is not drawn up. Such a rule is established in paragraph 10 of the Rules for the provision of postal services, approved by order of the Ministry of Telecom and Mass Communications of Russia dated July 31, 2014 No. 234, and in the List of types and categories of registered mail items accepted with a list of attachments, with a notification of delivery, with cash on delivery (approved by order of the Federal State Unitary Enterprise "Post of Russia" dated July 6, 2005 No. 261).
Also, given that there are usually few members in an LLC, notifications can be sent by courier. In this case, on the copy of the notification, you need to get the addressee's mark of receipt: a signature with a transcript and the date of receipt.
Before sending notifications, it is necessary to check the relevance of the list of participants.
It is possible that since the date of the last update of the list, some participants have changed their address or the participants themselves have changed, but information about this has not yet been received by the society.
You can check the relevance by contacting the participants, especially those who have recently planned to make a deal to alienate the share. You can also get a fresh extract from the Unified State Register of Legal Entities.
Otherwise, a disputable situation may arise if a participant appears at the meeting, information about which is not yet in the list of participants, or one of the LLC participants does not find out about the meeting. A participant who was not present at the meeting may apply to the court with a request to recognize the decision taken as invalid.
At the same time, it must be remembered that if the participant does not provide information about the change in information about himself, the company will not be liable for the losses caused in connection with this ( ).
Situation: what should be contained in the notice of the next general meeting of shareholders
The notice must contain:
- the time of the meeting (we also recommend that you indicate the start and end times for registration of participants who arrived at the meeting);
- place of the meeting. The notice must contain the exact address of the meeting place, up to the office, hall, etc. This is confirmed by judicial practice ( );
- meeting agenda ( ).
In addition, the notification can remind the participants that for registration it is necessary to present a passport or other identification document, and that a properly executed power of attorney is required to participate in the meeting of a representative (clause 2, article 37 of the LLC Law).
The notification must be accompanied by information and materials corresponding to the agenda. So, if the issue of approving the annual results of activities is on the agenda, you need to attach the annual report (and, if necessary, also the conclusions of the audit commission (auditor) and the auditor based on the results of the audit of annual reports and annual balance sheets of the company).
Situation: in what cases before the general meeting of participants of the LLC it is necessary to draw up the conclusion of the audit commission and the auditor's report
If the formation of an audit commission (election of an auditor) is provided for by the charter or is mandatory, the general meeting is not entitled to approve annual reports and balance sheets in the absence of the opinions of the audit commission or auditor (clause , Law on LLC).
In companies with more than 15 participants, the formation of an audit commission (election of an auditor) of the company is mandatory (clause 6, article 32 of the LLC Law).
The involvement of an auditor is mandatory if it is provided for by law.
The cases of conducting a mandatory audit are defined in the “On Auditing Activities”.
In addition, in some cases, the obligation to conduct an audit is established by other laws, including:
- for developers - in the Federal Law of December 30, 2004 No. 214-FZ "On participation in shared construction of apartment buildings and other real estate and on amendments to certain legislative acts of the Russian Federation";
- for organizers of gambling - in the Federal Law of December 29, 2006 No. 244-FZ "On State Regulation of Organizing and Conducting Gambling and on Amendments to Certain Legislative Acts of the Russian Federation";
- for organizers and operators of lotteries - in "About lotteries".
If the question is about the election of the board, board of directors, audit commission (auditor), then information about candidates for these positions must be attached to the notification. If the issue of amending the charter is raised, then we attach the draft amendments (additions) or the draft charter in a new edition. If you need to approve the company's internal documents, we attach their drafts.
In this case, the charter may provide for a different procedure for familiarizing the participants with the materials.
Violation of the above rules may become the basis for declaring the decision of the meeting invalid (determination of the Supreme Arbitration Court of the Russian Federation of May 27, 2011 No. VAS-6214/11; decision of the Federal Antimonopoly Service of the Central District of June 30, 2009 in case No. A62-5672 / 2008).
Situation: is it possible to hold a general meeting of participants of the company outside the location of the company
Yes, subject to certain conditions.
The law does not prohibit holding a meeting within the boundaries of a settlement (city, township, village) that is the location of the company, unless the charter provides for a specific place for holding the meeting.
An assembly can be held outside this settlement only on the condition that the participants will have a real opportunity to participate in it and such participation will not be burdensome for them (for example, due to the inaccessibility of the place, unjustified expenses and other circumstances).
Otherwise, the decision of the meeting may be invalidated. This is indicated by the Supreme Arbitration Court of the Russian Federation in the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 22, 2011 No. 13456/10.
If the charter specifies a specific place for the meeting, then the meeting must be held at that place.
Changing the original agenda
Any member of the company has the right to make proposals on the inclusion of additional issues in the agenda of the general meeting of members of the company at least 15 days before the date of the meeting. This deadline is set taking into account the fact that after receiving proposals from participants, the director must consider them, decide on their inclusion in the agenda and notify other participants of additional issues.
Thus, if the proposal of the participant was received by the company no later than 15 days before the date of the meeting, an additional issue may be included in the agenda. If the proposal arrives later, the director will have the right not to include it in the agenda.
The charter may provide for a shorter period for making proposals to the agenda (clause 4, article 36 of the LLC Law).
The director includes in the agenda the issue proposed by the participant, if it falls within the competence of the general meeting of participants and complies with the law, while he cannot change the wording of the issues.
If an additional issue meets the established requirements, but the director did not include it on the agenda, the participant may, in court, declare such a decision illegal and force the company to include the proposed issue on the agenda of the general meeting of participants (paragraph 21 of the resolution of December 9, 1999 of the Plenum of the Supreme Court of the Russian Federation No. 90, Plenum of the Supreme Arbitration Court of the Russian Federation No. 14 “On Certain Issues of the Application of the Federal Law “On Limited Liability Companies””; hereinafter, Resolution No. 90/14).
Situation: whether participants need to be notified of changes to the original agenda
Yes, definitely.
The director is obliged not less than 10 days before the date of the meeting to notify all participants of the company about the changes made to the agenda by registered mail (preferably with acknowledgment of receipt) to the address indicated in the list of participants in the company (paragraph 4, clause 2, article 36 LLC Law). Since the inventory of attachments is not issued for registered letters, the shipment can also be duplicated by a letter with a declared value with an inventory of the attachment and a return receipt.
The charter may provide for a shorter period for notifying participants of a change in the agenda (clause 4, article 36 of the LLC Law).
The notice must contain additional items included in the agenda. The notification must be accompanied by information and materials corresponding to the agenda.
Information and materials to be sent to participants within 30 days prior to the date of the meeting must be available for review by all participants of the company at the location of the director of the company.
At the request of participants, the director provides copies of documents, their cost for participants cannot exceed the costs of their production.
In case of non-compliance with the procedure for convening a general meeting of participants described above (the procedure for notifying participants, determining the agenda of the meeting and other conditions), such a meeting will be eligible if all participants in the company participate in it (clause 5, article 36 of the LLC Law).
Holding a meeting
The procedure for holding a general meeting of participants in a company is defined in the Law on LLC. Also, individual requirements may be provided for by the charter of the company, internal documents of the company or by the decision of the meeting itself.
Attention:
This rule establishes subparagraph 3
To comply with it, you need:
- contact a notary or
- use another confirmation method.
Notary confirmation
Society needs:
- charter of the company;
- );
Such a list is given in part 3 by the resolution of the Supreme Council of the Russian Federation dated February 11, 1993 No. 4462-1 of the corporate agreement).
):
Other confirmation methods
sub. 3 p. 3 art. 67.1 of the Civil Code of the Russian Federation):
- in the statute or
- in the decision of the general meeting of participants, adopted unanimously. Thus, when considering one of the disputes over the registration of amendments to the charter, the Arbitration Court of the West Siberian District indicated: “since the decision to choose a different method of confirmation was made by all participants in the LLC ... unanimously, the notarization of the protocol ... signed by all participants in the company, in was not required in the case under consideration” (decision dated September 28, 2015 No. F04-23439/2015 in case No. A27-2907/2015).
Bylaw clause examples
The form of the meeting. The next meeting of participants is usually held in person, that is, with the convocation of all participants, joint discussion of agenda items and voting. But the law allows it to be held in absentia (by poll) in compliance with the requirements of the LLC Law.
At the same time, the meeting at which the annual results of the company's activities will be approved can only be held in person (clause 1, article 38 of the LLC Law).
Registration of arriving members of the society. Registration is usually carried out by the director or another person appointed by him. Registration must be done prior to the opening of the meeting. In fact, it comes down to a written record of the fact of the arrival of a particular participant after checking his credentials.
Situation: how to appoint a person to register participants who arrived at the next general meeting
The decision of the director to instruct a specific person to register the participants who arrived at the meeting is better to issue an order or instruction (another form of the director’s decision can be determined by the charter or internal document of the company, for example, the job description of the general director).
Subsequently, in the event of a dispute regarding the participation of specific participants in the meeting, the registration sheet will confirm that the participant was present at the meeting, and the order will confirm that the registration of the participant was carried out not by an accidental, but by an authorized person. This person can also be called to court as a witness.
The formulation of the solution may be as follows:
"I order:
1. To the lawyer of OOO "Romashka" Lyutinova Natalia Ivanovna to register the participants who arrived at the extraordinary general meeting of participants of OOO "Romashka", scheduled for February 15, 2012.
When registering, check the credentials of the arriving persons and record information about them in the Registration Sheet, the form of which is approved by this order.
Venue of the meeting: Moscow, st. Builders, d. 25, of. 12.
Check-in behavior time: 11:30–12:00.
Meeting start time: 12:00.
2. Approve the form of the Registration Sheet in accordance with Appendix No. 1 to this order.
Attachment to the order:
Registration sheet»
When registering arriving participants, you must use the registration sheet.
The form of such a sheet is not approved, but usually it indicates the date, time and place of the meeting, the start and end of registration, full name. or the name of the arriving participants, passport data of the participants (representatives). If the meeting was attended not by the participant himself, but by his representative, then it is better to fix the details of the power of attorney in the sheet. In the corresponding column, each participant (representative) puts a personal signature.
The completed registration sheet will be an annex to the minutes of the general meeting of the company's participants.
Unregistered participants are not allowed to vote (clause 2, article 37 of the LLC Law).
Participants of LLC have the right to take part in the meeting both personally and through representatives.
The representative of the participant must present a document confirming his proper authority. The power of attorney issued to the representative of the participant must contain information about the represented and the representative (name or title, place of residence or location, passport data), must be certified by the signature of the head and the seal of the organization or notarized (paragraph 2 of article 37 of the Law on LLC).
For an LLC participant: it is better to specify the powers of the representative in the power of attorney as detailed as possible. Otherwise, he may not be allowed to vote, or the representative may go beyond the powers that the participant wanted to transfer to him.
To the person who registers the participants who arrived at the meeting: the law establishes that representatives of the company's participants must present documents confirming their proper authority (clause 2, article 37 of the LLC Law). In this regard, the person who registers participants has every right to require representatives to provide such documents.
You must carefully check the information specified in the power of attorney, including:
- information about the principal and authorized person (including the correspondence of the information specified in the power of attorney to the passport data of the authorized person);
- the period for which the power of attorney was issued (if it is not specified, then the power of attorney is valid for one year (clause 1, article 186 of the Civil Code of the Russian Federation));
- completeness of powers (the power of attorney should provide for the transfer of powers to participate in the meeting and vote on agenda items, as well as on the issue of electing the chairman. A power of attorney with a general wording (to represent the interests of the participant in all bodies and organizations) is not suitable).
The power of attorney or its certified copy must be kept.
If a participant who is a legal entity is acted by its head, he must also confirm his authority (with a certified copy of the protocol or decision on his appointment (extract from it) or an extract from the Unified State Register of Legal Entities). It is best to remind meeting participants of this requirement in advance to avoid conflicts.
Documents confirming the authority of the representative must be kept.
In addition, the company itself can order extracts from the Unified State Register of Legal Entities in advance for its participants - legal entities. In this case, the society will know up-to-date information about the leaders in such organizations.
At the same time, it must be remembered that after receiving such an extract, the head of the participating company may be re-elected. In this case, his authority will be confirmed by the protocol or the decision on his appointment (extract from it), since changes to the Unified State Register of Legal Entities may not yet be made.
A power of attorney issued by way of substitution must be notarized (Clause 3, Article 187 of the Civil Code of the Russian Federation).
If the proxy contains errors or inaccuracies and does not give the proxy the right to represent a member at the meeting, such representative should not be allowed to vote.
Refusal to recognize the authority of a representative and to admit a meeting may not be formalized; the law does not establish such a requirement. The Company is not responsible for the fact that the participant, who was duly notified of the meeting, did not take care of the attendance of the authorized representative at the meeting.
Nevertheless, if the refusal is motivated and legal, it is better to reflect this in the minutes of the meeting: in the section where the persons who took part in the meeting and the quorum are indicated, it can be indicated that persons were not allowed to participate in the meeting due to improper execution of documents, confirming their authority to act on behalf of the participants.
The procedure for refusing admission to a meeting can be fixed in an internal document, for example, in.
Opening of the meeting. The meeting must open at the time specified in the notice of the meeting.
If all members of the company registered before the appointed time, then the meeting can be opened earlier (clause 3, article 37 of the LLC Law).
The meeting is opened by the general director or chairman of the board (clause 4, article 37 of the LLC Law). If the meeting is convened by the board of directors (supervisory board), then it is opened by the chairman of the board of directors.
Situation: how to appoint a chairman of the meeting of participants
It must be selected from among the participants.
The person opening the meeting elects the chairman from among the members of the company.
The decision on this issue is taken by the participants by a majority vote of the total number of votes of the participants who have the right to vote at this meeting. Each member of the meeting has one vote.
The charter may provide for a different procedure for electing the chairman (clause 5, article 37 of the LLC Law).
Keeping minutes of the meeting. The record keeping is organized by the executive body of the company (clause 6, article 37 of the LLC Law). This may be the general director or the board, depending on whose competence the charter refers to this issue. Another person, for example, the secretary of the meeting, can directly keep the minutes, if such duties are assigned to him (by order of the general director or the board).
Situation: how to issue the powers of the secretary of the general meeting
The law does not specify exactly how to do this, so you can use one of the following methods:
- introduce the position of “Corporate Secretary of the Company” into the staff list and hire an employee for it;
- the secretary may be appointed by the general director by his order;
- a secretary may be elected at the opening of the meeting.
The position of “Corporate Secretary of a Joint Stock Company” was introduced into the Qualification Directory for the Positions of Managers, Specialists and Other Employees by Order of the Ministry of Health and Social Development of Russia dated September 17, 2007 No. 605 “On Amendments to the Qualification Directory for the Positions of Managers, Specialists and Other Employees”. It defines the job responsibilities, required training and qualification requirements for a corporate secretary.
However, the election of a secretary at the meeting will be of greater importance compared to other options, since in this case the participants directly express their will and entrust the maintenance and signing of the protocol to a specific person.
Decisions are taken unanimously or by majority vote. In this case, the majority of votes is calculated from all the votes of the company's participants, and not only from the votes of those participants who are present at the meeting ( ). Thus, if participants with a simple majority of votes (50% and one vote) of the total number of votes do not participate in the meeting, then it will be impossible to make a decision on any issue.
The decision of the meeting, adopted on issues not included in the agenda (except for the case when all participants were present at the meeting), or without the majority of votes of the participants necessary for making a decision, is not valid, regardless of whether such a decision is appealed in court (clause 6 article 43 of the LLC Law).
Decisions taken unanimously. Unanimously, the participants make decisions on the issue of reorganization or liquidation of the company, as well as in cases provided for in the Law on LLC.
On the question of whether it is possible to expand the list of issues in the charter, on which the participants must decide unanimously, judicial practice diverges.
Decisions taken by qualified majority. The decision on the issue of changing the charter of the company, including changing the size of the authorized capital of the company, the participants take at least 2/3 of the votes of the total number of votes of the participants in the company. The Articles of Association may provide that a larger number of votes is needed to make a decision on this issue.
In addition, by a qualified majority, the participants decide on issues provided for in the LLC Law. .
Additional issues, the decision on which must be taken by a qualified majority, may be provided for by the articles of association.
Decisions taken by simple majority. By a simple majority, the participants decide on all other issues. At the same time, the articles of association may provide that a larger number of votes is required to make a decision on certain issues (for which, according to the law, a simple majority of votes is sufficient).
Decisions that are made without the required majority of votes of the company's participants are not valid, regardless of whether they were appealed in court (clause 6, article 43 of the LLC Law). This is confirmed by judicial practice (clause 24 of resolution No. 90/14; resolution of the Federal Antimonopoly Service of the Moscow District dated June 30, 2011 No. KG-A41 / 4489-11 in case No. A41-10523 / 09).
Participants make decisions by open voting, that is, the choice of participants is not hidden, they can see how other participants vote. In this case, the charter may provide for a different voting procedure, for example, by ballots. The law does not oblige participants to vote by ballot, but in the event of a dispute, this will completely exclude the possibility of a participant to refer to the fact that he voted in a different way or did not participate in the meeting at all.
Situation: if a counting commission has not been established in the company, who can perform its functions
The functions of the counting commission may be performed by the chairman of the meeting, the secretary or another person authorized to do so.
This issue can be settled in the Regulations on the General Meeting of Participants.
If this is not regulated by the internal document of the company, then a specific person can be authorized by order of the general director or by a decision of the general meeting of participants.
Conducting cumulative voting. Cumulative voting may be held on the issues of electing members of the board of directors (supervisory board), members of the collegial executive body (management board) and (or) members of the audit commission. Such a voting procedure should be enshrined in the charter (clause 9, article 37 of the LLC Law).
Situation: how to conduct cumulative voting
2. Each member shall, at his own discretion, give the votes he possesses to the candidates chosen by him. At the same time, he can both give all the votes for one candidate, and distribute them to several candidates.
3. Candidates who received the largest number of votes are considered elected to the respective position.
If the decision of the general meeting of participants is contested, the court may, taking into account all the circumstances, uphold the appealed decision if the vote of the participant who filed the application could not affect the results of the vote, the violation committed is not significant and the decision did not cause losses to the participant of the company who filed the claim (Clause 2, Article 43 of the LLC Law; Paragraph 4, Clause 22 of Resolution No. 90/14). The court determines the materiality of the violation at its discretion.
Sergei Karulin, Chief Legal Counsel of JSC "Reestr", Vladislav Dobrovolsky, candidate of legal sciences, author of the course of practical jurisprudence "Algorithms of law" (www.dobrovolskii.com), in 2001–2005. – Judges of the Moscow Arbitration Court
How to draw up a decision of the general meeting of participants in an LLC
Failure to comply with the requirements for the design and content of the decision of the general meeting of participants, in conjunction with other circumstances, often becomes the basis for canceling the decision of the meeting. The company's lawyer needs to ensure that in the event of a corporate conflict, the decision made could not be invalidated.
Attention: from September 1, 2014, it is necessary to confirm in a notarial or other acceptable manner the fact that the general meeting of participants made a decision, and the composition of the participants present at the same time.
This rule is established by subparagraph 3 of paragraph 3 of Article 67.1 of the Civil Code of the Russian Federation.
To comply with it, you need:
- contact a notary or
If this is not done, then the decision of the meeting will be considered void (paragraph 3, clause 107 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 No. 25 “On the application by the courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation”).
However, the confirmation rule does not apply to cases where the decision is made by:
- general meeting of participants by absentee voting or
- the sole member of the society.
Notary confirmation
Society needs:
- invite a notary to the place where the meeting will be held, or
- arrange with a notary to hold a meeting right at his place (for example, in a notary's office).
In this case, the notary must submit the following documents:
- charter of the company;
- an internal document of the company that establishes the procedure for holding a meeting (for example, the regulation on the general meeting of participants);
- the decision to hold the meeting and approve the agenda;
- a document confirming the authority of the applicant to organize the meeting (if they do not follow from other submitted documents).
Such a list is given in Part 3 of Article 103.10 of the Fundamentals of the Legislation of the Russian Federation on Notaries, approved by Resolution of the Supreme Council of the Russian Federation of February 11, 1993 No. 4462-1 (hereinafter referred to as the Fundamentals of Legislation on Notaries). True, this list provides for one more item - "other documents necessary to determine the competence of the governing body of a legal entity and the quorum of a meeting or meeting." Therefore, it is possible that the notary will require the submission of additional documents (for example, information on the existence of a corporate agreement).
Following the results of the general meeting, the notary issues a certificate (Part 1 of Article 103.10 of the Fundamentals of Legislation on Notaries):
- on the certification of the fact that the meeting has adopted a decision;
- about the composition of the participants who were present at the same time.
Other confirmation methods
The law allows not to fulfill the requirement for notarization, if the participants have provided for a different method of confirmation (subclause 3, clause 3, article 67.1 of the Civil Code of the Russian Federation):
- in the statute or
- in the decision of the general meeting of participants, adopted unanimously.
By another method of confirmation, we mean:
- signing of the protocol by all or individual members of the company;
- the use of technical means to reliably establish the fact of a decision (audio, video, etc.);
- other ways that do not contradict the law (the law does not establish any restrictions).
Thus, the participants can choose how to confirm the decision and the composition of the participants. In fact, there are the following options:
- make a decision to amend the charter, fixing in it the most convenient procedure for confirmation (for example, certification of the minutes with the signatures of the chairman and secretary of the meeting, who are members of the company);
- decide on the method of confirmation each time the general meeting is held. This method is applicable if the participants always meet in full force;
- contact a notary to confirm the decision at the meetings of participants and the composition of the participants.
Formally, another option will also comply with the requirements of the law: you can hold a meeting, which will be attended by all participants in the company, and unanimously decide on the method of confirmation (without amending the charter). In this case, at subsequent meetings, 100% attendance of participants will no longer be required, in decisions it will be possible to simply make a reference to this protocol and attach a copy of it.
However, the court may interpret the law in a different way - that the method of confirmation must be provided for in the very decision that is confirmed. In order to avoid disputes, it is better not to use this method until the jurisprudence on this issue has developed.
In general, the requirement to involve a notary is directed against the falsification of decisions. Its presence makes the forgery process difficult. When replacing the protocol with the use of a notary's seal, it will be enough to prove only the fact that the notarial act is not listed in the notary's register.
For societies in which decisions are made by a single member, these requirements do not apply, since they are established only in relation to meetings.
Bylaw clause examples
Confirmation by signatures of all participants
4.2. In accordance with paragraph 3 of Article 67.1 of the Civil Code of the Russian Federation, the adoption of a decision by the general meeting of the Company's participants and the composition of the Company's participants who were present at its adoption are confirmed by the signing of the minutes by all participants present at the meeting.
Confirmation by signatures of individual participants
4.2. In accordance with paragraph 3 of Article 67.1 of the Civil Code of the Russian Federation, the adoption of a decision by the general meeting of the Company's members and the composition of the Company's members present at its adoption are confirmed by the signing of the minutes by the chairman and secretary of the meeting, who must be members of the Company.
Confirmation using technical means
4.2. In accordance with paragraph 3 of Article 67.1 of the Civil Code of the Russian Federation, the adoption of a decision by the general meeting of the Company's participants and the composition of the Company's participants who were present at its adoption are confirmed by a video recording made during the meeting. The video CD is attached to the protocol.
Confirmation in another way (signatures of individuals)
4.2. In accordance with paragraph 3 of Article 67.1 of the Civil Code of the Russian Federation, the adoption of a decision by the general meeting of the Company's participants and the composition of the Company's participants who were present at its adoption are confirmed by the signing of the minutes by the chairman and secretary of the meeting. Article 181.2 of the Civil Code of the Russian Federation.
Thus, the minutes of the general meeting of LLC participants held in person must contain the following information:
- date, time and place of the meeting;
- information about the persons who took part in the meeting;
- information about the persons who voted against the adoption of the decision of the meeting and demanded to make an entry about this in the minutes.
The minutes of the general meeting of LLC participants held in absentia must contain the following information:
- the date until which the documents containing information about the voting of members of the civil law community were accepted;
- information about the persons who took part in the voting;
- results of voting on each item on the agenda;
- information about the persons who conducted the counting of votes;
- information about the persons who signed the protocol.
In addition, the law contains some guidance for individual cases, in particular for the decision by which the participants approve a major transaction or a transaction with an interest.
In addition to the specified mandatory information, other information can also be included in the protocol.
The requirements for the execution of the minutes of the general meeting of shareholders are established in the Federal Law of December 26, 1995 No. 208-FZ "On Joint Stock Companies" (hereinafter - the Law on JSC) and
Situation: what are the consequences of drawing up the minutes of the general meeting of participants in an LLC in free form without complying with the requirements established for joint-stock companies
The decision of the meeting may be declared invalid (subclause 4, clause 1, article 181.4 of the Civil Code of the Russian Federation).
Thus, if all members of the company made a decision unanimously and do not change their position in the future, documenting the decision in a free form will not entail negative consequences.).
Thus, the company may need to prove the participation of a dissatisfied participant in the general meeting, the presence of a quorum, confirm the agenda or the results of voting. It will be much easier to do this if the minutes of the meeting were properly drawn up. In addition, the company's position will be strengthened by a document confirming that the participant has been registered (for example, a registration sheet).
An example from practice. The court refused to invalidate the decisions of the meeting, taken in the absence of the plaintiffs, since it is documented that the plaintiffs arrived at the meeting, but then left it without reason
Citizen B. (participant of the company) filed a lawsuit against the company LLC “L.” and citizen M. to invalidate the decision of the general meeting of the company's participants, drawn up by the minutes of August 30, 2009.
As established by the court, at the appointed time all the participants of the society appeared at the meeting. This was fixed in the registration sheet (if the registration sheet is not compiled, this data can be indicated in the protocol). Thus, there was a quorum.
The members of the society, citizen Ts., and representatives of citizen B., after arriving at the meeting, refused to take part in it and left the meeting place. Voting on agenda items was held without them.
Subsequently, citizen B., whose representatives left the meeting, filed a lawsuit demanding that the decision of the meeting be declared invalid, since it was adopted without the participation of her representatives and citizen Ts., and, therefore, in the absence of a quorum and in violation of the current legislation.
However, the courts of the first, appeal and cassation instances, based on the minutes of the general meeting of participants and the registration sheet, refused to satisfy the claims, pointing out that all the participants of the company arrived at the meeting. The fact that citizen Ts. and representatives of citizen B. left the meeting without sufficient grounds does not mean that the decision could not be made , by the decision of the Supreme Arbitration Court of the Russian Federation of September 30, 2010 No. VAC-10372/10, it was refused to transfer the case to the Presidium of the Supreme Arbitration Court of the Russian Federation for review by way of supervision).
An example from practice. Lateness of the participant to the beginning of the meeting does not deprive him of the right to vote on agenda items, decisions on which have not yet been made. Decisions made taking into account the votes of such a participant are not invalid
Citizen B-ts filed a lawsuit against A. LLC, citizen N. and citizen G. to invalidate the decision of the extraordinary general meeting of participants of the company dated February 12, 2009.
As established by the court, not all members of the society came to the meeting at the appointed time, citizen B. was late, and decisions on the first two issues on the agenda were made without him. Upon arrival at the meeting, he participated in the voting on the third and subsequent issues on the agenda, data on this are included in the minutes.
Some time after the meeting, citizen B-ts decided to challenge in court the decision taken at the general meeting on the third issue on the agenda. Citizen B-c argued that citizen B-n had no right to vote on the third issue on the agenda, because he was late for the registration, which was held before the meeting, and the remaining participants did not have enough votes to make a decision on the third issue.
However, the courts of the first, appeal and cassation instances, based on the minutes of the general meeting, refused him, pointing out that citizen B. had the right to take part in the meeting and vote when deciding on the third issue. Thus, the contested decision was made in compliance with the current legislation, that is, in compliance with the established rules on the quorum for voting (decree of the Federal Antimonopoly Service of the North-Western District of March 4, 2010 in case No. А56-24028/2009).
An example from practice. Since the plaintiff took part in the meeting and voted “for” the disputed decision, he has no right to challenge it
Citizen B. filed a lawsuit against a citizen of the city, OOO I., MIFNS of Russia No. 15 for St. Petersburg to invalidate the agreement dated May 3, 2007 for the sale of shares in the authorized capital of the company; on the invalidation of the decision of the general meeting of the participants of the company, drawn up by the minutes of May 4, 2007 No. 6; on the invalidation of the amendment No. 3 made to the charter of the company, approved by the minutes of May 4, 2007 No. 6; on the invalidation of entries in the Unified State Register of Legal Entities on amendments to the information about the legal entity contained in the Unified State Register of Legal Entities related to the introduction of amendments to the constituent documents.
At an extraordinary general meeting of participants held on May 3, 2007, the participants (citizen B., citizen B. and O.Kh. LLC) decided to sell their shares to a citizen of the city, also invited to the meeting. At the same time, a member of the company, citizen B., retained part of his share in the amount of 10 percent of the authorized capital of the company. Thus, a new participant, a citizen of the city, entered the company, his share was 90 percent of the authorized capital, and the former participant, citizen B., remained, his share was 10 percent of the authorized capital. The decision was taken unanimously, the voting results are reflected in the minutes.
On May 4, 2007, the participants of the company, citizen G. and citizen B., held a meeting and decided to make appropriate changes to the constituent documents and the Unified State Register of Legal Entities. The decision was taken unanimously, the voting results are reflected in the minutes.
After some time, citizen B. decided to challenge in court the earlier decisions on the sale of shares and making appropriate changes to the constituent documents.
The court denied his request.
Based on the minutes of the general meetings of participants, the court concluded that the plaintiff had voted “for” the adoption of the decisions contested by him, and therefore had no legal right to challenge such decisions in court in accordance with paragraph 1 of Article 43 of the Law on LLC (Article 43 The Law on LLC is not a person who has the right to challenge the decision of the general meeting of the company's participants, since he took part in the voting at the meeting of May 24, 2010 and did not vote "against" the contested decision (Decree of the Federal Antimonopoly Service of the Volga-Vyatka District of April 29, 2011 in case No. A82-6384/2010).
Compliance with the requirements for the content of the protocol is especially important for LLCs with a large number of participants.
The more participants in a society, the more difficult it will be for them to come to a common decision that suits everyone. The risk of challenging the decision in this case increases significantly.
Protocol signature
The minutes of the meeting are signed by the chairman and the secretary (clause 3, article 181. 2 of the Civil Code of the Russian Federation). However, in this case, there is a risk that the company will not be able to document the fact of participation in the meeting of a specific participant if, some time after the meeting, he decides to challenge the decision in court and declares that he was not present at the meeting or voted against the decision solutions.
To reduce the risk of contesting the decision, it is possible to collect the signatures of all participants present on the minutes of the general meeting, although the law does not oblige to do this. At the same time, it should be taken into account that the minutes of the meeting may not be made immediately after the meeting, in addition, the participant may refuse to sign it.
Even more effective can be the use of ballot papers. This will completely exclude the possibility of a participant to refer to the fact that he voted in a different way or did not take part in the meeting at all. The mandatory procedure for voting by ballots can be provided for in the Regulations on the General Meeting of Participants.
Attention: the burden of proving the fact that the participant was present at the meeting lies with the society.
One of the most common arguments of LLC participants who want to challenge the decision taken by the general meeting is the reference to the lack of a quorum. And the reason for the lack of a quorum may be, in particular, that the participant challenging the decision was not present at the meeting. If the participant makes such an argument, then he is not required to prove that he really was not at the meeting. The courts come to the conclusion that in such a situation, the LLC itself is obliged to prove the fact of the participant's presence at the meeting.
An example from practice. The court declared the decision of the meeting invalid, since the society did not prove the presence of the plaintiff at the meeting, and in the absence of the plaintiff, the meeting had no right to make a decision
Citizen A. filed a lawsuit against OOO M. and to the MIFNS of Russia No. 15 for St. Petersburg on invalidating the decisions of the general meeting of participants of the company dated October 4, 2004, the decision of the MIFTS No. 9 for St. Petersburg of December 27, 2004 on amending the information about the legal entity contained in the Unified State Register of Legal Entities, related to the introduction of amendments to the constituent documents of the company, and the obligation of the tax inspectorate to make appropriate changes to the information about the company in the Unified State Register of Legal Entities.
On October 4, 2004, citizen A. and citizen S., each owning 50 percent of the authorized capital of the company, held an extraordinary general meeting, at which a decision was made to amend the constituent documents.
After some time, citizen A. decided to challenge the decision in court, referring to the fact that he did not participate in the general meeting, and therefore, there was no quorum for making a decision.
The court granted his request.
Having considered the minutes of the general meeting, the court stated the following. Although the protocol indicates that citizen A. was present at the controversial meeting of participants, the protocol does not contain the start and end times for the registration of arriving participants, does not contain the signature of citizen A. either in the introductory part of the protocol or on the results of voting on agenda items. Finally, the registration sheet was not issued.
The burden of proving the fact that the participant was present at the meeting lies with the society, but it did not confirm this fact in any way.
Since, in the absence of citizen A., citizen S. was not entitled to make a decision to amend the constituent documents, such a decision was declared invalid (
Citizen V. filed a lawsuit against OOO Kh. and MIFNS of Russia No. 9 for the Novgorod Region with a claim to invalidate the decisions of the extraordinary general meetings of the company's participants dated September 25, 2007 (minutes No. 43) and December 28, 2007 (minutes No. 49) on issues of amending the company's constituent documents; decisions of the inspection on state registration of changes made to the constituent documents of the company.
As established by the court, citizen V. was not notified of the meetings and did not participate in them.
The court satisfied the claims, and also indicated that the will of a company member to participate in voting on agenda items must be recorded by his signature either on the registration sheet or in the introductory part of the minutes of the meeting (Decree of the Federal Antimonopoly Service of the North-Western District of March 17, 2010 No. in case No. A44-993/2008).
Answered by Alexander Sorokin,
Deputy Head of the Operational Control Department of the Federal Tax Service of Russia
“CCP should be used only in cases where the seller provides the buyer, including its employees, with a deferral or installment plan for paying for their goods, works, services. It is these cases, according to the Federal Tax Service, that relate to the provision and repayment of a loan to pay for goods, work, and services. If an organization issues a cash loan, receives a return of such a loan, or itself receives and repays a loan, do not use the cash desk. When exactly you need to punch a check, look at
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