Corporate disputes. Problems of challenging major transactions and interested party transactions

Chapter 9 “Transactions” of the Civil Code says nothing about major transactions. This is due to the fact that issues of special legal regulation of large transactions are not relevant for all legal entities, but mainly for limited liability companies (hereinafter referred to as the company, LLC) and joint-stock companies. Accordingly, the necessary information can be found in two special laws - Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies” (Article 46) and Federal Law of December 26, 1995 No. 208-FZ “On Joint Stock Companies” societies" (Chapter X).

“What do I need this share for?”

The ability to complete a major transaction directly depends on the decision of all participants in the limited liability company. The law even provides for a situation where the desire of some participant to “swim against the general tide” and not make a major transaction inevitably results in the redistribution of shares.

According to the general rule of paragraph 1 of Article 23 of the Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies” (hereinafter referred to as the LLC Law), the company itself cannot acquire shares (parts thereof) in its authorized capital. One of the exceptions concerns large transactions.

The law states: if the general meeting of LLC participants makes a decision to carry out (approve) a major transaction, the company is obliged to acquire, at the request of a company participant, his share in the authorized capital. This obligation arises in two cases:

1. this participant voted against the deal;
2. this participant did not take part in the voting.

A participant can demand that an LLC buy a share within 45 days from the day he learned or should have learned about a decision made on a major transaction, and if he nevertheless participated in the general meeting - within 45 days from the date a decision was made with which he was not I agree (clause 2 of article 23 of the LLC Law).

By law, the company has three months to acquire the share of a participant who disagrees with a major transaction. In this case, the charter of the LLC may provide for a different period (it can only be established unanimously by all participants).

Special rules

The charter of an LLC may prohibit the alienation of a share or part of a share of a company participant to third parties.

The acquisition of a share means in practice the payment to the participant of the actual value of his share in the authorized capital. The actual value is determined on the basis of the LLC's financial statements for the last reporting period preceding the day the participant filed a claim. But another option is also possible - with the consent of the participant, the company has the right to give him property of the same value instead of money, that is, in kind.

Ready sample

Here is a finished sample document

, if two founders

About the author of this article

Alexandra ZadorozhnevaAccountant, project expert Practicing accountant. I have been working since the beginning of my studies at the university. I have experience in both commerce and budgeting. From 2006 to 2012 she worked as an accountant-cashier and personnel officer. From 2012 to the present - chief accountant in a budgetary institution. In addition to direct accounting, I am involved in purchasing and economic planning activities. I have been writing feature articles for specialized publications for 4 years.

Other publications by the author

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• 2022.02.28 Procurement controlInstructions for drawing up a report on purchases from SMP and SONO according to 44-FZ
• 2022.02.25 Procurement control How the Treasury authorizes transactions with funds of treasury support participants from 2022
• 2022.02.25 Customer documents Plan to change the rules for drawing up FCD plans in institutions

Main threats

A major transaction is always a reason to be nervous not only for society and its participants, but also for counterparties and business partners. The point is that one should never exclude the danger of such a transaction being recognized as invalid (void).

It is important to understand that the decision of the general meeting of LLC participants to enter into a major transaction does not in itself mean that such a transaction has been approved and we can call it a day. After all, both the general meeting itself and the decision-making procedure may subsequently turn out to be illegitimate. Therefore, during the general meeting one of the main questions should be asked - is there a quorum?

In general, the charter of an LLC may provide that large transactions do not require a decision from either the general meeting of participants or the board of directors (supervisory board). However, in this case, there are high risks of acquiring illiquid property, withdrawing assets, etc., which can inevitably cause a conflict of interests between participants and undermine the financial position of the company.

If the transaction is not only large, but at the same time is a transaction in which there is an interest (member of the board of directors, supervisory board, sole executive body, member of the collegial executive body, simply a participant in the company), then the provisions of Article 45 of the Law also apply to the procedure for its approval about LLC (exception - when all participants are interested in concluding a transaction).

What kind of document is this

A transaction is considered major if it goes beyond the boundaries of ordinary business activities and is associated with the purchase or sale of property of a joint-stock company (more than 30% of shares) or involves 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 transactions must be at least 25% of the book value of the assets of the limited liability company (LLC).

If required, such agreements are approved in accordance with the legislation of the Russian Federation (14-FZ, 174-FZ, 161-FZ, etc.) or according to the rules contained in the Charter of the procurement participant. In other options, this is done by a representative of the supplier authorized to obtain accreditation for the ETP.

In an LLC, this procedure is within the competence of the general meeting. If an organization has a board of directors, then, on the basis of the Charter, the adoption of agreements on such operations may be transferred to its jurisdiction.

IMPORTANT!

A decision on approving a major transaction for an individual entrepreneur is not necessary! It can only be registered as an LLC.

On June 26, 2018, the Supreme Court issued a resolution of the Plenum, in which it examined the main disputes regarding the approval of major transactions and agreements in which there is an interest.

Rule of 25 percent or more

As you can see, large transactions should be treated with special attention. That is why the provisions of Article 46 of the LLC Law establish the criteria for a major transaction and other rules.

Not only one transaction (including a loan, credit, pledge, guarantee), but also several interrelated transactions that are related to the acquisition, alienation or possibility of alienation by the company of property directly or indirectly can be considered major.

The main criterion for classifying a transaction as a major transaction is the value of the property that appears in the contract and other documents. It must be 25 percent or more of the value of the LLC’s property, determined on the basis of the financial statements for the last reporting period that precedes the day the decision to make such a transaction was made. Keep in mind: the charter can specify a higher qualification (size) to classify a transaction as a large one.

Depending on the type of transaction, the source of information about the value of the property is different: in case of alienation, this is the accounting data of the LLC (seller) itself, and in case of acquisition, it is the price offered by the seller, that is, the other party.

In any case, the burden of proving to the participant and other persons that the transaction concluded by the company is not major and that adverse consequences will not occur lies with the company itself. If there are contradictions in documents or a direct conflict between participants, accounting expertise can help resolve the situation. This is especially true for LLCs that use a simplified taxation system. Let us remind you that such companies are not required to keep accounting records for tax purposes, so some documents necessary in such a situation may be missing.

Consent of the board of directors

To carry out a major transaction, the consent of the board of directors (supervisory board) of the company or the general meeting of shareholders must be obtained (Article 79 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint-Stock Companies”).

If the subject of a major transaction is property worth from 25% to 50% of the book value of the company’s assets, then the decision on consent to the completion or subsequent approval of the major transaction is made by the board of directors of the company unanimously, and the votes of retired members of the board of directors are not taken into account.

If unanimous approval of such a transaction by the members of the board of directors is not received, then the issue of consent to the completion or subsequent approval of a major transaction may be submitted to the decision of the general meeting of shareholders. In this case, the decision to consent to the completion or subsequent approval of a major transaction is made by the general meeting of shareholders by a majority vote of the owners of voting shares participating in the general meeting of shareholders.

If the subject of a major transaction is property worth more than 50% of the book value of the company's assets, then the decision to carry out such a transaction is made by the general meeting of shareholders. Such a decision must be made by a three-quarters majority vote of shareholders - owners of voting shares participating in the general meeting of shareholders.

The decision on consent to carry out or on the subsequent approval of a major transaction must indicate the person (persons) who is a party (parties) to the transaction, the beneficiary (beneficiaries), the price, the subject of the transaction and its other essential conditions.

The decision on consent to carry out a major transaction may not indicate the party to the transaction and the beneficiary if the transaction is concluded at an auction, as well as in other cases if the party to such a transaction and the beneficiary cannot be determined by the time consent to carry out such a transaction is received.

A decision on consent to a major transaction may also contain an indication of the minimum and maximum parameters of the terms of such a transaction (the upper limit of the cost of purchasing property or the lower limit of the cost of selling property) or the procedure for determining them, consent to carry out a number of similar transactions, alternative options for the conditions of such a transaction, requiring consent to complete it, consent to complete a major transaction, subject to the completion of several transactions simultaneously.

A decision on consent to a major transaction may indicate the period during which such a decision is valid.

If such a period is not specified in the decision, the consent is considered valid for one year from the date of its adoption. An exception may be another period arising from the essence and conditions of the major transaction to which consent was given, or the circumstances in which consent was given.

“It smells like a big deal here.”

Clause 7 of Article 46 of the LLC Law states: the charter of the company may provide for other types and (or) size of transactions that are subject to the procedure for approving them as major transactions. This rule was introduced, firstly, to take into account the specifics of the statutory goals of the activities of each LLC, and secondly, so that the participants (management) could more effectively control the financial and economic turnover within the company.

The concluded settlement agreement may also be a major transaction. Since it is approved by the court (Article 141 of the Arbitration Procedure Code of the Russian Federation), it is also obliged to simultaneously check whether there are signs of a major nature of the transaction (since it may violate, among other things, the rights and legitimate interests of third parties). Please pay special attention: such a transaction can be challenged in the presence of a court-approved settlement agreement only if a complaint is filed against the judicial act itself that approved the settlement agreement.

The rule of unusualness and obligation

Major transactions are not considered to be transactions made in the normal course of business of the company. In practice, there are big problems with this provision, since it is often difficult to unambiguously compare “ordinary business activities” with the statutory goals, its vision by the LLC participants and the realities of doing business. Accordingly, the threat of recognition of the transaction as invalid increases. In arbitration practice one can encounter many disputes on this matter.

Also, transactions are not recognized as large if two conditions are met (although they are large in nature in terms of financial and economic indicators. – Editor’s note):

1. their implementation is mandatory for society by virtue of federal laws and (or) other legal acts;
2. settlements for them are made at prices and tariffs established by the state (in particular, the Government of the Russian Federation).

Here are a few examples of large transactions: making a contribution to the authorized capital with property worth a large amount, repurchase of previously rented non-residential premises, a real estate pledge agreement (mortgage), etc.

Welcome to the deal

The decision to approve a major transaction is made by the general meeting of LLC participants. The main tasks at this stage are to ensure the presence of participants at the meeting and inform them about its agenda, so that later they do not refer to the fact that they were not notified that a major transaction was being considered.

The general meeting of the company's participants is held in the manner established by the LLC Law, the company's charter and its internal documents. To the extent not regulated by the LLC Law, the charter and internal documents of the company, the procedure is established by a decision of the general meeting (Clause 1, Article 37 of the LLC Law).

Interruptions are allowed during the work of the general (including extraordinary) meeting. Their duration is not limited by law. For example, in the decision of the Federal Antimonopoly Service of the Central District dated July 20, 2006 in case No. A36-288/3-04, the arbitrators recognized that the break in the work of the extraordinary general meeting, which the plaintiff (member of the LLC) knew about, did not violate his rights and the norms of the Law about LLC. Meanwhile, the break was five days.

Example

Excerpt from the charter of Intelpro LLC:

10. The decision to carry out a major transaction or an interested party transaction is made by the general meeting of the company’s participants by a majority vote of the total number of votes of the company’s participants who are not interested in the transaction.

Given its importance, the law imposes special requirements on the content of the decision to approve a transaction. It must necessarily indicate information about the transaction, namely: parties, beneficiaries, price, subject of the transaction and its other essential conditions. As a rule, it is documented in the minutes of the general meeting and is considered legal if it does not contradict the terms of the charter and the norms of current legislation.

Other essential conditions should be understood, in particular, as conditions that are named in the law or other legal acts as essential or necessary for transactions of this type (clause 1 of Article 432 of the Civil Code of the Russian Federation).

Thus, if the decision (minutes) of the general meeting of participants does not contain the specified conditions, the transaction completed by the company is not considered approved.

The decision to approve a major transaction may contain other conditions that are not considered essential by law or other legal acts. This is indicated in paragraph 15 of the Recommendations of the Scientific Advisory Council at the Federal Arbitration Court of the Ural District on the consideration of disputes related to the application of legislation on the creation, reorganization, liquidation of commercial legal entities, their legal status, as well as the rights and obligations of participants (founders) .

Dangerous moment

Keep in mind: entering into a settlement agreement can be considered a major transaction!

Meanwhile, the parties and beneficiaries in a transaction may not always be known in advance (for example, if it was concluded at auction, etc.). In such cases, it is permissible not to indicate all the required information about a major transaction.

The charter of an LLC may provide for the formation of a board of directors (supervisory board) of the company. In this case, the adoption of decisions on the approval of large transactions with property, the value of which is from 25 to 50 percent of the value of the entire property of the LLC, can also be attributed by the charter to the competence of the specified body.

In general, the establishment by law of requirements for the procedure for carrying out large transactions is aimed at:

• protection of the rights and legitimate interests of the company and its participants in preserving the property of the company;
• receipt by the company of an equivalent provision upon alienation of its property.

What kind of deal is considered large?

A major transaction is a transaction (several interrelated transactions), the object of which is property (alienated or acquired), with an estimated value of more than 25% of the total value of all assets of the organization. As the amount of the value of assets on the balance sheet, information from accounting reports for the last reporting period is used, which is regulated by Art. 78 208-FZ “On Joint-Stock Companies” and Art. 46 14-FZ “On Limited Liability Companies”.

Transactions made as a result of the normal economic activity of an enterprise do not fall into the category of large ones.

Registration in ERUZ EIS

From January 1, 2020 , in order to participate in tenders under 44-FZ, 223-FZ and 615-PP, registration in the ERUZ register (Unified Register of Procurement Participants) on the EIS (Unified Information System) portal in the field of procurement zakupki.gov.ru is required.

We provide a service for registration in the ERUZ in the EIS:

Order registration in the EIS

In normal business activities, a decision is not required:

1. In the case where the shareholder of a JSC or the sole participant of an LLC performs the functions of the executive body solely. This provision is based on Part 7 of Art. 46 14-FZ, as well as clause 1, part 3, art. 78 208-FZ.
2. There is no need to formalize the approval of the transaction in the case of an individual entrepreneur, since it turns out that the individual receives approval from himself.

To participate in public procurement, legal entities must provide a Solution without fail.

Commercial purchases are accompanied by a Decision only in the case of customer requirements (it happens that commercial customers also require this document from individual entrepreneurs).

Nuances of preparing solutions

Previously, to participate in government procurement, any participant had to be accredited at each federal site. The submitted documentation was subjected to a thorough analysis and a comprehensive and scrupulous check on the ETP. If errors were detected in the execution of the Decision, the application was rejected, the documentation was returned indicating any errors or inaccuracies. After correction, it was possible to resubmit the documents for processing.

2019 brought a number of changes, the main one being the possibility of using the Unified Information System (hereinafter referred to as the UIS), which greatly simplified the accreditation procedure. After registration in the Unified Information System, the documents are transferred to the LC of federal sites. The verification and transfer process is automated and devoid of any additional checks. Thus, it is now necessary to approach the preparation and execution of documents more carefully, since the same errors in the Decision will only become known if the application is rejected on this basis, and not at the stage of registration in the Unified Information System.

Rules for drawing up the approval decision

There are strict regulations for drawing up the Decision. Let's look at a few of its most important points:

1. The decision to consent to a major transaction is made either by all participants in the organization, or only by a single participant in the company.
2. At the general meeting of all LLC participants, the Resolution is signed in the manner prescribed by Article 181.2 of the Civil Code of the Russian Federation. In the event that the opinion of the founders is divided, the final Decision is approved by a majority vote. The protocol must be drawn up and certified by a notary, or you can do it yourself. In the second case, it is necessary to carefully check the provisions of Article 181.2 (Part 4) of the Civil Code of the Russian Federation.

The document itself must include the following clause: “In accordance with clause 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 present at its adoption is confirmed by signing the document by all the company’s participants present at the meeting.”

1. The approval decision must indicate the amount of each of the transactions concluded and not their total amount. The wording “to approve transactions in the amount of 9,730,000 (nine million seven hundred thirty thousand) monetary units” is erroneous, since it poses a difficult task for the customer to guess about the number of closed transactions of the participant. The correct wording is: “the maximum amount of a single transaction should not exceed 9,730,000 (nine million seven hundred thirty thousand) monetary units.”
2. Indication of the validity period of the Decision is a mandatory condition. Otherwise, the default validity period is one year. One of the most common reasons for application rejections is due date. Since the law does not provide for a time limit, to facilitate further participation, the validity period of the signed Decision is prescribed with a reserve: ten, fifteen, even twenty years. The Federal Law on LLCs provides for the possibility of independently determining the validity period of a document; otherwise, its validity is assumed by default to be one year from the date of adoption of the Decision. It also contains a caveat: the period during which the approval document is valid can be determined by the very essence, terms of the transaction or the circumstances of its adoption.

A case is described in arbitration practice: the case involved an approval decision with an unspecified validity period. That is, it was relevant only for one year from the date of registration. By the beginning of the auction, the document was no longer valid, since a year had passed. The participant was supported by the fact that such contracts are commonplace in the course of the Company’s business activities, which was rejected (see Determination No. 310-ES19-1603 of the RF Armed Forces dated March 25, 2019).

1. The transaction amount must be indicated in the Decision using numbers as well as in words. In this case, a large amount is pledged with an almost unlimited limit. This is done in order to save the document from corrections before the next auction. There is no upper ceiling, and therefore the document included an amount of even a billion rubles. The main thing is specificity; the option “unlimited rubles 00 kopecks” is not correct, which will lead to the application being rejected and returned for correction.
2. Since all types of procurement in accordance with 44-FZ are carried out electronically, in the approval of the transaction, in addition to electronic trading, absolutely all types of procurement procedures must be specified .

In unitary enterprises and budgetary institutions, decisions to approve a transaction are made somewhat differently:

• For a unitary enterprise (according to Article 23 161-FZ), a transaction can be recognized as a large one, provided that its amount is more than 5 million rubles, or 10% (or more) of its authorized capital. For state unitary enterprises and municipal unitary enterprises, a major transaction occurs exclusively with the consent of the property owner, otherwise it loses its legal status.
• For budgetary institutions, transactions in relation to property, the value of which is more than 10% of the value of assets on the organization’s balance sheet, are considered a major transaction, unless the institution’s charter specifies a smaller amount (Article 9.2 7-FZ). The decision is made only with the prior consent of the body that exercises the functions and powers of the founder of the budgetary institution. If it is not received, the transaction is void. The decision is drawn up for each specific auction. The form of approval of such a transaction is not established by law; approval is carried out in any form.

Moment of approval of the transaction

It is not entirely clear from the LLC Law the moment at which a major transaction is considered approved. From a formal legal point of view, this is most likely the moment of signing the minutes (decision) of the general meeting by each participant in the company.

Is it possible to approve a major transaction “retroactively”? It is difficult to answer unequivocally, although the judges do not exclude this possibility. Thus, in paragraph 29 of the Recommendations of the Scientific Advisory Council at the Federal Arbitration Court of the Ural District No. 3/2007 on the consideration of disputes related to the application of corporate legislation and disputes related to the application of legislation on enforcement proceedings, it is said: the possibility of subsequent approval is not excluded in in relation to major transactions carried out by a limited liability company (i.e. after they have been completed).

How is it formed

The decision to approve a major transaction is not a standardized form and does not have an official form. A government procurement participant has the right to use an independently developed document, including certain information in the content.

The data that must be indicated in the decision is enshrined in paragraph 3 of Art. 46 14-FZ. This includes the following information:

• a person acting as a party to the transaction and beneficiary;
• maximum transaction amount;
• object of the transaction;
• other essential terms of the transaction.

If the conclusion of the contract is a consequence of bidding, then the beneficiary is not registered. It is not indicated if it cannot be determined at the time of formation.

Such consent of the founders is certified by a notary or confirmed by the methods prescribed in the statutory regulations of the company (Article 67.1 of the Civil Code of the Russian Federation).

The decision to approve a major transaction is made on behalf of the founders. The content must reflect information about the time, place and participants of the meeting, the results of voting on the topics defined in the agenda (clause 4 of Article 181.2 of the Civil Code of the Russian Federation). Separate entries are made about the persons involved in counting the votes and about the participants who voted against the approval of the agreement (if they themselves requested to indicate them in the protocol).

The customer commission has the right to reject a potential contractor because the public procurement participant specified in the decision to approve a major transaction the total amount of approved transactions instead of the maximum for each agreement.

To avoid such situations, the agreement is drawn up correctly and legally competent, with the following wording of consent:

“Approve the execution of transactions on behalf of the Limited Liability Company “_______________” based on the results of the procurement procedures for goods, works, and services. The amount of each such transaction should not exceed the amount of ____________ (_____________) rubles 00 kopecks.”

When "good" is not needed

The rule on approval of major transactions does not apply (Clause 9, Article 46 of the LLC Law):

1. to companies with one participant, who simultaneously acts as its sole executive body;
2. during the transfer of rights to property in the process of reorganization of the company, including under merger and accession agreements;
3. upon transfer to the company of a share (part of a share) in its authorized capital in the following cases provided for by the LLC Law:

• failure to provide compensation within the prescribed period for the early withdrawal by a participant of property transferred to the company to pay for the share (Article 15); incomplete payment of a share in the authorized capital upon establishment of a company (Article 16);
• alienation or transfer of a share (part of a share) to third parties in violation of the procedure for obtaining consent, as well as in case of violation of the prohibition on sale or alienation in any other way (Article 21);
• withdrawal of a participant from the company (Articles 23 and 26).

What's changed in 2022

On July 23, 2020, an important clarification for suppliers was published on the FAS website about the procedure for submitting a decision on approval of a major transaction.
Do not provide it in the second part of the application, since it is sent by the electronic platform along with other documents that were provided during registration in the Unified Information System. If the amount of the contract being concluded is greater than the amount specified in this document, then the supplier can:

1. Change it through the EIS when submitting an application.
2. Provide in the second part a document that corresponds to the contract price.

In the same letter from the FAS with an explanation, another important conclusion was made:

IMPORTANT!

44-FZ provides comprehensive requirements for providing a decision on the approval of a major transaction, and the presentation of any additional requirements for the design and content of such a decision is excessive and unlawful.

Let us recall that on December 25, 2019, the Supreme Court, in a review of judicial practice on certain issues of application of legislation on business companies, concluded that it is necessary to notarize decisions in LLCs, including those consisting of a single participant. Learn more about how these findings impacted major deal approval decisions.

What's new?

It is no secret that active discussions are currently underway on a project to amend the Civil Code. It is expected that they will also affect the procedure for approving large transactions. In particular, it is planned to supplement the provisions on state registration of legal entities (Article 51 of the Civil Code of the Russian Federation). According to them, before the state registration of a legal entity, changes in its charter or before the inclusion of other data not related to changes in the charter in the Unified State Register of Legal Entities, the tax inspectorate will be obliged to check the compliance with the law of the contents of the charter, including information on the procedure for approval by the authorities legal entity of major transactions.

"I will complain!"

As noted earlier, the provisions for a major transaction are contained in Article 46 of the LLC Law. In case of violation of the requirements provided for in this article, the transaction may be declared invalid at the request of the company itself or its participant.

The specified claim can be filed in court only within one year (statute of limitations). The missed deadline cannot be restored.

Example

The subject of the claim can be formulated approximately as follows: a demand for invalidation (not having legal force) of the purchase and sale agreement as a major transaction made by the defendant (company, LLC - Ed.) in violation of the requirements of the law, and the application of the consequences of its invalidity.

Thus, paragraph 3 of Article 43 of the LLC Law establishes a limited circle of persons who have the right to apply to court with such a claim. This is the society itself or its participant.

However, under certain conditions, the dissatisfied participant does not need to prove anything. This applies to the situation when it clearly follows from documents and reporting that the disputed transaction is unprofitable for the company. Consequently, it violated the rights and legitimate interests of the participant (plaintiff), unless otherwise proven. Sometimes, even without documents, it is clear that a transaction inevitably entails losses and other unfavorable consequences (for example, foreclosure on the mortgaged property of a company on a large scale).

It is important to know the following: the mechanism for challenging is such that invalidation of a decision of a general meeting of participants or a decision of the board of directors (supervisory board) of a company to approve a major transaction does not entail recognition of the corresponding transaction as also invalid (in the case of appealing against such decisions separately).

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Features for approving a major transaction with a single founder

LLCs, in which there is only one founder acting as the sole executive body, are not required to draw up such a document (Clause 7, Article 46 No. 14-FZ).

But 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 is impossible to take part in the auction.

It is not necessary to include this information in the second part of the application. It is considered that if the supplier has not provided such data, then the contract does not fall into this category. But as practice shows, even the decision of a single participant to approve a major transaction is added to the general package of documents just in case. It is important not to make a mistake here, otherwise there is a risk of the auction participant being rejected due to the fact that he provided false information. Such cases are disputed by the FAS, but this procedure increases the period for concluding the contract.

"Inviolability" of a major transaction

However, not all so simple. Let's say that there is an objectionable participant who wants (and will) challenge almost every transaction that seems large to him. The legislator took care of this in advance: an exhaustive list of circumstances is provided in the presence of which the court will refuse to recognize a major transaction as invalid (even if the requirements of Article 46 of the LLC Law are violated). Let's list them (we are talking about an LLC participant who filed a lawsuit to declare the transaction invalid. - Ed.):

• the vote of a company member could not influence the results of voting on a major transaction, although he took part in voting on this issue;
• it has not been proven that the completion of this transaction has entailed or may entail causing losses to the company or the participant or the occurrence of other adverse consequences;
• by the time the case is considered in court, evidence of subsequent approval of this transaction according to the rules of the LLC Law has been presented;
• it was proven in court that the other party to the transaction did not know and should not have known about its completion in violation of the stipulated requirements for a major transaction.

Approval of a transaction that is large. Approval decision

Without the approval of a major transaction in an LLC, it cannot be concluded (since there is a high probability of it being declared invalid). To approve it, a decision is necessary either from the company's participants or from the board of directors, if the corresponding powers are transferred to this management body on the basis of the company's Charter.

It is important to note that the board of directors does not have the right to approve large transactions that exceed 50% of the firm's assets. Such agreements require the approval of the company's members in all cases.

There is no form of decision that could be applied by all LLCs without exception, since it is not approved at the legislative level. However, in paragraph 3 of Art. 46 Federal Law No. 14 states what data should be indicated in the decision, so it is not difficult to draw it up.

The decision must include the following information:

1. Title of the document.
2. The date it was compiled.
3. Place of signing.
4. Information about the other party to the transaction.
5. The price of the contract and its subject matter, as well as the essential terms of the agreement.
6. Signatures of the participants.

The decision may contain consent to approve several interrelated transactions, or several unrelated contracts concluded at the same time.

The decision can be made one year before the transaction. This is due to its validity period, which is 1 year from the date of acceptance.

In addition, the decision on approval can be made after a major transaction has been concluded (subject to a suspensive condition). In this case, if someone files a claim in court to invalidate a major transaction due to the lack of consent, such a claim will be rejected if evidence of subsequent approval is presented.

Additional conditions that may be specified in the decision to approve the transaction

By virtue of clause 3 of Art. 46 Federal Law No. 14, the decision may reflect additional, but not mandatory, conditions. They give the parties to transactions a certain degree of freedom when concluding them.

Additional conditions may include:

1. The limits within which the transaction price can be determined, or the procedure for determining such a price.
2. Consent to carry out several transactions with similar conditions (of the same type or interrelated).
3. Terms of transactions that may be alternative and depend on the specific situation.

About the present and future of major transactions

The problems of legal regulation of major transactions are given attention in the Concept for the Development of Civil Legislation of the Russian Federation (approved by the decision of the Council under the President of the Russian Federation for the codification and improvement of civil legislation of October 7, 2009).

The document states the following fact: the structures of large transactions, formally intended to preserve the property of a business company, are in fact widely used to refuse completed and even fully or partially executed transactions. This undermines property turnover and is in sharp conflict with the property interests of counterparties and creditors.

But here is the message laid down in the Concept for the future: the possibility of protecting the interests of society when it makes a major transaction by challenging it should be recognized only in the case where the company (plaintiff) is a bona fide counterparty, does not know and cannot know about the violation of the procedure for completing such transactions by its executive body.

As you can see, a major transaction is fraught with pitfalls that are important to recognize and not stumble. It is equally important for an accountant and lawyer to understand what place each specific transaction occupies in the total mass, whether it is related to the “ordinary business activities” of the company, or whether there are signs of its large nature. In any case, the caliber of the transaction is directly tied to accounting and reporting data.

V. Belkovets, lawyer, leading expert on legal issues

JSC Law on Major Transactions

The Law “On Amendments...” dated 07/03/2016 No. 343-FZ, from 01/01/2017, significant changes were made to the Law “On Joint-Stock Companies” dated 12/26/1995 No. 208-FZ, according to which the procedure for joint-stock companies to commit large transactions.
This article is based on the new version of Law No. 208, taking into account all the latest changes. The concept of a major transaction is contained in paragraph 1 of Art. 78 of Law No. 208, according to which an agreement is recognized as an agreement that goes beyond the normal activities of the company and is aimed at the following purposes:

1. Acquisition or alienation of property, the value of which exceeds the value of 25% of all assets of the joint-stock company. The value of assets is determined based on financial statements.
2. Transfer to other persons of property, an intellectual property product, or a means of individualization under a license if the price of such transactions exceeds 25% of the book value of the JSC’s property. The book value of the property is also determined based on the financial statements.

Thus, Law No. 208 defines a major transaction on the basis of the value of the property being sold and the inconsistency of the agreement with the usual activities characteristic of the company.

Let’s figure out which transactions are considered outside the scope of the normal activities of a joint-stock company.

Signs of transactions that go beyond the normal activities of the joint-stock company

Although Law No. 208 does not establish the signs by which it is determined whether a particular transaction is outside the scope of ordinary business activities, they can be identified by reading paragraph 4 of Art. 78 of Law No. 208.

To be recognized as such, major transactions in a joint stock company must have the following characteristics:

1. Not characteristic of the activities carried out by a specific JSC.
2. They can lead to the termination of the organization’s activities (for example, they lead to its bankruptcy if it is impossible to fulfill its obligations).
3. May lead to a change in the type of activity of the JSC.
4. Result in a significant downward change in the scale of the company’s activities.

To recognize a transaction as a major one, the first criterion must be present in combination with one of the subsequent ones. Read about what criteria a transaction must have in order to be recognized as a major one for an LLC.