Instruments. How to legally form a partnership break
Our regular partners, the law firm Vetrov and Partners continues to acquaint you with the most pressing issues of the legal aspect of iT-entrepreneurship and the registration of intellectual property rights. New material from lawyers from Winds and Partners is devoted to options for legalizing partnerships, which, if necessary, will help legally remove a partner from business.
Sometimes the desire to attract a partner to a business disappears very quickly when you begin to model various positive and negative relationship options. In a situation like this, you probably start paying attention to publications in the media about how someone “threw” someone, the unsuccessful experience of their acquaintances or friends, and falling judicial practice on this issue. But it is unlikely that emotions will help in making a reasonable, balanced decision. It should be based on a comprehensive analysis of the available information.
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For our part, we want to offer 4 tools and explain the conditions for their use. We hope that their presentation will not contribute to unscrupulous, unethical behavior, but will only allow to build relations between partners from the start correctly. At the same time, partners are participants (shareholders) of the company with which they conduct their business. Also, this article is a continuation of the previously published and related to changes in legislation on legal entities (Federal Law No. 99-FZ of 05/05/2014).
A corporate agreement (Article 67.2 of the Civil Code of the Russian Federation), a shareholder agreement (Article 32.1 of the Law on Joint-Stock Companies), an agreement on exercising the rights of a participant (paragraph 3 of Article 8 of the Law on Limited Liability Companies) for the purposes of our material, we suggest calling it one single term "Corporate contract".
According to this article 67.2 of the Civil Code of the Russian Federation, participants in a business partnership are entitled to conclude a corporate agreement among themselves, in accordance with which they undertake to exercise these rights in a certain way or to refrain (refuse) their exercise.
It is logical to take the opportunity to settle the relations between the participants and determine in advance the order of voting on various issues on the agenda of the general meeting of participants.
For example, both participants must vote “for” on the issue of electing the sole executive body, regardless of whose initiative the nominee will be offered to, or on the issue of approving an interested party transaction with an affiliate if it is worth more than 500 thousand rubles.
Thus, in the contract, it is possible to agree in advance those issues on which difficulties are possible when discussing them between partners, the impossibility of making any decisions on them.
Naturally, such an approach implies the need to assess the situation of the relationship of the partner in terms of the medium and long-term perspective, and write the results of such agreements.
Perseverance in achieving the goals set, scrupulousness in a clear and consistent presentation of important issues and ways to solve them, multiplied by attentiveness clearly, in our opinion, will allow even the most nervous partner to sleep peacefully.
If your lack of confidence in the Russian judicial system is not completely strong and unconditional, then we recall the possibility of judicial protection of your rights. The dispute between the partners will be considered corporate and belongs to the jurisdiction of the arbitration courts. Lastly, the practice of examining such a category of cases has already been developed, which makes it possible to assert a comparatively greater chance of achieving compulsory support for the conditions set forth in the corporate contract.
By the way, I almost forgot to say that obligations under a corporate contract can be secured in various ways. Including by establishing a fine or compensation (a new way to provide evidence introduced by the legislator, given the current version of the draft law on amending the law on joint-stock companies).
In accordance with Article 67 of the Civil Code of the Russian Federation, a participant has the right to demand the exclusion of another participant from a partnership or company (except public joint-stock companies) in a judicial procedure.
Prior to September 1, 2014, the rule on exclusion of a participant existed only in the Law on Limited Liability Companies. After the specified calendar date and taking into account the proposed changes to the Law on Joint Stock Companies, it may be possible to exclude the shareholder of the company. Such an innovation will be extremely pleasant and, in our opinion, restore the balance between the LLC participant and the shareholder of the JSC.
However, as long as the amended rules did not become effective, it is advisable to draw attention to the current practice of considering cases on the exclusion of a participant from the company.
If we approach the question from the point of view of statistics only, then, depending on the region and the instance, there are between 9 and 15 refusals of this kind for one participant’s exception.
Despite such data, we believe that the exception is a fairly effective option if the initiator of the exception is sufficiently active in this matter.
To determine an acceptable degree of activity and favorable conditions for exclusion, you need to pay attention to a couple of circumstances:
a) the content of article 67 of the civil code of the Russian Federation.
In this norm, the excluded participant must behave a la inappropriately. Once caused harm to society, does not allow to make decisions by the general meeting (for example, to approve transactions, elect the head of the company), prevents to achieve the goals set before the society (which can be expressed in the form of specific financial indicators and enshrined in the company's charter).
b) Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of May 24, 2012 No. 151 approved. Review of the practice of consideration by arbitration courts of disputes related to the exclusion of a participant from a limited liability company.
According to, for example, the participant’s actions on the alienation of the real estate of the company led to the impossibility of his activity, since the production buildings were sold, which virtually excludes the continuation of the company's main production activities. This was the basis for the exclusion of the participant (paragraph 2 of the above review of the practice).
In accordance with Article 26 of the Law on LLC, a participant in a company has the right to leave the company at any time. He can declare his desire to leave the company substantially in advance before the date of his immediate withdrawal from the company, or such a withdrawal may be associated with the onset of any events.
For example, such events include non-compliance by the company with revenue indicators for the reporting period, cancellation of more than 30 percent of transactions with key clients, failure to decide on two or more general meetings of participants on issues related to the approval of major transactions or an increase in the authorized capital of the company.
In this case, the participant’s application cannot be withdrawn or modified by him subsequently. This conclusion can be reached as a result of an analysis of legislation in which the participant’s right is clearly absent. So, and court practice.
According to paragraphs. “B” clause 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation N 90, the Plenary Session of the Supreme Arbitration Court of the Russian Federation N 14 dated 09.12.1999 submission of an application by a member of the public gives rise to legal consequences provided for by this provision, which cannot be changed unilaterally.
However, we note that the participant is entitled to challenge his statement on the grounds of invalidity, if there are grounds for this, specified in the law (for example, the statement was made under the influence of a significant misconception, Article 178 of the Civil Code of the Russian Federation).
The statement of withdrawal from the public must be transferred to the public.
Thus, if the partners choose a way out of one of them from the company upon the occurrence of relevant events as a possible solution to the current and (or) future corporate conflict, the goal will be achieved.
Naturally, for the practical implementation of the voiced it will be necessary to write an application for withdrawal in writing, indicating the necessary information and its direct transfer to the public.
An owner of a share or shares of a company has the right to sell his share or his shares to another participant (shareholder) or a third party, if there are no restrictions on the relationship of such a transaction by the charter and (or) corporate agreement.
The alienation of a share (stock) is a transaction. In accordance with Article 157 of the Civil Code of the Russian Federation, a transaction is acceptable depending on the occurrence of an event for which it is unknown.
If so, then business partners may again conclude an agreement in which they provide for the sale by one of them of their share upon the occurrence of any events or the sale by both of them of their shares. However, in the latter case, it is logical to offer to differentiate events so that there is no banal exchange of shares between partners of the company.
We hope that the aforementioned was not overloaded with legal subtleties and allowed us to form additional tools for resolving corporate conflicts. At the same time, the list of the tools presented by us is not exhaustive, and their placement in the material is presented not in terms of their priority, but only for the sake of convenience of perception of information.
Vitaly Vetrov,
managing partner
law firm "Vetrov and partners . "
Ask questions you are interested in in the comments, we will definitely answer the most important in the following posts of our weekly legal column in the blog of the collective investment platform VCStart.com . We remind you that our project, created to attract venture capital investments in start-ups, is fully launched in 26 days. Currently, the platform works for registering investors and authors of startups in the pre-launch mode.
Sometimes the desire to attract a partner to a business disappears very quickly when you begin to model various positive and negative relationship options. In a situation like this, you probably start paying attention to publications in the media about how someone “threw” someone, the unsuccessful experience of their acquaintances or friends, and falling judicial practice on this issue. But it is unlikely that emotions will help in making a reasonable, balanced decision. It should be based on a comprehensive analysis of the available information.
')
For our part, we want to offer 4 tools and explain the conditions for their use. We hope that their presentation will not contribute to unscrupulous, unethical behavior, but will only allow to build relations between partners from the start correctly. At the same time, partners are participants (shareholders) of the company with which they conduct their business. Also, this article is a continuation of the previously published and related to changes in legislation on legal entities (Federal Law No. 99-FZ of 05/05/2014).
First tool - corporate contract
A corporate agreement (Article 67.2 of the Civil Code of the Russian Federation), a shareholder agreement (Article 32.1 of the Law on Joint-Stock Companies), an agreement on exercising the rights of a participant (paragraph 3 of Article 8 of the Law on Limited Liability Companies) for the purposes of our material, we suggest calling it one single term "Corporate contract".
According to this article 67.2 of the Civil Code of the Russian Federation, participants in a business partnership are entitled to conclude a corporate agreement among themselves, in accordance with which they undertake to exercise these rights in a certain way or to refrain (refuse) their exercise.
It is logical to take the opportunity to settle the relations between the participants and determine in advance the order of voting on various issues on the agenda of the general meeting of participants.
For example, both participants must vote “for” on the issue of electing the sole executive body, regardless of whose initiative the nominee will be offered to, or on the issue of approving an interested party transaction with an affiliate if it is worth more than 500 thousand rubles.
Thus, in the contract, it is possible to agree in advance those issues on which difficulties are possible when discussing them between partners, the impossibility of making any decisions on them.
Naturally, such an approach implies the need to assess the situation of the relationship of the partner in terms of the medium and long-term perspective, and write the results of such agreements.
Perseverance in achieving the goals set, scrupulousness in a clear and consistent presentation of important issues and ways to solve them, multiplied by attentiveness clearly, in our opinion, will allow even the most nervous partner to sleep peacefully.
If your lack of confidence in the Russian judicial system is not completely strong and unconditional, then we recall the possibility of judicial protection of your rights. The dispute between the partners will be considered corporate and belongs to the jurisdiction of the arbitration courts. Lastly, the practice of examining such a category of cases has already been developed, which makes it possible to assert a comparatively greater chance of achieving compulsory support for the conditions set forth in the corporate contract.
By the way, I almost forgot to say that obligations under a corporate contract can be secured in various ways. Including by establishing a fine or compensation (a new way to provide evidence introduced by the legislator, given the current version of the draft law on amending the law on joint-stock companies).
The second tool is to exclude a member of a corporation.
In accordance with Article 67 of the Civil Code of the Russian Federation, a participant has the right to demand the exclusion of another participant from a partnership or company (except public joint-stock companies) in a judicial procedure.
Prior to September 1, 2014, the rule on exclusion of a participant existed only in the Law on Limited Liability Companies. After the specified calendar date and taking into account the proposed changes to the Law on Joint Stock Companies, it may be possible to exclude the shareholder of the company. Such an innovation will be extremely pleasant and, in our opinion, restore the balance between the LLC participant and the shareholder of the JSC.
However, as long as the amended rules did not become effective, it is advisable to draw attention to the current practice of considering cases on the exclusion of a participant from the company.
If we approach the question from the point of view of statistics only, then, depending on the region and the instance, there are between 9 and 15 refusals of this kind for one participant’s exception.
Despite such data, we believe that the exception is a fairly effective option if the initiator of the exception is sufficiently active in this matter.
To determine an acceptable degree of activity and favorable conditions for exclusion, you need to pay attention to a couple of circumstances:
a) the content of article 67 of the civil code of the Russian Federation.
In this norm, the excluded participant must behave a la inappropriately. Once caused harm to society, does not allow to make decisions by the general meeting (for example, to approve transactions, elect the head of the company), prevents to achieve the goals set before the society (which can be expressed in the form of specific financial indicators and enshrined in the company's charter).
b) Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of May 24, 2012 No. 151 approved. Review of the practice of consideration by arbitration courts of disputes related to the exclusion of a participant from a limited liability company.
According to, for example, the participant’s actions on the alienation of the real estate of the company led to the impossibility of his activity, since the production buildings were sold, which virtually excludes the continuation of the company's main production activities. This was the basis for the exclusion of the participant (paragraph 2 of the above review of the practice).
The third tool is the participant’s withdrawal from the company.
In accordance with Article 26 of the Law on LLC, a participant in a company has the right to leave the company at any time. He can declare his desire to leave the company substantially in advance before the date of his immediate withdrawal from the company, or such a withdrawal may be associated with the onset of any events.
For example, such events include non-compliance by the company with revenue indicators for the reporting period, cancellation of more than 30 percent of transactions with key clients, failure to decide on two or more general meetings of participants on issues related to the approval of major transactions or an increase in the authorized capital of the company.
In this case, the participant’s application cannot be withdrawn or modified by him subsequently. This conclusion can be reached as a result of an analysis of legislation in which the participant’s right is clearly absent. So, and court practice.
According to paragraphs. “B” clause 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation N 90, the Plenary Session of the Supreme Arbitration Court of the Russian Federation N 14 dated 09.12.1999 submission of an application by a member of the public gives rise to legal consequences provided for by this provision, which cannot be changed unilaterally.
However, we note that the participant is entitled to challenge his statement on the grounds of invalidity, if there are grounds for this, specified in the law (for example, the statement was made under the influence of a significant misconception, Article 178 of the Civil Code of the Russian Federation).
The statement of withdrawal from the public must be transferred to the public.
Thus, if the partners choose a way out of one of them from the company upon the occurrence of relevant events as a possible solution to the current and (or) future corporate conflict, the goal will be achieved.
Naturally, for the practical implementation of the voiced it will be necessary to write an application for withdrawal in writing, indicating the necessary information and its direct transfer to the public.
The fourth instrument is the redemption of a share or stock from a member of a corporation
An owner of a share or shares of a company has the right to sell his share or his shares to another participant (shareholder) or a third party, if there are no restrictions on the relationship of such a transaction by the charter and (or) corporate agreement.
The alienation of a share (stock) is a transaction. In accordance with Article 157 of the Civil Code of the Russian Federation, a transaction is acceptable depending on the occurrence of an event for which it is unknown.
If so, then business partners may again conclude an agreement in which they provide for the sale by one of them of their share upon the occurrence of any events or the sale by both of them of their shares. However, in the latter case, it is logical to offer to differentiate events so that there is no banal exchange of shares between partners of the company.
We hope that the aforementioned was not overloaded with legal subtleties and allowed us to form additional tools for resolving corporate conflicts. At the same time, the list of the tools presented by us is not exhaustive, and their placement in the material is presented not in terms of their priority, but only for the sake of convenience of perception of information.
Vitaly Vetrov,
managing partner
law firm "Vetrov and partners . "
Ask questions you are interested in in the comments, we will definitely answer the most important in the following posts of our weekly legal column in the blog of the collective investment platform VCStart.com . We remind you that our project, created to attract venture capital investments in start-ups, is fully launched in 26 days. Currently, the platform works for registering investors and authors of startups in the pre-launch mode.
Source: https://habr.com/ru/post/234595/
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