Corporate governance: how is a company legally built?
Hi, Habr! The chapter on venture investment received quite a lot of positive feedback, and therefore I decided to continue publishing my book on the legal aspects of IT business. Today we are talking about corporate governance.
The book "The law of a startup":
Huge volumes have been written about the legal aspects of company management, so I will be brief and try to uncover the topic at the most basic level - so that, as Helvetius wrote, with knowledge of several principles, to compensate for the lack of knowledge of many facts.
')
Legal entities
In Russia - yes, in general, and in the world - there are dozens of forms of legal entities. The main differences are:
Add here outdated forms (in which hundreds of legal entities are still working) and get a huge variety. Honestly, few people know how many of them exist; even law students don't study everything. There are even forms in which only a few organizations are created.
We will confine ourselves to “useful” (within the IT business) types of legal entities - commercial limited liability corporations. These include Joint Stock Company (AO) and Limited Liability Company (LLC); The law calls these two forms "business societies". You can do business in another form (for example, in the form of a non-profit organization or economic partnership), but they are very specific and deserve a separate story.
AO and LLC give the entrepreneur a limited liability , that is, he is not liable for the company 's obligations with his property. For this reason, firstly, both forms are super popular in Russia: 80% of registered legal entities belong to an LLC, 5% to AO, and the rest to a predominantly non-profit organization. Secondly, a specific contractual discipline is taking shape: any entrepreneur is forced to keep in mind that his relations with the counterparty are not protected by anything and that anyone can refuse to perform the contract. As a result, high advances have become the norm in turnover - 50-80%.
Briefly consider both forms, their advantages and disadvantages.
Limited liability company
To establish an LLC is extremely easy: it takes three days and from 10 to 25 thousand rubles. The shares of the participants of the LLC are fixed in the open register of Incorporation ( egrul.nalog.ru ). Recently, all changes in this register (pledge of shares, withdrawal and change of participant) are checked by a notary. This greatly reduced the risk of forgery and raiding, and the openness of the registry makes it easy to check any counterparty.
Corporate governance in LLC is very simple, even, one might say, primitive. Decisions are made by simple majority. Some decisions require the approval of 2/3 of the participants, and some are taken only unanimously. There are no special requirements for holding a general meeting of participants, the board of directors or the auditor is not required. In fact, an LLC can function perfectly with only one participant (he is the director and the only employee), which is very convenient at an early stage of the business. However, if the business is complexly structured (for example, there is an option pool, a corporate contract with the participation of the investor), the simplicity of an LLC plays a rather negative role.
Joint-Stock Company
AO is more complex: here the rights of participants are not tied to the shares fixed in the register, but to securities - shares (respectively, the participants of the JSC are called shareholders). Shares are “non-documentary,” that is, in reality, these are only entries on the accounts of special private registrars. The ownership of shares to specific shareholders is not listed in the Unified Register: there you can find only the total number of shares of the JSC.
When one participant of a joint stock company wants to transfer his shares to another, he draws up a contract and transfers it to the company's registrar, and he already transfers the shares from one account to another. This is significantly simpler than going to a notary in the case of an LLC: the change of shareholders of an AO can occur continuously and continuously, for this it is not required to make entries in the Unified State Register every time. It is convenient to own shares, without taking part in management, but only making a profit (dividends) - this is called portfolio investment .
For the same reasons, joint-stock companies are the preferred form for large businesses, including those suitable for large corporations with thousands of shareholders. It is also easy to “customize yourself” with the help of alternative agreements: to create a complex management structure or to conclude agreements on various voting procedures on various issues; create several types of shares with a different voting procedure, etc. There are many restrictions in a JSC that are peculiar to an LLC, for example, a limit of 50 members of the company.
The main disadvantage of joint-stock companies is that they are more expensive than LLC. So, for the joint-stock company annual audit which costs money is obligatory. Also, the procedure for registering an AO takes more time than a month (more than a month) and costs more because of the hassle of issuing shares (securities are additionally registered with the Bank of Russia).
In addition to the simple joint-stock company, in Russia there is a form of public joint-stock company (PJSC). PJSC require additional actions during registration and are intended primarily for public offering (sale of shares to everyone). You probably heard about them: Sberbank PJSC, Rosneft PJSC constantly appear in the news. Next, I will write about the joint-stock company, having in mind the simple (non-public) societies: if you suddenly decide to create a PJSC, it’s better to contact the professionals at once)
So, for any startup in Russia, two forms of legal entities are suitable: LLC and JSC. A limited liability company is easier to register and maintain, so it is convenient for small businesses. Joint-stock company is more complicated and expensive, but it is possible to implement complex investment structures. There is an opinion that in the future it will be the joint-stock company that will become the most common form for attracting venture investments.
Corporate Rights
Both joint-stock company and limited liability company are corporations, as they have a “membership”. This means that the participants of the LLC and the shareholders of the JSC, not being the owners of the company's property , nevertheless have certain (corporate) rights in relation to it, and the volume of these rights depends on the share in the company’s capital. Thus, members are entitled to manage the company, to participate in the distribution of profits (the right to dividends), to get acquainted with the internal documents of the company, etc.
Members of society can be both physical and legal persons. The participation of one company in another allows you to create large chains of interdependent firms - such a structure is called a holding . Structures of legal entities are used for various purposes: to optimize taxation, create diversified companies, compensate for the imperfections of Russian corporate law. The simplest structure - a company consisting of one participant (he is a director) - is often used to limit liability when an entrepreneur, for example, does not want to become an SP.
Authorized capital
The percentage of participation in the company depends on how much money the member has invested in the share capital . Authorized capital is a formal value and determines, first of all, the distribution of rights among members of society, and in no case is it the real amount of its assets. The minimum share capital is 10 thousand ₽ for LLC and non-public joint-stock companies. Most companies adhere to this amount and do not increase capital, unless it is required by the terms of the license (so, for a banking license, the share capital must be extremely large).
How is share capital associated with the distribution of shares?
For joint-stock companies, share capital is defined as the nominal value of shares × number of shares .
The authorized capital may increase or decrease (not below the minimum). In LLC, this happens by simply changing the number fixed in the charter - accordingly, participants must pay the society the difference between the old and the new size.
In a joint-stock company, in order to increase the authorized capital, it is necessary to increase the nominal value of shares or their number. The first option is used when there is no need to change the composition of shareholders (each will simply increase the nominal value of a share); The second option is suitable if the company attracts an investor.
Sale of shares
When a company attracts a new member, the best option is to increase the authorized capital and transfer the “free” share to it. First, then the money will go directly to the company (important if it comes to investments); secondly, the shares of the other participants equally "blur" (decrease). Thus, an increase in the share capital in such a situation is the simplest and fair option.
However, to sell a share, it is not necessary to change the authorized capital. It is enough to find a buyer, negotiate a price and follow the formalities. An AO is required to draw up a transfer order, and an LLC must comply with the preemptive right clause and witness the contract with a notary.
Separately, focus on the preferential right . This restriction, which necessarily applies to all LLCs, as well as at the request of the founders, can be introduced in non-public JSCs. The essence of the preemptive right is as follows: before selling a share to a third party (not a member of the company), the remaining participants must be refused the purchase under the same conditions. In other words, active members of a society always have an advantage over potential ones.
In the past, many frauds were used to circumvent this rule. Now almost all the loopholes in the law are closed, and with a preferential right in the LLC will have to accept. It protects society from the uncontrolled multiplication of participants and thus reduces the likelihood of corporate conflict.
The essence of the preemptive right is as follows: before selling the share to a third party (not a member of the company), the remaining participants should be refused. In other words, members of a society can always redeem a sold share to third parties. Previously, in order to circumvent this rule, many frauds were used. Now almost all the loopholes in the law are closed, and with a preferential right to be put up with.
The withdrawal from a limited liability company can be toughened even more, replacing the statutory priority right to a mandatory permit. This means that participants will be able to prohibit anyone going to sell their share. However, even in such a situation, it is impossible to “block” a participant in the company: the law gives him the right to “hand over” a share to the company in a hopeless situation, having received an equivalent part of assets. Subsequently, this share will be redistributed between the participants or redeemed (with a decrease in the share capital).
General meeting
The supreme governing body of the company is the general meeting: the participants - in the LLC and the shareholders - in the JSC. It makes key decisions:
A general meeting is held at least once at the end of each year. It can also be held out of schedule - at the request of 10% of participants, as a result of an audit by the auditor / auditor, and in certain cases, at the request of the board of directors or the general director.
Decisions at a general meeting are made based on the share of a member. The higher the percentage, the more opportunities:
Why is the percentage higher in joint-stock companies? The point is one fundamental difference between general meetings in LLC and JSC. In a limited liability company, the decision is made based on the share of the participant in the company as a whole . That is, if at a meeting less than 50% of the participants voted, they will not be able to make any decision, if only because they do not get the necessary number of votes from the total number.
There are usually many participants in a joint stock company, and it is difficult to gather them all. Therefore, at the general meeting of the joint-stock company, the votes of those present are considered only, but the meeting is valid only if more than 50% of the participants are present. This figure (50%) is called the “quorum”; for some situations, it is even lower if it is impossible to hold a meeting from the first time or if the society is very large.
The system adopted by LLC, to a greater extent guarantees protection against fraudsters, since the decision is physically impossible to make without a majority. In AO, the system of general meetings is much more cumbersome and formalized. In addition to counting the votes of those present and the quorum, general meetings in the JSC are complicated by the mandatory presence of a notary or a registrar who keeps a register of shareholders.
Participants can agree in advance to vote in a certain way when certain conditions occur - for example, unanimously approving the issue of additional shares when an investor comes to the company. Such an agreement between members of society is called a corporate agreement .
Board of Directors
Since it is rather troublesome to convene a general meeting, to solve current management issues, you can create a special council of shareholders' representatives - the board of directors, or the supervisory board .
The board of directors can transfer most of the powers of the general meeting: approval of transactions, creation of subsidiaries, opening branches, approval of an auditor or auditor, adoption of internal documents, placement of bonds, and even an increase in authorized capital (additional issue of shares or a change in nominal value) in an AO. In joint-stock companies, the council usually deals with the complicated procedure of convening a general meeting.
CEO
The CEO of a company is no longer a management body, like a general meeting or a board of directors. The law calls it “the executive body”, that is, the director-executor of the decisions of the owners; not the “brain” of a legal entity, but its “hands”. The competence of the director does not include issues of strategic development of the company, approval of the annual report, etc.
However, in the household sense, the director, of course, manages. He acts on behalf of the company (signs all documents, issues powers of attorney, concludes contracts, signs acts), and society as a whole becomes a party to such documents. He publishes the company's internal documents (orders, regulations) and directs employees, rewards them and punishes them. Finally, the company is registered at the location of its director.
The director of a company can be any person, even a legal one (“management company”). However, in small companies, the functions of director are most often performed by one of the founders. In large companies, together with the director, a special body (board) may act to make executive decisions by voting, and since 2014 another option has appeared in the law: several directors, each acting within their own powers.
It is necessary to distinguish the director from the point of view of corporate governance (the director is the company's organ) and the director — the employee of the company (the one with whom the labor contract was concluded). Director as a company body is obligatory. His data are indicated in the application during registration, and then the director can only be changed to another one (it is impossible to refuse the director). At the same time, it is not necessary to enter into an employment contract if there are no more employees in the company. In this case, you can save on fees and reduce the number of papers. In such a situation, the company has a director-organ, but no director-employee.
For all decisions taken at his post, the director is responsible for:
In addition to responsibility after the fact, there is also a mechanism for preliminary control over the actions of the director. This is a mechanism for additional coordination of extraordinary transactions - that is, transactions that go beyond the ordinary (ordinary) activity of the company.
Legislation identifies two types of extraordinary transactions: major transactions and transactions with interest.
Large transactions are transactions whose value exceeds 25% of the company's assets. They must be approved at a meeting of the board of directors or at a general meeting. The deal, which costs “more” 50% of the company's assets, is approved only by the general meeting, regardless of the presence of the board of directors.
Interested party transactions are transactions whose parties are related: two companies with one director, a father company with a son company, etc. From 2017. it is enough to inform the board of directors and participants of the company about transactions with interested parties - if there are no complaints about the transaction, it is not necessary to approve it.
Please note: the company's charter may include additional requirements for extraordinary transactions, for example, lowering the threshold of large transactions or require approval of all transactions of a certain type - such as loans or donations. Check the statute of the counterparty, so as not to miss the extraordinary deal!
Deals that are not properly approved are easy to challenge. If the transaction is potentially extraordinary (suppose a large one), reconcile it yourself and check if your counterparty did the same - ask him to give you a copy of the decision or protocol.
For those who do not want to wait for the publication of the remaining chapters on Habré - a link to the PDF of the full book is in my profile.
The book "The law of a startup":
- Starter vs. entrepreneur
- Choose a form
- check in
- Corporate Governance
How is a company legally built? - Current work
Contracts and how they work
How to check an open source partner - Taxes
What does IT business pay in Russia? - Governmental support
- Startup cycle
How venture investment (in general) works - Venture transactions
- Venture funds
- Intellectual property
- Offshore and foreign trade
The advantages and pitfalls of offshore
Huge volumes have been written about the legal aspects of company management, so I will be brief and try to uncover the topic at the most basic level - so that, as Helvetius wrote, with knowledge of several principles, to compensate for the lack of knowledge of many facts.
')
Legal entities
In Russia - yes, in general, and in the world - there are dozens of forms of legal entities. The main differences are:
- liability (limited or unlimited);
- membership-based corporations or non-membership unitary organizations;
- private forms of organizations and public - state and municipal;
- the presence of “equity stakes” in percent or, on the contrary, complete equality of participants;
- different taxation principles (not in Russia);
- commercial or non-commercial orientation, etc.
Add here outdated forms (in which hundreds of legal entities are still working) and get a huge variety. Honestly, few people know how many of them exist; even law students don't study everything. There are even forms in which only a few organizations are created.
We will confine ourselves to “useful” (within the IT business) types of legal entities - commercial limited liability corporations. These include Joint Stock Company (AO) and Limited Liability Company (LLC); The law calls these two forms "business societies". You can do business in another form (for example, in the form of a non-profit organization or economic partnership), but they are very specific and deserve a separate story.
AO and LLC give the entrepreneur a limited liability , that is, he is not liable for the company 's obligations with his property. For this reason, firstly, both forms are super popular in Russia: 80% of registered legal entities belong to an LLC, 5% to AO, and the rest to a predominantly non-profit organization. Secondly, a specific contractual discipline is taking shape: any entrepreneur is forced to keep in mind that his relations with the counterparty are not protected by anything and that anyone can refuse to perform the contract. As a result, high advances have become the norm in turnover - 50-80%.
Briefly consider both forms, their advantages and disadvantages.
Limited liability company
To establish an LLC is extremely easy: it takes three days and from 10 to 25 thousand rubles. The shares of the participants of the LLC are fixed in the open register of Incorporation ( egrul.nalog.ru ). Recently, all changes in this register (pledge of shares, withdrawal and change of participant) are checked by a notary. This greatly reduced the risk of forgery and raiding, and the openness of the registry makes it easy to check any counterparty.
Corporate governance in LLC is very simple, even, one might say, primitive. Decisions are made by simple majority. Some decisions require the approval of 2/3 of the participants, and some are taken only unanimously. There are no special requirements for holding a general meeting of participants, the board of directors or the auditor is not required. In fact, an LLC can function perfectly with only one participant (he is the director and the only employee), which is very convenient at an early stage of the business. However, if the business is complexly structured (for example, there is an option pool, a corporate contract with the participation of the investor), the simplicity of an LLC plays a rather negative role.
Joint-Stock Company
AO is more complex: here the rights of participants are not tied to the shares fixed in the register, but to securities - shares (respectively, the participants of the JSC are called shareholders). Shares are “non-documentary,” that is, in reality, these are only entries on the accounts of special private registrars. The ownership of shares to specific shareholders is not listed in the Unified Register: there you can find only the total number of shares of the JSC.
When one participant of a joint stock company wants to transfer his shares to another, he draws up a contract and transfers it to the company's registrar, and he already transfers the shares from one account to another. This is significantly simpler than going to a notary in the case of an LLC: the change of shareholders of an AO can occur continuously and continuously, for this it is not required to make entries in the Unified State Register every time. It is convenient to own shares, without taking part in management, but only making a profit (dividends) - this is called portfolio investment .
For the same reasons, joint-stock companies are the preferred form for large businesses, including those suitable for large corporations with thousands of shareholders. It is also easy to “customize yourself” with the help of alternative agreements: to create a complex management structure or to conclude agreements on various voting procedures on various issues; create several types of shares with a different voting procedure, etc. There are many restrictions in a JSC that are peculiar to an LLC, for example, a limit of 50 members of the company.
The main disadvantage of joint-stock companies is that they are more expensive than LLC. So, for the joint-stock company annual audit which costs money is obligatory. Also, the procedure for registering an AO takes more time than a month (more than a month) and costs more because of the hassle of issuing shares (securities are additionally registered with the Bank of Russia).
In addition to the simple joint-stock company, in Russia there is a form of public joint-stock company (PJSC). PJSC require additional actions during registration and are intended primarily for public offering (sale of shares to everyone). You probably heard about them: Sberbank PJSC, Rosneft PJSC constantly appear in the news. Next, I will write about the joint-stock company, having in mind the simple (non-public) societies: if you suddenly decide to create a PJSC, it’s better to contact the professionals at once)
So, for any startup in Russia, two forms of legal entities are suitable: LLC and JSC. A limited liability company is easier to register and maintain, so it is convenient for small businesses. Joint-stock company is more complicated and expensive, but it is possible to implement complex investment structures. There is an opinion that in the future it will be the joint-stock company that will become the most common form for attracting venture investments.
Corporate Rights
Both joint-stock company and limited liability company are corporations, as they have a “membership”. This means that the participants of the LLC and the shareholders of the JSC, not being the owners of the company's property , nevertheless have certain (corporate) rights in relation to it, and the volume of these rights depends on the share in the company’s capital. Thus, members are entitled to manage the company, to participate in the distribution of profits (the right to dividends), to get acquainted with the internal documents of the company, etc.
Members of society can be both physical and legal persons. The participation of one company in another allows you to create large chains of interdependent firms - such a structure is called a holding . Structures of legal entities are used for various purposes: to optimize taxation, create diversified companies, compensate for the imperfections of Russian corporate law. The simplest structure - a company consisting of one participant (he is a director) - is often used to limit liability when an entrepreneur, for example, does not want to become an SP.
Authorized capital
The percentage of participation in the company depends on how much money the member has invested in the share capital . Authorized capital is a formal value and determines, first of all, the distribution of rights among members of society, and in no case is it the real amount of its assets. The minimum share capital is 10 thousand ₽ for LLC and non-public joint-stock companies. Most companies adhere to this amount and do not increase capital, unless it is required by the terms of the license (so, for a banking license, the share capital must be extremely large).
How is share capital associated with the distribution of shares?
Vasya and Petya established the White and Fluffy LLC. Vasya contributed $ 6,000 to the share capital, and Peter - $ 4,000. It means that Vasya will have a 60% share, and Petit - 40%.
For joint-stock companies, share capital is defined as the nominal value of shares × number of shares .
Joint-stock company “Zhgi” has 100 shares with a nominal value of 200 rubles each. Its share capital is 20 000 ₽.
Sergey has 25 shares of JSC “Zhgi”, Sveta - 75. Sergey’s par value: 5 000 ₽ (25 X 200 ₽), Sveta - 15 000 ₽ (75 X 200 ₽).
So, Sergey’s share is 25% (25/100), Sveta’s share is 75% (75/100), respectively.
The authorized capital may increase or decrease (not below the minimum). In LLC, this happens by simply changing the number fixed in the charter - accordingly, participants must pay the society the difference between the old and the new size.
White and Fluffy LLC increases the share capital from 10 000 ₽ to 30 000 ₽. Vasya and Peter should proportionally proportionate: Vasya - 12 000 ₽, Peter - 8 000 ₽.
In a joint-stock company, in order to increase the authorized capital, it is necessary to increase the nominal value of shares or their number. The first option is used when there is no need to change the composition of shareholders (each will simply increase the nominal value of a share); The second option is suitable if the company attracts an investor.
JSC "Zhgi" attracts an investor. Sergey and Sveta agree that he will have a 33.3% stake. “Burn” in addition to the existing 100 shares issues 50 more pieces of the same nominal value - $ 200 each. The authorized capital of JSC "Zhgi" now amounts to 30 000 ₽.
Investor Ivan Ivanovich buys back 50 freshly issued shares for 10,000 ₽ from the company “Zhgi” (he will transfer the remaining investments later). Now its share is 33.3%. Despite the fact that both Sergey and Sveta have the same number of shares of the same nominal value, their share in the company has decreased. Now with Sergey: 16.6% (25/150); Sveta: 50% (75/150). This effect is called “lobe blur” .
Sale of shares
When a company attracts a new member, the best option is to increase the authorized capital and transfer the “free” share to it. First, then the money will go directly to the company (important if it comes to investments); secondly, the shares of the other participants equally "blur" (decrease). Thus, an increase in the share capital in such a situation is the simplest and fair option.
However, to sell a share, it is not necessary to change the authorized capital. It is enough to find a buyer, negotiate a price and follow the formalities. An AO is required to draw up a transfer order, and an LLC must comply with the preemptive right clause and witness the contract with a notary.
Separately, focus on the preferential right . This restriction, which necessarily applies to all LLCs, as well as at the request of the founders, can be introduced in non-public JSCs. The essence of the preemptive right is as follows: before selling a share to a third party (not a member of the company), the remaining participants must be refused the purchase under the same conditions. In other words, active members of a society always have an advantage over potential ones.
In the past, many frauds were used to circumvent this rule. Now almost all the loopholes in the law are closed, and with a preferential right in the LLC will have to accept. It protects society from the uncontrolled multiplication of participants and thus reduces the likelihood of corporate conflict.
The essence of the preemptive right is as follows: before selling the share to a third party (not a member of the company), the remaining participants should be refused. In other words, members of a society can always redeem a sold share to third parties. Previously, in order to circumvent this rule, many frauds were used. Now almost all the loopholes in the law are closed, and with a preferential right to be put up with.
Vasya is going to quit White and Fluffy LLC. He wants to sell the share to his friend Timur at the price of 150 000 ₽. But first, he must ask another member Petya if he wants to buy out his share first for the same price ($ 150,000).
If Petya agrees, Vasya will have to sell the stake to him, and if not, Timur will buy the stake.
The withdrawal from a limited liability company can be toughened even more, replacing the statutory priority right to a mandatory permit. This means that participants will be able to prohibit anyone going to sell their share. However, even in such a situation, it is impossible to “block” a participant in the company: the law gives him the right to “hand over” a share to the company in a hopeless situation, having received an equivalent part of assets. Subsequently, this share will be redistributed between the participants or redeemed (with a decrease in the share capital).
General meeting
The supreme governing body of the company is the general meeting: the participants - in the LLC and the shareholders - in the JSC. It makes key decisions:
- amendment of the charter;
- reorganization or liquidation of the company;
- profit distribution (dividend payment), etc.
A general meeting is held at least once at the end of each year. It can also be held out of schedule - at the request of 10% of participants, as a result of an audit by the auditor / auditor, and in certain cases, at the request of the board of directors or the general director.
Decisions at a general meeting are made based on the share of a member. The higher the percentage, the more opportunities:
- a participant with 50.1% of votes alone can take almost all “not the most important” decisions in LLC and JSC;
- a participant with 66.7% of an LLC can make almost all decisions (cannot only liquidate the society or change the ratio of other people's shares);
- A participant with 75.1% in an AO can do everything at all, if the statute does not contain additional restrictions.
Why is the percentage higher in joint-stock companies? The point is one fundamental difference between general meetings in LLC and JSC. In a limited liability company, the decision is made based on the share of the participant in the company as a whole . That is, if at a meeting less than 50% of the participants voted, they will not be able to make any decision, if only because they do not get the necessary number of votes from the total number.
There are usually many participants in a joint stock company, and it is difficult to gather them all. Therefore, at the general meeting of the joint-stock company, the votes of those present are considered only, but the meeting is valid only if more than 50% of the participants are present. This figure (50%) is called the “quorum”; for some situations, it is even lower if it is impossible to hold a meeting from the first time or if the society is very large.
JSC “Zhgi” holds an extraordinary general meeting of shareholders on the issue of changing the charter. By law, this requires at least 75% of the vote. Ivan Ivanovich did not come to the general meeting with a 33% stake, but the remaining shares of Sergei and Sveta (in the aggregate, 66.7%) would be enough for a quorum (50%). Since only the votes received are counted, Sergey and Sveta, by voting “for”, will gain 100% of the votes and will be able to make any decision. At the same time, they have a total of only 66.7% of the company's shares (less than 75%).
The system adopted by LLC, to a greater extent guarantees protection against fraudsters, since the decision is physically impossible to make without a majority. In AO, the system of general meetings is much more cumbersome and formalized. In addition to counting the votes of those present and the quorum, general meetings in the JSC are complicated by the mandatory presence of a notary or a registrar who keeps a register of shareholders.
A member of White and Fluffy LLC, Timur, with a share of 60%, decided to fool Petya from 40%. Timur waited until Petya left for the ascent to the Himalayas, and held a general meeting without him. However, Timur did not take into account that, firstly, in LLC the main decisions require ²⁄₃ and more votes of the participants; secondly, decisions are made by a majority of votes from the total number of participants, and not from the number of those who attended the meeting. It does not matter whether Petya was present at the general meeting or not, Timur will still be able to make only those decisions that a simple majority require (50% + one vote).
Participants can agree in advance to vote in a certain way when certain conditions occur - for example, unanimously approving the issue of additional shares when an investor comes to the company. Such an agreement between members of society is called a corporate agreement .
Board of Directors
Since it is rather troublesome to convene a general meeting, to solve current management issues, you can create a special council of shareholders' representatives - the board of directors, or the supervisory board .
The board of directors can transfer most of the powers of the general meeting: approval of transactions, creation of subsidiaries, opening branches, approval of an auditor or auditor, adoption of internal documents, placement of bonds, and even an increase in authorized capital (additional issue of shares or a change in nominal value) in an AO. In joint-stock companies, the council usually deals with the complicated procedure of convening a general meeting.
CEO
The CEO of a company is no longer a management body, like a general meeting or a board of directors. The law calls it “the executive body”, that is, the director-executor of the decisions of the owners; not the “brain” of a legal entity, but its “hands”. The competence of the director does not include issues of strategic development of the company, approval of the annual report, etc.
However, in the household sense, the director, of course, manages. He acts on behalf of the company (signs all documents, issues powers of attorney, concludes contracts, signs acts), and society as a whole becomes a party to such documents. He publishes the company's internal documents (orders, regulations) and directs employees, rewards them and punishes them. Finally, the company is registered at the location of its director.
The director of a company can be any person, even a legal one (“management company”). However, in small companies, the functions of director are most often performed by one of the founders. In large companies, together with the director, a special body (board) may act to make executive decisions by voting, and since 2014 another option has appeared in the law: several directors, each acting within their own powers.
It is necessary to distinguish the director from the point of view of corporate governance (the director is the company's organ) and the director — the employee of the company (the one with whom the labor contract was concluded). Director as a company body is obligatory. His data are indicated in the application during registration, and then the director can only be changed to another one (it is impossible to refuse the director). At the same time, it is not necessary to enter into an employment contract if there are no more employees in the company. In this case, you can save on fees and reduce the number of papers. In such a situation, the company has a director-organ, but no director-employee.
Director of White and Fluffy LLC Albert quarreled with the participants of the LLC and resigned from the company at his own request. At the same time, the participants could not agree for another month on the candidacy of the new director and on who would bear the tax documents. As a result, Albert remained a director of the company for a month and was listed in the Unified Register, although he was no longer an employee.
For all decisions taken at his post, the director is responsible for:
- civil (property) - is responsible for the losses of the company, if acted "in bad faith or unreasonable";
- administrative - it can be fined or disqualified for a number of misconduct (for example, for non-payment of wages);
- disciplinary - he, like any employee, can be dismissed, and the procedure itself is very simple;
- criminal - for embezzlement of the company, fraud, deliberate bankruptcy and other crimes.
In addition to responsibility after the fact, there is also a mechanism for preliminary control over the actions of the director. This is a mechanism for additional coordination of extraordinary transactions - that is, transactions that go beyond the ordinary (ordinary) activity of the company.
Legislation identifies two types of extraordinary transactions: major transactions and transactions with interest.
Large transactions are transactions whose value exceeds 25% of the company's assets. They must be approved at a meeting of the board of directors or at a general meeting. The deal, which costs “more” 50% of the company's assets, is approved only by the general meeting, regardless of the presence of the board of directors.
Interested party transactions are transactions whose parties are related: two companies with one director, a father company with a son company, etc. From 2017. it is enough to inform the board of directors and participants of the company about transactions with interested parties - if there are no complaints about the transaction, it is not necessary to approve it.
Please note: the company's charter may include additional requirements for extraordinary transactions, for example, lowering the threshold of large transactions or require approval of all transactions of a certain type - such as loans or donations. Check the statute of the counterparty, so as not to miss the extraordinary deal!
The statute can be spelled something like this:
The major transactions of Romashka LLC include:
- transactions worth over 25% of the company's assets;
- transactions worth more than 1 million ₽;
- as well as all transactions related to the alienation or acquisition of intellectual property.
Deals that are not properly approved are easy to challenge. If the transaction is potentially extraordinary (suppose a large one), reconcile it yourself and check if your counterparty did the same - ask him to give you a copy of the decision or protocol.
For those who do not want to wait for the publication of the remaining chapters on Habré - a link to the PDF of the full book is in my profile.
Source: https://habr.com/ru/post/333704/
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