How to conclude an invalid transaction on the alienation of a share (a series of materials “harmful legal advice”).
Shares in the authorized capital may be transferred to other persons on the basis of transactions, by succession or on other grounds.
Ideally, business division issues can be resolved through the sale / donation of shares (stocks) in the authorized capital of companies in accordance with the schemes defined by the legislation on LLC and JSC. However, in practice, everything may look different, much more interesting.
In today's article, an overview of frequently encountered “ways” to make problems when making transactions with shares in the form of invalidating such transactions.
1. Violation of the rule on the preemptive purchase of shares by other participants / shareholders.
A participant who wants to sell his share (stock) in the management company must necessarily offer it to other participants - before alienating it to third parties. In any case, it is said in the legislation on LLC and JSC. But if you really want to, then you can - so consider persons who neglect this rule. Which, in turn, leads to the contestation of such transactions and the transfer of rights and obligations under the agreement to the interested party. At the same time, the contest takes place on various grounds - violation of the deadlines, sale at a different price than indicated in the offer, or failure to comply with the conditions for notifying the company and participants.
We observe a similar situation in the Resolution of the Arbitration Court of the Central District of July 13, 2015 in case No. A08-5589 / 2013: the participant sold his share to the director of the company (who was not a participant before). A notice of intent to sell the stake was made - it was handed to the same director, which meets the requirements of the law. And everything would be fine, but the transaction on the alienation of the share to a third party was completed the next day after the company received the offer in the person of the director, while the charter of the company provided for a thirty-day period for responding to the offer. The court indicated that the pre-emptive right to purchase expires on the day that the pre-emptive right expires. The conclusion of the transaction before the expiration of the specified period deprived other participants of the opportunity to exercise their preemptive right to purchase. The rights and obligations under the contract were transferred to the interested party.
Resolution of the Third Arbitration Court of Appeal dated July 15, 2015 in case No. A33-15670 / 2014: The company received an offer from one of the participants on the conditions for the sale of a share to a third party. The second participant agreed in writing, and then changed his mind and independently accepted the offer, handing over the consent to purchase the share to the participant directly selling the share. However, the general meeting in the person of a third participant with a majority of votes distributed this share to the third participant, as a result of which information was drawn up in the USRLE on the ownership of the share at the same time by two different members of the company.
The court indicated that since the second party did not declare the refusal to use the preemptive right to purchase in a notarized form, affixing the initial consent to the offer to sell to a third party is not regarded as a refusal. The share was to go to the second participant. The third party’s right to share was declared absent.
2. Registration of the sale of shares through feigned transactions.
The participants in civil turnover make various attempts to circumvent the rule on the right to preemptively acquire shares (shares) by other participants. One of the types of tricks is to formalize the actual sale of a share using a chain of other transactions.
In case No. A56-43409 / 2014, the CJSC shareholder contributed its shares as a contribution to the authorized capital of the Company 1 created by her, valuing them at 5,000 rubles, then sold a share of 100% of the authorized capital of the Company to 1 to the Company 2. Controlling entities of the Company 1 were changed and subsequently, Company 1, under a donation agreement, transferred a share consisting of the indicated number of shares of the CJSC to an individual - a close relative of the members of Company 2, evaluating the gift at the same 5,000 rubles.
The courts found that this set of actions was encompassed by a single intention and was committed with the aim of disposing of the shares by their original owner, bypassing the rules on the preemptive right of other shareholders to purchase shares, despite the fact that there was no evidence in the case of compensation for their alienation. The court took into account that 100% of the charter capital of Company 1, the main asset of which was a disputed block of shares, was alienated to Company 2 for EUR 1.8 million, payment of the assigned share was actually made.
The transactions were qualified by the courts as a single sales contract, and were declared null and void on the grounds of pretense.
Other feigned transactions covering up the share purchase and sale transaction were also examined in case No. A40-98289 / 2014 (Resolution of the Ninth Arbitration Court of Appeal of 05.25.2015).
3. Not a transaction confirmation from a notary.
The transaction on the alienation of a share must be notarized. Except for a number of cases. Failure to comply with the notarial form entails the invalidity of such a transaction.
By the decision of the Arbitration Court of the Central District of September 10, 2014 in case No. A14-12297 / 2013, the contract of donation of a share in the authorized capital was declared invalid. One of the grounds is non-compliance with the specified notarization requirement.
4. Alienation of an unpaid share.
Another win-win option for a deal with doomed shares is the alienation of a share that is not paid / not fully paid. Due to direct legislative prohibition, an unpaid share (part of a share) in the authorized capital of a company cannot be the subject of transactions.
The Federal Arbitration Court of the West Siberian District came to the same conclusion in the Decree of April 29, 2014 in case No. A67-706 / 2013 on the invalidation of a contract of donation of a share.
Moreover, the payment of a share is understood as its payment when making contributions to the authorized capital of the company. Therefore, the established ban on the alienation of a share in the authorized capital of the company until it is fully paid does not apply to secondary transactions with shares, since the subject of the latter is the share of the already formed (paid up) authorized capital (Resolution of the Seventh Arbitration Court of Appeal of September 25, 2014 in case No. A03-3071 / 2014). In this case, the sole member of the company sold its stake to a third party, who, in turn, sold the stake to the next buyer, not paying off the original member.
This decision is interesting not only with conclusions regarding the primary / secondary payment of the share, but also with the decision to invalidate the transaction on the basis of its conclusion solely for the purpose of causing harm to a third party - to create the appearance of alienation of the share, conscientiousness of the acquisition of the share by the buyer and the impossibility of restoring corporate control of the original owner, those. with abuse of law.
5. Falsification of documents on disposal of shares.
What should a member of the company / director do if the joint business partner is no longer satisfied with the decisions or actions taken? Many participants in future trials believe that the best way is to falsify documents on the transfer of shares. Apparently, such entrepreneurs are not aware of the technical possibility of determining the fact of falsification of a signature. There is no other explanation for such indiscretion. Not only that, falsified documents (transactions, decisions of general meetings) are disputed in the arbitration court with a handwriting examination, the established fact of falsification of the signature may be the basis for criminal prosecution.
There are many cases challenging the alienation of shares on the basis of forged documents. The majority ends with the recognition of the “victim” right, using handwriting examination and criminal case materials. Thus, by the Decision of the Sixth Arbitration Court of Appeal dated 05/14/2015 in case No. A16-975 / 2012, the results of the examination carried out as part of a criminal case on the fact of acquisition by an unidentified person by deception of ownership of a share in the authorized capital were used.
As you can see, there are many options and this is far from all.
There are also incorrectly executed offers; alienation of shares that for some reason do not belong to the seller at the time of the transaction; lack of consent of the participants to transfer the share to a third party, if such consent is provided for by the charter, etc.
Before committing such actions, consciously or unconsciously, it is worth thinking carefully, because the time, money and nerves spent on protracted corporate conflicts may not be comparable with the result obtained in a civilized way. However, civilizations are different.
The experts of the law firm Vetrov & Partners are ready to advise you on increasing the authorized capital of the company so that you can take advantage of all the advantages in the current situation.
We are confident that a clear and human explanation of the advantages and disadvantages of options in your situation will only lead to the adoption of the right management decisions and will have a positive impact on your business. It will also help protect against incorrect decisions and adverse consequences.
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August 10, 2015
Yana Polish
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