Option to sell a share. Option to buy a share. Option to enter into an agreement option agreement. Option agreement for a share in LLC.
When signing option agreements, you should carefully consider the terms of the transaction. An option agreement is an irrevocable offer to which acceptance can be given at any time during a specified period. In this case, it will not be easy for the offeror to dispute the transaction or the option agreement. If there are any special conditions for the conclusion of a transaction, for example, non-performance of another contract, this should be indicated in the offer.
The plot of the case:
The participant of the “RKO” company (hereinafter referred to as the Respondent) concluded an option agreement with a third party on the sale of its interest in the company. As a result of the transformation, the company Agrocom Holding (hereinafter referred to as the Claimant) became the successor of the buyer, which applied to the court to recognize the share purchase agreement as a prisoner.
The option to conclude the contract was notarized, on the same day the seller sent an offer to conclude the contract. The acceptance was received several months later, but within the period specified in the offer and in the option.
The seller declined to conclude a sales contract in the form of a single document signed by the parties, as prescribed by an option agreement.
The court found no violation of the established procedure for the sale of the share, the refusal of the second participant LLC RKO from the preemptive right of purchase was received, the Claimant sent a properly executed acceptance.
The court of first instance refused to satisfy the claimant’s requirements, as well as the Respondent’s counter-claim for recognizing the option agreement to be invalid. The Court of Appeal granted the claim.
Judicial act: Resolution of the 15th AAC of April 12, 2019 on cases No. А53-28436 / 2016 and 15АП-3428/2019.
The findings of the court:
1. The offer binds the bidder from the moment the addressee received the offer. The contract will be considered as concluded from the moment when the offeror learned of the actions performed by the addressee testifying to the acceptance.
2. A transaction aimed at alienating a share in the company is subject to notarization by drawing up a single document.
3. The share is transferred to the buyer at the time of notarization of the transaction aimed at alienation.
4. A participant in an option agreement has the right to demand from the second participant to conclude an agreement and transfer the share in court, if the second party to the agreement evades the fulfillment of counter-obligations upon the occurrence of the conditions established by the option agreement.
5. In the case of notarization of the acceptance of a notarially certified offer, the contract is concluded. The signing of a contract in the form of a single document is a consequence of the purchase and sale transaction, and not its cause.
6. Counterclaims for invalidation of an option agreement are not subject to satisfaction because the subject of the dispute is not forcing the defendant to enter into an agreement, but to recognize it as concluded by the parties having taken all necessary actions to enter into an agreement.
Comments:
1) The defendant in the counterclaim indicated that the option could be exercised only in the event of non-fulfillment of obligations under the guarantee agreement on the loan to Global-P LLC. However, judicial acts do not contain information that the option contained any references to the contract of guarantee. The defendant issued an offer with a specific term. The plaintiff took advantage of the offer and made an acceptance in the manner prescribed by law. If it was necessary to condition the relations of the parties by the execution of a surety agreement, it was necessary to indicate this in the option as a condition under which the option could be concluded.
2) As the court correctly noted, the conclusion of a sale and purchase agreement in the form of a single document is only a consequence of the formalization of contractual relations between the parties, which arose as a result of the acceptance of the issued offer. In this regard, the Claimant did not correctly declare in court a requirement for the compulsion to conclude a contract of sale.
3) The appellate court ordered the Respondent to transfer the Claimant a share of the participation. However, as the court indicated in the decision, the share is considered to be transferred to the buyer from the moment of notarization. Thus, the Respondent should make registration actions in pursuance of the concluded purchase and sale agreement and receive funds for the sold interest from the notary deposit.
4) At the same time, it is not clear why the notary did not fulfill his duties on the transfer of documents to the Unified State Register of Legal Entities to make changes to the register in the part of the list of participants of LLC “RKO”. According to Art. 21 of the Law on LLC, a notary who has certified a transaction on alienation is obliged to transfer information to the Unified State Register of Legal Entities. Since the contract was concluded from the time of the acceptance certificate and the share is deemed transferred from the same moment, it would be logical if the register already contains an entry stating that the Defendant is no longer a member of the company.
We also have audio podcasts. These are issues of 2-5 minutes. Dedicated to a single dispute, conflict or news. You can listen to them directly on our website, on the podcast site or download to your computer, smartphone, etc. Issue 1 (on secondary liability); Issue 2 (contesting the agreement on the basis of abuse of the right); Issue 3 (termination of the contract at the initiative of the seller, what to consider?). Another couple dozen on the link.
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