Challenging the decision of the meeting of participants on the early termination of the powers of the general director

Challenging the decision of the meeting of participants on the early termination of the powers of the general director. Arbitrage practice.

In accordance with Art. 12 of the Civil Code of the Russian Federation, one of the ways to protect civil rights is to invalidate the decision of the meeting. In the case under consideration, the plaintiff used such methods of protection and applied to the court with a request to recognize the decision of the general meeting of participants of the LLC as invalid. In addition, the plaintiff demanded that the decision taken by the tax inspectorate to make an entry in the Unified State Register of Legal Entities on the basis of the decision of the meeting disputed by the plaintiff be recognized as illegal.

Case plot:

S.I. Eremenko (plaintiff) is a member of Seyho-motors LLC and acted as the general director of the said company. In accordance with the minutes of the meeting, the agenda of the extraordinary general meeting of LLC participants includes the following issues: 1) on the election of the chairman and secretary of the meeting, 2) the powers of the General Director of the Company, violating the provisions of the corporate agreement and the Charter of the Company, 3) approval of interested party transactions, committed S.I. Eremenko. The counterparty in this transaction was IP I.V. Eremenko - the wife of the current general director; 4) approval of amicable agreements on a number of statements of claim. All participants of the company participated in the extraordinary meeting (V.N. Klimtsov - 50%, S.I. Eremenko - 50%), pledge holders of part of the share of S.I. Eremenko in the amount of 1% - Monitor and Ya LLC, Finresurs LLC, Koleso Plus LLC.

An extraordinary general meeting of participants decided to terminate S.I. Eremenko of the powers of the general director of the LLC, since he made interested-party transactions without the approval of the general meeting of participants in the LLC. In addition, by decision of the meeting, I.G. Kushnir. These decisions became the main incentive for S.I. Eremenko to court.

Plaintiff's Position:

1) the participants of the meeting ignored the requirements of S.I. Eremenko on holding a secret ballot as a guarantee of independence;

2) the pledge holders of the share did not have the right to vote on the early termination of S.I. Eremenko powers of the General Director;

3) the issue of electing a new general director was not included in the agenda.

Respondent's position: the respondent claims to hold a general meeting in compliance with the legislation of the Russian Federation, without violating the rights and legitimate interests of the participants.

Judicial act: Decision of the Arbitration Court of the Chelyabinsk Region dated 03.03.2022 in case No. А76-18457/2021

Court position:

1) about ignoring the plaintiff's demand to hold a secret ballot, the court said the following:

- the decision taken on the basis of the secret ballot does not essentially differ from the results of an open vote. Moreover, holding a secret ballot between two participants cannot further ensure independence;

- S. I. Eremenko demanded to hold a secret ballot without providing the second participant with ballots, which indicates the creation of obstacles to the general meeting of participants, and not the desire to ensure independence;

- at the meeting, the plaintiff voted against the approval of the Regulations on holding a secret ballot. It follows from this that S.I. Eremenko did not intend to hold a secret ballot.

2) on the plaintiff's arguments about the lack of the right of the pledge holders of a part of the share to vote at the general meeting:

- in paragraph 2 of Art. 358.15 of the Civil Code of the Russian Federation states that, unless otherwise provided by the agreement on the pledge of a share in the authorized capital of a limited liability company, until the termination of the pledge, the rights of a member of the company are exercised by the pledgee. Pledge agreements provide for the exercise by pledge holders of the rights of a company participant at a general meeting on the issue of early termination of the powers of the general director if there are certain grounds. Such a basis was the improper execution of S.I. Eremenko powers of the General Director. In this regard, the court came to the conclusion that the pledgees had rightfully voted at the general meeting.

3) on not including the issue of electing a new General Director on the agenda:

- according to paragraph 6 of Art. 43 of the Law on LLC, decisions of the general meeting of company participants adopted on issues not included in the agenda of this meeting (except for the case when all participants of the company were present at the general meeting of participants of the company), or without the majority of votes of the company participants necessary for making a decision, do not are valid regardless of whether they are challenged in court. In the present case, all participants were present at the meeting;

- in preparation for the meeting by e-mail S.I. Eremenko was sent information about candidates for the position of General Director. The plaintiff was aware that the meeting would consider not only the issue of early termination of the powers of the General Director, but, in case of a positive decision, the issue of appointing a new General Director of the Company would be considered.

The plaintiff's claim was denied

Comment:

1) the considered court decision confirms the practice of the courts not to restrict the mortgagee's right to change the director. Moreover, if the pledgees had not been invited to participate in the meeting, they would have the right to challenge such decision of the meeting.

2) a separate issue in this case is the interest of the plaintiff. According to S.I. Eremenko, the court decision violated his rights to manage the company. However, at the time of the consideration of the claim, the plaintiff no longer exercised the powers of the general director (an entry about the new director was made in the Unified State Register of Legal Entities). Despite this, the participant retains an interest in challenging even when another director is already listed on the register.

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