Judicial act: Resolution of the Arbitration Court of the Far Eastern District of December 27, 2021 in case No. Ф03-7030/2021
Court's findings:
1. The notice of the General Meeting of Shareholders of JSC IC Sakhalin was sent by the company to shareholder O. V. Zhukov. on time, the postal item by the addressee, moreover, was actually received.
2. The materials of the case do not contain information that in this case the information (materials) were not available for review to the shareholders, in particular, in the premises of the executive body of the company during the period fixed in the specified norm. Equally, there was no evidence that included in the list of persons entitled to participate in the general meeting, Zhukov Oh.The. made attempts to familiarize himself with the indicated materials, but was unlawfully limited in this.
3. In fact, no significant violations of the procedure for convening, preparing and holding a controversial meeting of the company's participants were allowed.
Comment:
1. The problem in this case was to determine the fact of proper notice of the meeting of shareholders. The positions of the courts were divided.
2. If the lower courts have come to the conclusion that the obligation of the executive body to notify the company's participants of the holding of a general meeting does not involve formally sending a notice to the participants, but taking measures to actually notify the company's participants of holding such a meeting in order to exercise their corporate rights by the company's participants, then the position of the cassation was different, more formalized and focused on compliance with Art. 52 FZ "On JSC".
3. The Court of Cassation noted that it is necessary to distinguish the situation, according to which, in principle, the fact of notifying the plaintiff about the meeting or sending him a voting ballot was not proved in the case and, without having information about the meeting, the shareholder was deprived of the opportunity to take part in it (material violation ) from a situation where there were no significant violations of the procedure for convening, preparing and holding a controversial meeting of company participants (for example, a shareholder received a notification, but for some reason does not have time to familiarize himself with the materials within the specified period).
4. In the case of the first described situation (material violation of the procedure), the decision of the general meeting of participants (shareholders) is subject to invalidation, regardless of the size of the share in the authorized capital (number of shares) the plaintiff owns. In the second case, which the cassation court came to in its decision, since there was no concrete evidence of a violation of the shareholder's rights during the contested meeting, therefore, his demands were left unsatisfied.
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