Violation by the financial manager of the pre-emptive right to purchase a share

Violation by the financial manager of the pre-emptive right to purchase a share. Federal Law "On Bankruptcy" and Federal Law "On LLC". The procedure for the sale of a bankrupt's share in an LLC.

The subject of the dispute under consideration is the resolution of the issue of the procedure for the LLC participant to exercise his right of preemptive purchase of a share with a bankrupt debtor. How do the Federal Law “On Bankruptcy” correlate with the Federal Law “On LLC” in this case? What is the current procedure for selling a bankrupt's share in an LLC?

Case plot:

Yurasova L.N. was one of the participants of Continent LLC. In 2018, one of the LLC participants, Eliseev S.A. was declared insolvent (bankrupt), a procedure for the sale of property was introduced in relation to the debtor, Anokhina T.M. was approved as a financial manager. As a result, Budnikov R.Yu. became the winner during the auction, as a result of which the financial manager concluded a contract of sale with him.

In this regard, Yurasova L.N., having applied to the court, believes that the alienation of the share in the authorized capital of the company was carried out without her consent and sending the participants an offer to acquire the share, which violated her pre-emptive right. Requires to transfer the rights and obligations of the buyer under the contract for the sale of a part of the share in the authorized capital of OOO Continent to itself.

The lower courts refused to satisfy the claims due to the fact that the plaintiff (as well as the LLC itself) were not deprived of the opportunity to participate in the ongoing auction for the sale of the disputed share (+ the plaintiff could not have been unaware of the circumstances of declaring another participant bankrupt).

In this regard, the plaintiff filed a cassation complaint with the court.

Judicial act: Resolution of the Arbitration Court of the North Caucasus District dated November 16, 2021 in case No. А63-14501/2020.

The conclusions of the court, which canceled the judgment of the lower courts:

1. The courts of lower instances found that the plaintiff (as well as the LLC itself) were not deprived of the opportunity to participate in the ongoing bidding for the sale of the disputed share. The plaintiff could not have been unaware of the circumstances of declaring another participant bankrupt and introducing a procedure for the sale of property against him with the announcement of public auctions for the sale of a share, that is, she had a real opportunity to exercise the pre-emptive right to purchase a share by participating in them.

2. The courts did not take into account the following: in order to ensure a stable composition of LLC participants, where the personal factor is important and significant, the relationship between participation in capital and management is extremely high, the legislator gave the company participants a pre-emptive right to purchase a share.

3. This right is aimed at preventing third parties from managing the company and applies to any cases of transfer of ownership of a share in the authorized capital, since it is due to the closed nature of the LLC, which is an association of persons and capital, in which the personality of each member of the company is of significant importance.

4. The purpose of selling a share at the highest price does not conflict with the rule established by Law No. 14-FZ on the ownership of the right of pre-emptive purchase of a share by a company participant.

5. The Law on Bankruptcy and Law No. 14-FZ are normative acts of special regulation, which does not exclude their joint application with respect to the relevant legal relations.

Comment:

1. In order to ensure the right of preemptive purchase of a share of a company participant, it is necessary:

1.1. Notification of the sale of property sent by a person who meets the characteristics of the buyer, who has the predominant right to acquire property.

1.2. After determining the price at the auction, the arbitration manager offers to purchase the property to a person who has the right of first refusal. If, after the expiration of the established period, the participant does not exercise his pre-emptive right to purchase, then such right is terminated and the winner of the auction is recognized as the buyer of the share.

2. Such an approach, among other things, corresponds to the essence of the pre-emptive right of purchase, which consists in the legal possibility for a person determined by law to acquire property on the terms (including at the price) at which this property is ready to be acquired by a third party.

3. At the same time, jurisprudence notes that challenging the auction in case of violation of the pre-emptive right to purchase is not an appropriate way to restore rights, since it entails the impossibility of determining the sale price when the auction is declared invalid.

4. If such a procedure is ignored, the person having the right of preemption is entitled to a claim for the transfer of the rights and obligations of a party to the transaction.

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Marina Sorokina