New requirements for the execution of a decision or protocol of approval have recently come into force big deal. For LLC they are set new edition Law No. 14-FZ, and for JSC - a new version of the Law 208-FZ
Recently, new requirements for the execution of a decision or protocol on the approval of a major transaction have come into force. For LLCs, they are established by the new version of Law No. 14-FZ, which entered into force on September 1, 2017, and for JSCs - by the new version of Law 208-FZ, which is effective from July 30, 2017. These laws have established a new requirement: the period of validity of the decision / protocol on the approval of a major transaction must be indicated. If such a period is not set, the default decision will be valid for a year from the date of its adoption. The material offers for downloading ready-made forms of these documents in the MS Word format.
What is the difference between a major deal decision and a protocol?
The decision to conclude a major transaction has the right to be taken by the sole participant (founder) of the LLC. Unlike the decision, the minutes are drawn up at the general meeting, if the LLC or JSC has several owner-participants. The minutes must indicate the chairman and secretary of the meeting, the presence of a quorum for a decision. These are the main differences. For brevity, the term "solution" is used throughout this article.
Why do participants need a decision on a major deal?
First of all, it is required for accreditation for 6 electronic trading floors(part 2 of article 61 of Law No. 44-FZ), as well as on many commercial ones (in accordance with the regulations of such ETPs).
Secondly, when applying for participation in electronic auctions (clause 4, part 5, article 66 of Law No. 44-FZ). When transferring the second parts of the applications to the customer, such a decision or protocol is automatically transferred to the Customer from the documents posted on the ETP during accreditation. However, when submitting an application, any participant can attach an up-to-date transaction approval document, which will also go to the customer for consideration. In this case, the document with a later date will have legal force.
Thirdly, when applying for participation in open competition(subparagraph “e”, part 2, article 51 of Law No. 44-FZ) or in a closed auction (subparagraph “e”, part 2, article 88 44-FZ),
Fourthly, such a decision is required by banks when considering an application for issuing a bank (independent) guarantee to participate in a tender or to fulfill their obligations under a contract/agreement.
How do changes in laws affect procurement participants?
1. A participant may be denied accreditation to the ETP. At the same time, you will have to wait for a second decision on accreditation (up to 5 working days - part 4 of article 61 of Law No. 44-FZ), and during this time the submission of applications for a “tasty” tender may already end.
2. Rejection of the submitted application for participation in electronic auction, open competition, closed auction. Since it was not previously specified how long the decision taken was valid, the customer approached the consideration of such a decision quite formally, by and large checking its existence and the amount of the permitted transaction, and could not reject the application if, from the date of the decision / protocol on a major transaction more than a year has passed.
What should be done now?
1. Check if the validity period is specified in your decision or minutes of a major transaction.
2. If the validity period is not specified, draw up a new protocol of the extraordinary meeting of participants and indicate in it decisions taken. If the owner of the organization is one, he alone makes such a decision.
3. Make changes to the documents of your organization on each ETP - delete or mark as irrelevant the previous solution and upload a new one.
4. If no changes have been made, a new decision must be attached to each submitted application.
Ways to make a decision
According to paragraph 3 of Art. 67.1 of the Civil Code of the Russian Federation, the adoption of a decision by the general meeting of participants in the company and the composition of the participants in the company who were present at its adoption are confirmed by:
1. Notarization (almost impossible in practice and expensive).
2. By the method of confirming the adoption of the decision specified in the Articles of Association (hardly indicated in most Articles of Association of companies).
3. The method of confirming the decision, specified in a specific decision (optimal), or indicated in a separate decision. At the same time, one of the items on the agenda must be the question "On the choice of a method for confirming the adoption of decisions on all issues on the agenda." Then, in the decision itself on the agenda items, indicate the chosen method (for example, “It was decided: to determine as a method of confirming the adoption of decisions by the extraordinary general meeting of LLC participants and the composition of the LLC participants present at their adoption - the signing of the protocol by all participants of the LLC”.
From practice: it is desirable not to indicate the specific names of ETPs and their websites in the decision. They change quite often, which leads to the rejection of applications on formal grounds, for example:
“A decision has been attached to approve or conclude transactions based on the results of auctions held on the electronic ETP site MICEX "Goszakupki" www.etp-micex.ru. The operator of the National Electronic Platform www.etp-ets.ru is Joint Stock Company "Electronic trading systems(JSC ETS). It is necessary to indicate the correct name of the operator of the electronic platform. You can correct your application and submit it for reconsideration.
“Clause 5 of the decision to approve or to conclude transactions on behalf of the supplier based on the results of the auction: In the attached decision, you need to correct the name of our site - JSC "Unified Electronic Trading Platform", and not OJSC (from September 7, 2015, our ETP was renamed from OJSC to AO)."
Is it necessary to indicate the method of public procurement in the decision on approval of transactions for accreditation?
The Arbitration Court of the Moscow District, in its Resolution dated 06/29/2017 in case N A40-132329 / 2016, explained that the procurement participants do not have such an obligation. If the procurement method is named in the application for accreditation, the operator of the electronic site is not entitled to refuse it.
Although the court upheld the participant in this case, it is better to reduce the risk of accreditation being denied in advance. To do this, we recommend that in the decision to approve or conclude transactions based on the results of procurement, the methods for conducting them are indicated: “including an electronic auction”.
Who has the right to participate in procurement without a decision on major transactions?
It is not required to attach a decision to the application:
1. For individual entrepreneurs. For them, the procedure for approving transactions is not provided for by law.
Conducting activities by legal entities must be carried out within the framework of special regulatory documents.
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At the same time, it is worth noting separately just the need to approve large transactions - if any will take place at all. Such measures are determined in each case purely individually.
However, if a society limited liability for some reason believes that the deal is not a big deal for him, it is important to prepare a document establishing this.
Otherwise, you will definitely need to issue a decision on the approval of a major transaction. This document has a fixed format.
It is worth avoiding such a violation - this can cause serious difficulties. If there are errors in the formation of reports, questions from regulatory authorities may arise.
What you need to know
Today, in order to participate in the auction, a limited liability company will need to draw up a special document that confirms the presence of a decision to complete a major transaction.
The decisive factor for determining whether a transaction is decisive will be just the cost of such.
There are many different nuances and features associated with the execution of the transaction. Separately, it should be noted the issue of registration of special protocols.
When conducting a transaction, all participants in such a transaction are indicated. There are a number of transactions that are generally considered necessarily important.
You should familiarize yourself with all the nuances and specifics of making decisions on major transactions in advance. This will prevent many difficulties, difficult moments.
It is important to carefully compose the text of the documents themselves. This will prevent fines from various regulatory organizations in the future.
Basic concepts
Today, there is specialized legislation that regulates in detail the issue of entering into large LLC transactions.
Accordingly, it will be necessary to familiarize yourself with it. The decision to approve a major transaction needs to be carefully considered.
But again, it is important to note that a correct understanding is possible only if there is knowledge of the basic terms used. These will need to be dealt with first.
These must-have terms include:
- legal entity;
- significant deal.
The abbreviation LLC refers to the concept of a limited liability company.
In short, it is understood that an organization of this type is responsible for its obligations only within the framework of existing property.
However, there are no alternatives. The LLC itself is usually established simultaneously by several citizens.
A legal entity is a form of organization of an institution, implying that the company itself operates within the framework of special legislation.
It is important to note that legal capacity legal entity different from the physical. Separately, it is worth dwelling on the question of what constitutes such a concept as a significant transaction.
The term "major deal" is also used. Such is a transaction, a contract, implying the acquisition, alienation or other operations with property owned by the LLC.
In this case, the main criterion for assessing the significance is the cost. If it is more than 25% of the balance sheet assets of the LLC itself, then it is automatically considered large.
Otherwise, if the LLC does not consider it to be a large one, an appropriate document must be drawn up.
Why is it needed
The very same requirement regarding the implementation of a major transaction allows you to simultaneously solve several problems.
These include:
- formation of reports on ongoing actions;
- notification of shareholders about the activities of the enterprise itself;
- the approval decision itself gives the right to participate in electronic and other auctions.
The fact is that only if this is the case, it will be possible to participate in large tenders. The main regulatory document that determines this point is accreditation on the trading floor.
At least state auctions in without fail are played between companies that have provided such accreditation. Accordingly, this will require a decision on the approval of a major transaction.
The legislative framework
The main legislative norm, within the framework of which there is a need to draw up such a document, is just Federal Law No. 44-FZ of 04/05/13.
This includes the main provisions within which the process of conducting contract purchases, tenders for the execution of various kinds works.
In detail the scope in which this can be used at all normative document, denoted in .
Moreover, in addition to this legislative document, there are a large number of other points directly related to registration. Again, these need to be dealt with carefully. A complete list of them is reflected in.
All questions regarding the implementation of purchases, as well as regarding the documents provided, are determined by a specialized commission.
All questions, the subtleties of such are determined on the basis of. This determines the mode of operation, as well as many different other points.
All of these will need to be reviewed first. Only in this way it will be possible to avoid many difficulties.
Particular attention should be paid to the head of the organization when making such a decision. Since it will be responsible for the implementation of the appropriate type of procedure.
Accordingly, his participation is required in the process without fail. Otherwise, quite serious troubles will occur.
You should carefully study the law. This is the only way to avoid fines.
If the head of the organization believes that his rights have been violated in any way, or the interests of the organization have been infringed, then such an issue requires a trial.
It should only be remembered that such a process implies a rather serious investment of time. Therefore, whenever possible, it is necessary to try to resolve the controversial issues in the pre-trial order.
How to write a Major Deal Approval Form
The decision of the sole participant of an LLC to approve a major transaction, a sample of which can be found on the Internet, must be drawn up in accordance with certain requirements of legislative norms.
There is a fairly extensive list of those. Nevertheless, the process of registration itself usually does not cause difficulties.
But at the same time, it is important to note that the design algorithm must be carried out within the framework of the law indicated above.
The execution of a major transaction involves the execution of a balance sheet, as well as a number of other regulatory papers.
The main issues to be considered in advance will include the following:
- how the procedure is carried out - one founder, two founders;
- Is it possible to challenge?
- court refusal.
How is the procedure performed
The decision to approve a transaction of this type can be made in various ways. It all depends primarily on exactly how many founders there are.
This issue needs to be worked out in advance. Since the format of documents depends on this, as well as a number of other points.
It is worth noting that in the case of one founder, the process will be somewhat easier to implement.
One founder
Today, in the case when the LLC has only one founder, the approval of a major transaction is not required at all.
Since, according to the legislative regulations, the provisions on the approval of a major transaction by institutions where there is only one founder, no written approval is required.
Since there is simply no possibility of protests against the procedure within the organization itself.
Such a moment is defined in the same way for all organizational forms. Moreover, it is important to note that earlier this kind of rule did not work.
Accordingly, even if there was only one founder, it was necessary to carry out the process of approving the transaction in writing in the prescribed manner.
Video: how to approve a major deal in an LLC
Accordingly, it was required to sign by the founder himself, who is the director.
Today, the process is significantly simplified, it is possible to easily carry out transactions without approval with one founder of a limited liability company.
Two founders
If there are two founders or even more, it is necessary to carry out the process of drafting a decision on a major transaction without fail.
This moment is determined primarily by the legislation on limited liability companies -.
According to this regulation, the board of directors adopts the regulation if:
In all other cases, the decision will be made by the meeting of participants - regular or extraordinary.
The very algorithm for convening such a meeting will be carried out in a standard way, in a general manner. Moreover, the decision on the transaction in the second case will be made by a majority vote.
This moment is again regulated by the law on LLC -. If there is only one participant in the society, then the corresponding decision will be made completely individually.
Is it possible to challenge
There are often situations when there are disagreements among the founders of an LLC. Accordingly, this may also apply to the implementation of various major transactions.
There are often situations when it becomes necessary to challenge the transaction. Today, such a process can be carried out within the framework of the law.
This moment is determined by special legal documents. Such is .
The following persons have the right to challenge such a decision simultaneously:
Court refusal
It will be possible to challenge the decision on a major transaction only through the courts - there are simply no alternative options.
The need to prepare a decision on the approval of a major transaction is not regulated at the legislative level, which is prescribed in FZ-44 and FZ-223. However, in practice, the document is required for accreditation at many trading platforms, including government and commercial ones. electronic trading. On January 1, 2017, new rules for its registration came into force due to changes in legislation.
Features of documenting a decision on a major transaction
A large LLC transaction involves the signing of a decision by the management body in the form:
- Agreements regarding a future transaction
- Approvals of an already concluded contract
The decision on a major transaction is entrusted to the general meeting of the company's participants, which is regulated by Article 6 of Federal Law No. 14. The decision is made in writing in the form of a protocol. general meeting participants ooo. In some limited liability companies, a board of directors is created, whose competence includes the approval of major transactions with the execution of an appropriate decision.
The approval procedure for a major transaction is carried out in strict accordance with the requirements of current legislation.
How to draw up a decision on the approval of a large LLC transaction, sample
Preparation of a decision on a major transaction, a sample of which is attached below, is a prerequisite for participation in the tender for many electronic platforms, especially the state ones that exist today. Accreditation at the ETP implies the preparation of the specified document in accordance with all standards. Its embodiment is possible in various interpretations. The choice of a specific option is determined by the number of co-founders of the company. For an LLC with a single founder, a document is being prepared - the decision of the sole participant to approve a major transaction.
Filling out the form is carried out on behalf of the founder and sole participant of the LLC with its subsequent submission to the selected trading platform or attachment to the application in case of establishing this requirement customer.
The decision of the sole participant to approve a major transaction must contain a certain set of mandatory details:
- specific subject of the transaction
- list of persons acting as parties to the transaction
- beneficiaries
- transaction amount
- other important conditions
If a transaction is concluded through bidding, the decision does not require the indication of the parties and beneficiaries due to the fact that they remain unknown by the time the transaction is approved.
The decision on a major transaction of the sole founder is made in writing. It is mandatory to confirm the document with the signature of a member of the company, letterhead and seal are not needed.
Registration of documentation implies an indication of its name along with the name of the organization itself. The next stage is the designation of the place and date of preparation of the decision. Then an introductory part is drawn up indicating the surname, name, patronymic of the founder, a set of his passport data, TIN, main state registration number, the position held in the company and the name of LLC. It is also necessary to determine the agenda with the designation of the issue under consideration. The main part of the decision on the conclusion of a major transaction contains the decision made regarding the contracts entered into and the amounts of funds approved. The final element of the document includes an indication of the position, last name, first name and patronymic of the co-founder of the LLC along with its name, as well as the signature and seal of the company.
An important point is the designation of the transaction amount in the approved document. It can be determined based on the following rules:
- The determination of the size of the contract is made on the basis of the requested certificate with the data of the accounting report on the book value of the property of the LLC as of the last reporting date
- If it is possible to pre-calculate the amount, fineness is calculated based on it
- In case of participation in the tender and the impossibility of preliminary calculation of the contract amount, the maximum amount that the company is able to offer should be indicated
- When concluding a loan agreement, you need to take into account the amount of the principal debt and accrued interest for using the loan provided.
If the organization plans to conclude a number of agreements at once, it is acceptable to draw them up in one document.
An important issue is also the duration of the decision. The document is valid for the period of time fixed in it. By default, this setting is 1 year. Within the specified time, the agreed transaction should be completed.
In accordance with the change in the Civil Code of the Russian Federation of September 1, 2014, it is required to notarize the decision made.
The given sample of the decision of the founder on the approval of a major transaction is universal - it is suitable both for submission to the ETP and for presentation to the customer.
(see text in previous edition)
1. A major transaction is a transaction (several interconnected transactions) that goes beyond the usual economic activity and wherein:
Associated with the acquisition, alienation or the possibility of alienation by the company directly or indirectly of property (including a loan, credit, pledge, surety, acquisition of such a number of shares (other issue valuable papers convertible into shares) public society as a result of which the company is obliged to send a mandatory offer in accordance with Chapter XI.1 of the Federal Law of December 26, 1995 N 208-FZ "On Joint Stock Companies"), the price or book value of which is 25 or more percent of the book value of the company's assets determined according to the data of its accounting (financial) statements as of the last reporting date;
providing for the obligation of the company to transfer property for temporary possession and (or) use or to grant to a third party the right to use the result of intellectual activity or means of individualization on the terms of a license, if their book value is 25 or more percent of the book value of the company's assets, determined according to its accounting (financial) ) reporting as of the last reporting date.
2. In the event of alienation or the possibility of alienation of property, the highest of the two values is compared with the book value of the company's assets - the book value of such property and the price of its alienation. In case of acquisition of property, the purchase price of such property is compared with the book value of the company's assets.
In case of transfer of the company's property for temporary possession and (or) use, the book value of the property transferred for temporary possession or use is compared with the book value of the company's assets.
In the event of a transaction or several interconnected transactions by the company to acquire shares (other issuable securities convertible into shares) of a public company, which will entail the obligation of the company to acquire shares (other issuable securities convertible into shares) in accordance with Chapter XI. 1 of the Federal Law of December 26, 1995 N 208-FZ "On Joint Stock Companies", the book value of the company's assets is compared with the price of all shares that can be acquired by the company in such transactions, in accordance with Chapter XI.1 of the Federal Law of December 26, 1995 of the year N 208-FZ "On joint-stock companies".
3. Making a decision on consent to a major transaction is the competence of the general meeting of the company's participants.
In the event of the formation of a board of directors in a company ( supervisory board) of the company, the adoption of decisions on consent to major transactions related to the acquisition, alienation or the possibility of alienation by the company directly or indirectly of property, the value of which is from 25 to 50 percent of the value of the company's property, may be attributed by the charter of the company to the competence of the board of directors (supervisory board) society.
In the decision on consent to a major transaction, the person (persons) who is a party to it, the beneficiary, the price, the subject of the transaction and its other essential conditions or the order in which they are defined.
The decision on consent to the conclusion of a major transaction may not indicate the party to the transaction and the beneficiary if the transaction is concluded at the auction, as well as in other cases, if the party to the transaction and the beneficiary cannot be determined by the time the consent to the conclusion of such a transaction is received.
The decision on consent to the transaction or on the subsequent approval of the transaction may also contain an indication of:
on the minimum and maximum parameters of the terms of the transaction (the upper limit of the value of the purchase of property or the lower limit of the value of the sale of property) or the procedure for their determination;
to agree to a number of similar transactions;
on alternative options for the terms of the transaction requiring consent to its completion;
to consent to the transaction, subject to the completion of several transactions at the same time.
The decision on consent to the conclusion or on the subsequent approval of a major transaction may indicate the period during which such a decision is valid. If such a period is not specified in the decision, the consent shall be deemed valid for one year from the date of its adoption, unless a different period follows from the nature and conditions of the transaction to which the consent was given, or the circumstances in which the consent was given.
A major transaction may be concluded under the suspensive condition of obtaining proper consent to its conclusion in the manner established by this Federal Law.
4. A major transaction made in violation of the procedure for obtaining consent to its conclusion may be declared invalid in accordance with Article 173.1 of the Civil Code Russian Federation at the suit of the company, a member of the board of directors (supervisory board) of the company or its participants (participant) holding at least one percent of the total number of votes of the company's participants.
The limitation period for a claim to declare a major transaction invalid if it is missed is not subject to restoration.
5. The court refuses to satisfy the claims for the recognition of a major transaction made in violation of the procedure for obtaining consent to its conclusion as invalid if at least one of the following circumstances exists:
by the time the case is considered in court, evidence of the subsequent approval of such a transaction has been presented;
When considering the case in court, it has not been proven that the other party to such a transaction knew or obviously should have known that the transaction was a major transaction for the company, and (or) that there was no proper consent to conclude it.
6. If a major transaction is at the same time a transaction in which there is an interest, and in accordance with this Federal Law, the issue of consent to the conclusion of such a transaction is submitted for consideration by the general meeting of participants, the decision on consent to the conclusion of such a transaction is considered adopted if it received the number of votes required in accordance with the requirements of this article, and the majority of votes of all participants not interested in the transaction.
to transactions, the conclusion of which is obligatory for the company in accordance with federal laws and (or) other legal acts of the Russian Federation and settlements for which are made at prices determined in the manner established by the Government of the Russian Federation, or at prices and tariffs established by the authorized Government of the Russian Federation the federal executive body, as well as to public agreements concluded by the company on terms that do not differ from the terms of other public agreements concluded by the company;
to transactions for the acquisition of shares (other equity securities convertible into shares) of a public company, concluded on the terms provided for by the mandatory offer to acquire shares (other equity securities convertible into shares) of a public company;
to transactions concluded on the same terms as the preliminary agreement, if such an agreement contains all the information provided for in paragraph 3 of this article, and consent was obtained to conclude it in the manner prescribed by this article.
8. For the purposes of this Federal Law, transactions that do not go beyond the normal business activities are understood to mean any transactions that are accepted in the activities of the relevant company or other economic entities engaged in similar types of activities, regardless of whether such transactions have been made by such a company before, if such transactions do not lead to the termination of the company's activities or a change in its type or a significant change in its scope.
Find out when a Sole Proprietor Major Deal Resolution is required and download a sample Single Provost Major Deal Approval for LLC.
Read our article:
When an LLC plans to make a major transaction, it is necessary to act in accordance with the rules for approving such transactions. Including responsible persons must decide on the approval of the transaction. By law, the adoption of such a decision is within the competence of the general meeting of LLC. In the article, we will look at how these rules work if there is one participant in a society. Download a sample of the decision of one founder on the approval of a large LLC transaction from the application.
Download related documents:
In what cases is the sole participant's decision to approve a major transaction formalized?
Often the only founder and participant of an LLC performs the functions executive body society. But there are also cases when the sole member of the LLC hires a director to manage the company. Also, several directors may be involved in the management of a company with a single participant. When it comes to making a decision on a major transaction, the rules will be different, depending on the management option.
The decision of the sole founder on a major transaction does not need to be drawn up if the founder is the only participant in the LLC, and at the same time he acts as CEO(Clause 7, Article 46 of the LLC Law). However, a decision of the sole participant to approve a major transaction will be required if:
- the sole member of the LLC does not perform the functions of the general director,
- a single member holds the position of CEO, but the company is run by multiple directors.
Having a decision makes it difficult to challenge the deal.
For example, the only participant in the LLC insisted that he had not agreed to make major transactions with the bank. However, the bank presented evidence to the court that confirmed that the plaintiff had agreed to the deal. The court supported the bank (Decree of the Arbitration Court of the North-Western District dated January 14, 2016 No. A21-1057 / 2015)
That is, if the founder and director are different persons, or there are several directors in the company, it will be necessary to prepare and execute the decision of the sole founder on the approval of a major transaction, a sample of such a document is presented below. In the sample, the only participant approved the transaction at the request of the bank.
An unfilled sample of the decision of the founder on a major transaction can be downloaded from the application.
- The decision of the sole participant of the LLC to approve the loan agreement with the condition of collateral as a major transaction (at the request of the bank)
- The decision of the sole participant of the LLC to amend the charter. For different types of transactions, sizes have been established, upon reaching which their approval as major transactions is required.
What are the general rules for the approval of large transactions
Recall general rules related to decisions on major transactions.
The decision to approve a major transaction may be made by:
The board of directors makes a decision if (clause 3, article 46 of the law on LLC):
- the statute expressly refers this question to its competence and at the same time
- the value of the property under the transaction is from 25% to 50% of the value of the LLC's property.
In other cases, the decision can be made only by the meeting of participants (regular or extraordinary). It is necessary to convene and hold a general meeting according to general rules.
The decision must be made in accordance with the requirements of the law on LLC (Articles 37, 38 of the law). If it is not possible to obtain the approval of the board of directors or the general meeting of participants (there will not be the required number of votes), then the transaction should be abandoned. Otherwise, it will be disputed.
The decision must explicitly indicate that the authorized body approves the transaction, as well as information about it (clause 3, article 46 of the LLC Law):
- persons acting as its parties and beneficiaries (exception - if the transaction is made at the auction or in other cases when the parties are not yet known by the time of approval);
- price;
- subject;
- other essential conditions.
If the decision is made by the participants, then it is also necessary to observe General requirements to its design and content.
If in your company the only member is not the only director at the same time, issue a decision of one founder on approval for a large LLC transaction (see the sample decision for a bank in the appendix). When drawing up a document, be guided by the requirements of Art. 39 and paragraph 3 of Art. 46 of the LLC Law.
Answers to questions from lawyers from 14.00 to 16.00 April 3:
- Force Majeure. Will it be possible to force the counterparty to change or terminate the transaction due to the coronavirus?
- Rental holidays. How to minimize losses due to quarantine?
- Legal support of anti-crisis measures. What should a lawyer control first of all when spontaneous decisions guides?
Attached files
- Sample decision of the sole founder on a major transaction.doc
