Minutes of the general meeting of LLC participants. Quorum requirements for holding a general meeting of LLC participants

1. The General Meeting of Shareholders is valid (has a quorum) if it was attended by shareholders who collectively own more than half of the votes of the company’s outstanding voting shares.

Shareholders who registered to participate in it, including those indicated in the notice of holding, are considered to have taken part in the general meeting of shareholders. general meeting shareholders website on the Internet information and telecommunications network, as well as shareholders whose ballots were received or whose electronic form of ballots was filled out on the website indicated in such a message on the Internet information and telecommunications network no later than two days before the date of the general meeting of shareholders.

Shareholders whose ballots have been received or whose electronic form of ballots have been filled out on the website specified in the notice of the general meeting of shareholders on the Internet before the deadline for accepting ballots are considered to have taken part in a general meeting of shareholders held in the form of absentee voting.

Shareholders who, in accordance with the rules of law, are also considered to have taken part in the general meeting of shareholders Russian Federation O valuable papers ah gave instructions (instructions) to voting to the persons responsible for recording their rights to shares, if messages about their expression of will were received no later than two days before the date of the general meeting of shareholders or before the deadline for accepting ballots when holding a general meeting of shareholders in the form of absentee voting.

2. If the agenda of the general meeting of shareholders includes issues on which voting is carried out different composition voting, the determination of the quorum for making decisions on these issues is carried out separately. At the same time, the absence of a quorum for making decisions on issues on which voting is carried out by one set of voters does not prevent the adoption of decisions on issues on which voting is carried out by another set of voters, for which a quorum is available.

3. If there is no quorum for holding an annual general meeting of shareholders, a repeat general meeting of shareholders must be held with the same agenda. If there is no quorum to hold an extraordinary general meeting of shareholders, a repeat general meeting of shareholders may be held with the same agenda.

A repeated general meeting of shareholders is valid (has a quorum) if it was attended by shareholders holding in aggregate at least 30 percent of the votes of the company's outstanding voting shares. The charter of a company with more than 500 thousand shareholders may provide for a smaller quorum for holding a repeat general meeting of shareholders.

Notification of a repeat general meeting of shareholders is carried out in accordance with the requirements of Article 52 of this Federal Law. In this case, the provisions of paragraph two of paragraph 1 of Article 52 of this Federal Law do not apply. The delivery, direction and publication of voting ballots during a repeat general meeting of shareholders are carried out in accordance with the requirements of Article 60 of this Federal Law.

4. When holding a repeated general meeting of shareholders less than 40 days after the failed general meeting of shareholders, persons entitled to participate in such general meeting of shareholders are determined (recorded) on the date on which the persons entitled to participate in the meeting were determined (recorded). failed general meeting of shareholders.

5. If there is no quorum to hold an annual general meeting of shareholders based on a court decision, no later than 60 days later a repeat general meeting of shareholders must be held with the same agenda. In this case, no additional application to the court is required. A repeated general meeting of shareholders is convened and held by a person or body of the company specified in the court decision, and if the specified person or body of the company does not convene the annual general meeting of shareholders within the period specified by the court decision, the repeated meeting of shareholders is convened and held by other persons or a body of the company who apply with a claim to the court, provided that these persons or a body of the company are indicated in the court decision.

If there is no quorum to hold an extraordinary general meeting of shareholders based on a court decision, a repeat general meeting of shareholders will not be held.

Failure to register participants in the general meeting (lack of a list of persons participating in the meeting)

All business companies (hereinafter referred to as the company), in the course of their activities, hold regular and extraordinary general meetings of participants, at which issues related to the activities of the company are resolved. When holding general meetings of company participants (hereinafter referred to as the general meeting), mistakes are often made that can lead to the court declaring the decisions of the general meeting invalid.

The general meeting is supreme body management of the company. In cases and in the manner provided for by the Law of the Republic of Belarus dated December 9, 1992 No. 2020-XII “On Business Societies” (hereinafter referred to as the Law on Business Societies) and the charter of the company, regular and extraordinary general meetings are convened and held. Based on the results of the general meeting, no later than 5 days after its closure, a protocol is drawn up, which records all the decisions made at the general meeting.

The obligation to hold general meetings is provided for by law only for regular general meetings, which must be held at least once a year (annual general meeting), within the period established by the charter (part two of Article 36 of the Law).

Note!
Despite the fact that the legislation does not directly contain an obligation to hold extraordinary general meetings, it may logically follow from the essence of the issue on which a decision needs to be made.

In this case, failure to hold an extraordinary general meeting will lead to failure to make a decision on the necessary issue or to the conclusion of a transaction, for example, by the director of the company, beyond the scope of his competence, which may lead to a challenge to this transaction and Negative consequences in the activities of society.
Next we will consider typical mistakes that occur in practice during general meetings.

Failure to comply with the procedure for convening and holding a general meeting

General meetings are convened and held by the authorized body of the business company, as well as in cases established by the Law, other bodies of this company or participants requiring the convening of an extraordinary general meeting of participants of the business company (part five of Article 36 of the Law).

Such authorized bodies of a business company can be, in particular, in an LLC (ALC):
. executive body (part one of Article 108 of the Law);
. board of directors (supervisory board) (part two of Article 108 of the Law);
. participants (participant) having in the aggregate no less than 10% of the votes of the total number of votes of the participants of this company, unless a smaller number of votes is provided for by its charter (part three of Article 108 of the Law).

Persons entitled to participate in the general meeting are notified of the decision made to hold a general meeting of participants of the business company by the authorized body of the business company at least 30 days before the date of its holding, unless the charter provides for a shorter period or another period established by parts two and fourth article 39 of the Law (part one of article 39 of the Law).

Failure to comply with the procedure for convening and holding a general meeting can be considered a violation of a technical nature, the consequences of which will depend on the fact that all members of the company who have the right to participate in the meeting participate in the meeting. If, as a result of non-compliance with the procedure for convening, in particular, due to improper notification of the meeting, one of the participants was not present and the decision made violates his rights and (or) legitimate interests, then this participant has the right to challenge such a decision in court, while the likelihood of satisfying such the claim will be significant.

Failure to register participants in the general meeting (lack of a list of persons participating in the meeting)

When a general meeting is held in person and in mixed forms (applies to participants present at the place where the meeting is held), those who have registered to participate in it are considered to have taken part in the general meeting (part one of Article 43 of the Law). The list of persons registered to participate in the general meeting must contain the signatures of these persons and be attached to the minutes of the general meeting. Persons who are not registered are not entitled to take part in voting.

Often in practice, the minutes of the general meeting are signed only by the chairman of the general meeting. In this case, in the absence of a list of persons registered to participate in the general meeting, doubts arise about the actual participation of the person in the general meeting and voting on decisions taken. IN in this case the decision of the general meeting may be declared invalid by the court.

When holding a general meeting in full-time During the registration process, documents confirming the authority to participate in it are checked, and, accordingly, failure to register participants in the general meeting may lead to the participation in it of a person not authorized to speak on behalf of the participant. This may ultimately lead to a decision being made in the absence of a quorum to hold the meeting and/or make a decision.

Making a decision in the absence of a quorum for holding a meeting and (or) making a decision

The general meeting is recognized as competent (has a quorum) if its participants have in the aggregate more than 50% of the votes of the total number of votes belonging to the company's participants, unless the company's charter provides for a quorum of a larger number of votes (part two of Article 43 of the Law). In the absence of the established quorum, the annual general meeting must be held, and the extraordinary general meeting can be held again with the same agenda. A repeated general meeting has a quorum if its participants have in the aggregate more than 30% of the votes of the total number of votes, unless the charter of the company provides for a quorum of a larger number of votes (part two of Article 43 of the Law). In the absence of a quorum, the general meeting does not have the right to make decisions on issues on the agenda.

As for the procedure for making decisions, the general rule is a simple majority (more than 50%) of the persons who took part in this meeting, with the exception of cases provided for by the Law and the charter of the company, when a qualified majority of the number of votes of these persons is required to make decisions on certain issues or from the total number of votes of the company's participants, or when the decision by the specified persons or all the company's participants is made unanimously.

WITH practical point From view, it is important to find and analyze those issues on which decisions can be made by a quorum different from the usual one. Here it is necessary to note the provision of the Law that if the agenda of the general meeting includes issues on which voting is carried out by different composition of voters, to make a decision on these issues, the quorum is determined separately. At the same time, the absence of a quorum for making a decision on issues on which voting is carried out by one set of voters does not prevent the adoption of a decision on issues with a quorum, voting on which is carried out by another set of voters.

An example can be given when a new version of the charter or changes to the charter are put to a vote. According to the general rule for limited liability companies, the quorum for such a decision is at least 2/3 of the total number of votes of the participants of the limited liability company. Accordingly, the quorum at such a meeting must be at least 66% of total number votes, so the decision should be made by these 66%. However, when amendments are made to the charter, the provision of the company’s charter on establishing the procedure for determining the number of votes of participants may also change and be fixed in the new edition that these votes are determined disproportionately to the participant’s share in the authorized capital. Moreover, according to part one of Article 109 of the Law, such a decision is made by all participants unanimously and requires a quorum of 100%. Accordingly, when a charter with such a provision is approved by a qualified majority of votes, the quorum for making a decision on a specific issue and, in general, the declaration that all legal requirements were met when adopting the charter, which in turn is confirmed when registering the charter, will be violated.

In addition, decisions made in the absence of a quorum of the general meeting may be declared invalid by the court.

Lack of projects approved at the general meeting

The minutes of the general meeting are signed with each page endorsed, including the decisions attached to the minutes (part two of Article 47 of the Law). This provision, according to the author, means that the draft documents approved at the general meeting (charter, contract with the director, etc.) must be attached to the minutes and signed in the same way as the minutes, on each page. The absence of draft documents approved at the general meeting as appendices to the minutes, as well as signatures on it, may indicate non-approval of these documents by the general meeting.

Let us note that the Law, as well as other acts of legislation, do not establish requirements for the design of the last page of the company’s charter; accordingly, for registration, the draft charter in the new edition can only be signed by the director or the chairman of the general meeting. In this case, proof that this is exactly the charter that was approved by the general meeting, and the very fact of its approval, will be precisely the draft that was attached to the minutes and properly endorsed. The absence of this annex may give rise to further disputes over which charter was approved and which was registered, and create the ground for abuse of law.

Failure to include all essential conditions deals

The general meeting makes a decision on concluding transactions, the decision-making on which is within the competence of the general meeting by law and (or) the charter of the company. In particular, we are talking about large transactions and transactions with the interests of affiliated persons of the company (part three of Article 58 and part two of Article 57 of the Law).
We believe that the decision to enter into a transaction must indicate the terms of such a transaction, which are defined by law as essential for transactions of this type, as well as other terms of the transaction as decided by the general meeting. If all the essential terms of a transaction are not approved by the general meeting, its corporate approval may be considered improper and the transaction may subsequently be challenged.

Conducting a general meeting in an inappropriate form

The legislation provides for in-person, mixed and absentee forms of general meetings. The choice of the form for holding a general meeting depends on the absence of restrictions by law and (or) the company’s charter on holding general meetings in a certain form on certain issues, as well as the possibility of the presence of all or some participants at the location of the general meeting.

Thus, in accordance with part five of Article 45 of the Law, the annual general meeting cannot be held in absentia, since at the annual general meeting a decision is made on the election of members of the supervisory board, members of the audit commission (auditor), approval of annual reports, annual accounting (financial ) reporting of the company and distribution of its profits and losses. The charter may also provide for other issues, decisions on which are made by holding a general meeting in person or in person and in mixed forms.

A decision of a general meeting held in an improper form may be declared invalid in court.

Making decisions on issues not included on the agenda

According to Article 44 of the Law, the general meeting does not have the right to make decisions on issues not included in the agenda of this meeting, as well as to change its agenda, with the exception of unanimous decision-making by the general meeting, in which all persons entitled to participate in the meeting take part. this general meeting, unless otherwise provided by the charter.

Accordingly, as a general rule, unless otherwise provided by the company’s charter, decisions on issues not included in the agenda can be made only if all persons entitled to participate in the meeting are present at the meeting, and they all voted “for” unanimously. Otherwise, the decision of the general meeting may be challenged in court.

However, we would like to emphasize that the charter can amend this provision and stipulate that the general meeting has the right to make decisions on issues not included in the agenda of this meeting, as well as change its agenda. This, on the one hand, can abolish the technical side of organizing general meetings, on the other hand, lead to the abuse of their rights by persons participating in the general meeting, who will have the right to submit for consideration of the general meeting issues that were not initially stated on the agenda and, accordingly, unknown to the persons in advance who for one reason or another are not present at the general meeting (although they would have been present if they knew that “pre-announced” issues would be considered).

Innovations in the procedure for declaring the decisions of the general meeting invalid by the court

All of the above errors can one way or another lead to the court declaring the decisions of the general meeting invalid.

Thus, part seven of Article 45 of the Law establishes that a decision of the general meeting, taken in violation of the requirements of the Law and other legislation or the charter of the company and violating the rights and (or) legitimate interests of a participant (former participant) of this company, can be challenged in court by a participant of the company (former member).

Note!
As an addition, from January 26, 2016, the Law enshrined the provision that the court has the right, taking into account all the circumstances of the case, to uphold the contested decision if the vote of a participant (former participant) of the company could not influence the voting results or the execution of the decision did not entail entails causing losses to a participant (former participant) of the company or if the occurrence of other adverse consequences for him and the violations committed are not significant.

This situation confirms the existing situation at that time. judicial practice that in order to invalidate the decisions of a general meeting, a formal violation of the procedure for holding a general meeting is not enough, but it is also important that there is a violation of the rights and (or) legitimate interests of a participant (former participant) of the company.

Prepared specifically for APS "Business-Info"

The General Meeting of Shareholders is valid (has a quorum) if it was attended by shareholders who collectively own more than half of the votes of the company's outstanding voting shares. Shareholders who registered to participate in it and shareholders whose ballots were received no later than two days before the date of the general meeting are considered to have taken part in the general meeting of shareholders. Shareholders whose ballots were received before the deadline for accepting ballots are considered to have taken part in a general meeting held in the form of absentee voting.

The procedure for determining the quorum of the general meeting of shareholders is significantly detailed in the Regulations on additional requirements for the procedure for preparing, convening and holding the general meeting of shareholders. Thus, it stipulates that a general meeting held in the form of a meeting is opened if, by the time it begins, there is a quorum on at least one of the issues included in the agenda of the general meeting. Registration of persons entitled to participate in the general meeting who have not registered to participate in the general meeting before its opening ends after the completion of the discussion of the last issue on the agenda of the general meeting (the last issue on the agenda of the general meeting for which there is a quorum) and before the start of the time, which is provided for voting to persons who have not voted up to this point. Thus, a shareholder cannot be denied the opportunity to vote on items on the agenda of a general meeting if he is late to register to participate in the meeting before it opens.

Specifics of determining quorum at the general meeting of LLC participants

The LLC Law does not regulate the procedure for determining the quorum of general meetings of participants, since decisions are made and votes are counted in limited liability companies not from the participants present, but from the total number of votes of the participants. This expresses a significant difference in the voting procedure at the general meeting of participants of a limited liability company in comparison with a joint-stock company. Thus, in order to make a decision at the general meeting of the LLC, at least the number of participants required to make the relevant decision must participate.

Repeated general meetings

The legislator also approaches the legal regulation of repeated general meetings differently. Thus, if there is no quorum for holding an annual general meeting of shareholders, a repeat general meeting with the same agenda must be held. If there is no quorum to hold an extraordinary general meeting of shareholders, a repeat general meeting of shareholders may be held with the same agenda.

A repeated general meeting of shareholders is valid (has a quorum) if it was attended by shareholders holding in the aggregate no less than 30% of the votes of the company's outstanding voting shares. The charter of a company with more than 500 thousand shareholders may provide for a smaller quorum for holding a repeat general meeting of shareholders.

If there is no quorum for holding an annual general meeting of shareholders based on a court decision, no later than 60 days later a repeat general meeting of shareholders must be held with the same agenda. If there is no quorum to hold an extraordinary general meeting of shareholders based on a court decision, a repeat general meeting of shareholders will not be held. The above provision contained in paragraph 5 of Art. 58 of the Law on JSC, is aimed at minimizing the company’s costs in connection with provoking demands by a minority of shareholders to hold general meetings and is based on different approach to convene annual and extraordinary meetings.

The LLC Law does not regulate the procedure for determining a quorum for decision-making (after all, votes are counted from the total number of participants, and not from those present at the general meeting) and, accordingly, does not know the concept of “repeated general meeting”. If at the general meeting of the LLC fewer votes are cast for a decision than is necessary for its adoption, the meeting of participants did not take place and can be convened again.

Voting at the general meeting of shareholders is carried out according to the principle “one voting share - one vote” * (860). In a limited liability company, each participant has a number of votes at the general meeting proportional to his share in the authorized capital. The charter of a limited liability company, by unanimous decision of the participants, may establish a different procedure for determining the number of votes of the company’s participants (paragraph 5, paragraph 1, article 32 of the LLC Law).

An exception to the above rules for counting votes is cumulative voting, used in a JSC on the basis of an imperative norm of law when electing members of the board of directors, and in an LLC, if provided for by the charter, when electing members of the board of directors, members of the collegial executive body and (or) members audit commission of the company.

In cumulative voting, the number of votes belonging to each member of the company is multiplied by the number of persons who must be elected to the body of the company, and the participant of the company has the right to cast the resulting number of votes entirely for one candidate or distribute them between two or more candidates. Candidates who have received greatest number votes.

Decision making procedure

The difference in the legal regulation of the general meeting of shareholders and the general meeting of LLC participants is also expressed in determining the number of votes required to make a decision. Thus, as a general rule, decisions of the general meeting of shareholders are made simple majority votes, except for cases specifically provided for by law. Such cases include the most significant issues for the functioning of society:

Specified in paragraph 4 of Art. 49 of the Law on JSC (on amendments to the charter, reorganization, liquidation of the company, on declared shares, acquisition of outstanding shares by the company, etc.), decisions on which are made by 3/4 of the votes of shareholders - owners of voting shares participating in the general meeting;

Specified in clauses 3, 4 of Art. 39 of the Law on JSC (on increasing the authorized capital by private subscription, on placing by open subscription more than 25% of previously placed ordinary shares or issue-grade securities that can be converted into ordinary shares constituting more than 25% of previously placed ordinary shares), decision on which may be adopted by a 3/4 majority vote of shareholders - owners of voting shares, unless the need for a larger number of votes is provided for by the charter.

A feature of the regulation of the procedure for making decisions at the general meeting of shareholders is the legislative provision that the charter of a joint-stock company cannot expand the range of issues on which decisions can be made by a qualified majority of votes. This provision follows from the norm of paragraph 4 of Art. 49 of the Law on JSC.

On the contrary, for a limited liability company, a rule has been established on the possibility of expanding in its charter the list of issues on which decisions can be made by a qualified majority of votes of participants or unanimously (clause 8 of Article 37 of the LLC Law).

Counting commission

A feature of joint stock companies with more than 100 shareholders - owners of voting shares - is the mandatory creation of a counting commission, the composition of which is approved by the general meeting. In a company in which the registrar is the holder of the register of shareholders, he may be entrusted with performing the functions of the counting commission. In a company with more than 500 shareholders - owners of voting shares - the functions of the counting commission must be performed by the registrar.

The functions of the counting commission are specified in paragraph 4 of Art. 56 of the Law on JSC. According to this norm, the counting commission verifies the powers and registers persons participating in the general meeting of shareholders, determines the quorum of the general meeting of shareholders, explains issues arising in connection with the exercise by shareholders (their representatives) of the right to vote at the general meeting, explains the voting procedure on issues submitted to voting, ensures established order voting and the rights of shareholders to participate in voting, counts votes and sums up voting results, draws up a protocol on voting results, transfers voting ballots to the archive.

The Counting Commission is not an independent body of the company; it acts within the framework of the general meeting as a management body, its functions are of an auxiliary nature, ensuring the functioning of the general meeting of shareholders.

A limited liability company is not obligated, but at its discretion can form a counting commission, regulating its creation and powers in the charter and the Regulations on the general meeting of participants. It is clear that this only makes sense for societies with a large number of participants.

Minutes of the general meeting

Based on the results of the general meeting of shareholders, no later than three working days after its closure, the minutes of the general meeting and the minutes of the counting commission on the voting results are drawn up. The voting results of the general meeting of participants are announced at the general meeting itself, during which the voting was held, unless otherwise provided by the charter of the LLC. It is interesting to note that currently the content of the minutes of the general meeting is determined in the Civil Code of the Russian Federation itself (clause 4 of article 181.2).

1. The General Meeting of Shareholders is valid (has a quorum) if it was attended by shareholders who collectively own more than half of the votes of the company’s outstanding voting shares.

Those who took part in the general meeting of shareholders are considered to be those shareholders who registered to participate in it, including on the website indicated in the notice of the general meeting of shareholders on the Internet, as well as shareholders whose ballots have been received or the electronic form of whose ballots has been filled out on the website specified in such a message on the Internet information and telecommunications network no later than two days before the date of the general meeting of shareholders.

Shareholders who, in accordance with the rules of the legislation of the Russian Federation on securities, have given voting instructions (instructions) to the persons responsible for recording their rights to shares, are also considered to have taken part in the general meeting of shareholders, if notifications of their expression of will are received no later than two days before the date holding a general meeting of shareholders or before the deadline for accepting ballots when holding a general meeting of shareholders in the form of absentee voting.

2. If the agenda of the general meeting of shareholders includes issues on which voting is carried out by different groups of voters, the determination of the quorum for making a decision on these issues is carried out separately. At the same time, the absence of a quorum for making decisions on issues on which voting is carried out by one set of voters does not prevent the adoption of decisions on issues on which voting is carried out by another set of voters, for which a quorum is available.

(see text in the previous edition)

If there is no quorum to hold an extraordinary general meeting of shareholders based on a court decision, a repeat general meeting of shareholders will not be held.

Updated Regulations on additional requirements for the procedure for preparing, convening and holding a general meeting of shareholders (approved by order of the Federal Financial Markets Service of Russia dated 02.02.2012 No. 12-6/pz-n ) new rules are being introduced to determine the quorum of the annual meeting of shareholders. What can participants expect at future annual meetings and will innovations help solve pressing problems?

In the last issue of “KS” (No. 07), we briefly covered the main innovations relating to determining the quorum of the annual general meeting of shareholders. Judging by the number of questions received by the editors, the topic aroused particular interest among readers. And this is understandable - issues related to the exercise by shareholders of their corporate rights, especially voting rights, are always among the most pressing.

In this regard, we present to our readers an extended commentary on this novella.

As a general rule, the presence at a meeting or participation in voting of all members of the collegial body of a business company is not required. The law or the charter of the company establishes the concept of “quorum” - the minimum permissible number of members of the collegial body of a business company, in the presence of which it is authorized to consider and make decisions on issues of its competence included in the agenda. Federal Law of December 26, 1995 No. 208-FZ “On joint stock companies"(hereinafter referred to as the Law on JSC) determines that the general meeting is competent (has a quorum) if it was attended by shareholders who collectively own more than half of the votes of the company's outstanding voting shares (clause 1, Article 58).

note

The quorum of the general meeting is expressed as a fraction. The numerator indicates the number of voting shares of the company, the owners of which took part in the meeting, providing the right to vote on all issues within the competence of the meeting.

The denominator is the total number of outstanding voting shares of the company, which provide voting rights on all issues within the competence of the meeting.

If the fraction value is greater than 0.5, quorum is present.

The design of the quorum of the general meeting is designed to solve the following problems:

overcome abuse of rights and opportunism of individual shareholders;
ensure a balance of interests of shareholders with the dominant role of prevailing investors.

In a significant number of cases, the concept of quorum of the general meeting of shareholders turned out to be inapplicable. This is due to the effect of different voting compositions on certain issues on the agenda.

This effect is based on the following circumstances. Preferred shares in some cases provide voting rights only on certain issues within the competence of the general meeting. The rights of the owner of a security may be temporarily limited. The shares remain voting, but their owner is prohibited by a court ruling or the law from voting on all or certain issues within the competence of the meeting.

In a situation where voting on certain issues on the agenda different quantities shares, it is impossible to determine a single quorum of the general meeting applicable to all issues on the agenda. In this regard, the Law on JSC introduced the concept of “quorum on an agenda item”: if the agenda includes issues on which voting is carried out by different groups of voters, then the quorum for making a decision on these issues is determined separately. At the same time, “the absence of a quorum for making decisions on issues on which voting is carried out by one group of voters does not prevent the adoption of decisions on issues on which voting is carried out by another group of voters, for which a quorum is available” (clause 2 of Article 58).

note

According to established practice, regardless of the composition of voters, it is not the quorum of the general meeting of shareholders that is determined, but the quorum for making a decision on each issue on the agenda. If the composition of voters on all issues on the agenda is the same, the quorum for making decisions on these issues will be the same.

The rules for determining the quorum on issues on the agenda of the general meeting of shareholders are imperatively regulated by legislation: the Law on JSC and the Regulations on additional requirements for the procedure for convening and holding a general meeting of shareholders, approved by order of the Federal Financial Markets Service of Russia dated 02.02.2002 No. 12-6/pz-n. The company cannot, by its charter or other local act establish other rules different from those specified by law.

The definition of quorum is directly related to the concept of “voting share” - this is “an ordinary share or preferred share that gives the shareholder - its owner the right to vote when resolving an issue put to a vote” (Clause 1, Article 49 of the Law on JSC).

granting the right to vote on all issues within the competence of the general meeting;
granting the right to vote only on certain issues.

The first include:

ordinary shares;
preferred shares with the amount of dividends determined in the charter, voting on all issues within the competence of the general meeting, starting from the one following the annual general meeting, at which no decision was made on the payment of dividends or a decision was made on incomplete payment of dividends on preferred shares of this type (p 5 Article 32 of the Law on JSC).

As a general rule, they are taken into account when determining the quorum for all issues on the agenda of the general meeting.

all types - when making decisions on issues of reorganization and liquidation of the company;
certain types - when deciding to make changes and additions to the company's charter that limit the rights of owners of this type of preferred shares.

These shares are taken into account when determining the quorum only on certain issues within the competence of the meeting.

Features of determining quorum on certain issues

There is a problem of taking into account some shares when determining the quorum. Two such difficult situations can be distinguished.

Firstly, the rights certified by the security change, namely:

a non-voting share becomes voting (preferred shares of certain types, in cases established by law, are transformed into voting);
a voting share temporarily becomes non-voting (treasury shares).

Secondly, the rights certified by the security remain unchanged, but the right of the owner of the security to vote on all or certain issues on the agenda is temporarily limited. These types of restrictions have different purposes:

prohibition to vote part of the shares owned by the shareholder on all issues within the competence of the general meeting of shareholders:
sanctions for violations of the law or charter;
prohibiting a shareholder from voting with shares acquired in excess of thresholds established by law or the charter;
a ban on voting with all shares owned by the shareholder, but on certain issues within the competence of the meeting, such as:

- Creation special mechanism formation of an audit commission (a body for monitoring the financial and economic activities of the company), ensuring its independence from shareholders - members of the collegial and sole authorities management and board of directors (prohibition to vote on this issue for members of the supervisory board and executive bodies society);

— creation of a special mechanism for approving interested party transactions in order to neutralize the influence of interested shareholders on their approval (prohibition of voting on this issue by shareholders interested in concluding such a transaction);

prohibition of a shareholder from voting with all or part of the shares owned by him, both on all and on certain issues within the competence of the meeting;
introduction of interim measures in a legal dispute.

note

When changing the rights certified by a security, the object of ownership rights (the security) is modified, and when voting is prohibited, restrictions apply to the subject of this right - the owner of the security. At the same time, the scope of rights certified by the security remains unchanged.

These situations should produce different consequences.

In the first case, the shares are recognized as non-voting. This means that they are not taken into account both in the total number of outstanding voting shares (the denominator of the fraction) and in the number of voting shares owned by the meeting participants (the numerator of the fraction).

In the second case, the shares remain voting in nature, but their owner is prohibited from exercising voting rights on them. The highest judicial authority commented on the situation related to this ban as follows: “Although the shareholder, by the ruling of the arbitration court on taking measures to secure the claim, was prohibited from voting on one of the issues on the agenda of the general meeting of shareholders, at the time of the meeting his shares were voting in the sense of paragraph 1 of Article 49 of the Law on Joint Stock Companies" 1.

The established prohibition for a shareholder to vote with shares on all or certain issues on the agenda of a particular general meeting does not mean a change in the status of voting shares. The scope of rights certified by the security has not changed. The total number of outstanding voting shares of the company remains unchanged, however, at the meeting, a specific shareholder cannot exercise the right to vote on all or part of the securities owned by him. The shares of this shareholder are not counted only in the numerator of the fraction (the number of voting shares owned by the meeting participants), but are counted in the numerator of the fraction (the total number of voting shares outstanding).

note

It is logical to apply the specified methodological approach to all cases of restrictions in relation to certain categories of shareholders regarding the ability to exercise the right to vote on the shares they own.

However, there is a clear tendency to establish the same consequences both for cases of changing the rights certified by a share, and for cases of limiting the ability of shareholders to vote with the shares they own. In all cases, these shares are effectively recognized as non-voting. They are not taken into account either in the total number of outstanding voting shares (the denominator of the fraction) or in the number of voting shares owned by the meeting participants (the numerator of the fraction). This increases the likelihood of reaching a quorum on the agenda item.

When permissions change

The prohibitions established by law for certain categories of shareholders to vote all or part of the shares they own are interpreted not as a restriction on the rights of owners of voting shares, but as a change in the rights certified by the share, its transformation from voting to non-voting.

This approach can be partially traced in the Law on JSC, but to a greater extent in the Regulations.

The following argument is given to justify this approach. A temporary restriction in the rights of a shareholder affects only his rights related to participation in the general meeting, while the recognition of these shares as non-voting increases the scope of the rights of other shareholders. Due to a decrease in the total number of outstanding voting shares of the company, the share of voting shares owned by other shareholders increases. If initially some shareholders did not have the rights associated with owning a certain share of voting shares, then after a decrease in the total number of outstanding voting shares of the company they were able to exercise these rights.

The advantages of this approach are this aspect very insignificant. The law establishes the relative shares of voting shares with which the possibility of exercising certain corporate rights is associated - these are 1, 2, 10 and 25%. In order for the same number of voting shares, which initially amounted to 1% of all outstanding voting shares, to become 2%, it is necessary that at least 50% of the company's outstanding shares be recognized as non-voting. However, it is no longer possible to “raise” 2% of voting shares to 10%.

The rationale behind this approach is not related to the logic of the exercise of corporate rights, but solely to the pragmatic desire to increase the likelihood of achieving a quorum on agenda items, which should also be taken into account by corporate practice.

Placement of preferred shares with varying rights:

preferred shares with the amount of dividends specified in the charter. If at the annual meeting, regardless of the reasons, a decision was not made on the full payment of dividends on them, these securities begin to provide voting rights to their owners on all issues within the competence of the meeting (clause 4 of Article 32 of the Law on JSC),
preferred cumulative shares with the amount of dividends specified in the charter. If at the annual meeting at which a decision should have been made on the payment of the full amount of accumulated dividends on these shares, such a decision was not made or a decision was made on incomplete payment of dividends, these securities begin to provide voting rights to their owners on all matters of competence general meeting (clause 4 of article 32 of the Law on JSC).

note

The conversion of these shares into voting shares is temporary. The right of shareholders - owners of preferred shares of these types to participate in the general meeting with the right to vote on all issues within its competence terminates from the moment of the first payment of dividends on these shares in full.

As a general rule, ordinary shares are non-voting until they are fully paid for, that is, when a company is established, the right to vote on shares begins not from the moment of their placement, but from the moment of full payment.

However, an exception is allowed from this rule, which may be provided for by the company’s charter: “A share owned by the founder of the company does not provide voting rights until it is fully paid for, unless otherwise provided by the company’s charter” (Clause 1, Article 34 of the Law on JSC).

For a long time, the question remained unclear: are partially paid shares taken into account when determining the quorum of the general meeting? Initially, the answer to this was given by the highest court: if the charter of the company grants the founders the right to vote until the shares are fully paid for, the unpaid shares are taken into account when determining the quorum of the general meeting. If such a right is not granted, they are not subject to accounting 2.

The same position is reproduced in the new edition of the Regulations. Shares unpaid by the founder are taken into account when determining the quorum of the general meeting only if the charter provides the right to vote on such shares until they are fully paid for. If the right to vote on such shares is not granted by the charter, they are not taken into account when determining the quorum.

…And vice versa

Shares that come into the ownership of the issuer that placed these securities (treasury shares) become non-voting and are not counted in the quorum.

As a general rule, if the debtor and creditor coincide in one person, the obligation is terminated (Article 415 of the Civil Code of the Russian Federation). According to this rule, the rights certified by securities that have become the property of the person who placed them must be terminated.

Corporate legislation has made an exception to this rule. If the issuer (the obligated person who placed the securities) became the owner of the shares placed by him (securities certifying the rights obligatory to him), then the rights under them are not terminated, but are temporarily “frozen”: “The specified shares do not provide voting rights, do not are taken into account when counting votes, dividends are not accrued on them” (Clause 6, Article 76 of the Law on JSC).

These shares essentially become not a security, but a kind of surrogate. This is a serious exception to general rules. The transformation of some shares into non-voting surrogates is temporary. During the year, they will be alienated by the company (accordingly, the rights certified by them will be restored in full) or will be canceled with a decrease in the authorized capital of the company.

Shares acquired in excess of the threshold values established by law are considered non-voting and are not taken into account in the quorum.

There is a mechanism for protecting the economic interests of shareholders - owners of non-controlling stakes in conditions when the corporation is experiencing an increase in corporate control on the part of one participant or a group of affiliated persons, that is, the process of its absorption is underway.

If a participant or group of affiliates exceeds the legal thresholds for corporate control (acquires more than 30, 50, 75% of voting shares), the remaining participants have the opportunity to return the investment at the current market price.

The obligation to return the investment is assigned to the “absorber” - he must send a public offer to purchase all the company’s securities. The investment is returned through the sale of shares to the offeror. Whoever poses a threat to the economic interests of shareholders buys back their shares.

For failure to fulfill the obligation to send such a public offer, the following sanctions are provided:

- from the moment of acquisition of more than 30, 50 and 75% of the total number of voting shares of the JSC and until the date of sending to the company a mandatory offer to acquire all remaining shares, the person who acquired the specified blocks of shares and his affiliates have the right to vote only on the shares that constitute, respectively, 30, 50 and 75%. The remaining shares owned by this person and his affiliates are not considered voting and are not taken into account when determining the quorum (Clause 6, Article 84.2 of the JSC Law).

This clause originally read as follows: “the remaining shares owned by that person and his affiliates are not taken into account when determining the quorum.” This refers to shares acquired in excess of the thresholds of 30, 50 and 75% of voting shares. The original version of this article did not contain any indication that such shares are non-voting. This allowed us to conclude that shares acquired in violation of the requirements of the JSC Law do not objectively cease to be voting, the scope of the rights they certify has not changed, but there is a restriction in the rights of the owner of these securities - for violations of the JSC Law, he is deprived of the opportunity to exercise the right votes provided by securities purchased in excess of the established threshold.

Let's give practical example. Authorized capital The company consists of 100 ordinary shares (100% of voting shares). The shareholder owned 50 shares, then acquired 20 more and did not submit a public offer. How will the additional shares acquired by him not be taken into account when determining the quorum of the general meeting?

When the article in question was originally drafted, the following answer to this question was possible: these 20 shares are subtracted from the number of voting shares owned by the “absorber” (they are not taken into account in the numerator of the fraction). Since the rights certified by these shares have not changed, and they remain voting, they are subject to accounting in the total number of outstanding voting shares of the company (the denominator of the fraction).

This one shareholder, the owner of 70 ordinary shares of the company, took part in the meeting. The Counting Commission assumes that the total number of outstanding voting shares is 100 ordinary shares. The number of shares with which a participant in the meeting has the right to vote is 50, although he owns 70. Thus, 50 shares constitute only 50% of all outstanding voting shares of the company. Result: there was no quorum, the meeting did not take place.

However, on June 24, 2007, an amendment was made to this article of the JSC Law, according to which such securities “are not considered voting shares.” The legislator applied the construction not of restrictions on the rights of the “violator” of the law, but of changes in the rights certified by part of the placed shares.

The approach under consideration has a significant drawback. In most cases, it makes no sense for the “acquirer” to make an expensive public offer. By reducing the total number of voting shares of the company, it increases its share in the total number of votes and provides the opportunity to independently make decisions on almost all issues within the competence of the general meeting. For example: a shareholder owned more than 30% of the voting shares of the company, he acquired additional shares and exceeded the threshold of 50% of the outstanding voting shares, but did not send a mandatory offer to purchase the remaining shares to the company. Part of the shares owned by him are recognized as non-voting: these are shares acquired in an amount exceeding 50% of the company's outstanding voting shares.

Due to the recognition of part of the shares as non-voting, the total number of outstanding voting shares of the company decreases. The acquirer shares that remain voting account for more than 50% of the reduced number of outstanding voting shares. It independently ensures the quorum of the general meeting and the adoption of decisions that require a simple majority. If more than 33.4% of the shares are recognized as non-voting, this shareholder is able to independently ensure the adoption of decisions that require a three-quarters majority of the votes.

Obviously, for the purpose of “pushing” a violator of the law to fulfill the obligation to send a public offer to the company to purchase the remaining shares, it is more logical and effective to limit his rights related to the acquisition of shares above the threshold established by law.

1 Review of the practice of arbitration courts taking measures to secure claims in disputes related to the circulation of securities. Information mail Presidium of the Supreme Arbitration Court of the Russian Federation dated July 24, 2003 No. 72 (clause 4).

2 Resolution of the plenum of the Supreme Arbitration Court of the Russian Federation dated November 18, 2003 No. 19 “On some issues of application federal law“On joint stock companies” (subparagraph 2, paragraph 7).


Ordinary shares	Preferred shares with a dividend amount determined in the charter - in case the general meeting does not make a decision to declare dividends or declare dividends not in full on preferred shares of this type (paragraph 1, clause 5, article 32 of the Law on JSC)	Preferred cumulative shares with the dividend amount determined in the charter - in case the general meeting does not make a decision to declare accumulated dividends in full or declare dividends not in full (paragraph 2, clause 5, article 32 of the JSC Law)

As a general rule, they are taken into account when determining the quorum on all issues on the agenda

They are taken into account when determining the quorum only on certain issues within the competence of the meeting.