An especially big deal. The concept of a major transaction for legal entities

Some types of transactions made by LLC are carried out within the strictly specified legal framework. Such transactions can be so-called large transactions (agreements, contracts). If the special procedure is not followed, then they are not recognized as valid. Even before the start of its commission, the lawyer determines the status - whether it is large or not.

Determination of the transaction and the procedure for its execution

In the civil law of the Russian Federation, it is determined big deal concept... A major transaction is considered to be several related transactions, as a result of which property is acquired or alienated. The value of property in such transactions must start at 25 percent or more of the book value of the assets of the Limited Liability Company.

Oddly enough, but the conclusion of an amicable agreement also refers to major transactions. At the same time, the parties and beneficiaries are not always known. This applies to bidding. In this situation, it is permissible not to indicate the mandatory information.

The value of the assets themselves is determined by the balance sheet of the Limited Liability Company, drawn up by an accountant with the most recent date of the report for the past period (last year). Major agreements may include: loan, credit, pledge... But the deals related to the placement on the securities market, despite sometimes even their large volumes, can in no way be classified as large.

The Law "On Limited Liability Companies" clearly defines that transactions made in the course of permanent economic activity cannot be classified as large.

Approval of transactions

To approve the agreement, a general meeting of the company's participants (shareholders) is convened, where the issue of approving a major transaction is resolved. A draft decision on approval of the agreement between subjects. This decision specifies: the price of the acquired property, directly the subject of the transaction itself and the acquirer. If the contract was concluded during the auction, then the beneficiary cannot be indicated in the decision. The same rule applies in some other cases when the beneficiary could not be identified by the time of approval.

An LLC can be created Board of Directors... In this case, all agreements worth from twenty-five to fifty percent of the value of the company's property are under the jurisdiction of the Council. And already the council can decide the approval of major contracts.

The decision taken by the general meeting is ensured by the presence of all participants. Participants must be notified in advance. The head of the enterprise acquaints those present with the agenda of the meeting. The procedure for holding a meeting is determined by the law on LLC, the charter and other documents of the enterprise itself. A break is allowed in the work, not limited in time.

The data on the agreement are drawn up signed minutes of the meeting... The decision is considered legal if it does not contradict the charter and current legislation. Essential conditions not specified in the protocol automatically make the transaction unapproved.

The agreement is considered approved from the moment of signing the protocol.

Recognition of transactions as legitimate

If, in the course of the events, according to the terms of the contract, violation of the law, then the agreement can be declared invalid at the request of the company or any of its participants.

The court appoints the time for holding hearings on recognizing the terms of the contract as invalid. If the hearing is missed, the statute of limitations cannot be restored. This means that you cannot miss the hearing.

The deal is recognized by the court under certain circumstances:

• The voter does not want to admit that the agreement was made correctly, and files a claim in court. The reason for filing a claim is the fact that the vote of the participant in the vote on the recognition of a major transaction did not affect the final result, even if he voted. This circumstance cannot be wrong in any way. All procedures were followed and the decision was taken by a majority vote.
• There is no way to prove (there is no evidence) that the agreement may entail losses to the whole society or its individual participant.
• Evidence in court may require documents for the approval of the contract... If the documents are in good order and executed according to the rules, then the transaction is recognized as legal.
• Everything is considered valid and recognized by the court - even if the transaction was committed with violations, but the other party participating in it did not know about them or should not have found out.
• The charter of the company may stipulate that a decision on the implementation of major transactions is made without a general meeting and the board of directors.
• The possibility of retroactive approval of the contract is not excluded.

The article of the law governing the rules of the procedure for approving agreements, cannot be applied on the following three points:

1. A limited liability company consists of one participant who himself carries out all the functions of the enterprise and the execution of transactions.
2. The emergence of relations when a share or part of it in the authorized capital is transferred to the company.
3. The emergence of relations when there is a merger of companies or a takeover as a result of the reorganization of an LLC.

"Passing" a deal is not always a reason to relax. Sometimes this is just the beginning of problems. Always exists the likelihood of a treaty being invalidated.

The main point for the decision of the general meeting of LLC participants to be recognized as legitimate and not to have problems in the future is the presence of an elementary majority.

If the charter does not require either a general meeting or a decision of the board of directors, then there is a possibility of acquiring illiquid assets or disposing of assets. This option cannot suit the members of the society and will cause a conflict of interest.

If any person related to society is interested in the agreement, the following applies to her. exclusion rules.

Rules determined by the charter of the company

1) The charter regulates the daily business activities of the company... It can also define the lowest and highest thresholds for large contracts, or even abolish the procedure for such processes. In the presence of any of the threshold levels, the figures for the minimum and maximum threshold values ​​should be expressed as a percentage. The decision is made by the general meeting or by the board of directors.

2) Usually the decision on the agreement is made general meeting of members of the company... But when the board of directors is formed, all functions are transferred to it. Changes should be reflected in the charter.

3) New rules governing the negotiation process define a new size threshold. If earlier the threshold was no more than 25 percent, now this rate has grown from 25 percent or more.

4) The charter of the LLC now provides for other types and size of large transactions... These types include: borrowing and real estate transactions. The threshold in such contractual agreements may exceed the established one.

5) According to the statutory rules and current legislation, upon approval of a major transaction, the following must be indicated:

• a) Persons who are beneficiaries. Such persons are not indicated in transactions made at the auction or if they have not been established before the start of approval.
• b) Subject of the auction.
• c) The cost of the transaction.
• d) Special conditions.

Exactly the same norms are specified in the law on joint stock companies. But norm for LLC it is considered more perfect, since in the case of a joint-stock company, the specifics of the agreement at the auction and cases of impossibility to determine the beneficiary at the time of the decision are not taken into account.

6) The Articles of Association may prohibit the alienation of a share or part of a share of a participant in a company in favor of a third party.

The procedure for approving transactions is provided for in Article 45 of the Law on Limited Liability Companies. This article provides for exceptions in case of interest by one of the parties.

Major deals for various forms of companies

Various approaches are applied to the concept of "major deal". This depends on the form of the legal entity.

For LLC

For this type of society, the assessment has already been given and the rules for regulating approaches have already been given so as not to repeat themselves.

Major contracts are approved by the general meeting or, if any, by the board of directors. Amount upon approval is from 25 to 50 percent.

Disputes on contestation are resolved in court.

The presence of one participant in the company provides for a simple written approval without a protocol.

For unitary enterprises

This type of legal entity is subject to the rules of the law “ On state and municipal unitary enterprises ".

For state-owned enterprises, an agreement becomes large as a result if the transactions are interconnected. At the same time, it is acquired or alienated, and there is also the possibility of alienating property. Property in contracts of this kind is estimated at more than 10 percent of the authorized capital of the enterprise in the first version. And in the second option, fifty thousand times or more must exceed the minimum wage.

The value of the alienated property is determined as a result of the accounting of the enterprise. If the property is purchased, then its value is determined based on the price of the property.

To make a decision, the consent of the owner of the enterprise is required. This owner is the municipality (local authorities).

The lack of consent of the owner means the bankruptcy of the transaction.

For state and municipal institutions

The law "On non-profit organizations" applies to this form of enterprise. A major transaction for such an enterprise is several interrelated transactions, if they are related to money, alienation of property or transfer of property, use or pledge.

The price of such a deal or the value of property (alienated or transferred) must exceed the value of the assets of a budgetary institution on the balance sheet of the enterprise. The cost is determined by the accounting reports with the latest date. The charter of such an enterprise may provide for a smaller amount of the contractual agreement.

The budgetary organization implements its contracts with the prior consent of the founder. The founder is: federal executive bodies, the executive body of a constituent entity of the federation and local self-government bodies.

To participate in the agreement, the founder of a budgetary organization should submit to the Ministry of Finance package of documents:

• An appeal from the head of the institution for preliminary approval. This document indicates: the price and terms, the subject of the transaction and the parties, the financial justification for the feasibility. A list of documents must be attached to the appeal.
• Certified copies of the budget statements for the last year with the latest reporting date. The chief accountant certifies the forms of budget reporting.
• Draft agreement, which contains all the terms of the transaction.
• A report on the appraisal of the market value of the property. The assessment is carried out no earlier than three months before the submission of the report.
• Indication of all types of debts, debtors and creditors.

The decision on preliminary approval is considered and adopted by the commission after the documents are accepted, within a month. The decision is drawn up by order of the Minister of Finance.

For an autonomous institution

Regulated the law "On autonomous institutions"... The transaction for this enterprise is then large when it is associated with the disposal of funds raised under a loan, the alienation of property and the transfer of its use (or as a pledge). The conditions for this are as follows: the price or value of property (transferred or alienated) exceeds 10 percent of the value of assets on the balance sheet of the enterprise. The value of assets is determined, as elsewhere, by the balance sheet with the latest reporting date. A lower threshold can be specified in the bylaws.

In an autonomous institution, the right to conduct is decided with the approval of the supervisory board... The council considers the proposal of the head for 15 calendar days. The council consists of five to eleven people.

The members of the supervisory board are: representatives of this institution, executive bodies of local self-government or state power, representatives of the public.

A transaction made in violation is invalidated at the suit of an autonomous institution or its founder.

Special rules

Transactions require special attention. Article 46 defines and enshrines a number of rules.

• A major transaction is not only one transaction involving a loan, loan, pledge or surety, but several related transactions for acquisition or disposal.
• The value of the property must be 25 percent or more of the value of the property as of the last reporting date.
• Responsibility for whether the transaction is large or not rests with the LLC. Accounting expertise will help to understand the conflict that has arisen. Companies working on the "simplified" are not obliged to keep accounting.
• The charter helps effectively control all economic and financial activities of the LLC.
• The court-approved settlement is a major deal. You can dispute such a deal only by filing a complaint with the court.
• A problem for the activities of an LLC can be the line between economic activities and large transactions. It is rather difficult to define and the threat of failure (non-recognition) invariably arises.
• Major transactions are not recognized where a large amount of money is contributed to the authorized capital in the form of property, a pledge agreement for real estate or the purchase of leased premises.

Legal regulation of large transactions

The regulation of large transactions is paid attention to by such a document as the "Concept for the Development of Civil Legislation" of the Russian Federation.

This document states that schema agreements used to abandon those committed earlier, although they must preserve the property of the society. Property turnover is violated and is contrary to the interests of counterparties and creditors.

The protection of its interests by the company when making a major transaction by way of challenging is possible when the company cannot be aware of violations of the order, that is, it is a bona fide counterparty.

The accountant and lawyer involved in the transaction must be aware of the pitfalls and adhere to the accounting and reporting data.

In 2017, the long-forecasted changes in the part of the legislation related to the definition of large transactions came into force. The changes also touched upon the issues of qualifying characteristics, approval procedures, and made adjustments to the process of issuing a decision on the authorization of such transactions by the governing state bodies. Now a deal is qualified as major only if it goes beyond the scope of the company's standard business activities.

The concept of a major transaction for legal entities

Despite a number of common qualifying features, the concept of a major transaction differs depending on the form of the legal entity that intends to make it. This type is carried out by the following organizations:

• Business companies (LLC, JSC).
• Unitary enterprises.
• State and municipal institutions.

As far as LLC is concerned, Art. 46 of the Federal Law No. 14 of 08.02.1998. for them, it represents a major transaction, as one in which property is acquired or alienated for an amount exceeding 25% of the value of the property of the company itself. It is determined on the basis of accounting reports for the period that precedes the date of the transaction. The exception is cases when the Charter of the LLC prescribes a higher amount of a major transaction. If such occurs in the course of ordinary economic activity, then it cannot automatically be considered large.

Thus, a major transaction for an LLC always meets the following criteria:

• With her, the property of the LLC is always acquired or alienated.
• It can be not only single, but also represent a chain of transactions related to each other.
• The charter of the company can make adjustments to the list of possible transactions for that particular organization.

A large deal for JSCs is regulated by Federal Law No. 208 of December 26. 1995 It determines that in this case, such can be considered a transaction in which the property of the company is acquired or alienated in the amount of at least 25% of the total book value of assets. It is calculated from the accounting reports for the last reporting period. The types of such transactions may include loans, credits, etc.

Transactions of unitary enterprises are determined by Federal Law No. 161 of November 14. 2002 In this case, a major transaction is considered when the property of an organization is acquired or alienated for an amount exceeding 10% of its authorized fund or 50 thousand times the minimum wage in Russia. The value of the property is calculated on the basis of accounting reports

Federal Law No. 7 of 12.01. 1996 defines the concept of a major transaction for budgetary organizations. It is recognized as such, provided that it operates with cash or property in an amount exceeding 10% of the book value of the assets of this institution. They are determined on the basis of accounting reports for the last reporting decade. Exceptions will be situations in which the Charter of the organization allows you to recognize a large deal with smaller amounts.

Large transactions of autonomous institutions are considered by Federal Law No. 174 of 03.11. 2006 They are considered as such, provided that in the process of carrying out they operate with monetary amounts or property in an amount equal to or exceeding 10% of the book value of the assets of this institution. An exception is the recognition by the Charter of an autonomous organization of the possibility to consider a smaller deal as large.

What transaction is considered a major one for an LLC

When determining the size of a transaction for an LLC, two main criteria are currently being followed:

• First, the amount of the transaction being carried out is compared with the value of the institution's assets.
• Secondly, it is determined whether it goes beyond the standard economic activities of a given organization.

When considering the amount of alienated or acquired property, it should be understood that these are not only immovable objects, equipment, etc., but also products of intellectual labor, shares, cash, etc.

The following financial transactions can be used as transactions in this aspect:

• An agreement under which property is alienated or acquired (credit, loan, purchase of shares, etc.).
• Agreements in which property is withdrawn from the assets of the organization for a long time (transferred to another institution under a lease agreement, etc.).

Read also: Legal entity: concept, types, legal personality, registration and liquidation

The company's charter can also provide an individual definition of a major transaction for a specific LLC. Rather, starting from 2017, these can only be principles of their extension to other transactions.

The concluded contract is evaluated according to two main criteria:

• Organizations that acquire and dispose of property.
• Actions that are supposed to be performed with this property.

And the main thing here will be a quantitative criterion, i.e. the ratio of the transaction value and the amount of assets.

The operations of a society that fall into a high price range are necessarily subject to analysis. If they are carried out in a single transaction, then it is easier to analyze them. Difficulties arise when they represent a chain of interrelated transactions. In this situation, the analysis procedure is simplified if the participants are the same.

The following types of LLC transactions will not be recognized as major:

• In cases when they are carried out in the ordinary course of business of the company.
• If during such operations the placement of ordinary shares of the enterprise or equity securities takes place.

• Property donation procedure.
• Credit loans.
• Purchase and sale of goods.
• Property exchange operations.

If the transaction is large, then in addition to its approval, consent will also be required to conclude additional agreements, preliminary agreements and labor contracts.

A number of small transactions can be recognized as one large transaction if they meet the following requirements:

• They have a homogeneous character.
• They were committed simultaneously or in a short time period.
• They involve the same objects and subjects.
• It is possible to trace a single goal in them.

The LLC Charter should clearly state the mechanism for conducting a major transaction:

• The need to obtain the consent of all founders of the company.
• With the consent of the board of directors only.
• No need for additional approvals.

If such information has not been entered into the Charter, then the implementation of the contract must be guided by Federal Law No. 14, which establishes that approval is the right of the general meeting of members of the company. It is possible to fix a higher price ceiling of the transaction in the Charter.

Calculation of a major transaction for LLC

To calculate the size, the following mechanism of action is provided:

• At the first stage, the total cost of the transaction is calculated.
• The amount received is compared with the value of the LLC property. To do this, take the data of accounting reports for the last reporting period. In this case, all assets are taken into account.

Since 2017, a large amount is considered to be an amount that equals or exceeds 25% of the amount indicated in line 700 of the balance sheet.

Before entering into an agreement, the following check should be carried out:

• Calculate the value of assets. Take the latest accounting report as a basis.
• Correlate the amount of the contract with the value of the company's assets.
• Determine the causal relationship with the property.
• If the asset already has contracts with a similar meaning, then a relationship should be established with them.
• Relate the transaction to be concluded with the ordinary economic activities of the company.

Balance calculation

To post the book value of assets, you need to take the amount from the last balance sheet. At the same time, it should be taken into account that debts are not taken into account in such calculations, i.e. take total assets, but take into account the residual value.

In all such calculations, only property is considered, which is officially the property of a legal entity. Other objects or leased property are not taken into account.

If the company has one founder

Federal Law No. 14 establishes that transactions concluded by LLC, where only one person acts as a founder, cannot be considered large. To confirm this fact, it is enough to submit an extract from the Unified State Register of Legal Entities. If over time the composition of the company expands, then in order to avoid unnecessary claims, it is better to secure the approval of the contract by all participants, even if it is made according to a preliminary agreement concluded with a different composition.

Size certificate

Disputing transactions in court is not uncommon. In such situations, when considering a case, the judge is obliged to consider all the primary accounting documents of the company and appoint the necessary expertise. For this purpose, a certificate of the size of the transaction is requested from the accounting department of the company.

Each chief accountant should know the procedure for its preparation. The document must be certified by the signatures of the head of the LLC and the chief accountant. After receiving the certificate, as a rule, it is provided to Rosreestr in order to record the fact of the transfer of property and rights to it.

The law requires special rules to be followed if a major transaction is made for an LLC. What transaction is considered large for an LLC and what requirements must be met when it is concluded.

There are special rules for LLCs with respect to large transactions. If the established procedure is not followed, the transaction may be challenged, and the court will declare it invalid. Before a company signs a new agreement, lawyers need to find out:

• whether the transaction is large;
• Does the charter contain rules that the transaction must be approved under the large rules.

Please note that the charter cannot change the procedure for approving such transactions or cancel it (,). If the articles of association retained the clauses that can be dispensed with without approval, they are invalid.

Guest, get acquainted -!

A major transaction for an LLC is a transaction with a price higher than the value of 25% of the company's assets

The concept of a major transaction for an LLC is present in "On Limited Liability Companies". According to the law, such a transaction is called an operation in relation to property, the value of which exceeds 25% of the total value of the company's property. However, this is not the only sign. In Art. 46 of the LLC Law, what is a major transaction for LLC. This is a deal that:

1. Outside the normal business of the company.
2. Associated with the acquisition or alienation of property, the price or book value of which is higher than 25% of the book value of the LLC assets. The book value is determined by the last reporting date. Including, the transaction may relate to a loan, credit, collateral, etc.
3. Provides for the obligation of the LLC to transfer these assets for temporary possession, use or under a licensing agreement (clause 1 of Article 46 of the LLC Law).

Large can be not one, but several transactions related to each other (clause 1 of article 46 of the Law on LLC). The Plenum of the Supreme Arbitration Court of the Russian Federation explained on what grounds the interconnectedness of transactions is determined (subparagraph 4, paragraph 8):

• they were concluded with a common economic purpose;
• the property has a single economic purpose;
• as a result, one person gets ownership of the property;
• there is a short time gap between deals.

The RF Armed Forces in Resolution No. 27 indicated that in order to assess the aggregate value of several transactions, it is necessary to compare the value of property for all transactions with assets in the balance sheet, which was made before the first transaction (paragraph 14 of Resolution No. 27).

What is considered a major deal for an LLC on the basis of atypicality

It is important for lawyers of organizations to know which transaction is considered large for an LLC, as well as which transactions do not fall under these criteria. If the deal is in the company's usual line of business, it is not considered a major deal. When it is said that a transaction is outside the normal business of the company, it is understood that:

• the company itself usually does not make such transactions, or it is not customary to make them among organizations that exist in the same area of ​​business; or
• the transaction terminates the work of the company, changes the type or scale of work (clause 8, article 46 of the LLC Law).

If at least one of the two signs is observed, this means that this transaction is large for the LLC (clause 8 of article 46 of the Law on LLC, subsection 2 of clause 9 of Resolution No. 27, paragraph 3 of subsection 2 of clause 3 of the resolution dated May 16, 2014 No. 28).

The conditions for concluding transactions are listed in Art. 46 of the LLC Law

The company is planning an atypical property transfer transaction, and the subject of the transaction will be property worth more than 25% of the LLC's assets. Such a deal must be approved. Moreover, according to the law on LLC, only the general meeting of participants can be involved in the approval of large transactions (clause 3 of article 46 of the law on LLC). But there is a caveat in the law. If the company is managed by a board of directors or a supervisory board, the charter can establish the powers of the board to approve major LLC transactions. Then the council will have the right to agree to such a transaction if the value of the subject of the transaction ranges from 25% to 50% of the total value of the company's assets. When determining which transaction is large for an LLC, you need to take into account the price indicator. If the value of the transaction is more than 50% of the value of the company's property, only the general meeting can give consent to it.

The meeting on the approval of a major transaction in an LLC is held according to general rules. Based on the results of the meeting, the participants of the LLC decide whether they agree to the deal. If the initiators of the transaction have received consent, the decision on a large LLC transaction must indicate:

1. Who are the parties to the transaction.
2. Who is the beneficiary of the transaction.
3. What is the size of the major transaction for the LLC.
4. What is the subject of the transaction, what are the other essential conditions for the conclusion or in what order they are determined (clause 3 of article 46 of the LLC Law).

In addition, the solution may include:

• an indication of the minimum and maximum limits for the value of the property or the procedure for determining these limits;
• the consent of the company to similar transactions, as well as to the simultaneous execution of several transactions;
• alternative options for the terms of the deal;
• the period during which the decision on consent due to the size of the transaction for the LLC will be valid. If no time has been specified, the decision is valid for one year from the date of approval of the document (unless otherwise follows from the essence of the transaction or the circumstances of consent to it).

The party to the transaction and the beneficiary may not be indicated in the decision if the transaction is concluded at the auction, as well as in other cases that are specified in the law (clause 3 of article 46 of the LLC Law).

The company's charter may contain a requirement to approve transactions according to the rules for large LLC transactions, even if the transaction does not apply to such.

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Major deal for LLC, as for other business entities, requires approval from the business owners. Let us examine what are the criteria for classifying transactions as large, as well as how the owners of the company agree to conclude a "large" contract.

Definition (concept) of a major transaction in the Federal Law on OJSC and LLC

What is the major deal for LLC and JSC? Despite the fact that these organizational and legal forms of business have significant differences, the criteria for determining a major transaction with their participation are practically the same.

1. Goes beyond the normal economic activities of the organization.

At the same time, such transactions do not include those that are typical for legal relations in which an organization or other firms engaged in similar types of economic activity enter (provided that such transactions do not lead to the liquidation of the company, a change in its type or a significant change in the scale of the organization).

2. It involves the acquisition, alienation or lease of property or registration of a license to use intellectual development.

3. It is characterized by the price or the book value of the property (which is the subject of the transaction) in excess of 25% of the book value of all assets of the company as of December 31 of the year preceding the one in which the transaction was carried out.

When purchasing more than 30% of PJSC shares in the manner regulated by Chapter XI.1 of Law No. 208-FZ, the buyer is obliged to send a public offer - an offer to purchase shares to other owners of securities. At the same time, the transaction price includes not only the price of the purchased shares, but also the price of other shares that the buyer should try to redeem from the current owners.

On our forum you can discuss any question that you may have regarding tax and not only legislation. For example, we are figuring out how to notify the tax authorities about a controlled transaction.

How to determine if a trade is large?

1. Take the balance sheet for the year preceding the one in which the transaction is concluded, and familiarize yourself with the book value of all the firm's assets (line 1100).

2. Get acquainted with the value of the property purchased (sold or leased) under an agreement with a counterparty.

3. Compare the value of the property under the contract with the carrying amount (which may include other costs associated with the acquisition of the asset, such as shipping costs).

If the property is purchased by a party to the transaction, then the purchase price of the property is taken into account in the further calculation; if sold - the highest value when comparing book and selling value; if rented out - book value (clause 2 of article 46 of Law No. 14-FZ, clause 1.1 of article 78 of Law No. 208-FZ).

4. Divide the amount taken into account under item 2 by the amount under item 1.

If the result is more than 0.25, then the transaction is considered large (subject to the other criteria discussed above) and will require the approval of the business owners, unless otherwise provided by law.

What is the significance of the fact that a transaction is classified as a major one?

The presence of legislative grounds for recognizing the transaction as large enables the owners to actually protect their business from unwanted and uncoordinated actions of the CEO. If a transaction that qualifies as a major transaction is conducted without the approval of the owners, they will have a legal opportunity to challenge it.

The conclusion of a major transaction for an LLC or JSC, as a rule, imposes a number of large-scale obligations on an economic entity. Most often financial (for example, related to payment for purchased goods). Accepting such obligations without the knowledge of the owners of the company or their proxies is in many cases an extremely undesirable scenario for business.

Here, there can be a corruption component (when the director negotiates a large purchase from "his" supplier), and insufficient competence of the manager (when the supplier is not "his", but not the most profitable, which only the owners know about, and the director, due to inexperience, does not suspects it).

Let us now consider in more detail the specifics of large transactions by limited liability companies.

Do I need to approve a major transaction in an LLC?

It is important for the head of a company registered as an LLC, as well as for the director of a JSC, to obtain consent to this transaction from certain authorized persons (later in the article we will consider how it can be given).

The corresponding transaction, carried out without approval, can be challenged in court on the basis of the provisions of Art. 173.1 of the Civil Code of the Russian Federation. At the same time, it can be challenged by persons who own at least 1% of the authorized capital of an LLC (clause 4 of article 46 of Law 14-FZ). Approval of a major transaction for an LLC can be obtained upon its implementation. The main thing is that the consent of the authorized persons is obtained prior to the consideration of the case in court (clause 5 of article 46 of the Law 14-FZ).

At the same time, the legislation provides for the conduct of transactions that fall under the criteria of large, without obtaining the consent of any parties. For example, if the LLC has a single founder who is also the CEO.

The acquisition of the powers of the CEO by the sole founder of the company has nuances - you can study them in the article "Sample employment contract with the general director of LLC" .

However, there are still a number of reasons to use the opportunity to disapprove of a major deal. Let's study the specifics of "large" contracts concluded freely, in more detail.

Is a single founder transaction considered non-approval?

Yes, this is, as we noted above, so. In addition, a large - in accordance with the above criteria - a transaction with the participation of an LLC does not require approval if (clause 7 of Article 46 of Law 14-FZ):

1. It is carried out within the framework of the reorganization of an LLC (as an option - under a merger agreement with another company or accession to it).

You can find out more about the specifics of the reorganization of an LLC in the article "Step-by-step instructions for the reorganization of an LLC by merger" .

2. It assumes the receipt by the company of a share in its authorized capital in cases stipulated by law 14-FZ.

3. It is carried out by the company by virtue of the law at the price established in regulatory enactments.

4. The LLC buys the securities of the PJSC as part of a mandatory offer.

5. The conclusion of a major transaction for an LLC is carried out according to the rules determined by the preliminary agreement, and also provided that this agreement:

• contains information confirming the fact of approval of the transaction;
• is concluded with the approval of the persons who give their consent to the transaction.

Let us now study how to ensure the legality of a major transaction, in turn, requiring consent to conduct it.

What is the procedure for approving a major LLC transaction?

Concludes a major deal for LLC, as we noted above, its CEO. At the time of its execution (or, if it happened so, at the time the court considers the claim to invalidate the transaction), he should have in his hands - as a condition for recognizing the "large" contract as legal - a decision to approve the conclusion of the contract:

1. Published by authorized persons - participants in the general meeting of owners of the LLC. If the firm has a board of directors issued by it, provided that:

• the board of directors has the relevant competencies under the charter of the LLC;
• the value of the property within the framework of the transaction - 25-50% of the value of the property of the LLC.

• about the persons acting as parties to the transaction;
• beneficiaries;
• price, subject of the contract;
• on other material terms of the transaction or the mechanism for determining them.

• on the upper or lower limit of the value of the sale of property or the procedure for their establishment;
• permission to conclude a number of similar agreements;
• alternative terms of the contract, the conclusion of which requires approval;
• approval of the transaction, subject to the conclusion of several contracts at the same time.

When this period is not specified, the decision is considered valid within 1 year from the date of its adoption, unless otherwise predetermined by the specifics of the approved major transaction or due to the circumstances of the decision.

Outcomes

A major transaction is considered if the value of the subject exceeds 25% of the total assets of the company. In this case, the terms of the contract must meet the criteria established by Art. 46 of the Law "On LLC" dated 08.02.1998 No. 14-FZ and Art. 78 of the Law "On JSC" dated December 26, 1995 No. 208 (for LLC and JSC, respectively).

You can find out more about the features of the legislative regulation of legal relations with the participation of LLCs in the articles:

• "What is the procedure for the withdrawal of participants from the LLC?" ;
• "Registration of the transfer of a share in LLC to another participant" .

Big deal

(English important transaction / deal) - in the civil law of the Russian Federation, a conditional concept meaning a transaction that is made in a special, regulated by law, order by certain types of legal entities, in particular, business companies. The concept of C.s. for the first time the Federal Law "On Joint Stock Companies" ** was defined for joint stock companies and subsequently adopted by the Federal Law "On Limited Liability Companies" **.

According to Art. 78 of the Federal Law "On Joint-Stock Companies" CC related to the acquisition or alienation of property by a company is a transaction or several interrelated transactions: the value of the company's assets as of the date of the decision to conclude such transactions, with the exception of transactions concluded in the normal course of business; b) related to the placement of ordinary shares or preference shares convertible into more than 25% of the ordinary shares previously placed by the company. At the same time, the value of the property that is the subject of K.s. is carried out by the board of directors (supervisory board) of the company in accordance with Art. 77 Federal Law "On Joint Stock Companies". Amount (size) K.s. is determined on the basis of the value of the actually alienated or acquired property (property transferred to, contributed as a contribution to other companies, etc.) in comparison with the data of the last approved balance sheet of the company. The commission of K.s related to the acquisition or alienation of property by a joint-stock company is carried out according to the rules of Art. 79 FZ "On Joint Stock Companies".

In accordance with Art. 46 FZ "On Limited Liability Companies" is a transaction or several interrelated transactions related to the acquisition, alienation or the possibility of alienation by the company, directly or indirectly, of property, the value of which is more than 25% of the value of the property of the company, determined on the basis of the financial statements for the last reporting period preceding the day the decision was made to conclude such transactions if the charter of the company does not provide for a higher size of K. with. C.s. are not recognized as occurring in the ordinary course of business. The cost of a property alienated by society as a result. property is determined on the basis of its accounting data, and the value of the property acquired by the company is determined on the basis of the offer price. C.s. is carried out according to the rules established in paragraphs. 3-6 st. 46 Federal Law "On Limited Liability Companies".

Transactions made in the course of ordinary business activities (for the production of products, ensuring the supply of raw materials and materials, the provision of financial services, the performance of construction and other works, the sale of finished products or goods, etc.), the Federal Law "On Joint Stock Companies" ( Clause 1 of Art. 78) and the Federal Law "On Limited Liability Companies" (Clause 1 of Art. 46) do not refer to CCs performed in a special procedure regulated by the indicated federal laws. The amount of an ordinary business transaction in this sense does not matter, even if, for example, it is equal to or exceeds an amount equivalent to 25% of the book value of the company's assets.

The concept of ordinary economic (or entrepreneurial) activity is not always interpreted unambiguously, since certain types of activity are common for some business entities, but not for others. It also depends on the specifics of the field of activity, management and entrepreneurial traditions, technical and organizational methods of performing certain operations. For example, it is not always possible to unambiguously establish whether a C.s. falls under the signs. obtaining a large loan, (purchase) of a real estate object, etc. It is possible to determine whether a transaction belongs to the category of large ones only on the basis of a thorough analysis of the activities of a particular business entity. Therefore, the final issue of this issue in controversial situations remains at the discretion of the court. The criterion for recognizing a transaction as large can also be on the question of whether its completion is capable of really influencing the further fate of the company as an enterprise, property complex, and as a legal entity. If the answer to this question is yes and if the criteria specified in federal laws are present, it is possible to conclude that the transaction being made is a large one (see: Commentary to the Federal Law “On Joint Stock Companies.” 2nd ed., Add. and revised. Under the editorship of M.Yu. Tikhomirov. - M., 2000; Commentary on the Federal Law "On Limited Liability Companies." Edited by M.Yu. Tikhomirov. - M., 1998).

Big Law Dictionary... Academic.ru. 2010.

See what "Big deal" is in other dictionaries:

Big deal- buying or selling a large number of securities. Major New York Stock Exchange Trade A trade for a 10,000 share block or a block with a total market value of at least US $ 200,000. In English: Block ... ... Financial vocabulary

Big deal- (English important transaction / deal) in the civil law of the Russian Federation, a conditional concept meaning a transaction that is made in a special, regulated by law, order by certain types of legal entities, in particular, economic ... ... Encyclopedia of Law

Big deal- - a transaction or several interrelated transactions related to the acquisition or alienation or the possibility of alienation by the company, directly or indirectly, property, the value of which is more than 25% of the book value of the company's assets as of the date ... ... Stocks and bods market. Glossary of basic terms and concepts

Big deal- A major transaction in Russian civil law is a transaction (including a loan, credit, pledge, surety) or several interrelated transactions related to the acquisition, alienation or the possibility of alienation by the company, directly or indirectly ... ... Wikipedia

Big deal- The concept of a major transaction is determined by Article 78 of the Federal Law of December 26, 1995 No. 208 FZ On Joint Stock Companies. Major transactions are the following: a transaction or several related transactions related to the acquisition or disposal, or ... Vocabulary: accounting, taxes, business law

Big deal- A large order to buy or sell shares on the New York Stock Exchange is defined as an order for a package of 10,000 shares of certain shares, or for a package with a total market value of $ 200,000 or more ... Investment Dictionary

Large transaction of a joint stock company (JSC)- 1. A major transaction is a transaction (including a loan, credit, pledge, surety) or several interrelated transactions related to the acquisition, alienation or the possibility of alienation by the company, directly or indirectly, of property, value ... ... Official terminology

Major transaction of a budgetary institution- For the purposes of this Federal Law, a major transaction is a transaction or several interconnected transactions related to the disposal of funds, alienation of other property (which, in accordance with federal law, the budget ... ... Official terminology

Major deal of the State company- For the purposes of this Federal Law, a major transaction is a transaction related to the disposal of funds, the attraction of borrowed funds, as well as the alienation of the property of the State Company, the transfer of this property ... Official terminology

Major transaction of a limited liability company (LLC)- 1. A major transaction is a transaction (including a loan, credit, pledge, surety) or several interrelated transactions related to the acquisition, alienation or the possibility of alienation by the company, directly or indirectly, of property, value ... ... Official terminology