What is a major transaction for an LLC and how to calculate it - current issue for many companies. You can understand it only after carefully familiarizing yourself with the term itself and other important aspects.

What transaction is considered major for an LLC?

In the current law on LLCs, a major transaction is designated as an agreement that can be considered major for the following forms of ownership: LLC and JSC. This term is applicable to a concluded transaction if it meets certain criteria and takes into account the legal form of the legal entity. This can also include a group of united interrelated transactions. The following parameters act as signs of the relationship of these agreements: homogeneity, sufficient proximity in terms of the date of their execution, the same list of parties involved and one acquirer, a common economic goal.

The very concept of a major transaction for an LLC is defined in the relevant Federal Law No. 14, in Article 46. The designated term is described here and detailed explanations are given regarding all aspects of the issue posed. According to this legislative act, two key criteria for a major transaction for an LLC are established:

• Comparative value of a specific object with the total book value of the existing assets of the enterprise
• Establishing the fact of going beyond the boundaries of normal economic activity organizations

The concept of property that is the object of a transaction includes equipment, real estate, other tangible objects, shares in uncertificated form, cash, and intellectual property.

A major transaction for an LLC can be fixed and basically statutory document specific company. The qualitative criterion according to which the concluded contract is assessed includes two elements:

• An object that defines a legal connection with property
• Action performed on specified property

The quantitative criterion during the evaluation of the contract becomes paramount.

The definition of a major transaction for an LLC involves the alienation of either property acquired by it with a value of 25% of all property owned by the company, or has a value above this threshold. The organization's charter may contain a higher limit, according to which a transaction will be recognized as a major one. According to the company’s charter, the following types of transactions may be included in the group of large transactions that require approval:

• Buying and selling securities, real estate, etc.
• Transactions of exchange, donation, transfer of debt
• Loan agreements
• Surety contracts and property pledge agreements
• Other types of contracts

The main internal law of an LLC may also classify as large any transactions whose value exceeds the established threshold.

A comparison of the book value of the company's assets is carried out with:

• Book value or contract value established for the alienated property - the maximum of two indicators is used
• The purchase price of this object
• The price of shares available for purchase as a result of the obligation to make a mandatory offer

These indicators serve as a basis for comparison.

You can understand what constitutes a major transaction for LLCs and JSCs based on the following rules.

The LLC compares the object of the transaction being signed with the value of its property, recorded in accordance with the information in the accounting report for the latest reporting period. In the situation with a joint-stock company, the basis of comparison is the book value of the assets of this organization as of the last reporting date, which is recorded in Article 78 of Federal Law No. 208. The explanation of the term major transaction for organizations of the specified organizational and legal forms is similar, but there are also nuances. The key difference between the concept of a major transaction for a joint-stock company and an LLC is precisely that organizations with the first form of ownership take into account the total value of assets as a basis for comparison, and in the case of an LLC, the value of its existing property is taken as a basis. Calculation of the value of LLC property and JSC assets is carried out in accordance with current accounting data.

The object of comparison of society is established according to the same criteria. Differences appear only taking into account the specific type of operation being performed.

Transactions carried out by the company in the process of carrying out its usual business activities are not among the large ones. The cost of the object of the contract is not taken into account. Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 28 determines that ordinary business activity implies the implementation of any operations accepted in the current activities of the organization. The fact that this company signed agreements of this kind in previous periods is not considered significant. This includes:

• Contracts related to the purchase by an organization of materials and raw materials for the implementation of production and economic activities
• Sale finished products
• Obtaining a loan intended to pay for the current operations of the organization

A normal business activity of a company can be considered a contract, which implies the purchase of a wholesale batch of goods with a view to its subsequent retail sales.

A transaction is not recognized as belonging to the ordinary business activities of the company solely taking into account the following parameters:

• Produced within the framework of the main type of activity recorded in the Unified State Register of Legal Entities or the statutory document of the company
• The LLC has permission to conduct this type of activity

Transactions that are not typical for this organization do not belong to ordinary business activities: assignment agreement, assignment of a share in the authorized capital of another LLC, mortgage agreement, purchase and sale of bills, purchase of expensive fixed assets.

A specific list of transactions belonging to the ordinary business activities of the company is not established by law.

In order to participate in a tender, in a number of situations, a properly drawn up certificate of the size of the transaction is required. The document must be confirmed by the signature of the head of the company and its chief accountant. A certificate of this type is also required to be presented to Rosreestr in order to register the transfer of rights to real estate.

Calculation of a major transaction for an LLC

The calculation of a major transaction for an LLC is carried out as follows. Initially, the total amount of the transaction is calculated. Then the obtained result is compared with the value of the company’s property according to the data financial statements for the last reporting period. The value of the property of an LLC is the total amount of all its assets.

The size of a major transaction in 2017 is determined by calculating 25% of the indicator indicated in line 700 “Balance” of the current accounting report. The obtained result serves as a control value that allows you to determine the size of the transaction.

Before concluding a specific contract, it should be carefully analyzed to ensure it meets the size criteria. The procedure is as follows:

1. Calculation of the value of assets as of the last reporting date that precedes the signing of the contract.
2. Calculation of the ratio of the value of the contract being concluded and the assets of the company - if the final indicator exceeds the threshold of 25%, a more thorough analysis of the operation should be carried out.
3. Determination of the cause-and-effect relationship with the organization's property.
4. Establishing relationships with other contracts that have a similar meaning.
5. Identification of the fact that the operation is classified as ordinary business activity.

As a result of the analysis performed, the size of the operation is determined.

An example of calculating a large transaction:

The Zvezda company is going to purchase office space. An amount is allocated for the purchase cash in the amount of 12 million rubles. At the same time, the balance sheet of its assets is 40.0 million rubles. Analysis of intentions to conclude a contract allows us to identify quality indicators size (purchase of property). The quantitative criterion indicates the size of the transaction. The calculation is made according to the following scheme: comparison of the transaction amount of 12 million rubles. with a balance indicator of 40 million rubles is 30%. (12.0: 40.0 X100 = 30).
Ultimately, the transaction is considered major.

Major deal for an LLC with one founder

Transactions carried out by a single participant in the company, who simultaneously acts as a manager, do not belong to the list of large ones. This nuance is regulated legislative act Federal Law No. 14 - this point is described in paragraph 7 of Article 46. To confirm the fact that the organization has a single participant and at the same time a manager, an extract from the Unified State Register of Legal Entities is used. The issue of the need to approve a transaction that is carried out on the basis of a preliminary agreement, subject to a change in the composition of participants or managers of the company by the date of its implementation, becomes relevant. There is no formal requirement to obtain consent, but there is a potential to violate the interests of new LLC participants. In this regard, it is advisable to properly formalize the receipt of consent.

A major transaction for an LLC is not some abstract concept. The criteria for such agreements are clearly defined at the legislative level, so in this article we will talk about what transaction is considered major for an LLC? by force of law, what actions must be taken to approve such a transaction.

Any commercial organizations in the course of their activities they enter into many transactions with various counterparties, since in entrepreneurial activity concluding contracts is the main way to make a profit.

Article 46 of the Federal Law “On companies with limited liability” divides transactions into two main categories:

1. Ordinary transactions, which are concluded frequently, are standard for the organization and do not go beyond the usual business activities.
2. Transactions that are not typical for conclusion in an organization, which have certain characteristics, including the amount of the contract, or the nature of the relationship with partners. These are either agreements on the acquisition or sale of property, or agreements that give rise to civil obligations for the company.

Ordinary transactions are not large, even if they are concluded for a huge amount, i.e. the contract price is not taken into account. For example, if an organization is engaged in the construction of houses and constantly enters into such contract transactions, then they will not be large, no matter how much the company demands for construction.

By virtue of Art. 46 Federal Law No. 14, a large transaction is recognized as a transaction (or several transactions that are interrelated), the conclusion of which is not typical for the company, and its size exceeds a quarter of the book value of the LLC’s property according to the latest financial statements.

Criteria that will help distinguish a major transaction from an ordinary one

To understand which transaction is major for an LLC, it is necessary to refer to the requirements of the law, the provisions of the Resolutions of the Plenum of the Armed Forces of the Russian Federation and judicial practice.

Due to the requirements of paragraph 8 of Art. 45 Federal Law No. 14 ordinary transactions are agreements that are concluded everywhere, on a daily basis. At the same time, they are everyday not only for a specific company, but also for other companies that operate in the same field and have a similar amount of assets.

The Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 18, 2014 No. 28 (clause 6) provides examples of transactions that can be classified as ordinary.

Thus, the usual ones include contracts related to:

1. Purchasing goods and materials necessary for the production of products;
2. Purchase of machines and tools.
3. Sales of products produced by the organization.
4. Concluding loan agreements with banking organizations in order to repay the company’s current obligations to counterparties.

In paragraph 1 of Art. 46 Federal Law No. 14 provides examples of large transactions that are not typical for the company.

These include:

1. Large loans and credits not aimed at repaying current obligations.
2. Guarantee.
3. Purchase and acquisition of property that is not related to the normal activities of the company.
4. Collateral transactions.
5. Purchasing shares in organizations.

We remind you that the value of property and liabilities under a major transaction must exceed 25 percent or more of the book value of the organization’s assets according to accounting data as of the last reporting date. Otherwise, the transaction cannot be considered major. We'll tell you more about how to calculate the cost of a major transaction and compare it with the book value of the company's assets.

What is a major transaction for an LLC, what is the amount of the contract and how to calculate it?

The rules for resolving the issue of whether a transaction is major or not, based on its price, are reflected in clause 2 of Art. 46 Federal Law No. 14. General rules already stated above. What is considered a major transaction for an LLC? If the contract price is more than 25% of the company’s assets and it is not typical for the company, then it is considered large. To complete it, approval is required from the LLC participants or from the board of directors.

The rules for determining the amount of a major transaction for an LLC and comparing it with the assets of the company are as follows:

1. The value of property on the organization’s balance sheet is determined solely based on accounting information. In all cases, the last date of reporting is taken.
2. When calculating the transaction price associated with the alienation of property owned by the company, it is necessary to proceed from the book value of the alienated property, as well as the actual cost of its sale. If one of these indicators is higher than 25% of the book value of the company's assets, it is taken into account, and the transaction is recognized as large.
3. When purchasing items, their price is taken into account, according to the purchase and sale agreement. The price is compared with the value of the company's assets. Similar rules apply to other transactions - contracts, provision of services, rent, leasing, etc.

The size of a major transaction for an LLC should be determined solely by the above criteria.

Approval of a transaction that is large. Approval decision

Without the approval of a major transaction in an LLC, it cannot be concluded (since there is a high probability of it being declared invalid). To approve it, a decision is necessary either from the company's participants or from the board of directors, if the corresponding powers are transferred to this management body on the basis of the company's Charter.

It is important to note that the board of directors does not have the right to approve large transactions that exceed 50% of the firm's assets. Such agreements require the approval of the company's members in all cases.

There is no form of decision that could be applied by all LLCs without exception, since it is not approved at the legislative level. However, in paragraph 3 of Art. 46 Federal Law No. 14 states what data should be indicated in the decision, so it is not difficult to draw it up.

The decision must include the following information:

1. Document name.
2. The date it was compiled.
3. Place of signing.
4. Information about the second party to the transaction.
5. The price of the contract and its subject matter, as well as essential conditions agreements.
6. Signatures of the participants.

The decision may contain consent to approve several interrelated transactions, or several unrelated contracts concluded at the same time.

The decision can be made one year before the transaction. This is due to its validity period, which is 1 year from the date of acceptance.

In addition, the decision on approval can be made after a major transaction has been concluded (subject to a suspensive condition). In this case, if someone files a claim in court to invalidate a major transaction due to the lack of consent, such a claim will be rejected if evidence of subsequent approval is presented.

Additional conditions that may be specified in the decision to approve the transaction

By virtue of clause 3 of Art. 46 Federal Law No. 14 the decision may reflect additional, but not prerequisites. They give the parties to transactions a certain degree of freedom when concluding them.

As additional conditions can be written:

1. The limits within which the transaction price can be determined, or the procedure for determining such a price.
2. Consent to carry out several transactions with similar conditions (of the same type or interrelated).
3. Terms of transactions that may be alternative and depend on the specific situation.

Situations when you do not need to approve a major transaction

In some situations, approval of a transaction that is large in value is not required. The list of such situations is specified in paragraph 7 of Art. 46 Federal Law No. 14.

These include:

1. Transactions concluded by an LLC, in which there is only one participant who is the sole executive body companies.
2. Transactions involving the transfer of shares in an organization from company participants to the company.
3. Transactions related to the transfer of rights to property when an organization is reorganized, merges with another organization, or joins another company.
4. Transactions the conclusion of which is mandatory for the LLC by virtue of law or otherwise normative act and the prices at which are determined by the Government of the Russian Federation.
5. Public contracts.
6. Transactions for which preliminary agreements were concluded and approved.

What awaits an LLC that has entered into a major transaction without approval (consequences)

If the transaction has not been approved, but it is mandatory, then the company’s participants, counterparties, interested parties, and members of the board of directors have the right to file an application with the court to declare the concluded agreement invalid. By virtue of the provisions of Art. 173.1 of the Civil Code of the Russian Federation, an agreement for which approval has not been received is considered invalid, if such is required in cases provided for by law.

When considering the case, the applicant will need to prove that the transaction is really large, and it was not approved before or after it was completed.

Thus, if the transaction is large, its approval is mandatory, since otherwise it may be declared invalid with all the ensuing consequences.

An enterprise takes out a loan from a bank - 10,000,000 rubles. How can one determine whether the conclusion of this agreement is a major transaction for the LLC? There is no definition of a major transaction in the company's Charter.

A major transaction is a transaction or several interrelated transactions related to the acquisition, alienation or possibility of alienation by the company, directly or indirectly, of property, the value of which is 25 percent or more of the value of the company’s property (“On Limited Liability Companies”).

The value of the LLC’s property must be determined according to the financial statements for the last reporting period (i.e., on the last calendar day of the month) preceding the day the decision was made to approve a major transaction (Part 13, Part 6 Article 15 Federal Law dated December 6, 2011 No. 402-FZ Law on Accounting); ).

Thus, if the loan amount exceeds 25% of the book value of the company’s property, such a transaction with the bank will be large for the LLC. In this case, the transaction must undergo an approval procedure - the decision to conclude the transaction is made by the founders, for this purpose an extraordinary general meeting of the company's participants is held.

Rationale

From the recommendation of Vladislav Dobrovolsky, candidate of legal sciences, head of corporate practice of the Yakovlev and Partners Legal Group (in 2001–2005 - judge Arbitration Court Moscow), Vladislav Kuznetsov, Editor-in-Chief of the Lawyer Sistema Lawyer, Gennady Uvarkin, Candidate of Legal Sciences, Deputy general director Legal Bureau "Omega"
What is a major transaction and what is the procedure for completing it in an LLC

Individual transactions in an LLC must be concluded in a special manner established by law. Such transactions include, in particular, the so-called “major transactions”. If you don't comply established order such a transaction may be declared invalid.

Before a company enters into a transaction, a lawyer should check whether it falls under the criteria of a “major transaction” and, if necessary, ensure that the established procedure is followed.

Which deals are big?

A major transaction is a transaction or several interrelated transactions related to the acquisition, alienation or possibility of alienation by the company, directly or indirectly, of property, the value of which is 25 percent or more of the value of the company’s property (“On Limited Liability Companies”; hereinafter referred to as the LLC Law) .

The lower limit (25%) of a major transaction can be increased by the company's charter (clause 1, article 46 of the LLC Law).*

In what cases can a court recognize several transactions as interrelated and consider them together as one major transaction?

The legislation does not establish this.

The Plenum of the Supreme Arbitration Court of the Russian Federation indicated several specific signs that may indicate the interconnectedness of transactions:

• a single economic goal when concluding transactions;
• general economic purpose of the sold property;
• consolidation of all property alienated in transactions into the ownership of one person;
• a short period of time between the execution of several transactions.

Such signs are listed in subparagraph 4 of paragraph 8 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 16, 2014 No. 28 “On some issues related to challenging major transactions and interested-party transactions” (hereinafter referred to as Resolution No. 28).

However, even before the Plenum of the Supreme Arbitration Court of the Russian Federation gave these clarifications, from judicial practice It follows that the risk of recognizing transactions as interrelated increases significantly if:

• transactions are homogeneous and completed with the same persons in a short period of time;
• property alienated or acquired through transactions is connected by a single technological process or for a single purpose;
• transactions are aimed at achieving common legal consequences or a single goal.

Typically, the courts recognized transactions as interrelated if several of the listed signs occurred simultaneously (resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 1, 2011 No. 14871/10, determinations of the Supreme Arbitration Court of the Russian Federation dated January 13, 2011 No. VAS-17801/10 and June 3, 2011 No. VAS-9530/10). Most likely, the courts will continue to pay attention to the number of available signs in the future.

In addition, now, when considering cases related to challenging large transactions, courts will need to compare the value of property alienated in all related transactions with the book value of assets as of the last reporting date. Such a date will be considered the date of the balance sheet preceding the conclusion of the first transaction (paragraph 2, subparagraph 4, paragraph 8 of Resolution No. 28).

The value of the property that is alienated by the company as a result of a major transaction must be determined according to the financial statements for the last reporting period (i.e., on the last calendar day of the month) preceding the day the decision was made to approve the major transaction (subclause 3, clause 8 of Resolution No. 28, part 13, part 6 of article 15 of the Federal Law of December 6, 2011 No. 402-FZ “On Accounting” (hereinafter referred to as the Law on Accounting); organizations" (PBU 4/99), approved by order of the Ministry of Finance of Russia dated July 6, 1999 No. 43n).

The value of the property that the company acquires must be determined on the basis of the offer price, which is usually specified in the contract (clause, article 46 of the LLC Law).

The value of the property of the company itself should be considered equal to the value of its assets (without reduction by the amount of debts), determined on the basis of financial statements for the last reporting period (i.e., on the last calendar day of the month) preceding the day the decision was made to approve a major transaction (p 3 information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 13, 2001, No. 62; clause 13 of the Law on Accounting; clause 48 PBU 4/99).

The following are not major transactions (Clause 1, Article 46 of the LLC Law):

• transactions that are made in the normal course of business of the company;

Attention! It is not always possible to prove that a transaction relates to the ordinary business activities of the company.

The law does not establish which transactions are considered ordinary business activities.

The Plenum of the Supreme Arbitration Court of the Russian Federation indicated that ordinary business activities should be understood as any transactions that are accepted in the current activities of the company, regardless of whether the company has made such transactions previously (paragraph 3, paragraph 6 of Resolution No. 28).

In particular, transactions made in the ordinary course of business may include transactions:

• for the company’s acquisition of raw materials and materials necessary for conducting production and economic activities;
• for the sale of finished products;
• to obtain loans to pay for current operations.

For example, a court may consider a transaction aimed at purchasing wholesale quantities of goods for their subsequent sale through retail sale to be ordinary business activity (paragraph 4, paragraph 6 of Resolution No. 28).

However, a transaction cannot be classified as ordinary business activity solely on the basis of the fact that:

• the transaction was completed within the framework of the type of activity that is indicated in the Unified State Register of Legal Entities or the charter of the LLC as the main one for this company,
• and (or) the company has a license to conduct this type activities.

Such clarifications are given in paragraph 5 of paragraph 6 of Resolution No. 28. Previously (before May 28, 2014, i.e. before Resolution No. 28 was published), the courts classified as ordinary business activities the activities of the company, prescribed in the charter and aimed at systematically generating profit (resolution of the Federal Antimonopoly Service of the Volga District dated September 13, 2010 in case No. A65-8738/2009).

Also, the court, most likely, will not classify transactions that are not typical for the company as ordinary business activities, such as:

• assignment agreement (resolution of the Federal Antimonopoly Service of the Moscow District dated July 29, 2008 No. KG-40/6410-08 in case No. A40-41489/07-83-396);
• contract for the sale and purchase of bills (resolution of the Federal Antimonopoly Service of the Moscow District dated August 21, 2006 No. KG-A40/6790-06-P in case No. A40-22142/05-34-188);
• mortgage agreement (resolution of the Federal Antimonopoly Service of the Volga District dated December 10, 2009 in case No. A65-13324/2009);
• pledge of movable and immovable property and issuance of sureties in order to ensure the fulfillment of obligations of third parties (resolution of the Federal Antimonopoly Service of the Volga Region dated April 25, 2011 in case No. A65-15719/2010);
• acquisition (including leasing) of expensive fixed assets (decrees of the Federal Antimonopoly Service of the Volga District dated January 24, 2011 in case No. A65-6741/2010 and dated April 18, 2011 in case No. A12-14356/2009);
• agreement for the assignment of a share in the authorized capital of another company (resolution of the Federal Antimonopoly Service of the North-Western District dated January 28, 2010 in case No. A66-2521/2009).

• transactions, the execution of which is mandatory for the company in accordance with the law and settlements for which are made at prices determined by the authorized government body.

This provision applies in particular when concluding a contract for the provision of transmission services electrical energy, since its conclusion is mandatory for the network organization ().

It should be remembered that consumers of such services are not required to enter into an agreement, and therefore, for them, such a transaction must be approved in the prescribed manner (Resolution of the Federal Antimonopoly Service of the Moscow District dated February 3, 2011 No. KG-A41/16658-10 in case No. A41-20271/10).

Attention! A lease agreement can be a major transaction not only for the tenant, but also for the landlord.

This is confirmed by judicial practice. When assessing the contract, the court will additionally examine whether the property (including premises, vehicles, equipment, etc.), leased, necessary for the company to carry out its main production activities(clause 40 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 No. 66, resolution of the FAS North-Western District dated March 18, 2011 in case No. A56-38981/2010 and FAS Volga District dated June 19, 2008 in the case No. A55-8439/2007).

For a tenant, a lease agreement can be a major transaction, since the total amount of rental payments will exceed 25 percent of the value of the company’s property.

Attention! Approval may be required for more than just a contract.

In this regard, a major transaction can be not only an agreement, but also:

• settlement agreement (subclause 3 of clause 10 of resolution No. 28);
• debt forgiveness (subclause 4, clause 10 of resolution No. 28);
• issuance of a bill;
• payment authorized capital another economic company;
• depositing funds as security for the execution of a contract concluded based on the results of bidding.

Can also be major transactions:

• preliminary agreement;
• additional agreement to the agreement (paragraph 2, subparagraph 1, paragraph 7 of resolution No. 28);
• agreement on joint activities;
• employment contract with an employee of the company (subclause 1, clause 10 of resolution No. 28).

Is it necessary to approve a transaction for the sale and purchase of shares concluded between the participants of an LLC if it corresponds to the established size of a large transaction?

No, it's not necessary.

If the participants of an LLC have entered into an agreement for the purchase and sale of a share in the authorized capital of the company, then the LLC itself is not a party to such an agreement. In this case, alienation of LLC property does not occur. In this regard, such an agreement is not a major transaction.

This is confirmed by judicial practice (resolution of the Federal Antimonopoly Service of the North-Western District dated January 31, 2011 in case No. A56-25492/2010).

In what order are major transactions made?

The company has the right to make a major transaction only after its approval by the participants. If a board of directors has been created in a company, then it can be entrusted with the authority to approve major transactions, the value of the alienated (acquired) property for which is from 25 to 50 percent of the company’s property (Clause 4 of Article 46 of the LLC Law). If the company has one participant and he is not a director, his written consent to complete the transaction is sufficient to approve the transaction.

The procedure for approving major transactions in an LLC is defined in the LLC Law. General rules for approval of transactions are provided for in the Civil Code of the Russian Federation. They apply when the relationship is not regulated by the LLC Law.*

Rationale

On September 1, 2013, the Civil Code of the Russian Federation, dedicated to consent to a transaction, came into force. It is included in the code

Its provisions are general. In relation to it, special norms enshrined in laws (for example, in the Law on JSC) or other legal acts (for example, in the order of the Federal Financial Markets Service of Russia dated February 2, 2012 No. 12-6/pz-n “On approval of the Regulations” will have priority O additional requirements to the procedure for preparing, convening and conducting general meeting shareholders", Order of the FMBA of Russia dated September 1, 2011 No. 357 "On organizing work in the Federal Medical and Biological Agency for the approval of major transactions subordinated to the federal state unitary enterprises, as well as transactions related to the provision of loans, guarantees, receipt bank guarantees, other encumbrances, assignment of claims, transfer of debt, borrowing and other transactions").

Thus, special legislation may establish more stringent requirements for the procedure for approving a transaction than the Civil Code of the Russian Federation. For example, paragraph 3 of Article 46 of the LLC Law stipulates that the decision to approve a major transaction must indicate the persons who are the parties, beneficiaries in the transaction, the price, the subject of the transaction and its other essential conditions. While paragraph 3 of Article 157.1 of the Civil Code of the Russian Federation establishes that in the consent to enter into a transaction it is sufficient to determine the subject of the transaction.

In order for the participants to approve a major transaction, it is necessary to hold a general meeting, the agenda of which must include the relevant issue.

A major transaction made without prior approval is voidable. The court may declare it invalid at the request of the company or its participant (Clause 5, Article 46 of the LLC Law).

General rules for challenging transactions made without approval are provided for in the Civil Code of the Russian Federation. They apply when the relationship is not regulated by the LLC Law ().

Rationale

On September 1, 2013, the Civil Code of the Russian Federation came into force, dealing with the invalidity of transactions made without the necessary consent. It was included in the code by Federal Law No. 100-FZ of May 7, 2013 “On Amendments to Subsections 4 and 5 of Section I of Part One and Article 1153 of Part Three of the Civil Code Russian Federation».

Such transactions are recognized as voidable unless it follows from the law that they must be considered void. The LLC Law does not indicate the nullity of such transactions, but, on the contrary, confirms their contestability (Clause 5, Article 46 of the LLC Law).

The circle of persons who can file a challenge is also limited in the LLC Law and is limited to participants and society.

In this case, a transaction can be declared invalid only if the other party knew or should have known that it was completed in the absence of consent (paragraph 3, paragraph 5, article 46 of the LLC Law).

At the same time, a major transaction can be approved after it has been completed, until the court makes a decision to declare it invalid (Clause 5, Article 46 of the LLC Law). This is confirmed by judicial practice (see “On some issues of application of the Federal Law “On Limited Liability Companies”,” resolution of the Federal Antimonopoly Service of the North-Western District dated December 1, 2010 in case No. A21-14037/2009).

There is no need to approve a major transaction in the following cases:

• when this is directly provided for by the charter (clause 6 of article 46 of the LLC Law);
• if the company consists of one participant who simultaneously performs the functions of a director (clause 9 of article 46 of the LLC Law);
• if relations under a major transaction arise when a share (part of a share) in its authorized capital is transferred to the company in cases provided for by the Law on LLC (clause 9 of Article 46 of the Law on LLC);
• if relations under a major transaction arise during the transfer of rights to property in the process of reorganization of the company, including when concluding a merger agreement and an accession agreement.

Thus, in order to complete the above transactions, there is no need to additionally formalize the decision of the general meeting or the sole participant to approve the transaction.*

The decision to approve a major transaction must include the following information (Clause 3, Article 46 of the LLC Law):

• persons who are parties, beneficiaries of the transaction (may not be indicated if the transaction is subject to conclusion at auction or in other cases when the parties are not precisely determined by the time of approval of a major transaction);
• subject of the transaction;
• transaction price;
• other essential terms of the transaction.

It is necessary to take into account general requirements to the design and content of the decision of the general meeting of participants.

Attention! Approval may be required for transactions that are not major

It is imperative to follow the procedure for approving a major transaction when making other transactions that are not major (transactions of a different type and size), if this is expressly provided for by the company’s charter (clause 7, article 46 of the LLC Law, paragraph 2, subclause 1, clause 8 resolution No. 28).

Failure to comply with this procedure may result in the agreement being declared invalid (ruling of the Eleventh Arbitration Court of Appeal dated December 22, 2010 in case No. A65-14172/2010).

How to properly approve a major transaction for an LLC, if it is also an interested party transaction

In accordance with the procedure established for the approval of interested party transactions.

The law establishes that in this case, the approval procedure established not for large transactions, but for interested party transactions (clause 8 of Article 46 of the LLC Law) should be applied. This is confirmed by judicial practice (subparagraph 4, paragraph 9 of Resolution No. 28, paragraph 11 of the Review of judicial practice of the FAS of the West Siberian District on disputes regarding the invalidation of large transactions and interested party transactions, approved by the resolution of the Presidium of the FAS of the West Siberian District dated June 10, 2011 city ​​No. 6).

At the same time, there is an exception in the law: if all participants in the company are interested in completing an interested party transaction, then there is no need to approve such an interested party transaction, and the procedure for approving a major transaction should be applied (clause 6 of article 45, clause 8 of article 46 of the Law on OOO).

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

There are special rules for LLCs regarding 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 contract, lawyers need to find out:

• whether the transaction is large;
• Does the charter contain any rules stating that this transaction must be approved according to the rules on large transactions?

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

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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 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 an LLC. This is a deal that:

1. Exceeds the normal activities 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’s assets. The book value is determined based on the latest reporting date. In particular, the transaction may concern a loan, credit, collateral, etc.
3. Provides for the obligation of the LLC to transfer these assets for temporary possession, use or under a license agreement (Clause 1, Article 46 of the LLC Law).

A large transaction can be not one, but several interconnected transactions (Clause 1, Article 46 of the LLC Law). The Plenum of the Supreme Arbitration Court of the Russian Federation explained the criteria by which the interconnectedness of transactions is determined (subclause 4, clause 8):

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

The Supreme Court of the Russian Federation in Resolution No. 27 indicated that in order to assess the total value of several transactions, it is necessary to compare the value of property for all transactions with the assets in the balance sheet that was drawn up before the first transaction (clause 14 of Resolution No. 27).

What is considered a major transaction for an LLC due to its atypical nature?

It is important for corporate lawyers to know what transaction is considered major for an LLC, as well as which transactions do not fall under these criteria. If the transaction relates to the company’s normal field of activity, it is not considered major. When a transaction is said to be outside the normal course of business of the company, it means that:

• the company itself usually does not carry out such transactions, or it is not customary for them to be carried out among organizations that exist in the same field 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 criteria is met, this means that this transaction is a major one for the LLC (clause 8, article 46 of the LLC Law, subclause 2, clause 9 of Resolution No. 27, paragraph 3, subclause 2, 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 transaction on the alienation of property, and the subject of the transaction will be property valued at more than 25% of the LLC's assets. Such a transaction must be approved. Moreover, according to the law on LLCs, only the general meeting of participants can approve major transactions (Clause 3, Article 46 of the Law on LLCs). But there is a clause in the law. If the company is governed by a board of directors or a supervisory board, the charter can establish the board's authority to approve major LLC transactions. Then the board 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 higher than 50% of the value of the company’s property, only the general meeting can give consent to it.

A meeting regarding the approval of a major transaction in an LLC is held on general rules. Following the meeting, the LLC participants decide whether they agree to the deal. If the initiators of the transaction have received consent, the decision on a major 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 a major transaction for an LLC.
4. What is the subject of the transaction, what are the other essential conditions of the conclusion or in what order are they determined (Clause 3 of Article 46 of the LLC Law).

In addition, the decision may include:

• an indication of the minimum and maximum limits on the value of property or the procedure for determining these limits;
• the company’s consent to similar transactions, as well as to the simultaneous execution of several transactions;
• alternative options for transaction terms;
• the period during which the decision on consent due to the size of the transaction for the LLC will be valid. If no deadline is 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 auction, as well as in other cases 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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A transaction (several interrelated transactions) is considered to be outside the scope of ordinary business activities and at the same time:

1) related to the acquisition, alienation or possibility of alienation by the company directly or indirectly of property (including a loan, credit, pledge, guarantee, acquisition of such a number of shares or other issue-grade securities convertible into shares of a public company that will entail the obligation for the company to send mandatory offer in accordance with Chapter XI.1 of this Federal Law), the price or book value of which is 25 percent or more of the book value of the company’s assets, determined according to its accounting (financial) statements as of the last reporting date;

2) providing for the obligation of the company to transfer property for temporary possession and (or) use or to provide a third party with the right to use the result of intellectual activity or means of individualization under the terms of a license, if their book value is 25 percent or more of the book value of the company’s assets, determined according to its accounting data (financial) statements as of the latest reporting date.

1.1. In the event of alienation or the possibility of alienation of property, the greater of two values ​​is compared with the book value of the company's assets - the book value of such property or the price of its alienation. In the case of property acquisition, the acquisition price of such property is compared with the book value of the company's assets.

In the case of transfer of the company's property for temporary possession and (or) use, the book value of the property transferred for temporary possession or use is compared with the book value of the company's assets.

In the event that the company enters into a transaction or several related transactions for the acquisition of shares or other issue-grade securities convertible into shares of a public company, which will give rise to the company's obligation to acquire shares or other issue-grade securities convertible into shares of a public company, in accordance with Chapter XI .1 of this Federal Law, the price of all shares or other issue-grade securities convertible into shares that can be acquired by the company under such transactions in accordance with Chapter XI.1 of this Federal Law is compared with the book value of the company’s assets.

2. In order for the general meeting of shareholders of the company to make a decision on consent to a major transaction, the value of property or rights to the results of intellectual activity that are the subject of a major transaction is determined by the board of directors (supervisory board) of the company in accordance with Article 77 of this Federal Law.

The board of directors (supervisory board) of the company approves the conclusion on a major transaction, which must contain, among other things, information about the expected consequences for the company's activities as a result of a major transaction and an assessment of the feasibility of a major transaction. The conclusion on a major transaction is included in the information (materials) provided to shareholders in preparation for the general meeting of shareholders of the company, at which the issue of consent to or subsequent approval of a major transaction is considered.

In the absence of a board of directors ( supervisory board) in a company, the conclusion on a major transaction is approved by the sole executive body of the company.

3. The provisions of this chapter do not apply:

2) to transactions related to the placement or provision of services for placement (public offer) and (or) organization of placement (public offer) of shares of the company and issue-grade securities convertible into shares of the company (except for the conditions for determining and paying remuneration to the person (persons) ), providing the services provided for in this subclause);

3) to relations arising during the transfer of rights to property in the process of reorganization of the company, including under merger agreements and accession agreements;

4) to transactions the completion of which is mandatory for the company in accordance with federal laws and (or) other legal acts of the Russian Federation and settlements for which are made at prices determined in the manner established by the Government of the Russian Federation, or at prices and tariffs established by the federal executive body authorized by the Government of the Russian Federation, as well as for public contracts concluded by the company on terms not different from the conditions other public contracts concluded by the company;

5) to transactions for the acquisition of shares or other issue-grade securities convertible into shares of a public company, concluded on the terms provided for by the mandatory offer to purchase shares or other issue-grade securities convertible into shares of a public company;

6) to transactions concluded on the same terms as the preliminary agreement, if such an agreement contains all the information provided for in paragraph 4 of Article 79 of this Federal Law, and consent to its conclusion has been received in the manner prescribed by this chapter.

4. For the purposes of this Federal Law, transactions that do not go beyond the scope of ordinary business activities are understood to be any transactions concluded in the course of carrying out activities by the relevant company or other organizations carrying out similar types of activities, regardless of whether such transactions were carried out by this company previously, if such transactions do not lead to the termination of the company’s activities or a change in its type or a significant change in its scope.