From September 1, 2014, the amendments made to the first part of the Civil Code come into force. Russian Federation Federal Law No. 99-FZ dated May 5, 2014 “On Amendments to Chapter 4 of Part One of the Civil Code of the Russian Federation and on Recognizing Certain Provisions of Legislative Acts of the Russian Federation as Invalid”.
The said Federal Law supplemented the Civil Code of the Russian Federation with Article 67.1, which provides for the possibility of confirming the adoption by the general meeting of participants of a business company of a decision and the composition of the company's participants who were present at its adoption by notarial certification. On the application of Article 67.1 of the Civil Code of the Russian Federation in notarial practice, the Commission for methodological work and the study of the practice of applying legislation in the field of notaries of the Moscow City Notary Chamber prepared an appropriate one that can be used in the work of notaries in your region.
Application
(Notarial act, introduced by Federal Law No. 99-FZ of May 5, 2014, effective from September 1, 2014)
The decision of the meeting of a business company is an independent legal fact and, in accordance with paragraph 2 of Article 181.1 of the Civil Code of the Russian Federation, gives rise to legal consequences for all persons who had the right to participate in this meeting, as well as for other persons, if this is established by law or follows from the essence of the relationship.
99-FZ of May 5, 2014 “On Amending Chapter 4 of Part One of the Civil Code of the Russian Federation and on Recognizing Certain Provisions of Legislative Acts of the Russian Federation as Invalid” introduces a new article into the Civil Code of the Russian Federation - Art. 67.1, which provides for the need to confirm the adoption by the general meeting of participants of the economic company of the decision and the composition of the participants who were present at its adoption, in various ways, one of which is notarization.
It must be borne in mind that the specified notarial act is not mandatory, since for all types legal forms business companies there is an alternative to notarization. The fee for the specified notarial act is charged in accordance with Art. 22.1 Fundamentals of the legislation of the Russian Federation on notaries (other notarial acts).
The considered notarial action can be performed by any notary within the notarial district in which the meeting of the participants of the economic company is held (Articles 13, 40 of the Fundamentals of the Legislation of the Russian Federation on Notaries).
From now on, until amendments are made to the Fundamentals of the Legislation of the Russian Federation on Notaries, amendments are made to the Order of the Ministry of Justice of the Russian Federation No. 99 dated April 10, 2002 “On Approval of Register Forms for Registration of Notarial Actions, Notarial Certificates and Authenticating Inscriptions on Transactions and Certificated Documents”, When performing this notarial act, we suggest that you be guided by the following recommendations:
When performing the specified notarial action, notaries should be guided by the norms of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), the norms of federal laws: federal law"About joint-stock companies ah” No. 208-FZ dated December 26, 1995 (hereinafter referred to as the JSC Law), Federal Law “On Limited Liability Companies” No. 14-FZ dated February 8, 1998 (hereinafter referred to as the LLC Law), the norms of the Fundamentals of Legislation of the Russian Federation on notaries, as well as by-laws: by order of the Federal Financial Markets Service of Russia dated February 2, 2012 No. 12-6 / pz-n “On approval of the regulation on additional requirements for the procedure for preparing, convening and holding a general meeting of shareholders”, registered with the Ministry of Justice of Russia on May 28 2012 No. 24341. It is also necessary to take into account the Resolution of November 18, 2003 No. 19 of the Plenum of the Supreme Arbitration Court of the Russian Federation “On Certain Issues of Application of the Federal Law “On Joint Stock Companies” (as amended by the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of May 16, 2014 No. 28), letter from the Bank of Russia No. 06-52/6680 dated August 18, 2014 “On Certain Issues Related to the Application of Certain Provisions of Federal Law No. 99-FZ dated May 5, 2014 “On Amendments to Chapter 4, Part One of the Civil Code Federation and on the invalidation of certain provisions of legislative acts of the Russian Federation.
It must be borne in mind that the features legal status individual business companies (credit institutions, specialized financial companies, insurance companies, and the like) may be regulated by special laws.
Also, notaries should take into account that in accordance with paragraph 4 of Article 3 of the Federal Law of May 5, 2014 No. 99-FZ “On Amending Chapter 4 of Part One of the Civil Code of the Russian Federation and on Recognizing Certain Provisions of Legislative Acts of the Russian Federation as Invalid” , until the legislative and other regulatory legal acts in force on the territory of the Russian Federation are brought into line with the provisions of the Civil Code of the Russian Federation (as amended by 99-FZ), legislative and other regulatory legal acts of the Russian Federation, as well as legal acts of the USSR in force on the territory of the Russian Federation within the limits and in the manner provided for by the legislation of the Russian Federation, they are applied insofar as they do not contradict the provisions of the Civil Code of the Russian Federation (as amended by 99-FZ).
2.1. The specified notarial action is regulated by Article 67.1 of the Civil Code of the Russian Federation, according to which the adoption of a decision by the general meeting of participants in a business company and the composition of the company's participants who were present at its adoption is confirmed by notarization in relation to:
Non-public joint stock company;
Limited liability companies.
2.2. The signs of a public joint stock company are established by paragraph 1 of Article 66.3 of the Civil Code of the Russian Federation.
A joint-stock company is public:
The charter and company name of which contain an indication that the company is public, even if the shares of the company are not placed by open subscription and are not publicly traded;
The shares of which and the securities of which, convertible into its shares, are publicly placed (by open subscription);
The shares of which and the securities of which, convertible into its shares, are publicly traded under the conditions established by laws on valuable papers Oh. At the same time, the charter of such a company and its company name may not contain an indication that the company is public.
A joint stock company that does not meet the above criteria is recognized as non-public (Item 2 of Article 66.3 of the Civil Code of the Russian Federation).
2.3. The provisions of Article 67.1 of the Civil Code of the Russian Federation do not apply to limited liability companies consisting of one participant. This conclusion follows from the analysis of the norms of articles 7 (p. 2), 39 of the LLC Law. Decisions on issues within the competence of the general meeting in such companies are taken by the sole participant and are drawn up in writing. At the same time, the provisions of Articles 34 - 38 and 43 of the LLC Law do not apply.
The provisions of Article 67.1 of the Civil Code of the Russian Federation also do not apply to a joint-stock company consisting of one shareholder. At the same time, information that the company consists of one shareholder must be entered in the Unified State Register of Legal Entities (paragraph 6 of article 98 of the Civil Code of the Russian Federation). In a joint-stock company, all voting shares of which belong to one shareholder, decisions on issues related to the competence of the general meeting of shareholders are taken by this shareholder alone and are made in writing. At the same time, the provisions of Chapter VII of the Law on JSC, which determine the procedure and terms for preparing, convening and holding a general meeting, do not apply (clause 3, article 47 of the Law on JSC).
However, these economic companies have the right to apply to a notary for confirmation by notarization of the adoption of the decision by the sole participant (shareholder).
3.1. When determining the person who can apply to a notary, it is necessary to be guided by the rules governing the procedure for convening a general meeting of the company.
In limited liability companies:
3.1.1. The next general meeting is convened by the executive body of the company (Article 34 of the LLC Law). In this case, the applicant is executive agency society.
3.1.2. Extraordinary general meeting (no. general rule) is convened by the executive body of the company (clause 2, article 35 of the LLC Law). The applicant in this case is the executive body of the company.
3.1.3. By the company's charter, the resolution of issues related to the preparation, convening and holding of a general meeting of company participants may also be referred to the competence of the board of directors (supervisory board) of the company (clause 10 clause 2.1 article 32 of the LLC Law). In this case, the applicant is a person who heads the board of directors (supervisory board) or is authorized by the decision of the board to apply to a notary.
3.1.4. As an exception, if there are grounds specified in paragraph 4 of Art. 35 of the LLC Law, an extraordinary general meeting may be convened by persons requiring its holding and specified in paragraph 2 of Art. 35 of the LLC Law (the board of directors (supervisory board) of the company, the audit commission (auditor) of the company, the auditor, the members of the company, who in aggregate have at least 1/10 of the total number of votes of the members of the company), as well as the executive body of the company, if the decision the issue of convocation is referred to the competence of the board of directors (supervisory board) (clause 2.2, article 32 of the LLC Law).
In this case, the applicant is:
A person who heads the board of directors (supervisory board) or is authorized by the decision of the board to apply to a notary;
A member of the audit commission authorized by the decision of the commission to apply to a notary, an auditor;
Auditor;
A member of the company holding at least 1/10 of the total number of votes of the company’s members or one of the members holding in aggregate at least 1/10 of the total number of votes of the company’s members, having the appropriate powers from the rest of the members;
The executive body of the company, if the issue of convening a meeting is within the competence of the board of directors (supervisory board).
3.2. In non-public joint-stock companies:
3.2.1. Convocation of annual and extraordinary general meetings shareholders, as a general rule, falls within the competence of the board of directors (clause 2, clause 1, article 65, clause 7, article 55 of the JSC Law). The applicant in this case is a person who heads the board of directors (supervisory board) or is authorized by the decision of the board to apply to a notary;
3.2.2. As an exception, if there are grounds provided for in paragraph 8 of Art. 55 of the JSC Law, an extraordinary general meeting of a joint-stock company is held by a court decision to compel the company to hold such a meeting. The applicant will be the person who is entrusted with the execution of the court decision (the plaintiff, the body of the company or a third party with the consent of the latter). Such a body and, therefore, the applicant cannot be the board of directors (supervisory board) of the company (clause 9, article 55 of the JSC Law).
3.2.3. In companies in which the functions of the board of directors (supervisory board) are performed by the general meeting of shareholders, the person or body authorized to convene and hold the general meeting of shareholders is determined by the charter of the company (clause 10, article 55 of the JSC Law). The applicant in such a case will be such a person or body. In the event that an annual or extraordinary meeting in such a company is not convened and held within the established period, the meeting is convened by a court decision. The applicant is a person who is entrusted with the execution of a court decision (clauses 8, 9, article 55 of the JSC Law).
4.1. The notary is recommended to accept the application for the performance of the specified notarial action in writing and register in the log of incoming correspondence. In the application, the applicant must indicate the exact date, start time and exact place of the meeting (an approximate sample of the text of the application is to these recommendations). Simultaneously with the application, the notary must demand for familiarization:
Charter of the company;
An extract from the Unified State Register of Legal Entities (an extract can be requested by a notary public independently using the raccoon program or through the tax service portal - Nalog.ru);
Documents confirming that the applicant can be the applicant for the submitted notarial act (decision or protocol on the appointment or election of the executive body, board of directors (supervisory board), court decision, etc.);
Other internal documents regulating the procedure for convening and holding a meeting, if provided for by the charter and approved (clause 5, article 49 of the Law on JSC, clause 1 of article 37 of the Law on LLC);
List of participants (in limited liability companies, compiled in accordance with Article 31.1 of the LLC Law);
List of persons entitled to participate in the General Meeting of Shareholders (for non-public joint-stock companies, compiled in accordance with Article 51 of the JSC Law);
A copy of the notice (clauses 1, 2, article 36 of the Law on LLC) or notices (clauses 1, 2 of article 52 of the Law on JSC) on convening a meeting, which were sent to participants (shareholders) and in which the agenda of the meeting is indicated. Information on the agenda may also be additionally included in the text of the statement.
At the same time, it should be noted that the notary does not check the completeness of the actions taken by the company's bodies to prepare for the meeting (informing participants (shareholders) about the meeting, compliance with the deadlines for such information, distribution of necessary materials, etc.)
Information on the existence of a corporate agreement since September 1, 2014 (clause 4, article 67.2 of the Civil Code of the Russian Federation). At the same time, the notary must take into account that for a non-public business company, information about the existence of a corporate agreement and the scope of powers of the company's participants provided for by it must be entered in the Unified State Register legal entities(part 2, clause 1, article 66 of the Civil Code of the Russian Federation).
Until September 1, 2014, in limited liability companies, an agreement could be concluded on the exercise of the rights of participants (clause 3 of article 8 of the Law on LLC), in joint-stock companies - a shareholder agreement (article 32.1 of the Law on JSC), which can also regulate voting issues on general meetings.
4.2. The notary, after reviewing the list of participants (the list of persons entitled to participate in the general meeting of shareholders), is recommended to explain to the applicant against signature that in order to identify the participants (shareholders) of the company, the latter must be present at the meeting with documents proving their identity, representatives of the participants (shareholders), in addition to identity documents, must have documents confirming their authority, legal representatives of minor participants (shareholders) must have a birth certificate confirming the status of a legal representative, etc.
5.1. A notary (a person acting as a notary during the replacement of an absent notary) must personally attend the meeting. At the same time, at the notary's office at the specified time (the time will be reflected in the minutes of the general meeting and in the certificate issued by the notary), notarial actions are not performed.
5.2. The indicated notarial action may also be performed in the premises of the notary's office, if the notice to the participants (shareholders) of the meeting indicates the location of the notary's office and this is not prohibited by the charter of the company.
5.3. The notary chooses the best way to record information about the composition of participants, the powers of representatives, information about the issues considered at the meeting, the decisions taken on these issues and the persons who voted when making these decisions. The specified information will be used by the notary when preparing the certificate. It is recommended that all information be recorded in writing or using technical means (video recording, audio recording) or a combination various ways fixation.
5.4. The notary checks the list of participants (shareholders) present at the meeting. At the same time, it is necessary to take into account what is provided for by law, the charter (to the extent that it does not contradict the law) and internal documents company the minimum number of participants (shareholders) that must be present when making each decision (quorum). The presence of a quorum on at least one item on the agenda is the basis for opening and holding the meeting.
5.5. The notary establishes the identity of the participants (shareholders) present at the meeting and their representatives.
The identity is established by a passport or other document that excludes any doubts about the identity of its owner. Information about the participant (full name, passport details, place of residence, the size of the share of the participant or the number of voting shares of the shareholder) must be recorded in writing. We consider it possible to reflect such information on the list of company participants (or its copy) or on the list of persons entitled to participate in the general meeting of shareholders (its copy). Information about the passport data of participants (shareholders) may be contained in the said documents. In this case, the notary must verify the data on the identity document of the participant (shareholder) contained in the list of participants in the company or in the list of persons entitled to participate in the general meeting of shareholders with the submitted document. It is possible to make a note about this on a copy of the list of participants or the list of persons entitled to participate in the general meeting of shareholders, which will remain with the notary.
If a member of a limited liability company participates in the general meeting through a representative, the representative presents a document confirming his authority. The power of attorney issued by the participant must contain information about the person represented and the representative (name or title, place of residence or location, passport data) and must be notarized (Part 2, Clause 2, Article 37 of the LLC Law). At the same time, this article contains a rule that a power of attorney can also be issued in accordance with the requirements of paragraphs 4 and 5 of Art. 185 of the Civil Code of the Russian Federation (meaning the version in force until September 1, 2013 said article). In the current version of the Civil Code, these are paragraphs 3 and 4 of Article 185.1 of the Civil Code of the Russian Federation. At the same time, the procedure for issuing powers of attorney specified in paragraph 3 of Article 185.1 of the Civil Code of the Russian Federation applies only to the types of powers of attorney directly indicated in it, among which there is no power of attorney to represent a participant during a meeting. Thus, a power of attorney to represent the interests of a company member at a general meeting from an individual must be notarized, a power of attorney from a legal entity can be issued in accordance with paragraph 4 of Art. 185.1 of the Civil Code of the Russian Federation.
The shareholder's representative at the general meeting of shareholders acts in accordance with the powers based on the instructions of federal laws or acts of authorized bodies or a power of attorney drawn up in writing. The power of attorney for voting must contain information about the person being represented and the representative (for an individual - the name, details of the identity document (series and (or) number of the document, date and place of its issue, the authority that issued the document), for a legal entity - name, information about location). The power of attorney must be issued in accordance with paragraphs 3 and 4 of Art. 185.1 of the Civil Code of the Russian Federation or certified by a notary (Article 57 of the JSC Law). You should also pay attention to the cases of representation provided for in paragraphs 2 and 3 of Article 57 of the JSC Law.
5.6. In order to avoid participation in the meeting of a representative of incapacitated legal entities - participants (shareholders) of the company, notaries are recommended to check their legal capacity. It should be borne in mind that, in accordance with paragraph 3 of Art. 49 of the Civil Code of the Russian Federation (as amended, which will be effective from 01.09.2014), the legal capacity of a legal entity arises from the moment information about its creation is entered into the Unified State Register of Legal Entities and terminates at the moment information about its termination is entered into the specified register. Thus, the main document confirming the legal capacity of a legal entity is an extract from the Unified State Register of Legal Entities. An extract from the Unified State Register of Legal Entities in respect of legal entities - participants (shareholders) of the company can be requested by the notary independently using the UNOT program or through the tax service portal - Nalog.ru based on the information specified in the list of participants or the list of persons entitled to participate in the general meeting shareholders.
5.7. The notary checks the presence of a quorum for the adoption of the decisions stated in the agenda. At the same time, it should be taken into account that in accordance with Article 181.5 of the Civil Code of the Russian Federation (clause 10, article 49 of the JSC Law, clause 6 of article 43 of the LLC Law), the decision of the meeting is void if it is taken on an issue not included in the agenda day (except for the case when all participants (shareholders) of the company took part in the meeting), adopted in the absence of the required quorum or adopted on an issue not related to the competence of the meeting. Such a decision does not give rise to any legal consequences. The notary is not entitled to certify the adoption of such decisions.
In limited liability companies, it is necessary to pay attention to the share owned by the company itself and not distributed or sold by it (Article 24 of the LLC Law). Such shares are not taken into account when determining the results of voting at the general meeting of participants. In a joint-stock company, it is necessary to pay attention to the shares acquired (repurchased) by the company (clause 2, article 72, article 76 of the JSC Law). Such shares do not provide voting rights and are not taken into account when counting votes (clause 3, article 72, clause 6, article 76 of the JSC Law).
The notary must pay attention to the existing pledge of shares (shares) of the shareholder (participant) participating in the meeting. It must be taken into account that, in accordance with paragraph 2 of Art. 358.15 of the Civil Code of the Russian Federation, when pledging shares, the rights of shareholders are exercised by the pledgor (shareholder), unless otherwise provided by the share pledge agreement (Article 358.17 of the Civil Code of the Russian Federation), and in limited liability companies, when pledging a share in the authorized capital, the rights of a company participant are exercised by the pledgee until the termination of the pledge, unless otherwise provided by the share pledge agreement.
In joint-stock companies, it must be taken into account that, in accordance with Art. 49 of the Law on JSC, the right to vote at the general meeting of shareholders on issues put to the vote, have:
shareholders - owners of ordinary shares of the company (Article 31 of the JSC Law);
shareholders - owners of preferred shares of the company only in cases provided for by the JSC Law (Article 32 of the JSC Law).
Also, the notary must take into account that on some issues in the company a cumulative vote can be held (paragraph 4 of article 66 of the Law on JSC, paragraph 9 of article 37 of the Law on LLC). In case of cumulative voting, the number of votes belonging to each shareholder (participant) is multiplied by the number of persons to be elected to the relevant body of the company, and the shareholder (participant) has the right to cast the votes thus received in full for one candidate or distribute them among two or more candidates .
5.8. When determining the quorum required for a decision by the general meeting, the following rules must be followed.
5.8.1. Rules of the law on LLC:
Decisions taken unanimously:
P. 2 Art. 8. Granting and termination of additional rights of the participant (participants) of the company.
P. 2 Art. 9. Assignment and termination of additional obligations of the participant (participants) of the company.
P. 3 Art. 11. Decisions on the establishment of a company, approval of its charter, approval of the monetary value of securities, other things or property rights or other rights having a monetary value, contributed by the founders of the company to pay for shares in the authorized capital of the company.
P. 3 Art. 14. Inclusion in the charter of the company, amendment and exclusion of provisions on limitation maximum size shares of a company participant and on limiting the possibility of changing the ratio of shares of company participants.
P. 2 Art. 15. Approval of the monetary value of property contributed to pay for shares in the authorized capital of the company.
P. 2 Art. 19. An increase in the authorized capital on the basis of an application by a member of the company (applications of the company's participants) to make an additional contribution and (or), if this is not prohibited by the charter of the company, an application of a third party (applications of third parties) to accept him into the company and make a contribution.
P. 2 Art. 19. Amendments to the charter of the company in connection with an increase in the authorized capital of the company on the basis of an application by a member of the company or statements by the members of the company for making an additional contribution by him or by them, as well as a decision to increase the nominal value of the share of a member of the company or the shares of the members of the company who submitted applications for making additional contribution, and, if necessary, a decision to change the size of the shares of the company's participants.
P. 2 Art. 19. Decisions on the issue of admitting a third party or third parties or to the company, on making appropriate changes to the charter of the company in connection with an increase in the authorized capital of the company, on determining the nominal value and size of the share or shares of a third party or third parties, as well as on changing the size shares of the company's members.
P. 4, Art. 19. Set-off of monetary claims against the company against contributions made by participants or third parties.
P. 4, Art. 21. Introduction into the charter of provisions establishing the pre-emptive right to purchase a share or part of a share in the authorized capital by the company's participants or the company at a price predetermined by the charter, including changing the size of such a price or the procedure for determining it.
P. 4, Art. 21. Introducing provisions into the charter establishing the possibility for the participants of the company or the company to exercise the pre-emptive right to purchase not the entire share or not the entire part of the share in the authorized capital of the company offered for sale.
P. 4, Art. 21. Introduction into the charter of provisions establishing the possibility of offering a share or part of a share in the authorized capital of the company to all participants in the company disproportionately to the size of their shares.
P. 2 Art. 23. Introduction into the charter of provisions establishing a different deadline for the fulfillment of the obligation to pay the participant of the company the actual value of his share to give him in kind property of the same value as provided for in paragraph 2 of Art. 23.
Clause 6.1 of Art. 23. Introduction into the charter of provisions establishing a different period or procedure for payment of the actual value of a share or part of a share than provided for in paragraph 6.1 of Art. 23.
P. 4, Art. 24. Sale of a share or part of a share acquired by the company to the company's participants, as a result of which the size of the shares of its participants is changed, as well as the sale of such a share or part of the share to third parties and the determination of a different price for the sold share.
P. 2 Art. 25. Decision on payment to creditors of the actual value of the share or part of the share of the company's participant whose property is being foreclosed by the other participants of the company in proportion to their shares in the authorized capital of the company.
P. 1, Art. 26. Introduction into the charter of provisions on the right of a company participant to withdraw from the company.
P. 1, Art. 27. Introduction into the charter of provisions establishing the obligation to make contributions to the company's property.
P. 2 Art. 27. Introduction into the charter of provisions establishing the procedure for determining the amount of contributions to the property of the company disproportionately to the size of the shares of the participants in the company, as well as provisions establishing restrictions related to making contributions to the property of the company.
P. 2 Art. 27. Change and exclusion of the provisions of the charter of the company, establishing the procedure for determining the amount of contributions to the property of the company disproportionately to the size of the shares of the participants in the company, as well as restrictions related to making contributions to the property of the company, established for all participants in the company.
P. 2 Art. 28. Introduction into the charter of the company, amendment and exclusion of provisions establishing a different procedure for the distribution of profits between the participants of the company than provided for in paragraph 2 of Art. 27 of the LLC Law.
P. 1, Art. 32. Introduction into the charter of the company, amendment and exclusion of provisions establishing a different procedure for determining the number of votes of the company's participants than provided for in paragraph 1 of Art. 32 of the LLC Law.
P. 2 Art. 33, paras. 11 p. 8 art. 37. Making a decision on the reorganization or liquidation of the company.
P. 2 Art. 8. Termination or restriction of additional rights granted to a certain member of the company, provided that the member of the company who owns such additional rights, voted for the adoption of such a decision or gave written consent.
P. 2 Art. 9. The imposition of additional obligations on a certain participant of the company is carried out by decision of the general meeting of the participants of the company, provided that the participant of the company, which owns such additional rights, voted for such a decision or gave written consent.
P. 4, Art. 21. Exclusion from the charter of the provisions establishing the pre-emptive right to purchase a share or part of a share in the authorized capital by the company's participants or the company at a price predetermined by the charter.
P. 4, Art. 21. Exclusion from the charter of the provisions establishing the possibility of the participants of the company or the company to exercise the pre-emptive right to purchase not the entire share or not the entire part of the share in the authorized capital of the company offered for sale.
P. 2 Art. 23. Exclusion from the charter of the provisions establishing a different period for fulfilling the company's obligation to pay the company's member the actual value of his share or to issue him property in kind of the same value than the period provided for in paragraph 2 of Art. 23.
Clause 6.1 of Art. 23. Exclusion from the Articles of Association of provisions that establish a different period or procedure for paying the actual value of a share or part of a share than that provided for in paragraph 6.1 of Art. 23.
P. 2 Art. 27. Amendment and exclusion of the provisions of the company's charter that establish restrictions related to making contributions to the company's property for a certain member of the company, provided that the member of the company for whom such restrictions are established voted for such a decision or gave written consent.
P. 1, Art. 5. Creation of branches and opening of representative offices.
P. 1, Art. 18. Increase in the authorized capital of the company at the expense of its property.
P. 1, Art. 19. Decision to increase the authorized capital of the company by making additional contributions by the company's participants.
P. 4, Art. 21. Exclusion from the charter of the provisions establishing the possibility of offering a share or part of a share in the authorized capital of the company to all participants in the company disproportionately to the size of their shares.
P. 1, Art. 27. Decision on making contributions to the property of the company.
Pp. 2 p. 2 art. 33, paragraph 8 of Art. 37. Changing the company's charter, including changing the size of the company's authorized capital.
P. 8 Art. 37. Other issues determined by the charter of the company, if necessary more votes for making such a decision is not provided for by the LLC Law or the company's charter.
In accordance with paragraph 8 of Art. 37 of the LLC Law, other decisions are made by a majority vote of the total number of votes of the company's participants, unless the need for a larger number of votes to make such decisions is provided for by the LLC Law or the company's charter.
5.8.2. Norms of the JSC Law Decisions taken unanimously:
P. 3 Art. 9. Decision on the establishment of a company, approval of its charter and approval of the monetary value of securities, other things or property rights or other rights having a monetary value, contributed by the founder as payment for the shares of the company.
P. 1, Art. 20. Transformation into a non-profit partnership.
Decisions taken by a three-quarters majority of shareholders participating in the general meeting of shareholders of the company:
P. 4, Art. 9. Primary election of the management bodies of the company, the audit commission (auditor) of the company, as well as in the case provided for by this paragraph, the initial approval of the company's auditor.
P. 3 Art. 29. Decision to reduce the authorized capital of the company by reducing the par value of the company's shares.
P. 4, Art. 49. The decision on the issues specified in subparagraphs 1 - 3, 5, 17 and 19.2 of paragraph 1 of Article 48 of this Federal Law shall be adopted by the general meeting of shareholders by a three-quarters majority of the votes of the shareholders - owners of voting shares participating in the general meeting of shareholders.
Pp. 1 p. 1 art. 48, paragraph 4 of Art. 49. Introduction of amendments and additions to the charter of the company or approval of the charter of the company in a new edition.
Pp. 2 p. 1 art. 48, paragraph 4 of Art. 49. Reorganization of society.
Pp. 3 p. 1 art. 48, paragraph 4 of Art. 49. Liquidation of the company, appointment of the liquidation commission and approval of the interim and final liquidation balance sheets.
Pp. 5 p. 1 art. 48, paragraph 4 of Art. 49. Determining the number, nominal value, category (type) of declared shares and the rights granted by these shares.
Pp. 17 p. 1 art. 48, paragraph 4 of Art. 49. Acquisition by the company of outstanding shares in the cases provided for by this Federal Law;
Pp. 19.2 p. 1 art. 48, paragraph 4 of Art. 49. Making a decision on filing an application for the delisting of the company's shares and (or) equity securities of the company convertible into its shares.
P. 3 Art. 79. Decision on approval of a major transaction, the subject of which is property, the value of which is more than 50 percent of the book value of the company's assets.
P. 1, Art. 92.1 Applying to the Bank of Russia to release it from the obligation to disclose or provide information stipulated by the legislation of the Russian Federation on securities.
Decisions taken by a three-quarters majority of shareholders participating in the general meeting of shareholders of the company, if the need for a larger number of votes to make this decision is not provided for by the charter of the company:
P. 4, Art. 32. Questions about making changes and additions to the charter of the company, limiting the rights of shareholders - owners of preferred shares. A special quorum has been established for owners of voting shares participating in the general meeting of shareholders, and owners of preferred shares, the rights to which are limited.
P. 4, Art. 32. Questions about the application for listing or delisting of preferred shares of this type. A special quorum has been established for owners of voting shares participating in the general meeting of shareholders; and holders of preferred shares, the rights to which are limited.
P. 3 Art. 39. Placement of shares (equity securities of the company convertible into shares) by closed subscription based on the decision of the general meeting of shareholders to increase the authorized capital of the company by placing additional shares (on the placement of equity securities of the company convertible into shares).
P. 4, Art. 39. Placing by means of public subscription of ordinary shares that make up more than 25 percent of previously placed ordinary shares.
P. 4, Art. 39. Placement by public offering of equity securities convertible into ordinary shares, which can be converted into ordinary shares, constituting more than 25 percent of previously placed ordinary shares.
In accordance with paragraph 2 of article 49 of the JSC Law, other decisions are made by a majority vote of the total number of votes of shareholders participating in the meeting.
Also, the issues of determining the quorum are regulated by Article 58 of the JSC Law.
5.9. In non-public joint-stock companies, to resolve the issue of verifying the powers of persons participating in the meeting and determining the quorum of the general meeting of shareholders, the notary may rely on the data of the company's counting commission, if one has been created in the company (Article 56 of the JSC Law).
5.10. The notary is present throughout the entire meeting - from the moment the meeting opens until the decision is made on the last issue included in the agenda or on the last issue for which there is a quorum, and if voting is carried out by ballots - until the end of the counting of votes.
At the end of the meeting, the notary is recommended to request a copy of the minutes of the counting commission on the results of voting, if such has been created in the company. If the company has not created a counting commission, the notary is recommended to request a copy of the draft protocol, which was kept by the secretary of the general meeting. The said copy may be signed by the same persons (chairman of the meeting and secretary of the meeting) who will sign the minutes of the general meeting in final form. The specified copy is provided to the notary at the end of the meeting, in order to exclude adjustments decisions taken.
reclamation specified documents is not mandatory for a notary and is recommended in order to obtain additional material to the data recorded by the notary.
If voting in a joint-stock company was carried out by ballots, the notary must demand the minutes of the counting commission (or other body created for counting votes) on the results of voting. The maximum term for the preparation of the minutes of the counting commission is three days (Article 62 of the JSC Law).
The notary is not entitled to demand minutes of the general meeting. Its preparation is the exclusive competence of the company, the notary is not entitled to give instructions on the preparation of the protocol.
5.11. At the end of the meeting, the notary makes an entry in the register for the registration of notarial acts, collects a fee for performing a notarial act and a fee for legal and technical work. Upon presentation to the notary of a copy of the minutes of the counting commission on the results of voting, and in the case when the voting results are known from the moment the meeting ends - in another shortest possible time, the notary shall prepare and issue a certificate of certification of the adoption by the general meeting of participants of the economic company of decisions and the composition of the participants of the company who were present upon acceptance. Only a notary (acting notary) who was present at the meeting can issue a certificate.
The form of the certificate is not established in accordance with the procedure determined by the Fundamentals of the legislation of the Russian Federation on notaries. However, the absence of the established form of the certificate cannot be grounds for refusing to perform the specified notarial act. An example of a certificate is given in these guidelines.
5.12. Until the law regulates the procedure for performing the specified notarial action, the certificate is an independent document and is not filed by the notary to the final protocol of the general meeting of participants (providing by the company to the notary the final protocol of the general meeting is a right, not an obligation of the company). The certificate is issued by a notary in two copies, one copy for the applicant, one remains in the affairs of the notary (Article 44.1 of the Fundamentals of Legislation on Notaries). The applicant, upon receipt of the certificate, signs in column 7 of the register for registration of notarial acts.
5.13. The notary forms the appropriate nomenclature file, determines its title, for example: “Certificates of certification of the adoption of decisions by the general meeting of participants in the economic company and the composition of the company’s participants who were present at its adoption, documents to them” and includes its title in the nomenclature of cases approved for 2014 using reserve number (clause 50 of the Rules for notarial office work, approved by order of the Ministry of Justice of Russia dated April 16, 2014 No. 78). Issued certificates, applications with a request to perform a notarial act, copies of minutes of counting commissions (minutes of general meetings), and other documents (at the discretion of a notary) will be grouped into the specified nomenclature file.
6.1. A notary cannot certify the adoption of a decision by the general meeting of participants in a business company and the composition of the company's participants who were present at its adoption, if the decisions were taken in the form of absentee voting. Literally interpreting the norm of Article 67.1 of the Civil Code of the Russian Federation, in order to perform the specified notarial act, the notary must have the physical presence of the participants at the place of the meeting.
6.2. The notary cannot issue a certificate if none of the decisions has been made (for any reason: lack of a quorum, the required number of votes has not been collected, etc.). Based on the meaning of Article 67.1 of the Civil Code of the Russian Federation, a notary certifies only the MAKING of decisions. At the same time, the notary may issue a certificate if one of the three decisions included in the agenda is adopted. That is what will be indicated in the certificate.
6.3. A notary cannot certify the adoption of void decisions. The general grounds for the nullity of decisions are specified in Article 181.5 of the Civil Code of the Russian Federation. Also void is the decision of the general meeting of the company's participants, which restricts the right of the participant to attend the general meeting, take part in the discussion of agenda items and vote when making decisions (Part 3, Clause 1, Article 32 of the LLC Law)
In all of these cases, the notary refuses to perform a notarial act on the general basis specified in Article 48 of the Fundamentals of the Legislation of the Russian Federation on Notaries, namely: "the commission of such a notarial act is contrary to law."
Application No. 1
Notary of the city of Moscow
Gerasimova M.D.
From Ivanov Ivan Petrovich,
living: city of Moscow,
Flotskaya street, house 5, apartment 1,
being the General Director
Limited liability companies "Romashka", OGRN,
location; Moscow, Tverskaya street, 23.
I ask you to certify the adoption by the general meeting of participants of the economic company of decisions and the composition of the participants of the company who were present at its adoption on the issues included in the agenda of the extraordinary general meeting of participants of the Romashka limited liability company, which will be held on September 5, 2014 at 11 a.m. 00 minutes at the address: Moscow, Tverskaya street, 23, entrance 2, room 1.
Agenda of the general meeting:
Dismissal of Ivanov I.P., General Director of Romashka LLC;
Election of A.V. Sidorov as the General Director of Romashka LLC.
As the person convening the general meeting, the notary explained to me that the members of the company who will be present at the meeting must have a passport or other identification document with them, representatives of the participants, in addition to the passport, must have documents confirming their authority.
I was also explained the obligation, if there is an agreement on the exercise of the rights of participants (shareholder agreement, corporate agreement), to submit a copy of such an agreement to a notary. I declare that the agreement on the exercise of the rights of participants (shareholder agreement, corporate agreement) was not concluded by the participants (shareholders), (option 2: I presented a copy of the agreement on the exercise of the rights of participants (shareholder agreement, corporate agreement) to the notary).
Applicant _____________________
Identity established, powers
and p / n checked.
| Notary (signature) | input No. 200 dated 03.09.2014 |
|---|
Application No. 2
Place of issue of the certificate (village, settlement, district, city, region, region, republic in full).
Date of issue (day, month, year of issue of certificates) in words.
I, (last name, first name, patronymic in full), notary (name of the state notary office or notary district), in accordance with Article 67.1 of the Civil Code of the Russian Federation, certify that at the next general meeting of participants (the full name of the company is indicated), which was held on (date meeting in words) from (start time of the meeting: hours, minutes in Arabic numerals) to (end time of the meeting: hours, minutes in Arabic numerals), at the premises at (exact address of the place of the meeting), the following decisions were made:
(description of the decisions made and the composition of the participants who were present at their adoption)
On the agenda:
1. On the dismissal of the General Director of the Limited Liability Company "Romashka" Ivanov Ivan Petrovich.
Participants attended:
Full name, owning a share of 50% of the authorized capital
2. On the election of Andrei Vladimirovich Sidorov to the position of General Director of the Romashka Limited Liability Company.
Participants attended:
Full name, owning a share of 20% of the authorized capital
Full name, owning a share of 30% of the authorized capital
3. By decision of all participants of the company on an issue not included in the agenda:
1. About payment to CEO Limited Liability Company "Romashka" Ivanov Ivan Petrovich cash reward in the amount of 100 thousand rubles at the expense of retained earnings of the company.
Participants attended:
Full name, owning a share of 20% of the authorized capital
Full name, owning a share of 30% of the authorized capital
Full name, owning a share of 50% of the authorized capital.
This certificate confirms the adoption by the general meeting of participants (the full name of the company is indicated) of all decisions indicated in it and the composition of the participants who were present at their adoption.
Registered in the register:
Charged at the rate:
Notary
A manual has been prepared for certifying by a notary the decision taken by the general meeting of participants of a business company and the composition of the participants present at the same time.
The need for its development is due to changes in the Civil Code of the Russian Federation that provide for this procedure.
It is noted that the indicated notarial act is not mandatory, since there is an alternative for all types of legal forms of business entities. The fee for the procedure is charged as for other notarial acts.
The adoption of a decision by the general meeting of participants of the economic company and the composition of participants is confirmed by notarization in relation to non-public JSC and LLC.
The procedure for determining the applicant - a person who has the right to apply to a notary, the procedure for preparing for certification has been regulated.
The notary (the person acting during his absence) must personally attend the meeting. At the same time, notarial acts are not performed in the notary's office at the specified time.
The notary can choose the method of fixing information about the composition of participants, the powers of representatives, about the issues under consideration, etc. It is necessary when preparing a certificate.
The notary must establish the identity of the participants (shareholders) present at the meeting and their representatives. Passport or other identity document is checked.
A notary cannot perform an action if the decisions were taken in the form of absentee voting.
Samples of the application and the certificate of the certificate are given.
From the first of September 2014 all legal entities must confirm the adoption of the decision by the general meeting of participants / shareholders. Depending on the type of legal entity, the legislator determines the methods of such confirmation.
These changes are aimed at protecting the rights of shareholders / members of the company when making the most important management decisions in organizations that fall within the competence of the General Meeting, tk. the presence of an outside observer or the technical possibility of fixing the composition of the participant and the way they make decisions will prevent or resolve many corporate disputes (the most common of which are questions about the quorum when making decisions and voting on certain issues).
We propose to consider in more detail the methods proposed by the legislator for the confirmation of the decision and the composition of the participants present at the same time.
There are only two “options” for joint-stock companies - a notary or a registrar who maintains a register of shareholders.
1) Confirmation by the registrar.
Based on the wording of Article 67.1 of the Civil Code of the Russian Federation, it follows that a representative of the registrar must actually be present at the General Meeting of Shareholders, while at the Meeting problems related to trade secrets, distribution of dividends, and other confidential issues may be discussed. The question arises, how will the safety of this information received by an outsider for the company be ensured and controlled by whom? What is the responsibility of the registrar in case of disclosure of such information by its employees?
Of course, these issues need to be settled in an agreement with the registrar, since the Order of the Federal Financial Markets Service of Russia dated December 23, 2010 No. 10-77 / pz-n “On Approval of the Regulations on the Procedure for Interaction in the Transfer of Documents and Information Constituting the System for Maintaining the Register of Securities Owners” they are not defined. However, the discussion of agenda items in front of an outsider is uncomfortable in any case, because formal liability does not compensate for losses from the disclosure of trade secrets. It may be advisable to approve the procedure for holding a meeting in which: the registrar is present only during the registration of shareholders at the beginning of the meeting, and at the end of the meeting when voting. And when discussing business ideas, commercial projects, know-how, the representative of the registrar will be removed, because. its functions are not required.
An important issue is related to the cost and the actual possibility of the presence of a representative of the registrar at the meeting, especially during the mass holding of annual meetings of shareholders held in the second quarter of the year.
The cost of services will vary depending on the registrar, but on average it is about 5,000 rubles, not counting the transportation costs for the delivery of the registrar's employee to the place of the shareholders' meeting.
2) Notarization.
Non-public JSCs and LLCs can use this method.
A manual has already been developed for certifying by a notary a decision taken by a general meeting of company participants and the composition of the company participants who were present at its adoption (FNP Letter No. 2405 / 03-16-3 dated 01.09.2014).
In accordance with it, the notary must first submit an application in the form established by the same document, a notice/message on convening a meeting indicating the agenda of the meeting. The notary must be present at the meeting in person (the meeting can be held directly in the notary's office), recording the presence of persons and the adoption of a decision.
After the meeting, the notary issues a Certificate confirming the adoption by the general meeting of participants of the economic company of decisions and the composition of the participants of the company who were present at its adoption.
Considering that an LLC is the most common organizational and legal form of legal entities in the Russian Federation, the question arises whether there will be a queue for notaries to invite them to attend General Meetings, and the cost of such services will be very significant (given that at this time no other notarial action cannot be taken). Now notaries are having difficulty in providing such a service, since the practice has not yet developed and notaries do not have an understanding of the procedure for its implementation.
For an LLC, the Charter may contain alternative methods of certification, let's move on to considering their features.
3) Signing of the minutes of the general meeting by the members of the Company.
Despite the apparent simplicity of this method at first glance, it also has pitfalls.
Firstly, the possibility of its application should be directly fixed in the Charter or a unanimously adopted decision of the General Meeting of Participants. If this method is fixed in the unanimous decision of the participants of the General Meeting of Participants, then it is necessary to do this at each General Meeting or is it enough once, indicating that “it will continue to be so”? So far, there is no official clarification on this issue and judicial practice, it seems possible to interpret this as the need to take once unanimously the decision of the General Meeting on determining the procedure for confirming the composition of participants and the procedure for making decisions of the General Meeting, extending its effect to the future.
Secondly, unanimous approval of the decision on the method of fixing the composition of participants and the procedure for making a decision can be difficult if the participants are in confrontation: it is enough for one of them to fail to appear or refuse to sign such a decision to deprive the decision of the Assembly on the main issue of legitimacy, even if for a quorum and a decision is enough votes. As a result - the need to invite a notary to the General Meeting, and this is associated with additional costs.
Thirdly, the possibility of signing not by all the participants of the General Meeting, but by a part of them has been introduced. How the composition of the participants who will sign the decision is determined, the legislator did not specify.
We believe that signing by a part of the participants may be provided for by the Charter or the Decision on the choice of a method for confirming the adoption of decisions by the General Meeting of Participants, for example:
The legislation does not explain how fixing should be carried out and who should do it. This means that the definition of the type, method (audio recording, video recording), the procedure for storing the original recording, the issuance of its copies remains at the discretion of the participants themselves and should be established by the charter. It can be proposed to create a separate section in the Charter with detailed description: who and how such fixation is carried out and where the original recording will be located, as well as responsibility for its loss.
5) You can choose other ways, fixing them in the Charter.
Possibly, voting with the use of digital signatures will soon become widespread.
By making the list open, the legislator left the possibility for any methods of technical fixation, which are still unknown to us, but which will become widespread in the future. The only thing is that their use needs to be described in the Charter or the Decision on choosing them as a way to confirm the decision.
Summing up, we can say that the introduction of such a rule will additionally help protect the rights of business partners, since the presence of a notary or registrar becomes a certain guarantee for the participants to exercise their rights to manage the organization. At the same time, such innovations impose additional burdens on participants and shareholders and, in a sense, make notaries and registrars “busy”, not to mention the additional costs of inviting such a specialist.
The law does not require the Charters of existing legal entities to be brought into line with it. But if the procedure for confirming the composition and making decisions in an LLC is not described in it, you will have to invite a notary to each meeting or sign a unanimous decision to choose another way to confirm the fact that the decision was made and the composition of the participants present at the same time, which can be very difficult to implement in practice.
Since September 2014, amendments to the Civil Code of the Russian Federation come into force. One of these changes was the need for notarization of the minutes. Many people are not happy with this change. There are many questions about why this is necessary, and how to avoid it. In this article, we will try to deal with this situation.
Everyone knows that the protocol of the decision of the general meeting of participants, founders of the company (organization) is the main document starting from the registration of an LLC, CJSC or NPO, as well as when amending the charter or registering changes in the Unified State Register of Legal Entities. In the new edition of the Civil Code of the Russian Federation on the protocol in accordance with paragraph 3 of Art. 67.1 of the Civil Code of the Russian Federation, which comes into force on September 1, 2014, establishes the obligation to notarize the minutes of the general meeting of LLC. Also in this paragraph, conditions are provided under which it is impossible to do without a notary. So, since September, it is necessary to notarize the decision-making by the general meeting of participants and the composition of the participants who were present when a decision was made. In our opinion, notarization of the minutes of the general meeting is a reasonable decision.
A little about criminal responsibility:
Article 185.5 of the Criminal Code of the Russian Federation provides for criminal liability for forging the minutes of a general meeting. The maximum penalty under this article is 2 years in prison. Now criminal liability will arise not only under Article 195.5 of the Criminal Code of the Russian Federation, but also under Article 327 of the Criminal Code of the Russian Federation, namely for forging documents, stamps, seals and letterheads. The maximum penalty under this article is 4 years in prison. The expediency of notarial certification of the minutes of the general meeting is due to the fact that a person, before forging it, will now think about a sufficiently long term of imprisonment for his actions according to the combination of two articles of the Criminal Code of the Russian Federation. The reliability of the protocol, which is certified by a notary, is much higher than the usual protocol. Moreover, it is enough to simply check whether the protocol has been forged by sending a corresponding request to the notary.
If there are corporate disputes in the company, then the notarial protocol will allow not to aggravate the situation. And of course, participants in any case have a choice. They can adopt their own protocol confirmation procedure without even changing the bylaws. Notarial protocol - perfect option for distressed companies. However, for standard LLCs, in which everything is great, the founders in good relations, there is nothing to share, the notarization of the protocol is really an unnecessary measure. Accordingly, it is necessary to try to find ways of avoiding this procedure.
Protocol options without notarization
The Civil Code nevertheless provides for options in which it is possible not to notarize the protocol:
Moreover, the Civil Code provides for options for fixing the methods of certifying the protocol. These options include:
Amendments to the charter in connection with a change in the method of confirming the decision and the composition of participants do not require a unanimous decision. A simple majority of votes is sufficient. However, at first it is better to make decisions unanimously, since some employees of the Federal Tax Service interpret certain legislative norms in their own way. The decision of the general meeting, which does not require amendments to the articles of association, must be adopted unanimously by all participants in the company, and not just by the participants in the meeting.
A logical question arises - what to do if, for some reason, the participants do not have the desire to make changes to the charter, and at the same time there is no way to gather all of them at the meeting. There is also a way out. It is necessary to make such a decision by a separate protocol, which will be adopted unanimously by all participants, but at the same time choose a different method of certification. Signing by all participants of the protocol The decision or the Charter can fix the obligation to sign the protocol by all participants of the company or general meeting. This can be done under the protocol or on a separate sheet, which is attached to the protocol in order to avoid loss. Signing by a part of the participants of the protocol The Articles of Association or the Decision may provide for the persons who must confirm the protocol. This can be the secretary and chairman of the OS, a company member who has a larger share in the authorized capital compared to other participants, a company member who is most trusted by other participants, company members in total, owning more than 50% of the share in the authorized capital.
Use of technical means
The most popular means that allow you to establish the fact of the adoption of a decision are audio and video recordings of the general meeting. Here you can use completely different means, for example, a car video recorder. It is on it that images, sound, date and time of recording are stored. However, you can also use just a voice recorder, mobile phone, a camcorder, even a camera that has a video recording function. Be careful, as some courts will not accept a copy of the recording, only the original as evidence. The original will be the memory card. If your technical device does not provide for the presence of such a card, then the device itself will be the proof.
From the foregoing, we can conclude that there are 4 main ways to certify the protocol if you do not want to contact a notary:
You can fix the chosen method in the charter, in each separate protocol, by making a decision at the general meeting with a subsequent reference to this decision. Which way is better is up to you. However, remember that if you have heated disputes or conflicts in your company, it would still be better to notarize the minutes.
Residents meetings apartment buildings require careful recording, since the latter is accompanied by an official document, which indicates not only the date of the meeting, but also the results to which it led. There is no single sample of how it should be drawn up, so the minutes of the general meeting of owners for each meeting may look different.
Notarization of the minutes of the general meeting is necessary, because it is a confirmation of the legality of the latter. The notary is obliged to certify each minutes of the meeting, unless otherwise provided by the statute of the MKD or if such a method is unanimously approved by all members of the meeting.
The minutes of the general meeting should contain not only the provisions heard and decisions that were made, but also the time and date of its holding, the number of participants who attended it, and it also records the results of voting on individual issues that were submitted for discussion.
The minutes of the general meetings of owners contain the following details:
According to legislative norms, a complete register of participants who gathered on it should be attached to the drawn up protocol in order to create a complete picture of what is happening. Before the meeting, they must be handed agendas about the upcoming event, a single sample of which must also be attached to the document. One of important points is fixing in the document the exact mechanism for transferring copies of the minutes of meetings to special governing bodies.
Certification of the minutes of the general meeting is not very difficult. Under the registration number in the introductory part, the usual serial number of the meeting, which was held in the current year, is hidden.
As for the place of the meeting, this column can indicate both the immediate place of the meeting of all owners or shareholders, and the exact address to which their personal written decisions on general issues were sent.
Notarization of the minutes of the general meeting implies the presence of the following provisions in its introductory part:
What does the main section of the protocol include? This is directly the agenda, which contains all sections of the discussions between the owners, the issues that were raised. They are drawn up in a numbered order as they are submitted for general discussion.
For each selected part of the protocol, there is general principle design - it fits into plural on behalf of all participating shareholders. It indicates what was heard at the meeting, what was decided and what was decided - with full description what was decided and done.
Notarization of the minutes of the general meeting provides for the existence of registers of owners, complete lists members present, the results of the general vote, the list of powers of attorney and documents that were issued during the meeting.
Recall that the minutes of general meetings are not subject to falsification - this is punishable by imprisonment for a term of two years under the article of the Criminal Code - and this is only one article. In total, a person can receive a prison term of up to 6 years. In order to prevent such cases, certification of the general meeting by a notary in the form of a written protocol is a guarantee of honest and maximally transparent cooperation, interaction between shareholders.
This will help in the future not only to easily confirm the reality of the meeting held and the decisions made at it, but also to verify the reliability of previous meetings. To do this, it is enough to contact a notary who draws up a notarization of the minutes of the general meeting of shareholders.
Also, this innovation in the design of documentation is relevant for the meetings of shareholders of corporations, in which there are disputes on the leading issues of the company's activities. Certification of the minutes of the general meeting will help to avoid unpleasant excesses and mutual claims in the future.
Regular and extraordinary meetings
When registering a company, the mandatory document specified in the list, which is provided to the registering authority, is the decision of the general meeting of participants in the LLC.
Art. 34 of the LLC Law requires an annual meeting to review the company's annual results. This article also regulates the timing of their implementation - not earlier than 2 and not later than 4 months after the end of fiscal year. Specific deadlines are set in the charter.
An extraordinary meeting of participants is also acceptable: when it is urgent to resolve a specific issue that is within the competence of this body. The following persons have the right to initiate a general meeting:
The founders can make their own adjustments to the agenda of the upcoming meeting and propose additional issues for consideration 15 days before the meeting.
If the company has one founder, then the requirements of Art. 36 on the procedure for convening a meeting does not apply to him, since he makes all decisions alone.
The procedure in which it is necessary to act in order to convene a meeting is prescribed in the provisions of Art. 36 of the LLC Law. The main actions are:
IMPORTANT! The charter of the company may provide for other, shorter terms for notifying the founders (clause 4, article 36 of the law on LLC).
Requirements for issuing and sending a notification:
You can download a sample notice of an upcoming meeting here: .
You can download a sample notification of a change in the agenda of an upcoming meeting here: Notification of a change in the agenda of a meeting of participants in an LLC - sample.
The requirements for the minutes of the general meeting of participants in an LLC are established by Art. 181.2 of the Civil Code of the Russian Federation. In accordance with its provisions, this corporate document must indicate:
A sample protocol of a meeting of participants in an LLC contains several parts:
According to the provisions of paragraph 6 of Art. 37 of the Law on LLC, the executive body of the company must organize the keeping of minutes during the meeting. Minutes of all meetings are filed in a book.
Members of the company also have the opportunity to demand an extract from the protocol, which is prepared by the executive body.
According to the established rules of office work, documents that are issued by the company's management bodies are registered in order to simplify their identification. For this purpose, the minutes of the general meeting of participants in the LLC are numbered.
NOTE! The legislation does not contain requirements for mandatory numbering of protocols.
Since the date of the meeting and its index (number) are the main identifying features of any document, it is advisable to put them on the minutes as well.
The LLC Law does not contain requirements regarding the form of drawing up and the procedure in which minutes are drawn up, and also does not determine who signs the minutes of the general meeting of participants in an LLC.
The general rules, in accordance with which the protocols are certified, are established by paragraph 3 of Art. 181.2 of the Civil Code of the Russian Federation. In accordance with the provisions of this article, the minutes of the general meeting of participants in an LLC are certified by the chairman and the secretary who kept it throughout the meeting.
If the minutes are drawn up in violation of the requirements stipulated by law, and at the same time one of the participants does not agree with its content, there is a risk that the decisions taken at the meeting will be invalidated (subclause 4, clause 1, article 181 of the Civil Code of the Russian Federation).
Law No. 99-FZ of May 5, 2014 amended the Civil Code of the Russian Federation, which affected the procedure for certifying decisions of owners from September 1, 2014. Starting from this moment, in accordance with paragraph 3 of Art. 67.1 of the Civil Code of the Russian Federation, the composition of the founders present and the fact of the decision itself is certified by a notary, for which the protocol of the general meeting of participants in the LLC is certified.
NOTE! The provisions of paragraph 3 of Art. 67.1 of the Civil Code of the Russian Federation allow you to do without notarization if other methods of certification are enshrined in the charter.
For example, the bylaws may provide the following ways credentials:
If the charter does not contain such provisions, the founders may consider the issue of non-notarial certification of the minutes directly at the meeting (decree of the AS of the Central Organ dated February 5, 2016 in case No. A36-3633 / 2015). Conditions for the legitimacy of such a decision:
Thus, if the decision of the general meeting of LLC participants, the sample of which we have presented, is drawn up incorrectly or not certified, as prescribed by law, this may cause certain problems for the founders and become the basis for its cancellation. The consequences resulting from defects in the protocol may be refusals of the registration authority and lengthy litigation. This is especially acute in the presence of corporate conflicts.
