- 3.1. The share pledge agreement concluded before July 1, 2009 in simple written form remains in force
- 3.2. If it is impossible to determine the date of pledge of the share and applying to the tax office after 07/01/09, such a transaction requires notarization
- 3.3. An additional agreement to the share pledge agreement concluded before July 1, 2009 does not require a notarized form, regardless of the date of the agreement
- 3.4. The power of attorney issued in a simple written form for making a pledge of a share ceased from 1.07.2009
- 3.5. Information on the pledge of a share that arose before July 1, 2009 may be included in the Unified State Register of Legal Entities at the request of the pledgor submitted by him or by a notary
- 4.1. The alienation of the pledged share without the consent of the pledgee does not entail the invalidity of the transaction
- 4.2. Extrajudicial foreclosure of the pledged share until March 7, 2012 was allowed according to the general rules of the Civil Code of the Russian Federation on the recovery of pledged property
- 4.3. Until 03/07/2012, the share pledge agreement could not contain a clause on extrajudicial foreclosure if the pledgee was not a member of the company
- 4.4. It is not allowed to levy execution on the pledged share, which was acquired for compensation by a bona fide purchaser from the pledgor
- 4.5. The imposition of an arrest by a bailiff on a share that is pledged does not violate the rights of the debtor
Encyclopedia of Judicial Practice
Pledge of shares in authorized capital societies
(Article 22 of the Federal Law "On Limited Liability Companies")
1. Essence, grounds and registration of a pledge of a share in the authorized capital
1.1. Pledge of a share is not its alienation
The courts rightly took into account the plaintiff's argument that the legal pledge rule does not conflict with the pledge provisions of the Limited Liability Companies Law. Foreclosure on a share in the authorized capital of a company is possible on the basis of paragraph 5 of Art. 488 Civil Code Russian Federation in case of non-payment of the share sold on credit.
Clause 5 of the loan agreement with collateral stipulates that the valuation of the subject of collateral - 100% of the share in the authorized capital was to be determined in accordance with the appraiser's report. However, it follows from this report that the subject of the assessment was not a 100% share in the authorized capital of the company, but the market value of the ownership right of this legal entity to the property he owns.
Since the share in the authorized capital in the amount of 100% was not the subject of this assessment, the courts of the first and appellate instances came to a reasonable conclusion that the parties did not assess the subject of the pledge and concluded that the pledge agreement was not concluded.
1.4. A pledge of a share arises by virtue of an agreement if the nature, size and term of the obligation to be secured are determined
The contract for the pledge of a share in the authorized capital is not concluded, since it does not specify the nature, amount and term of fulfillment of the obligation secured by the pledge.
As follows from the content of the agreements on the pledge of a share in the authorized capital of an LLC, the agreement on the subsequent pledge of a share in the authorized capital of an LLC, they do not specify the conditions on the nature, amount and term of fulfillment of the obligation secured by the pledge. In the absence of an agreement between the parties on the named terms of the pledge agreement, the shares in the authorized capital of the LLC cannot be considered concluded.
1.5. A company's decision to pledge a share is not required if the pledger is its sole participant
The arguments of the cassation appeal about the non-application by the courts of articles 22, the Federal Law "On Limited Liability Companies" about the absence of a decision of the sole participant of the company to approve the transaction were considered by the court of appeal and they were given a proper legal assessment. The Court of Appeal pointed out that the pledge agreement was concluded by the sole member of the company. The corresponding will of the defendant as the only participant in the company was properly expressed in the pledge agreement.
The arguments of the cassation appeal about the invalidity of the contract subject to the provisions of Art. 22 of the Law "On Limited Liability Companies" and Art. 349 of the Civil Code of the Russian Federation were also the subject of an assessment by the court of first instance, which came to the correct conclusion that, according to the documents submitted, the person was the sole participant in the LLC, in connection with which he had the right to make a decision on the pledge of his share owned by him alone, while his actions in view of the absence of other participants in the company did not affect anyone's rights to the invariance and certainty of the composition of the participants in the company.
1.6. Pledge of a share owned by a minor participant in a company is allowed with the consent of the guardianship and guardianship authority
Members of the society are minors. From the concepts given in paragraph 2 of Article 37 of the Civil Code of the Russian Federation, it is not seen that the conclusion of pledge agreements on property owned by a limited liability company on the basis of ownership requires the consent of the guardianship and guardianship authority, since the wards are participants in such a company. The rule established in paragraph 2 of Article 37 of the Civil Code of the Russian Federation may be applied to legal relations arising in accordance with Article 22 of the Federal Law "On Limited Liability Companies" in connection with the pledge of a share of a member of the company.
1.7. The pledge agreement is subject to the rules on major transactions
In dismissing the claim for recognition of the pledge agreement as invalid, the court erroneously proceeded from the fact that this transaction is not regulated by Article 46 of the Federal Law "On Limited Liability Companies", since it is of a security nature.
Attention
The consent of the company by decision of the general meeting of participants in the company for the pledge of the share was not received.
Consequently, the disputed contract regarding the pledge was rightfully recognized by the courts as invalid as contrary to the requirements of Article 22 of the Law on Limited Liability Companies.
Since the materials of the case do not confirm the consent of the LLC participants, drawn up in the minutes of the general meeting of participants, to transfer the share as collateral, the court, in accordance with the law, declared the pledge agreement invalid.
The court came to the correct conclusion that the pledge agreement for a share in the authorized capital of an LLC is invalid, since, in violation of Art. 22 of the Federal Law of the Russian Federation "On Limited Liability Companies", memorandum of association LLC, the Charter of the LLC, the participant did not receive the consent of another participant in the company - to pledge his share to a third party.
Note
According to the current version of Art. 168 of the Civil Code of the Russian Federation (as amended by the Federal Law of 07.05.2013 N 100-FZ), a transaction that violates the requirements of a law or other legal act and at the same time infringes on the rights and public interests of third parties is recognized as void, unless it follows from the law that such the deal is voidable
2.2. The pledge of a share without the consent of other members of the company is voidable
A transaction to pledge a share of a member of a limited liability company without notice and consent of the other members is voidable and not void.
2.3. The pledge of a share is void if its commission is prohibited by the charter
The charter of a company is not law or legal act therefore, transactions made in violation of the provisions of the charter cannot be declared invalid on the basis of Article 168 of the Civil Code of the Russian Federation.
Since the charter is not a law or a legal act, transactions made in violation of the provisions of the charter cannot be recognized as void on the basis of Article 168 of the Civil Code of the Russian Federation. These transactions are classified as voidable.
Contrary to the argument of the complainant, the court came to the correct conclusion that the inconsistency of the share pledge agreement with the provisions of the Charter of the LLC is not a basis for the invalidity (insignificance) of the agreement.
2.5. Failure to bring the charter of the company in line with the new legislation does not prevent the pledge of a share by a participant
Failure to bring the company's charter in line with the new legislation may not serve as grounds for invalidating the company's transactions, for refusing credit institutions to open bank accounts for such a company or for conducting transactions with them, or for refusal of registering authorities to state registration rights to real estate and transactions with it, refusal of notaries to notarize transactions with shares or parts of shares in the authorized capital of the company (hereinafter referred to as shares), refusal of registering authorities to make changes to information about the company contained in the Register, not related to a change in the charter companies (including those related to the transfer of shares), or in the state registration of legal entities created by reorganizing the company, or in making an entry on the liquidation of the company, etc.
Regardless of bringing the company's charter in line with the new legislation, its participants have the right to alienate their shares in the company's authorized capital, pledge them, etc.
3. Pledge of a share until 07/01/2009
3.1. The share pledge agreement concluded before July 1, 2009 in simple written form remains in force
In connection with the introduction from 01.07.2009 of a mandatory notarial form of a share pledge agreement (paragraph 2 of Article 22 of the Law on Limited Liability Companies as amended by Law N 312-FZ), courts should take into account that share pledge agreements concluded before this date in simple written form shall remain in force after this date.
On the date of signing by the parties of the share pledge agreement, the transaction was not required to be notarized. Corresponding amendments to the Federal Law "On Limited Liability Companies", providing for mandatory notarial certification of such transactions, came into force only from 01.07.2009.
When making the contested decision, the tax authority did not know the date of conclusion of the pledge agreement.
On the date of signing by the parties of the share pledge agreement, the transaction was not required to be notarized. The relevant amendments to the Federal Law "On Limited Liability Companies", providing for mandatory notarial certification of such transactions, came into force only from 01.07.2009.
Thus, failure to re-register the pledge agreement by the parties could not entail its invalidity. Decor additional agreements to the said contract in the same form as the main obligation does not testify to their illegality.
3.4. The power of attorney issued in a simple written form for making a pledge of a share ceased from 1.07.2009
The sale of the pledged property (property right) without the consent of the pledgee does not entail the invalidity of the concluded transaction. By virtue of the Civil Code of the Russian Federation, the transfer of ownership of property as a result of a transaction made with it does not terminate the right of pledge.
Thus, the completed transactions for the sale and purchase of a share in the authorized capital of an LLC do not violate the rights of the pledgee. The legislation provides for other consequences of a transaction in violation of the rules established by law for the alienation of pledged property. By virtue of the Civil Code of the Russian Federation, the pledgee has the right to demand early performance of the obligation secured by the pledge, and if his demand is not satisfied, to foreclose on the subject of pledge.
The seller of the share-mortgagor undertook not to assign the subject of pledge (share) without the prior written consent of the pledgee. At the same time, proceeding from the Civil Code of the Russian Federation, in case of violation of such a requirement, the pledgee has the right to demand early performance of the obligation secured by the pledge and levying execution on the pledged property. The contract has not been challenged in court and has not been declared invalid. Thus, the restrictions associated with the disposal of the subject of pledge do not affect the transfer of the rights and obligations of the participant to the buyer of the share.
4.2. Out-of-court foreclosure on the pledged share until 03/07/2012 was allowed according to the general rules of the Civil Code of the Russian Federation on the recovery of pledged property
The condition on extrajudicial foreclosure of pledged property also cannot be contained in a pledge agreement for a share (part of a share) in the authorized capital of a limited liability company, concluded by one of the participants in the company - an individual (including an individual entrepreneur) with a pledgee who is not a participant company, since such a pledge is possible only with the consent of the general meeting of participants in the company (clause 1 of Article 22 of the Federal Law "On Limited Liability Companies").
Attention
These clarifications were adopted prior to the entry into force of Article 5 of Federal Law No. 405-FZ of 06.12.2011, which allows determining an out-of-court procedure for levying execution on a participant’s share in the authorized capital of a company in a pledge agreement
4.4. It is not allowed to levy execution on the pledged share, which was acquired for compensation by a bona fide purchaser from the pledgor
The courts justifiably rejected the plaintiff's arguments to invalidate the share purchase and sale agreement with reference to the buyer's bona fide acquisition of the share and the impossibility of applying in this case the legal mechanism established by paragraphs 1 and 2 of Article 167 of the Civil Code of the Russian Federation to protect the rights of a person.
The absence in the Unified State Register of Legal Entities of an entry on the encumbrance of the share by the seller’s pledge when selling the share on credit (lack of publicity) does not mean the absence of collateral, but the seller’s requirement to foreclose on the share can be neutralized by the objection that the acquirer of the share did not know and should not have known about the existing pledge.
Note
According to the current wording of sub. 2 p. 1 art. 352, paragraph 1 of Art. 353 of the Civil Code of the Russian Federation, the pledge is terminated if the pledged property is acquired for a fee by a person who did not know and should not have known that this property was the subject of pledge.
4.5. The imposition of an arrest by a bailiff on a share that is pledged does not violate the rights of the debtor
Allowing the stated requirements, the court of first instance, correctly applying the provisions of the Federal Law "On Enforcement Proceedings", evaluating in accordance with the requirements of Article. 84 of the CAS RF, the evidence collected in the case, based on the fact that the seizure of a pledged share in the authorized capital of an LLC, carried out as part of a consolidated enforcement proceeding, one of the recoverers of which is an administrative plaintiff, does not violate the rights of the debtor [pledger].
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A pledge of a share in an LLC is a measure to ensure the fulfillment of obligations of a civil law nature. For example, a company takes a loan from a bank, which, in turn, in addition to a pledge of property and a personal guarantee, requires the debt of the share of the owner of such an LLC to be issued. In the article, we will consider how to draw up a pledge agreement for a share in an LLC.
What is a pledge
A pledge is a means of securing the performance of an obligation. Initially, the obligation itself arises (for example, payment of a certain amount of money). In this case, the pledgor can be both the main debtor under this obligation, and any third party.
In order for an LLC to be able to transfer a share as a pledge, the charter of this company should not contain a prohibition on transferring a share as a pledge to a third party. Even if there is only one member in the society.
The decision to transfer the share as a pledge is made by the decision of the founders on the basis of more votes, except for the vote of the founder who plans to pledge his share. His vote should not count. If there is only one participant in the society, then he makes his own decision.
Pledge agreement for a share in an LLC
Having drawn up a share pledge agreement, it without fail must be certified by a notary. After that, the information under the contract is entered into the Unified State Register of Legal Entities.
Important! An independent assessment of the share in an LLC is not required to conclude an agreement. The assessment of the share of the parties to the agreement is carried out independently, taking into account its actual value.
If the debtor fails to fulfill its obligations, the creditor may foreclose on the pledge. At the same time, the creditor must be confident that the share and LLC will be as liquid as when registering the share as collateral. Accordingly, there are some limitations:
The rights of an LLC participant can be exercised by both the pledgor and the pledgee.
Since, when a share of an LLC is pledged, the corporate rights of the participant are transferred to the pledgee, the creditor himself takes part in the meetings of participants in the LLC instead of him. At the same time, he has the right to vote when making certain decisions, or to take them alone if there is only one participant in the LLC. Decisions to be made by the mortgagee include the following:
- by increase authorized capital but at the expense of the contribution of a new participant, since in this case the share of LLC participants will be significantly diluted;
- on the approval of large transactions on the reduction of net assets, the alienation of real estate, which may ultimately lead to bankruptcy;
- to change the director of the LLC to a person not controlled by the participant;
- on reorganization or separation of the company to a third party.
Important! To avoid such situations, the pledge agreement for a share in an LLC must contain the following information: "the corporate rights of a member of the Company continue to be exercised by the pledgor."
When the rights of a member of the Company are exercised by a pledgee, the duty of the director is to notify the pledgee of meetings of participants, namely, the place and time of their holding, as well as the agenda. The minutes of the meeting are also signed by the pledge holder together with other participants of the LLC.
If the Company fails to notify the pledgee of the meeting at which any decision will be made without his consent, the pledger has the right to challenge it in court.
It is important not to miss such a moment, since the inept use of collateral can lead to a loss of control over the business. All the rights of the pledgor and the pledgee are important to be prescribed in the contract.
The pledgor does not have the right to alienate the pledge without the consent of the pledgee, provided that this is not provided for in the agreement or the law.
All information about the pledge is reflected in the Unified State Register of Legal Entities, respectively, on its own, a member of the company is not entitled to sell, donate or exchange a share and leave the LLC without the consent of the pledgee. Such a transaction as a pledge of a share is subject to notarization, in which the notary examines the contract and requires the written consent of the pledgee.
The pledge of a share in an LLC is retained in the event of the transfer of a share to another person, including the transfer to an assignee.
Termination of pledge
To redeem the collateral in in full bail is not enough. It is important to extinguish the entry in the Unified State Register of Legal Entities about the encumbrance of the share. This can be done either on the basis of an application from the pledgee (form No. P14001), or by a court decision. The application is signed by the pledgee, whose signature is certified by a notary. Therefore, without a pledgee, it will not be possible to exclude information from the Unified State Register of Legal Entities.
The term for filing such an application is not limited by law. But you can prescribe it in the pledge agreement. If the pledgee is in no hurry to submit such an application or refuses to submit it at all, the pledgor may apply to the court to force the submission of an application for repayment of the obligation.
Foreclosure on a pledged share in an LLC
If the debtor fails to fulfill the obligation secured by the pledge, the pledgee shall levy the pledged share. This can be done by a court order. The pledge agreement may also contain the procedure for extrajudicial collection, but in practice this procedure is quite complicated, as it involves the passage of many administrative procedures. Therefore, it is better to apply the penalty in court.
The appeal of the pledgee to the court with the recovery of the pledged share does not guarantee the transfer of this share to his property. For example, if there is more than one participant in an LLC, then the remaining participants can pay the pledgee the cost of a share, or part of it, based on the amount of the debt. The payment must be made within 3 months after the application for the recovery of the share.
What else to provide in the share pledge agreement
It is important to provide for a mechanism for the sale of the share in the pledge in the agreement on the pledge of the share of the LLC. You can do this in the following ways:
- Upon receipt of a share in the property of the pledgee at the price stipulated by the agreement;
- When collateral is sold to another person at or above the market price, while withholding from the proceeds the debt secured by the sold collateral.
Important! The listed methods of realizing a share are possible only if the pledger is a legal entity or an entrepreneur.
When it is not possible to collect a share
It is impossible to foreclose on the share of an LLC if two conditions are met:
- The delay period is less than 3 months;
- The pledgee's claims are disproportionate to the value of the share in the pledge. Such a condition is appropriate if the amount of the unfulfilled obligation at a cost of less than 5% of market value shares.
For example, the pledgee applied for the recovery of a share, the value of which is over 3 million rubles. The outstanding debt in this case is equal to 200 thousand rubles. In this case, the pledgee may be refused to foreclose on the share, since the amount of the debt is clearly incommensurate with the value of the pledge.
Thus, a share pledge agreement is a guarantee of securing the borrower's debt. However, when deciding to conclude such an agreement, it is important to take into account some of the nuances for the successful repayment of the debt, as well as the normal termination of the pledge.
CONTRACT
on the pledge of a share (or part of a share) in the authorized capital of a company
limited liability to a third party
(Article 22 of the Federal Law "On Limited Companies"
responsibility")
G. __________ "___" _________ ____
Member of the Limited Liability Company "___________________" (hereinafter referred to as LLC) ____________________________________________________________, (last name, first name, patronymic, passport or full name, represented by (full name, position))
Hereinafter referred to as the "Pledger", on the one hand, and __________________________________________________________________________, (last name, first name, patronymic, passport or full name, represented by (full name, position))
Hereinafter referred to as the "Pledgee", have concluded this agreement on the following:
1. THE SUBJECT OF THE AGREEMENT
1.1. The Pledgor (aka the debtor) transfers as a pledge to the Pledgee a share of the charter capital of the LLC, amounting to ____________ (fraction or percentage) of the charter capital, with a nominal value of __________ (___________) rubles, and the Pledgee has the right in case of failure by the Pledgor to fulfill the obligation specified in clause 1.3 of this agreement receive satisfaction from the value of the pledged share, predominantly over other creditors of the Pledgor.
1.2. The pledged share is estimated at ____________ (_______________) rubles.
1.3. Collateralized obligation:
creature - ________________________________________________________,
the size - __________________________________________________________,
period of execution - _________________________________________________.
1.4. The pledge secures the claim to the extent that it has at the time of satisfaction, in particular, interest, penalty, compensation for damages caused by delay in performance, as well as compensation necessary expenses Pledgee for recovery.
1.5. The right of pledge arises from the moment of conclusion of this agreement.
1.6. Subsequent deposits are not allowed.
1.7. Replacement of the subject of pledge (not) is allowed with the consent of the Pledgee.
1.8. If the LLC makes any payments or issuance of property, granting property rights to the Pledgor, if such payments are due to the rights of the Pledgor as the owner of the share pledged, everything received by the Pledgor becomes the subject of pledge, of which the Pledgor is obliged to immediately notify the Pledgee.
1.9. Upon receipt of monetary amounts from the LLC, the Pledgor is obliged, at the request of the Pledgee, to transfer the appropriate amounts towards the fulfillment of the obligation secured by the pledge.
1.10. Foreclosure on the pledged share is drawn on the grounds provided for in Art. 348 of the Civil Code of the Russian Federation.
1.11. Foreclosure on the pledged share is drawn in the manner provided for in Art. 349 of the Civil Code of the Russian Federation.
1.12. Early fulfillment of an obligation secured by a pledge and foreclosure of the pledged share are made in the manner provided for in Art. 351 of the Civil Code of the Russian Federation.
1.13. The pledge is terminated on the grounds provided for in Art. 352 of the Civil Code of the Russian Federation.
1.14. Information about LLC: Limited Liability Company "_____________________", OGRN: ____________________, TIN ______________, KPP ______________________, address: ___________________________________________________________________, the amount of the authorized capital is: _______ (__________________) rubles.
1.15. The pledger guarantees:
pledged share has been paid in full,
the pledge of a share is not prohibited by the charter of the LLC,
there is an agreement of the general meeting of participants of the LLC on the pledge of a share (or part of a share),
the share or its individual parts are not pledged, are not under arrest, are not the subject of legal proceedings or claims of other persons.
2. OBLIGATIONS AND RIGHTS OF THE PARTIES
2.1. The pledger is obliged:
1) to insure at its own expense the pledged share in its full value against the risks of loss and diminution, and if the total value of the share exceeds the amount of the claim secured by the pledge, for an amount not less than the amount of the claim;
2) immediately notify the Pledgee about the threat of loss or reduction of the pledged share;
3) not to make assignments of the pledged share;
4) take measures necessary to protect the pledged share from encroachment by third parties;
5) notify the Pledgee of information about changes that have occurred in the pledged share, about the claims of third parties to this share;
6) perform actions related to the pledge within the period agreed with the Pledgee;
7) provide the Pledgee with all documents confirming compliance with the procedure for pledging a share to a third party.
2.2. The pledgor has the right to exercise all the rights of a participant in an LLC.
2.3. The pledgee has the right:
1) to intervene as a third party in a case in which a claim for a pledged share is being considered;
2) in case of failure by the pledgor to fulfill the obligations stipulated by clause 2.1, independently take measures necessary to protect the pledged share from violations by third parties.
2.4. The costs of notarization of this agreement shall be borne by the Pledgor (or the Pledgee).
2.5. The pledgee undertakes to return the share from the pledge by ________________.
3. RESPONSIBILITIES OF THE PARTIES
3.1. For non-fulfillment or improper fulfillment by the parties of their obligations under this agreement, the parties are liable in accordance with the current legislation of the Russian Federation.
3.2. In case of violation of clause 2.1 of this agreement, the Pledgor pays the Pledgee a penalty in the amount of ___% (_________) of the price of the share (part of the share) for each day of delay in execution.
3.3. In case of violation of clause 1.15 of this agreement, the Pledgor pays the Pledgee a penalty in the amount of ___% (_________) of the price of the share (part of the share). The pledgee acquires the right to terminate the contract.
3.4. In case of delay in the execution of clause 2.5, the Pledgor shall pay to the Pledgor a penalty in the amount of _____% (______) of the price of the share (part of the share) for each day of delay, but not more than ___%.
4. OTHER TERMS
4.1. This agreement is made in four copies, one for the Pledgor, the Pledgee, the notary and the LLC.
4.2. This agreement is considered concluded from the moment of its notarization.
5. DETAILS AND SIGNATURES OF THE PARTIES
Pledgor: ____________________________________________________________, (last name, first name, patronymic, passport or full name, PSRN, TIN and address)
Pawnee: _________________________________________________________. (last name, first name, patronymic, passport or full name, PSRN, TIN and address)
Pledgor: Pledgee: _______________________ _______________________ (signature) (signature)
(M.P.) (M.P.)
"___" ___________ ____ "___" ___________ ____
Certifying notary's inscription
Pledge of shares and shares in business companies in our arsenal, as a rule, is used as one of the elements for “packaging” relations with partners, fixing agreements when attracting third-party financing, including banking, along with a corporate agreement, an option to sell shares in LLC and others. In its civil law essence, this is a measure to ensure the fulfillment of obligations. At the same time, the peculiarities of the subject of collateral in the form of shares and shares, as practice shows, can lead to the loss of possessory control over the entire business, which, of course, we cannot keep silent about.
The main difference between a pledge of shares and a pledge of shares in a CC is as follows:
- when shares are pledged, all shareholder rights are retained by the pledger (unless otherwise specified),
- when pledging shares - all the rights by default belong to the pledgee (unless otherwise otherwise provided by the agreement).
Thus, the pledge of a 100% stake in an LLC to the Supplier as a pledge almost resulted in the participant's almost complete loss of control over the company and a significant decrease in his property rights (See case A36-5304/2016). Having become the pledge holder of the share, the Supplier decided to increase the charter capital of the LLC, referring to the fact that, in accordance with the agreement, until the moment the pledge is terminated, the rights of the company participant are exercised by the pledge holder, with the exception of the rights of the company participant to form the company’s executive bodies, terminate their powers ahead of schedule, and also establish remuneration and monetary compensation executive bodies, which are carried out by the pledgor. On this basis, the Supplier certified by a notary the decision to accept a third party into the Company individual with a contribution of 140,000 rubles, which, with a nominal share capital of 10,000 rubles, provided this person with a share of 93.33%. Accordingly, the owner of the company has only 6.67% left. That is, in fact, the size of the owner's share has decreased by more than 10 times!
The subject of the pledge under the pledge agreement was valued by the parties in the amount of RUB 45,000,000. An independent appraiser estimated the value of the share at 101,415,000 rubles. Thus, the contribution of a third party to the authorized capital of the LLC in the amount of 140,000 rubles is obviously disproportionate to the decrease in the actual value of the share of the current member of the company. That is exactly what the court decided and declared the decision of the Supplier-Pledgee invalid.
The supplier still has a chance to challenge the decision of the court of first instance, but the dishonesty of his behavior is obvious. At the same time, we note that the owner of the company in this situation nevertheless tried to legally ensure the owner's control over the Company, leaving the decision to change CEO, whose position he holds, for himself. While there is a good chance that while litigation is ongoing, the CEO's term will expire. After that, the issue of appointing the sole executive body will already be decided by a simple majority of votes, which the current participant does not have. But you never know what deals a “new” participant in such a situation can conclude. But history is silent on this.
Another no less striking example of the lack of due attention to the terms of the share pledge agreement is case No. А40-216102/15. Here the Bank, having taken as a pledge 51% in the authorized capital of the Company to secure the issued bank guarantee, received actual corporate control over the company and brought it to bankruptcy (how exactly the court kept silent, but stated the fact). In our opinion, legally the Bank's actions are quite legal. The Civil Code of the Russian Federation directly establishes the existence of corporate rights for the pledgee of the share. This is an extraordinary way to secure an obligation. However, in this situation, the owner of the company was "rescued" by the fact that the court considered that the Bank's rights before the moment of registration of the pledge of the share had already been guaranteed by another interim measure in full and the plaintiff was misled as to whether it was necessary to pledge the share and the terms of such an agreement .
These two examples clearly demonstrate that such "subtle matters" as pledges of shares and shares should be approached very carefully. If misused, you can actually lose control of the business or get several years of litigation, even if their success is obvious. It is necessary to specify in more detail all the rights of the parties regarding the exercise of the rights of a participant / shareholder of the company when concluding a pledge agreement.
Pledge of shares (shares) in LLC and JSC is a measure to ensure the fulfillment of civil obligations. For example, a lending bank, as a security measure, in addition to a pledge of property and a personal guarantee, may ask for a pledge of shares (shares) of the owners in the main company. At the same time, the pledge has another important function - when structuring a business, the pledge of shares in a limited liability company (shares in joint stock company) is one of the elements for the legal "packaging" of relations with partners, fixing agreements when attracting third-party non-bank financing.
Like any other instrument, the pledge of shares and shares has its own characteristics, strengths and weak sides which we have to figure out.
A bit of theory. How bail works.
The pledge is typical remedy securing the fulfillment of the obligation. Therefore, initially there must be an obligation to pay a certain amount Money, transfer property, etc. In this case, not only the borrower, but also a third party who is not a debtor under the main obligation (clause 1, article 335 of the Civil Code of the Russian Federation) can be a pledgor.To register a pledge of a share in LLC Charter of the company should not contain a provision prohibiting the transfer of shares as collateral to a third party(Clause 1, Article 22 of the Federal Law "On LLC"). This requirement must also be observed when pledging a share in a Company with a single participant.
The decision on consent to the transfer by a member of the Company of its share as a pledge to a third party is taken by law by a majority of votes of all members of the company. At the same time, the vote of a participant intending to pledge his share as a pledge is not taken into account when voting. In a company with one participant, the decision to approve the pledge of a share is made by him.
The agreement on the pledge of a share in a company is subject to mandatory notarization, after which information about it is entered into the Unified State Register of Legal Entities. There you can see the pledgee, the basis (date of the main agreement), the date of entering information about the pledge.
In AO the transfer of shares as a pledge to a third party is carried out without the consent of the other shareholders and the Company itself. Information about the encumbrance of shares by a pledge is entered in the register of shareholders and reflected by the registrar on the personal account of the pledger on the basis of a pledge order signed by the pledger and the pledgee. 1 At the same time, the registrar opens a personal account for the pledgee in the registry. The entry on the encumbrance of shares with a pledge contains the following data: information about the pledgee, all data contained in the pledge order, including the details of the pledge agreement, the conditions of the pledge (established restrictions, the procedure for disposing of shares, etc.).
Information about the pledge of shares is not reflected in the Unified State Register of Legal Entities and, accordingly, is not visible to third parties.
Important! To conclude a pledge agreement independent evaluation shares/shares in the Company do not need to be held. The parties may evaluate them at their own discretion. But in any case, it should not be lower than the actual value of the share / shares, since they are foreclosed at this value at the time of foreclosure.
If the debtor fails to perform the obligation, the creditor has the right to foreclose on the pledge. However, before that, he wants to be sure that this share / shares, as well as the company itself, will remain as liquid and financially sound as he expected when taking the share as collateral.
To this end, the law provides for a number of restrictions for the pledger:
Firstly, the rights of a member/shareholder of a company may be exercised by a pledgor or pledgee.
When pledging shares in an LLC, general rule, the corporate rights of the participant are transferred to the pledgee. This means that the creditor, instead of the pledger, takes part in the general meetings of the company's participants. Thus, the pledgee may vote for the adoption of a decision or make decisions on his own, if there is one participant in the company:
about increasing the authorized capital at the expense of the contribution of a third party, as a result of which the share of a company member may be significantly diluted;
on the approval of major transactions aimed at reducing the company's net assets, alienating real estate, shares in subsidiaries and other things that can lead the company to bankruptcy:
a decision to change the director of the Company to another third party not controlled by the participant;
decisions on reorganization, including spin-off of a company with assets to a third party.
In order to avoid this, the contract of pledge of a share in an LLC should stipulate that the corporate rights of a member of the Company continue to be exercised by the pledger.
Unlike an LLC, when shares are pledged in a JSC, the rights of a shareholder under the law continue to be exercised by the pledger, that is, the shareholder. Unless, of course, a different state of affairs is fixed in the contract (clause 2 of article 358.15 of the Civil Code of the Russian Federation).
If the pledgee exercises the rights of a participant/shareholder of the Company, then the Director of the Company has an obligation to notify the pledgee of holding a general meeting of participants/shareholders in accordance with the procedure set forth in the Charter, in particular, about the place and time of the general meeting and the agenda. The protocol is signed by the pledgee along with other participants/shareholders.
If the members of the Company fail to notify the pledgee exercising the rights of a member/shareholder of the Company of the ongoing general meeting and make a decision without it, the pledgee will be able to challenge the decision in court. 2
There are cases when negligent attitude to the standard provisions of the law almost turned into an almost complete loss of control over the company.
So, for example, in one of the cases, 3 as soon as the supplier became the pledgee of a 100% share in the Company, he decided to increase the authorized capital of the LLC at the expense of a third party's contribution in the amount of 140,000 rubles. With a nominal amount of the authorized capital of 10,000 rubles, such a contribution provided a third party with a 93.33% share and actually reduced the owner's share by 10 times - to 6.67%! Certifying the decision made by a notary, the supplier referred to the fact that under the agreement, until the termination of the pledge, the rights of the company's participant are exercised by the pledgee, with the exception of the right to elect the executive bodies of the company, early termination of their powers and establish the amount of their remuneration, which remain with the pledger.
The court took the side of the participant-mortgagor, recognizing the decision of the supplier-mortgagee as invalid. The reason for making such a decision was that the subject of pledge under the pledge agreement was valued by the parties in the amount of 45,000,000 rubles, and by an independent appraiser at 101,415,000 rubles. Under such conditions, the contribution of a third party to the authorized capital of the LLC in the amount of 140,000 rubles was obviously disproportionate to the decrease in the actual value of the share of the current member of the company.
Another striking example 4: a bank, having taken a 51% stake in the authorized capital of an LLC as security for the issued bank guarantee, received actual corporate control over the company and brought it to bankruptcy (how exactly the court kept silent, but stated the fact). In our opinion, legally the Bank's actions are quite legal. The Civil Code of the Russian Federation, by default, directly establishes the existence of corporate rights for the pledgee of the share. However, in this situation, the owner of the company was “rescued” by the fact that the court considered that the Bank’s rights before the pledge of the share had already been guaranteed by another interim measure in full and the plaintiff was misled about the need to pledge the share.
These two examples clearly demonstrate that misuse of share collateral can effectively result in loss of control of the business or several years of litigation. Therefore, it is important to specify in more detail all the rights of the parties regarding the exercise of the rights of an LLC participant when concluding a pledge agreement.
Secondly, according to the law, the pledgor is not entitled to alienate the subject of pledge without the consent of the pledgee, unless otherwise provided by law or the agreement (clause 2, article 346 of the Civil Code of the Russian Federation).
Regardless of the fixing of such a provision in the agreement on the pledge of a share in an LLC, a member of the company will not be able to sell, donate, exchange a share, issue in respect of a share for its sale and exit the Company without the consent of the pledgee, given that information about the pledge of a share is reflected in the Unified State Register of Legal Entities. When notarizing a transaction with a share, the notary will unambiguously require the provision of a contract for its pledge to him, and after studying the contract, the written consent of the pledgee.
When shares are pledged, all the pledger's restrictions on shares are specified in the pledge order, on the basis of which the registrar makes entries on the terms of the pledge on the personal accounts of the pledgee and the shareholder. Thus, the registrar will also not conduct transactions for the alienation of pledged shares without the consent of the pledgee.
Thirdly, a pledge of a share / shares in a company is retained when a share is transferred to another person, including in the order of universal succession (to an heir, successor of a legal entity) (clause 1 of article 353 of the Civil Code of the Russian Federation).
Thus, if the pledged share/shares in the company are transferred to the heirs of the deceased participant/shareholder, the pledgee is not deprived of the opportunity to foreclose on the subject of pledge, provided that the outstanding principal obligation is preserved.
Making the main decisions of the participants / shareholders of the company with the consent of the pledgee
In the share (shares) pledge agreement, it is possible to establish a list of issues within the competence of the general meeting, decisions on which must be preliminarily agreed with the pledgee. If only one of the participants/shareholders of the Company acts as a pledger, then only he/she must receive prior written consent to vote on the issue considered at the general meeting of participants/shareholders.
The decisions of the general meeting of participants / shareholders of the company, taken in agreement with the pledgee, include the following:
on the approval of major transactions, including loan agreements (credit agreements), guarantees, transactions for the alienation, pledge of real estate, shares in subsidiaries and other valuable property, regardless of the amount of transactions;
on the early removal of powers and the appointment of a new director;
on reorganization/liquidation of the company;
on increasing the charter capital, changing the charter of the Company.
Important! If a participant in an LLC votes at a meeting without obtaining the prior written consent of the pledgee in violation of the pledge agreement, then the latter has little chance of challenging the decision of the general meeting, taken without taking into account his opinion, including on the basis of abuse by the pledgor-participant of his corporate rights with reference to clause .1 article 10 of the Civil Code of the Russian Federation. 5 This is due to the fact that the law “On LLC” gives the right to appeal the decisions taken by the general meeting only to participants who did not take part in voting or voted against the contested decision, and such a decision violated their rights and legitimate interests (clause 3 of article 181.4 of the Civil Code of the Russian Federation , paragraph 1 of article 43 of the Federal Law "On LLC" and paragraph 7 of article 49 of the Federal Law "On JSC"). The courts in this case indicate that the violation of the pledge agreement gives the right to demand early performance of the obligation secured by the pledge, but not the recognition of the pledger's actions as invalid. We note that in this case, we mean the situation when the rights of the participant do not transfer to the pledgee.
The same situation may occur when a decision is made by the sole shareholder of a JSC, since its decisions are not certified by anyone, and in paragraph 7 of Art. 49 of the Federal Law "On JSC" establishes similar rules for challenging the decisions of shareholders. However, in a joint-stock company with several shareholders, the situation of making a decision at a general meeting of shareholders without obtaining the prior consent of the pledgee is impossible, since now the registrar, acting as a counting commission, monitors compliance with the procedure and will not certify the minutes without the pledgor providing him with the written consent of the pledgee. The same applies to an LLC, in which the participants did not change the notarial procedure for certifying decisions to a different version of certifying the minutes.
Termination of pledge and removal of encumbrance
The full repayment of the obligation secured by the pledge is not enough to remove the pledge (Article 352 of the Civil Code of the Russian Federation).
An entry in the Unified State Register of Legal Entities on the encumbrance of a share with a pledge is extinguished only on the basis of an application by the pledgee in the form No. P14001 or on the basis of a court decision that has entered into force. 6 An application in the form No. P14001 is signed by the pledgee, the authenticity of whose signature is certified by a notary public. In this way, information about the pledge of a share cannot be excluded from the Unified State Register of Legal Entities without the knowledge of the pledgee.
At the same time, the law does not establish a deadline for submitting such an application to the tax office after repayment of the main obligation. However, the parties may establish this period in the pledge agreement. In addition, the pledgor has the right to judicially compel the pledgee to submit an application after the full repayment of the principal obligation.
In the case of a joint-stock company, an entry in the register of shareholders on the redemption of the pledge of shares is carried out by the registrar on the basis of an order to terminate the pledge of shares signed by the pledgee or jointly by the pledger and the pledgee.
Enforcement of pledged shares / shares in the company
If the debtor fails to fulfill the obligation secured by the pledge, the pledgee has the right to foreclose on the pledged share (shares) (clause 1, article 348 of the Civil Code of the Russian Federation).
As a general rule, foreclosure on pledged property is carried out by a court decision. At the same time, it is possible to provide for an extrajudicial procedure for foreclosing a pledged share in the Company in a pledge agreement, but in practice it is associated with many administrative procedures, so the judicial procedure for foreclosure should be taken as a guideline.
Important! Foreclosure on the pledged share/shares in the Company does not guarantee the transfer of the share/shares to the pledgee to his ownership, because:
1) in an LLC with two or more members, the Company or other members unanimously decision may pay the pledgee the actual value of the share or part of the share in proportion to the amount of the debt within 3 months from the date of foreclosure on the share (clauses 2 and 3 of article 25 of the Federal Law "On LLC"). There are no similar rules in the JSC Law.
2) Enforcement of shares/shares is carried out by selling them at a (public) auction. To receive a share / shares, the pledgee needs to participate in the auction and win them.
In the share/share pledge agreement, one of the two mechanisms for the sale of the pledged share/shares can also be fixed - through:
receipt of a share in the company into the ownership of the pledgee at a price specified in the agreement, but not lower than the market price;
sale of the subject of pledge by the pledgee to another person at a price not lower than the market price with deduction from the proceeds of the proceeds of the amount of the debt secured by the pledge.
BUT! these methods are possible if the mortgagor is or individual entrepreneur (Article 350.1 of the Civil Code of the Russian Federation). In this case, a pledgee may also be a person who does not have the status of an individual entrepreneur.
We also note that if at the time of the transfer of the pledged share to the property of the pledgee, its actual value exceeds the amount of the unpaid debt, then the pledgee will have to pay the difference to the pledger (clause 2, article 350.1 of the Civil Code of the Russian Federation).
Moreover, it should be borne in mind that foreclosure on the share/shares cannot be levied if both conditions are met simultaneously(paragraphs 1 and 2, paragraph 2, article 348 of the Civil Code of the Russian Federation):
the period of delay is less than three months.
the amount of the pledgee's claims is clearly disproportionate to the value of the pledged interest/shares. This occurs when the amount of the unfulfilled obligation is less than 5% of the amount of the market value of the pledged share/shares 7 proven by the pledgor, i.e. the current actual value of the share (shares) determined on the basis of the organization’s balance sheet as of the last reporting date, or the market value, specified in the independent appraiser's report.
For example, if at the date of foreclosure on a share/shares their actual value is more than 2 million rubles, and the amount of the outstanding debt is only 100 thousand rubles, then most likely the pledgee will be refused to foreclose on the share/shares.
So, the pledge of a share / shares in companies is a reliable guarantee for the creditor (mortgagor) that his debt is securely secured. At the same time, the law gives scope for the settlement of the peculiarities of the relations of the parties, the specific distribution of powers in favor of the pledgor or pledgee. Violation of the balance of interests can become a prerequisite for abuse by one or another party, and therefore it is unlikely that it will be possible to manage with a simple statement “we will conclude an agreement on the pledge of a share / shares”.
1. Clause 6 of Order No. 12-52/pz-n of the Federal Financial Markets Service of Russia dated June 28, 2012 “On Approval of the Procedure for Recording Pledge of Equity Securities in the Register of Securities Owners and Making Changes to the Register Concerning the Transfer of Rights to Pledged Registered Equity Securities paper"
2. Resolution of the Arbitration Court of the North-Western District in case No. А56-22247/2016 of 04/05/2017
3. Resolution of the Nineteenth Arbitration Court of Appeal in case No. А36-5304/2016 dated March 31, 2017
4. Resolution of the Ninth Arbitration Court of Appeal No. А40-216102/15 dated October 26, 2016
5. decision of the Arbitration Court of St. Petersburg and Leningrad region, left unchanged by the decision of the Thirteenth Arbitration Court of Appeal in case No. A56-71 / 2010 dated 12/28/2010; Decision of the Arbitration Court of the Kirov Region in case No. dated January 22, 2016;
6. p. 3 art. 22 FZ "On LLC"; Letter dated 11.01.2016 No. GD-4-14/ [email protected] On some issues related to the application of Federal Laws No. 67-FZ of March 30, 2015, No. 209-FZ of June 29, 2015 and No. 391-FZ of December 29, 2015;
7. para. 3 p. 19 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 17, 2011 No. 10 “On some issues of application of legislation on pledge”; decision of the Eleventh AAC dated August 16, 2016 in case No. A55-1661 / 2016.
