Electronic procurement definition. Which purchase is considered to be carried out electronically? How to win an electronic quotation request

Large transactions include transactions whose value exceeds 25% of the value of all company assets. The charter allows for setting a different price threshold, changing or adding to the list of possible agreements.

The current legislation of the Russian Federation requires an official decision to approve a major LLC transaction. The procedure is usually carried out by a general meeting of all participants. If a supervisory board is organized, then such a function can be assigned to it by the charter (but only if the subject of the agreement is worth no more than half of the existing assets).

If the LLC was founded by one person, then all functions that fall within the competence of general meeting, are entrusted to him - in this situation, a sample decision of the sole founder to complete a major transaction is required. However, the only participant can independently resolve such issues only when he is not the sole executive body.

Sample decision on a major transaction

The law does not establish exact requirements for the form in which the sole founder must formalize consent to enter into expensive agreements. The decision to approve an interested party transaction and any major transaction is made in writing.

As a sample to fill out, you can use the template provided in the FreshDoc service, it includes the following information:

• date and place of document preparation;
• full information about the founder;
• name and details of the parties whose agreements are subject to approval, their statuses, basic conditions;
• confirmation of the authority of the person acting as the sole executive body to carry out all actions to implement the approved decision.

A sample decision on a major transaction is signed by the sole founder, and there is no need to put a stamp.

Duration of the decision to approve a major interested party transaction

Neither the Civil Code of the Russian Federation nor the Federal Law “On LLC” contains any indication of how long the decision actually made by the founder is. The opinion of the Plenum of the Supreme Arbitration Court is as follows: in the document confirming approval, you can include a condition on the period of its validity - in this case, only a transaction concluded during the specified period will be considered appropriately authorized. If there is no time frame, then the decision made will be considered valid for one year from the date of its adoption.

The issue regarding the approval of the agreement after its conclusion is still controversial. On the one hand, this is a failure to comply with the procedure for registering an interested party transaction, and on the other hand, subsequent approval of agreements is applied if the procedure is not mandatory and the transaction is carried out in a standard manner with conditions similar to previous agreements of this type.

Proper approval of a transaction is considered to be the order when all the conditions for concluding such a transaction are met, including the preparation of mandatory documentation and execution of related certificates and forms.

Affiliates

In , affiliated are organizations or citizens that are able to significantly influence the work of other individuals or companies engaged in business.

In other words, affiliation is directly related to . Included legal entity are considered affiliated:

• members of the board of directors and a single management body;
• organizations that are part of a group of persons in which the enterprise is included;
• citizens or societies that control over 20% of total votes LLC members.

In some situations, an approach is used according to which dependent persons of the subject of legal relations are considered to be persons who significantly influence the business.

By law, only legal entities or entrepreneurs have affiliates. In some cases, a citizen may have such persons if he, together with relatives, owns 20% of votes.

From judicial practice it follows that dependent persons may be persons who influence the price or other points of the transaction. The group of such citizens may include the leader and Chief Accountant. This is due to the fact that the chief accountant is checking a future transaction and can have a significant impact on the price of the agreement or the terms of its conclusion.

Example of interested party transactions

Company "Yu" was a partner of LLC "P", where O. Krotov was the head. The founder decided to cease being a member of the union.

A buyer was found and the purchase was finalized. Since the agreement was with interest, the entrepreneur received approval from the general meeting of “Yu”.

After a certain period, Krotova’s wife filed a lawsuit to protest the transaction, since she was the owner 20% authorized capital LLC "P", but Krotov did not receive its approval.

As a result, citizen Krotova’s claims were recognized as legitimate, and the woman was able to challenge the signing of the interested party agreement.

Conclusion

At the end of what has been written, a number of conclusions can be drawn:

1. Interested party transaction for LLC is an agreement, prior to the conclusion of which it is necessary to obtain the consent of all responsible persons.
2. To conclude an agreement, a certain procedure is provided, which involves notifying all interested parties and obtaining their approval for concluding this agreement.
3. Before proceeding with the execution of a transaction, each counterparty is obliged to provide information about all persons authorized to influence the conduct of this event.
4. Approval of an interested party transaction not in all situations prerequisite for further conclusion of the agreement.
5. Dependent persons are considered to be persons who can have a significant influence on the work of a businessman or company, if the parties to the legal relationship are dependent.
6. Citizens and legal entities can act as interdependent persons.

The most popular questions and answers regarding interested party transactions

Question: Hello. My name is Maxim Georgievich, and I am the head of the enterprise. I have a chief accountant, Tatyana Petrovna. Apart from me, there are no managers in the company, and I am also sole founder.

Now the company is at the stage of signing a deal to sell part of its assets.

I'm interested in this question. From judicial practice it follows () that the chief accountant may be a dependent person, since he participates in verifying the provisions of the agreement, and can also have a significant influence on the formation of prices.

If Tatyana Petrovna is a dependent person, then I am not obliged to get her consent to conduct this deal?

Answer: Hello, Maxim Georgievich, the question you asked is not entirely correct, since consent must be given by those participants in the company who have no interest in concluding the transaction (in this case, you). Therefore, of course, there is no need to enlist the support of the chief accountant.

Actions of the Company during which the acquisition or alienation (or intended alienation) of property, the size of which is estimated to be more than a quarter of all balance sheet funds, must be carried out in compliance with a special procedure - they require the consent of the majority of the founders. However, this rule does not apply to the process of ordinary business activities of an LLC (for example, purchasing raw materials, selling products, etc.). The Charter may indicate its own criteria for determining the size of concluded agreements and even a list of them.

In addition to large ones (isolated or several interrelated ones), approval is required for transactions in which there is an interest in such persons as:

• Members of the council or executive collegial body of the company;
• Participants who, with their affiliates, have at least 20% of all votes;
• Persons who have the right to issue instructions binding on the LLC.

Consent to the transaction is usually accepted by the majority of participants in the General Meeting, and if there is a supervisory board, at its convocation, if the delegation of such powers to the above-mentioned body is recorded in the Charter. In any case, the decision made must be formalized according to the rules; for this purpose, a protocol on the approval of the transaction is drawn up and signed.

If the founder is the only one and is listed as a director of the company, then there is no need to formalize any decision in writing - his signature on the transaction is enough.

Protocol on approval of major transactions / interested party

Does not exist unified form minutes of a meeting of company participants or a meeting, but the following mandatory information should be included in it:

The document must be signed by the chairman and secretary of the meeting.

The transaction approval protocol, a sample of which is presented in the service, contains all the necessary points - you can draw it up according to the required conditions and download it in a convenient format.

The absence of a protocol may lead to the deal being declared invalid in court, and will also become an obstacle to participation in various tenders.

Approval of an interested party transaction
Not long ago I made a small one. This time we will look at a related issue, related party transactions, which often go hand in hand with a major transaction.

It must be said that the articles themselves devoted to these two issues in the federal law “On Limited Liability Companies” (hereinafter referred to as the “Law”) follow each other. A typical example of a transaction that requires approval from both a large and interested party is a multi-million dollar loan within a holding group. It is this option that we will consider below.

I will not start from the very beginning, but with a fairly common situation that gives rise to ambiguity.
Clause 4 art. 45 of the Law states that " transaction in which there is an interest, does not require approval general meeting of the company's participants if the terms of such a transaction do not differ significantly from the terms of similar transactions (including loans, credit, pledges, guarantees) made between the company and the interested party in the process of carrying out ordinary economic activity society". In other words, such a loan could completely do without approval. However, there is no legal definition of “ordinary business activity”, except in paragraph 6 of the Resolution of the Plenum of the Supreme Arbitration Court of May 16, 2014 No. 28 “On some issues related to challenging major transactions and interested party transactions " . Since the Supreme Court also proposed not entirely specific criteria for this very ordinary business activity, in order to avoid embarrassment, loans within the holding group are often approved just in case.

So, what is an interested party transaction?
Briefly and succinctly - This is a transaction in which a number of persons are interested, namely:
- member of the board of directors (supervisory board);
- sole executive body;
- member of the collegial executive body;
- other persons capable of influencing;
- a participant who, including - together with his affiliates- has more than 20% of the votes.
As Art. 4 of the RSFSR Law of March 22, 1991 N 948-1 (as amended on July 26, 2006) “On competition and restriction of monopolistic activities in commodity markets", affiliates - These are individuals and legal entities capable of influencing the activities of legal and (or) individuals, carrying out entrepreneurial activity . Those. When determining an interested party, you should pay attention to whether there is an affiliated person among the participants of the legal entity, and whether in this case their total vote count will amount to more than 20% of the total number of votes.
It is also worth remembering that the above persons must inform the general meeting of participants about legal entities in which they and/or their affiliates have a stake of 20 percent or more and where they occupy leadership positions, as well as inform about transactions in which they will be interested.

A simple example of affiliation.
Participants of LLC "Holding":
- LLC "Subsidiary Company", 5% in the authorized capital of LLC "Holding"
- Ivanov Ivan Ivanovich, 95% in the authorized capital of Holding LLC.
At the same time, Ivan Ivanovich Ivanov is also the owner of a 75% share in the authorized capital of LLC "Subsidiary Company". Therefore, in determining whether Subsidiary LLC may be an interested party, we it should be considered 5% and 95% of Ivan Ivanovich Ivanov, which can control Subsidiary Company LLC.

That's sorted out. When does interest appear? Interest, according to paragraph 2, clause 1, art. 45 of the Law, with one exception, certainly arises if the above persons, their spouses, parents, children, full and half brothers and sisters, adoptive parents and adopted children and (or) their affiliates:
1) are a party to a transaction or act in the interests of third parties in their relations with the company;
2) own (each individually or in aggregate) twenty or more percent of the shares (shares, shares) of a legal entity that is a party to the transaction or acts in the interests of third parties in their relations with the company;
3) hold positions in the management bodies of a legal entity that is a party to a transaction or acts in the interests of third parties in their relations with the company, as well as positions in management bodies management organization such a legal entity.

All this may look confusing at first, so it’s easier to understand it with a specific example.

Let's look at the sides of the deal.
LLC "Holding":
- LLC "Subsidiary Company" is an interested party, because owns 21% in the authorized capital of Corporation LLC, and together with an affiliate, Ivan Ivanovich Ivanov - 36%
- Ivanov Ivan Ivanovich is an interested party, because is the Director of Corporation LLC.

LLC "Corporation":
- LLC "Subsidiary Company" is an interested party, because together with an affiliated person - Ivan Ivanovich Ivanov - owns 100% of the authorized capital of Holding LLC;
- Ivan Ivanovich Ivanov is an interested party, because, as a Director, he owns 95% of the authorized capital of Holding LLC;
- Kirill Kirillovich Kirillov is not an interested party, he has no connections with Holding LLC.

So, on the part of Holding LLC, everyone is interested in the loan. On the part of LLC "Corporation" the Director and 2 out of 3 participants are interested. What next?
According to paragraph 5 of Art. 45 of the Law, The provisions of the article do not apply to transactions in which all participants are interested. Therefore, it is possible to do without the approval of a related party transaction. It is possible that she is large, but that is another conversation.
As for Corporation LLC, there is a participant in it who may not like this loan at all. It is he who will determine whether the deal will happen or not. The content of the decision to approve an interested party transaction is defined in paragraph. 3 clause 3 art. 45 of the Law -
the decision to approve the transaction must indicate the person or persons who are the parties, beneficiaries in the transaction, the price, the subject of the transaction and its other essential conditions.

I wonder what The law provides for the possibility of additional criteria for determining interest, which makes it possible to develop a fairly strict control system.
On the other hand, par. 5 paragraph 3 art. 45 of the Law allows for advance approval of an interested party transaction with a specific limit on the amount, which will be valid by default until the next regular general meeting of participants. This will reduce the time spent on procedural and operational formalities, which is very important for large holdings, which are sometimes buried in bureaucracy.

As I have already indicated, the Law provides a number of exceptions when approval is not required. I have already mentioned the case where all participants are interested. The article also does not apply to:
1) companies consisting of one participant who simultaneously exercises the functions of the sole executive body of this company;
2) relations arising upon the transfer to the company of a share or part of a share in its authorized capital in cases provided for by the Law;
3) relations arising during the transfer of rights to property in the process of reorganization of the company, including merger agreements and accession agreements;
4) transactions the completion of which is mandatory for the company in accordance with federal laws and (or) other legal acts Russian Federation and settlements for which are made at prices determined in the manner established by the Government of the Russian Federation, or at prices and tariffs established by the authorized Government of the Russian Federation federal body executive power.

Now, in conclusion, about two aspects.
As has already become clear, the decision on approval is made by the general meeting of participants. The law also allows the issue of approval to fall within the competence of the board of directors (supervisory board), however, the approved transaction is limited to a value of no more than 2% of the total value of the company’s property, otherwise the issue will again fall within the competence of the general meeting of participants.

What if the deal was not approved?
Such a transaction may be declared invalid by the court at the request of a participant or company, but such a claim will be rejected in the following cases:
- the transaction was approved after;
- the participant who filed the claim could not influence the vote on the issue of approval;
- the transaction could not cause harm to society or an uninterested participant;
- the other party to the transaction did not know and could not know about the need to approve the transaction as having an interest.

I hope the article was not too confusing and will help in resolving corporate issues. And what seems confusing can be drawn, which is what I always do when determining interest.
Good luck!

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