Shareholders exercise the right to buy-out of their shares by the economic company

From September 1, 2014, amendments to ch. 4 of the Civil Code of the Russian Federation, according to which the division of joint-stock companies into open and closed has been abolished. Joint-stock companies in accordance with Art. 66.3 of the Civil Code of the Russian Federation are now subdivided into public, namely, offering shares by open subscription and non-public, that is, joint stock companies that do not place their shares on the securities market.

Since a closed joint stock company does not have the right to place shares by open subscription, when the charter is first changed, the closed joint stock company must change in its name the legal form “Closed Joint Stock Company” to “Joint Stock Company” in accordance with paragraph 2 of Art. 39 of the Federal Law of December 26, 1995 No. 208-ФЗ “On Joint-Stock Companies” (hereinafter referred to as Law No. 208-ФЗ), paragraph 1 of Art. 97 of the Civil Code, Part 7 of Art. 3 of the Federal Law of May 5, 2014 No. 99-FZ “On Amendments to Chapter 4 of Part One of the Civil Code of the Russian Federation and on the recognition of certain provisions of legislative acts of the Russian Federation” (hereinafter referred to as Law No. 99-ФЗ).

At the same time, it is necessary to remove all provisions based on the provisions of the Law No. 208-ФЗ from the charter of a closed joint-stock company, since, in accordance with Part 9 of Art. 3 of Law No. 99-FZ, these norms apply to closed joint-stock companies until the first change of their charters. Further, on the basis of sub-clauses “a”, “b” clause 1, clause 5 of art. 5, Art. Art. 17, 18 of the Federal Law of August 8, 2001 No. 129-FZ “On the State Registration of Legal Entities and Individual Entrepreneurs”, the corresponding changes must be registered in the Register.

Thus, only those provisions of the charter that are contrary to the current state of the law are subject to mandatory change, which undoubtedly restricts unscrupulous shareholders in actions to amend the provisions of the charter, which will restrict the rights of the other participants of this company.

In turn, if the new provisions of the charter affect and restrict any rights of the shareholder, the latter in accordance with the regulations of paragraph 1 of Art. 75 of the Law No. 208-ФЗ has the right to demand the repurchase by the company of all or part of its shares. At the same time, this rule is valid if the shareholder voted against the adoption of the relevant decision or did not participate in the voting (Resolution of the Federal Arbitration Court of the North-West District of May 29, 2015, in case number A05-12336 / 2011).

Consequently, the right arises from the shareholders if the following two conditions are met:
– If the shareholder demanding the repurchase by the company of the shares belonging to him, voted against the adoption of the relevant decision or did not participate in the voting;
– If the company’s charter in the new edition restricts the rights of the shareholder.

Based on the established court practice (Resolution of the Arbitration Court of the North-Western District of 29.05.2015 No. Ф07-2033 / 2015 on Case No. А26-7387 / 2014), the shareholder will have to prove that such changes really limit his rights, in essence, it does not allow a shareholder to demand the redemption of his share, only on the basis that new provisions are incorporated into the text of the charter, which in reality do not impair his position in the company.

Kalinin V.S.
Lawyer, head of international practice