Insight into the shareholders agreements of Joint-Stock companies in Russia
After enactment of the Federal statute No. 115-FZ on June 3, 2009 the possibility to conclude shareholders agreements in joint-stock companies emerged.
Prior to enactment of the Statute No. 115, shareholders agreements in the Russian legal practice, as a rule, were drawn and governed by the laws of foreign states, of Britain or Russia.
Now, the situation has changed and the shareholders agreement in the Russian law is recognized and is considered to be a contract which provides:
- a procedure of execution of rights certified by shares, or
- Peculiarities of disposal of rights granted by shares.
The right to conclude shareholders agreements is based on the principle of freedom of contract provided in the article 421 of the Civil Code of the Russian Federation.
According to stated principle, shareholders possess:
- a right to enter into civil-law contracts
- according to which they are obliged to exercise in a specific manner their rights certified by shares,
- rights on shares, and
- to abstain from disposal of the specified rights.
Also, the shareholders agreement provides:
- obligation of its parties to vote in a specific manner on general meeting of shareholders;
- to agree upon manners of voting with other shareholders;
- to acquire or to dispose shares in advance fixed price ( even at occurrence of certain circumstances)
- to abstain from alienation of shares; and
- to carry out interactively with other shareholders
- and other actions related with management of the:
- reorganization and
- liquidation of the company.
Use of circumstance instead of condition:
The use of the term circumstance instead of condition allows such changes to exclude shareholders agreements from regulation of conditional bargains.
The joint-stock company itself cannot be a party of the shareholders agreement.
Equal regulation of shareholders agreements with bargains concluded at stock exchanges can be avoided.
Further, shareholders agreement cannot provide an obligation of a participant to vote according to instructions received from management bodies of a joint-stock company.
Types of shareholders agreements:
- Agreements that are concluded during purchasing by a shareholder shares. These agreements specifically aim to get ability to block or oppositely to seek for adopting of some decisions;
- agreements that are regulating protection of interests during the entrance of a new member to joint-stock company; and
- Agreements that are aimed to separating of spheres of influence if there are few shareholders in company..
Access to the shareholders agreement:
The Statute provides that an entity that purchased according to shareholder agreement the right to determine the manner of voting at shareholder’s meeting must notify company on such purchase.
The responsibility for failure of such notification consists of restriction to exercise rights of shares, in respect of which an agreement was reached.
If as a result of such purchase the entity itself or together with its affiliates will be able to dispose more than 5,10,15,20,25,30,50 or 75 per cents of company’s ordinary shares.
Enforcement and protection of share-holders agreement:
- The shareholders agreement is a civil-law contract and all methods of protection of civil rights and interests are applicable to shareholders agreements like:
- methods of security for performance of obligations,
- application of penalties for breach or
- improper performance of shareholders agreement and
- judicial means of protection of party’s rights provided by the law are applicable
- It is not necessary to file it within the state authorities as the Statute establishes shareholders agreement is not a foundation document.
- The right to conclude shareholders agreements exists regardless to provision in the articles of association as is vested in the law.
- Absence of provision on capability to conclude shareholders agreement in the articles of association does not affect the validity of concluded shareholders agreements.
- The right to conclude shareholders agreements should be vested in the articles of association as per part 3 of the article 11 of the Federal statute On Joint-stock Companies shareholders’ rights should be vested in the articles of association as well.
- It should be kept in mind that the shareholders agreement is obligatory only for the parties of the agreement and feasible to claim for invalidity of company’s management bodies’ decisions.
- However, parties of shareholders agreement themselves possess enough legal tools to protect their own interests.
Prior to adoption of the statute legal authorities were forced to use other, low-tax and off-shore jurisdictions through rough legislative regulation of shareholders agreements.
But, some loopholes still exist, like; a shareholder can transfer shares to a third party, which was not aware of the existing shareholders agreement.
The amendments are not able to solve all problems as there still exist certain ways of breaking its obligations for unfair participants of agreement still remain. So, one should be very careful while drafting shareholders agreement and to avoid adverse effects.