Legal support of preparation of shareholders’ agreement
Conducting business activities can be organized by several participants who, as a result of interaction, may be dissatisfied with the actions of other business participants. At the same time, one way or another, entrepreneurs have to protect their interests. Despite the fact that entrepreneurial activity is associated with risks, the legislator, for a more favorable business, provided for an article in the Civil Code of the Russian Federation that reflects the possibility of interaction between participants, for example, a limited liability company, on the basis of a corporate agreement. In accordance with Article 67.2 of the Civil Code of the Russian Federation, a corporate agreement is an agreement between business owners, for example, the founders of an LLC, in order to exercise their corporate rights. It should be noted that it is important to distinguish a corporate agreement, for example, from the charter of an LLC, which regulates the shares of the authorized capital, its size, the management bodies of the company, etc. Norms similar to Article 67.2 of the Civil Code of the Russian Federation are also reflected in Article 8 of the Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies”.
A corporate agreement is concluded for several purposes:
- regulation of interaction between the participants of the shareholders’ agreement;
- regulation of emerging conflicts between participants;
- participation of investors for business;
- features of property relations;
- reducing risks of transferring or selling a share of the business to undesirable partners, etc.
The parties to the corporate agreement may provide for various issues that will be reflected in the agreement, the most important condition is that all positions of the agreement must be agreed between the parties. At the same time, a corporate agreement is concluded in a simple written form without the participation of a notary, and can be concluded for participants in a joint-stock company and a limited liability company. It is important to note that a corporate agreement can be concluded both between the participants of a business company and with third parties, for example, investors or creditors. At the same time, after the conclusion of such an agreement, the parties are obliged to notify the company of the fact of concluding a corporate agreement, while its contents are not required to be disclosed, only if it is not a joint-stock company, in which case information is disclosed in accordance with the law on joint-stock companies. In case of failure to fulfill this obligation, the participants of the company who are not parties to the corporate agreement are entitled to demand compensation for the losses caused to them. With all this, the corporate agreement does not create obligations for persons not participating in it as parties.
The main conditions in a corporate agreement, as a rule, provide for:
- requirements for investors may be reflected;
- procedure for managing a business entity;
- distribution of profits to participants;
- possible transactions;
- possibility of transferring the adoption of important decisions to another body of the company, for example, subject to equal shares of two members of the company;
- business protection conditions;
- conditions on the impossibility of creating competition in the field of activity created between the participants of the corporate agreement, the company;
- order of liquidation, in case of inconsistency between the participants or lack of business profits, etc.
The legislation does not define the main terms of a corporate agreement, the parties can independently determine them and reflect them in the agreement.
The conclusion of a corporate agreement, as a rule, begins with an analysis of business activities, the conditions for interaction between participants, a study of the internal structure of the business process and the need to reflect certain conditions. After that, a strategy for concluding a corporate agreement is formed, its terms are worked out and agreed between the parties to the agreement.
At the same time, the conclusion of an agreement can be carried out at any moment of the business process, both at the stage of formation of entrepreneurial activity, and already in its process. This is due to the fact that a corporate agreement can be concluded between:
- all participants in business activities;
- specific participants;
- shareholders of a business entity and investors, etc.
Regardless of the composition of the participants in a corporate agreement, the partners of such an agreement may be liable for its failure to fulfill it or violation of its terms, for example, for:
- violation of the terms of non-competition;
- violation of the procedure for voting on a particular issue;
- refusal to purchase a share, if it was reflected in the corporate agreement, etc.
There can be a large number of terms of a corporate agreement, as well as the terms of liability for violation of the main terms of the agreement.
Often, the parties to a future corporate agreement, for its preparation, analysis of business activities and drawing up an agreement, involve a qualified and experienced lawyer, on whom, often, all further relationships between the parties to a corporate agreement depend. A competent specialist, having theoretical knowledge and practical experience, will take into account all the interests of the parties to the agreement, in case of their inconsistency, lead to consensus, and also allow the parties to the agreement to eliminate possible risks that may arise after the conclusion of a corporate agreement.
- Advice to clients on the conclusion of shareholders’ agreement
- Preparation and execution of shareholders’ agreement
- Coordination of the terms of the corporate agreement between the parties to the future agreement
- Legal support when signing shareholders’ agreement
- Representation of interests when signing shareholders’ agreement