In 2009, the concept of "joint-stock company agreement" appeared at the level of legislation. It is interpreted as a type of civil law transaction, which may provide for individual rights and obligations of the founders, especially their implementation. The terms of the agreement are binding only to those who have signed it.
Charter and agreement
As a rule, an agreement contains agreements that cannot be prescribed in the charter, mainly aimed at additional protection of the company from encroachments of third parties. For example, the document can provide for step-by-step enterprise management in order to minimize possible risks. The agreement allows you to resolve internal issues that arise and may arise in the future. The main goal of creating a document is to avoid conflicts.
Distinctive features
The joint stock company agreement has two conceptual approaches:
- "Backstage", simply put, what the members of the society have agreed on cannot be accessible to the rest. The restriction is valid only for those joint-stock companies that register the prospectus, but only in terms of the fact that it is necessary to inform all shareholders of the signing of the agreement and to announce issues that relate to the voting procedure at the general meeting.
- Agreement more in demand at enterprises with the form of LLC and CJSC. It is problematic to conclude an agreement on a joint stock company, since the activities of a public enterprise are regulated by many peremptory acts, and therefore the contractual freedom of the parties is limited.
Document Content
The terms of the shareholder agreement are regulated by Law 14-FZ, but only partially. For example, a document can establish a specific voting procedure or agree on how the sale of shares will take place in the future, or specify the conditions under which it is impossible to sell securities.
Types of Agreements
Depending on the nature of the participants, the joint-stock company agreement is divided into the following types:
- Agreement between minority shareholders. A deal can be concluded only before the appearance of a real opportunity to influence the management of the company.
- The transaction between co-investors. The agreement is aimed at preventing unfriendly third parties in the project and is designed to protect the company and make effective management.
- Majority Agreement. It consists in order to form a controlling block of shares between private traders who have reached a consensus in the management methodology and development strategy of the enterprise.
Who can be a party to the agreement
The parties to the agreement can be both all shareholders and their individual part. If documents are signed only between a certain number of participants, then all the agreements concern precisely these shares in the authorized capital. All rights and obligations set forth in the contract relate exclusively to the parties to the transaction. The law does not establish any restrictions on the number of parties in the contract.
Under no circumstances may a third party unrelated to the company participate in the shareholder agreement.
The company itself may be a party to the shareholder agreement, especially if it owns its own shares. There is no direct prohibition at the level of legislative acts. However, it should be remembered that society has a number of restrictions on rights. For example, it cannot participate in the vote, receive dividends, therefore, there are practically no reasons for JSC participation in the agreement.
The conclusion of the contract may take place when it contains provisions on the management of the enterprise, the elimination of competitors and other issues that cannot be resolved without the participation of the company itself.
Standard clauses of agreement
If the joint-stock company agreement is concluded at the stage of creating the organization of the enterprise, the document should regulate the following issues:
- further investments;
- strategic development;
- voting conditions;
- the procedure for the nomination and approval of candidates to governing bodies;
- profit distribution;
- the procedure for one or several participants to leave the company;
- the procedure for the disposal of shares, for example, you can limit the ability to sell them to competitors;
- conditions for liquidation or reorganization of the company;
- the procedure for the division of property after the liquidation of the enterprise.
An agreement can also be signed after the enterprise is open and successfully operating.
Agreement Protection
The joint-stock agreement of an open joint-stock company is a civil law contract, therefore, it is subject to all existing rules in the Civil Law relating to the protection of both the legitimate interests of the parties and their rights. Therefore, it is possible to apply liability measures for non-fulfillment of specific obligations, up to and including judicial protection.
However, it should be remembered that if the block of shares is transferred to a third party, for him the agreement in the agreement is not binding.
Consequences of breach of agreement
If the joint-stock agreement of the joint-stock company provides for liability, then, naturally, in case of violation of obligations, measures will be applied. For example, if the agreement stipulates that the shareholder does not have the right to sell his share to a competing firm, then the rest of the participants are entitled to demand the transfer of rights to the shares to themselves. Although at the level of Law 14-ФЗ no consequences are provided for those who have violated the terms of the contract, however, Law 208-ФЗ directly establishes the possible consequences of such actions:
- compensation for losses caused by the guilty party;
- payment of penalties, which can be established by agreement of the parties in a solid form or will be appointed according to specific rules.
Society itself cannot be held accountable by agreement.
You should also be aware that the law does not establish the ability to force a party to a shareholder agreement to fulfill obligations in kind. Therefore, even in court it will be quite problematic to force one of the parties to the agreement to do something that is prescribed in the agreement. For example, if a participant in an agreement does not vote at the general meeting as established in the document, then his actions can be challenged in court only in the status of a shareholder, but not the parties to the agreement.
Agreement Notice
Information on the conclusion of a shareholder agreement of a public joint-stock company must be received by the enterprise itself. The company should be informed, but it does not need to inform about the contents of the contract.
Sample notification text
Shareholders who have signed agreements, regardless of their legal form, are required to formally notify the company itself. An example notification is given below.
To the head of PJSC "Shareholder"
Name, address
On the conclusion of a shareholder agreement
Based on p.p. ... art ... Of the Law ... .., we inform PJSC "Shareholder" of the conclusion ... date ... of shareholder agreement No. ... ..
The parties to the contract are:
1) CJSC "Shareholder1" (registration data and place of registration ".
2) LLC "Shareholder2" (registration data and place of registration ".
3) Individual - name, passport data and place of registration.
Shareholder Agreement No. .... date…. shall enter into force on ... (date ..).
Sample contract
A sample of the shareholder agreement should include all the details accepted in the business circulation, since the contract is a civil law transaction.
Shareholder agreement
Place and date of compilation
CJSC "Shareholder1" (registration data and place of registration ";
LLC "Shareholder2" (registration data and place of registration ";
physical person - name, passport data and place of registration
concluded this agreement on the regulation of the rights and obligations of shareholders of PJSC “Shareholder”, hereinafter referred to as PJSC
1. Obligations of the parties
1.1. The parties to the agreement, whose rights are confirmed by shares in the PJSC, undertake:
- when voting on the issue ……… .. vote as follows ………;
- abstain from voting in the following cases ... ....
1.2. The parties to the contract are obliged to exercise their rights in the following order:
- purchase shares only at a price ... ..;
- refrain from alienating shares to the following persons ...
1.3. The parties are obliged to coordinate their following actions:
- if a decision has been taken on the merger, then inform the other parties on time ....... ..;
- if a decision has been made to liquidate the PAO, proceed in the following order ....
1.4. The parties to the contract undertake to bear the following financial costs ........
2. Shareholder rights:
2.1. shareholders are entitled to receive dividends;
2.2. after the liquidation of the PJSC to receive part of the property.
3. Ways of securing obligations:
3.1. If one of the parties to the agreement does not fulfill its obligations in part ... .., then it is obliged to pay a fine of .......
4. Force Majeure.
5. Dispute Resolution Procedure.
6. Final provisions.
7. Validity.
Signatures and details of the parties
So, in general, an example of a shareholder agreement looks like. At the level of the current legislation, there are no restrictions on the items included in the agreement, of course, provided that all its norms are observed.