Статья посвящена вопросам, связанным с принятием решений по управлению обществом с ограниченной ответственностью общим собранием участников. Особое внимание уделяется авторами принятию решения путем опроса и принятию решений по вопросам, не включенным в повестку дня общего собрания. Рассматриваются также письменные решения единственного участника, владеющего 100% уставного капитала, принятие решения путем телеконференции, принятие предварительного решения по сделке с имуществом корпорации путем определения ее юридической природы и стоимости. Настоящая публикация вызывает особенный интерес исследованием судебной практики и аналогий с корпоративным правом зарубежных стран.
Business reality often requires quick decisions from companies. This imperative, however, may conflict with corporate governance procedures. For example, material transactions normally require approval by the general meeting of a company (GM), while legislation mandates that long notice procedures must be observed to convoke a GM. If the company failed to arrange for the corporate approvals in advance, it may eventually be too late and a business opportunity may be missed. In this article we will review a few possible solutions which may be explored by a limited liability company (LLC) when the need for quick approval is pressing.
Absentee voting
The first option we would like to explore is holding an absentee vote (opytuvannia or zaochne holosuvan- nia), which is regulated by Article 60(4) of the On Business Companies Act of Ukraine. There are several prerequisites for the availability of this voting method:
— the charter of the LLC must specify when absentee voting can be resorted to (the charter would normally determine which specific matters may be voted upon in such a manner, or simply provide that any matter in the GM’s competence may be resolved by absentee voting). If this is not specified in the charter then absentee voting is prohibited (High Commercial Court of Ukraine (HCCU), case No.18/165); and
— there should be an elected chairman of the company (holova tovarystva) to coordinate the process of absentee voting. The status of the chairman of the company under Ukrainian law is uncertain, and courts treat cases when the chairman of the GM (as opposed to the chairman of the company) organizes absentee voting liberally.
The law regulates the mechanics of absentee voting: the draft resolution should be sent to all participants of the LLC, who should provide responses in writing. Within 10 days of receipt of the notice from the last participant of the vote the chairman must inform all of them about the adopted resolution.
The legislative procedure does not provide much detail, and in practice courts interpret the law differently. In particular, it is unclear what “receipt of the notice from the last participant of the vote” means. It may either be interpreted as follows:
— absentee voting is only valid, if all the participants of the LLC take part in it and provide a reply (some court rulings point out that consents, and not merely replies, of all the participants of the LLC are needed). This interpretation is sometimes questioned because it seems to circumvent the general quorum requirement from which derogations are not allowed) (HCCU, case No.5002- 15/2004-2012, case No. 15/24): or
— alternatively, for the validity of absentee voting, it is sufficient to secure participation of more than 60% of votes (provided that all the participants of the LLC are notified of the vote). This is based on the position that the general requirements applicable to regular GMs are also relevant to absentee voting (HCCU, case No.912/881/13, Commercial Court of Kiev, case No.910/22190/13).
The second approach seems imbalanced, since it potentially allows resolutions to be passed by a 30%+ majority (i.e., simple majority of 60%+) with a 60%+ quorum, while it may be the case that the remaining 40% — of votes have not been cast and they may reverse the resolution promoted by the owner of 30%+. We believe that for the purposes of good governance and protection of interests of the minority holders absentee voting should only be effective when all the participants of an LLC take part in the vote.
To this end the charter of an LLC may specify that absentee voting may be used for resolving on specified (or all) matters subject to all the participants of the LLC taking part in absentee voting. There is a remote risk that a judge may disregard such provision of the charter on the ground that it circumvents the legislative requirement of 60%+ quorum, which is mandatory and may not be derogated from.
In addition, ballots circulated for absentee voting should ideally contain language on agreement of the participants to absentee voting.
Voting on matters not included in agenda
The second option which we would like to discuss is voting on matters that have not been put on agenda of the GS in advance.
Although normally all matters of business of the upcoming GM must be either included in the initial agenda or be added to the agenda 25 days in advance of the GM, in LLCs (in contrast to joint stock companies (JSCs) GM may vote on matters that have not been included in the agenda.
Article 61(5) of the On Business Companies Act of Ukraine sets out that resolutions on the matters that are not in the agenda may be passed only upon unanimous consent of attending participants.
Although this provision seems straightforward, in practice it is subject to varying interpretation. The principal points of disagreement are:
— what the unanimous consent should be given for (inclusion of a new matter in the agenda or for voting on merits of the matter); and
— what may constitute consent (explicit consent as opposed to implicit consent).
As to the first issue, there is no consistent court practice on what the unanimous consent of the attendees should be given to:
— unanimous consent is needed for inclusion of a new issue to the agenda (procedural vote) and then the vote on the merits of the matters is subject to general rules of majority (HCCU, case No.14/152, case No.5024/2487/2011, case No.5017/2001/2012, case No.924/652/13). This approach is also substantiated by the fact that based on Article 59 of the On Business Companies Act of Ukraine unanimous voting on matters of agenda of GM in LLC is not envisaged; or
— there is no need to have a separate procedural vote regarding inclusion of a new matter in the agenda, it is only necessary that all the attending participants unanimously vote in favor of the resolution (vote on merits) (HCCU, case No.5020- 7/026, case No.4/129).
Courts predominantly resolve that unanimous consent is required to include a new matter in the agenda, and unanimity is not required for voting on merits of the new matter.
Court practice varies on how consent may be given to inclusion of a new matter in the agenda:
— some courts stated that inclusion of an issue in the agenda should be separately voted on and the fact of the unanimous consent should be explicitly mentioned in the minutes of the GM (HCCU, case No.5024/2487/2011, case No.924/652/13); or
— in other rulings courts assert that unanimous consent to inclusion of an issue in the agenda may be implicitly provided by the attending participants even when there is no separate vote on inclusion of the matter in the agenda. Courts ruled that the consent may be implicitly given when in a vote on the merits participants vote “against” the matter, i.e., the unanimity may be evidenced by the absence of objections to vote on merits (HCCU, case No.14/152).
The above ambiguity of court practice creates risks of uncertainty to participants holding the majority of votes as well as to minority holders. To minimise risks we recommend the minority shareholders to:
— always attend GMs of the LLC (unless such participant holds a “blocking” share in the charter capital, i.e., at least 40% in the charter capital);
— object to inclusion of unacceptable new questions to the agenda and demand to record such objections in the minutes of the GM; and
— explicitly exclude certain powers from the proxy issued to a representative (in particular, the power to approve new matters of the agenda and to vote on any such matter).
Holders of a share in excess of 60% of the charter capital of an LLC who are willing to approve questions which have not been put on the agenda in advance should strive to observe all the procedural intricacies of such vote and to:
— vote separately on inclusion of each new matter in the agenda; and
— make sure that minutes of the GM explicitly show that all attending participants consented to inclusion of each new matter in the agenda and, ideally, produce a separate document confirming such unanimous consent, which must be signed by each attending participant.
Nevertheless, the majority holder must remember that if a dispute arises the court may take a view that unanimous consent to inclusion of the question in the agenda of the GM is insufficient and unanimous vote on the merits of the matter is required.
Other mechanisms
International standards of corporate governance contain few other mechanisms which are aimed at expediting corporate approval process. We discuss them briefly below.
Written resolution of a sole owner. Corporate laws of developed jurisdictions (and On Joint Stock Companies Act of Ukraine) provide that procedures for calling a GM do not apply, if the company has a sole shareholder. No such rule exists for LLCs in Ukraine. Both draft laws on LLCs registered with the Ukrainian Parliament set forth such rule; however, it is uncertain when any of these draft laws may be finally adopted. The 12th EU company law directive requires that states implement such rule in their national laws (pursuant to the EU-Ukraine Association Agreement Ukraine undertook to implement this directive and the rule in question).
Waiver of notice and attendance of 100%. Certain foreign laws provide that shareholders may unanimously waive notice of the GM and hold the GM as soon as practicable. Sometimes foreign laws stipulate that notice requirements do not apply when 100% attendance of a GM is secured.
However, Ukrainian law does not provide for such a mechanism. Although court practice in Ukraine suggests that participants who attended a GM may not challenge resolutions taken at that GM, formally failure to observe notice formalities violates mandatory rules of corporate law. Article 26(6) of draft law No.2011-1 provides that all the participants of a GM may unanimously waive convocation formalities.
Holding a GM by teleconference. Holding a GM by teleconference could significantly expedite the GM, especially when such a GM is attended by all the LLC’s participants. This mechanism is available in many jurisdictions with developed corporate laws. In Ukraine such a mode of attendance is not envisaged by law, and has not been widely tested. We are unaware of court practice scrutinizing the availability of such mechanism to LLCs. However, the Donetsk Appellate Commercial Court in case No.5009/3196/12 concluded that a meeting of the supervisory board of a JSC was validly held by Skype conference. Furthermore, Draft Act No.2011-1 legitimizes holding of meetings of an LLC’s supervisory board by teleconference.
Advance approval of potential material transactions. The On Joint Stock Companies Act of Ukraine lets a GM of a JSC approve potential material transactions in advance by determining their general nature and overall value cap. Such mechanism is not specifically provided for LLCs in Ukraine. However, due to the fact that regulation of material transactions of LLCs is much more relaxed than that of JSCs, we do not see why a similar mechanism may not be incorporated in the LLC’s charter.
As it becomes obvious from the above analysis, Ukrainian laws governing LLCs are obsolete and require drastic change. Hopefully, the long- awaited On Limited Liability Companies Act of Ukraine will provide for a variety of mechanisms enabling participants to expediently take GM resolutions. On the other hand, corporate law may be improved not only through legislative process: legal certainty may be achieved through unification of court practice on application of those mechanisms which are already available.
Авторы:
Oleksandr V. POLONYK, Danylo S. VОLKОVETSKYI
Источник:
The Ukrainian Journal of Business Law. – 2014. – № 11. – Р. 24 – 26.