On the application of legislation on joint-stock companies
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 28, 2009 No. 8.
The footnote. Throughout the text, the words "special claim proceedings" should be replaced with the words "claim proceedings" in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/29/2018 No. 12 (effective from the date of the first official publication).
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In order to ensure uniform application by courts of the legislation of the Republic of Kazakhstan on joint stock companies, the plenary session of the Supreme Court of the Republic of Kazakhstan
Decides:
When resolving disputes concerning the observance of the procedure for the establishment, reorganization, liquidation and operation of a joint-stock company; the rights and obligations of shareholders, as well as measures to protect their rights and interests; competence, the procedure for the formation and functioning of the bodies of a joint-stock company; The courts should be guided by the norms of the Constitution of the Republic of Kazakhstan, the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), and the Law of the Republic of Kazakhstan dated May 13, 2003 No. 415-II "On Joint Stock Companies" (hereinafter referred to as the Law). and other regulatory legal acts, the provisions of which should be applied taking into account the specifics of the legislative acts of the Republic of Kazakhstan in force at the time of the dispute.
If an international treaty ratified by the Republic of Kazakhstan establishes rules other than those contained in the Law, then the norms of the international treaty are applied directly.
The footnote. Paragraph 1 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
A joint-stock company (hereinafter referred to as the company) is a legal entity that issues shares in order to raise funds for its activities, and a shareholder is a person who owns shares.
The founders of the company may be both individuals and (or) legal entities, jointly or in the singular, who have decided on its creation. The founding agreement (the decision of the sole founder) must contain the information specified in paragraph 1 of Article 7 of the Law.
When resolving the issue of property liability, the courts should proceed from the fact that the company is responsible within its own property and is not liable for the obligations of shareholders.
For its part, the shareholder is not liable for the obligations of the company and bears the risk of losses related to its activities, within the limits of the value of its shares, except in cases provided for by legislative acts of the Republic of Kazakhstan.
In accordance with paragraph 1 of Article 9 of the Law, the legal status of a company as a legal entity is determined by the charter, which must contain the mandatory provisions listed in paragraph 2 of Article 9 of the Law.
In accordance with paragraph 4 of Article 9 of the Law, the company is entitled to carry out its activities on the basis of a standard charter approved by the Government of the Republic of Kazakhstan.
Other provisions provided for in subparagraph 10) of paragraph 2 of Article 9 of the Law should be understood as other rules arising from the norms of the Law and other legislative acts, in particular, regulating the preferential right of owners of preferred shares over owners of common shares to receive dividends in a predetermined guaranteed amount, duties of the corporate secretary, etc.
The requirements for mass media that can be used to publish information about the company's activities are established by a regulatory legal act of the authorized body responsible for state regulation, control and supervision of the financial market and financial organizations (hereinafter referred to as the authorized body).
The footnote. Paragraph 3 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
According to articles 14 and 15 of the Law, a shareholder is entitled, but not obliged, to participate in the general meeting of shareholders. A shareholder's non-participation in the general meeting cannot be considered as a violation of his duties.
In this regard, it is unacceptable to recognize a shareholder as missing due to prolonged non-participation in the company's affairs according to the rules of Article 317 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter - CPC).
In cases where a shareholder is not involved in the management of the company and his place of residence (location) is unknown, the company must transfer dividends to the bank account specified by him or to the shareholder's account created to transfer the company's debt on dividends.
In accordance with Article 115 of the Civil Code, a share, as a security, refers to property in the form of a financial instrument, therefore, its recognition as ownerless using the provisions of Article 242 of the Civil Code is unacceptable.
The footnote. Paragraph 4 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
When resolving disputes over the exercise by shareholders of their rights, the courts should keep in mind that the rights of shareholders, including large ones, stipulated in article 14 of the Law cannot be limited, whereas the company's charter may contain other additional rights.
The Company and the registrar are not responsible for the consequences of a shareholder's failure to comply with the obligation to notify the registrar and the nominee shareholder within ten days of changes in the information required to maintain the register of shareholders.
Ownership of a share upon its transfer to another person does not arise from the moment the transaction is completed and the company is notified about it, but from the moment the share is credited to the personal account of its acquirer, performed by the registrar of the company in the system of registers of shareholders.
The status of a shareholder is confirmed by an extract from the personal account in the company's share register system.
Disputes on shareholders challenging decisions of the bodies of joint-stock companies related to corporate matters are considered in the order of claim proceedings by inter-district specialized economic courts.
When considering applications to challenge decisions of the general meeting of shareholders, it should be borne in mind that violations of the Law, other regulatory legal acts or the charter that infringe on the legitimate interests of a shareholder include: late notification (non-notification) of a shareholder (owner of the golden share) the date of the general meeting of shareholders; failure to provide the shareholder with the opportunity to get acquainted with the necessary information (materials) on the issues on the agenda of the meeting; late provision of ballots for absentee or in-person secret voting, etc.
Violation of the mandatory procedures established by law for convening a general meeting of shareholders, including the deadlines for notification of its upcoming holding, preparation and availability of agenda materials, entails violation of shareholders' rights provided for in Article 14 of the Law, which may serve as a basis for invalidating the decision of the general meeting of shareholders.
In accordance with Article 178 of the Civil Code, the general statute of limitations applies when resolving disputes about shareholders' protection of their rights.
The footnote. Paragraph 7 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/29/2018 No. 12 (effective from the date of the first official publication).
The list of shareholders entitled to receive dividends must be drawn up on the date preceding the date of commencement of payment of dividends.
A shareholder has the right to demand payment of unpaid dividends, regardless of the duration of the company's debt formation.
In case of non-payment of dividends within the prescribed period, the shareholder is paid the principal amount of dividends and a penalty calculated based on the official refinancing rate of the National Bank of the Republic of Kazakhstan on the day of fulfillment of the monetary obligation or its corresponding part (Article 353 of the Civil Code, paragraphs 1, 6 of Article 22 of the Law).
When applying paragraph 1 of Article 22 of the Law, the courts should keep in mind that the payment of dividends falls within the exclusive competence of the general meeting of shareholders, therefore, if such a decision is not taken, then the dividends will not be collected by the court.
No dividends on the company's common shares are paid until the dividends on the company's preferred shares are paid in full.
The transfer by the company of dividends on preferred shares to the account of absent shareholders is considered to be the proper fulfillment of the obligation.
Determining the procedure for distributing the company's net income for the past financial year and the amount of the dividend per common share may limit the rights of a shareholder holding preferred shares, therefore, this issue is considered, in accordance with subparagraph 1) of paragraph 4 of Article 13 of the Law, by the general meeting of shareholders.
Within ten working days from the date of the decision to pay dividends on common shares and within five working days before the deadline for payment of dividends on preferred shares, the company is obliged to publish in the mass media, respectively, the decision or information on the payment of dividends, indicating the name, location, bank and other details of the company, the period for which which dividends are paid, the start date, the procedure and form of payment of dividends, as well as the amount of the dividend per common or preferred share, respectively.
The guaranteed amount of the preferred share dividend can be set either in fixed monetary terms or indexed relative to any indicator, provided that its values are regular and publicly available.
In accordance with article 25 of the Law, if the procedure for acquiring thirty percent or more of voting shares is not followed, the person(s) holding them must alienate to unaffiliated persons a portion of the shares owned by him (them) exceeding twenty-nine percent of the voting shares. In case of non-compliance with this requirement, interested persons have the right to apply to the court with a claim to compel such a transaction. In the absence of buyers, these shares are redeemed by the company.
The Company has no right to prevent the sale of shares by shareholders, however, it may make them an offer to purchase shares by the company or by third parties at a price exceeding the offered one.
A shareholder who has submitted an application (who has consented) in response to an offer to sell his shares has the right to appeal in court against the refusal of the person who published this offer to purchase shares (paragraphs 3, 4 of Article 25 of the Law).
The repurchase of outstanding shares is carried out by the company at the request of a shareholder, which may be announced by him in the cases provided for in paragraph 1 of Article 27 of the Law, including in case of disagreement with the decision to conclude a major transaction and (or) to conclude an interested-party transaction, and the adoption by the general meeting of a decision on amendments and amendments to the articles of association restricting the rights to shares owned by this shareholder (if the shareholder did not participate in the general meeting or voted against the adoption of the specified decision).
A shareholder has the right, within thirty days from the date of making any decision specified in paragraph 1 of Article 27 of the Law, or from the date of making a decision by the organizer of the auction on delisting shares, to submit to the company a demand for the repurchase of his shares by sending a written application.
Within thirty days from the date of receipt of the said application, the company is obliged to buy back shares from the shareholder. If this obligation is not fulfilled, the shareholder has the right to apply to the court with a demand to compel the company to make a transaction.
The outstanding shares repurchased by the company are not taken into account when determining the quorum of the general meeting of shareholders and do not participate in voting at it (subitems 2), 3) of paragraph 1, paragraph 2 of Article 27, paragraph 2 of Article 28 of the Law).
The specifics of the acquisition, including by the state, of shares of companies whose main activities are related to subsurface use, as well as the compulsory purchase of shares of banks and organizations engaged in certain types of banking operations, as well as insurance and other organizations, are regulated by special laws, for example, the laws of the Republic of Kazakhstan dated June 24, 2010 No. 291-IV "On Subsoil and Subsoil Use", dated August 31, 1995 No. 2444 "On Banks and banking activities in the Republic of Kazakhstan", dated December 18, 2000 No. 126-II "On Insurance activities", etc.
The footnote. Paragraph 11 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
Considering that the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" regulates marital and family relations, courts should keep in mind that a share sale transaction cannot be declared invalid due to the lack of consent of the other spouse, since the procedure for making transactions with shares is established by a special Law. In this case, the spouses can only make mutual property claims based on the right of common joint ownership of the spouses.
The footnote. Paragraph 12 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
The transfer of issues on which decision-making falls within the exclusive competence of the General Meeting of shareholders to the competence of other bodies, officials and employees of the company, unless otherwise provided by Law and legislative acts of the Republic of Kazakhstan, is not allowed.
If the resolution of the issue falls within the competence of the general meeting of shareholders not by Law, but by the charter, which provides for the possibility of transferring the resolution of this issue to the board of directors, the management board or other bodies, then such delegation of authority is considered legitimate.
The General Meeting of Shareholders has the right to cancel any decision of other bodies of the company on issues related to its internal activities, unless otherwise specified by the articles of association.
The Annual General Meeting of shareholders may be convened and held on the basis of a court decision taken at the request of any interested person, in case of violation by the company's bodies of the procedure established by Law for convening such a meeting.
Courts should not refuse to accept an application based on the lack of interest of a person, which is determined when resolving a dispute on its merits.
If the Board of directors has not decided to convene an extraordinary general meeting of shareholders within the time limit prescribed by Law at the request of a major shareholder, the latter has the right to file a lawsuit with the court to impose such an obligation on the company (paragraph 6 of Article 38 of the Law).
When challenging the decision of the Board of directors to refuse a major shareholder to convene an extraordinary general meeting, the court considers the case in the order of the claim proceedings.
Since a legal entity acquires rights and assumes responsibilities through its bodies, the execution of a court decision to convene an extraordinary general meeting of shareholders may be entrusted to one of the company's bodies, subject to the provisions of its articles of association.
Shareholders are notified of the upcoming general meeting no later than thirty days in advance, and in the case of absentee or mixed voting - no later than forty-five calendar days before the date of the meeting.
The notice of the general meeting of shareholders is published in the mass media or must be sent to each of the shareholders if their number does not exceed fifty.
Shareholders located outside the place of distribution of the printed publication established by the authorized body may be notified by registered mail with a notification of its delivery, by telephone or telegram, as well as using other means of communication that ensure the recording of the notification.
Courts should pay attention to the information listed in paragraph 3 of Article 41 of the Law, which must necessarily be contained in the notice of the general meeting of shareholders: date, time and place, time of the beginning of registration of participants in the meeting, as well as the date and time of the repeated general meeting (not earlier than the day after the failed meeting according to paragraph 1 of Article 42 of the Law), the date of drawing up the list of shareholders entitled to participate in the general meeting of shareholders; the agenda of the general meeting of shareholders; the procedure for familiarizing shareholders with the materials on the agenda items.
The footnote. Paragraph 15 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
The agenda may be supplemented by a shareholder who independently or jointly with other shareholders owns five or more percent of the company's voting shares or by the Board of Directors, provided that the shareholders are notified of such additions no later than fifteen days before the date of the general meeting or in accordance with the procedure established by paragraph 4 of Article 43 of the Law.
An issue from the list of mandatory issues provided for in paragraph 2 of Article 35 of the Law is additionally included in the agenda.
Amendments and (or) additions may be made to the agenda if the majority of shareholders (or their representatives) participating in the general meeting and holding in aggregate at least ninety-five percent of the company's voting shares voted in favor of their introduction.
The General Meeting is not entitled to consider issues not included in the agenda and make decisions on them.
Materials on the agenda items must contain information sufficient to make informed decisions on them, be ready and available at the location of the company's executive body for shareholders to review no later than ten days before the date of the meeting, and if requested by a shareholder, be sent to him within three working days from the date of receipt of the request.. The costs of making copies of documents and delivering them are borne by the shareholder, unless otherwise provided by the Articles of association (paragraph 4 of Article 44 of the Law).
The footnote. Paragraph 16 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
The General Meeting of Shareholders has the right to consider and make decisions on the issues on the agenda if, at the time of the end of registration of participants in the meeting, shareholders or their representatives included in the list of shareholders entitled to participate and vote on it, owning a total of fifty percent or more of the voting shares, are registered.
The date of drawing up the list of shareholders entitled to participate in and vote at the general meeting of shareholders cannot be set earlier than the date of the decision to hold the general meeting and should allow shareholders to adjust their actions and prepare for the formation of the list of shareholders, for which they must be given sufficient time (paragraph 1 of Article 39 of the Law, paragraph 1 article 45 of the Law).
A shareholder (a shareholder's representative) who has not passed registration has the right to attend the general meeting of shareholders and participate in the discussion of issues on the agenda, but is not taken into account when determining the quorum and is not entitled to participate in voting.
The registration of shareholders is considered completed with the start of the meeting, since, according to paragraph 2 of Article 48 of the Law, registration of incoming shareholders (their representatives) is carried out before the opening of the general meeting.
The company's officials are liable to the company and shareholders for damage caused by their actions (inaction), in accordance with the laws of the Republic of Kazakhstan, including for losses incurred as a result of providing misleading or knowingly false information and violating the procedure for providing information established by Law.
The Company has the right, on the basis of a decision of the general meeting of shareholders, to file a lawsuit against an official for compensation for damage or losses caused by him to the company.
Officials are exempt from liability if they voted against a decision taken by the company's body or did not participate in the voting (Article 63 of the Law).
The Company ensures mandatory maintenance of a list of its employees with information constituting an official or commercial secret (paragraph 3 of Article 79 of the Law).
When accepting an application for the withdrawal of a shareholder by forcibly selling his shares at the price of their placement on the facts of his disclosure to enterprises competing with the company of information about the company and its activities constituting official, commercial or other legally protected secret, the courts must require the company to comply with subparagraph 5) of part two of Article 148 of the CPC on the provision of relevant evidence.
The footnote. Paragraph 18 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
Failure to comply with the requirements established by Law and other legislative acts of the Republic of Kazakhstan to the procedure for making a transaction by the company with the participation of its affiliated persons may serve as a basis for invalidating the transaction at the request of any interested person.
A person who has intentionally concluded a transaction involving affiliated companies or in violation of the procedure for its execution, as well as a major transaction in violation of the requirements established by Law and the charter, has no right to demand that the transaction be declared invalid if such a demand is caused by selfish motives or the intention to evade responsibility.
Actions to complete a transaction that violates the requirements of the law, the company's charter, or the competence of its bodies, resulting in its invalidity in accordance with Article 158 of the Civil Code (for example, an upward price change, etc.), may indicate self-interest or intent to evade responsibility.
The concept of a major transaction is given in paragraph 1 of Article 68 of the Law.
Courts should keep in mind that the property that is the subject of a major transaction, as well as the assets of the company, are valued at market value (Article 69 of the Law).
When challenging major transactions, the decision on the conclusion of which, in cases specified by the charter, was taken by the board of directors or the general meeting, it is not necessary to simultaneously raise the issue of declaring illegal the decision of the company's body, in pursuance of which the transaction was made.
A person interested in making a transaction by the company concluded in violation of the legal requirements for the procedure for its conclusion is liable to the company in the amount of losses caused to the company. When making a transaction by several persons, their responsibility to society is in solidarity.
According to paragraph 1 of Article 70 of the Law, in order to inform creditors, the public and shareholders, the company is obliged to publish a notice of the transaction in Kazakh and Russian in the mass media within three working days after the decision on the conclusion of a major transaction by the company.
The footnote. Paragraph 20 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).
In order to prevent violations of the rights of minority shareholders during the reorganization of the company, the courts, when resolving disputes, should verify the legality of the decision to separate or divide the company in order to prevent the assets from being transferred to new companies in this way and leaving the reorganized company with only financial obligations for subsequent forced liquidation.
If the company's bodies authorized by a court decision to carry out compulsory reorganization in the form of division or separation do not carry out the reorganization within the time period determined by the decision, the court appoints a trustee and instructs him to carry out the reorganization.
From the moment of appointment, the powers of the Board of Directors and the general meeting to determine the terms of reorganization provided for in articles 84 and 85 of the Law are transferred to the trustee.
The trustee draws up the dividing balance sheet and submits it to the court for consideration, together with the constituent documents of the companies established as a result of the division or separation approved at the general meeting. The State registration of companies established as a result of reorganization is carried out on the basis of a court decision (article 87 of the Law).
When making a decision on the compulsory reorganization of a company in the form of transformation in accordance with article 90 of the Law, the court, in accordance with article 87 of the Law, is obliged to determine a reasonable period for the reorganization by the relevant body of the company, not exceeding, as a rule, three months. In case of non-fulfillment of such a decision, the court appoints a trustee for a period determined by analogy with bankruptcy legislation.
The formation of the bodies of a company that has arisen as a result of the reorganization is carried out according to the rules of its establishment, and the legitimacy of decisions and transactions depends on the competence of the bodies and persons charged with representing the interests of the company in the process of its creation and state registration (subparagraph 6) of paragraph 1 of Article 7 of the Law).
According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, and is also generally binding and effective from the date of its official publication.
Chairman
The Supreme Court
Republic of Kazakhstan
M. ALIMBEKOV
Judge
The Supreme Court
Republic of Kazakhstan,
Secretary of the plenary session
J. BAISHEV
© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan
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