BUYING A SINGLE SHARE OF THE COMPANY TO CIRCUMVENT THE STATUTORY PROHIBITIONS IS UNFAIR

The plaintiff, being a shareholder of the company, appealed to the court with a request to transfer to himself the rights of the buyer under the purchase and sale agreements of the company's shares concluded between the shareholder and the defendants.

In support of the claim, the plaintiff pointed out that the defendant (shareholder) acquired a connection with the company as a result of giving him 1 share of the company, after which he acquired shares of the company owned by the company controlled by him, which was also a shareholder.

In addition, a number of other purchase and sale and donation agreements were concluded by the shareholder.

The court of first instance granted the claim, agreeing with the argument that the initial donation of the company's shares to the shareholder was carried out in order to circumvent the need for a mandatory offer.

According to the court, the donation agreement executed by the defendants is a sham, since it was made in order to cover up the contract of sale of shares and deprive other shareholders of the opportunity to use their pre-emptive right to purchase alienated shares.

The appeal did not share this approach and pointed to the absence of a set of circumstances indicating the pretense and illegality of transactions, their orientation bypassing the current legislation: the court justified the donation of one share by the fact that the defendants worked together in the supervisory board of the company for a long time; also pointing to a significant, in the opinion of the court, the time period between the donation of shares and subsequent purchase and sale of shares, for more than 4 months; as well as for different subject composition in gift and purchase and sale transactions.

The district court upheld the decision of the first instance and drew attention to the fact that as a result of the donation of one share, a citizen had the opportunity to purchase all the shares of the company belonging to the joint-stock company controlled by him.

This obviously indicates that, having carried out the donation of property, the parties pursued the goal not of transferring ownership of the property (shares), but of acquiring the rights of a shareholder of the company by a citizen in order for him to make further transactions for the acquisition of shares of the company from a shareholder controlled by him.