2) adoption of a resolution on reorganization by the members and shareholders (general meeting of members or shareholders) of an organization being reorganized (each of the organizations involved in the reorganization), including confirmation of the transfer act, as well as a merger (acquisition) agreement where the reorganization takes the form of a merger (acquisition) or split-up (spin-off) associated with merger (acquisition); 3) notification of the registration authority and creditors of all the organizations involved in the reorganization of such resolution on reorganization; 4) state registration of the newly created organizations-successors and/or the making of entries in the state register on the termination of the organizations-predecessors and entries of legal succession (in the event of split-up (spin-off) associated with merger (acquisition)). 2. The adoption of a resolution on reorganization by members or shareholders (general meeting of members or shareholders) of an organization being reorganized (each of the organizations involved in the reorganization) or any other competent body of an organization being reorganized is made pursuant to the regulations and within the competence established by a law for the appropriate organizational-legal form of an organization. A resolution on reorganization may specify the period of time after the expiration of which such resolution may not be performed and the merger (acquisition) agreement, approved by such resolution, ceases to have effect. Such period of time expires from the moment of: 1) the state registration of one of the organizations newly created as a result of a reorganization in the form of a split-up-for a resolution on reorganization in the form of a split-up; 2) the making of an entry in the state register on the termination of the activities of an organization (organizations) being acquired-for a resolution on reorganization in the form of a merger, or an entry of legal succession-for reorganization in the form of a split-up (spin-off) associated with merger (acquisition); 3) the state registration of an organization newly created as a result of a reorganization- for a resolution on reorganization in the form of merger, spin-off or transformation. A resolution on reorganization in the form of a spin-off may provide for a period of time after the expiration of which such resolution may not be performed in relation to an organization (organizations) to be reorganized that failed to be registered within such period of time. In this case, the reorganization through spin-off is deemed to have been completed upon the state registration of the last organization that was spun off within the period of time as envisaged by this Clause. 3. A resolution on reorganization or a merger (acquisition) agreement may provide for a special procedure for concluding individual transactions and/or types of transactions by an organization being reorganized or prohibit such transactions from the moment of adopting such resolution on reorganization until such reorganization has been completed. Any transaction concluded in violation of such specified special procedure or prohibition may be declared invalid by a lawsuit brought by an organization (organizations) being reorganized or by a member or shareholder of an organization being reorganized who is such as of the moment of concluding such transaction. A court dismisses demands to declare as invalid a transaction concluded in violation of the requirements as envisaged by this Clause where: 1) as the result of performance of a challenged transaction, a resolution for the conclusion of which was adopted by another body or authorized person of the organization being organized, the organization being reorganized or member who has filed the lawsuit has not incurred damage or where the transaction has not been performed, such transaction will not, in substantiated view of a court, cause damage; 2) upon consideration of the lawsuit filed by an organization being reorganized, it has not been proven that the other party knew or should have known about the conclusion of the transaction in violation of the of requirements for a transaction as provided for in this Clause. 4. Reorganization is deemed to be completed and the appropriate organization deemed to be reorganized as of the moment of: 1) the state registration of an organization created as the result of a reorganization-where reorganization is in the form of a merger, split-up, spin-off, or transformation; 2) the making of an entry in the state register of the termination of the activities of a acquired organization-where reorganization is in the form of a acquisition, or of an entry in the state register of the legal succession-where reorganization is in the form of a split-up (spin-off) associated with a merger (acquisition). 5. As of the moment of completion of the reorganization, the members of organizations involved in a reorganization become members of the organization (organizations) created as the result of such reorganization (continuing organization (organizations)) unless otherwise specified by the present Law or by other domestic legislation.
Article 155. Legal Succession after Reorganization. Transfer Act
1. In a merger, the rights and duties of each company involved are deemed to be transferred to the newly created organization, byway of the procedure of universal legal succession, as of the moment of completion of the reorganization. 2. In a reorganization in the form of an acquisition, the rights and duties of the appropriate organization are deemed to be transferred to the organization performing the acquisition, by way of the procedure of universal legal succession, as of the moment of completion of the reorganization, which applies to each organization being acquired. 3. In a split-up, the rights and duties of the organization being split up are deemed to be transferred to other organizations as of the moment of completion of the reorganization, which applies to each organization (newly created or participating in the reorganization including other forms of reorganization apart from the split-up). 4. In a spin-off from an organization or from several organizations, the rights and duties of the organization being reorganized are deemed to be transferred as of the moment of completion of the reorganization, which applies to each organization (newly created or participating in the reorganization including other forms of reorganization apart from the spin-off). 5. In a transformation of a legal person from one organizational-legal form into a legal person of another organizational-legal form, the rights and duties of the reorganized organization are deemed to be transferred byway of the procedure of universal legal succession to the organization created as a result of the reorganization as of the moment of completion of the reorganization. 6. A transfer act is a document attesting to legal succession of rights and duties during a reorganization. It must contain provisions on legal succession for all obligations of the organization being reorganized with respect to all of its creditors and debtors, including obligations disputed by the parties. A transfer act is not obligatory in a reorganization in the form of a merger of legal persons as well as of an acquisition of one legal person by another or of a transformation of a legal person. A transfer act, along with the aforementioned data, must specify the procedure to determine legal succession in relation to changes in property and obligations that may arise after the date of the transfer act with respect to business conducted by the organization being reorganized. However, said procedure may not permit a transfer of the competence to adopt resolutions on amending the transfer act to a body of the organization being organized or to any other person. 7. A transfer act is approved at the same time as adopting a resolution on the reorganization of an organization made by its founder (members) or by a body authorized to decide on reorganization, and is submitted along with the documents required for state registration of the newly created organizations or for the amendment of the articles of association of the existing organizations.
Article 156. The Issue of Securities during Reorganization of Commercial Organizations
1. During a reorganization of commercial organizations, securities are issued pursuant to the law on securities markets and other normative-legal acts adopted pursuant thereto by a competent authority taking into account the specific requirements established in the present Article. 2. A resolution, to reorganize a commercial organization (organizations) on the basis of which the company is created, means the resolution to offer securities of company created as the result of a reorganization. The documents required for the state registration of the issue of corporate securities offered at the time of its creation, as the result of a reorganization, are submitted to the competent authority prior to the state registration of the company created as a result of a reorganization. Where the competent authority decides to grant state registration for the issue of securities offered by a company at the time of its creation, as a result of a reorganization, the appropriate resolution enters into force as of the date of the state registration of the company created as a result of a reorganization. 3. The transfer of liabilities under bonds as the result of a reorganization to organizations as legal successors, which pursuant to a law are not entitled to issue bonds, is not permitted. The liabilities under bonds of an organization being reorganized are transferred to the organizations as legal successors pursuant by way of the procedure of legal succession, and in the event of transformation- byway of the procedure of universal legal succession. However, liabilities under bonds within one issue are transferred only to one organization legal-successor. From the moment of the state registration of an organization legal-successor, it stands in place of the reorganized organization being the initial bond issuer (replacement of the bond issuer) and assumes the bond liabilities on its behalf in the amount and pursuant to the terms and conditions that have existed prior to the state registration of the organization legal-successor. However, this does not involve the state registration of the issue of bonds, the registration of a prospectus, the state registration of the final bond issue report, or submittal of notification on bond issue results. Where the state registration of the issue of bonds of an organization being reorganized is combined with the registration of an appropriate prospectus, the successor organization acting as a new issuer of bonds, is required to disclose information in the procedure required by a law on securities markets for bond issuers with respect to the securities for which such prospectus is registered. No later than ten days after the state registration of the organization legal-successor, it is required to submit a notice of replacing the bond issuer to the competent governmental authority. Requirements for the form of, and procedure for, submitting said notice are determined by normative-legal acts of the national executive authority on securities markets. The organization legal-successor is required to amend the resolution to issue bonds of the reorganized organization where state registration of the issue of such bonds was accompanied by registration of the bond prospectus-and also the prospectus for such bonds in that part concerning replacement of the bond issuer. Such amendment is subject to registration pursuant to the procedure established by a law on securities markets for registration of the issue of securities. Documents for registering an amendment to a resolution on the issue and the prospectus of reorganized organization are submitted to the authority performing state registration of securities issues no later than thirty days after the state registration of the organization-legal successor. Requirements for the contents and procedure of submitting the aforementioned documents are established by normative-legal acts of the national executive authority on securities markets.
Article 157. Grounds for Reorganization
1. Prior to the adoption of a resolution on reorganization, a commercial company prepares a written document containing a detailed explanation as well as a legal and economic feasibility study of a draft resolution on reorganization, and where reorganization is in the form of a merger (acquisition)-a draft resolution of merger (acquisition), explanation of the exchange ratio (conversion) of shares of stock (equity stakes [dolia], participation unit [pai]), the amount of compensation, as well as a description of the consequences of the reorganization for members of each company involved in such reorganization (hereinafter «written substantiation»). The written substantiation also must describe circumstances complicating the valuation of property of each organization involved in the reorganization. A written substantiation, apart from the aforementioned, contains the following: 1) information about the members (shareholders) of the organization being reorganized holding not less than 5% of its charter capital and not less than 5% of its common shares of stock, including data about the equity stakes in the charter capital belonging of each member (shareholder) of said organization being reorganized and the fractions of common shares of stock held by each such member (for the organization being reorganized-a company); 2) information about the equity stakes of the state or a municipal entity in the charter capital of the company being reorganized and whether there is a special right («golden share»); 3) information on restrictions on participation in the charter capital of the organization being reorganized; 4) information about the amount of accounts payable and accounts receivable of the organization being reorganized for the three last completed fiscal years, or for each completed fiscal year, where the organization being reorganized has existed for less than three years, including information broken down into creditors and debtors, whose debt constitutes not less than 10% of the total accounts payable and receivable, and the amount of accounts payable and receivable with respect to affiliates; 5) information about material transactions concluded by the organization being reorganized within the last three completed fiscal years, or for each completed fiscal year where the organization being reorganized has existed for less than three years where the liabilities under such material transactions constitute not less than 10% of the book value of the assets of the organization being reorganized pursuant to its accounting data for the appropriate completed reporting period; 6) information about the dividends announced and paid on shares of stock, about net profit distribution amongst the members of the organization-economic company being reorganized, as well as about the income received under the bonds of the organization being reorganized within the last three completed fiscal years, or for each completed fiscal year where the organization being reorganized has existed for less than three years, including the procedure for paying dividends and other income; 7) information about the persons intending to provide security to the creditors of the organization being reorganized, as well as about the terms and conditions of securing the satisfaction of obligations of the organization being reorganized (if such persons exist). 2. The written feasibility study is not required where: 1) all the members of the organizations involved in the reorganization have waived their rights to a receive a written substantiation; 2) all the shares (equity stakes, participatory unit) of the organization involved in a merger belong to the organization with which former is being merged; 3) all the shares (equity stakes, participatory unit) of the organization being acquired belong to the organization performing the acquisition. The declarations of natural persons-members of an organization being reorganized on the waiver of receiving a written substantiation must be notarially authenticated.
Article 158. Appraiser
1. The market value of shares (equity stakes, participatory unit) of organizations involved in a reorganization, which is used to calculate the exchange ratio of shares of stock (equity stakes, participation unit) and, where set forth by domestic legislation, the amount of compensation to be paid as a result of the reorganization to members of the organization being reorganized are determined by an independent appraiser (appraisers). 2. The valuation required by Clause 1 of the present Article is not required where: 1) all the members of organizations involved in the reorganization have waived such valuation; 2) all the shares (equity stakes, participatory unit) of the organization involved in a merger belong to the organization with which the former is being merged; 3) all the shares (equity stakes, participatory unit) of the organization being acquired belong to the organization performing the acquisition; 4) the shares of the company being reorganized are on traders' quotations lists on securities markets (taking in account the particulars defined by Clause 3 of the present Article). The declarations of natural persons-members of an organization being reorganized on the waiver of conducting a valuation must be notarially authenticated. 3. Where the shares of stock of a company being reorganized are on traders' quotations lists on securities markets, the market value of such shares used to determine the ratio of share (equity stakes, participation unit) conversion, distribution (exchange) may not be lower than the weighted average price of such shares determined pursuant to the trading results of a securities markets trader for the six months preceding the date of compiling the list of persons entitled to participate in the general shareholder's meeting, during which the appropriate resolution on reorganization is adopted. Where the shares of stock of an organization being reorganized maybe found on the quotation lists of two or more securities markets traders, the weighted average price of such shares is determined pursuant to the trading results of all the traders in securities markets, where said shares have been offered for six months or more. 4. Each organization involved in a reorganization appoints an independent appraiser. The merger (acquisition) agreement may require the appointment of two or more appraisers for the purpose of verifying the market value of the shares of stock (equity stakes, participatory unit) of each organization involved in a merger (acquisition) or reorganization, where the merger (acquisition) is combined with other forms of a reorganization. In such case, the merger (acquisition) agreement must specify the procedure for calculating the price applied for the purposes set forth in Clause 1 of the present Article in the event that the valuation results differ. 5. Each appraiser involved in appraising the market value of shares of stock (equity stakes, participatory unit) of the organizations being reorganized pursuant to Paragraph 2 Clause 4 of the present Article is entitled to receive any information and documents required to determine the market value of the shares of stock (equity stakes, participatory unit) from any organization involved in a reorganization, as well as to conduct any inspections required for said purpose. 6. The appraiser and the organization being reorganized are jointly liable for damages incurred by the members of the organization being reorganized resulting from a violation of the regulations on the independence of an appraiser contained in valuation legislation.
Article 159. Securing the Right to Information of the Members of an Organization Being Reorganized
1. The following documents must be provided for review to members of each organization being reorganized not less than thirty days prior to adoption of a resolution on reorganization: 1) the draft resolution on reorganization; 2) the draft articles of association of the company (founding documents) of each organization created as a result of a reorganization, as well as the articles of association (articles of association) of the existing organizations which will continue their activities upon the completion of the reorganization, along with the proposed changes and amendments thereto (if such changes and amendments are necessary pursuant to the draft resolution on reorganization); 3) the transfer act with appendixes thereto; 4) the written feasibility study for all the organizations involved in the reorganization, where the organizations being reorganized are not exempt from the obligation to prepare such written feasibility study; 5) the report of the independent appraiser, pursuant to the present Law, on each organization involved in the reorganization, where the organizations being reorganized are not exempt from the obligation to perform such valuation pursuant to the present Law; 6) copies of the annual reports and annual accounting balance sheets for all the organizations involved in the reorganization for the three last completed fiscal years, or for each completed fiscal year, where the organization being reorganized has existed for less than three years; as well as copies of quarterly accounting (financial) reports of the aforementioned organizations for the last completed quarter preceding the adoption of the resolution on reorganization; 7) a calculation of value of the net assets for each organization involved in the reorganization as of the last reporting date preceding the adoption of the resolution on reorganization. 2. The documents enumerated in Clause 1 of the present Article must be provided to each member of an organization involved in a reorganization within three days from the moment of petition for review in the offices of such organization's executive body or pursuant to another procedure as envisaged by the articles of association. The organization is required to provide its memberwith copies of the aforementioned documents within three days from moment the petition for review. The fee charged by an organization for the provision of such copies may not exceed the cost of the preparation thereof. The organizations involved in a reorganization are entitled to, and the companies, the securities of which are offered at an organized securities market are obliged to, disclose the information enumerated in Clause 1 of the present Article within the timeframes established by Clause 1 of the present Article pursuant to the procedure established by the authorized body. The aforementioned data must be made available to the shareholders (members) of organizations being reorganized prior to the completion of the reorganization. 3. Organizations involved in a reorganization are required provide the members of all the organizations involved in a reorganization with access to information about material changes in the content and value of its property occurring after the adoption of a resolution on reorganization. The organization must provide the appropriate documents for review in the premises of the organization's executive body within three days after an appropriate demand for review has been made. The organization is required to provide its member (founder, shareholder, member) with copies of the aforementioned documents within three days after an appropriate petition has been made. The fee for the provision of such copies may not exceed the cost of the preparation thereof. The organizations involved in a reorganization are entitled to, and the companies, the securities of which are offered on organized securities markets are obliged to, disclose the information as envisaged by this Clause within three days after the changes in the content and value of the property of the organization being reorganized have taken place, pursuant to the procedure established by the authorized body. The aforementioned data must be made available to the shareholders (members) of organizations being reorganized prior to the completion of the reorganization.
Article 160. Notification of the Registration Authority. Protection of the Rights of Creditors of an Organization Being Reorganized
1. Within three days after the adoption of an appropriate resolution on its reorganization (or the adoption of a resolution on reorganization of the last organization participating in such reorganization), an organization is required to notify the registration authority in writing about the commencement of a reorganization procedure indicating the form of reorganization. On the basis of such notification, the registration authority makes an entry in the state register indicating that the organization is being reorganized. 2. After notification of commencement of a reorganization procedure has been provided to the registration authority, the organization being registered within five days informs all the creditors known to it in writing about the commencement of a reorganization or publishes notice of its reorganization three times, with a periodicity of once per month, in the printed periodicals in which information about the state registration of legal persons is published. Such notice (notification) of reorganization contains: 1) the full and abbreviated business name, information about the location of each organization involved in the reorganization; 2) the full and abbreviated business name, information about the location of each organization being created (continuing its activities) as the result of the reorganization of organizations; 3) the form of reorganization, and where of combining several forms of reorganization-a description of such reorganization procedure; 4) a description of the procedure and of the terms and conditions for creditors of each organization involved in a reorganization to assert their claims, including the location of a permanent executive body of the organization and additional addresses, at which such claims may be asserted and means of communication (telephone numbers, fax numbers, e-mail addresses, corporate website, etc.); 5) information about the persons performing the functions of the sole executive body of each of the organizations involved in a reorganization, as well as of organizations created (continuing their activities) as a result of the reorganization. Where the reorganization involves two organizations or more, the reorganization notice is published on behalf of all the organizations participating in such reorganization. 3. An organization involved in a reorganization is required to provide a creditor with the following documents for review within three days from the moment of making the appropriate petition: 1) a copy of the written feasibility study on reorganization with all the appendixes except for cases where the organization being reorganized is exempt from an obligation to prepare such feasibility study pursuant to the present Law; 2) a copy of the merger (acquisition) agreement and a copy of the resolution on reorganization; 3) a copy of the transfer act and, where such act contains appendixes, the possibility to review such appendixes; 4) copies of its annual reports and annual accounting balance sheets, as well as copies of the annual reports and annual accounting balance sheets for all the organizations involved in the reorganization for the three last completed fiscal years, or for each completed fiscal year, where the organization being reorganized has existed for less than three years; copies of quarterly accounting (financial) reports of the aforementioned organizations for the last completed quarter preceding adoption of a resolution on reorganization. The documents enumerated in this Clause must be provided to any creditor for review in the premises of the executive body of the organization being reorganized. Upon demand of a creditor, such organization is required to provide her/him/it with copies of the aforementioned documents within three days from the moment of such petition, and the fee charged by an organization for provision of such copies may not exceed the preparation costs thereof. 4. After adoption of a resolution on reorganization, but no later than thirty days as of the date upon which notice was sent or as of the date of the last publication of notice of the reorganization, creditors of an organization being reorganized are entitled to file a motion with a court at the location of the debtor organization being reorganized with a demand for accelerated performance of the appropriate obligation by the debtor and, should such acceleration be impossible, for termination of liability and indemnification of the losses incurred in relation thereto. The court denies the aforementioned claims where: 1) the organization being reorganized proves that, as a result of such reorganization, the rights and lawful interests of creditors are not violated; 2) the terms and conditions of the reorganization envisage joint liability of the organizations being created (continuing to exist) as a result of the reorganization for obligations of the organization being reorganized; 3) evidence is submitted of sufficient security for satisfaction of the appropriate obligations pursuant to Clause 5 of the present Article. Should the claim for accelerated performance (termination) of obligations and indemnification of losses after completion of reorganization be granted, a court imposes joint liability under the obligations of the organization being reorganized upon the organizations newly created (continuing their activities) as a result of a reorganization. The rights and lawful interests of the creditors of an organization being reorganized are protected where this does not contravene the essence of the obligations between the creditor and the organization-debtor being reorganized. 5. The satisfaction of obligations to credit institutions by an organization being reorganized may be secured through pledge, bank guarantee, state or municipal guarantee, surety, or other methods that do not contravene a law. The satisfaction of the aforementioned obligations may not be secured by a withholding. The performance of obligations of an organization being reorganized may be secured by such organization itself or its members as well as by third parties. The rights and duties of the person or persons securing the performance of obligations, of an organization being reorganized, flow from such security and arise as of the date upon which an arbitration court has rendered a ruling approving said security. An agreement on securing obligations by an organization being reorganized is concluded in writing within fifteen days as of the date upon which an arbitration court has rendered a ruling on approving the security and is signed by the person or persons providing the security and by the creditors, who have filed a lawsuit with the court. The agreement on securing obligations of the organization being reorganized must submitted to a court not less than ten days after the signing thereof. Upon the expiration of timeframes as envisaged by this Clause, a court renders a ruling dismissing the creditor's (creditors') lawsuit where the appropriate security has been provided to the creditors of the organization being reorganized. 6. A general meeting of the bond holders issued by an organization being reorganized may be convened after adoption of a resolution on reorganization but no later than thirty days as of the date upon which notice was sent or as of the date of the last publication on reorganization. Such general meeting of bond holders is entitled to replace the representative of the bond holders, authorized to represent the latter's interests with respect to reorganization. 7. Where it is impossible to determine the legal successor of an organization being reorganized to a specific obligation, the organizations-legal successor, as well as the organizations-legal predecessor (for reorganization in the form of a spin-off), are jointly liable to the creditors for such obligation. A demand to impose joint liability, as envisaged by this Clause, may be filed no later than three years after the reorganization has been completed.
Article 161. Requirements for the Amount of the Charter Capital of Organizations Being Reorganized
1. The amount of the charter capital of an organization created as a result of a reorganization may not constitute less the minimum amount of charter capital established by a law for the organizations belonging to the appropriate organizational-legal forms as of the date of the completion of the reorganization. 2. The amount of the charter capital of an organization created as a result of a reorganization may be less, equal to or greater than the charter capital of organizations participating in such reorganization, as well as less, equal to or greater than the authorized (subscribed) capital of the legal person that has been transformed into such organization. 3. Additional contributions and other payments for the purpose of forming the charter capital of an organization created as a result of a reorganization, including payments for securities issued during reorganization, and those related to such issue, are not allowed except for those cases when an appropriate resolution on reorganization has been adopted unanimously by all the members of each organization participating in such reorganization. A law may establish other instances where additional contributions and payments for the purpose of forming the charter capital may be allowed during a reorganization. 4. The property of an organization created as a result of a reorganization may be formed only by the property of the organizations involved in the reorganization except for those cases when an appropriate resolution on reorganization has been adopted unanimously by all the members of each organization participating in such reorganization. 5. The value of the net assets an organization-legal predecessor, continuing its activities, as well as that of the organization-legal successor must not, as a result of a reorganization, turn out to be lower than the amount of the charter capital of the appropriate, and of each of these, organizations.
Article 162. Election of Bodies of a Company Created as a Result of a Reorganization
1. Proposals for the nomination of candidates for election to the bodies of each of the organizations being created as a result of a reorganization are made by members of each organization being reorganized pursuant to the procedure within the timeframes set forth in a law defining the legal status of legal persons of the same organizational-legal form in which the organization is created as a result of the reorganization.
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