The Board of Directors of the Bank exercises general management of the Bank's activities, with the exception of resolving issues within the competence of the General Meeting of Shareholders of the Bank current legislation Russian Federation and the Bank's Charter.

Its competence includes determining strategic directions activities of the Bank, control over financial and economic activities, creation and operation effective system internal control, ensuring the implementation of the rights of shareholders, as well as control over the activities of executive bodies.

ADAMENKO
Tatyana Nikolaevna
Chairman of the Board of Directors of Texbank JSC

Chairman of the Board of Directors of Texbank JSC
Date of election (re-election) to the Board of Directors: 06/14/2019
Higher
Name educational organization: Stavropol Polytechnic Institute
Year of graduation: 1988
Qualification: “Economist Engineer”
Specialty: “Economics and organization road transport»
Academy of National Economy under the Government of the Russian Federation
Year of graduation: 1999
Qualification: Master of Management
Specialty: “Modern head of a commercial bank”

Absent

From June 28, 2017 to the present: Chairman of the Board of Directors of Texbank JSC. (By the decision of the General Meeting of Shareholders of the Bank (Minutes No. 02/18/EGM dated September 21, 2018, the Bank was renamed into Texbank Joint Stock Company (Texbank JSC).
From June 24, 2016 to June 28, 2017: member of the Board of Directors of JSCB Texbank.
From January 11, 2016 to May 15, 2017: Texbank JSC, President and Chairman of the Board.
Job responsibilities: carries out the general management of the Bank in strict accordance with the goals and objectives provided for by Federal laws. The Charter of the Bank to achieve profitable activities of the Bank, increase efficiency, prevent damage to the Bank to depositors, clients, ensure the fulfillment of the assigned tasks of the Meeting of Shareholders. Management Board, Board of Directors.
From 08/10/2015 to 01/11/2016: JSCB Texbank, Advisor to the President for Strategy and Development.
Official responsibilities: organizing work on the development and implementation of changes in business processes and technologies, analyzing the work of all services to improve activities, developing, together with other services of the Bank, new technologies and processes in the bank in order to increase efficiency.
From 03/11/2013 to 07/03/2015: Bank Vozrozhdenie (OJSC), Department for Branch Network Development, Head of Department
Official responsibilities: development of standard transformations of branches into operational offices, work on reorganizing branches and VSP according to a single standard, implementation of new organizational structures of VSP, functionality for VSP personnel, development of standard staffing tables for VSP and bank branches, introduction of new sales models based on the principle of a single front line, measures for closing, opening, changing the location of VSP, monitoring the implementation of the VSP plan.
From September 17, 2012 to March 11, 2013: Bank Vozrozhdenie (OJSC), Moscow, Department retail business, Deputy Head of Department.
Official responsibilities: supervision of the work of bank branches in organizing the work of retail business units, monitoring the implementation of the plan, developing sales standards.
From 07/07/2003 to 09/17/2012: Bank Vozrozhdenie (OJSC), Manager of the Stavropol branch.
Official duties: organizing the work of the branch, monitoring all business processes, organizing and conducting negotiations with clients - large companies and holdings, reaching agreement on the terms of servicing transactions, organizing sales of banking services to clients - loans, factoring, leasing, salary projects, bills, mortgage and consumer lending, deposits, plastic cards, cash settlement services, etc. Opening of new 8 additional offices and 5 operating cash desks in Caucasian cities Mineralnye Vody, business planning and ensuring the implementation of the plan for the branch, business development of VSP, branch.

Job responsibilities:

• Ensures the effective organization of the work of the Board of Directors of the Bank and its interaction with other bodies of the Bank;
• Maintains constant contacts with the Bank's divisions and officials in order to timely obtain the most complete and reliable information necessary for the Board of Directors of the Bank to make decisions, provide effective interaction these bodies and officials between each other and third parties;
• Provides successful solution The Board of Directors of its tasks;
• Organizes the development of the most effective decisions on issues on the agenda;
• Convenes meetings of the Board of Directors and presides over them;
• Determines the form of holding meetings;
• Responsible for developing the agenda for meetings of the Bank’s Board of Directors;
• Organizes the keeping of minutes at meetings;
• Accepts necessary measures to timely provide members of the Board of Directors with the information necessary to make decisions on agenda items;
• Provides an opportunity for all members of the Board of Directors to express their point of view on the issues discussed, promotes the search for an agreed solution by members of the Board of Directors in the interests of the Bank;
• Signs letters and other documents emanating from the Board of Directors of the Bank, including certifying extracts from the minutes of meetings of the Board of Directors of the Bank;
• Signs an agreement with the Chairman of the Board of the Bank on behalf of the Bank;
• Presides at general meetings of shareholders of the Bank;
• Bears personal responsibility to the General Meeting of Shareholders of the Bank for organizing the activities of the Board of Directors of the Bank.

SHAPOVALIANTS
Andrey Georgievich
Deputy Chairman of the Board of Directors of Texbank JSC

Name of position held: Deputy Chairman of the Board of Directors of Texbank JSC

Information about vocational education: Higher
Name of educational organization: Moscow Institute National economy them. G.V. Plekhanov
Year of graduation: 1974
Qualification: "Economist"

Information about additional professional education: Postgraduate studies at the Moscow Institute of National Economy named after G.V. Plekhanov
Year of graduation: 1979
Qualification: "Economist"
Specialty: “Finance and Credit”

Information about academic degree, academic title: Candidate of Economic Sciences
Date of award: 06 September 1981

Information about labor activity for the last 5 years preceding the date of election to the position held:
With 15.02.2008 years to present: JSC Management Company Murmansk Transport Hub, General Director.
Job responsibilities:
Provides general management of the company’s activities on the basis of the Charter, acts on behalf of the Company without a power of attorney and represents its interests in all government and other bodies and organizations, manages property and in cash of the Company, in order to achieve the goals provided for by the purpose of the Company, signs all financial documents, opens current and other accounts in banks, concludes transactions on behalf of the Company, resolves other issues current activities The companies within its competence exercise other powers provided for by law and the Charter of the Company.

WITH 24.06.2016 By 04.07.2016 Year – Member of the Board of Directors of JSCB Texbank.
WITH 05.07.2016 By 27.06.2017 of the year - Chairman of the Board of Directors of JSC JSCB Texbank.
Job responsibilities:
Effective organization of the work of the Board of Directors of the Bank and its interaction with other bodies of the Bank; constant contacts with the Bank's divisions and officials in order to timely obtain the most complete and reliable information necessary for the Bank's Board of Directors to make decisions, ensuring effective interaction between these bodies and officials among themselves and third parties; successful resolution of tasks by the Board of Directors of the Bank, in accordance with the Charter, organization of the development of the most effective decisions on issues on the agenda. Convening meetings of the Board of Directors of the Bank and chairing them; formation of the agenda for meetings of the Bank’s Board of Directors; organizing minutes at meetings; resolving other issues in accordance with the current legislation of the Russian Federation and the Bank’s Charter.

C 28.06.2017 of the year 22.06.2018 Deputy Chairman of the Board of Directors of JSCB Texbank.
Job responsibilities:

C 22.06.2018 years to present Deputy Chairman of the Board of Directors of Texbank JSC. (By the decision of the General Meeting of Shareholders of the Bank (Minutes No. 02/18/EGM dated September 21, 2018, the Bank was renamed into Texbank Joint Stock Company (Texbank JSC).
Job responsibilities:
Performing the functions of a member of the Board of Directors in accordance with the legislation of the Russian Federation and the Charter of the Bank.

are missing.

ELKANOV
Rustam Hanafievich

Name of position held: Member of the Board of Directors of Texbank JSC
Date of election (re-election) to the Board of Directors: June 14, 2019

Information about professional education: Higher
Name of educational organization: Cherkessk Karachay-Cherkess Technological Institute.
Year of graduation: 1998
Qualification: "Manager"
Specialty: "Management"

Information about additional professional education - additional (to higher) education:
Name of educational organization: Moscow Financial Academy under the Government of the Russian Federation
Year of completion 2005
Qualification Master of Business Administration.

Information about additional professional education:
1. Chinese Academy of Executive Personnel Pudong, on the topic “Public Policy and Management”, October 23, 2015, Shanghai, China.
2.Federal state budget educational institution higher education « Russian Academy national economy and civil service under the President of the Russian Federation", Project management in the field of government agencies, November 21, 2015, Moscow
3. Federal State Budgetary Educational Institution of Higher Education “Russian Academy of National Economy and Public Administration under the President of the Russian Federation”, “Training and retraining of the management personnel reserve”, November 21, 2015 Moscow
4. Federal State Budgetary Educational Institution of Higher Education “Russian Academy of National Economy and Public Administration under the President of the Russian Federation”, “Improving the personal effectiveness of a leader”, November 21, 2015, Moscow.

Information about academic degree, academic title:
Kislovodsk Institute of Economics and Law, April 5, 2003, awarded the academic degree of Candidate of Economic Sciences.

Information on labor activity for the last 5 years preceding the date of election to the position held:
With 04/18/2013 until September 14, 2015
Job responsibilities:

With 09/14/2015 until 04.10.2016 Minister of Finance of the Karachay-Cherkess Republic.
Job responsibilities:
Formation and execution of the budget of the Karachay-Cherkess Republic, control over effective use budget funds, mobilization of republican budget revenues, development and protection regulatory documents republics in the field of finance, control in the field of government procurement, etc.
With 10/04/2016 until July 17, 2018 Minister of Finance of the Karachay-Cherkess Republic.
Job responsibilities:
Formation and execution of the budget of the Karachay-Cherkess Republic, control over the effective use of budget funds, mobilization of budget revenues of the republic, development and protection of regulatory documents of the republic in the field of finance, control in the field of public procurement, etc.
With 07/18/2018 until 03/01/2019 Financial Director LLC "Company Yug-Trade"
Job responsibilities:
Formation and control over the financial and economic activities of the organization.
With 03/27/2019 until 05/06/2019 Advisor to the President - Chairman of the Board of Texbank JSC.
Job responsibilities:
Carrying out activities to attract clients, establishing partnerships, mutually beneficial relationships with organizations, agreeing on the terms of cooperation agreements.
With 05/07/2019 until August 20, 2019 time President-Chairman of the Board of Texbank JSC.
Job responsibilities:
Carrying out general management of the Bank in strict accordance with the goals and objectives provided for by Federal laws and the Charter of the Bank to achieve profitable activities of the Bank; increasing efficiency, preventing damage to the Bank, depositors, and clients; ensuring the fulfillment of assigned tasks by the Meeting of Shareholders, the Management Board of the Bank, and the Board of Directors.
from 08/21/2019 to date, Chairman of the Board of Texbank JSC (the position of President-Chairman of the Board has been renamed to “Chairman of the Board”, in connection with the approval of Amendments No. 4 to the Charter of Texbank JSC AGM dated June 14, 2019 and their state registration).
Job responsibilities:
Carrying out general management of the Bank in strict accordance with the goals and objectives provided for by Federal laws and the Charter of the Bank; ensuring and organizing the active work of employees to develop the Bank and consider issues of attracting clientele and increasing attracted financial resources, improving the organization of banking operations; prevention of damage to the Bank, depositors, clients; organization of the work of the Bank's Management Board and interaction of all structural divisions of the Bank; ensuring the fulfillment of assigned tasks by the Meeting of Shareholders, the Board of Directors, and the Management Board of the Bank.

STALCHENKO
Alexey Yurievich
member of the Board of Directors

Name of position held: Member of the Board of Directors of Texbank JSC
Date of election (re-election) to the Board of Directors: June 14, 2019

Information about professional education: Higher
Name of educational organization: Russian Economic Academy named after. G.V. Plekhanov.
Year of graduation: 2000
Qualification: "Economist"
Specialty: “Finance and Credit”

Information about additional professional education: Academy of National Economy under the Government of the Russian Federation
Year of graduation: 2011
Qualification: "Management"
Specialty: “Innovation and project management”

Information about academic degree, academic title: Candidate of Economic Sciences, Russian Economic Academy named after. G.V. Plekhanov.
Date of award: December 19, 2003

Information on labor activity for the last 5 years preceding the date of election to the position held:
From 05/07/2019 Currently, he is the General Director of TOK Group LLC and, concurrently, the Director of the Representative Office of PJSC Stavropolenergosbyt in Moscow.
From 05/05/2010 to 04/30/2019 General Director of TOK Group LLC.
Job responsibilities:
Carries out general management of the company’s activities on the basis of the Charter, acts on behalf of the Company without a power of attorney and represents its interests in all state and other bodies and organizations, manages property and funds to achieve the goals provided for by the purpose of the Company, signs all financial documents, opens settlement accounts in banks and other accounts, concludes transactions on behalf of the Company, resolves other issues of the current activities of the Company within its competence, exercises other powers provided for by law and the Charter of the Company.

WITH 28.06.2017 year to present - member of the Board of Directors of Texbank JSC. By the decision of the General Meeting of Shareholders of the Bank (Minutes No. 02/18/EGM dated September 21, 2018), the Bank was renamed into Texbank Joint Stock Company (Texbank JSC).
Job responsibilities:

WITH 24.06.2016 year to 27.06.2017 Year – Deputy Chairman of the Board of Directors of JSCB Texbank.
Job responsibilities:
Resolving issues within the competence of the Board of Directors; in the absence of the Chairman of the Board of Directors of the Bank, performed the functions of the Chairman of the Board of Directors and organized the work of the Board of Directors of the Bank.

Information on current membership in management and control bodies of other legal entities:
Elected Chairman of the Board of Directors of NESK JSC for a new term on July 25, 2019, member of the Board of Directors of NESK JSC (date of re-election for a new term is June 27, 2019).
Member of the Board of Directors of NESK JSC since June 28, 2018.
Job responsibilities:

From 06/29/2017, member of the Board of Directors of NESK JSC, Chairman of the Board of Directors of NESK JSC - from 08/04/2017 to 06/26/2019.
Job responsibilities:
Organizing the work of the Board of Directors of the Company, convening meetings and chairing them, organizing the keeping of minutes at meetings of the Board of Directors, presiding at General Meetings of Shareholders of the Company.
Member of the Board of Directors of PJSC Stavropolenergosbyt since 06/18/2018 (date of election for a new term 06/21/2019)
Job responsibilities:
Resolving issues within the competence of the Board of Directors in accordance with the legislation of the Russian Federation and the Charter of the organization.

MURTAZALIEV
Said-Hasan Salmanovich
member of the Board of Directors

Name of position held: Member of the Board of Directors of Texbank JSC
Date of election (re-election) to the Board of Directors: June 14, 2019

Information about professional education: Higher
Name of educational organization: Checheno-Ingush State Pedagogical Institute
Year of graduation: 1989
Qualification: Physical education teacher
Specialty: 03.03. " Physical Culture»
Institute of Finance and Law (Makhachkala)
Year of graduation: 2009
Qualification: Lawyer
Specialty: "Jurisprudence"

Information about additional professional education: absent
Information about academic degree, academic title: absent

Information on labor activity for the last 5 years preceding the date of election to the position held:
WITH 09.01.2017 year to present - Advisor to the General Director (Director) at the Representative Office of PJSC Stavropolenergosbyt in Moscow.
Job responsibilities:

• financial and commercial reports on projects in which the company participates;
• organizing the attraction of financial resources;
• formation of a strategy for the development of society;
• financial planning and forecasting.

WITH 18.09.2014 year to 26.07.2016 Year - Deputy General Director-Head of the Electric Grid Complex in the Chechen Republic of JSC IDGC of the North Caucasus. (Since July 2, 2015, OJSC Interregional Distribution network company of the North Caucasus was renamed PJSC "Interregional Distribution Grid Company of the North Caucasus")
Job responsibilities:

• conducting negotiations with customers, contractors, subcontractors, and other organizations in the absence of the General Director or on his behalf.

WITH 17.02.2014 year to 18.09.2014 Year - Deputy General Director-Head of the Electric Grid Complex in the Chechen Republic of JSC IDGC of the North Caucasus.
WITH 25.10.2006 year to 17.02.2014 year - Deputy General Director of the Open Joint Stock Company "Southern Grid Company" (From 01.08.2007, OJSC "Southern Grid Company" was renamed OJSC "Interregional Distribution Grid Company of the North Caucasus")
Job responsibilities:

• control over the financial and economic activities of the company; timely conclusion of economic and financial agreements, fulfillment of contractual obligations;
• participation in the development of plans promising development energy management;
• in the absence of the General Director or on his behalf, conducting negotiations with customers, contractors, subcontractors, and other organizations.

WITH 22.06.2018 member of the Board of Directors of Texbank JSC. By the decision of the General Meeting of Shareholders of the Bank (Minutes No. 02/18/EGM dated September 21, 2018), the Bank was renamed into Texbank Joint Stock Company (Texbank JSC).
Job responsibilities:
Resolving issues within the competence of the Board of Directors in accordance with the legislation of the Russian Federation and the Charter of the Bank.
Information on current membership in management and control bodies of other legal entities:
Member of the Board of Directors of NESK JSC since June 27, 2019.

Board of Directors- this is a management body elected for a certain period by a meeting of shareholders, which manages the activities of the joint-stock company in the period of time between annual meetings of shareholders in accordance with its competence granted to the board of directors by law and by the charter.

A board of directors is required to be created in all joint stock companies.

A member of the board of directors of a company can only be, but not necessarily, a direct shareholder of the company.

The quantitative composition of the board of directors is determined by the general meeting or the company's charter, but cannot be less than 5 members.

A joint stock company with more than 1,000 shareholders must have at least 7 members of the board of directors.

A joint stock company with more than 10,000 shareholders must have at least 9 members of the board of directors.

At the same time, when forming a board of directors, it is necessary to be guided by the principles of reasonable sufficiency, and it is advisable to determine the quantitative composition of the board of directors in the charter of the joint-stock company.

The main functions of the board of directors are:

development of a development strategy for a joint-stock company;

organization of effective activities of the executive bodies of the joint-stock company;

exercising control over the activities of the management bodies of the joint-stock company;

carrying out measures to protect rights and implement legitimate interests shareholders.

The competence of the board of directors includes:

convening of annual and extraordinary general meeting shareholders;

approval of the agenda of the general meeting of shareholders;

definition priority areas activities of the company;

determining the date for compiling the list of persons entitled to participate in the general meeting of shareholders;

placement by the company of bonds and other issue valuable papers;

determining the price (monetary valuation) of property, the price of placement and redemption of equity securities;

resolving issues related to the acquisition of shares, bonds and other securities placed by the company;

increasing the authorized capital of the company;

OK major transactions and transactions in which the company's managers are interested;

creation of branches and opening representative offices of a joint-stock company;

formation of the executive body of the company and early termination of its powers;

approval of internal documents of the joint-stock company;

approval of the registrar of the joint-stock company and the terms of the agreement with him.

The Board of Directors solves the following main tasks:

discloses information about the joint stock company;

determines the directions of activity of the joint-stock company;

determines approaches to investment;

draws up plans and budgets of the joint-stock company;

creates internal control mechanisms in a joint-stock company;

evaluates the performance of the company and its executive management bodies;

develops systems and methods for motivating and stimulating personnel working in a joint-stock company;

executes decisions of the general meeting of shareholders;

• creates and ensures corporate culture.

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for causing losses to a joint stock company or its shareholder: theory and practice.

According to Art. 53 Civil Code RF, entity acquires civil rights and assumes civil responsibilities through its bodies acting in accordance with the law, other legal acts and constituent documents.

Based on this norm, the activities of the Company are the activities of management bodies. On the other hand, management bodies are specific people who can act and not always in the interests of the Company. And it is precisely because of this human factor that the legislation provides mechanisms for holding members of management bodies accountable.

Why is the activity of the Board of Directors so important for the shareholder and the Company?

The competence of the board of directors is determined by Article 65 Federal Law 208 dated December 26, 1995 On joint stock companies (hereinafter referred to as the JSC Law), we present below a number of powers that are exclusive to the Board of Directors and cannot be transferred to another body:

Determining priority areas of the company’s activities;

Convening annual and extraordinary general meetings of shareholders;

Placement by the company of bonds and other issue-grade securities;

Determining the price (monetary valuation) of property, placement and redemption prices

issue-grade securities;

Approval of major transactions;

Approval of transactions in which there is an interest.

The above list inspires respect. The Board of Directors plans the work of the Company, determines the directions of its development, controls the activities of the executive body, and plays a significant role in ensuring the normal functioning of other management bodies.

Naturally, abuse of their powers by members of the Board of Directors can cause significant harm to both the Company and its shareholders.

In this article we will consider the mechanism for collecting losses from members of the Board of Directors that arose in connection with their unlawful actions, provided for in the Law on JSC. How does this happen in real life, we will be helped to see by judicial practice, the analysis of which we will also pay sufficient attention to.

1. Who and to whom can file a claim for recovery of damages from a member of the Board of Directors.

Clause 2 of Art. 71 of the JSC Law provides that members the board of directors (supervisory board) of the company, the sole executive body of the company (hereinafter referred to as the director), the temporary sole executive body, members of the collegial executive body of the company (hereinafter referred to as the board), as well as the management organization or manager (hereinafter referred to as joint managers) are responsible to society behind losses caused to society by their guilty actions (inaction), unless other grounds and extent of liability are established by federal laws.

Until July 1, 2006, managers were responsible only to the Company. In July, a new Chapter XI.1 was introduced into the JSC Law. Acquisition of more than 30 percent of shares open society. As a result, Article 71 has also undergone changes; now the managers of a joint-stock company are independently liable both to the joint-stock company itself and to its shareholders for losses caused by their guilty actions (inaction) that violate the procedure for acquiring shares of an open company, provided for by Chapter XI. 1 of the Law on JSC.

Having analyzed the provisions of Article 71 of the JSC Law, it is necessary to immediately point out the following basic points that affect correct definition parties to a lawsuit seeking damages:

1. A claim for damages is filed not against the Board of Directors (since it is a management body), but against its specific members.

The Company's governing bodies are its structural units, not recognized by civil law as subjects of civil law. Members of the Board of Directors - individuals, subjects of civil law, legal status which is determined based on general provisions legislation, charter and other local regulations of the joint-stock company. The claim must indicate the data of a specific citizen (or several citizens), whose actions, in the opinion of the Company or the shareholder, caused him losses.

2. Members of the Board of Directors of a company who voted against a decision that caused losses to the company or a shareholder, or who did not take part in voting, are not liable.

3. If several persons are responsible for losses, their liability to the company/shareholder is joint and several. This provision means that the company has the right to demand full compensation for losses from any of the co-offenders (from any member of the board of directors who committed an unlawful act), who subsequently, on the basis of Article 325 of the Civil Code of the Russian Federation, will be able to demand compensation from the remaining offenders in a recourse manner.

Here you need to pay attention to two points. Firstly, the fact that the shareholder files a claim in the interests of the Company! If a shareholder asks to recover damages in favor of himself and not the Company, he will be refused.

Secondly, it is important that the shareholder filing the claim owns a specified number of shares, both at the time the unlawful act was committed and at the time the claim was filed. Otherwise, the claim will also be denied.

5. A shareholder (regardless of the number of shares) has the right to file a claim against a member of the Board of Directors if he has suffered losses due to the latter’s guilty actions (inactions), violating the procedure for acquiring more than 30 percent of the shares of an open company, established by Chapter XI.1 of the Law on JSC. Let us repeat that this is the only basis on which a shareholder has the right to bring a claim against members of the Board of Directors demanding the recovery of damages in his benefit (and not the Society).

2. Grounds for satisfying claims for recovery of losses from a member of the Board of Directors in favor of the Company.

The general rules for compensation for losses are established by Article 15 of the Civil Code of the Russian Federation, which states that a person whose right has been violated may demand full compensation for the losses caused to him, unless the law or contract provides for compensation for losses in a smaller amount. In the context of Article 71 of the Law on JSC: the person whose right is violated is the Company itself, and the violated right is the right to the conscientious and reasonable performance of their functions by managers (and members of the Board of Directors, respectively).

Let us note the features of the status of a member of the Board of Directors, in comparison with other managers:

Unlike a director (member of the board), he is not a member labor relations with the Society;

Unlike management organization/ manager, he does not enter into special agreements with the Company that clearly define the rights, duties and responsibilities of each party.

It follows from this that, in fact, the relationship between a member of the Board of Directors and the Company is regulated only by the Law on JSC and the Charter (in some Companies there is also a Regulation on the Board of Directors). Therefore, recovery of damages will be based on a violation not of a contractual obligation (specified in an employment or civil contract), but rather that established by the Law on JSC.

In any case of recovery of damages, the presence of the following circumstances must be proven: a) the presence of illegal actions of a person; b) losses caused; c) a cause-and-effect relationship between the actions and the harm caused. An optional circumstance is the presence of guilt of the harm-doer, since in some cases the legislation provides for innocent liability.

A claim for recovery of damages from a member of the Board of Directors will be satisfied if the Plaintiff proves the presence of a set of circumstances:

A member of the Board of Directors acted guilty and illegally,

As a result of his actions, the Company or the shareholder suffered harm,

There is a cause-and-effect relationship between actions and harm.

Below we will dwell on each of the named elements of the subject of proof.

Proving the illegality and guilt of the actions (inaction) of a member of the Board of Directors.

Illegal is behavior that violates mandatory rules of law or the terms of contracts authorized by law, including those not directly provided for by law, but not contrary to the general principles and meaning of civil law.

The behavior of a member of the Board of Directors can be considered unlawful if, in the course of his activities, he violates:

a) legislation (including special rules on joint stock companies),

b) local norms of the Company itself (provisions of the Charter and other internal acts),

c) business customs.

Based on practice, the most common violations by members of the Board of Directors are the following:

Violation of the rules for convening and holding the annual general meeting of shareholders;

Failure to conduct an independent assessment to determine the price (monetary value) of the property being acquired or disposed of;

Failure to comply with legal requirements when concluding major transactions by the Company, as well as transactions in which there is an interest;

Failure to take actions to select a company registrar and approve the terms of an agreement with him;

Violation of the rules for holding meetings of the Board of Directors and drawing up minutes of the meeting.

In our opinion, the lack indicative list actions of members of the Board of Directors that may result in losses for the Company is an omission of the Law. For example, the Shareholders' Law of the Federal Republic of Germany contains such a list, it mentions: return of deposits to shareholders; payment of interest or part of profits to shareholders; acquisition of own shares or shares of other companies, acceptance of shares as collateral; issuance of shares before full payment of par value; distribution of company property; making payments in such an amount that it led to the insolvency of the joint stock company; provision of credit; providing remuneration to members of the supervisory board, etc.

When assessing the activities of a member of the Board of Directors, the court is guided not only by the letter of the law, but also the principle of integrity and reasonableness of managerial activities. The need for analysis from the point of view of this principle follows from paragraph 1 of Art. 71 of the Law on JSC, which establishes the obligation of any manager to exercise his rights and fulfill his duties in relation to the company in good faith and reasonably.

Despite the fact that the terms good faith and reasonableness are becoming increasingly used in various industries Russian law, legislative acts do not contain definitions that would reveal their essence or criteria that would identify their presence in specific actions or inactions.

Currently, the provisions of paragraph 6.1.1 can be called the most normative explanations of the analyzed principles. Code of Corporate Conduct (recommendatory act):

A manager's conscientiousness and reasonableness means that he has shown the care and prudence that should be expected from good leader, and took all necessary measures for the proper performance of their duties;

A manager is considered to act reasonably and in good faith if he is not personally interested in making a specific decision and has carefully studied all the information necessary to make a decision; Moreover, other accompanying circumstances must indicate that he acted solely in the interests of society.

It must be borne in mind that reasonable and conscientious actions of managers and the proper performance of their duties may still turn out to be incorrect and lead to negative material consequences for society.

What is the relationship between the presence of illegality in the actions of a member of the Board of Directors and non-compliance with the principles of good faith and reasonableness? In our opinion, the latter absorbs the former. That is, not every dishonesty and unreasonableness is expressed in violation of established norms and rules, but any violation of established norms and rules means dishonesty of the manager’s behavior (since violation of the latter is possible only consciously).

Therefore, in case of violation of legal requirements, there is no question of specially establishing bad faith of a member of the Board of Directors. It is much more difficult if the manager acted, from the point of view of the law and the Charter, correctly, but actually caused losses to the Company, and the nature of his actions shows bad faith.

For example, the Charter stipulates that the Board of Directors approves transactions in which property is alienated, the value of which exceeds 15 percent of the book value of the company’s assets. At the same time, the Charter does not stipulate the obligation to conduct a mandatory independent assessment to determine the market price of such property. Let’s assume that the book value of the Company’s property has not been revalued since the 90s. As a result, the book value of the property may be tens of times less than its real market value. And so, the Board of Directors approves a transaction under which the property is sold for a price slightly higher than its book value (virtually for next to nothing), as a result the Company incurs losses. Yes, formally the Board of Directors did not violate the rules on approving the transaction; the meeting was held, there was a quorum, the decision was made unanimously. However, this transaction clearly does not meet the interests of the Company and is not conscientious and reasonable from the position of any diligent manager.

In the case considered, if the Company (a shareholder in the interests of the Company) goes to court, it will prove the illegality through the violation by members of the Board of Directors of their duty to act reasonably, in good faith and in the interests of the Company.

However, the courts proceed from the fact that reasonable commercial risk in the actions of managers of a joint-stock company cannot in itself be considered as evidence of its dishonesty and reasonableness. It must be borne in mind that the court assesses the degree of reasonableness at its own discretion, which is why disputes in this category of cases are so complex.

The JSC Law in Article 71 directly establishes the liability of a manager (including a member of the Board of Directors) for losses caused only if it is established guilt.

This provision is consistent with the general rule of paragraph 1 of Article 401 of the Civil Code of the Russian Federation, according to which a person who fails to fulfill an obligation or fulfills it improperly is liable in the presence of guilt (intention or negligence), except in cases where the law or contract provides for other grounds for liability.

In theory, there are two main approaches to determining guilt in civil law:

1. The objectivist concept proceeds from the fact that guilt is not subjective, that is, it is not tied to a specific person’s assessment of his actions. Guilt here is determined through the person’s failure to take objectively possible measures to eliminate or prevent the negative results of his behavior, dictated by the circumstances of a particular situation. This understanding allows the court to confine itself to comparing behavior with the real situation, including the nature of the duties incumbent upon it, the conditions of turnover and the ensuing requirements of care and prudence that a reasonable and conscientious participant in the turnover must exercise.

2. The subjectivist concept proceeds from the fact that guilt is associated with mental processes occurring in the human mind. However, it is obvious that the court cannot examine mental processes. Therefore, the court (or another entity establishing guilt) makes a conclusion about the presence of guilt from the person’s behavior itself when examining the personal traits of the harm-doer himself.

It is impossible to say unequivocally which principle should be followed. Courts use both approaches.

In light of the above, it is clear that in order to hold a manager (including a member of the Board of Directors) accountable, it is necessary to analyze his actions that led to losses in terms of conscientiousness and reasonableness, as well as guilt. We fully support the point of view of B.R. Karabelnikov that the liability of a member of the board of directors is liability resulting from a culpable violation of a non-contractual obligation of good faith and reasonableness.

In this regard, it is important to answer the question: Is there a presumption of conscientious and reasonable behavior of the manager until otherwise is proven, or, on the contrary, does he have the responsibility to prove the absence of guilt in his actions??

In our opinion, it is necessary to distinguish two situations:

1) a member of the Board of Directors directly violated the law or the Charter in his activities; in this case we agree with Makovskaya A.A. about the presumption of guilt of the manager, since according to clause 2 of Art. 401 of the Civil Code of the Russian Federation, the absence of guilt is proven by the person who violated the obligations.

2) the actions of the member of the Board of Directors were within the framework of the law and the Charter, but there are doubts about their integrity and reasonableness.

In this case, we believe the burden of proof will be on the plaintiff. This is supported, in our opinion, by the position of the Presidium of the Supreme Arbitration Court of the Russian Federation, which in 2007 considered the case on the claim of shareholder N against General Director M for the recovery in favor of the Company of losses caused by the guilty inaction of the director.

The circumstances of the case are as follows: General Director M entered into an agreement with the Supplier for the supply of flour. After delivery, the Company did not make payment, and therefore the Supplier went to court; By decision of the court, the debt, penalties, as well as the amount of legal expenses (state duty) were collected from the Company in favor of the Supplier. Believing that the dispute over the collection of debt for the supplied flour arose due to the inaction of General Director M, and the collected state duty for the consideration of the case is a loss for the company caused by the guilty actions of M, shareholder N appealed to the arbitration court.

The decision of the court of first instance rejected the claim. The court found the defendant's actions to be unconscionable. The court considered that the manager’s actions in compliance with business customs exclude his guilt in causing losses to the plant. By decisions of higher courts, the decision was overturned and the claim was satisfied. The Supreme Arbitration Court of the Russian Federation canceled the acts of the appellate and cassation instances, leaving in force the decision of the first instance court, formulating the following important legal positions in the Resolution:

1) when determining the grounds and amount of liability of officials, it is prescribed to take into account the usual conditions of business turnover and other circumstances relevant to the case; this presupposes an assessment in each specific case of all the circumstances associated with the actions (inaction) in question and the resulting consequences;

2) the general director cannot be found guilty of causing losses to the company if he acted within the limits of a reasonable business risk;

3) since the reasonableness and integrity of participants in civil legal relations are presumed(clause 3 of Article 10 of the Civil Code of the Russian Federation), the plaintiff must prove the bad faith and unreasonableness of the actions that led to the infliction of losses;

4) when defining a single fact of collection of state duty in a specific case as damages, the courts did not investigate the reasons for late payment of the supplied flour, financial condition plant at the time the debt arose, measures taken general director to prevent losses.

Considering that in the Law on JSC one article regulates the holding of all managers accountable, in our opinion, the positions formed by the Supreme Arbitration Court of the Russian Federation in relation to the sole executive body will be applied by the courts in relation to members of the Board of Directors.

From the above positions of the Presidium of the Supreme Arbitration Court of the Russian Federation and the existing refusal judicial practice we can conclude that it is very difficult for plaintiffs to prove the bad faith and guilt of the manager’s actions.

Proving the amount of losses caused and the cause-and-effect relationship between illegal actions (inaction) and the losses incurred.

The company must prove not only the fact of failure or improper performance by a member of the Board of Directors of his duties, but also that losses resulted from this; It should be noted that in practice it is extremely problematic to prove the existence and amount of losses, especially the causal connection of losses with the actions of the above-mentioned entities.

Since Article 71 of the JSC Law does not provide otherwise, liability is full, i.e. Both actual damage and lost profits are subject to compensation. According to paragraph 2 of Art. 15 of the Civil Code of the Russian Federation: real damage - expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property; lost profits - lost income that this person would have received under normal conditions of civil transactions if his right had not been violated.

In practice, losses may consist of the fact that as a result of illegal actions:

The company's assets have decreased;

Unreasonable expenses have arisen (it is necessary to attract loans, make decisions on additional issue of shares, sell property) to restore the solvency of the company, settle accounts with creditors, etc.

Misclassification of losses can be costly. For example, the Federal Arbitration Court of the Moscow District overturned acts of lower authorities that qualified losses incurred by the company as a result of the sale by the general director of premises at a price more than 16 times lower than its market value as direct actual damage. He indicated in the resolution that the loss of property within the meaning of paragraph 2 of Article 15 of the Civil Code of the Russian Federation should be understood as deprivation of property as a result of unlawful, illegal actions. Alienation of property on the basis of a civil transaction not recognized in judicial procedure invalid cannot be regarded as the loss of this property by the seller. The conclusion of the court of both instances that the difference in the sale price of the premises and its value, determined on the basis of a report on the market assessment of the value of the disputed property dated July 16, 2004, constitutes real damage to the Company, cannot be considered correct, since, firstly, the information reports on market value are of an approximate nature, and secondly, when concluding a purchase and sale agreement, the parties are free to determine the sale price of the property.

So, how can we confirm the fact and extent of losses caused to society? In our opinion, they can be confirmed:

A) judicial acts that have entered into legal force on invalidation

Transactions approved by the Board of Directors

Decisions of shareholders’ meetings (convening and holding of which were carried out by members of the board of directors),

B) acts of valuation of property sold by the company at a deliberately reduced price,

IN) financial statements company (presence of losses in the balance sheet),

D) judicial acts confirming the initiation of bankruptcy proceedings for the company,

E) claims of creditors regarding the issue of non-fulfillment of obligations due to the insolvency of the company, court decisions on the collection of debt from the company, evidence indicating that the company has taken measures to restore solvency and settlements with creditors (loan agreements), etc.

When assessing evidence (judicial acts that have entered into legal force), the courts will take into account the existence of a cause-and-effect relationship between the unlawful actions of a member of the Board of Directors and the court’s invalidation of agreements (meeting decisions), the court’s initiation of bankruptcy proceedings, also taking into account the cause-and-effect relationship circumstances that served as the basis for the courts to make these decisions with a decrease in the company’s assets.

For example, an interesting case was considered by the Arbitration Court of St. Petersburg and Leningrad region. The shareholder filed a claim against the members of the Board of Directors for recovery of losses caused to the Company by the actions of the members of the Board of Directors who decided to recommend the amount of dividends on preferred shares exceeding that established by the Company's charter.

As a result decision taken, as the plaintiff points out, dividends on preferred shares were paid in an amount exceeding RUB 147,470,760. the amount payable in accordance with the Charter, which, according to the plaintiff, led to the loss. The court refused to satisfy the stated claims, including due to the lack of a cause-and-effect relationship between the actions of the board of directors and the fact of payment of dividends.

According to the JSC Law, decisions on recommendations for the payment of dividends on shares and the procedure for their payment fall under the exclusive competence of the board of directors, but the decision on the payment of annual dividends on shares of each category (type) is made by the general meeting of shareholders.

Thus, the courts came to the conclusion that there was no cause-and-effect relationship between the actions of the board of directors and the declared losses, since the basis for the payment of dividends was not the decision of the board of directors, but the decision of the general meeting of shareholders.

Conclusion.

To summarize, we can say that collecting losses from members of the Board of Directors, as well as from other managers, is a complex procedure. In cases of this category, the plaintiff will have to prove the presence of a set of circumstances: the guilt and illegality of the actions of a member of the Board of Directors, the fact and extent of the damage caused, the cause-and-effect relationship between them. As the analysis shows, significant difficulties in proving are:

Insufficient theoretical and legal development of criteria for the integrity and reasonableness of managerial behavior;

Lack of a legally established approximate list of actions of members of the Board of Directors that may result in losses for the Company (shareholder);

Lack of a legally established approximate list of evidence that can be used to confirm the fact and amount of damages caused.

In our opinion, the indicated disadvantages could be partially mitigated by the adoption by the Supreme Arbitration Court of the Russian Federation of special clarifications on the issue of holding members of management bodies accountable joint stock company for losses caused by their unlawful actions (inaction).

Taglina V.