Buy something, I'm not sure what: how we accompanied the assignment of rights under an option agreement for shares in the authorized capital of OOO

In 2020, we accompanied an interesting transaction. Three people founded the company, which specialized in the transportation of goods. The founders were experienced businessmen who decided to gradually involve their children in the company's management. However, understanding that children must be supervised because they do not have a lot of experience, the founders approached us with a request for assistance in structuring this transaction. 

As a result, we created two documents: a purchase and sale agreement between the three founders, who represented the seller, and the child (at least 30 years old at the time of the transaction) of one of the founders, who became the buyer and owner of the company. The second document was an option: its design stated that if the child did not achieve certain goals while managing the company, the founders would take the business back. 

  Three years pass. So the founders return to us with new tasks. 

First. Overall, the child manages the company well, but it is necessary to keep an eye on him for a few more years, especially since a major transaction is planned that must be managed. The option in 2020 was signed for three years, and it expired on December 31, 2023, so it needed to be extended. 

Second. Two of the founders lost interest in the company within three years and were willing to waive their right to claim shares in the company. As a result, the second task assigned to us was to remove the two founders from the option agreement and concentrate on one founder and his right to return 100% of the shares if the child fails to manage the company. 

If the first issue was simply resolved: all contract parties must sign an additional agreement, and the term is extended. The second task required preparing and solving a number of the following nuances: 

1. Is it possible to assign rights with an option agreement? The entire mechanism of the transaction, as well as the amount of notary expenses, depended on the resolution of this issue. If an assignment is possible, we only need one document that is an agreement to assign claims. And the notary fees are around 7,000 rubles. If it is impossible, you must first terminate the previous agreement with the three founders and then sign a new one. However, this means that the amount of notary expenses increases sevenfold and reaches 50,000 rubles. How did we resolve this issue? We chose the path of a concession agreement. According to the Russian Federation's Civil Code, the assignment of rights under an option is permitted, but only if the option agreement's text explicitly states so. When we structured the deal in 2020, we left this possibility open. This case occurred, and our foresight paid off, so our client saved time and money.
2. Is consent from the parties' spouses required for the agreement on the assignment of rights under the option? This question could be a stumbling block in our task. Over the course of three years, one founder's marital status changed. He divorced, but there was no division of property. This meant that the joint ownership regime for all property remained in effect. This means that any order must be carried out with the consent of the spouse, including the former one. In our case, this was problematic because his wife lived in another city, and our founder's relationship with her was not the best. 

We began solving the problem by looking for an answer to the question: Are option rights property? We have not found a clear answer in judicial practice. Scientific works were also ineffective because there is no scientific consensus. Despite the fact that we could not find a convincing position that would state unequivocally that the rights under the option are not property, we found a reason why it is not necessary to obtain the spouse's consent. 

According to the Family Code, only property acquired through a compensated transaction is considered joint property of the spouses. The logic is as follows: if something has left the spouses' common fund, what was received in exchange for it must also be in the spouses' joint possession, use, and disposal. In this regard, if a spouse obtained property through a gratuitous transaction, it became his personal property (since no expenses were incurred from the spouses' common fund).
When studying the option agreement for shares in an authorized capital of OOO, one can see two types of monetary amounts: payment for the shares themselves as property and payment for the option, i.e. the buyer's right to transfer the shares to himself at any time, on his own initiative, or to refuse the transfer. An option is considered free when there is no second type of monetary amount, known as an option fee. This was the situation in our case. 

We spoke with the notary and explained our position. The notary agreed with the arguments presented and confirmed that the rights under the option are our founder's personal property; the spouse's consent is unnecessary. After resolving all issues, we signed an agreement for the assignment of rights under the option and extended the term until 2026.