Note: The Charter may not provide for the specified pre-emptive right for the Company to purchase a share or part of the share of a member of the Company. Preemptive right to purchase a share (part of a share) in the authorized capital of an LLC: recent trends in arbitration practice of Prio

"Russian Tax Courier", 2010, N 4

By general rule society with limited liability does not have the right to acquire shares (parts thereof) in its authorized capital. But in some cases provided for by law, society is obliged to do this. Let us recall these cases and figure out what documents need to be submitted to register the relevant changes in the Unified State Register of Legal Entities.

Federal law dated 02/08/1998 N 14-FZ “On Limited Liability Companies” (hereinafter referred to as Law N 14-FZ) established that a limited liability company does not have the right to acquire shares (parts of shares) in its authorized capital, except in cases where the company by virtue of the Law is obliged to purchase them. At the same time, as we have already found out, the transfer of a share (part of a share) to the company does not require notarization. The registration authority must be notified of the transfer of a share (part of a share) in the authorized capital of the company to the company by sending an application for making appropriate changes to the Unified State Register of Legal Entities (hereinafter referred to as the application for registration) and a document confirming the basis for the transfer of the share (part of a share) to society. This is provided for in paragraph 6 of Art. 24 Law No. 14-FZ.

These documents should be submitted to the registration authority within a month from the date of transfer of the share (part of the share) to the company, which is determined in accordance with clause 7 of Art. 23 of Law No. 14-FZ.

It is more difficult to determine the composition of the documents that must be submitted along with the application for amendments to the Unified State Register of Legal Entities in connection with the transfer of a share (part of a share) to the company, since neither Law No. 14-FZ, nor Federal Law of 08.08.2001 N 129-FZ " On state registration of legal entities and individual entrepreneurs" they are not defined. Nevertheless, title documents must be presented when registering changes<1>related to the transfer of a share, therefore, we will consider various options for transferring a share (part of a share) to the company.

<1>Read more about the rules for state registration of transactions for the alienation of shares in limited liability companies in RNA, 2010, No. 1-2. - Note. ed.

Documents submitted to the registration authority

Option one. The company acquires a share at the request of a company participant due to the fact that (clause 2 of article 23 of Law No. 14-FZ):

• the company's charter prohibits the alienation of a share (part of a share) belonging to the company's participants to third parties and other company participants refused to acquire it;
• consent has not been obtained for the alienation of a share (part of a share) to another member of the company or a third party, provided that the need to obtain such consent is provided for by the charter of the company;
• the general meeting of the company's participants made a decision to commit major deal or on increasing the authorized capital of the company by making additional contributions by the company's participants, and the participant who sent a request for the company to acquire his share (part of the share) voted against such a decision or did not take part in the voting.

In the listed cases, the following must be submitted to the registering authority:

• registration application;
• a demand of a company participant for the acquisition of his share (part of a share) by the company, indicating the circumstances in connection with which such a demand was sent, with a note about its receipt by the company.

Option two. In the event of a share being transferred to the company when a participant leaves the company, if the participant’s right to leave the company is provided for by the company’s charter (Clause 6.1, Article 23 and Article 26 of Law No. 14-FZ), the following must be submitted to the registration authority:

• registration application;
• statement of a company participant about leaving the company with a note about its receipt by the company.

Note. In accordance with paragraphs. "e" clause 1 art. 23 of the Federal Law of 08.08.2001 N 129-FZ, in the event of a participant leaving the company, as a result of which no participant remains in the company, as well as the exit of the only participant of the company from the company, the registration authority will make a decision to refuse registration of such changes.

Option three. In case of transfer to the company of a share (part of a share) of a company participant that is not paid within the established period, or when a share (part of a share) of a participant is transferred to the company due to failure to provide compensation for the early termination of the right to use property transferred by a company participant for use to the company for payment shares in the authorized capital of the company (clause 3 of article 15 and clause 3 of article 16 of Law No. 14-FZ), the following are submitted to the registration authority:

• registration application;
• decision of the company (in the form of a protocol or other document) on the transfer of a share (part of a share) to the company in connection with non-payment (incomplete payment) of a share in the authorized capital of the company or failure to provide compensation in the event of termination of the company’s right to use property before the expiration of the period for which such the property was transferred for the use of the company to pay for the share.

Option four. The share (part of the share) of a participant in the authorized capital of the company may be transferred to the company on the basis of a court decision that has entered into legal force on the exclusion of the participant from the company or on the transfer of the share (part of the share) to the company in connection with the alienation or transfer of the share (part of the share) on other grounds to third parties in violation of the procedure for obtaining the consent of company participants or in violation of the ban on its alienation (clause 18 of Article 21 of Law No. 14-FZ). In this case, the following must be submitted to the registration authority:

• registration application;
• a court decision that has entered into legal force on the exclusion of a company participant from the company or on the transfer of a share (part of a share) to the company.

Option five. Law No. 14-FZ establishes cases when the transfer of a participant’s share (part of a share) in the authorized capital of a company requires the consent of the remaining participants of the company. The need to obtain such consent may be established by the company's charter. For example, when transferring a share (part of a share) to the heirs of citizens and legal successors of legal entities who were members of the company, or transferring a share that belonged to a liquidated legal entity, its founders (participants) who have proprietary rights to its property or rights of obligation in relation to this legal entity(Clause 8 of Article 21 of Law No. 14-FZ). The consent of the company's participants is also required in the case provided for in paragraph 9 of Art. 21 of Law No. 14-FZ, - when selling a share (part of a share) in the authorized capital of a company at public auction.

If the consent of the remaining participants to transfer the share (part of the share) in the authorized capital of the company in the above cases is not received, the share (part of the share) passes to the company (clause 5 of Article 23 of Law No. 14-FZ). In this case, the following should be submitted to the registration authority:

• registration application;
• a written refusal of any participant in the company to give consent to the transfer of a share or part of a share in the authorized capital of the company to the heirs of citizens or legal successors of legal entities who were participants in the company, or to transfer such a share (part of a share) to the founders (participants) of a liquidated legal entity - a participant in the company, or a person who acquired a share or part of a share in the authorized capital of a company at a public auction. Moreover, the refusal must contain a note indicating its receipt by the company.

Option six. The transfer of a share (part of a share) of a company participant occurs in the event that the company pays the actual value of the share (part of a share) owned by a company participant at the request of its creditors (clause 6 of Article 23 and Article 25 of Law No. 14-FZ). The following are submitted to the registration authority:

• registration application;
• a court decision that has entered into legal force on filing, at the request of a creditor, a foreclosure on the share (part of the share) of a company participant in the authorized capital of the company;
• a document confirming payments made by the company to the creditor (for example, a copy of the bailiff's resolution on the completion of enforcement proceedings, a copy of the payment order or receipt of the creditor, certified in the manner prescribed by the legislation of the Russian Federation).

Option seven. When transferring to the company a share (part of a share) of a company participant acquired by the company in the exercise of its pre-emptive right to purchase a share (clause 4 of Article 21 of Law No. 14-FZ), the following must be submitted to the registration authority:

• registration application signed by the company participant alienating the share (part of the share);
• statements of company participants about refusal to use the pre-emptive right to purchase a share or part of a share. The authenticity of the signature of a company participant on the application must be certified by a notary (Clause 6, Article 21 of Law No. 14-FZ). The application must contain a note indicating its receipt by the company;
• and (or) an application by a participant (participants) of the company to use the pre-emptive right to purchase part of the share (part of the share) offered for sale with a note about its receipt by the company;
• and (or) a document signed by the head of the company on compliance with the procedure for using the preemptive right of purchase by the company of the share (part of the share) offered for sale, established by the charter of the company.

Shares acquired by the company

Shares owned by the company, within a year from the date of their transfer to the company itself, must, by decision of the general meeting of participants, be distributed among all participants of the company or offered for acquisition to all or some participants of the company and (or) third parties (unless this is prohibited by the charter of the company) . Grounds - clause 2 of Art. 24 Law No. 14-FZ.

Note. Shares in the authorized capital of the company that are not distributed or not sold within the prescribed period must be redeemed (clause 5 of Article 24 of Law No. 14-FZ).

When distributing, selling or redeeming a share (part of a share) in the authorized capital of the company, the following must be submitted to the registration authority:

• registration application;
• decision of the general meeting of company participants on the distribution, sale or redemption of a share or part of a share belonging to the company.

If a share (part of a share) belonging to the company is distributed, sold or redeemed within a month from the date of transfer of the share (part of the share) to the company (clause 6 of Article 24 of Law No. 14-FZ), then the registration authority should submit:

• registration statement, which reflects information about the transfer of a share (part of a share) to the company and its subsequent distribution, or sale, or redemption;
• the above documents confirming both the basis for the transfer of the share (part of the share) to the company, and its subsequent distribution, sale, redemption. When selling a share (part of a share), documents confirming payment for the share (part of a share) in the authorized capital of the company are also submitted.

In accordance with the Letter of the Federal Tax Service of Russia dated June 25, 2009 N MN-22-6/511@ “On the implementation by tax authorities of the provisions of the Federal Law dated December 30, 2008 N 312-FZ”, an application for registration (in cases of transfer of a share (part of a share) in the authorized capital of the company to the company and its subsequent distribution, sale or redemption) is signed by the head of the company or another person acting on behalf of the company without a power of attorney.

Please note: given the emerging practice of implementation by interested parties of the provisions of Federal Law No. 312-FZ of December 30, 2008, this approach is not justified in some cases. In particular, we are talking about the transfer of shares to the company in the event of a participant leaving the company. For the purpose of exclusion in in this case abuse, it is advisable to submit to the registration authority a registration application signed by the participant leaving the company.

In addition, other provisions of the said Letter of the Federal Tax Service of Russia require clarification. It is obvious that as the practice of implementing Federal Law No. 312-FZ of December 30, 2008 develops, the provisions of this Letter will inevitably be clarified.

S.I.Fedchenko

State Advisor

Civil Service of the Russian Federation 1st class

Publication date: 2016-11-25
Heading:

LLC participants are, ideally, not just people who pooled their money, but a team of like-minded people capable of making decisions that suit, if not everyone, then almost everyone. Therefore, the law is aimed at preserving the composition of participants, despite the desires of individual individuals who have become separated from the collective to sell their share to the first person they meet.

According to the general rule of paragraph 4 of Article 21 of the Federal Law “On Limited Liability Companies,” company participants enjoy the preemptive right to purchase a share or part of a company participant’s share at the price offered to a third party in proportion to the size of their shares. The charter may provide for some variations of this norm. For example, the sale price to participants using the pre-emptive right may be fixed in the charter. In addition, it is possible to grant the preemptive right to purchase to the company itself.

The rule on the pre-emptive right to purchase applies only when the share is alienated to a third party (a person who is not a member of the company).

Here we will consider the question of how this general rule is applied, because most often the participants, when approving the charter, do not use legal opportunities and do nothing in main document societies are not added.

It is important to understand that when using this very general rule about the pre-emptive right, the third party (potential buyer) should not receive anything. The alienated share will be fully sold to participants who have expressed a desire to exercise this right.

Option 1

Participant A notifies of his intention to sell his share (30%) to a third party. There are two other participants B (10%) and C (60%). Participant B refuses to use the preemptive right, and B declares his desire to buy a share. In this case, B can and should purchase the entire 30%.

Option 2

The same thing, but now both B and C are going to buy a share. Under these conditions, the existing proportion of shares owned by these participants will be taken into account, namely 1 to 6. This means that B will buy 4.3%, and B will buy 25.7%.

The charter may provide that a participant, using the preemptive right, expresses his intention to buy not the entire share that fell to him, but only a part. Given such a rule, in the latter case, Participant B could say that he will only buy 10%. Then the remaining 15.7% would be purchased by a third party.

It remains to add that similar rules on the pre-emptive right to purchase can be enshrined in the charter of a non-public joint stock company. In the Federal Law "On joint stock companies“ah” regulation of these issues is discretionary and is entirely within the jurisdiction of the legal entity itself.

In this article, we tried to answer all the questions that arise when selling a share in an LLC. We also compiled a detailed step by step instructions to carry out this procedure in compliance with all legal requirements.

Today, there are the following ways to exercise your right for the owner of a share in an LLC who wants to sell it. Namely:

1. Do everything yourself by following the sequential steps suggested in our instruction article. The option is budget-friendly, as it involves only the most necessary expenses(notary services, state fees), but it takes quite a lot of time, which is spent on drawing up various documents and going through the authorities.
2. Make your task a little easier and use the services of our service for writing legal documents. Compiling each of them will take no more than 15 minutes, which will significantly save time. The finished result will only have to be sent to the relevant authorities independently.

For those who decided to do everything themselves, we have divided the process of selling a share in an LLC into a number of stages. Their consistent implementation will allow everything to be done legally competently.

Sale of a part or 100% share in an LLC

The share of an LLC participant is not indivisible. Therefore, you can sell it not only in full, but also in parts. There may be more than one buyer. The decision about which part will be sold is made only by its owner, based on his needs. Other participants do not have the right to dictate their terms to him.

The sale procedure will always be the same, regardless of whether the share is sold in whole or in part. But if there are several buyers, then for each of them you will have to prepare a complete package of documents and register the transaction accordingly. Well, comply with all legal requirements for such a transaction.

The picture is a little different if there is only one participant in the LLC who wants to sell his entire share.

Valuation of LLC shares upon sale

In order to set a price for a share, it is not necessary to contact independent appraisers. But it would be good to imagine what its real cost is. This will require cost information. net assets and the amount of authorized capital. The difference between them, multiplied by the size of the share as a percentage, will show the value of each share.

For clarity, let's look at an example.

Let’s assume that at the time of registration of the LLC its capital was equal to 10,000 rubles, and each of the two participants contributed 5,000. That is, each person’s share will be 50%. At the time of the decision of one of the partners to sell his share, the value of the net assets was 100,000 rubles. It turns out that the cost of each share will be equal to: (100,000 – 10,000)*50:100 = 45,000 rubles.

Based on this value, you can set the price at which the share will be sold. The market price will not necessarily coincide with real value. It is best to calculate its exact value from professional appraisers, who will take into account many factors that influence the price in a particular region.

Participants of the company enjoy the preemptive right to purchase a share or part of the share of a company participant at the price offered to a third party or at a price different from the price offered to a third party and predetermined by the charter of the company in proportion to the size of their shares.

That is, you can sell a share to third parties at any price, but at the same time, the participants/society can exercise the pre-emptive right to purchase and buy back at the offer price or at a price already pre-established in the charter.

Taxes on LLC shares upon sale

Information about the value of the share or part thereof will also be required to determine the amount of taxes that the seller will have to pay after the transaction. Taxation on the sale of an LLC share will depend on whether its owner is an individual or a legal entity.

If the seller is an individual, then he will have to pay personal income tax. Its size is 13% of the income received under the transaction for residents of the Russian Federation and 30% for non-residents. However, if the period of ownership of the share is more than 5 years for an individual, then you will not have to pay personal income tax, or if you sell the share at par value.

The law stipulates that only legal entities and individuals can be participants in an LLC. And here individual entrepreneurs cannot become such, since their status is somewhat different from both the first and the second. Therefore, participants who are individual entrepreneurs will pay tax in the same amount as individuals, that is, 13% and 30%, respectively.

When selling their shares in an LLC, legal entities pay taxes depending on the applicable taxation scheme. If the price of the share at which it was sold is equal to the contribution to the management company, then income tax is not subject to payment.

After all the nuances mentioned above have been taken into account, the actual procedure for selling a share in the LLC begins. Below we have provided detailed step-by-step instructions for carrying out this process.

STAGES OF SALE OF SHARES IN LLC

Step 1. Notarized sale of LLC shares to a participant or third party

Agreement for the sale and purchase of a share of an LLC, in mandatory certified by a notary, does not require changes to constituent documents legal entity. In this case, the buyer can be either another participant or a third party. Subsequently, he takes the place of the seller.

There are a number of formalities, non-compliance with which, as well as the lack of notarization, make the transaction invalid. This is compliance with the procedure for the pre-emptive right to purchase a share by other participants and, if provided for by the charter, by the company itself when selling to an outsider. To respect their rights, an offer should be sent to all participants through the company and to the company itself to sell the share, and then receive them written refusals exercise your right.

The offer to sell is sent not only to the participants, but also to the address of the LLC itself. The offer specifies the size of the share being sold and its price. The remaining participants have 30 days to make a decision to exercise the right to buy or refuse to purchase a share.

After receiving a refusal from all participants and the legal entity itself, the seller can sell his share to other persons, both individuals and legal entities. Violation of this condition, as well as failure to obtain the consent of at least one of the participants, may lead to the sale being challenged in court.

If the transaction is made between the participants, then there is no need to receive refusals from the other founders. Unless, of course, such a requirement is provided for in the charter. There may also be a direct ban on the sale of shares to a third party. In this case, the counterparty will only be another participant or the company itself.

If the seller of the share is an individual who is officially married, then the second spouse must give his consent to the alienation transaction. Such consent, as well as a document stating that the participant is not married, is certified by a notary.

Step 2. Documents for the sale of an LLC share with notary support of the transaction

Certification of a transaction by a notary requires the mandatory presence of the seller and buyer or their representatives. For the visit you need to prepare:

1. statement P14001;
2. extract from the list of participants;
3. m purchase and sale agreement for LLC shares;
4. offer sent to participants;
5. waivers of the preemptive right from all participants (if the sale of the share is carried out to a third party);
6. agreement on the company’s refusal to acquire a share;
7. certificate of payment of the authorized capital;
8. consent of the spouses or statement of the absence of a registered marriage, marriage contract (if any);
9. document confirming payment by the buyer of the share under the contract (receipt, receipt or expense cash order or payment order).

Also needed:

1. fresh extract from the Unified State Register of Legal Entities. Some notaries prefer to obtain them online themselves. You can clarify this before your visit;
2. certificate of state registration of the company;
3. certificate of registration of the company with the tax authority;
4. the charter in the latest edition or the charter with all sheets of changes and certificates of registration of changes;
5. documents confirming the authority of the head of the company (decision or minutes of the general meeting on the appointment of the head, order for the head to take office, employment contract with the leader);
6. For individual- passport; for the buyer of a legal entity - registration documents and confirmation of the authority of the representative.

Carefully check the presence of all documents before going to the notary.

Step 3. Submitting and receiving documents from the tax office

When providing notarial support for a transaction, you can safely skip this point, since the documents for registration are submitted by the notary himself and notifies the company about the completed transaction.

After receiving the list of changes in the Unified State Register of Legal Entities, the sales process can be considered completed. There is only one more thing left to do. When providing notarial support for a transaction, you can safely skip this point, since the documents for registration are submitted by the notary himself and notifies the society about the completed transaction.

After receiving the list of changes in the Unified State Register of Legal Entities, the sales process can be considered completed. There's only one more thing left to do.

Step 4. Notify banks and counterparties

Immediately upon receipt of documents from the tax office, it is necessary to notify the bank about changes in the composition of participants and the amount of the authorized capital of the company. It is also recommended to first review the covenants under contracts with all counterparties and notify those counterparties whose contracts contain a provision for such notification about changes.

Option: Maximum size The participant's share is not limited. The ratio of shares of participants can be changed (cannot be changed).

4.2. Participants contribute ________% (not less than 50%) of their share in the authorized capital at the time of registration of the Company. The remaining _________% of the authorized capital is contributed by participants within one year from the date of registration.

4.3. It is not permitted to relieve a Company participant from the obligation to make a contribution to the authorized capital of the Company, including by offsetting claims against the Company.

4.4. The number of votes a participant has is directly proportional to his share. Shares owned by the Company are not taken into account when determining the results of voting at the General Meeting of Members of the Company, as well as when distributing profits and property of the Company in the event of its liquidation.

4.5. Relations of participants with the Company and among themselves, as well as other issues arising from the participant’s right to a share in the Company’s property, are regulated by law and this Charter.

4.6. The authorized capital of the Company may be increased at the expense of the Company's property and (or) at the expense of additional contributions of the Company's participants and (or) at the expense of contributions from third parties accepted into the company.

Option: The authorized capital of the Company can be increased only at the expense of the Company’s property and (or) through additional contributions of the Company’s participants.

4.7.1. The increase in the authorized capital of the company at the expense of its property is carried out by decision of the general meeting of the company's participants, adopted by a majority of at least _______ (at least 2/3) votes of the total number of votes of the company's participants.

A decision to increase the authorized capital of a company at the expense of the company’s property can be made only on the basis of data from the company’s financial statements for the year preceding the year during which such a decision was made.

The amount by which the company's authorized capital is increased at the expense of the company's property must not exceed the difference between the value of the company's net assets and the amount of the company's authorized capital and reserve fund.

When increasing the authorized capital of a company in accordance with this article, the nominal value of the shares of all participants in the company increases proportionally without changing the size of their shares.

4.7.2. The general meeting of the company's participants, by a majority of at least ________ (at least 2/3) votes of the total number of votes of the company's participants, may decide to increase the authorized capital of the company by making additional contributions by the company's participants. This decision should determine total cost additional deposits, and a uniform ratio has been established for all members of the Company between the cost of an additional contribution of a member of the Company and the amount by which the nominal value of his share is increased. The specified ratio is established based on the fact that the nominal value of the share of a Company participant may increase by an amount equal to or less than the value of his additional contribution.

The period for making additional contributions by the Company's participants is ____ months.

4.7.3. The General Meeting of Participants of the Company may decide to increase its authorized capital on the basis of an application from a member of the Company (applications from members of the Society) to make an additional contribution and (or) an application from a third party (applications from third parties) to accept him into the Company and make a contribution. Such a decision is made by the members of the Company unanimously.

The application of the member(s) of the Company and the application of a third party must indicate the size and composition of the contribution, the procedure and deadline for making it, as well as the size of the share that the member of the Company or the third party would like to have in the authorized capital of the Company. The application may also indicate other conditions for making contributions and joining the Company.

Additional contributions by the Company's participants and contributions by third parties must be made no later than six months from the date of adoption by the general meeting of the Company's participants of the decisions provided for in this paragraph.

4.8. An increase in the authorized capital of the Company is permitted only after its full payment.

4.9. The Company has the right, and in cases provided for by Federal Law, is obliged to reduce its authorized capital. A decrease in the authorized capital of the Company may be carried out by reducing the nominal value of the shares of all participants of the Company in the authorized capital of the Company and (or) redeeming shares owned by the Company.

4.10. The company does not have the right to reduce its authorized capital if, as a result of such a reduction, its size becomes less than the minimum amount of authorized capital determined in accordance with clause 1 of Art. 14 Federal Law "On Limited Liability Companies", as of the date of submission of documents for state registration.

4.11. Within 30 (thirty) days from the date of the decision to reduce its authorized capital, the Company is obliged to notify in writing about the reduction of the authorized capital of the Company and its new amount to all creditors of the Company known to it, and also publish it in the press organ in which data on state registration is published legal entities.

4.12. Reduction of the authorized capital of the Company by reducing the nominal value of the shares of all participants in the Company must be carried out while maintaining the size of the shares of all participants in the Company.

5. ISSUE OF BONDS

5.1. The Company has the right to place bonds and other issue securities in the manner prescribed by securities legislation.

The issue of bonds by the Company is permitted after full payment of its authorized capital.

5.2. The bond must have a par value. The nominal value of all bonds issued by the Company must not exceed the amount of the authorized capital of the Company and (or) the amount of security provided to the Company for these purposes by third parties. In the absence of security provided by third parties, the issue of bonds is permitted no earlier than the third year of the Company’s existence and subject to proper approval of the annual financial statements for two completed financial years. The specified restrictions do not apply to issues of mortgage-backed bonds and in other cases established by federal securities laws.

6. RIGHTS AND OBLIGATIONS OF PARTICIPANTS

6.1. The participant is obliged:

6.1.1. Pay for shares in the authorized capital of the Company in the manner, in amounts and within the time limits provided for by the Federal Law and the agreement on the establishment of the Company. Part of the profit is accrued to the participant from the moment of actual payment of 100% of his share in the authorized capital.

6.1.2. Comply with the requirements of the Charter, the terms of the agreement on the establishment of the Company, carry out decisions of the Company’s management bodies adopted within their competence.

6.1.3. Do not disclose confidential information about the activities of the Company.

6.1.4. Report immediately to CEO about the impossibility of paying the declared share in the authorized capital of the Company.

6.1.5. Take care of the Company's property.

6.1.6. Fulfill assumed obligations in relation to the Company and other participants.

6.1.7. Provide assistance to the Company in carrying out its activities.

6.1.8. Perform other additional duties assigned to all members of the Company by decision of the General Meeting of Members of the Company, adopted unanimously. Also perform other additional duties assigned to a specific participant by decision of the General Meeting of Members of the Company, adopted by a majority of at least two-thirds of the total number of votes, provided that the member of the Company who is assigned such duties voted for such a decision or gave a written agreement. Additional obligations assigned to a specific member of the Company, in the event of alienation of his share or part of the share, are not transferred to the acquirer of the share or part of the share. Additional duties may be terminated by decision of the General Meeting of the Company Participants, adopted unanimously by all the Company Participants.

6.1.9. Inform the Company in a timely manner about changes in information about your name, place of residence or location, as well as information about your shares in the authorized capital of the Company. If a member of the Company fails to provide information about changes in personal information, the Company shall not be liable for losses caused in connection with this.

6.2. The participant has the right:

6.2.1. Participate in the management of the affairs of the Society, including through participation in General Meetings of Participants, personally or through your representative.

6.2.2. Receive information about the activities of the Company and get acquainted with its accounting books and other documentation.

6.2.3. Take part in the distribution of profits.

6.2.4. Elect and be elected to governing bodies and control bodies Society.

6.2.5. Get acquainted with the minutes of the General Meeting and make extracts from them.

6.2.6. To receive, in the event of liquidation of the Company, part of the property remaining after settlements with creditors, or its value.

6.2.7. Appeal to the relevant bodies of the Company the actions of the Company's officials.

6.2.8. Make proposals on the agenda within the competence of the General Meeting of Participants.

6.2.9. Withdraw from the Company by alienating a share to the Company with the consent of other participants or the Company or regardless of the consent of its other participants or the Company with payment to him of the actual value of his share or by issuing him in kind property of the same value with the consent of this participant of the Society.

Option: The clause is not indicated if clause 8.1 of the charter does not provide for the right of a participant to leave the Company.

6.2.10. Enjoy the following additional rights:

____________________________________________;

____________________________________________.

Note: Additional rights may be provided for by the charter of the company upon its establishment or granted to a participant (participants) of the company by decision of the general meeting of participants of the company, adopted unanimously by all participants of the company.

6.2.11. Additional rights granted to a specific member of the company, in the event of alienation of his share or part of the share, are not transferred to the acquirer of the share or part of the share.

6.2.12. Termination or restriction of additional rights granted to all participants of the company is carried out by decision of the general meeting of participants of the company, adopted unanimously by all participants of the company. Termination or restriction of additional rights granted to a specific company participant is carried out by decision of the general meeting of company participants, adopted by a majority of at least two-thirds of the total number of votes of company participants, provided that the company participant who owns such additional rights voted for the adoption of such decisions or gave written consent.

6.2.13. A member of the company who has been granted additional rights may refuse to exercise the additional rights belonging to him by sending a written notice to the company. From the moment the company receives this notification, the additional rights of the company participant are terminated.

6.3. The number of members of the Society should not be more than fifty.

6.4. Any agreements between members of the Company aimed at limiting the rights of any other participant in comparison with the rights granted current legislation RF, are insignificant.

6.5. The transfer of a share or part of a share in the authorized capital of a company to one or more participants of this company or to third parties is carried out on the basis of a transaction, by way of succession or on another legal basis.

6.6. A member of the Company has the right to sell or otherwise alienate his share or part of the share in the authorized capital of the Company to one or more participants of this Company. The consent of other participants in the company or company is not required to complete such a transaction.

Option 1: In this case, the consent of other participants of the Company or the Society is required to complete such a transaction.

Option 2: Sale or other alienation of a share or part of a share is prohibited.

6.7. Members of the Company enjoy the preemptive right to purchase a share

or part of the share of a member of the Company

(at the offer price to a third party or at a price different from the offer price

to a third party and a price predetermined by the Company Charter)

in proportion to the size of their shares.

6.8. The Company has a preemptive right to purchase a share or part of a share owned by a member of the Company at the price offered to a third party or at a price predetermined by the charter, if other members of the Company have not exercised their specified preemptive right.

The Company’s exercise of the pre-emptive right to purchase a share or part of a share at a price predetermined by the Charter is permitted only on the condition that the purchase price by the Company of a share or part of a share is not lower than the price established for the Company Participants. The specified right of the Company must be exercised within the period ___________________________.

Note: The Charter may not provide for the specified pre-emptive right for the Company to purchase a share or part of the share of a member of the Company.

Provisions establishing the pre-emptive right to purchase a share or part of a share in the authorized capital by the company's participants or the company at a price predetermined by the charter, including changing the size of such price or the procedure for determining it, may be provided for by the company's charter upon its establishment or when amending the company's charter by decision of the general meeting of company participants, adopted unanimously by all company participants. The exclusion from the company's charter of provisions establishing the pre-emptive right to purchase a share or part of a share in the authorized capital of the company at a price predetermined by the charter is carried out by decision of the general meeting of the company's participants, adopted by two-thirds of the votes of the total number of votes of the company's participants.

6.9. The purchase price of a share or part of a share when using the pre-emptive right is set in a fixed sum of money and amounts to __________ (___________) rubles.

Option: Purchase price of a share or part of a share when used

• Transaction processing mechanism

The procedure for transferring or alienating a share or part thereof in the authorized capital of the company is described in Civil Code RF and Law No. 14-FZ dated 08.02. 1998 on “Limited Liability Companies”. Consequently, the sale, transfer and other methods of alienation of a share or part thereof in the authorized capital of a company take place subject to compliance with the requirements provided for in the said legislative acts, unless otherwise provided by the Charter of the organization. Below we will often use the term alienation, which means legal transaction, as a result of which one of the company participants sells, donates or otherwise transfers his share or part of the share of the authorized capital to another company participant or to third parties.

In accordance with the 2nd part of Art. 21 of the 1998 Law on LLC, one of the founders may alienate his share or part thereof in the authorized capital of the company to one or more participants of the company, also to the company itself, or in favor of third parties. For the first two cases, when alienation is made in favor of the participants or the company, the consent of the remaining members of the company is not required, unless otherwise provided in the organization’s charter. As for alienation or sale in favor of third parties, a ban on such alienation may often be included in the LLC Charter in order to coordinate the will of its participants, to protect the interests of society and its members.

Preemptive right to acquire a share or part of a share in the authorized capital of an LLC

Participants of the company have a pre-emptive right to acquire (PPP) a share or part thereof in the authorized capital of the organization, i.e. If one of the participants is going to sell his share, then first of all, he must offer to purchase it to the rest of the company's participants. The preemptive right to acquire a share or part of a share of the authorized capital belongs to the participants of the organization and the organization itself. The procedure for implementing the PPP and the period during which company participants can take advantage of this advantage are described in the Law of 1998 on LLC and the company’s Charter. If none of the participants exercised the preemptive right, the proposal may be transferred to third parties. Also, the charter itself may take into account the right to purchase a participant’s share by the company itself, in the event of refusal of the remaining participants or untimely use by the PPP of the share of the authorized capital.

A company participant who intends to sell his share must writing notify all other participants of the organization or one participant if it is the founder or the company itself. This procedure was expanded by Law No. 312-FZ of 2008; now notification of the intention to sell one’s share is carried out only through the company itself and is called an offer. The offer contains the essential terms of the contract, indicates the subject of the transaction, the price and other conditions of sale. The moment the company receives the offer, it is considered delivered. If the participant withdraws the offer before receiving it, it is considered not received, and in this situation an additional notice is drawn up. Participants have the right to take advantage of the PPP share within 30 days from the date of receipt of the offer by the company, or within another period determined by the Charter of the LLC.

Sometimes the charter of an organization may provide for the preemptive right to purchase a share by the company. If the participants do not exercise their right within the specified period or unanimously refuse the pre-emptive right to purchase, the company, within seven days from the expiration of the specified period or the moment of receipt of the refusal, sends an acceptance to the company participant. If no one has exercised the preemptive right, neither the participants nor the company, the share can be offered to third parties at the price indicated in the offer.

Transaction processing mechanism

In accordance with Law of 2008 No. 312-FZ, a transaction aimed at alienating a share or part of a share in the authorized capital must be notarized. In the Civil Code of the Russian Federation, notarization of a transaction means checking the legality of the transaction, including whether each of its parties has the right to perform it, and is carried out by a notary or an official who has the right to perform such a notarial action. Notarization is a mandatory procedure; failure to comply with it entails the invalidity of the transaction.

Transactions aimed at the alienation of a share or part of a share in the authorized capital of an LLC, when using the PPP share, including when an offer is sent to the company's participants, and in response an acceptance, are subject to notarization. There are a number of cases when a transaction does not need to be notarized. The parties to the transaction have the right to independently make decisions regarding notarization of such transactions. But if by agreement of the parties it was decided to notarize such a transaction, then in accordance with the Civil Code of the Russian Federation such a transaction is subject to mandatory notarization. Law of 2015 No. 67-FZ lists cases that do not require certification of transactions: transfer of a share or part of a share to the company; in cases of distribution of shares between company participants and sale of shares to all or some company participants or third parties.

In order to protect the interests of the parties to a transaction, the Civil Code of the Russian Federation provides for consequences in case of evasion of notarization of a transaction or state registration. In the event that one of the parties refuses to notarize the transaction, and the other party has executed this condition in whole or in part, then the latter has the right to demand that the court recognize the transaction as valid. If one of the parties refuses state registration, the court, at the request of the other party, has the right to make a decision on its registration. The party that refuses state registration or notarization of the transaction must compensate the other party for losses.

In order for a notary to certify a transaction aimed at alienating a share or part of a share in the authorized capital of an LLC, it is recommended to prepare and provide the notary with the following package of documents:

• Articles of association;
• Decision to establish a company (if there is only one founder);
• Agreement on the establishment of a company (if there are several founders);
• An extract from the Unified State Register of Legal Entities containing information that the share belongs to the participant;
• A notarized agreement on the acquisition of a share;
• A document confirming payment of the share by the alienating person, for example a receipt from a bank;
• A document confirming compliance with the rules for the use of the company's share share, established by the 1998 Law on LLCs and the Chartered Company;
• Consent of the spouse to the alienation and purchase of a share of the company.

The list of documents listed above is not complete and final; according to the recommendations of the notary, it can be supplemented depending on the specific case.

A notary, before notarizing a transaction aimed at alienating a share or part of a share in the authorized capital of a company, is obliged to check the authority of the alienating person to terminate the share, whether the alienated share has been fully paid. The unpaid share can be transferred only to the extent that it was paid.

How and who can submit documents to the Unified State Register of Legal Entities

After the transaction has been notarized, no later than within two days, the relevant documents must be transferred to the state registration authority. The applicant can personally take them to the registration authority or MFC, or transfer them through his representative, who, when submitting documents, will have to present a notarized power of attorney, which is certified by a notary. Also, at the request of the applicant, a notary in electronic form. The registering authority responds by sending a document confirming the fact of making an entry in the Unified State Register of Legal Entities. Thus, neither the alienating person nor the party wishing to acquire the share should at this stage take any action to transfer the application to the registering government agency.

Alienation of a share or part thereof in the authorized capital of an LLC from a company participant to his spouse

From family law we know that property acquired by spouses during marriage is joint property, unless a marriage contract has been concluded between them and a different regime for this property has not been established.

According to Art. 34 of the Family Code, the common property of spouses includes the income of each spouse from labor activity, entrepreneurial activity and results of intellectual activity, pensions, benefits received by them, as well as other monetary payments that do not have a special intended purpose(amounts financial assistance, amounts paid in compensation for damage in connection with loss of ability to work due to injury or other damage to health, etc.). The common property of the spouses also includes movable and immovable things acquired at the expense of the spouses' common income, securities, shares, deposits, shares in capital contributed to credit institutions or other commercial organizations, and any other property acquired by the spouses during the marriage, regardless of whether in the name of which of the spouses it was acquired or in the name of which or by which of the spouses it was deposited cash(Article 34 of the RF IC).

Thus, if a share of the authorized capital was acquired during the period when a person was married, then this share becomes the common joint property of the spouses, unless otherwise provided in the marriage contract. It is worth noting that the share that was acquired free of charge, i.e. under a gift or inheritance agreement, it is considered the property of one of the spouses and is not the subject of division.

The member of the company becomes the spouse for whom the transaction was executed, i.e. the spouse for whom the transaction was executed (participant) - acquires not only property rights, but also rights of obligation, the right to participate in the management of the company itself, and the second spouse acquires only property rights. This property regime can be regulated through a marriage contract. The marriage contract is drawn up in writing and certified by a notary. The marriage contract and the transaction for the alienation of a share or part of a share in the authorized capital of the company must be submitted to a notary, who, in turn, must make sure that all the conditions of the contract you have presented comply with. The terms of the marriage contract must not contradict the rules for the alienation of shares in favor of third parties. A spouse who is not a member of the company is classified as a third party. Therefore, when alienating a share, it is necessary to comply with the requirements established by the 1998 Law on LLC and the Charter of the company.

When alienating or purchasing a share, you must obtain the notarized consent of your spouse. If the share was received as a gift or inherited, then the consent of the spouse is not required. Also, upon divorce, a transaction with shares in the authorized capital, completed during marriage, aimed at alienating a share or part of the share of the authorized capital, requires the consent of the former spouse.

Alienation of a share or part of a share in the authorized capital of an LLC as a result of legal succession

Universal succession is the transfer of rights and obligations to the inherited persons in an unchanged form, unless otherwise provided by law. The Civil Code of the Russian Federation distinguishes two forms of universal succession: the right of inheritance and succession as a result of the reorganization of a legal entity.

The process of transferring a share in the authorized capital of an LLC in the manner of universal legal succession is described in Law No. 14-FZ of 02/08/1998 “On Limited Liability Companies” and in the Civil Code of the Russian Federation. The transfer of a share or part of a share in the authorized capital of an LLC to the heirs or legal successors of legal entities is possible, unless otherwise provided by the Charter of the organization. Thus, the procedure for transferring a share to heirs or legal successors of legal entities can take place without restrictions or on the condition that such a transfer is permitted with the consent of the remaining participants in the company.

Let us consider a case where such consent is not required. Here you simply receive a certificate of inheritance or registration of succession during the reorganization of a legal entity. Reorganization of a legal entity means merger, division, accession, separation, transformation.

To obtain a certificate of inheritance, you must contact a notary with the following list of documents: your passport, death certificate, a document confirming the degree of relationship or other connections with the deceased, a certificate from the place of residence of the deceased, a copy of the charter, a document establishing the rights of the deceased for a share in the authorized capital, a document confirming payment of the deceased’s share in the authorized capital. After providing all of the above documents, the notary draws up and issues you a certificate of inheritance. The next step is to convene a general meeting of all participants in the organization, at which a decision is made on the entry of the heir or legal successor of the legal entity into the company. After that, an application to make the appropriate changes is sent to the registering state body (Unified State Register of Legal Entities). In addition to the application, you must also send documents certified by a notary on inheritance or succession and minutes from the general meeting of participants in the company in which you were accepted as an heir.

In the case where the charter of the company stipulates that such a transfer is allowed only with the consent of the LLC participants, and unanimously. The mechanism is similar, the same package of documents is collected, but it is necessary to obtain the written consent of all participants in the company. To do this, the heir must submit a written appeal to all participants in the company. Within a month, they must consider this appeal and provide a response. From the moment of receiving consent from all participants of the company, it is necessary to send to the Unified State Register of Legal Entities within three days following documents: application in form P14001, certified documents on inheritance, minutes from the general meeting of company participants, statement of consent of all participants. If such consent is not received within the period established by law or the constituent documents of the company, the transfer of the share or part of the share is carried out on the next day. In addition, the company compensates damage to legal successors. The cost of payment is determined for the last accounting reporting period preceding the day of death of a company participant, the day of completion of the reorganization or liquidation of an LLC, the day of acquisition of a share or part of a share at a public auction.

Trust management in relation to a share in the authorized capital of an LLC

Trust management is not representation, i.e. no one performs certain duties on your behalf under a power of attorney. Trusting relationship- this is when the principal (the founder of the management) transfers his share in management to the managing person, i.e. a service that the manager provides in the interests of the principal (the founder of the management). Trust management is regulated by the provisions of Chapter 53 of the Civil Code of the Russian Federation.

Russian legislation in relation to a share in the authorized capital of an LLC provides for two such cases, when one party, the founder of management, transfers to the other party a trustee for certain period property in trust. The first case is inheritance. If the inheritance includes property that requires not only protection, but also management (Part 3 of Article 1173 of the Civil Code of the Russian Federation). Until the heir inherits part of the share in the LLC and becomes a member of the company, the notary, as the founder of the trust management, enters into a trust management agreement for this property. Only a notary or executor under a will can act as founders of trust management of inherited property.

A share in the authorized capital of an LLC is a combination of property rights and non-property (corporate) rights. Thus, when transferring a share in the authorized capital of an LLC into trust management to a trustee, he receives for a certain period not only property for trust management, i.e. the opportunity to exercise any rights of the owner of the property, but is also vested corporate rights. The agreement specifies the size of the share transferred to trust management. The trust agreement will be valid until the heir becomes a full participant in the company or, if the company's charter provides that the heir can receive his share only with the consent of all participants in the LLC, and he receives a refusal.

A trustee has the same rights as a member of the company, and therefore can have a real influence on all ongoing processes in the organization. He is given the right to perform any actual and legal actions with the property transferred to him in trust. However, such powers can be limited by a trust management agreement (Part 2, Clause 2, Article 1012 of the Civil Code of the Russian Federation).

The second case is the mandatory establishment of trust management in relation to a share in the authorized capital of an LLC, the procedure for preventing the settlement of conflicts of interest (Federal Law of December 25, 2008 No. 273 “On Combating Corruption”). The person who is engaged entrepreneurial activity cannot simultaneously hold a state or municipal post. In accordance with Art. 10 Federal Law of December 25, 2008 No. 273 “On Combating Corruption”, a conflict of interest is understood as a situation in which the personal interest (direct or indirect) of the person holding a position, the filling of which involves the obligation to take measures to prevent and resolve conflicts of interest, influences or may influence the proper, objective and impartial performance of his official (official) duties (exercise of powers). In other words, a conflict of interest is understood as a case when a civil servant acts contrary to the laws and interests of the state, pursuing his own interests. Although the Scottish economist, Adam Smith added: "By pursuing his own interests, he (the entrepreneur) often serves the interests of society more effectively than when he consciously strives to do so."

Thus, a person who is going to enter the state or municipal service is obliged to cease his participation in management commercial organization. Those. You can own a share or part of a share in the authorized capital of an organization, but you cannot participate, be a member and have corporate rights. Therefore, if you want to preserve your property rights and not lose your share in the authorized capital, while holding a public position, so as not to break the laws, you need to transfer the share to trust management. Accordingly, in such a situation, trust management in relation to a share or part of a share will allow combining commercial activities With public service. It is also worth noting that the Federal Law of December 25, 2008 No. 273 “On Combating Corruption” has no exceptions; all civil servants and municipal employees must transfer a share or part of a share to trust management.

When making changes to the Unified State Register of Legal Entities regarding the establishment of trust management in relation to a share in the authorized capital of a company, the applicant can be: a participant in the organization, an executor of a will or a notary. For the first situation - when transferring your share in the authorized capital of the LLC into trust management. For the second situation - when entering information into the state registration authority about the person managing the share, which is in the order of inheritance.

Consequences of alienation of a share or part of a share in the authorized capital of an LLC by a person who did not have the right to alienate it

What to do in a situation where the alienation of a share or part thereof in the authorized capital of an LLC is carried out by a person who does not have the rights to perform such actions and who will ultimately retain the alienated share of the authorized capital of the company. The consequences of such illegal actions are regulated by the provisions in paragraph 17 of Art. 21 of the LLC Act 1998.

In accordance with clause 17, part one of Art. 21 of the 1998 Law on LLC, a person who has lost a share or part of a share of the authorized capital of an LLC as a result of the alienation of a share or part of a share by a person who did not have the right to alienate may demand that his rights to the alienated share be recognized. At the same time, the bona fide buyer will be deprived of rights to this share, because the share was acquired as a result of illegal actions of third parties or in another way against the will of the person who lost the share.

The 1998 LLC Law provides for cases when the share is recognized as belonging to the acquirer. In the case where a share or part of a share was acquired by him at a public auction - from the moment the corresponding changes are made to the Unified State Register of Legal Entities. Also, if the court refused to satisfy the claim brought against the buyer by the person who lost the share or part of the share. A claim can be brought within three years from the date when the person who lost the share learned about the illegal actions.

Consequences of selling a share or part of a share in the authorized capital of an LLC in violation of the pre-emptive right (PPR)

The mechanism for the alienation of a share or part thereof in the authorized capital of a company is provided for by the provisions of Law No. 14-FZ of 08.02. 1998 about LLC. In accordance with this law, a company participant has the right to alienate his share or part of the share in the authorized capital of the company to one or more participants of the company, also to the company itself, or to third parties. When the transfer of a share is made in favor of the participants or the company, then the consent of the remaining members of the organization is not required, unless otherwise provided by the charter. As for alienation or sale in favor of third parties, often a ban on such alienation may be included in the organization’s Charter in order to harmonize the will of its participants, to protect the interests of society and its members. But only the participants of the company have the preemptive right to acquire (PPP) a share or part thereof.

Accordingly, if a participant decided to sell his share in violation of the pre-emptive right, or the alienation was made in favor of third parties without the consent of the remaining participants of the organization or company, as well as bypassing the prohibition in the charter on such alienation, he will face the consequences provided for in the provisions of clause 18 of Art. 21 of the LLC Act 1998.

Let's consider the first case. The participant, participants or the company (if the charter of the LLC provides for the preemptive right to the company acquiring a share or part of the share) has the right, within three months from the moment they learned about such an offense, to demand judicial procedure transfer the rights and obligations of the buyer to them. If the organization’s charter specifies in advance the price for the pre-emptive right to purchase a share, then the person to whom the rights and obligations of the buyer are transferred reimburses the expenses of the party that previously acquired the share. The amount of expenses should not exceed the purchase price of a share or part of a share in the authorized capital of the organization specified in the charter. After the court makes a decision to transfer a share or part of a share to a participant, members of the company or the company itself, you can safely submit an application to make appropriate changes to the Federal Tax Service.

Second case. If the alienation of a share or part of a share in the authorized capital of an LLC was completed in favor of third parties without the consent of the remaining participants of the organization or company, or if the charter provides for a ban on sales to third parties, the participants of the company or the company also have the right to demand in court the transfer of the share to the company within three months since they learned about the offenses. The costs of the acquirer of the share will be borne by the person who alienated the share in violation of the specified procedure.

Sometimes in practice, participants make several transactions to cover up a real transaction, i.e. a fake deal to disguise the real one. In accordance with Art. 170 of the Civil Code of the Russian Federation, such transactions are considered invalid. For example, in order to circumvent the law on the pre-emptive right to acquire a share or part of a share in the authorized capital, a participant enters into a gift agreement in order to subsequently sell this share to a third party. If the court establishes a violation of the pre-emptive right to purchase a share, then such a gift agreement and a sales agreement will be recognized as a single purchase and sale agreement made in violation. The transaction will be declared invalid, and the company's participants have the right to demand the transfer of the buyer's rights and obligations to themselves.

Pledge of shares (parts of shares) in the authorized capital of LLC

Pledge is one of the ways to ensure the fulfillment of obligations. A member of an organization has the right to pledge his share or part of a share in the authorized capital of the LLC to another member of the company or to third parties, provided that this procedure is not prohibited by the organization’s charter. Also, the transfer of collateral in relation to third parties, as well as other actions with shares in favor of third parties, is permissible with the consent of the organization’s participants. On general meeting LLC participants must make a decision by a majority vote of all company participants, unless the charter provides otherwise. For example, the need for a larger number of votes to make a decision on giving consent to pledge a share or part of a share in the authorized capital of an LLC. Moreover, the vote of the participant who pledges his share is not counted. If the company consists of one founder member, the transfer of the pledge of the share is feasible, even if the charter provides for a ban on the transfer of the share in favor of third parties; for this, the participant must decide to agree to pledge the share in the authorized capital of the company.

So that's what we get. If a company participant pledges his share to another company participant, an agreement is concluded between them, which is sealed with signatures. Such an agreement must be notarized, otherwise the transaction will be considered invalid.

If a member of the company pledges his share to third parties. Provided that the company's charter does not prohibit the transfer of shares as collateral to a third party, a meeting is convened at which a decision is made. As a result of a positive outcome, a corresponding agreement is signed, which is also subject to notarization.

The notary, before certifying the share pledge agreement, must check the powers of the person transferring his share, whether he has the right to perform such an action, and make sure that the share being pledged is fully paid, except in cases where, at the time of notarization of the pledge agreement, the share does not yet belong to the legislator (Article 22 of the 1998 Law on LLC). The notary must make sure that the transaction was completed without any violations. It is also worth considering that the notary must submit a document on the basis of which a share or part of a share in the authorized capital of the LLC was acquired. If the participant is married, the consent of the spouse is required to transfer the share as collateral.

In accordance with part 13.1 of Art. 21 of the 1998 Law on LLC, the alienating party may provide the notary with one of the following documents on the basis of which a share or part of a share in the authorized capital of the company was previously acquired:

• If a share or part of a share was acquired on the basis of a transaction, then this may be an agreement.
• If the company was created by only one founder, then his decision to create an LLC.
• If there are several founders, it is necessary to provide an agreement on the establishment of the LLC.
• Certificate of right to inheritance - if a share or part of a share was inherited.

If a judicial act establishes the right of an LLC participant to a share or part of a share, a court decision.

In case of acquisition of a share or part of a share when increasing the authorized capital of the company, distribution of shares belonging to the company between participants in other cases, if the acquisition of a share or part of a share occurs directly on the basis of a decision of the general meeting of the company - minutes of the general meeting.

In accordance with paragraph 2 of Art. 22 of the 1998 Law on LLC, the pledge of a share or part of a share in the authorized capital of an LLC is subject to state registration, and arises from the moment of such state registration. The notary must, within two working days from the date of certification of the share pledge agreement, send an application in electronic format to the state registration authority. If a pledge of a share arises in the future, the notary sends an application to the Unified State Register of Legal Entities within three days from the date of fulfillment of all conditions and the occurrence of all deadlines necessary for the occurrence of a pledge. In turn, the state registration body sends the notary in electronic form a document that confirms the fact of making the relevant changes, or a decision to refuse state registration.

An entry in the Unified State Register of Legal Entities on encumbering a share or part of a share in the authorized capital of an LLC with a pledge is canceled on the basis of an application by the pledgee or on the basis of a court decision that has entered into legal force (Article 22 of the 1998 Law on LLC).

Transfer of a share or part of a share in the authorized capital of an LLC to the company

Cases of an LLC acquiring a share or part of a share in the authorized capital of a company

In accordance with paragraph 1 of Art. 23 “Acquisition by a company of a share or part of a share in the authorized capital of an LLC” of the 1998 Law on LLC, a company does not have the right to acquire a share or part of a share in the authorized capital of an LLC, with the exception of certain cases, which we will discuss in this material.

First case. The charter of the LLC provides for a ban on the alienation of a share or part of a share to third parties. A participant who wishes to sell his share must first offer other participants in the company to purchase it (preemptive right to purchase a share or part of a share). If the participants refuse to purchase this share, then the company is obliged to purchase the share or part of the share in the authorized capital of the LLC belonging to the company participant.

Second case. According to the LLC charter, the alienation of a share or part of a share belonging to a company participant in favor of third parties is permissible only with the consent of the remaining participants of the company. However, if such consent is not obtained, the company must acquire the share or part of the share belonging to the company participant.

Third case. At the general meeting of the company, the participants of the organization decided to carry out a major transaction or to increase the authorized capital of the company, but one of the participants voted against it, or did not take part in the voting at all. In this case, at the request of a company participant who voted against such a decision, the company is obliged to acquire a share or part of a share in the authorized capital of the LLC belonging to this participant. This requirement can be presented within 45 days from the moment the participant learned about the adoption of such a decision or if he took part in the voting, after which the decision was made, he can also present such a demand within 45 days. The requirement for the company to acquire a share or part of a share in the authorized capital of the company is subject to notarization.

For all three cases, after the corresponding obligation arises, the company, within three months, unless the organization’s charter provides for a different period, is obliged to pay the company participant the actual value of his share or part of the share in the authorized capital of the company. The actual value of the share of the company's participants corresponds to a part of the value of the LLC's net assets, proportional to the size of its share. The value of his share or part of the share in the authorized capital of the company is determined on the basis of the financial statements for the last reporting period preceding the day the participant applies with a request for the company to acquire his share or part of the share. The company may also issue property of the same value in kind, with the consent of the participant.

In accordance with paragraph 2 of Article 23 “Acquisition by a company of a share or part of a share in the authorized capital of an LLC” of the 1998 Law on LLC, the exclusion of the specified provisions from the company’s charter is carried out by decision of the general meeting of the company’s participants, adopted by two-thirds of the votes of the total number of votes of the participants society.

Fourth case. In accordance with paragraph 6 of Article 93. “Transfer of a share in the authorized capital of a limited liability company to another person” of the Civil Code of the Russian Federation. Participants of the company do not agree to the transfer of a share or part of a share to the heirs of a deceased participant, or to the legal successors of an organization that has been reorganized. Such a refusal entails the obligation of the company to pay the listed persons the actual value of the share or part of the share or to give them in kind property corresponding to such value.

Fifth case. In accordance with Art. 94 “Exit of a participant in a limited liability company from the company” of the Civil Code of the Russian Federation, when a participant leaves the company, he sends to the company a request for the company to acquire his share. The share passes to the company from the day the company receives such a request. The company is obliged to pay the actual value of the share or part of the share or give them in kind property corresponding to such value.

Sixth case. In accordance with paragraph 9 of Article 21 of the 1998 Law on LLCs, it is regulated that when a share or part of a share in the authorized capital of a company is sold at public auction, the rights and obligations of participants in such share are transferred with the consent of the company's participants. If such consent was not obtained, the company acquires this share.

The situations in which an LLC is obliged to buy out a share or part of the share of a company participant in the authorized capital of the LLC were listed above. However, the legislation regulates the case when a company can exercise the right of choice and, at its own discretion, decide whether or not to acquire a share or part of the share of a company participant - this is in the case of recovery of a share or part of a share in the authorized capital of an LLC. Very often, when the debtor does not have any property that could be seized, except for a share in the authorized capital of an LLC or insufficient property at the expense of which a court decision could be executed. Recovery of the share of a company participant is allowed only on the basis of a court decision if other property is insufficient to cover the debts. In this situation, the company, at its discretion, decides to pay creditors the actual value of a share or part of a share in the authorized capital of the LLC.

Alienation to the company of a share or part of the share of an LLC participant in the authorized capital of the company when the participant leaves the company

The mechanism for the withdrawal of a participant from the organization is regulated by Article 94 “Withdrawal of a limited liability company participant from the company” of the Civil Code of the Russian Federation, Article 23 “Acquisition by the company of a share or part of a share in the authorized capital of an LLC”, Article 26 “Withdrawal of a company participant from an LLC” of the 1998 Law on LLC .

A participant in an organization has the right to withdraw from the membership of the company by transferring his share to the company, if such a withdrawal mechanism is provided for by the charter of the organization. Exit from the organization is not permissible if the company consists of one participant, as a result of which there will be no participant left, as well as the exit of the only participant from the organization. Until 2008, the mechanism for a participant’s withdrawal from the company could take place without any consent from the remaining participants in the organization. In 2008, Law 2008 No. 312-FZ amended Article 94 of the Civil Code of the Russian Federation, which now states that a company participant has the right to leave the company by alienating his share or part of the share in the authorized capital of the LLC to the company, if this is provided for by the charter of the LLC. Thus, if the constituent documents of the organization were created before the entry into force of this Law and contained provisions on the withdrawal of a participant from the company, then they retain this right after the entry into force of the new Law of 2008 No. 312-FZ. If such a provision was not enshrined in the charter, it follows that its participants will leave the company in accordance with the provisions of Art. 26 of the 1998 Law on LLCs will not be able to.

The withdrawal of a participant from the company is carried out on the basis of the submission of a written application by the company participant. His share passes to the company from the moment he submits an application to leave the organization. Those. the moment the society receives the application, its share goes to the society. The legislation does not provide clear criteria and requirements for drawing up an application and methods for submitting an application to leave the organization. A participant can also withdraw his application to leave the LLC. If society refuses to grant his request, he has the right to challenge this decision judicially.

The application of a company participant to withdraw from the organization must be notarized. Documents for state registration of changes relating to the composition of the company's participants must be transferred to the state registration authority (FTS) within a month from the date of transfer of the share or part of the share to the company. The following documents must be submitted: application in form P14001; participant’s application for withdrawal from the LLC (notarized); if the documents are submitted by a representative of the applicant - a notarized power of attorney. Documents can be submitted to the registration authority directly by the applicant or by a person acting on behalf of the applicant on the basis of a power of attorney. Documents can be sent by mail or electronically, stapled electronic signature. The registration authority issues you a receipt with the date of acceptance of your application and a list of submitted documents. State registration carried out no later than five working days.

In the event of a participant leaving the company in accordance with Article 26 of the 1998 Law on LLC, the company is obliged to pay, is obliged to pay to the company participant the actual value of his share or part of the share in the authorized capital of the company. The value of his share or part of the share in the authorized capital of the company is determined on the basis of the financial statements for the last reporting period preceding the day the company participant submitted an application to leave the organization. The company may also issue property of the same value in kind, with the consent of the participant. When incomplete payment they are paid a share or part of a share in the authorized capital of the LLC, the actual value of the paid part of the share.

Exclusion of an LLC participant from the company

In accordance with Article 67 of the Civil Code of the Russian Federation, the participant business partnership or company has the right to demand in court the exclusion of another participant from the company or business partnership, except for public joint-stock companies (PJSC), with payment of the actual value of his share or part of the share in the authorized capital of the LLC. The grounds for judicial exclusion of a participant from the organization are as follows:

• The participant’s actions or inactions cause significant harm to society. For example, a member of a society is regularly absent without good reason at a general meeting of company participants, which in turn can lead to disastrous consequences, failure to make certain decisions causes harm to the company or makes its activities impossible and complicates the work process. He can also vote for an unprofitable deal or a deal that will bring only losses to the organization in the future.
• The participant commits actions that impede the organization’s activities and prevent the achievement of the goals for which it was created.
• Violates his duties provided for by law or the charter of the company.

When considering cases of expulsion of a participant from an organization, the court assesses the degree of violation by the participant of his duties, and establishes the fact that the participant has committed specific actions or evaded them and the occurrence of negative consequences for society. If the court decides to expel a participant from the organization, his share passes to the company from the moment the court decision comes into force. The company is obliged to pay the excluded participant the actual value of his share, which is determined on the basis of the financial statements for the last reporting period preceding the day the court decision to exclude the participant entered into legal force. The company may also issue property of the same value in kind, with the consent of the excluded participant.

Is it possible to exclude a participant from an organization who has paid his share only partially? In accordance with section 10 of the LLC Law 1998, it is provided that the unpaid portion of the share passes to the company. Also, a participant with a share of more than 50% of the company’s authorized capital can be excluded only if the charter prohibits the withdrawal of participants from the LLC.