Alienation of a share in the authorized capital

29.09.2019

Option 1

“Purchase and sale of shares in an LLC between members of the Company”

A member of the Company has the right to sell his share or part thereof to one or more members of the Company. The consent of other participants or the Company itself is not required for this transaction unless there are restrictions under the Charter. If consent is necessary, participants must provide written consent to purchase a share or provide waivers no later than 30 days. To do this, each of the participants informs the Company, represented by its General Director, about their decisions. On the basis of which the relevant documents are drawn up, including a purchase and sale agreement for a share in an LLC in simple written form. In this case, only the participant selling the entire share should be present at the notary. The Participant - Seller of the share must certify with a notary the form on which the purchase and sale of the share of the authorized capital will be registered.

The share passes to the acquirer from the moment state registration. In the case of the purchase and sale of the entire share of a participant in the company, a complete replacement of the participant occurs, since one of them leaves the LLC upon sale.

Option 2

“Purchase and sale of shares in an LLC between a member of the Company and a third party”

This option for registering the purchase and sale of a share is possible only when refusals from the remaining participants have been received and the possibility of selling a share in the management company to new persons is not limited.

Having received necessary documents from the participants, the Seller of the share and the Buyer - the new participant draw up documents to certify the transaction. To do this, both parties meet with a notary and certify all necessary documents in his presence. In addition, to carry out this procedure, the written consent of the spouses for the purchase and sale of shares in authorized capital. This can be done in parallel at the time of certification of this transaction, by inviting the spouses of the parties to the notary chamber, or by bringing ready-made ones.

In this case, the buyer receives the right to a share at the time of certification. Within 3 days, the notary personally transfers the documents to the registration authority. After registering these changes in the register of legal entities, the Buyer becomes a member of the LLC, the seller of the share receives money from the sale. If the share has been sold in full, the participant leaves the LLC and no longer has anything to do with it.

Option 3

“Purchase and sale of shares in the authorized capital between an LLC participant and the Company itself”

The company can and is obliged to buy a share or part of a participant’s share only in the following cases:

There is a ban on selling shares in an LLC to third parties;
If the consent of the participants to sell a share in the LLC to a third party has not been received (if approval is provided for by the LLC Charter) and they have not expressed a desire to purchase it.

The law obliges the Company to acquire the share of a participant upon his written request. The purchase and sale agreement of a share in this case does not provide for notarization. The sale of a share in the authorized capital of the Company must be registered within one month from the date of the decision to sell and transfer of the share to the Company. The applicant in such a sale and purchase will be the Seller participant.

Then, within a year, the Company’s share should be redistributed proportionally between other LLC participants or third parties (unless prohibited by the current Charter). This condition is applicable after registration of a new version of the Charter or annex to it, where the ban on introducing new persons into the membership has been lifted.

In addition, in practice there is the opposite situation, when the Company itself does not sell the share to all participants. This procedure also takes place without the sale and purchase agreement being certified by a notary, the deadlines remain the same as usual (7 business days). The applicant in this situation is the LLC itself, represented by its manager.

The withdrawal of a participant from the Company is prohibited if not a single participant remains in it (clause 2 of Article 26 of the Federal Law “On Companies with limited liability»).

Option 4

“Purchase and sale of shares in the authorized capital between the Company itself and a third party”

If during the year the participants have not redistributed the share of the LLC among themselves, it must be sold to a third party. To do this, you need to refer to the Charter and see if there is a ban on this. If there is a prohibition, first you need to re-register the Charter and remove this restriction, and then deal with the sale of a share in the LLC to a third party.

If the Charter requires the consent of all participants to carry out such actions, written consent must be obtained.

The sale of a share in the authorized capital of an LLC is carried out by drawing up an agreement between the Company, represented by its general director, and a third party, a future participant in the LLC. Such an agreement is drawn up in a simple form; it does not need to be certified by a notary. The applicant is the manager.

The purchase and sale of an LLC's share in the authorized capital is one of the most complex transactions considered in modern civil transactions. Both the law and the provisions of the company's charter regulate the procedure for concluding such transactions. The legal norms in force today make it possible for the founders to introduce restrictions on the sale of shares to third parties into the charter; in addition, special conditions may be provided for notification of a transaction that is to be completed.

Alienation of a share in an LLC

The process of transferring a share to a third party is possible only after obtaining consent from all LLC participants who have priority rights to buy out the company's share. Therefore, the founder must first notify his partners about the sale of the share and obtain appropriate permission from each of them. The law allows these procedures to be carried out in any form (written or oral), however, in order to avoid possible risks of challenging the concluded agreement for the purchase of a share, it is better to send written notifications to all participants and the limited liability company itself. According to general rule, the founders of the LLC must provide a response within one month after receiving the written notice. If one is not sent, it means that they consider that consent to conduct the transaction has been received. The organization's charter may contain other deadlines for performing these actions.

If a refusal is received, the sale of a share in the LLC must be carried out to any participant who has expressed a desire to purchase it, or to the company itself. IN latest version implies the distribution of shares at the general meeting among the remaining founders within a period specified by law. IN in this case It should be taken into account that the founder can sell only that part of the share for which payment has been made; in case of incomplete contribution, only the paid part is subject to sale.

Sale of a share in the authorized capital of an LLC

It should be borne in mind that purchase and sale agreements must be notarized. It should be noted that the same rules apply. Of course, with this procedure, the execution of such transactions becomes much more complicated, but this gives enough effective protection from raider takeover of business.

Sale of a share in the authorized capital of an LLC: notarization of the transaction

To certify the agreement for the sale of a share with a notary, the parties must provide passports and an extract from the state unified register legal entities, ORGN and INN of the company, consent of the spouses (if their personal presence is impossible). In addition to the above, you will need documents that confirm the fact of payment of the share or part, an agreement, documents showing that the procedure for notifying the founders was carried out. And finally, you will need a receipt and a completed application form P14001

All submitted documents are checked by a notary, and if there are no errors in the paperwork, he certifies the contract. The parties are given two copies with an identification inscription. Within three days after the conclusion of the transaction, the notary submits documents to the tax authorities for changes in the Unified State Register of Legal Entities. Five days after signing the contract, a company representative can obtain a corresponding certificate from the Federal Tax Service.

It is worth saying that if the sale of a share in the authorized capital of an LLC was carried out between the founders, then all of the listed documents will be required, and application P14001 will also have to be certified by a notary.

The issue of selling a share of the authorized capital became relevant after some changes in legislation. Often difficulties arise precisely because of ignorance of the laws. How to correctly register the sale of a share of the authorized capital in 2019?

When an organization is formed, it is formed authorized capital. Its shares are distributed among the participants in proportion to the amount of the contribution made.

Moreover, each founder is free to dispose of his share at his own discretion - donate, assign or sell.

And if a donation or assignment simply involves a change of participant, then the sale of a share is accompanied by certain design features. How is the sale of a share of the authorized capital processed in 2019?

General information

An LLC participant who wishes to sell his share must first offer to buy his part to other founders, unless he is the only participant.

If there is one participant, a decision is made to sell a share in the authorized capital of the LLC. Participants have a preemptive right to purchase a share.

If this is stipulated by the charter, then the company may also have such a right. The participant sets out his intention to sell the share in an offer submitted to the director of the LLC.

Within thirty days, unless otherwise established, consent to purchase the share must be expressed. In the absence of acceptance within the prescribed period, the right of priority redemption by the participants is lost.

According to the general rules, the founders buy out the share of another participant in proportion to their own shares. But statutory provisions may also predetermine the possibility of uneven distribution.

If some participants refuse to purchase, the remaining founders retain the right of first refusal. In this case, the share can be sold in parts, the remaining part of the share can be sold to a third party.

When selling on the basis of a preemptive right, the value of the share corresponds to its nominal value or other amount determined by the charter.

This rule does not allow a participant to ask for too high a price, thereby violating the participants' right to preemption.

If the LLC participants refused to buy a share, then it can be sold to another person or participant, but without the right of first refusal.

The price in this case is determined by the seller himself, but it cannot be lower than the nominal value specified in the charter.

What is it

Authorized capital is property that the founders of an LLC allocate to the company to carry out activities in order to achieve certain goals.

Also, the authorized capital is the minimum amount of property that guarantees the interests. There is no specific definition of what exactly is meant by property.

Participants can contribute their share in money, fixed assets, goods, and materials. To avoid disagreements, all types of property are reduced to a single equivalent.

The value of the deposit is assessed in monetary terms, which is the value of the share. The authorized capital of the organization is divided into shares according to the number of participants. A share in the authorized capital is part net assets, which the participant can apply for.

The concept of share also determines the number of votes that participants have at the general meeting of founders. The size of the share is expressed as a percentage or fraction of one hundred percent of the total capital.

The size of the share determines the size of the dividends received by the participant from the profits of the LLC. The owner of a share of the authorized capital is free to dispose of it within the limits determined by law or the charter.

In accordance with this legal act, LLC is recognized business society created by one or more participants, and whose authorized capital is divided into shares.

In addition, the method is distinguished by its simplicity, the absence of the need to obtain consent from the spouse and verify the legality of ownership of shares.

Sales and purchase agreement

The essential terms of the contract are the subject of the transaction and the price. The value of a share can be determined as nominal or market, but not lower than nominal. At the same time, the size and value of the share should not differ from those announced to the company’s participants.

In this case, the individual does not have the right to a property deduction, since it is not the property that is being sold, but the property right.

However, the amount of taxable income may be reduced by the amount of confirmed actual expenses incurred when receiving income.

That is, in essence, a certain . It is confirmed by documents certifying expenses. You must indicate expenses when filling out 3-NDFL.

To fill out the form you will need a certain list of documents. There are many subtleties in filling out, depending on the specific situation.

In addition, the form has changed somewhat. To avoid mistakes, you can fill out the 3-NDFL declaration for 2019 online. You can fill out the form correctly using the 2019 Tax Return program.

Reflection by accounting entries

The display of the sale of a share in accounting depends on the type of transaction. In particular, the following wiring is used:

The seller is a legal entity. In his accounting he makes the following entries:

The buyer-legal entity makes the following records:

The buyer is society. Postings:

For an LLC, the sale of shares to participants or third parties is recorded by analytical records upon the change of participant:

Dt80 Kt80

Possibility of termination of the contract

The sold share of the authorized capital is transferred to the acquirer from the moment of notarization of the transaction. In this case, a situation may arise when the buyer does not pay the required amount.

In this case, you can terminate the contract on the grounds of violation by the counterparty of the contract or, covering the sale of an LLC share with deferred payment.

But if the purchase and sale agreement is terminated voluntarily or by court decision, the parties do not have the right to demand the return of obligations fulfilled before the termination of the agreement. That is, the seller cannot demand his share back.

If the court finds a significant violation of the terms of the contract, the seller can recover money from the buyer to pay for the share and compensation for losses incurred as a result of termination of the contract.

In order to avoid non-return of the share, it is necessary to provide at the stage of concluding the contract the conditions under which the share should be returned in the absence of payment.

It is also possible to provide for full payment of the share at the time of signing the contract or retention of ownership rights by the seller until full payment.

Changes in 2019 slightly changed the process of selling a share of the authorized capital. The most important change is the necessary notarization of all stages of the transaction.

However, all possible nuances should be taken into account. This will help avoid loss of share or claims from tax authorities.

The source of formation of the value of the authorized capital (AC) of an LLC is the shares contributed by the founders at the opening or in the process of conducting business. The exit of the founder is accompanied by the sale of the share to the company or a third party. The alienation procedure requires mandatory paperwork and registration with the Federal Tax Service by amending the constituent forms of the LLC. In this article we will tell you how the purchase/sale of a share of the authorized capital in an LLC is formalized, and we will give examples of transactions.

Procedure for selling the founder's share in an LLC

The sale of the contribution is made:

In favor of another member of the organization. Persons have a priority right to purchase the alienated share.
To another person not included in the founders. The possibility of selling part of the capital must be reflected in the company's Charter.
To the company, provided that the priority right to purchase the contribution being sold is not used by the participants or the persons do not indicate a desire to purchase shares. The refusal must be made in writing and certified by a notary.

Transactions with shares of the management company are always prescribed in the Charter, which requires a thoughtful approach taking into account the prospects for conducting business.

Sale of a contribution to the authorized capital of the founder at open trades and auctions

A sale organized at a public auction must be agreed upon by all participants, whose approval is recorded in the minutes. At the same time, if a person acquired shares in the management company at an auction, the right to join the founders arises with the approval of all participants. Otherwise, the buyer is paid the full cost of the funds spent.

When conducting public tenders and auctions as a type, the preemptive right to purchase part of the capital by the founder of the company is retained. According to legislative norms, the founder can exercise the right within 30 days. The period is calculated from the moment the acquisition conditions are published or changed during the bidding process.

Possible ways to acquire shares in a management company

The legislation provides for options for purchasing shares at public auctions, or through sale to third parties, the company itself or other founders. The possibility of using each of the options must be provided for in the Charter.

	Public bidding	Auction	Founder	To a third party
Notification	Media	Media	Presentation of an offer	By agreement
Purchase cost	Installed in advance	Maximum achieved	Denomination	Denomination or by agreement
Advantageous new right of the founder if there is a condition in the Charter	Available	Available	Available	Available
Notarization		Required on a limited basis due to special contract conditions	Not required, if the corresponding condition is included in the Charter	Required
Advantages	Available fraud protection and legal guarantees of the transaction	During the auction, the purchase price may be reduced	The acquisition automatically increases the share size	Possibility of purchasing a share below par
Flaws	The founder's ability to cancel the transaction	The purchase price may increase significantly during the bidding process	All participants have the right to priority purchase	The need to use the services of a notary

Notary services for the alienation of shares of a management company

Transactions of purchase and sale of shares must be certified by a notary to ensure the purity of the procedure. Violation of the requirements of Art. 21 of the Federal Law “On LLC” entails the recognition of the transaction as void. The participation of a notary is required in the following cases:

Creating an offer - a document notifying a person’s intention to sell his own share or part of it, indicating the conditions and cost.
Confirmation of the participant’s refusal to preemptively purchase a share.
Coordination with the spouse of the transaction for the sale of the share.
Certification of a statement of absence of marriage during the period of membership in the society. Divorced persons must provide consent from ex-spouses for a deal.
When a person representing the interests of the founder, who is not able to be present in person, participates in the transaction. Conducting a transaction by a trustee is allowed, but the signing of the application form P14001 is carried out by the founder himself.
The need to certify the purchase and sale agreement.

In case of sale of shares to other founders, the company, forced alienation of shares by decision general meeting No approval is required from participants or the judicial body for creditor claims. A notary submits an application to the Federal Tax Service regarding the completed sale and purchase transaction of a share.

If the purchase was made by the company, an application is submitted to the Federal Tax Service executive body society.

Stages of the procedure for selling a stake in a management company

When voluntarily selling part of the charter capital, the founder observes the order of operations.

Transaction procedure stage	Description
Preparation of an offer	The document requires notarization. Read also the article: → “.
Submitting an offer to the society	The offer is sent to the location address; each participant is not notified separately
Decision-making by participants expressing their intentions in writing	You have 30 days to exercise your pre-emptive right
Convening a general meeting of founders	Fixation in progress decision taken in the protocol
Drawing up a contract of sale, gift, exchange	The contract is certified by a notary
Amendments to constituent documents	Changes are made based on application P14001
Payment of the share price to the seller	The amount is determined by agreement of the parties, unless otherwise established by the Charter

Acquisition of a share in the management company by the company itself

The company purchases a share in the management company using both purchased and unpaid shares. The acquisition of the founder’s shares by the company itself is carried out in cases in which the participant:

Refuses to acquire a share increased by decision of the meeting of participants.
Announces withdrawal from the membership.
Plans to sell to a third party, but permission has not been received from the general meeting of the company. Permission is required to be obtained in cases specifically stipulated by the Charter. In a number of companies, the sale of shares in the management company to third parties is not carried out.
Grants the founders the right to a pre-emptive repurchase, in which the participants formalize a written refusal to purchase the released part of the charter capital.

Within 3 months from the date of the founder’s appeal to the company, the general meeting must make a decision on redemption with payment of the amount due to the founder. The Charter may establish a different, longer period necessary for making a decision and making payments. Notarization of the transaction is not required. The company, having received ownership of the purchased shares, has the right to distribute their value among the participants or sell them to a third party with simultaneous admission to the founders.

Sale of founders' shares below par

The sale of shares in the authorized capital may be lower than the cost of acquisition. Individuals who are founders, upon sale, must provide a declaration in which the amount of the deduction is higher than the income received from the sale of the share. Legal entities also incur losses when receiving amounts upon sale of shares below the original cost.

To protect against claims from the Federal Tax Service, it is necessary to order an independent assessment of the value of the shares. The charter of a number of companies provides for the alienation price of shares below par in the event of unprofitable business management, confirmed by reporting.

Cancellation of shares when purchasing parts of a management company by a company

When a company purchases part of the authorized capital, it may be necessary to cancel the value of the shares with a decrease in the amount of the authorized capital. Cancellation of the value of the acquired share is carried out in cases of refusal of other founders or third parties to acquire them, provided that the net assets are sufficient.

Example of cancellation of shares in a management company

Founder Novikov M.P. announced the sale of a share in the management company, the cost of which was 2,500 rubles in the amount of ¼ of the full price of capital. The value of the share at the time of the announcement of exit is 500 rubles below par. The share was purchased by the company. The following operations were carried out in the company:

A decrease in the authorized capital for the cost of the purchased share is reflected: Dt 80 Kt 81 in the amount of 2,500 rubles;
The excess of the nominal value over the actual costs is reflected: Dt 81 Kt 91 in the amount of 500 rubles.

The share acquired by the company must be distributed within a year, after which the shares are canceled.

Taxation upon sale of a share in a management company

The sale of a participant's own share is subject to taxation; the procedure for collecting taxes depends on the status of the person. Both a legal entity and an individual act as a participant in the company.

	Income	Expenses	Tax
Legal entity on OSNO	Income is taken into account in the amount of the cost of the share, VAT is not assessed	Accepted in the amount of the initial purchase price of the share and costs associated with the sale	Income tax
Legal entity on the simplified tax system	Amount of income	Costs associated with the purchase of the contribution are not included in expenses.	Single tax
An individual holding shares for up to 5 years	Share cost	Deduction for expenses	Personal income tax
An individual who has owned shares for over 5 years	Not taxed in accordance with clause 17.2 of Art. 217 Tax Code of the Russian Federation	Not taken into account	Not taxed

An example of transactions when a company buys out the founder’s shares

The founder of Rassvet LLC decided to sell his own share in the management company, the value of which at the time of sale was 50,000 rubles. The initial cost of the investment, earlier than 5 years, was 20,000 rubles. The following transactions are carried out in the LLC:

The acquisition of the founder's share is reflected: Dt 81 Kt 75 in the amount of 50,000 rubles;
The amount due to the founder was paid: Dt 75 Kt 51 in the amount of 50,000 rubles.

At the end of the tax period, an individual submits a declaration to the Federal Tax Service, in which he indicates the amount of income in the amount of 50,000 rubles and a deduction in the amount of 20,000 rubles with taxation of the difference in personal income tax.

Category “Questions and Answers”

Question No. 1. When selling a share to a company, does the founder have the right to change its value?

When selling a share to a company, the owner does not have the right to set the selling price.

Question No. 2. What personal income tax rate applies when selling shares of a non-resident founder?

The tax rate for a non-resident on the sale of a share is set at 30% of the amount of income received.

Question No. 3. How is the cost of the contribution paid to the founder when contributing property?

The payment procedure is determined by the Charter. If the constituent documents allow, payment is made in property or cash at the request of the founder.

Question No. 4. Is it possible to realize the founder's contribution if the company is subject to bankruptcy proceedings?

It is possible, the sale is carried out at open auction. The procedure must be approved by other participants entitled to the preemptive right of acquisition within the company. In bankruptcy, the purchase price is determined by auction for all persons.

One click call

Sergey Rossol, legal consultant of JSC "UK YAROVIT"

The easiest way to acquire a business is to purchase a legal entity
faces. One of the most common forms of legal entities is a company
with limited liability. To avoid complications during the conclusion process
agreement for the purchase of shares in an LLC, you need to know the problem areas of such a transaction.

So, you have completed the initial due diligence and
confident in the prospects of the chosen project. Now you need to make a purchase like this:
to become a full-fledged co-investor, and not to purchase additional
problems.

Step one

Check whether the authorized capital of the Company has been paid. Payment deadline is set
in the constituent agreement of the Company and cannot be more than one year. Participant's share
The company can be alienated only in that part in which it has already been paid
(clause 3 of article 21 of the Federal Law of February 8, 1998 No. 14-FZ “On Companies
with limited liability”, hereinafter referred to as the LLC Law). Any transactions with unpaid
shares of the authorized capital are insignificant (Article 168 of the Civil Code of the Russian Federation). In the event that the statutory
the capital has been paid in full by the founders of the Company, you can safely move on.
If not, the deal will be significantly more complicated. It’s good if payment deadlines have not yet been missed.
Then it’s simple to correct the situation: the seller must pay the additional amount not paid by him
part of the contribution, for example, by receiving a loan from a future buyer of the share.

It is much worse if it turns out that the deadline has been missed. In this case, the founder's share
completely passes to the Company (clause 3 of article 23 of the Law on LLC). True, the charter of the Society
may provide that only its unpaid portion is transferred. How to proceed
in such a situation to the buyer? If the share is completely transferred to the Company, there is no point
continue negotiations with this person. If the transition is completed partially, then it is necessary
think about how much the purchase of part of the share meets the initial interest.
If it gives real control over the Society, you can safely buy it. Otherwise
In this case, the risks of future friction between
co-investors, and possibly refuse the purchase.

Of course, there is no need to make a purchase even if, as a result of due
diligence will establish that the seller offering you
make a purchase, he himself “bought” an unpaid share in the authorized capital of the LLC.

Step two

Study the constituent documents of the Company very carefully. This is needed for
in order to determine how they reflect dispositive norms law. First,
What you need to pay attention to is the implementation of paragraph 2 of Article in the Charter
21 of the LLC Law. Let us remind you that in accordance with this paragraph, the sale or
assignment of shares to persons who are not members of the Company is permitted only
unless this is expressly prohibited by the Company's Charter. If there is no ban, we move on.
Eat? Then we look for ways to get around it. The easiest way is to deposit
corresponding amendments to the Company's Charter. True, this method is only possible
if the person selling the share controls decision-making by the general meeting of participants.
In addition, to circumvent the ban, a gift agreement is widely used. Owner
shares “donate” it to another person, receiving funds through “gray schemes”.
However, this method inherently contradicts current legislation.
The transaction is a sham because it covers up another agreement. Such actions
also violate tax and often currency laws. Besides
The Company’s Charter may contain a ban not only on the sale of shares to third parties,
but also to transfer it to them for other reasons.

When conducting a transaction, you must remember that the Company's participants have priority
the right to purchase a share. The Company itself may have such a right, if it is secured
in its Charter. The purpose of this right is to maintain parity of interests in the Company and
do not allow unauthorized persons to participate in the business.

The seller is obliged to send to all members of the Company an offer to purchase a share
on the terms offered to the external buyer. Notice of desire form
make a sale, is not regulated, but the document must contain essential
the conditions under which the contract is planned to be concluded. The law gives participants
exactly 30 days to consider this proposal (the Charter of the Company may, as
increase or decrease this period). There must be a desire to make a purchase
expressed in writing and sent to the seller before the expiration of the specified period. In case
if several participants have expressed a desire to purchase a share, contracts are concluded
with each of them. In this case, the share is divided between them in proportion to their participation
in the authorized capital. Assignment of the pre-emptive right to purchase is not permitted.
The Company's Charter may provide for a different procedure for the distribution of shares in the event of
sale. Let us note that if the Charter stipulates that the Company also has preferential
right to purchase, the offer must be sent to him (see example).

When completing a transaction in violation of the requirements for the pre-emptive right to purchase
any member of the Society or the Society itself (if in accordance with the Charter
had such a right) may demand in judicial procedure transfer of rights to it
and buyer's responsibilities. The right to go to court can be exercised within
three months from the moment when the participant or the Society learned (or should have
find out) about the completed transaction. To avoid such a risk, the buyer, when concluding
transaction must require from the seller documents confirming the execution
them of their responsibilities. Such documents are: written refusals of all others
members of the Company in free form, receipts (preferably with an inventory of the contents),
confirming that participants were sent letters with an offer to buy
share. If the Company also has a preemptive right to purchase, then it is also necessary
decision or protocol of its competent authority. This document must contain
information about the refusal to exercise this right. In this case, the buyer must
be careful. After all, if a decision is made with excess of authority or incompetence
By this issue organ, he risks losing what he has acquired.

Step three

Determine whether the share purchase transaction is subject to antimonopoly regulation
legislation. Law of the RSFSR dated March 22, 1991 No. 948-1 “On competition and
restriction of monopolistic activities on commodity markets"(hereinafter referred to as the Law
on competition) in Article 18 imposes a number of restrictions. They are as follows.
The total value of the assets of the buyer-legal entity and affiliates
of persons involved in control of the Company may exceed 2,000,000 minimum wages.
In this case, the buyer is obliged to notify the antimonopoly authority about the purchase of the share
of any size if this purchase allows him alone or together with his affiliates
persons control more than 20 percent of the authorized capital of the Company. When
If the amount of assets exceeds 30,000,000 minimum wage, then notification is no longer required,
and permission from the antimonopoly authority. But the buyer of the share in the LLC may be
and an individual who acts only on his own behalf. In other words,
is not affiliated and is not part of the group. In this case, according to the logic of point
3.1 Order of the MAP of the Russian Federation dated August 13, 1999 No. 276 in order to determine
do you need to contact the antimonopoly service, do you need to evaluate the assets of the LLC,
in which the share is acquired. If they turn out to be more than 2,000,000 minimum wages, then how
has already been said, the antimonopoly authority should be notified, and if more than 30
000,000 minimum wage, then obtain his consent to the transaction. However, the resolution may
also required for smaller transactions. To do this, the LLC must be included in the Register
business entities with a share of more than 35 percent in the market of a certain
goods.

Obtaining permission to conduct a transaction may take some time.
The Competition Law establishes a period for consideration of an application of 30 days. However
due to the fact that antimonopoly authorities may request additional information,
in practice this period is longer. Violation of the requirements of antimonopoly legislation
is fraught with recognition of the sale and purchase transaction of shares as invalid.

The transaction may be declared invalid by the court at the request of the interested party.
persons - seller, buyer, Company or antimonopoly control body.
IN the latter case a necessary condition for recognizing a transaction as invalid will be
its result is a restriction of competition.

Step four

Sign the contract. By general rule the transfer of shares is made in simple written form
form. This means that the parties have drawn up a single document, under which they stand
their signatures. Or there was an exchange of documents through postal, telegraphic,
teletype, telephone or other communications that make it possible to unambiguously establish
that the document came specifically from the party to the contract (clause 2 of Article 434 of the Civil Code of the Russian Federation).
However, it should be noted that in practice it is almost impossible to prove in court
origin of the document received by fax. The same applies to the document
sent by e-mail without using an electronic digital signature. Order
its use establishes Federal law dated January 10, 2002 No. 1-FZ
“On electronic digital signature.”

Before signing the contract, you need to check whether it stipulates
Charter of the Company; conclusion of an agreement on the transfer of shares in notarial form.

Step five

Notify the Company about the assignment of the share in writing, with presentation
documents confirming its transfer (paragraph 2, paragraph 6, article 21 of the LLC Law). On
in practice, this means that it is necessary to hand over to the director of the Company “against signature”
a copy of the share purchase agreement or other document signed jointly
seller and buyer and notifying about the transfer of rights. This needs to be done
immediately after signing the contract. After all, the buyer gets the opportunity to sell
the rights granted to him by the purchased share only after such notification.

Step six

Hold an extraordinary general meeting of the Company's participants with
the purpose of approving a new version of the constituent agreement. Approval of the new edition
necessary in connection with the replacement of one of its participants. Extraordinary meeting
convened by the General Director of the Company. New member, if purchased
their share gives him the right to at least 10 percent of the votes, and also has the right to demand
convening an extraordinary meeting. At the same time, he sends the demand for convening to the general
to the director. Having received it, the head of the Company is obliged within five days
review and initiate the meeting procedure. If the CEO of this
fails or refuses to hold a meeting, then the participant owning 10 percent
authorized capital (or several participants collectively owning 10 percent)
has the right to start the procedure independently (Article 35 of the LLC Law).

In our opinion, it is advisable to send the requirement to convene a meeting of participants
To the company simultaneously with notification of the completed transfer of the share. If
the new participant is not satisfied with the management of the Company, at the meeting you can make
The issue of changing the general director was also on the agenda. However, it is necessary to remember
what if the manager before his term expires employment contract fired by general
meeting of shareholders, the Company is obliged to pay him compensation established
agreement of the parties. But in any case, it must be at least three monthly averages
wages. (Resolution of the Constitutional Court of the Russian Federation of March 15, 2005 No. 3-P “On the case of inspection
constitutionality of the provisions of paragraph 2 of Article 278 and Article 279 Labor Code
Russian Federation and paragraph two of paragraph 4 of Article 69 of the Federal Law “On
joint stock companies").

Step seven

Make changes to the Unified State Register of Legal Entities and Individuals
entrepreneurs (Unified State Register of Legal Entities). It contains information about the LLC participants. Respectively,
if their composition changes, changes must be made to the register. For this
to the body responsible for maintaining the register (currently the Federal
tax service), applications are submitted using established forms. Established
practice requires simultaneous filing of applications on Forms 13001 and 14001 (approved
Decree of the Government of the Russian Federation of June 19, 2002 No. 439 “On approval of forms
and requirements for the preparation of documents used for state registration
legal entities, as well as individuals as individual entrepreneurs»).
Applications are signed by the General Director, and his signature must be
notarized.

New editions of the Company’s statutory documents are attached to the forms (two copies)
and minutes of the extraordinary general meeting of participants. In addition, in tax
authorities in a number of regions require copies of the share transfer agreement, although by law this is
not installed. Registration in the Unified State Register of Legal Entities takes five days from the date of submission of applications
until official documents are received. In our case, these are two Certificates
(registration of information for each application), copies constituent documents
Companies marked tax office and Extract from the Unified State Register of Legal Entities.

After the relevant changes have been made to the Unified State Register of Legal Entities and official confirmation
Once this has been received, the process of acquiring a share can be considered completed.

“Sometimes there is no need to change the charter...”
Victoria Klimova , lawyercompaniesTCHIBO CIS LLC Moscow:
“It should be noted that not every LLC has a memorandum of association. For example,
if there is only one founder in the company, then the need to draw up this
no document appears. Accordingly, the deadline for payment of the authorized capital may
be reflected not only in the constituent agreement, but also directly in the charter.
In this case, at step six, changes should be made not to the constituent agreement, but
and in the charter. But the charter does not always contain information about the participants. For example,
it may indicate: “the authorized capital of the Company is divided into four shares
25 percent, 2,500 rubles each.” However, no specific names
and no other information about the participants is provided. Naturally, in this case the changes
There is no need to include it in the charter.
In addition, during due diligence (preliminary legal check) you should not
forget to check the national registration number(OGRN) and TIN of the company
for reliability. Find out whether the sole founder of the LLC is, in its own right,
turn, a company with one founder (this is prohibited by clause 2 of article 7 of the Law on
OOO). It is equally important to know whether the purchased share is not pledged;
whether there are corporate conflicts in society, when and how other transactions were carried out
with shares."

Example. Notification of a participant to the Company of intention to sell a share
General Director of the limited liability company "Leader"
Ivanov I. I.
from a member of the limited liability company "Leader"
Petrova P. P.
Notification
I hereby notify Leader LLC represented by General Director Ivanova I. I.
about my intention to sell my share in the authorized capital of the Company in the amount of
15% to a third party.
Terms of sale:
Share price: 50,000 (fifty thousand) rubles
Payment deadline: no later than five days from the date of signing the transfer agreement
shares.
Payment procedure: by transfer cash to the seller's bank account.
Penalties: in case of violation of payment terms, the Buyer pays
a penalty in the amount of 1/150 of the refinancing rate of the Central Bank of the Russian Federation for each day of delay.
In accordance with paragraph. 2 clause 4 art. 21 Federal Law “On Limited Liability Companies”
and the Charter of the Company, I request within 30 days from the date of receipt of this notice
inform me of the Company's intention to use the pre-emptive right
or refusal to exercise this right.

You can read more about due diligence
in the article by Sergei Rossol “Buying a business requires due diligence”,
published in Consultant No. 17, 2005 (p. 75).

Currently the minimum wage used
to calculate this amount is 100 rubles (Federal Law of June 19
2000 No. 82-FZ (as amended on December 29, 2004) "On minimum size payment
labor").