The pre-emptive right of a company with a single participant. The preemptive right to purchase a stake in an LLC: we believe it is correct. Alienation of a share or part of a share in the authorized capital of an LLC as a result of succession

In accordance with paragraph 4 of Art. 21 of the LLC Law, company participants enjoy the pre-emptive right to purchase a share or part of a company participant's share 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 charter of the company (hereinafter - the price predetermined by the charter) in proportion to the size of their shares, if the charter of the company does not provide for another procedure for exercising the preemptive right to purchase a share or part of a share. That is, if there are 3 participants in the company, 1 - 50% authorized capital, for 2 - 25% of the authorized capital, for 3 - 25% of the authorized capital and 1 wants to sell the stake through the pre-emptive right to purchase, 2 will be able to buy only 25%? And if 3 doesn't buy, can 2 buy the remaining 25% or not? Or can 2 buy all 50%? The charter states that the participant has the right to sell to third parties, the consent of others is not required and that the period for using the pre-emptive right to purchase is 30 days.

Answer

The second participant will be able to buy the whole 50% of the share in the event that the third does not want to buy the share. In the event that the 3rd also wants to buy the share of the 1st participant, then they will have to divide it: 25% will be from the 3rd, 25% - from the 2nd. In total, in this case, 50% each.

The transfer of a share or part of a share of a company participant in the charter capital of a company to other company participants is regulated by the Law on LLC.

The rationale for this position is given below in the materials of Sistema Yurist .

“If a share in an LLC is sold to a third party in violation of the preemptive right, any participant (and the company itself) may, in court, demand the transfer of the buyer's rights and obligations to them.

In this case, the seller will have to compensate the buyer for the costs incurred to purchase the share that was sold to him in violation of the preemptive right ().

To avoid such consequences, you need to know in which cases the preemptive right arises and how not to violate it by alienating the share to a third party.

What is preemptive right and when does it arise

When one of the participants wishes to sell his share in the LLC to a third party, the remaining participants have a preemptive right to purchase this share. Such a rule is provided for in article 21 Federal law of February 8, 1998 No. 14-FZ "On companies with limited liability"(Hereinafter - the Law on LLC).

The preferential right of the participants is expressed in the fact that they “stand in line” for a share in front of third parties.

The preferential right can be enjoyed not only by the participants, but also by the society itself.

Such a right of society arises only when it is provided for by the charter ().

Including such a provision in the charter, it is necessary to establish the terms for the use of the preemptive right by the participants and the society ().

If the terms are not set, the company will not have a real opportunity to use the preemptive right, since it arises only when the participants did not use their right (they refused or the term for using it has expired), and third parties have not yet received the right to purchase.

That is, the society “stands in line” for a share after the participants, but before third parties (). The timing needs to be set just in order to accurately determine this period of time.

It is prohibited to concede or transfer to someone your pre-emptive right.

Using the pre-emptive right, participants can purchase the share sold at the price of the offer to a third party or at a different price when it has been predetermined in the charter. Moreover, the price set in advance should be the same for all participants.

How to determine in advance the price of a share in an LLC in case of its purchase using preemptive rights

Participants have the right to purchase a share only in proportion to the size of their shares ().

This rule can be disregarded only when the charter permits it. Participants can include such a provision in the charter by unanimous decision. *

Additionally, the charter may provide that the participants or the company can use the preemptive right in part and acquire only a part of the part of the share due to them. Participants can include such a provision in the charter by unanimous decision. However, as practice shows, participants can use their right in part only with the consent of the seller to sell the share in part ().

The charter may provide for a different procedure for exercising the preemptive right to purchase a share ().

It should be noted that the preemptive right does not arise when a share is sold to one of the participants in the company, and not to a third party ().

An example from practice: the court refused to the participant in the request to transfer the rights of the buyer of the share to him, since in this case the participants did not have a preemptive right, since the share was sold not to a third party, but to one of the participants

On July 11, 2007, two members of D. entered into an agreement for the sale and purchase of a share in the amount of 1.12 percent of the amount of the authorized capital.

Another participant, citizen E., applied to the arbitration court with a demand to transfer to her the rights and obligations of the buyer under the said sale and purchase agreement, considering that her preemptive right to purchase a share was violated.

The court took the position of the defendants (seller and buyer of the share). The court pointed out that the participant's preemptive right to purchase a share arises only if the share is sold to a third party who is not a member of this company. Since the disputed transaction was made between the participants, the preemptive right to purchase from other participants, including the plaintiff, did not arise.

The charter may provide for the need to obtain the consent of other participants in the company for the transfer of a share in the authorized capital from one participant to another, but in this case this is not provided.

The claims were denied ().

How not to violate the preemptive right

The law obliges to observe the preemptive right, but in practice it is often bypassed or simply ignored.

How to comply with the preemptive right

If it is not important for the participant to whom to sell the share (to a third party or to the rest of the LLC participants), then it is better to observe the preemptive right. This will avoid unnecessary risks, in particular, the risk of challenging the transaction as sham ().

The share must be sold in compliance with the preemptive right in the following order.

1. A participant who intends to sell his share must notify the other participants and the company itself about it. To do this, you need to send offers through the company, in which you need to indicate the price and other conditions for the sale of the share, that is, offer them to buy the share.

The offer is considered received by all participants at the time of its receipt by the company.

An offer is considered not received if, prior to its receipt by the company, the participant received a notice of its withdrawal. After the offer has been received by the company, it can be revoked only with the consent of all participants, unless otherwise provided by the charter.

Such rules are established in article 21 of the LLC Law.

Attention! If at about the same time it is planned to conduct several transactions for the sale of shares in an LLC, sellers must take into account: as soon as the transaction on the assignment of a share is certified by a notary, the acquirer of the share may have a pre-emptive right to acquire other shares.

The acquirer of the share becomes a full member of the company already from the date of notarization of the transaction on the assignment of the share (). In this regard, the preemptive right to acquire shares from other participants-sellers may arise from that date.

In case of violation of this right new member may apply to the court with a demand to transfer to it the rights and obligations of the buyer of the share. This confirms arbitrage practice ().

2. Within 30 days from the date of receipt of the offer by the company, the participants accept the offer. The charter may provide for a longer period for the use of the preemptive right ().

If the charter grants a preemptive right to the company itself, then it (in the charter) must determine the time frame for the implementation of the preemptive right by the participants and the company ().

In this case, it is not necessary to notarize the purchase and sale transaction ().

If individual participants waived the use of the preemptive right or acquired only a part of the part of the share due to them, other participants can buy the remaining share. Participants can acquire such a share in proportion to the size of their shares.

The charter may establish a different procedure for acquiring the remaining share ().

3. The preemptive right of the participants (and the company) terminates when the term for their use of such right expires.

The preemptive right also terminates in the case when, before the expiration of the period from the participants ( potential buyers share) the company received notarized statements of refusal to use the preemptive right, and from the company (if it was granted a preemptive right), a similar statement was received by the participant himself - the seller of the share ().

4. If the participants or the company itself have not acquired the share within the deadline, it can be sold to a third party.

The sale price of a share cannot be lower than that indicated in the offer (or the price established by the charter, while if a different price is set for the participants and the company by the charter, then one should be guided by the price provided for the company).

The terms of sale must also correspond to those indicated in the offer ().

How to bypass the preemptive right

Sometimes the seller of a share in an LLC needs it to be transferred to a specific person who is not a member of the company. To do this, in practice, instead of a sale and purchase agreement, a donation agreement, an exchange agreement or another agreement is concluded, according to which the share is not sold, but is alienated in any other way.

The pre-emptive right of the participants is valid in case of alienation of a share only by way of sale and does not apply to other cases of alienation of a share.

However, it should be borne in mind that violation of the preemptive right, including by concealing a real sale and purchase transaction, inevitably entails the risk of challenging the concluded transaction as sham () and (or) transfer of the buyer's rights and obligations under the transaction to the person whose preemptive right was violated ( ). In this regard, it is possible that the seller will have to defend his position in court, confirming the reality of the relationship that has developed between the parties to the transaction. "

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In this article, we have tried to answer all the questions that arise when selling a stake in an LLC. And also made a detailed step by step instructions to carry out this procedure in compliance with all the requirements of the law.

Today, there are the following ways to exercise their rights 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 article-instructions. The budget option, since it involves only the most necessary expenses (notary services, state duty), but it takes quite a lot of time, which is spent on drawing up various documents and walking around the authorities.
2. Make it a little easier for yourself and use the services of our service for writing legal documents... Drawing up each of them will take no more than 15 minutes, which will significantly save time. The finished result will only have to be sent independently to the appropriate authorities.

For those who decided to do everything on their own, we have broken down the process of selling a stake in an LLC into a number of stages. Their consistent implementation will make it possible to do everything legally competently.

Sale of a part or 100% stake in LLC

The share of the LLC participant is not indivisible. Therefore, it can be sold not only in full, but also in parts. There can be more than one buyers. The decision about which part will be sold is made only by the owner himself, based on his needs. Other participants have no 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 full package of documents and register the deal accordingly. Well, and comply with all the requirements of the law for such a transaction.

A slightly different picture if there is only one participant in the LLC who wants to sell his share in full.

Assessment of the share of LLC in the sale

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

For clarity, consider an example.

Suppose that at the time of registration of the LLC, its authorized capital was equal to 10,000 rubles, and each of the two participants contributed 5,000. That is, the share of each will be 50%. At the time of the decision of one of the partners to sell its share, the net asset value 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 cost, you can set the price at which the share will be sold. Market price will not necessarily coincide with the real cost. It is best to calculate its exact value by professional appraisers, who will take into account many factors that affect the price in a particular region.

Members of the company enjoy the pre-emptive right to purchase a share or a part of a share of a company participant at the price of the offer to a third party or at a price different from the offer price to a third party and a price predetermined by the charter of the company in proportion to the size of their shares.

That is, it is possible to sell a stake to third parties at any price, but at the same time the participants / society can use the pre-emptive right to purchase and redeem at the offer price or at a price already set in the charter.

Taxes on the share of LLC on sale

Information about the value of the share or part of it 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 from the transaction for residents of the Russian Federation and 30% for non-residents. However, if the period of ownership of a share for an individual is more than 5 years, then you will not have to pay personal income tax, or if you sell the share at par.

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

When selling their share in an LLC, legal entities pay taxes depending on the taxation scheme applied. If the price of the share at which it was sold is equal to the contribution to the Criminal Code, 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 stake in an LLC begins. Below we have provided detailed step-by-step instructions for implementing this process.

STAGES OF SALE OF SHARE LLC

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

The contract for the sale and purchase of an LLC share, which must be certified by a notary, does not require amending 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, failure to comply with which, as well as the lack of notarization, make the transaction invalid. This is the observance of the order of the preemptive right to purchase a share by other participants and, if provided by the charter, by the company itself when selling to an outsider. To observe their rights, an offer should be sent to all participants through the society and the society itself to sell the share, and then receive their written refusals to exercise their right.

The offer for sale is sent not only to the participants, but also to the address of the LLC itself. The offer indicates the size of the share to be sold and its price. The rest of the participants have 30 days to make a decision to exercise the right to buy or refuse to buy 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 fact that the sale will be challenged in court.

If the transaction is made between the participants, then there is no need to receive refusals from other founders. If, of course, such a requirement is not provided for in the charter. There may also be a direct prohibition on the sale of a share to a third party. In this case, only another participant or the company itself will be the counterparty.

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 a share in LLC with notarial support of the transaction

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

1. statement Р14001;
2. an extract from the list of participants;
3. m the contract for the sale and purchase of a share of LLC;
4. an offer sent to the participants;
5. waiver of the preemptive right from all participants (if the sale of a share is carried out to a third party);
6. a note on the company's refusal to acquire a share;
7. certificate of payment of the authorized capital;
8. the consent of the spouses or a statement about the absence of a registered marriage, a marriage contract (if any);
9. document confirming the payment by the buyer of the share under the agreement (receipt, receipt or expense cash order or payment order).

Also required:

1. fresh extract from the Unified State Register of Legal Entities. Some notaries prefer to get them online themselves. You can clarify this before the visit;
2. certificate of state registration society;
3. certificate of registration of the company with the tax authority;
4. charter in latest edition or the charter with all sheets of changes and certificates of registration of changes;
5. documents confirming the powers of the head of the company (decision or protocol general meeting on the appointment of the head, the order on the head's entry into office, labor contract with the head);
6. for natural person- passport; for the buyer of a legal entity - registration documents and confirmation of the representative's authority.

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

Step 3. Submission and receipt of documents in tax office

With the notarial support of the transaction, this item can be safely skipped, since the documents for registration are submitted by the notary himself and notify the society about the transaction.

After receiving the list of amendments to the Unified State Register of Legal Entities, the sale process can be considered completed. It remains only to do one more thing: when notarially supporting a transaction, this item can be safely skipped, since the notary himself submits the documents for registration and notifies the society about the transaction.

After receiving the list of amendments to the Unified State Register of Legal Entities, the sale process can be considered completed. There is only one more thing to do.

Step 4. Notify banks and counterparties

Immediately upon receipt of documents from the tax inspectorate, 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 preview the covenants under contracts with all counterparties and notify those counterparties about the changes that have occurred, in the contracts with which there is a condition for such notification.

The participant wants to sell his share in the authorized capital to a third party. In addition to him, there are three more members in the company who can use the preemptive right to purchase a share. According to the charter, the company also has a preemptive right to purchase a share. In this situation, can the company buy out a share from a participant without waiting for a decision on this issue by other participants?

The company can exercise its preemptive right to purchase a share or part of a share only after other members of the LLC do not exercise this right. In this case, the company may notify the seller of the share of its desire to redeem it even before the expiration of the term of the preemptive right to purchase from the members of the company.

When a company participant sells a share or a part of a share in the authorized capital of an LLC to a third party, other participants of this company enjoy the preemptive right to purchase a share (part of a share) at the offer price to a third party or at a price predetermined by the company's charter in proportion to the size of their shares, unless the charter of the company provides otherwise the procedure for exercising the preemptive right to purchase a share or part of a share (clause 2 of article 93 of the Civil Code of the Russian Federation, paragraph 1 of clause 4 of article 21 of the Federal Law of 08.02.98 No. 14-FZ "On Limited Liability Companies" (hereinafter - the Law on OOO)).

The charter of a company may also provide for the preemptive right of the company to purchase a share or part of a share belonging to a member of the company at the price of an offer to a third party or at a price predetermined by the charter, but only if other members of the company did not use their preemptive right to purchase a share or a part. shares of a participant in the company. At the same time, the exercise by the company of the preemptive right to purchase a share or part of a share at a price predetermined by the charter is allowed only provided that the purchase price by the company of a share or part of a share is not lower than the price set for the company's participants (paragraph 2, clause 4, article 21 of the LLC Law) ...

A participant who intends to sell his share or part of it in the authorized capital of the company to a third party is obliged to notify writing about this the rest of the participants and the society itself. To do this, he must send through the company at his own expense an offer addressed to these persons and containing an indication of the price and other terms of sale.

An offer for the sale of a share or part of a share in the authorized capital of a company shall be deemed to have been received by all participants at the time of its receipt by the company. At the same time, it can be accepted by a person who is a member of the company at the time of acceptance, as well as by the company itself.

By general rule LLC participants have the right to use the pre-emptive right to purchase a share or part of a share in the authorized capital of the company within 30 days from the date of receipt of the offer by the company, unless the charter of the LLC provides for a longer period (paragraph 2, clause 5, article 21 of the LLC Law). However, this period does not apply to cases when the charter of the company provides for the preemptive right of the company to purchase a share or part of a share. The charter of an LLC must establish the terms for the use of the preemptive right to purchase a share or part of a share by the participants of the company and the company (paragraph 3, clause 5, article 21 of the Law on LLC).

If the charter does not establish the term of the preemptive right to purchase a share in the authorized capital by the company itself, the total period of 30 days from the date of receipt of the offer by the company will be taken into account for the possibility of using the preemptive right of purchase (Resolution of the Seventeenth Arbitration Court of Appeal dated 13.03.2014 No. 17AP-1111 / 2014-GK in case No. A71-7611 / 2013). This follows from paragraph 7 of Art. 21 of the Law on LLC, which states that if within 30 days from the date of receipt of the offer by the company, provided that a longer period is not provided for by the charter of the company, the participants of the LLC or the company itself will not take advantage of the pre-emptive right to purchase a share or part of it in the authorized capital of the company offered for sale, including those resulting from the use of the preemptive right to purchase not all or not all part of the share, or the refusal of individual members of the company and the company from the preemptive right to purchase a share or part of a share in the authorized capital of the company, the remaining share or part of the share may be sold to a third party at a price that is not lower than the price set in the offer for the company and its participants, and on the terms that were communicated to the company and its participants, or at a price that is not lower than the price predetermined by the charter.

According to paragraph 6 of Art. 21 of the Law on LLC the pre-emptive right to purchase a share or part of a share in the authorized capital of an LLC from its participant and, if the charter of an LLC provides for a pre-emptive right for the company to purchase a share or part of a share, the company terminates on the following day:

• submission of a written statement of refusal to use this pre-emptive right;
• expiration of the term of use of this pre-emptive right.

At the same time, the law does not prohibit the company from sending a proposal to use the preemptive right to purchase a share or part of a share before the expiry of the time limit for making a decision on the buyout of the share by other members of the company. However, the conclusion of the contract is possible only after this expiration date. Otherwise, the conclusion of such a transaction would be a violation of the pre-emptive right to purchase a share or part of it.

In this case, the participant or participants of the company or the company have the right to demand in a judicial proceeding the transfer of the rights and obligations of the buyer to them. This is possible within three months from the day when they learned about the violation (paragraph 18 of article 21 of the Law on LLC).

• Mechanism of registration of the transaction

The procedure for transferring or alienating a share or part of it in the authorized capital of a company is described in the Civil Code of the Russian Federation 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 of it in the authorized capital of the company are subject to compliance with the requirements provided for in the aforementioned legislative acts, unless the Charter of the organization provides otherwise. Further, we will often use such a term as alienation, which means a legal transaction as a result of which one of the members of the company sells, donates or otherwise transfers his share or a part of the share of the authorized capital to another member of the company, or to third parties.

In accordance with the 2nd part of Art. 21 of the Law of 1998 on LLC, one of the founders may alienate his share or part of it in the authorized capital of the company to one or several participants of this company, also to the company itself, or in favor of third parties. For the first two cases, when the alienation is committed in favor of the participants or the company, the consent of the other members of the company is not required, unless otherwise stipulated in the charter of the organization. As for the alienation or sale in favor of third parties, often a ban on such alienation can be introduced into the Charter of an LLC in order to harmonize 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

The members of the company have the preemptive right to acquire (PPP) a share or part of it 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 buy it to the rest of the company. The participants in the organization and the organization itself have the preferential right to acquire a share or part of a share in the authorized capital. The procedure for implementing the PPP and the period during which the members of the company can take advantage of this advantage are described in the Law of 1998 on LLC and the Charter of the company. If none of the participants took advantage of the pre-emptive right, the offer may be transferred to third parties. Also, the charter itself may take into account the right to purchase a share of a participant by the company itself, in case of refusal of other participants or untimely use of the PPP of a share of the authorized capital.

A member of a company who is going to sell his share must, without fail, notify in writing all other members of the organization or one member, if it is a founder or the company itself. This procedure was expanded by Law No. 312-FZ of 2008, now notification of the intention to sell its share is carried out only through the company itself and is called an offer. The offer contains the essential terms of the contract, specifies the subject of the transaction, the price and other terms of sale. At the moment when the company has received the offer, it is considered to have been delivered. If the participant withdraws the offer back before it is received, it is considered not received, in this situation an additional notice is drawn up. Participants have the right to use the RFP of the 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 pre-emptive right to purchase a share by the company. If the participants did not exercise their right within the specified period or unanimously waived their preemptive 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 took advantage of the preemptive right, neither the participants nor the society, you can offer the share to third parties, at the price that was indicated in the offer.

Mechanism of registration of the transaction

In accordance with Law No. 312-FZ of 2008, 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 complete it, and is carried out by a notary or official who have the right to perform such a notarial act. Notarization is a mandatory procedure, non-compliance with it entails the invalidity of the transaction.

Transactions aimed at alienating a share or part of a share in the authorized capital of an LLC, when using the SPP of a share, including when an offer is sent to the company's participants, and in response an acceptance is subject to notarization. There are a number of cases when a transaction does not need to be notarized. The participants in the transaction have the right to independently decide on the 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. The 2015 Law No. 67-FZ lists the transactions that do not require certification: transfer of a share or part of a share to the company; in cases of distribution of a share between the members of the company and the sale of the share to all or some of the members of the company or to third parties.

In order to protect the interests of the parties to the transaction, the Civil Code of the Russian Federation provides for the consequences in case of evasion from notarization of the transaction or state registration. If one of the parties rolls back to notarize the transaction, and the other party fulfills this condition in full 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 on founding a company (if there is only one founder);
• Company foundation agreement (if there are several founders);
• 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 the payment of the share by the alienating person, for example, a receipt from the bank;
• A document confirming compliance with the rules for using the PPP of a company's share established by the 1998 Law on LLC and the Charter of the company;
• The spouse's consent to alienate and purchase 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.

Before notary certifying a transaction aimed at alienating a share or part of a share in the authorized capital of a company, a notary must check the powers of the alienating person to terminate the share, whether the alienated share has been paid in full. The unpaid share can be transferred only in the part in which 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 submitted to the state registering authority. The applicant can personally take them to the registering authority or the 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 body 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 of it in the authorized capital of an LLC from a member of the company 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 SK to the common property of spouses includes the income of each of the spouses from labor activity, entrepreneurial activity and the results of intellectual activity, pensions, benefits received by them, as well as other cash payments that do not have a special purpose (amounts material assistance, amounts paid in compensation for damage due to disability due to injury or other damage to health, etc.). Common property spouses also include 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 the name which of the spouses it was acquired or in the name of whom or by which of the spouses it was entered cash(Art. 34 of the RF IC).

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

The member of the society is the one of the spouses for whom the transaction was made, i.e. the spouse for whom the transaction was made (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 by means of 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 submitted meet. The terms of a marriage contract must not contradict the rules for the alienation of a share in favor of third parties. The spouse who is not a member of the company belongs to third parties. 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 a 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, in the event of divorce, a transaction with shares in the authorized capital, committed in marriage, aimed at alienating a share or part of a share in 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 succession

Universal succession is the transfer of rights and obligations to 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 by way of universal succession is described in Law No. 14-FZ of 08.02.1998 "On Limited Liability Companies" and in the Civil Code of the Russian Federation. Transfer of a share or part of a share in the authorized capital of an LLC to the heirs or to legal successors legal entities possible, unless otherwise provided by the Charter of the organization. Thus, the procedure for the transfer of a share to the heirs or to the legal successors of legal entities can take place without restrictions or provided that such a transfer is allowed with the consent of the other participants in the company.

Consider a case where such consent is not required. Here you simply receive a certificate of the right to inheritance or registration of succession in the event of a reorganization of a legal entity. The reorganization of a legal entity means merger, division, acquisition, separation, transformation.

To obtain a certificate of the right to 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 ties with the deceased, a certificate from the deceased's place of residence, a copy of the charter, a document establishing the rights of the deceased for a share in the authorized capital, a document confirming the payment of the share of the deceased in the authorized capital. After providing all of the above documents, the notary draws up and issues you a certificate of the right to inheritance. At the next stage, a general meeting of all members of the organization is convened, at which a decision is made on the entry of the heir or legal successor of a legal entity into the company. After that, an application is sent to the registering state body (USRLE) to make the appropriate changes. In addition to the application, you must also send documents certified by a notary about inheritance or legal succession and a protocol from the general meeting of the company's participants in which you were accepted as heir.

In the case when the charter of the company provides that such a transition is allowed only with the consent of the participants of the LLC, and unanimous. The mechanism is similar, the same package of documents is collected, but it is necessary to obtain the written consent of all members of the company. To do this, the heir needs to apply with a written appeal to all members of the company. Within a month, they must consider this appeal and give an answer. From the moment of obtaining consent from all members of the company, it is necessary to send the following documents to the Unified State Register of Legal Entities within three days: an application in the form of R14001, certified documents of inheritance, minutes from the general meeting of members of the company, a statement of consent of all participants. If such consent is not received within the time period established by law or the constituent documents of the company, the transfer of a share or part of a share is carried out on the next day. In addition, the society compensates for the damage to the successors. The cost of payment is determined for the last accounting reporting period preceding the day of the death of a member of the company, the day of completion of the reorganization or liquidation of the LLC, the day of acquisition of a share or part of a share at a public auction.

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

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

V Russian legislation in relation to a share in the authorized capital of an LLC, there are two such cases when one party, the founder of the management transfers the other party to the trustee for a certain period of time, the property in trust. The first case is inheritance. If the inheritance contains 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 has inherited a part of the share in the LLC and has not become a member of the company, the notary, as the founder of the trust, concludes a trust management agreement for this property. The founders of the trust management of inherited property can only be a notary or a testament executor.

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

The trustee has the same rights as a member of the society, therefore, he can have a real impact on all processes occurring 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 a mandatory institution 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 No. 273 of December 25, 2008 "On Combating Corruption"). Person who deals entrepreneurial activity cannot simultaneously hold a state or municipal office. In accordance with Art. 10 ФЗ dated 25.12.2008 No. 273 "On Combating Corruption", a conflict of interest is understood as a situation in which the personal interest (direct or indirect) of a person filling a position, the replacement of which provides for the obligation to take measures to prevent and resolve conflicts of interest, affects 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 a Scottish economist, Adam Smith added: "In pursuing his own interests, he (the entrepreneur) often serves the public interest more effectively than when he consciously strives to do so."

Thus, a person who is going to apply for a state or municipal service, is obliged to terminate its participation in the management commercial organization... Those. you can own a share or part of a share in the authorized capital of an organization, but not 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 office, so as not to violate the laws, you need to transfer the share to trust. 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 there are no exceptions to the Federal Law of December 25, 2008 No. 273 "On Combating Corruption", 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 in relation to a share in the authorized capital of a company, the applicant can be: a participant in an organization, an executor of a will or a notary. For the first situation - when transferring its share in the authorized capital of an LLC into trust management. For the second situation - when entering information to the state registration authority about the person who manages the share that is in the order of inheritance.

Consequences of the 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

How to be in a situation when the alienation of a share or part of it in the authorized capital of an LLC is committed by a person who does not have the right to commit 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 1998 Law on LLC.

In accordance with paragraph 17 of the first part of Art. 21 of the Law of 1998 on LLC, a person who has lost a share or part of a share in the authorized capital of an LLC as a result of alienation of a share or part of a share, by a person who did not have the right to alienate, may demand that he be recognized as the rights to the alienated share. In this case, the bona fide buyer will be deprived of the rights to this share, since the share was acquired as a result of illegal actions of third parties or in any other way against the will of the person who lost the share.

The 1998 Law on LLC provides for cases when the share is recognized for the acquirer. In the case when a share or part of a share was acquired by him at a public auction - from the moment of making the appropriate changes to the Unified State Register of Legal Entities. Also, if the court refused to the person who lost the share or part of the share in the satisfaction of the claim brought against the buyer. The claim can be brought within three years from the day when the person who lost the share learned about the illegal actions.

Consequences of the sale of a share or part of a share in the authorized capital of an LLC in violation of the pre-emptive right to purchase (PPP)

The mechanism for the alienation of a share or part of it in the authorized capital of the company is provided for by the provisions of Law No. 14-FZ dated 08.02. 1998 about LLC. In accordance with this law, a company participant has the right to alienate his share or part of a share in the authorized capital of the company to one or several participants of this 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 other members of the organization is not required, unless otherwise provided by the charter. As for the alienation or sale in favor of third parties, often a ban on such alienation can be introduced into the Charter of an organization in order to harmonize the will of its participants, to protect the interests of society and its members. But only the members of the company have the preferential right to acquire (PPP) a share or part of it.

Accordingly, if the participant decided to sell his share in violation of the pre-emptive right to purchase, or the alienation was committed in favor of third parties without the consent of the rest of the organization or society, and also bypassing the ban on such alienation by the charter, he will face the consequences provided for by the provisions of paragraph 18 of Art. 21 of the 1998 Law on LLC.

Let's consider the first case. A participant, participants or a company (if the charter of the LLC provides for the preemptive right to acquire a share or a part of a share by the company) has the right, within three months from the moment they learned of such an offense, to demand in court that the rights and obligations of the buyer be transferred to them. If the charter of the organization indicates in advance the price for the preemptive right to purchase a share, then the person to whom the rights and obligations of the buyer are transferred will reimburse the costs to the party that previously acquired the share. The amount of expenses must 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 on the transfer of a share or part of a share to a participant, members of the company or the company itself, you can safely submit an application for making the appropriate changes to the Federal Tax Service.

Second case. If the alienation of a share or a part of a share in the authorized capital of an LLC was completely in favor of third parties without the consent of the other members of the organization or society, or if the charter provides for a ban on sale to third parties, the participants in the company or months since they learned about the wrongdoing. 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 this 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 preemptive right to acquire a share or part of a share in the authorized capital, a participant enters into a donation agreement in order to subsequently sell this share to a third party. If the court establishes a violation of the preemptive right to purchase a share, then such a donation agreement and a sale agreement will be recognized as a single sale and purchase agreement committed in violation. The transaction will be declared invalid, and the members of the company have the right to demand the transfer of the rights and obligations of the buyer to themselves.

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

A pledge is one of the ways to ensure the fulfillment of obligations. A member of the organization has the right to pledge his share or part of the 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 charter of the organization. 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 participants in the organization. At the general meeting of members of the LLC, a decision must be made by a majority vote of all members of the company, unless otherwise provided by the charter. For example, the need for a larger number of votes to make a decision to give consent to the pledge of 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 member of the founder, the transfer of the pledge of the share is feasible, even if the charter prohibits the transfer of the share in favor of third parties, for this the participant must decide to agree to the pledge of the share in the authorized capital of the company.

So what we get. If a company participant pledges his share to another company participant, an agreement is concluded between them, which is confirmed by signatures. Such an agreement is subject to mandatory notarization, or otherwise, the transaction will be considered invalid.

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

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

In accordance with part 13.1 of Art. 21 of the Law of 1998 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 an LLC.
• Certificate of the right to inheritance - if the share or part of the share passed by inheritance.

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

In the case of acquiring a share or part of a share with an increase in the authorized capital of a company, distribution of shares belonging to the company among the 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 agreement on the pledge of the share, send an application in electronic format to the state registering authority. If the pledge of the share arises in the future, the notary shall send an application to the Unified State Register of Legal Entities within three days from the date of fulfillment of all conditions and the onset of all the deadlines necessary for the occurrence of the pledge. In turn, the state registering body sends to the notary in electronic form a document that confirms the fact of making the appropriate changes, or a decision to refuse state registration.

An entry in the Unified State Register of Legal Entities on encumbrance with a pledge of a share or part of a share in the authorized capital of an LLC 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 a company

Cases of Acquisition by LLC of 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 a part of a share in the authorized capital of an LLC" of the 1998 Law on LLC, a company is not entitled to acquire a share or a part of a share in the authorized capital of an LLC, with the exception of some cases that we will discuss in this material.

First case. The charter of an LLC provides for a prohibition on the alienation of a share or part of a share to third parties. A participant wishing to sell his share must first of all offer other members of the company to acquire it (the pre-emptive right to purchase a share or part of a share). If the participants refuse to purchase this share, then the company is obliged to acquire the share or part of the share in the authorized capital of the LLC belonging to the participant of the company.

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

Third case. The members of the organization, at the general meeting of the company, decided to conclude a major transaction or to increase the authorized capital of the company, but one of the participants voted against, or did not take part in the voting at all. In this case, at the request of a member of the company who voted against the adoption of 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 member. This requirement can be presented within 45 days from the moment when the participant learned about the adoption of such a decision or if he took part in the voting, after which the decision was made, also within 45 days can present such a demand. The demand for the acquisition by the company of 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 charter of the organization provides for a different period, is obliged to pay the participant in the company the actual value of his share or part of his share in the authorized capital of the company. The actual value of the share of the participants in the company corresponds to a part of the value of the net assets of the LLC, proportional to the size of its share. The cost of his share or part of his share in the authorized capital of the company is determined on the basis of data accounting statements for the last reporting period preceding the day of the participant's request for the acquisition by the company of his share or part of the share. The company can also issue property in kind of the same value, with the consent of the participant.

In accordance with clause 2 of article 23 "Acquisition by the company of a share or part of a share in the authorized capital of LLC" of the 1998 Law on LLC, the exclusion of these provisions from the company's charter is carried out by a decision of the general meeting of the company's participants, adopted by two-thirds of votes of the total number of votes of 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. The members of the company do not agree to the transfer of a share or part of a share to the heirs of the deceased member, or to the legal successors of the organization that was reorganized. Such refusal entails the obligation of the company to pay to 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 "Withdrawal of a participant in a limited liability company from the company" of the Civil Code of the Russian Federation, the participant upon leaving the company sends to the company a demand for the company to acquire its share. The share is transferred 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 clause 9 of article 21 of the 1998 Law on LLC, it is regulated that when a share or part of a share in the authorized capital of a company is sold from a public auction, the rights and obligations of participants in such a share are transferred with the consent of the participants in the company. If such consent has not been obtained, the company acquires this share.

Above were listed situations in which an LLC is obliged to buy out a share or part of a share of a company participant in the authorized capital of an LLC. However, the legislation regulates the case when a company can exercise the right to choose and, at its own discretion, decide whether or not to acquire a share or part of a share of a company participant - this is in the case of collecting 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 foreclosed, except for a share in the authorized capital of an LLC or insufficiently available property, at the expense of which a court decision could be enforced. Collection on the share of a company participant is allowed only on the basis of a court decision if other property is insufficient to cover debts. In this situation, the company, at its own discretion, decides to pay the creditors the actual value of the share or part of the share in the authorized capital of the LLC.

Alienation to the company of the share or part of the share of the LLC participant in the authorized capital of the company upon withdrawal of the participant from the company

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

A member of the 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. Withdrawal from the organization is not permissible if the company consists of one participant, as a result of which there will not be a single participant left, as well as the withdrawal of the only participant from the organization. Until 2008, the mechanism for the withdrawal of a participant from the society could take place without any consent of the rest of the organization's participants. In 2008, the Law of 2008 No. 312-FZ amended Article 94 of the Civil Code of the Russian Federation, which now states that a member of the company has the right to withdraw from 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 the 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, from which it follows that its participants leave the company in accordance with the provisions of Art. 26 of the 1998 Law on LLC will not be able to.

The withdrawal of a participant from the company is carried out on the basis of a written application by the participant of the company. Its share is transferred to the society from the moment of filing 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 for clear criteria and requirements for drawing up an application and for the methods of filing an application for leaving the organization. Also, the participant can withdraw his application for withdrawal from the LLC. If the society refuses to satisfy his request, he has the right to challenge this decision judicially.

The application of a member of the company to withdraw from the organization must be notarized. Documents for state registration of changes concerning 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 a share or part of a share to the company. It is necessary to submit the following documents: application form R14001; participant's application for leaving the LLC (notarized); if the documents are submitted by the applicant's representative - a notarized power of attorney. The documents can be submitted to the registering 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 in electronic form, sealed electronic signature... The registering authority issues you a receipt with the date on which your application was accepted and a list of the documents submitted. State registration is carried out no later than five working days.

In the event a participant leaves the company in accordance with Article 26 of the 1998 Law on LLC, the company is obliged to pay, is obliged to pay the participant of the company the actual value of his share or part of the share in the authorized capital of the company. The cost of his share or part of his share in the authorized capital of the company is determined on the basis of the data of the financial statements for the last reporting period preceding the day the member of the company submits an application for withdrawal from the organization. The company can also issue property in kind of the same value, with the consent of the participant. In case of incomplete payment of the share or part of the share in the authorized capital of the LLC, the actual value of the paid part of the share is paid.

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 companies have 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 the payment of the actual value of its share or part of the share in the authorized capital of the LLC. The grounds for excluding a participant from the organization in court are as follows:

• A participant's actions or omissions cause significant harm to society. For example, a member of the society is regularly absent without good reason at a general meeting of members of the society, which in turn can lead to disastrous consequences, the failure to make certain decisions harms society or makes its activities impossible and complicates the work process. He can also vote for a bad deal or a deal that will bring some losses to the organization in the future.
• The participant takes actions that impede the activities of the organization and hinder the achievement of the goals for which it was created.
• Violates his obligations stipulated by law or the charter of the company.

When considering cases on the exclusion of a participant from the organization, the court assesses the degree of violation by the participant of his duties, and establishes the fact of the participant in specific actions or evasion from their commission and the onset of negative consequences for society. If the court decides to expel a participant from the organization, his share is transferred to the company from the moment the court decision enters 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 on the exclusion of the participant entered into force. The company can also issue in kind property of the same value, with the consent of the excluded participant.

Is it possible to exclude a participant from organizations who paid their share only partially. In accordance with article 10 of the 1998 Law on LLCs, it is stipulated that the unpaid part of the share is transferred to the company. Also, a participant with a share in the amount of more than 50% of the authorized capital of the company may be excluded only if the charter prohibits the withdrawal of participants from the LLC.

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

2. A company participant has the right to sell or otherwise alienate his share or part of a share in the authorized capital of the company to one or more of the participants in this company. The consent of other members of the company or company to make such a transaction is not required, unless otherwise provided by the charter of the company.

Sale or otherwise alienation of a share or part of a share in the authorized capital of the company to third parties is allowed in compliance with the requirements provided for by this Federal Law, unless prohibited by the charter of the company.

3. A share of a company participant may be alienated until it is paid in full only in the part in which it has been paid.

ConsultantPlus: note.

The preemptive right does not apply to the acquisition of bank shares in the cases specified in the law.

4. Members of the company enjoy the pre-emptive right to purchase a share or part of a share of a participant in a company at the price of the offer to a third party or at a price different from the offer price to a third party and a price predetermined by the charter of the company (hereinafter - the price predetermined by the charter) in proportion to the size of their shares, if the charter of the company does not a different procedure is provided for exercising the preemptive right to purchase a share or part of a share.

The charter of a company may provide for the preemptive right by the company to purchase a share or part of a share belonging to a participant in the company at the price of the offer to a third party or at a predetermined price in the charter, if other participants in the company have not used their preemptive right to purchase a share or part of the share of a participant in the company. At the same time, the exercise by the company of the preemptive right to purchase a share or part of a share at a price predetermined by the charter is only allowed provided that the purchase price by the company of a share or part of a share is not lower than the price set for the company's participants.

The purchase price of a share or part of a share in the authorized capital may be established by the charter of a company in a firm sum of money or on the basis of one of the criteria determining the value of the share (the value of the company's net assets, the book value of the company's assets as of the last reporting date, the company's net profit, and others). The purchase price of a share or part of a share, determined in advance by the charter, must be the same for all members of the company, regardless of the ownership of such a share or such part of a share in the authorized capital of the company.

Provisions establishing the preemptive right to purchase a share or part of a share in the authorized capital by the participants of the company or by the company at a predetermined price in the charter, including changing the size of such a price or the procedure for determining it, may be provided for by the charter of the company when it is founded or when amendments are made to the charter of the company. by the decision of the general meeting of the company's members, adopted by all members of the company unanimously. 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 charter capital of a company at a price predetermined by the charter is carried out by a decision of the general meeting of the company's participants, adopted by two-thirds of votes of the total number of votes of the company's participants.

The charter of the company may provide for the possibility of the members of the company or company to use the pre-emptive right to purchase not all or not all part of the share in the authorized capital of the company offered for sale. In this case, the remaining share or part of the share may be sold to a third party after the partial exercise of the said right by the company or its participants at a price and on the terms that were communicated to the company and its participants, or at a price not lower than the price predetermined by the charter. Provisions establishing such a possibility may be provided for by the charter of the company when it is founded or when amendments are made to the charter of the company by decision of the general meeting of the company's participants, adopted unanimously by all participants in the company. The exclusion of these provisions from the company's charter is carried out by a decision of the general meeting of the company's participants, adopted by two-thirds of the votes of the total number of the company's participants.

The charter of the company may provide for the possibility of offering a share or a part of a share in the authorized capital of the company to all members of the company disproportionately to the size of their shares. Provisions establishing the procedure for the exercise by the company's participants of the preemptive right to purchase a share or part of a share in the authorized capital of a company disproportionate to the size of the shares of the company's participants may be provided for by the company's charter when it was founded or when amendments are made to the company's charter by decision of the general meeting of the company's participants, adopted by all participants in the company. unanimously. The exclusion of these provisions from the company's charter is carried out by a decision of the general meeting of the company's participants, adopted by a majority of at least two-thirds of the votes of the company's participants, if the need for a larger number of votes to make such a decision is not provided for by the company's charter.

The charter of a company may not provide for the provision of both the preemptive right to purchase a share or part of a share of a company participant at the offer price to a third party and a pre-emptive right to purchase a share or part of a share of a company participant at a price predetermined by the charter. Establishment of a pre-emptive right to purchase at a price predetermined by the charter in relation to an individual member of the company or a separate share or a separate part of a share in the authorized capital of the company is not allowed.

The cession of the said pre-emptive rights to purchase a share or part of a share in the authorized capital of the company is not allowed.

5. A company participant intending to sell his share or part of a share in the authorized capital of a company to a third party is obliged to notify the other participants of the company and the company itself in writing by sending through the company at his own expense a notarized offer addressed to these persons and containing an indication of the price and other terms of sale. An offer for the sale of a share or part of a share in the authorized capital of a company shall be deemed to have been received by all participants in the company at the time of its receipt by the company. In this case, it can be accepted by a person who is a member of the company at the time of acceptance, as well as by the company in the cases provided for by this Federal Law. An offer is considered not received if, within a period not later than the day of its receipt by the company, a member of the company received a notice of its withdrawal. The revocation of an offer to sell a share or part of a share after it has been received by the company is allowed only with the consent of all members of the company, unless otherwise provided by the charter of the company.

(see text in previous edition)

Members of the company have the right to use the pre-emptive right to purchase a share or part of a share in the authorized capital of the company within thirty days from the date of receipt of the offer by the company.

(see text in previous edition)

If the company's charter provides for the preemptive right to purchase a share or part of a share by the company, it has the right to use the preemptive right to purchase a share or part of a share within seven days from the date of expiration of the preemptive right to purchase from the company's members or the refusal of all members of the company to use the preemptive right to purchase a share. or part of a share by sending an acceptance of an offer to a member of the company.

(see text in previous edition)

If certain members of the company refuse to use the preemptive right to purchase a share or part of a share in the authorized capital of a company or use their preemptive right to purchase not all of the share offered for sale or not all of the share offered for sale, other members of the company may exercise their preemptive right to purchase a share or part of a share in the authorized capital of the company in the relevant part in proportion to the size of their shares within the remaining part of the period for exercising their preemptive right to purchase a share or part of a share, unless otherwise provided by the charter of the company.

The charter of a company may provide for longer periods of use of the preemptive right to purchase a share or part of a share in the authorized capital of the company by its participants, as well as by the company itself.

6. The preemptive right to purchase a share or a part of a share in the authorized capital of a company from a participant and, if the charter of the company provides, the preemptive right of the company to purchase a share or a part of a share from a company shall be terminated on the following day:

submission of a written statement on refusal to use this pre-emptive right in the manner prescribed by this paragraph;

expiration of the term of use of this pre-emptive right.

Applications of the company's participants to refuse to use the preemptive right to purchase a share or part of a share must be received by the company before the expiration of the period for exercising the said preemptive right established in accordance with paragraph 5 of this article. The company's statement on the refusal to use the pre-emptive right to purchase a share or part of a share in the authorized capital of the company provided for in the charter is submitted within the time period established by the charter to a company participant who sent an offer to sell a share or part of a share, solely executive body society, if the decision of this issue is not attributed by the charter of the company to the competence of another body of the company.

The authenticity of the signature on the application of a member of a company or a company on refusal to use the preemptive right to purchase a share or part of a share in the authorized capital of the company must be notarized.

7. In the event that, within thirty days from the date of receipt of the offer by the company, provided that a longer period is not provided for by the charter of the company, the participants in the company or the company will not use the pre-emptive right to purchase a share or part of a share in the charter capital of the company offered for sale in including those resulting from the use of the preemptive right to purchase not all or not all part of the share, or the refusal of individual members of the company and the company from the preemptive right to purchase a share or part of a share in the authorized capital of a company, the remaining share or part of a share can be sold to a third party at a price, which is not lower than the price set in the offer for the company and its participants, and on the conditions that were communicated to the company and its participants, or at a price that is not lower than the price predetermined by the charter. If the predetermined purchase price of a share or part of a share by the company differs from the predetermined purchase price of a share or part of a share by the company's participants, the share or part of the share in the authorized capital of the company may be sold to a third party at a price that is not lower than the predetermined purchase price of the share or part of a share by the community.

8. Shares in the authorized capital of the company are transferred to the heirs of citizens and to the legal successors of legal entities that were participants in the company, unless otherwise provided by the charter of the limited liability company. The charter of the company may provide that the transfer of a share in the authorized capital of the company to the heirs and successors of legal entities that were members of the company, transfer of the share that belonged to the liquidated legal entity, its founders (participants) who have real rights to its property or obligations in relation to this legal entity, are allowed only with the consent of the other members of the company. The charter of the company may provide for a different procedure for obtaining the consent of the participants in the company for the transfer of a share or part of a share in the authorized capital of the company to third parties, depending on the grounds for such transfer.

Until the heir of a deceased member of the company accepts the inheritance, the management of his share in the charter capital of the company shall be carried out in the manner prescribed by the Civil Code of the Russian Federation.

9. When a share or part of a share in the authorized capital of a company is sold at a public auction, the rights and obligations of a member of the company for such a share or part of a share are transferred with the consent of the members of the company.

10. In the event that this Federal Law and (or) the charter of the company provides for the need to obtain the consent of the company's participants for the transfer of a share or part of a share in the authorized capital of the company to a third party, such consent is deemed to have been received provided that all participants in the company within thirty days or another period specified in the charter from the date of receipt of the relevant appeal or offer by the company, written statements of consent to alienate a share or part of a share on the basis of a transaction or to transfer a share or part of a share to a third party on another basis or within a specified period are submitted to the company written statements on refusal to give consent to the alienation or transfer of a share or part of a share have not been submitted.

If the charter of the company provides for the need to obtain the consent of the company to alienate a share or part of a share in the authorized capital of the company to the company's participants or third parties, such consent shall be deemed to have been received by a member of the company alienating the share or part of the share, provided that within thirty days from the date appealing to the company or within another period specified by the charter of the company, it received the consent of the company, expressed in writing, or the company did not receive a refusal to give consent to the alienation of a share or part of a share, expressed in writing.

11. A transaction aimed at alienating a share or part of a share in the authorized capital of a company is subject to notarization by drawing up one document signed by the parties. Failure to comply with the notarial form entails the invalidity of this transaction.

(see text in previous edition)

Notarization of this transaction is not required in cases of transfer of a share or part of a share to the company, provided for by paragraph 18 of this article and paragraphs 4-6 of article 23 of this Federal Law, and in cases of distribution of a share between the participants of the company and the sale of a share to all or some of the participants in the company or to third parties. persons under Article 24

(see text in previous edition)

If a company participant who has entered into an agreement establishing an obligation to make, upon the occurrence of certain circumstances or the other party fulfilling a counter obligation, a transaction aimed at alienating a share or part of a share in the authorized capital of the company, unlawfully evades notarization of a transaction aimed at alienating a share or part of a share in the capital of a company, the acquirer of a share or part of a share who has performed actions aimed at fulfilling the said agreement, shall have the right to demand in a judicial proceeding the transfer to him of a share or part of a share in the authorized capital of the company. In this case, the decision of the arbitration court on the transfer of a share or part of a share in the authorized capital of the company is the basis for state registration of the corresponding changes made to the unified state register of legal entities.

(see text in previous edition)

A transaction aimed at the alienation of a share or part of a share in the authorized capital of a company, in order to exercise an option to conclude an agreement, can be concluded by a separate notarization of an irrevocable offer (including by notarizing an agreement on granting an option to conclude an agreement), and subsequently notarizing the acceptance ...

An irrevocable offer is considered accepted from the moment the acceptance is notarized. After notarization of the acceptance, the notary is obliged, within two working days from the date of certification of the acceptance, to send a notice of the acceptance to the offeror.

In the event that an irrevocable offer is made under a canceling or suspensive condition, the acceptor presents to the notary certifying the acceptance evidence confirming the non-occurrence or occurrence of the corresponding condition.

12. A share or a part of a share in the authorized capital of a company shall pass to its acquirer from the moment of making an appropriate entry in the unified state register of legal entities, except for the cases provided for by paragraph 7 of Article 23 of this Federal Law. Entry into the unified state register of legal entities on the transfer of a share or part of a share in the authorized capital of a company in cases that do not require notarization of a transaction aimed at alienating a share or part of a share in the authorized capital of a company is carried out on the basis of documents of title.

(see text in previous edition)

The acquirer of a share or part of a share in the authorized capital of the company shall transfer all the rights and obligations of a member of the company that arose before the transaction aimed at alienating the specified share or part of the share in the authorized capital of the company, or before another reason for its transfer arises, with the exception of rights and obligations, provided respectively by the second paragraph of Clause 2 of Article 8 and the second paragraph of Clause 2 of Article 9 of this Federal Law. A company participant who has alienated his share or part of a share in the authorized capital of the company bears the obligation to the company to make a contribution to the property that arose before the transaction aimed at alienating the specified share or part of the share in the authorized capital of the company, jointly and severally with its acquirer.

After the notarization of a transaction aimed at alienating a share or part of a share in the authorized capital of a company, or in cases that do not require notarization, from the moment the relevant changes are made to the unified state register of legal entities, the transfer of a share or part of a share can only be challenged in court by way of filing a claim with an arbitration court.

13. A notary making a notarization of a transaction aimed at alienating a share or part of a share in the authorized capital of a company checks the authority of the alienating person to dispose of such shares or part of a share, and also makes sure that the alienated share or part of a share has been fully paid (this Federal Law).

The authority of a person alienating a share or part of a share in the authorized capital of a company to dispose of them is confirmed by documents on the basis of which the share or part of the share was previously acquired by the relevant person, as well as an extract from the unified state register of legal entities containing information on the ownership of the alienated share or part of the share in the authorized capital of the company and received by the notary in electronic form on the day of certification of the transaction.

(see text in previous edition)

13.1. The documents on the basis of which the share or part of the share in the authorized capital of the company was acquired may be, in particular:

1) an agreement or other transaction, in accordance with which a member of the company acquired a share or part of a share, if the share or part of a share was acquired on the basis of a transaction;

2) the decision of the sole founder to create a company when creating a company with one participant in the company;

3) an agreement on the foundation of a company or a memorandum of association of a company, concluded earlier on July 1, 2009, when creating a company with several members of the company;

4) a certificate of the right to inheritance, if the share or part of the share passed to the participant of the company by inheritance;

5) a court decision in cases where a judicial act directly establishes the right of a company participant to a share or part of a share in the charter capital of the company;

6) minutes of the general meeting of the company in the case of acquiring a share or part of a share when increasing the authorized capital of the company, distributing shares belonging to the company between its participants and 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.

14. The notary who has certified the agreement on the alienation of a share or part of the share in the authorized capital of the company or the acceptance of an irrevocable offer, within two working days from the date of this certification, if a longer period is not provided for by the agreement, submits an application to the body that carries out state registration of legal entities making appropriate changes to the unified state register of legal entities.

If, under the terms of an agreement aimed at alienating a share or part of a share in the authorized capital of a company, such a share or such part of a share is transferred to the acquirer with the establishment of a pledge or other encumbrances at the same time, or with the preservation of the previously arisen pledge, in an application for making appropriate changes to the unified state register legal entities, the corresponding encumbrances are indicated.

The application is sent to the body that carries out state registration of legal entities in the form electronic document signed by a strengthened qualified electronic signature of a notary who certified the contract aimed at alienating a share or part of a share in the authorized capital of the company.

(see text in previous edition)

16. Within three days from the date of receipt of the consent of the participants in the company, provided for in paragraphs 8 and this article, the company and the body that carries out state registration of legal entities must be notified of the transfer of a share or part of a share in the authorized capital of the company by sending an application for making appropriate changes to the unified state register of legal entities signed by the legal successor of the reorganized legal entity - a participant in the company, or by a participant in a liquidated legal entity - a participant in the company, or by the owner of the property of a liquidated institution, a state or municipal unitary enterprise - a participant in the company, or by the heir or before the acceptance of the inheritance by the executor of the will, or by a notary, with the attachment of a document confirming the basis for the transfer of rights and obligations by way of succession or transfer of a share or part of a share in the authorized capital of a company that belonged to a liquidated legal entity , its founders (participants) who have real rights to property or rights of obligation in relation to this legal entity.

17. If a share or part of a share in the authorized capital of a company was acquired for compensation from a person who did not have the right to alienate it, about which the acquirer did not know and could not have known (a bona fide acquirer), a person who has lost a share or part of a share has the right to demand recognition for him the right to this share or part of a share in the authorized capital of the company with the simultaneous deprivation of the right to this share or part of the share of a bona fide acquirer, provided that this share or part of the share was lost as a result of unlawful actions of third parties or otherwise against the will of the person who lost the share or part of the share.

If the person who has lost a share or part of a share in the authorized capital of the company refuses to satisfy the specified claim brought against a bona fide acquirer, the share or part of the share is recognized as belonging to the bona fide acquirer from the moment of notarization of the relevant transaction that served as the basis for acquiring such a share or part of a share. If a share or part of a share is acquired by a bona fide acquirer at a public auction, it is recognized as belonging to a bona fide acquirer from the moment the corresponding entry is made in the unified state register of legal entities.

The claim for the recognition of a person who has lost a share or part of a share, the right to a given share or part of a share and at the same time on the deprivation of the right to this share or a part of a share of a bona fide acquirer, which is provided for by this paragraph, may be declared within three years from the day when the person , who has lost a share or part of a share, learned or should have learned about the violation of their rights.

18. When a share or part of a share in the authorized capital of a company is sold in violation of the preemptive right to purchase a share or part of a share, any participant or participants in the company or, if the charter of the company provides for the preemptive right of the company to purchase a share or part of a share, the company within three months from the day when the participant or members of the company or the society learned or should have learned about such a violation, has the right to demand in court the transfer of the rights and obligations of the buyer to them. Arbitration court, considering the case under the said claim, provides other participants in the company and, if the charter of the company provides for the preemptive right of the company to purchase a share or part of a share, the company has the opportunity to join the previously filed claim, for which, in the ruling on preparing the case for court proceedings, sets a time period during which other members of the company and the company itself that meet the requirements of this Federal Law may join the stated requirement. The specified period cannot be less than two months.

If the charter of the company provides for the preemptive right to purchase a share or part of a share in the charter capital of the company at a price predetermined by the charter, the person to whom the buyer's rights and obligations are transferred shall reimburse the costs incurred by the buyer in connection with the payment of the share or part of the share in the charter capital society, in an amount not exceeding the purchase price of a share or a part of a share predetermined by the charter. A court decision on the transfer of a share or part of a share to a participant in a company or a company is the basis for state registration of the relevant changes made to the unified state register of legal entities.

In the event of alienation or transfer of a share or part of a share in the authorized capital of a company for other reasons to third parties in violation of the procedure for obtaining the consent of members of a company or a company provided for in this article, as well as in case of violation of the prohibition on the sale or otherwise alienation of a share or part of a share, a participant or the members of the company or the company have the right to demand in a judicial proceeding the transfer of the share or part of the share to the company within three months from the day when they learned or should have learned about such a violation. In this case, in the case of transfer of a share or part of a share to the company, the costs incurred by the acquirer of a share or part of a share in connection with its acquisition shall be reimbursed by the person who alienated the share or part of the share in violation of the specified procedure.

A court decision on the transfer of a share or part of a share to the company is the basis for state registration of the corresponding change. Such a share or part of a share in the authorized capital of a company must be sold by the company in the manner and within the time frame established by Article 24 of this Federal Law.