The nuances in the sale of shares in the company
Any transaction for the sale of parts to whole, as a rule, begins with the observance of the procedure for the implementation by the other owners of the whole of the pre-emptive right to acquire alienated part. Is no exception and sale / purchase of share in the Charter capital of a limited liability company (the "company", "LLC"). So, where do you start, if the LLC member decided to sell his share to third parties? What are the features of this procedure must be taken into account?
It is worth noting that the legislature in sufficient detail prescribed steps to commit the transaction in article 21 of the Federal law of 08.02.1998 № 14 – FZ "On limited liability companies" (further – FZ "On LLC"). The rules embodied in this article are in close relationship with the Charter Companies. Therefore, in preparation for the sale of shares in the share capital of the company, the need to tightly examine the contents of the Charter.
Initially you must ensure in accordance with the Charter:
1) allowed any alienation of shares to third parties;
2) is there any obligation to obtain the consent of other members or Companies for the execution of such transaction;
3) are there any preemptive right to purchase alienated shares in the share capital;
4) whether a different order than the order of pre-emptive rights of the shareholders and the Society, enshrined in article 21 of the Federal law "On LLC".
Please note that the provisions of the Statute regulating the points above, primary in relation to norms FZ "On LLC" regulating similar aspects.
If, after all, the Charter provides otherwise, the participant of a Society, wants to sell the stake to a third party is obliged to inform in writing about it the rest of the LLC members and the Society itself by sending through Society at his own expense notarized offer addressed to these persons and containing the indication of the prices and other conditions of sale. For registration and submission of an offer preferably "be approached" more carefully, because in many respects the correctness of such actions depends on the recognition procedures implement pre-emptive rights of the participants and/or Society valid. It should be remembered that in the offer, in addition to the conditions of the transaction, the number of recipients should be listed all the other members and LLC. Otherwise, the offer that does not contain these terms or addressed to one of the members of the company and/or LLC, can not be considered proper notification of these persons about the forthcoming sale of shares (the Resolution of FAS of the Northwest district from 07.10.2008 in the case N A56-35344/2007; resolution of the Federal West-Siberian district dated 25.12.2007 N F04-83/2007(95-A70-16), F04-83/2007(359-A70-16), F04-83/2007(360-A70-16) in the case of N A70-6491/24-2006). In addition, in the offer it is advisable to register the address where need to send the acceptance or the waiver of preemptive right to purchase a share. In the offer is optional to specify information about the third person (possible buyer of a share) (the Definition of the RF 14.01.2010 N YOU-17491/09).
The offer should always be "voiced" the value of the share. However, she included either in the amount of the offer price on the sale to a third party or different from the offer price to a third party and a company Charter (if such a rule is enshrined in the Charter). Pre-defined in the Charter purchase price of the shares should be the same for all members of Society regardless of affiliation. FZ "On limited liability companies" establishes prohibitions on the ability to:
The purchase price for the shares in the share capital of the company can be calculated in accordance with the Charter of the company in fixed amounts or depending on the value of the net assets of the company, the carrying amount of the assets of the company as of the closing date and other criteria. It should be noted that the FZ "On LLC" imposes obligations on member Companies, decided to sell the share in the authorized capital, to grant to other participants and to Society documents justifying the offer price (Regulation of FAS Moscow district dated 09.06.2011 N KG-A40/5493-11 in the case N A40-119110/10-131-769).
At the same time, I would like to note that the FZ "On LLC" does not set any ways to offer. Therefore, based on the General rules of the civil legislation of the Russian Federation, the offer may be either directly handed over under the signature of the General Director of the company or other authorised person or may be sent by registered mail with a list of attachments that can be sent through a notary (article 86 of bases of the legislation of the Russian Federation about a notariate).
The offer on sale of share in the Charter capital shall be deemed received by all members of the company at the time of its receipt by the Society. However, it can be accepted by a person who is a member of Society at the time of acceptance.
The offer is considered to be unreceived, if within a period not later than the date of its receipt by the Society party received notice of her opinion. The withdrawal of the offer to sell the shares or part of shares after its receipt by the Society is permitted only with the consent of all parties, unless otherwise provided by the LLC Charter.
Separately, we note that FZ "On LLC" authorizes the sale of only the shares or portions of shares in the share capital of the company, which is paid at the time of the Commission of the offer.
If the Charter does not provide otherwise, the shareholders have a preferential right to purchase shares in proportion to the sizes of their shares in the Charter capital.
Members of Society have the right to use preferential right to purchase any shares in the share capital of the company within 30 days from the date of receipt of the offer by the Society and the company, if this right is enshrined in the Charter, within 7 days from the date of expiry of the pre-emptive right to purchase from the shareholders or their waiver of preemptive rights to purchase shares by sending the acceptance of the offer to the participant Companies. The periods may be modified by the provisions of the Charter only in the direction of increase.
The requirements of the legislation on the observance of the rules on priority rights to purchase shares in the share capital of the company shall be deemed completed:
1) when was the deadline for implementing this law, and during this period, did not receive acceptances;
2) prior to the expiration of the term, subject to the receipt by the company of statements of all participants on the waiver of preemptive rights and provide the participant who sent the offer, the same statement, if the LLC's Charter endowed with the priority right of purchase of shares. The authenticity of the signatures in these statements must be notarized.
A rule about a preferential right of acquisition of shares does not apply when alienation of shares of a single participant in the acquisition of shares in the authorized capital of the Bank in accordance with the measures on prevention of bankruptcy (p. 19 189.50 article of the Federal law from 26.10.2002 № 127 – FZ "On insolvency (bankruptcy)").
If the LLC's Charter provides for the requirement to obtain the consent of all the members of the company and/or for the transaction for the sale of shares in the share capital to a third party, to obtain should be sent in the LLC appropriate treatment or offer by any of the methods indicated above. The standard period for obtaining this approval is 30 days from the date of eligibility for a treatment or offer. The specified period may be changed by the Charter. Consent is considered obtained if, within the prescribed time interval the above-mentioned subjects are presented in a written form of application for consent to alienation of a participatory interest to a third party or a statement about refusal to give such consent. Such statements of the participants are routed through the Society, and the statement, OOO – directly to the party who made the offer.
According to paragraph 11 of article 21 of the Federal law "On limited liability companies" the transaction on sale of shares in the share capital of the company to a third party shall be notarized by drawing up one document signed by the parties. Failure to observe the notarial form entails the invalidity of the transaction.
Depending on the composition of the persons involved in the transaction, a different set of documents submitted to the notary in the transaction.
In particular, the notary may be requested:
■ Charter company (original and copy, issued by the registering authority);
■ The contract of purchase and sale of shares (for copies of each side of the transaction and one for the notary);
■ Documents confirming powers of the person on the disposal of shares (for example, a contract or other transaction, in accordance with which member Companies acquired a share; the agreement on the establishment of the LLC; the decision of the court in cases where by the judicial act directly establishes the right of member Companies to share in the authorized capital and other);
■ Proof of payment of the shares.
These documents include:
— certificate of the Society, signed by the Director and accountant (in the absence of the accountant, signed by the head);
— certificate of the Bank;
— the act of transfer and acceptance of property;
— other documents stipulated by the agreement on establishment of LLC or by a decision of the sole founder of the company;
— extract from the list of shareholders (in case of alienation of share in the Charter capital of Companies established since 30.06.2009);
■ Documents confirming compliance with pre-emptive rights:
— an instance or copy of the application (offer) of the participant to the company with date stamp of receipt, or issued to LLC a copy of the offer indicating the price and other terms of sale or a notarized certificate of transfer of the application;
— issued by the Society with copies of the statements of the other parties on waiver of preemptive right of purchase stamped on the date of receipt;
— statement of the company on waiver of preemptive right to purchase;
— a certificate (a statement letter) OOO that on a certain date of the statements of the participants on waiver of preemptive right to purchase or the acceptance of the offer to the company was received;
■ Documents confirming the consent for alienation of shares, if in accordance with the Charter of the share may be alienated to third parties only with the consent of the company.
To the specified documents are:
— an instance or copy of the application (offer) of the participant to the company with date stamp of receipt, or given by the company a copy of the offer, or a notarized certificate of transfer of the application;
— issued by the company and duly executed copies of the statements of other participants of a Society of consent to alienation of a participatory interest to a third party and (or) certificate from the society that established by law or by the Charter period a written statement of refusal of consent for alienation of shares in the company were not received;
the written consent of the Companies on the alienation of shares or Declaration of the participant alienating the share (its part), that the statutory or Charter, OOO period a written statement of the company on refusal to consent is not obtained. This fact may not be reflected in the statement and in one of the conditions of the relevant transaction as a guarantee by the participant of a Society, to alienate the share (its part);
■ Documents for individuals (buyers and sellers of shares):
— notarially certified consent of the spouse to commit the transaction (article 35 of the RF IC). It is not available in the transaction on alienation of a participatory interest (part thereof) is acquired on the basis of free transactions before marriage or by inheritance;
— marriage contract (if the transaction for alienation of a participatory interest (part thereof) that belongs to a member of the society in the regime of separate property on the basis of the marriage contract);
— statement by the seller that share was paid in the period when the participant is not married;
■ Approval of the transaction by management authorities of the company in the cases provided FZ "On LLC" (for example, the decision of the General meeting of shareholders approval of related party transactions).
The application on introducing changes to the unified state register of legal persons is submitted to the IRS at the location of the LLC, share in the authorized capital of which is sold in electronic form by the notary within 2 working days from the date of certification of the relevant transaction, if a greater period is not a contract. A copy of said application shall be referred by the notary to the company by a notarial act not later than 3 days from the date of notarization of the transaction.
It should be noted that in case of default by the buyer in the share of obligations for its payment, the seller may use one of the ways to protect their rights and to demand termination of the contract of purchase and sale in court. The courts in such disputes usually take the position of a seller (decree of the Presidium of the SAC dated 10.06.2014 No. 1999/14 on the case N A40-43310/13).
Summarizing the abovementioned, it may be added that the transaction on purchase – sale of shares in the share capital of the company to a third party (including preparation for it) is quite a complicated and laborious procedure. Not worth it neglects the provisions of the Statute regulating the procedure of alienation of shares in the share capital. Preferably at the stage of approval of the Charter to think about the implications of the inclusion (exclusion) of certain conditions. A list of documents for the transaction on purchase – sale of share in Charter capital, requirements to their content and design are requested to check with the notary as they may differ.