Preemptive right of a company with a single member. The company can use the pre-emptive right to buy out a share only after the participants. Documents submitted to the registration authority

04.11.2020

Decree of the Arbitration Court of the Moscow District dated April 30, 2015 N Ф05-4213 / 2015
The participants of the company enjoy the pre-emptive right to purchase a share or part of the share of a participant at the offer price to a third party, both in proportion to the size of their shares, and disproportionately. The transfer of the rights and obligations of the buyer of a share in the authorized capital to a company participant in the exercise of a pre-emptive right cannot be carried out at a price lower than the price at which the share is sold to a third party. Therefore, the plaintiff's demand for the transfer of rights and obligations under the share purchase and sale agreement at a different price is unlawful. In addition, if a company member who intends to cede his share in the authorized capital of a limited liability company sent a notice, then the absence of the company member who expressed a desire to exercise the preemptive right on the appointed day to conclude an agreement on the alienation of the share is regarded as a refusal to conclude it . Therefore, a company participant who intends to assign a share to a third party has the right to make such a transaction.

Decree of the Arbitration Court of the Moscow District dated April 30, 2015 N Ф05-3495 / 2015
The charter of the company (defendant) contains a requirement to obtain the consent of other members of the company and the company to conclude transactions for the sale or otherwise alienate a share in the authorized capital. The defendant did not apply to the participants of the company and the company itself with a notice of intention to donate his share in the authorized capital of the company, in connection with which this indicates a violation of the requirements of paragraph 2 of Art. 21 of the Federal Law "On Limited Liability Companies" and the charter. The disputed donation transaction violates the rights and legally protected interests of the plaintiffs, including that it entailed adverse consequences for them, namely, the right of the plaintiffs to participate in the management of the company's affairs in the manner prescribed by the Federal Law "On Limited Liability Companies" was violated, the right to agree on the completion of a donation transaction was violated shares in the authorized capital, as well as the balance of interests established by the charter of all participants in the company in terms of the possibility of one participant in the company receiving a predominant number of votes over other participants in the company, since as a result of the contested transaction one of the defendants increased the size of its share in the authorized capital to 55%, in connection with which the plaintiffs lost the opportunity to participate in the management of the company's affairs.

Decree of the Arbitration Court of the Moscow District dated 01.10.2015 N Ф05-12339/2015
The conclusions of the expert opinion on determining the actual (market) value of a part of a share in the authorized capital of an LLC do not refute the calculation of the actual value of the share determined by a notary when issuing a certificate of inheritance to the plaintiffs under the law, and taking into account that the funds in the amount sufficient to pay to the plaintiffs of the actual value of 1/3 of the share in 80% of the authorized capital of the LLC, contributed by the company to the notary's deposit, which indicates that the plaintiffs did not prove the fact of violation of their rights by the defendant and the absence legal grounds to satisfy the claim regarding the recovery in favor of the plaintiffs of the actual value of the share in the amount claimed by the plaintiffs.

Decree of the Arbitration Court of the Moscow District dated May 21, 2015 N Ф05-5150 / 2015
The contract of trust management of hereditary property was concluded after obtaining the consent of the plaintiff and other participants in the company for the transfer of the share of the deceased to her heirs. The plaintiff did not declare the falsification of his consent to the transfer of the share to the heirs. Therefore, the receipt of the said consents of the members of the company entailed the relevant legal consequences for the subsequent acquisition by the heirs of the rights of the members of the company, and evidence that the charter of the company or the current legislation provides for the possibility of subsequent withdrawal of the said consent to the transfer of the share of the deceased member of the company to his heirs is not presented.

Deal processing mechanism

The procedure for the transfer or alienation of 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 of 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 a company take place subject to compliance with the requirements provided for in the named 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 participants in the company sells, donates or otherwise transfers its share or 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 1998 Law on LLC, one of the founders may alienate his share or part of it in the authorized capital of the company to one or more participants in this company, also to the company itself, or in favor of third parties. For the first two cases, when the alienation is made in favor of the participants or the company, the consent of the remaining members of the company is not required, unless otherwise provided in the charter of the organization. As for the alienation or sale in favor of third parties, a ban on such alienation can often be introduced into the Charter of an LLC in order to harmonize the will of its participants, to protect the interests of the company and its members.

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

Members of the company have a pre-emptive 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 purchase it to the rest of the participants in the company. The participants of the organization and the organization itself have the pre-emptive right to acquire a share or a part of the share of the authorized capital. The procedure for the implementation of the TPP and the period during which members of the company can take advantage of this benefit are described in the Law of 1998 on LLC and the Articles of Association of the company. If none of the participants took advantage of the preemptive right, the proposal may be transferred to third parties. Also, the charter itself may take into account the right to purchase the share of the participant by the company itself, in case of refusal of the remaining participants or untimely use of the share of the authorized capital by the PPP.

A member of the 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 the founder or the company itself. This procedure was expanded by Law No. 312-FZ of 2008, now the notification of the intention to sell one's share is carried out only through the company itself and is called an offer. The offer contains the essential terms of the contract, indicates the subject of the transaction, the price and other conditions of sale. At the moment when the company has received the offer, it is considered to be 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 PPP share within 30 days from the date of receipt of the offer by the company, or within another period determined by the Charter of the LLC.

Sometimes the charter of the organization may provide for the pre-emptive right to purchase a share by the company. If the participants within the specified period did not exercise their right or unanimously waived the pre-emptive right to purchase, the company within seven days from the expiration of the specified period or the moment the refusal was received sends an acceptance to the participant of the company. If no one has taken advantage of the pre-emptive right, neither the participants nor the company, you can offer a share to third parties at the price that was indicated in the offer.

Deal processing mechanism

In accordance with the Law of 2008 No. 312-FZ, a transaction aimed at alienating a share or part of a share in the authorized capital must be notarized. In the Civil Code of the Russian Federation, notarial certification of a transaction means verification of the legality of the transaction, including the availability of the right to make it for each of its parties, and is carried out by a notary or official who have the right to perform such a notarial act. Notarization is a mandatory procedure, its non-compliance entails the invalidity of the transaction.

Transactions aimed at the alienation of a share or part of a share in the authorized capital of an LLC, when using the PPP share, including when an offer is sent to the company's participants, and an acceptance in response, are 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 notarial certification 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 Law of 2015 No. 67-FZ lists the cases that do not require certification of transactions: transfer of a share or part of a share to a company; in cases of distribution of a share between the participants of the company and sale of a share to all or some participants of the company or third parties.

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

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

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

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

A notary, before notarizing a transaction aimed at alienating a share or part of a share in the authorized capital of a company, is obliged to check the authority of the alienating person to terminate the share, whether the alienated share has been fully paid. The unpaid share may 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 registration authority. The applicant can personally take them to the registration 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. A notary public can also transfer documents at the request of the applicant electronic form. The registering authority in response sends a document confirming the fact of making an entry in the Unified State Register of Legal Entities. Thus, neither the transferor nor the party wishing to acquire a share should take any action at this stage to transfer the application to the registrar. government agency.

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

We know from family law 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 been established.

According to Art. 34 of the UK, the common property of the 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 of financial assistance, amounts paid in compensation for damage in connection with disability due to injury or other damage to health, etc. ). The common property of the spouses is also movable and immovable things acquired at the expense of the joint income of the spouses, securities, shares, deposits, shares in the capital contributed to credit institutions or other commercial organizations, and any other property acquired by the spouses during the marriage, regardless of whether in the name of which of the spouses it was acquired or in the name of which or which of the spouses the funds were deposited (Article 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 common joint property of the spouses, unless otherwise provided by the 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 the subject of division.

A member of the company becomes one of the spouses for whom the transaction was executed, i.e. the spouse to whom the transaction was executed (participant) acquires not only property rights, but also liability rights, 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. A marriage contract and a 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 submitted by you comply. The terms of the marriage contract must not contradict the rules for the alienation of a share in favor of third parties. A spouse who is not a member of the company refers 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 acquiring a share, you must obtain the notarized consent of your spouse. If the share was received as a gift or inherited, then the consent of the spouse is not required. Also, upon dissolution of a marriage, a transaction with shares in the authorized capital, made during 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 legal succession

Universal succession - 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 in the manner of universal succession is described in Law No. 14-FZ of February 8, 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 heirs or 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 successors of legal entities can take place without restrictions or on condition that such a transfer is allowed with the consent of the other participants in the company.

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

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

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

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

Trust management is not a representation, i.e. no one performs certain duties on your behalf by proxy. A trust relationship is when the trustee (the 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 (management founder). Trust management is regulated by the provisions of Chapter 53 of the Civil Code of the Russian Federation.

In relation to a share in the authorized capital of an LLC, Russian legislation provides for two such cases when one party, the founder of the management, transfers property to the trustee for a certain period of time for trust management. 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). As long as the heir has not inherited a part of the share in the LLC and has not become a member of the company, the notary, as the founder of trust management, concludes an agreement on trust management of this property. The founders of trust management of hereditary property can only be a notary or an executor by will.

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

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

The second case is the mandatory establishment of trust management in relation to a share in the authorized capital of an LLC, the procedure for preventing the settlement of conflicts of interest (Federal Law of December 25, 2008 No. 273 "On Combating Corruption"). The person who is involved entrepreneurial activity cannot simultaneously hold a state or municipal office. In accordance with Art. 10 of the Federal Law of December 25, 2008 No. 273 "On Combating Corruption", a conflict of interest is a situation in which the personal interest (direct or indirect) of a person holding 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 the Scottish economist, Adam Smith, added: "In pursuing his own interests, he (the entrepreneur) often serves the interests of society more effectively than when he consciously strives to do so."

Thus, a person who is going to enter the state or municipal service, is obliged to terminate its participation in the management of a commercial organization. Those. it is possible to own a share or part of a share in the authorized capital of an organization, but to participate, be a participant and have corporate rights - no. Therefore, if you want to retain your property rights, and not lose your share in the authorized capital, while holding a public position, so as not to violate the laws, you need to transfer the share to trust management. Accordingly, in such a situation, trust management in relation to a share or part of a share will allow to combine commercial activity 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 management in relation to a share in the authorized capital of a company, the applicant may be: a member of the organization, an executor of a will or a notary. For the first situation - when transferring your share in the authorized capital of an LLC to trust management. For the second situation - when entering information to the state registration authority about the person managing the share, which is in the order of inheritance.

The 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

What to do in a situation where the alienation of a share or part of it in the authorized capital of an LLC is carried out by a person who does not have the right to perform such actions and who will eventually 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 LLC Law.

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

The 1998 LLC Law provides for cases where a share is recognized for the acquirer. In the case when the share or part of the share was acquired by him at a public auction - from the moment the relevant changes were made to the Unified State Register of Legal Entities. Also, if the court refused to satisfy the claim brought by the buyer to the person who lost the share or part of the share. An action may be filed within three years from the date when the person who lost the share became aware of the unlawful acts.

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

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

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

Let's consider the first case. A participant, participants or a company (if the charter of an LLC provides for a pre-emptive right for the company to acquire a share or part of a share) has the right, within three months from the moment they become aware of such an offense, to demand judicial order transfer the rights and obligations of the buyer to them. If the charter of the organization indicates in advance the price for the pre-emptive right to purchase a share, then the person to whom the rights and obligations of the buyer are transferred shall reimburse the costs to the party that previously acquired the share. The amount of expenses should not exceed the purchase price of a share or part of a share in the authorized capital of the organization specified in the charter. After the court makes a decision 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 apply for the appropriate changes to the Federal Tax Service.

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

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

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

Pledge is one of the ways to ensure the fulfillment of obligations. A member of an organization has the right to pledge his share or part of a share in the authorized capital of an 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. On the general meeting members of an LLC must be decided by a majority vote of all members of the company, unless the charter provides otherwise. For example, the need for a larger number of votes to make a decision on giving consent to pledge a share or part of a share in the authorized capital of an LLC. Moreover, the vote of a participant who pledges his share is not counted. If the company consists of one founder member, the transfer of a pledge of a share is feasible, even if the charter provides for a ban on the transfer of a share in favor of third parties, for this the participant must decide on consent to the pledge of a share in the authorized capital of the company.

So what do we get. If a member of the company pledges his share to another member of the company, an agreement is concluded between them, which is sealed with signatures. Such an agreement is subject to mandatory notarization, 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 provide for a ban on 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.

The notary, before certifying the share pledge agreement, 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 transferred as pledge has been fully paid, except for cases when, at the time of notarization of the pledge agreement, the share does not yet belong to the legislator (Article 22 of the 1998 Law on LLC). The notary must make sure that the transaction was completed without any violations. It is also worth considering that the notary must submit a document on the basis of which a share or part of a share in the authorized capital of an LLC was acquired. If the participant is married, the consent of the spouse is required to transfer the share as collateral.

In accordance with part 13.1 of Art. 21 of the Law on LLC 1998, 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 the share or part of the share was acquired on the basis of a transaction, then this may be a contract.
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 was inherited.

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

In the event of the acquisition of a share or part of a share when increasing the authorized capital of the company, the distribution of shares owned by 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, a pledge of a share or part of a share in the charter capital of an LLC is subject to state registration, and arises from the moment of such state registration. The notary must, within two working days from the date of certification of the share pledge agreement, send an application in electronic format to the state registering authority. If a pledge of a share arises in the future, the notary sends an application to the Unified State Register of Legal Entities within three days from the date of fulfillment of all conditions and the occurrence of all the deadlines necessary for the occurrence of a pledge. In turn, the state registering body sends to the notary in electronic form a document confirming the fact of making the relevant changes, or a decision to refuse state registration.

An entry in the Unified State Register of Legal Entities on the encumbrance of a share or part of a share in the authorized capital of an LLC is extinguished on the basis of an application from the pledgee or on the basis of a court decision that has entered into 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 where an LLC acquires a share or part of a share in the authorized capital of a company

In accordance with paragraph 1 of Art. 23 “Acquisition by a company of a share or part of a share in the authorized capital of an LLC” of the 1998 Law on LLC, a company is not entitled to acquire a share or part of a share in the authorized capital of an LLC, with the exception of some cases, which 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 participants in the company to purchase 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 purchase 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 charter of an LLC, the alienation of a share or part of a share owned by 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 participant of the company.

Third case. Participants of the organization, at the general meeting of the company, it was decided to commit big deal or about increasing 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 participant. This demand can be made within 45 days from the moment the participant learned about the adoption of such a decision or if he took part in the vote, after which the decision was made, and within 45 days he can make such a demand. The requirement for the company to acquire a share or part of a share in the authorized capital of the company is subject to notarization.

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

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

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

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

Sixth case. In accordance with paragraph 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 at a public auction, the rights and obligations of participants in such a share are transferred with the consent of the company's participants. If such consent has not been obtained, the company acquires this share.

The situations in which the LLC is obliged to buy out the share or part of the share of a company member in the authorized capital of the LLC were listed above. However, the legislation regulates the case when a company can exercise the right to choose and, at its own discretion, decide to acquire or not a share or part of a share of a member of the company - 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 on, 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. Recovery 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 a share or part of the share of an LLC participant in the authorized capital of the company upon withdrawal of the participant from the company

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

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

The withdrawal of a participant from the company is carried out on the basis of the submission by the participant of the company of an application in writing. His share passes to the company from the moment of filing an application for withdrawal from the organization. Those. the moment the company receives the application, its share goes to the company. The legislation does not provide for clear criteria and requirements for drawing up an application and methods for filing an application for withdrawal from an organization. Also, the participant can withdraw his application for withdrawal from the LLC. If the company refuses to satisfy his request, he has the right to challenge this decision in court.

The application of a member of the company to withdraw from the organization must be notarized. Documents for state registration of changes relating to the composition of the company's participants must be submitted to the state registration authority (FTS) within a month from the date the share or part of the share is transferred to the company. It is necessary to submit the following documents: an application in the form P14001; application of the participant on withdrawal from the LLC (notarized); if the documents are submitted by the representative of the applicant - a notarized power of attorney. Documents to the registration authority may be submitted 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, bound electronic signature. The registration authority issues you a receipt with the date of acceptance of your application and a list of submitted documents. State registration is carried out no later than five working days.

In case of withdrawal of a member from the company in accordance with Article 26 of the 1998 Law on LLC, the company is obliged to pay, is obliged to pay to the member of the company the actual value of his share or part of the share in the authorized capital of the company. The value of his share or part of the share in the authorized capital of the company is determined on the basis of accounting data for the last reporting period preceding the day the participant of the company submits an application for withdrawal from the organization. The company may also issue in kind property of the same value, with the consent of the participant. In case of incomplete payment by him of a share or part of a share in the authorized capital of an 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, a participant in a business partnership or company has the right to demand in court the exclusion of another participant from the company or business partnership, except for public joint-stock companies(PJSC) with the payment of the actual value of its share or part of the share in the authorized capital of LLC. The grounds for exclusion in court of a participant from the organization are as follows:

The actions or omissions of the participant cause significant harm to society. For example, a member of the company is regularly absent without a good reason at the general meeting of the members of the company, which in turn can lead to disastrous consequences, failure to make certain decisions harms the company or makes its activities impossible and complicates the work process. He can also vote for an unprofitable deal or a deal that will bring only losses to the organization in the future.
The participant commits actions that impede the activities of the organization and prevent the achievement of the goals for which it was created.
Violates his obligations under the 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 obligations, and establishes the fact that the participant has committed specific actions or evaded their commission and the onset of negative consequences for society. If the court decides to expel a participant from the organization, his share passes to the company from the moment the court decision comes into force. The company is obliged to pay to the expelled participant the actual value of his share, which is determined on the basis of accounting data for the last reporting period preceding the day the court decision on the exclusion of the participant enters into force. The society may also issue in kind property of the same value, with the consent of the expelled member.

Is it possible to exclude a participant from organizations who have paid their share only partially. In accordance with Article 10 of the 1998 LLC Law, it is provided that the unpaid part of the share passes to the company. Also, a participant with a share of more than 50% of the authorized capital of the company may be excluded only if the charter prohibits the exit of participants from the LLC.

Alexandrova Svetlana Ninelievna, candidate legal sciences, Associate Professor of the Department of Business Law, Civil and Arbitration Procedure, Russian Law Academy of the Ministry of Justice of Russia.

The article discusses the legal nature and the procedure provided for by law for the LLC participants to exercise the pre-emptive right to purchase a share (part of a share) offered for sale to a third party (non-participant of the company). The moment from which the share (part of the share) is considered to have passed to the acquirer is being studied. Differentiate the rights that acquires new member from the moment of notarization of the sale and purchase transaction, and those that appear after he makes an entry about the change in the composition of the company's participants in the Unified State Register of Legal Entities. The legitimacy and effectiveness of such a method of protecting the rights of a participant whose pre-emptive right to purchase a share (part of a share) has been violated, as a transfer to him of the rights and obligations of the buyer of a share (part of a share), are analyzed.

Key words: preemptive right to purchase; share in the authorized capital; notarization of the transaction; alienation of shares to a third party.

Preemptive right to purchase a share (a part of the share) in the authorized capital of a Limited liability Company: recent trends in arbitrazh jurisprudence

S.N. Aleksandrova

Aleksandrova Svetlana Ninelyevna, candidate of laws, associate professor of entrepreneurial law, civil law and arbitrazh procedure department of Russian legal academy of the Ministry of Justice of the Russian Federation.

This article covers topic about legal nature and the legal procedure of implementation an option of purchasing of share (or a part of it), by members of OOO when the share was offered to third party (who is not a member of OOO). The author researches the moment when a share (or its part) is considered to be passed to a purchaser. The article also differentiates rights, which a new member get from the moment when the deal was notarially authenticated and the rights which he get after the sign into the register of legal entities was included. The author has also analyzed legality and efficiency such safety measure of member's rights whose option was infringed as transfer of rights to him from the purchaser of a share (or its part).

Key words: option of purchase; share in the authorized capital; notarial authentication of a deal; disposal of a share to a third person.

Amendments to the Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies" (hereinafter - the Law on LLC)<1>were introduced quite a long time ago, but the practice of applying its individual provisions continues to take shape. So it happened with the rules on the pre-emptive right to purchase a share (part of a share) by participants in an LLC offered for sale over third parties. In July 2011, the Supreme Arbitration Court of the Russian Federation, considering a specific case, made conclusions that may affect the further practice of applying the rules on the preemptive right to purchase in an LLC<2>.

<1>SZ RF. 1998. N 7. Art. 785. At the time the journal went to print, the President of the Russian Federation signed Federal Law No. 405-FZ of December 6, 2011 “On Amendments to Certain legislative acts Russian Federation in terms of improving the procedure for foreclosing mortgaged property", which amended Article 25 of the LLC Law.
<2>

The LLC Law does not contain a definition of the pre-emptive right to purchase when selling a share (part of a share) in the charter capital of an LLC. At the same time, the issues of the implementation by LLC participants of the right to sell a share (part of a share) in the authorized capital of the company received sufficient coverage in the legal literature.<3>. Thus, some authors note that the pre-emptive right to purchase in relations for the alienation of shares in the authorized capital of an LLC should be understood as the legal possibility of the participants in the company or the company itself to acquire a share or part of a share in the authorized capital of the company in the event of their alienation as a matter of priority and on conditions determined by the constituent documents of the company and the agreement on the alienation of the share<4>.

<3>See, for example: Gongalo B.M. Share in the authorized capital of the company and its official alienation // Notarial Bulletin. 2010. No. 4; Frolovsky N.G. New rules for the alienation of a share in the authorized capital of an LLC: a commentary on certain provisions of the legislation // Civilist. 2009. No. 3; Ilyushina M.N., Aleksandrova A.A. Notarial activity in case of alienation of shares in the authorized capital of limited liability companies: Tutorial. M.: RPA of the Ministry of Justice of Russia, 2009.
<4>See: Kamyshansky V.P., Volkova E.V. Implementation of pre-emptive rights in relations for the alienation of property // Modern law. 2010. No. 6.

There is another definition. The preemptive right to purchase can be understood as belonging to the participants (members) of the corporation, as well as in cases established by law, to the legal entity itself, the legal possibility of privileged (before all third parties) acquisition of property (share, part of the share) alienated by another member of the company<5>.

<5>See, for example: Kuznetsova L.V. Preemptive rights in civil law Russia: Monograph. M., 2007. S. 130.

Both definitions are united by one common idea: content this right consists in the possibility of the company's participants to acquire a share (part of a share) if other participants intend to sell a share (part of a share) to a third party.

Preemptive rights occupy a special place among the rights that make up the content of corporate relations. We should agree with the opinion of L.V. Kuznetsova that the pre-emptive right to purchase that exists in corporate legal relations is an important guarantee of the rights and legitimate interests of participants in civil transactions<6>. According to the fair statement of D.V. Lomakin, while the rights of the participant related to the disposal of shares should not be violated<7>therefore, the pre-emptive right can be exercised by other participants only on the terms of the alienation of shares to a third party. Otherwise, the exercise of the right will take place with going beyond its limits, i.e. abuse of right.

<6>See: Kuznetsova L.V. Decree. op. S. 129.
<7>See: Lomakin D.V. Corporate Legal Relations: General Theory and Practice of Its Application in Business Companies. M.: Statut, 2008. S. 404.

Thus, the main purpose of the existence of a pre-emptive right to purchase in corporate legal relations is to ensure the legitimate interest of a corporation participant in maintaining and increasing the share of its participation and, as a result, the degree of influence in decision-making in the company (participation in the management of the company).

The subjects of this right by virtue of law are the participants in the LLC and the company itself (provided that such a possibility is enshrined in the charter of the company). As follows from paragraph 4 of Art. 21 of the LLC Law, members of the company enjoy the pre-emptive right to purchase a share or part of a share of a member of the company at an offer price to a third party or at a price different from the offer price to a third party and predetermined by the charter of the company in proportion to the size of their shares, unless the charter of the company provides for a different procedure for exercising the preferential the right to purchase a share or part of a share.

The pre-emptive right to purchase is closely connected with the implementation of another subjective right - to sell one's share to a third party (non-participant of the company). With regard to this action of an LLC participant, corporate legislation contains special rules and restrictions. Firstly, such an opportunity should be directly provided for by the charter of the company (clause 1, article 8, clause 2, article 21 of the LLC Law). At the same time, a member of the company has the right to fully dispose of only the paid part of his share (clause 3, article 21 of the LLC Law).

Secondly, if the charter provides for the right of a participant to sell a share to a third party, then not only the participants, but also the company itself may have the pre-emptive right to purchase if this is provided for by the charter (clause 4, article 21 of the LLC Law). It is typical for the pre-emptive right that it is established unilaterally by an imperative legislative norm. In this case, the assignment of the pre-emptive right is not allowed. The pre-emptive right to purchase does not apply to companies with one participant, since in such a situation, when a share (part of a share) is alienated by a single participant, there will be no violation of the pre-emptive right.

Thirdly, a participant who intends to sell his share to a third party is obliged to notify the other participants and the company itself about this by sending through the company at his own expense an offer addressed to these persons and containing an indication of the price and other conditions of sale (paragraph 5 of article 21 of the Law about LLC). Members of the company may exercise their pre-emptive right to purchase within 30 days from the date of receipt of the offer or refuse it. After the participants (company) have exercised their right or waived it in writing, the share or part of the share may be sold to a third party.

Fourthly, an agreement on the sale of a share (or part of a share) in the authorized capital of an LLC to a third party requires notarization. Failure to comply with the notarial form entails the invalidity of this transaction (clause 11, article 21 of the LLC Law).

The share (part of the share) in the authorized capital of the company passes to its acquirer from the moment the transaction is notarized (clause 12, article 21 of the LLC Law). From the same moment, 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 the emergence of another basis for its transfer. After notarization of a transaction aimed at the alienation of a share, the transfer of a share or part of it can only be challenged in court by filing a claim in court of Arbitration.

In this regard, it is interesting to consider the position of the Supreme Arbitration Court of the Russian Federation in Resolution No. 2600/11 of July 27, 2011. The crux of the matter was as follows.

On June 26, 2009, the sole participant of the LLC, Z., with a share of 100% of the authorized capital, decided to sell his entire share in the authorized capital to two buyers. Accordingly, citizen L. - a share in the amount of 51% of the authorized capital, citizen D. - a share in the amount of 49% of the authorized capital. Then, in pursuance of this decision, on August 25, 2009, he entered into an agreement for the sale of part of the share for 5,100 rubles. with citizen L., and a week later, on September 2, 2009, with citizen D. for 4,900 rubles. Both agreements were notarized on the day they were signed.

Believing that the contract for the sale of a part of the share in the amount of 49% of the authorized capital dated September 2, 2009 was concluded in violation of his pre-emptive right to acquire this part of the share, citizen L. filed a claim with the arbitration court for the transfer of the rights and obligations of the buyer shares under the agreement. He followed the provisions of Art. 21 of the LLC Law that a share or part of a share in the authorized capital is transferred to its acquirer from the moment the transaction for the alienation of the share is notarized. Consequently, at the time of the sale of the share to the second buyer, the plaintiff was already a member of the company.

The above situation became the subject of three judicial instances. By the decision of the Arbitration Court of the Kaliningrad Region dated April 2, 2010, the claim was dismissed. By the decision of the Thirteenth Arbitration Court of Appeal dated July 22, 2010, the decision of the court of first instance was upheld. The Federal Arbitration Court of the North-Western District, by its Decree of November 12, 2010, upheld the decision of the court of first instance and the decision of the court of appeal.

In refusing to satisfy the claim, the court of first instance proceeded from the fact that the transfer of Z.'s share to L. and D. was connected with Z.'s decision to sell it to the indicated persons. The court considered that, since this decision was made on the same day - June 26, 2009, both transactions were made in pursuance this decision and at the time of its adoption, L. was not a member of the company, and he did not have a pre-emptive right to acquire the share sold by D.. In addition, in the preamble to the first contract of sale, it was indicated that the seller owns 51% of the authorized capital of the company, which was the subject of the sale. The courts of appeal and cassation agreed with this position.<8>.

<8>See: Resolution of the Federal Antimonopoly Service of the North-Western District of November 12, 2010 in case N A21-13577 / 2009 // Consultant Plus SPS.

By the decision of the Supreme Arbitration Court of the Russian Federation dated May 16, 2011 N VAC-2600/11, case N A21-13577/2009 was transferred to the Presidium of the Supreme Arbitration Court of the Russian Federation for review by way of supervision of the disputed judicial acts as violating uniformity in the interpretation and application of the rules of law by arbitration courts<9>. The Presidium of the Supreme Arbitration Court of the Russian Federation considered that the conclusions of the courts that the first buyer did not have a pre-emptive right to purchase a share in the authorized capital was based on the incorrect application of the provisions of paragraph 12 of Art. 21 of the LLC Law.

In the Decree, the Presidium of the Supreme Arbitration Court of the Russian Federation indicated that the courts of three instances, when making decisions, did not take into account that the transfer of a share to the acquirer is connected with its notarization, and not with the decision by the participant to alienate the share. The transfer of a share to the acquirer means the emergence of the rights and obligations of a member of the company, including the pre-emptive right to purchase a share transferred to a third party. The contract concluded between the seller and the first buyer was certified by a notary on the day of its signing, therefore, it was from this date that the buyer acquired the rights of an LLC participant and, as a result, the pre-emptive right to purchase the second part of the share offered for sale. As a result, the Presidium of the Supreme Arbitration Court of the Russian Federation canceled all judicial acts of lower instances and decided to satisfy the claims of the first buyer (plaintiff) and transfer the rights and obligations of the second buyer (defendant) to him<10>.

<10>See: Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 27, 2011 N 2600/11 // ATP "ConsultantPlus".

The significance of this Decree cannot be overestimated: the Presidium of the Supreme Arbitration Court of the Russian Federation clearly defined the legal force and role of documents in a share purchase and sale transaction; emphasized that it is the notarization of the share purchase and sale agreement that entails the onset of legal consequences in the form of the transfer of ownership of the share (part of the share), as well as the acquisition of the rights and obligations of a member of the company. At the same time, the decision of the sole participant does not have such legal force and does not affect the acquisition of ownership of the share. Moreover, it does not matter whether such a decision was made on the same day or there is a time interval between them.

However, the situation described above revealed certain problems in the application of Art. 21 of the LLC Law.

Firstly, the buyer of a share does not have the opportunity to exercise all the rights of a member of the company immediately after the notarization of the contract of sale. In particular, he cannot immediately assign (sell) his share (part of the share). As follows from the provisions of paragraph 13 of Art. 21 of the LLC Law, the authority of a person to alienate a share must be confirmed not only by a notarized agreement, but also by an extract from the Unified state register legal entities (hereinafter referred to as the Unified State Register of Legal Entities), containing information about the ownership of a share (part of a share) in the company's authorized capital and its size. Therefore, before making an entry on the ownership of the share in the Unified State Register of Legal Entities, the person will not be able to assign the share, since his authority will not be confirmed. In this regard, one should agree with the opinion of R.S. Fatkhutdinov that a notarized transaction alone is not enough. To transfer the share to the acquirer, you will also need such a necessary legal fact as notification of the registering authority about the assignment of the share<11>. To exclude situations similar to the one under consideration, the LLC Law obliges a notary to check the authority of a person alienating a share or part of a share in the authorized capital of a company to dispose of shares or a part of it.

<11>See: Fatkhutdinov R.S. Assignment of a share in the authorized capital of LLC: theory and practice: Monograph. M.: Wolters Kluver, 2009. S. 124.

Secondly, the authority of the person alienating a share or part of it to dispose of it is confirmed by a notarized agreement on the basis of which such a share or part of it was previously acquired, documents confirming the rights to a share or part of a share from the seller, as well as an extract from the USRR drawn up no earlier than 30 days before the day of contacting a notary to certify the transaction. It turns out that in the case considered above, citizen Z. (the original owner of a 100% stake in the authorized capital of an LLC), concluding contracts for the sale of part of the share with the first and second buyers, submitted the established documents to notaries and the notaries certified the transactions. This means that in the week that was between the two sales transactions, he managed to make sure that the corresponding changes were reflected in the register. And if in the case under consideration, apparently, this was done, but if the interval between transactions was shorter, then the first acquirer could hardly count on the transfer of rights and obligations to him.

The fact is that there is always a temporary break between the notarization of the transaction and the making of the corresponding entry in the Unified State Register of Legal Entities. After notarization of a transaction aimed at the alienation of a share or part of a share in the authorized capital of a company, the notary, no later than three days from the date of such certification, must submit an application for making appropriate changes to the Unified State Register of Legal Entities to the body carrying out state registration legal entities. The said application must be signed by the member of the company alienating its share (clauses 14, 15, article 21 of the LLC Law). It seems that prior to making this entry, a new member of the company is not entitled to exercise its rights as a member, including the right to preemptively acquire a share sold by another member to a third party.

Thirdly, the special literature has long discussed the legitimacy of using such a method of protection as transferring to a person whose pre-emptive right to purchase was violated the rights and obligations of the buyer in a transaction for the sale of a share (part of a share) in the authorized capital. Thus, the opinion is expressed that it is wrong to be guided by the rules on the alienation of property encumbered with obligations when alienating a share, since the alienated share is not burdened with obligations in the interests of other participants. They only have a pre-emptive right to conclude a contract for the sale of a share in comparison with third parties<12>. In the share purchase agreement, the seller's obligation to general rule is considered executed at the time of notarization of the transfer of the share and the termination of such an agreement takes place. That is, the logic boils down to the fact that both the seller and the buyer of a share are bona fide participants in legal relations, therefore, in the event of a violation of the pre-emptive right to purchase, the institution of buying out a share from a bona fide buyer should be used as a method of protection.<13>. This position appears to be controversial. Without delving into theoretical basis and the background of this opinion, which may be the subject of separate consideration, it should be noted that the seller of a share who has not fulfilled his obligations to notify other participants of his intention to sell his share to a third party, as well as the price and conditions of the sale, can hardly be called a bona fide person. And due to the unique specifics of corporate relations, it seems inefficient to demand from him the usual compensation for losses, and from the acquirer of the share - to sell it to the participants of the LLC. In this case, the violated rights of the participants will not be restored: the right to participate in the management of the company and receive part of its profit is a privilege of a company participant, which follows from the possession of a share (part of a share) in the authorized capital of an LLC.

<12>See: Lomakin D.V. Decree. op. S. 410.

ConsultantPlus: note.

<13>See: Sklovsky K.I., Smirnova M.I. The Institute of Preemptive Purchase in Russian and Foreign Law // Economy and Law. 2006. No. 10.

Thus, the practice of applying certain norms of the LLC Law continues to evolve, and there is a need for detailed explanations from the highest judicial instances regarding the application of its individual institutions in order to level theoretical and practical problems.

Bibliographic list

Gongalo B.M. Share in the authorized capital of the company and its official alienation // Notarial Bulletin. 2010. No. 4.
Ilyushina M.N., Aleksandrova A.A. Notarial activity in the process of alienation of shares in the authorized capital of limited liability companies: Textbook. M.: RPA of the Ministry of Justice of Russia, 2009.
Kamyshansky V.P., Volkova E.V. Implementation of pre-emptive rights in relations for the alienation of property // Modern law. 2010. No. 6.
Kuznetsova L.V. Preemptive rights in the civil law of Russia: Monograph. M., 2007.
Lomakin D.V. Corporate Legal Relations: General Theory and Practice of Its Application in Business Companies. M.: Statute, 2008.

ConsultantPlus: note.

The article by K. Sklovsky, M. Smirnova "Institute of preemptive purchase in Russian and foreign law" is included in the information bank according to the publication - "Economy and Law", 2003, N 10, 11.

Sklovsky K.I., Smirnova M.I. The Institute of Preemptive Purchase in Russian and Foreign Law // Economy and Law. 2006. No. 10.
Fatkhutdinov R.S. Assignment of a share in the authorized capital of LLC: theory and practice: Monograph. Moscow: Wolters Kluver, 2009.
Frolovsky N.G. New rules for the alienation of a share in the authorized capital of an LLC: a commentary on certain provisions of the legislation // Civilist. 2009. N 3.

Comprehensive support for entrepreneurs since 1993!

Aventa Law Firm offers you effective individual solutions for building and developing a stable, profitable business.

We have been providing corporate legal services for over 20 years and have extensive experience in solving the most complex problems in any business area.

The services of the law firm "Aventa" are the result, not the process!

Every business has individual characteristics, risks, challenges and opportunities. We see our task in quickly studying and evaluating the client's problem, taking into account all the nuances and offering the best solution in each specific case.

PROFESSIONALLY

Leading experts in the field of legal consulting and litigation work with you. Thousands of companies that have effectively solved their business problems testify that AVENTA rightfully belongs to the best law firms working with entrepreneurs.

FAST

Each lawyer specializes in a particular area of law. Therefore, we quickly develop individual solutions for even the most difficult situations.

RELIABLE

We have a rich experience in successfully resolving corporate disputes, complex legal conflicts, crisis situations, reducing possible risks to zero.

COMFORTABLE

Providing a range of legal services to enterprises and individual entrepreneurs will allow you to solve any business tasks within the framework of working with one company: from the creation of a business to its reorganization or liquidation.

We are located in the center of the capital, so if you need the services of a law firm in Moscow, you can quickly come to us from almost anywhere in the city.

Remote legal advice is also possible by phone or online for residents of the regions or clients who are on a business trip and cannot receive the services of a law firm in Moscow.

SAFELY

The provision of legal services at AVENTA implies complete confidentiality, maximum accuracy in assessing business risks and strict adherence to applicable law.

RATIONAL

The cost of legal services in Moscow can be a real stumbling block. But we assure you that neither the practice of "more expensive is better" nor the attempt to save on resolving the issue is optimal. Moreover, often low prices for legal services in Moscow rather indicate the presence of hidden additional payments or the low qualification of employees.

We do not strive to set the lowest prices for legal services in Moscow. However, we support a rational and transparent pricing policy.

without hidden fees
without imposing additional services
without dividing the service into many "sub-items"
without chaotic "cheating" due to the location in the center

Therefore, objectively, we can say that we provide inexpensive legal services in Moscow (CAO), which pay off many times over by the efficiency and efficiency of our work.

Law firm "AVENTA":

We offer:

Legal support of the company

Full legal support of the financial and economic activities of the organization.

Litigation, legal services

Protection of the client's interests in corporate conflicts, ranging from pre-trial dispute resolution and filing a claim to representing interests in arbitration courts, court for intellectual property rights.

Due Diligence

Legal, financial and tax due diligence, giving objective assessment the state of the business with the identification of existing risks and ways to minimize them.

A full range of services on patent and copyright issues

Reliable protection intellectual property companies, ranging from trademark registration, patenting of inventions, utility models and industrial designs, and ending with the legal protection of intellectual property in court.

Valuation of tangible and intangible assets of the company

The whole range of valuation services for business: business valuation, stock valuation, real estate valuation, equipment valuation, intellectual property valuation.

A full range of services on corporate and shareholder law

Provision of consulting legal services and practical legal assistance in the registration of legal entities, accreditation of foreign representative offices and branches. Drafting and amending constituent documents. Services in case of liquidation, bankruptcy and reorganization of legal entities, closing of representative offices and branches.

Unfortunately, we can not hang up the exact price list of services, since each case is individual. Contact us using the online application or by phone +7 495 134-12-21. Our experts will guide you on the preliminary cost and other issues.

We will be glad to see you among our clients!

In accordance with paragraph 4 of Art. 21 of the LLC Law, members of the company enjoy the pre-emptive right to purchase a share or part of a share of a member of the company at an offer price to a third party or at a price different from the offer price to a third party and predetermined by the charter of the company (hereinafter referred to as the price predetermined by the charter) in proportion to the size of their shares, if the charter of the company does not provide for a different procedure for exercising the pre-emptive right to purchase a share or part of a share. That is, if there are 3 participants in the company, 1 has 50% of the authorized capital, 2 has 25% of the authorized capital, 3 has 25% of the authorized capital and 1 wants to sell a share through the preemptive right to purchase, 2 will be able to buy only 25% ? And if 3 does not buy, then the remaining 25% can buy 2 or not? Or 2 can buy all 50%? The articles of association state that the participant has the right to sell to third parties, the consent of others is not required, and that the period for exercising the pre-emptive right to purchase is 30 days.

Answer

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

The transfer of a share or part of a share of a company member in the authorized capital of the company to other members of the company is regulated by the LLC Law.

The rationale for this position is given below in the materials of "Systems Lawyer" .

“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 demand in court that the rights and obligations of the buyer be transferred to them.

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

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

What is preemption and when does it occur?

When one of the participants wishes to sell his share in the LLC to a third party, the remaining participants have a pre-emptive right to purchase this share. This rule is provided for in Article 21 federal law dated February 8, 1998 No. 14-FZ "On Limited Liability Companies" (hereinafter - the Law on LLC).

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

Not only participants, but also the company itself can have a pre-emptive right.

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 company ().

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

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

Assigning or transferring your pre-emptive right to anyone is prohibited.

Using the pre-emptive right, participants can acquire the share being sold at the offer price to a third party or at another price, when it was previously determined in the articles of association. Moreover, the price set in advance should be the same for all participants.

How to pre-determine the price of a share in an LLC in case it is purchased using a pre-emptive right

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

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

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

The charter may also provide for a different procedure for exercising the pre-emptive right to purchase a share ().

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

Example from practice: the court refused the participant's demand to transfer the rights of the buyer of the share to him, since in this case the participants did not have a pre-emptive right, since the share was sold not to a third party, but to one of the participants

On July 11, 2007, two members of OOO D. concluded a contract for the sale of a share in the amount of 1.12 percent of the authorized capital.

Another participant, citizen E., applied to the arbitration court with a request to transfer to her the rights and obligations of the buyer under the said sale and purchase agreement, believing that her pre-emptive right to purchase a share had been violated.

The court took the position of the defendants (the seller and the buyer of the share). The court pointed out that the pre-emptive right to purchase a share arises from a participant only in the event of the sale of a share to a third party who is not a participant in this company. Since the disputed transaction was made between the participants, the pre-emptive 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 to transfer 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 respect the priority right, but in practice it is often circumvented or simply ignored.

How to respect preemption

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

The share must be sold subject to the pre-emptive right in the following order.

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

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

An offer shall be 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 withdrawn 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 several transactions for the sale of shares in an LLC are planned to be carried out approximately simultaneously, sellers need to take into account: as soon as the transaction for 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 from the date of notarization of the share assignment transaction (). In this regard, the pre-emptive right to acquire shares from other participating sellers may arise from the specified date.

In case of violation of this right, the new participant may apply to the court with a request to transfer the rights and obligations of the buyer of the share to him. This confirms arbitrage practice ().

2. Within 30 days from the date of receipt of the offer by the company, the participants shall accept the offer. The charter may provide for a longer period for exercising the pre-emptive right ().

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

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

If individual participants have refused to use the pre-emptive right or have acquired only a part of the part of the share due to them, other participants may 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 pre-emptive right of the participants (and the company) terminates when the term for exercising such right by them expires.

The pre-emptive right is also terminated if, before the expiration of the period, the company received notarized statements from the participants (potential buyers of the share) about the refusal to use the pre-emptive right, and from the company (if it was granted the pre-emptive right) a similar statement was received by the participant himself - the seller of the share ().

4. If the participants or the company itself has not acquired a share within the established period, 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, and if the charter sets a different price for the participants and the company, then you need to focus on the price provided for the company).

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

How to bypass preemption

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 under which the share is not sold, but alienated in any other way.

The pre-emptive right of 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 pre-emptive right, including by hiding a real sale and purchase transaction, inevitably entails the risk of contesting the concluded transaction as a sham () and (or) transferring the rights and obligations of the buyer under the transaction to the person whose pre-emptive 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.”

Professional help system for lawyers, where you will find the answer to any, even the most complex question.