Shares or parts of shares in its authorized capital, with the exception of cases provided for by this Federal Law.
2. If the charter of the company prohibits the alienation of a share or part of a share owned by a company participant to third parties and other participants in the company have refused to acquire them or consent has not been obtained for the alienation of a share or part of a share to a company participant or a third party, provided that the need to obtain such consent is provided for by the charter of the company, the company is obliged to acquire, at the request of a member of the company, his share or part of the share.
In the event that the general meeting of participants in the company makes a decision to commit big deal or about increasing authorized capital company in accordance with Clause 1 of Article 19 of this Federal Law, the company is obliged to acquire, at the request of a company participant who voted against such a decision or did not take part in voting, a share in the company's charter capital belonging to this participant. This requirement is subject to mandatory notarization in accordance with the rules provided for by the legislation on a notary for certifying transactions, and can be presented by a member of the company within forty-five days from the date when the member of the company found out or should have found out about decision. If a member of the company took part in the general meeting of the members of the company that made such a decision, such a request may be submitted within forty-five days from the date of its adoption.
In the cases provided for in paragraphs one and two of this paragraph, within three months from the date of the occurrence of the corresponding obligation, unless another period is provided for by the charter of the company, it is obliged to pay to the participant of the company the actual value of his share in the authorized capital of the company, determined on the basis of data financial statements of the company for the last reporting period preceding the day the participant of the company applied with the relevant request, or with the consent of the participant of the company, to give him property in kind of the same value. Provisions establishing a different term for the fulfillment of this obligation may be provided for by the charter of the company upon its establishment, when amendments are made to the charter of the company by decision general meeting members of the company, adopted by all members of the company unanimously. The exclusion from the charter of the company of these provisions is carried out by decision of the general meeting of participants in the company, adopted by two-thirds of the votes of the total number of votes of the participants in the company.
4. The share of a participant in a company expelled from the company shall be transferred to the company. At the same time, the company is obliged to pay to the excluded member of the company the actual value of his share, which is determined according to the financial statements of the company for the last reporting period preceding the date of entry into force of the court decision on exclusion, or, with the consent of the excluded member of the company, to give him property in kind of the same value. .
5. If the consent of the company's participants to the transfer of a share or part of a share, provided for in accordance with paragraphs 8 and 9 of Article 21 of this Federal Law, is not received, the share or part of the share shall be transferred to the company on the day following the date of expiration of the period established by this Federal Law. by law or the charter of the company to obtain such consent from the participants in the company.
In this case, the company is obliged to pay to the heirs of the deceased participant of the company, the successors of the reorganized legal entity - the participant of the company or the participants of the liquidated legal entity - the participant of the company, the owner of the property of the liquidated institution, state or municipal unitary enterprise- a member of the company or a person who acquired a share or part of a share in the authorized capital of the company at a public auction, the actual value of the share or part of the share, determined on the basis of the company's financial statements for the last reporting period preceding the day of death of the company's member, the day of completion of the reorganization or liquidation legal entity, the date of acquisition of a share or part of a share at a public auction, or with their consent to give them property in kind of the same value.
6. In case of payment by the company in accordance with Article 25 of this Federal Law real value share or part of the share of a member of the company, at the request of his creditors, part of the share, the actual value of which was not paid by other members of the company, passes to the company, and the rest of the share is distributed among the members of the company in proportion to the fee paid by them.
6.1. In the event that a company participant withdraws from the company in accordance with Article 26 of this Federal Law, his share shall be transferred to the company. The company is obliged to pay to the member of the company who submitted an application for withdrawal from the company the actual value of his share in the authorized capital of the company, determined on the basis of the data of the company's accounting statements for the last reporting period preceding the day of filing an application for withdrawal from the company, or, with the consent of this member of the company, issue to him in kind property of the same value, or in case of incomplete payment by him of the share in the authorized capital of the company, the actual value of the paid part of the share.
The company is obliged to pay the participant of the company the actual value of his share or part of the share in the authorized capital of the company or to give him in kind property of the same value within three months from the date of the occurrence of the corresponding obligation, unless a different period or procedure for paying the actual value of the share or part of the share is not provided for by the charter society. Provisions establishing a different period or procedure for paying the actual value of a share or part of a share may be provided for by the charter of the company upon its establishment, when amendments are made to the charter of the company by decision of the general meeting of participants in the company, adopted by all participants of the company unanimously. The exclusion from the charter of the company of these provisions is carried out by decision of the general meeting of participants in the company, adopted by two-thirds of the votes of the total number of votes of the participants in the company.
7. The share or part of the share shall pass to the company from the date:
1) receipt by the company of the demand of the participant of the company for its acquisition;
2) receipt by the company of an application of a participant in the company to withdraw from the company, if the right to withdraw from the company of the participant is provided for by the charter of the company;
3) the expiration of the payment period for a share in the authorized capital of the company or the provision of compensation provided for in paragraph 3 of Article 15
4) the entry into force of a court decision on the exclusion of a company participant from the company or a court decision on the transfer of a share or part of a share to the company in accordance with paragraph 18 of Article 21 of this Federal Law;
5) receipt from any member of the company of a refusal to give consent to the transfer of a share or part of a share in the authorized capital of the company to the heirs of citizens or successors legal entities who were members of the company, or to transfer such a share or part of a share to the founders (members) of a liquidated legal entity - a member of the company, the owner of the property of a liquidated institution, a state or municipal unitary enterprise - a member of the company, or to a person who acquired a share or part of a share in the authorized capital of the company at public auction;
6) payment by the company of the actual value of the share or part of the share owned by the participant of the company, at the request of his creditors.
7.1. Documents for state registration of the relevant changes must be submitted to the body responsible for state registration legal entities, within a month from the date of transfer of the share or part of the share to the company. These changes become effective for third parties from the moment of their state registration.
8. The company is obliged to pay the actual value of the share or part of the share in the authorized capital of the company or to give in kind property of the same value within one year from the date of transfer of the share or part of the share to the company, unless a shorter period is provided for by this Federal Law or the charter of the company.
The actual value of a share or part of a share in the authorized capital of the company is paid out of the difference between the value of the net assets of the company and the size of its authorized capital. If such a difference is not enough, the company is obliged to reduce its authorized capital by the missing amount.
If a decrease in the authorized capital of the company can lead to the fact that its size will become less minimum size of the authorized capital of the company, determined in accordance with this Federal Law, on the date of state registration of the company, the actual value of the share or part of the share in the authorized capital of the company is paid out of the difference between the value of the company's net assets and the specified minimum amount of the company's authorized capital. In this case, the actual value of the share or part of the share in the authorized capital of the company may be paid no earlier than three months from the date of the occurrence of the grounds for such payment. If within the specified period the company has an obligation to pay the actual value of another share or part of a share or other shares or parts of shares owned by several members of the company, the actual value of such shares or parts of shares is paid out of the difference between the value of the company's net assets and the specified minimum amount of its authorized capital in proportion to the size of the shares or parts of the shares owned by the participants of the company.
The company is not entitled to pay the actual value of the share or part of the share in the authorized capital of the company or to issue in kind property of the same value, if at the time of these payments or the issuance of property in kind it meets the signs of insolvency (bankruptcy) in accordance with the federal law on insolvency (bankruptcy) or as a result of these payments or the issuance of property in kind, the indicated signs will appear in the society.
In the cases provided for by Clauses 2 and 6.1 of this Article, if, in accordance with the requirements of this Federal Law, a company is not entitled to pay the actual value of a share in the authorized capital of a company or to issue property in kind of the same value, the company, on the basis of an application to writing, filed no later than within three months from the date of expiration of the period for payment of the actual value of the share by the person whose share has passed to the company, is obliged to restore him as a member of the company and transfer to him the appropriate share in the authorized capital of the company.
The participant wants to sell his share in the authorized capital to a third party. In addition to him, there are three more participants in the company who can use the pre-emptive right to purchase a share. According to the charter, there is a pre-emptive right to purchase a share from the company. Can the company in this situation redeem a share from a participant without waiting for a decision on this issue by other participants?
The Company may exercise its pre-emptive right to purchase a share or part of a share only after other members of the LLC do not exercise this right. At the same time, the company may notify the seller of the share of the desire to redeem it even before the expiration of the pre-emptive right to purchase from the participants in the company.
When a company member sells a share or part of a share in the charter capital of an LLC to a third party, other members of this company enjoy the pre-emptive right to purchase a share (part of a share) at the offer price to a third party or at a price predetermined by the charter of the company in proportion to the size of their shares, unless the charter of the company provides otherwise the procedure for exercising the pre-emptive right to purchase a share or part of a share (clause 2, article 93 of the Civil Code of the Russian Federation, paragraph 1, clause 4, article 21 of Federal Law No. 14-FZ of February 8, 1998 "On Limited Liability Companies" (hereinafter - the Law on OOO)).
The company's charter may also provide for the company's pre-emptive right to purchase a share or part of a share owned by a member of the company at the offer price to a third party or at a price predetermined by the charter, but only if other members of the company have not exercised their pre-emptive right to purchase a share or part shares of a member of the company. At the same time, the exercise by the company of the pre-emptive right to purchase a share or part of a share at a price predetermined by the charter is allowed only on condition that the purchase price by the company of a share or part of a share is not lower than the price established for the participants of the company (paragraph 2, clause 4, article 21 of the LLC Law) .
A participant who intends to sell his share or part of it in the authorized capital of the company to a third party is obliged to notify the other participants and the company itself in writing. To do this, he must send through the company at his own expense an offer addressed to these persons and containing an indication of the price and other conditions of sale.
An offer to sell a share or part of a share in the authorized capital of the company is considered received by all participants at the time it is received by the company. At the same time, it can be accepted by a person who is a member of the company at the time of acceptance, as well as by the company itself.
By general rule LLC participants have the right to exercise the pre-emptive right to purchase a share or part of a share in the authorized capital of the company within 30 days from the date of receipt of the offer by the company, unless the charter of the LLC provides for a longer period (paragraph 2, clause 5, article 21 of the LLC Law). However, this period does not apply to cases where the company's charter provides for the company's pre-emptive right to purchase a share or part of a share. The charter of an LLC must establish the terms for the use of the pre-emptive right to purchase a share or part of a share by the participants in the company and the company (paragraph 3, clause 5, article 21 of the LLC Law).
If the charter does not establish a term for the pre-emptive right to purchase a share in the authorized capital by the company itself, for the possibility of using the pre-emptive right to purchase, a total period of 30 days from the date the company receives the offer will be taken into account (resolution of the Seventeenth Arbitration Court of Appeal dated March 13, 2014 No. 17AP-1111/2014-GK in case No. A71-7611/2013). This follows from paragraph 7 of Art. 21 of the LLC Law, which states that if, within 30 days from the date of receipt of the offer by the company, provided that a longer period is not provided for by the charter of the company, the participants in the LLC or the company itself do not use the pre-emptive right to purchase a share or part of it in the authorized capital of the company offered for sale, including those resulting from the use of the preemptive right to purchase not the entire share or not the entire part of the share, or the refusal of individual participants in the company and the company from the preemptive right to purchase a share or part of a share in the authorized capital of the company, the remaining share or part of the share may be sold to a third party at a price that is not lower than the price established in the offer for the company and its participants, and on the terms that were communicated to the company and its participants, or at a price that is not lower than the price predetermined by the charter.
According to paragraph 6 of Art. 21 of the LLC Law, the pre-emptive right to purchase a share or part of a share in the authorized capital of an LLC from its participant and, if the charter of the LLC provides for the pre-emptive right to purchase a share or part of a share by the company, the company terminates on the day:
- submission of a written application for refusal to use this pre-emptive right;
- expiration of the period of use of this pre-emptive right.
At the same time, the law does not prohibit the company from sending a proposal to use the pre-emptive right to purchase a share or part of a share before the expiration of the period for making a decision on the buyout of the share by other participants in the company. However, the conclusion of the contract is possible only after this expiration of the period. Otherwise, the conclusion of such a transaction will be a violation of the pre-emptive right to purchase a share or part thereof.
In this case, the participant or participants of the company or the company has the right to demand in court that the rights and obligations of the buyer be transferred to them. This is possible within three months from the day they learned about the violation (clause 18, article 21 of the LLC Law).
Option: The maximum size of the participant's share is not limited. The ratio of participants' shares can be changed (cannot be changed).
4.2. Participants contribute ________% (not less than 50%) of their share in the authorized capital at the time of registration of the Company. The remaining _________% of the authorized capital is paid by participants within one year from the date of registration.
4.3. It is not allowed to release a member of the Company from the obligation to make a contribution to the authorized capital of the Company, including by offsetting claims against the Company.
4.4. The number of votes a participant has is directly proportional to his share. The shares owned by the Company are not taken into account when determining the results of voting at the General Meeting of the Company's Members, as well as when distributing the Company's profits and property in the event of its liquidation.
4.5. The relations of participants with the Company and among themselves, as well as other issues arising from the right of a participant to a share in the property of the Company, are regulated by law and this Charter.
4.6. The authorized capital of the Company may be increased at the expense of the Company's property and (or) at the expense of additional contributions from the Company's members and (or) at the expense of contributions from third parties accepted by the Company.
Option: The authorized capital of the Company may be increased only at the expense of the Company's property and (or) at the expense of additional contributions of the Company's members.
4.7.1. The increase in the authorized capital of the company at the expense of its property is carried out by decision of the general meeting of the company's participants, adopted by a majority of at least _______ (at least 2/3) votes of the total number of votes of the company's participants.
The decision to increase the company's charter capital at the expense of the company's property can only be made on the basis of the company's financial statements for the year preceding the year during which such a decision was made.
The amount by which the company's authorized capital is increased at the expense of the company's property must not exceed the difference between the value of the company's net assets and the amount of the company's authorized capital and reserve fund.
When the authorized capital of a company is increased in accordance with this article, the nominal value of the shares of all participants in the company increases proportionally without changing the size of their shares.
4.7.2. The general meeting of the company's participants, by a majority of at least ________ (at least 2/3) votes of the total number of votes of the company's participants, may decide to increase the authorized capital of the company by making additional contributions by the company's participants. Such a decision should determine the total cost of additional contributions, as well as establish a common ratio for all members of the Company between the value of the additional contribution of a member of the Company and the amount by which the nominal value of its share is increased. The specified ratio is established based on the fact that the nominal value of the share of a member of the Company may increase by an amount equal to or less than the value of his additional contribution.
The term for making additional contributions by members of the Company is ____ months.
4.7.3. The General Meeting of Members of the Company may decide to increase its authorized capital based on the application of the member of the Company (statements of the members of the Company) for making an additional contribution and (or) the application of a third party (statements of third parties) for his admission to the Company and making a contribution. Such a decision is made by the members of the Company unanimously.
The application of the participant (participants) of the Company and the application of the third party must indicate the amount and composition of the contribution, the procedure and term for its payment, as well as the amount of the share that the participant of the Company or a third party would like to have in the authorized capital of the Company. The application may also specify other conditions for making contributions and joining the Company.
The introduction of additional contributions by the Company's participants and contributions by third parties must be made no later than within six months from the date of adoption by the general meeting of the Company's participants of the decisions provided for in this paragraph.
4.8. An increase in the authorized capital of the Company is allowed only after its full payment.
4.9. The Company has the right, and in the cases provided for by the Federal Law, is obliged to reduce its authorized capital. The reduction of the authorized capital of the Company may be carried out by reducing the nominal value of the shares of all members of the Company in the authorized capital of the Company and (or) redemption of the shares owned by the Company.
4.10. The company is not entitled to reduce its authorized capital if, as a result of such a decrease, its size becomes less than the minimum amount of the authorized capital, determined in accordance with paragraph 1 of Art. 14 of the Federal Law "On Limited Liability Companies", as of the date of submission of documents for state registration.
4.11. Within 30 (thirty) days from the date of the decision to reduce its charter capital, the Company is obliged to notify in writing about the reduction in the charter capital of the Company and its new amount to all creditors of the Company known to it, as well as to publish in the press, which publishes data on state registration legal entities.
4.12. Reducing the authorized capital of the Company by reducing the nominal value of the shares of all members of the Company must be carried out while maintaining the size of the shares of all members of the Company.
5. ISSUE OF BONDS
5.1. The Company has the right to place bonds and other issue securities in the manner prescribed by the legislation on securities.
Issue of bonds by the Company is allowed after full payment of its authorized capital.
5.2. The bond must have a par value. nominal cost of all bonds issued by the Company should not exceed the size of the authorized capital of the Company and (or) the amount of security provided to the Company for these purposes by third parties. In the absence of collateral provided by third parties, the issue of bonds is allowed not earlier than the third year of the Company's existence and subject to the proper approval of the annual financial statements for two completed financial years. These restrictions do not apply to mortgage-backed bond issues and in other cases established by federal securities laws.
6. RIGHTS AND OBLIGATIONS OF PARTICIPANTS
6.1. The participant is obliged:
6.1.1. Pay for shares in the authorized capital of the Company in the manner, in the amount and within the time limits provided for by the Federal Law and the agreement on the establishment of the Company. Part of the profit is accrued to the participant from the moment of actual payment of 100% of his share in the authorized capital.
6.1.2. Comply with the requirements of the Articles of Association, the terms of the agreement on the establishment of the Company, comply with the decisions of the Company's management bodies adopted within their competence.
6.1.3. Do not disclose confidential information about the activities of the Company.
6.1.4. report immediately to CEO about the inability to pay the declared share in the authorized capital of the Company.
6.1.5. Protect the property of the Society.
6.1.6. Fulfill the obligations assumed in relation to the Company and other participants.
6.1.7. Assist the Company in the implementation of its activities.
6.1.8. Fulfill other additional duties assigned to all members of the Company by decision of the General Meeting of Members of the Company, adopted unanimously. Also perform other additional duties assigned to a certain participant by a decision of the General Meeting of the Company's Participants, adopted by a majority of at least two-thirds of the votes of the total number of votes, provided that the Company's Participant, who is entrusted with such duties, voted for such a decision or gave a written agreement. Additional Responsibilities assigned to a certain member of the Company, in the event of the alienation of his share or part of the share, the acquirer of the share or part of the share is not transferred. Additional obligations may be terminated by a decision of the General Meeting of Members of the Company, adopted by all members of the Company unanimously.
6.1.9. Inform the Company in a timely manner about changes in information about his name or title, place of residence or location, as well as information about his shares in the authorized capital of the Company. If a member of the Company fails to provide information about a change in information about himself, the Company shall not be liable for the losses caused in connection with this.
6.2. The participant has the right:
6.2.1. Participate in the management of the Company's affairs, including by participating in the General Meetings of Participants, in person or through a representative.
6.2.2. Receive information about the activities of the Company and get acquainted with its accounting books and other documentation.
6.2.3. Participate in the distribution of profits.
6.2.4. Elect and be elected to governing bodies and control bodies Society.
6.2.5. Get acquainted with the minutes of the General Meeting and make extracts from them.
6.2.6. To receive, in the event of liquidation of the Company, part of the property remaining after settlements with creditors, or its value.
6.2.7. Appeal to the relevant bodies of the Company actions officials Society.
6.2.8. To make proposals on the agenda, referred to the competence of the General Meeting of Participants.
6.2.9. Exit the Company by alienating a share to the Company with the consent of other members or the Company or regardless of the consent of its other members or the Company, paying him the actual value of his share or issuing him property in kind of the same value with the consent of this member of the Company.
Option: The item is not indicated if clause 8.1 of the Charter does not provide for the right of a participant to withdraw from the Company.
6.2.10. Enjoy the following additional rights:
____________________________________________;
____________________________________________.
Note: Additional rights may be provided for by the charter of the company upon its establishment or granted to the participant (participants) of the company by decision of the general meeting of participants of the company, adopted by all participants of the company unanimously.
6.2.11. Additional rights granted to a certain member of the company, in the event of the alienation of his share or part of the share, do not transfer to the acquirer of the share or part of the share.
6.2.12. Termination or restriction of additional rights granted to all participants in the company is carried out by decision of the general meeting of participants in the company, adopted by all participants in the company unanimously. Termination or restriction of additional rights granted to a certain member of the company is carried out by decision of the general meeting of participants in the company, adopted by a majority of at least two-thirds of the votes of the total number of votes of the participants in the company, provided that the member of the company who owns such additional rights voted for the adoption of such decision or gave written consent.
6.2.13. A member of the company who has been granted additional rights may refuse to exercise the additional rights belonging to him by sending a written notice to the company. From the moment the company receives the said notice, the additional rights of the company's participant cease.
6.3. The number of members of the Society should not exceed fifty.
6.4. Any agreements of the members of the Company aimed at restricting the rights of any other member, in comparison with the rights granted by the current legislation of the Russian Federation, are void.
6.5. The transfer of a share or part of a share in the authorized capital of a company to one or more participants in this company or to third parties is carried out on the basis of a transaction, by way of succession or on another legal basis.
6.6. A member of the Company has the right to sell or otherwise alienate his share or part of the share in the authorized capital of the Company to one or more members of this Company. The consent of other participants of the company or company to make such a transaction is not required.
Option 1: At the same time, the consent of other members of the Company or the Company is required to complete such a transaction.
Option 2: The sale or otherwise alienation of the share or part of the share is prohibited.
6.7. Members of the Company enjoy the pre-emptive right to purchase a share
or part of the share of a member of the Company
(at the offer price to a third party or at a different price from the offer
to a third party and a price predetermined by the Charter of the Company)
in proportion to their shares.
6.8. The Company has a pre-emptive right to purchase a share or part of a share owned by a member of the Company at the offer price to a third party or at a price predetermined by the charter, if other members of the Company have not exercised their said pre-emptive right.
The Company's exercise of the pre-emptive right to purchase a share or part of a share at a price predetermined by the Charter is allowed only on condition that the purchase price by the Company of a share or part of a share is not lower than the price established for the Members of the Company. The specified right of the Company must be exercised on time ___________________________.
Note: The Articles of Association may not provide for the specified pre-emptive right to purchase by the Company a share or part of a share of a member of the Company.
Provisions establishing the pre-emptive right to purchase a share or part of a share in the authorized capital by the company's participants or the company at a price predetermined by the charter, including changing the amount of such a price or the procedure for determining it, may be provided for by the company's charter upon its establishment or when amending the company's charter by decision of the general meeting of participants of the company, adopted by all participants of the company unanimously. The exclusion from the charter of the company of the provisions establishing the pre-emptive right to purchase a share or part of a share in the authorized capital of the company at a price predetermined by the charter is carried out by a decision of the general meeting of participants in the company, adopted by two thirds of the votes of the total number of votes of the participants in the company.
6.9. The purchase price of a share or part of a share when using the pre-emptive right to purchase is set in a fixed amount of money and amounts to __________ (___________) rubles.
Option: Purchase price of a share or part of a share when using
Aleksandrova Svetlana Ninelievna, PhD in Law, 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 participants of an LLC 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.
Changes in the federal law dated 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 press, 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 realization 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 where statutory, - to the legal entity itself the legal possibility of a privileged (before all third parties) acquisition of property (share, part of a 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 general idea: the content of this right is the ability 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 corporate relations. We should agree with the opinion of L.V. Kuznetsova that the preemptive 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 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 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 prior to 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 alienating a share, the transfer of a share or part of it can only be challenged in court by filing a claim with an arbitration court.
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 definition 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 contested 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 necessary legal fact, as a notification of the registering authority on the assignment of a 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 LLC), concluding contracts for the sale of part of the share with the first and second buyers, presented to notaries established documents and 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 alienating 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 that carries out state registration of 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 contract for the sale of a share, the obligation of the seller, as a general rule, is considered fulfilled at the time of notarization of the transfer of the share, and the expiration 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.
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 has sent a notice, then the absence of the company member who has 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 intent 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 of all participants in the company established by the charter in terms of the possibility for one participant in the company to receive 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 cash in an amount sufficient to pay the plaintiffs 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 there are no legal grounds for satisfying the claim in terms of recovery in favor of the plaintiffs 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
Treaty trust management the 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, obtaining the specified consents of the participants in the company entailed the corresponding legal implications for the subsequent receipt by the heirs of the rights of the company's participants, 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 participant of the company to his heirs is not presented.
