LLC - one of the most convenient legal forms of a legal entity. But, due to the presence of conflicting legislative regulation of activities, the founders are faced with a lot of problems. One of them is the division of the LLC share in the liquidation or reorganization of the enterprise.
Sale according to the legislation of the Russian Federation
This procedure is carried out without amending the charter documents. But the sales certificate will have to be certified. First you need to notify all participants in the LLC. By law, they have a pre-emptive right to purchase shares. But if the liquidation procedure is underway, then this item is of no interest.
The next step is to collect all the documents for the transaction. First of all - the agreement on the establishment of the company, which spelled out the actual share of the LLC participant. If the founder was married at the time of purchase, then the consent of the spouse (s) for the operation (or a notarized document of divorce) will be required. You should also provide information about the buyer and a notarial refusal of all participants from the preemptive right to acquire assets. The last paragraph is necessary for the liquidation procedure. All these papers should be provided to a notary, who will certify them, and then forward them to the tax authority for the public address. The term of registration of the transaction is one month.
If the shares of LLC participants are sold as a result of liquidation, the presence of a notary is not required at the conclusion of the transaction. The buyer can independently register all changes. To begin with, a new member of the company must write an application for membership. Then make a contribution to the authorized capital (within 10-15 days). In parallel, you can carry out the procedure for CEO change on a new face. At the next stage, all former members of the LLC must write an application to leave the company, on the basis of which the redistribution of shares in favor of the remaining persons takes place. The procedure must be registered within 10-15 days.
Which option to choose?
It all depends on the purpose of re-registration. If the company is liquidated, then the transaction can be completed without a notary. The procedure will take less time. You do not have to collect a large package of documents. This option is especially effective if all members of the community leave it at the same time. In other cases, the fact of the transfer of ownership is better notarized.
Reorganization by joining
In fact, this procedure involves a certain scheme of interaction of successors between several existing legal entities. At the same time, the affiliated organization ceases to operate and is liquidated, while the other continues to function with new rights and obligations. This procedure helps “consolidate the business” - to unite several subsidiaries. But the merger and merger implies a liquidation procedure followed by dividing the assets.
Member exit order
The co-owner writes a letter of resignation from the LLC to the CEO. From this day on, its part of the assets is transferred to the company automatically. After that, the company should:
1. Within three months to pay the withdrawing participant the market value of his share of the LLC, which is calculated by the formula:
DC = NS / UK x ChA, where:
DC - market price;
NS - nominal value of assets;
UK - authorized capital;
ChA - net assets.
2. Within 12 months, find the "owner" for the assets of the withdrawn participant:
- distribute LLC shares among the remaining participants;
- sell them to business co-owners or third parties, unless prohibited by the charter.
If a decision is not made within a year, then part of the assets of the former co-owner must be repaid, and the authorized capital reduced.
It is more expedient to distribute assets within a month after the participant leaves, in order to manage to register a new one. If, based on the results of the transaction, the share in the authorized capital of the participant’s LLC is 20% or more, then this information should be published in the Vestnik (Article 6 of the Federal Law No. 14).
Transaction Registration
Within a month after the participant leaves, it is necessary to make the corresponding changes to the State Register. To do this, provide the following documents:
- Statement of LLC (form P14001).
- Documents confirming the fact of the transfer of part of the assets to the company.
- Protocol on the withdrawal of the participant and the distribution of his share.
When filling out the application P14001, you must specify:
- all changes that have occurred in the company after the person’s exit, that is, to reflect that part of the assets was first transferred to the LLC;
- the size of the share of the participant (in percent);
- nominal value of assets of a retired member.
Such a package of documents is submitted if the share of the withdrawn participant is immediately redistributed between the founders. If this is not possible, then the procedure is stretched into two stages. First, the participant’s exit is drawn up, and then the redistribution of shares.
Assets owned by LLC
In the process of the organization’s life, situations arise when it is necessary to distribute LLC shares among participants. For example, as a result of the sale of part of the assets to a third party, an increase in the size of the authorized capital. Many conflicts arise in the process of liquidation of the organization. The founders are trying to find legal ways to leave the LLC before the procedure.
In accordance with Federal Law 312, part of the property owned by the company is not taken into account when determining the results of voting. The distribution of the LLC share should occur within a year after the participant leaves. Moreover, all founders receive their part, in accordance with their contribution to capital. If the charter prohibits the division of assets between third parties, then they must be distributed among the founders, and then, if necessary, sold to the parties to organizations.
Such procedures must be reflected in the State Register within three months from the actual date of change.
Registration of a transaction in Ukraine
The alienation of the LLC share should be fixed by agreement, and not by decision of the meeting of participants. Only the buyer and seller must sign the documents. Until recently, this procedure was completed without a contract. Shares were formed at the meeting of the founders and transferred to the new participant on the basis of his application. Now the alienation of the LLC share, whether it is sale, assignment or transfer, is possible only on the basis of an agreement. Although the law does not provide for mandatory notarization of a document, in practice the founders often carry it out.
Right transition moment
Legally established two completely different approaches to determining the legal nature of corporate rights. The Civil Code spells out a property right to a share in the capital that can be alienated, and a personal right to participate. That is, after purchasing an asset, a third party does not automatically become a founder. It must be accepted by other members of the LLC. In practice, it often happens that during the voting the participants block the “newcomer”, although he owns most of the property.
The Commercial Code stipulates that corporate law is transferred to the buyer at the time of conclusion of the contract and does not depend on other participants. This interpretation is reflected in court decisions. This theory is very attractive to new members of the LLC, but it carries a lot of dangers for society itself. Third parties may infiltrate the organization beyond the will of the founders. But you can still control the participants.To do this, it is necessary to prescribe in the charter a ban on the alienation of shares to third parties.
Is it possible to distribute shares for free
Art. 24 of the Federal Law "On LLC" indicates that this operation is permissible only if the previous owner of corporate rights paid for it. That is, the former participant either contributed to the treasury in the authorized capital, or compensated for the share in another way. If this does not happen, the assets must be offered for sale. There is an alternative way. Assets can be distributed free of charge by increasing the authorized capital at the expense of the property of the company itself. As a result, all participants increase nominal cost shares without cash injections (Article 18 of the Federal Law No. 14).
Conclusion
If one of the founders decided to leave the company, then part of its assets should be distributed, that is, redeemed. The organization is given a year to draw up documents. If there is a waiver of the LLC share by other participants, then after 12 months it should be paid for by the assets of the company itself.
