Transferring a stake in an LLC – a member of a limited liability company has the right to sell or otherwise cede its share (its part) in the share capital to one or more members of this company. Specialists of the law firm AGTL with legal accompaniment of business registration are ready to develop and offer the best options for transferring the stake in the LLC, both notarized transactions, and such options for the transfer of shares that will not provide, according to the law, the notary form of the transaction, i.e. will not require the personal presence of the parties to the transaction, as well as other interested parties (spouses, persons with the preferential right to buy, etc.) at the notary. and to fully support the conduct and registration of such changes.
Privacy and the security of the entrusted documents;
Error insurance and guarantee of compliance with the terms of the transaction;
impeccably prepared package of documents in the shortest possible time with minimal cost.
Transactions on the purchase and sale of corporate rights (shares, shares in the share capital) have become a fairly common way of acquiring or getting rid of the business (part of it). In this way, the buyer acquires some control over the company and, accordingly, its assets. But in order to successfully carry out an operation to alienate corporate rights, it is necessary to know and take into account the peculiarities of its implementation and design
The content of corporate rights and relations is defined by Article 167 of the Economic Code of Ukraine. According to it, corporate rights are the rights of a person whose share is determined in the share capital (property) of an economic organization. These include the authority of that person to participate in the management of an economic organization, the receipt of a certain share of profits (dividends) and assets if liquidated in accordance with the law, and other powers provided by him and the statutes.
Corporate relationships mean relationships that arise, change and cease regarding corporate rights. At the same time, ownership of the latter is not considered to be an enterprise. However, the law may impose restrictions on some individuals regarding the ownership and/or exercise of corporate rights. The content of corporate rights constitutes a set of managerial and property rights. Management rights are:
To take part in the management of the affairs of society;
To receive information about the activities of the society by a member of the society;
Leaving society in due course.
To take part in the formation of the company’s share capital;
Manage your corporate rights.
I have all been provided with parts of the property in the event of a withdrawal from society;
Dividends;
To receive property and funds at the liquidation of society.
The right of co-owners to dispose of their part of corporate rights in common share ownership is established by the rules of Articles 361-363 of the Civil Code of Ukraine. At the same time, it is necessary to respect the preferential right to buy a share in the right of common share ownership. This right before others to buy it at the price declared for sale and on other equal terms (except for the sale from public tenders) is granted by law to other co-owners.
In this regard, the seller of the share in the right of common share ownership is obliged in writing to inform other co-owners of the intention to sell their part, specifying the price and other conditions. If other co-owners have waived the preferential right of purchase or do not realize it in relation to real estate within one month, relative to movable property – within ten days of receiving the message, the seller has the right to sell his share to another person.
If there are several co-owners who wish to acquire a share in the right of common partial property, its seller has the right to choose the buyer. When selling a share in the right of common share property in violation of the preferential right of purchase, the interested co-owner can sue for transfer of the rights and responsibilities of the buyer. At the same time, he is obliged to deposit a sum of money into the court’s escrow account at the same time as filing a claim, which the buyer of the share must pay under the contract. It should be noted that these requirements apply to the statute of the year.
A significant nuance in the pre-eminent right to buy a share in the common shareholding is that the law does not allow the right to transfer it to another co-owner.
As for the moment when the share in the common ownership right to the buyer of the contract is shifted, the following should be taken into account. This share goes to the purchaser under the contract from the moment of its conclusion, unless otherwise established by the agreement of the parties. If a share under the contract, which is subject to notary certificate and/or state registration, is excluded, it is transferred to the acquirer after the actions are carried out.
In preparation for a corporate rights sale transaction, several important aspects should be taken into account, which must be reviewed before a final decision is made on its conclusion. First of all, it is necessary to take into account the existence of antitrust restrictions provided by the Law on Protection of Economic Competition.
According to him, in order to prevent monopolization of commodity markets, abuse of monopoly (dominant) position, restriction of competition, the bodies of the Antitrust Committee of Ukraine exercise state control over the concentration of subjects of the farm.
In our case, concentration is a direct or indirect acquisition, acquisition of property in other way or receipt of shares (shares, shares) in management, which ensures the achievement of either exceeding 25 or 50% of the votes in the highest management body of the relevant business entity.
Therefore, depending on the specifics of the transaction (the size of the assets and the volume of sales of each party), permission from the AMCU authorities may be required. They provide business entities with preliminary conclusions about concentration, according to their statement.
It is possible that, in advance of the analysis of the situation, the parties will be able to limit themselves to obtaining a preliminary opinion in the form of a letter, a recommendation that permission for the transaction is not required.
For violation of antitrust laws there is a liability in the form of a fine, the size of which can reach 10% of the annual income of the company.
Therefore, it is desirable to develop a corporate scheme of the transaction in advance in such a way as to avoid antitrust violations.
The process of reissuing corporate rights, especially if it is a stock, requires a special approach. Here you need to take into account the special procedure of their accounting, storage and circulation.
In addition, the sale of shares is carried out through a licensed subject of professional activity in the securities market (securities trader).
The process of buying and selling requires specific preparatory measures. First of all, you need to determine the value of corporate rights, which are the subject of the transaction. Their price is contractual, but it can vary depending on the type of corporate rights and expectations of the buyer.
In this regard, in the first stage of the transaction, experts recommend the buyer to collect information about the company, study the available documents and his history of activity. Now information about the acquired business can be gleaned from a variety of sources.
It is also worth paying attention to the points that can play a decisive role in the fate of the transaction and significantly affect its price, namely:
The history of the company’s establishment.
The availability of permits for the main activities it conducts (licenses, patents, etc.);
The availability of legal documents for real estate (including land) on the company’s balance sheet;
The ratio of payables to receivables;
The presence of burdens on the company’s assets;
Contractual risks (unfulfilled contracts; recognized in court, but unpaid penalties, etc.).
To draw a qualified opinion on the real financial condition of the enterprise, the corporate rights of which are acquired, it is desirable to involve an auditor (auditing firm).
Another important factor that can influence the value of acquired corporate rights is the company’s business reputation among partners.
The next mandatory step in preparation for the transaction is for the company’s authorized body to decide whether to sell corporate rights. Which body has the power to make this decision will depend on the organizational and legal form of the enterprise. The relevant decision on the sale must be documented.
The contract for the sale of corporate rights is simple writing. At the same time, domestic legislation does not require its mandatory notary certificate, except in such cases:
If one of the parties insists on his notary certificate;
If at least one of the parties to the contract is an individual.
This is due to the fact that in the procedure of registration of changes in the statute, which is mandatory in such situations, it will be necessary to present to the state registration authority a notarized copy of the contract of sale. The notary will certify it with the participation of an individual only if the contract itself is notarized.
Selling corporate rights is a fairly specific transaction, so drawing up a text of the contract involves a special approach. This includes all significant (necessary for this type of transaction) terms.
It is recommended that the conditions for:
The moment of the transfer of ownership;
Payment orders
The timing of all necessary legal actions (meeting of authorized participants, registration of changes to the founding documents, etc.);
The order of reception-transfer of corporate rights.
Measures to ensure compliance with the terms of the corporate contract should not be overlooked. It is not superfluous to provide for the payment of a penalty (fine) for failure to comply with an action, the attraction of guarantors, deposit and other measures provided by the law. It is worth carefully checking the powers of the persons who will sign the contract of sale, as well as:
Take into account the statutory right of the company’s founders to preferential acquisition of a stake. To pre-empt possible conflicts for the future, the buyer of corporate rights is advised to obtain from each of the participants a written waiver of the preferential right to purchase shares sold by other participants;
If the seller of corporate rights is an individual, the buyer must obtain written consent to the conclusion of the contract of sale from the spouse of the seller, in order to avoid the risk of invalidation of the transaction in the context of Part 2 of Article 65 of the Family Code of Ukraine;
In the above cases, obtain the permission of the Antitrust Committee;
The owner of a stake in a limited company has the right to alienate it only if he has made a full contribution to the share capital.
We will advise you, help you organize business, choose a tax system, and if necessary – accompany the process of organizing your business on legal, accounting and tax issues. And believe me, your money will certainly come back to you.
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