A change in the membership of a Limited Liability Company (hereinafter referred to as LLC) can be carried out in several ways. So, there are the following ways to change the composition: an LLC member can submit statement of withdrawal from the membership, a new participant can be accepted by making an additional contribution to the authorized fund with the consent of the existing participants, an unscrupulous participant can be excluded from the LLC in court, a penalty can be levied on a share in the authorized fund, an heir can enter into the ownership rights of a share in the authorized fund of the LLC instead of a deceased participant. However, all of these methods provide only limited variability, so by increasing the authorized capital of an LLC, a new participant can be introduced, but by reducing the authorized capital of an LLC, an existing participant cannot be withdrawn. The most universal mechanism for changing the composition of participants is the mechanism for buying and selling a share in the authorized fund of an LLC. With the help of this mechanism, you can either increase the number of participants to the maximum number provided for by law, or reduce it to one participant.
Only the paid share in the authorized fund of the LLC is subject to alienation. What does it mean? The contribution corresponding to the share being sold must be fully contributed to the authorized capital. In Belarusian LLC companies, as a rule, money is the deposit. This means that it is necessary to study an extract from the settlement account of LLC, which would confirm the deposit of the corresponding amount by the founder, whose share is being alienated. Why is this important? A transaction for the sale of an unpaid share may be declared invalid.
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Belarusian corporate legislation contains a high degree of dispositivity on many issues related to the sale of LLC. So, the charter may contain a requirement for mandatory notarization of the transaction. In this case, a transaction for the alienation of a share made in simple written form (as a general rule) will be considered invalid. Therefore, it is necessary to carefully study the charter of the LLC, even if you are sure that the charter in the LLC is the most standard.
You need to get spouse's consent for the sale of a share acquired in marriage. It is often possible to meet the opinion that such consent is not necessary, since the share is not property, but represents a property right. Nevertheless, if such a condition is provided for by the charter of the LLC, then its fulfillment is necessary. Consent, unless otherwise provided by the charter of the LLC, can be given in simple written form.
The participants of the LLC and the LLC itself have a preferential right to acquire a participant's share on the terms proposed by them. Therefore, initially it is necessary to notify the other participants and the LLC itself of its intention to sell its share to a third party. Such notification must be delivered by courier under the signature of an authorized person or sent by registered mail with a notification of delivery. The notification must contain the terms of the proposed transaction: price, terms, payment terms. The deadline for responding to an offer to exercise a preferential right is set out in the charter, but cannot exceed 30 days. The waiver of the preemptive right must be made in writing.
What should I do if one of the participants wishes to take advantage of the preferential right to purchase my share? If the participant has decided to exercise the pre-emptive right in compliance with all legal norms, then it is illegal to prevent such a transaction. However, it should be remembered that the terms of the transaction in any case are dictated by the seller and he has the right to refuse it before the conclusion of the contract.
The decision to buy out the share by the LLC itself or to refuse such a buyout is made by the general meeting of the LLC participants. In this case, the cost of the share (part of the share) is paid at the expense of the LLC itself, the purchase and sale agreement is signed on behalf of the LLC by its head. Subsequently, the share repurchased by the LLC must be either distributed among other LLC participants within a year in proportion to their shares in the authorized fund, or sold in compliance with the rights of pre-emptive redemption. It should be understood that if there is one participant in the LLC, then the LLC will not have the right to acquire a share.
For an LLC with a single participant, this step can be skipped.
If all the above-described formalities are met, the parties may proceed to sign LLC share purchase agreement. The necessary conditions of such an agreement will be: subject, price, payment terms, liability of the parties. The price and payment terms must match the terms offered to the "old" participants in the notification (see Step 4).
As already mentioned, the contract for the purchase and sale of a share in the authorized fund of an LLC can be concluded in simple written form, unless otherwise provided by the charter. When signing a transaction, it is necessary to check the credentials of the persons signing the contract. Documents confirming the authority may be a power of attorney, a contract with the director. The identity of the seller (buyer) is confirmed by an identity document.
For LLC, a new participant becomes a participant from the moment the relevant notification is provided with a copy of the contract attached. Sometimes this step is neglected, however, if the director of an LLC (ODO) avoids steps to register a change in the composition of the founders, then the fact of providing notification and documents is essential.
For an LLC with a single participant, it is sufficient to issue the corresponding decisions of the sole participant on the sale of the share.
After holding extraordinary meetings with former and new participants and having received notification of a change in the composition of the founders (for an LLC with a single participant, registration of the corresponding decisions of the sole participant on actions after the purchase of all shares of LLC). The director of the LLC is obliged to make changes and additions to the charter of the LLC within 2 months by registering them.
To do this, he or a trustee of the LLC, in the presence of the new founder, provides to the registration authority:
- application for state registration of amendments and additions with the necessary appendices;
- the charter of LLC signed by the founders in duplicate and on disk (we have specially developed two different charters: one for LLC with a single participant who acquired the shares of the remaining participants; the other for an LLC with several participants, one of which acquired a share in the authorized fund);
- payment document confirming payment of state duty;
- a document confirming the applicant's authority.
The tax authorities, the FSZN and the bank must be sent an information letter with a copy of the registered in connection with the change of the founders of the charter. Thus, we update the information about the membership of the LLC used by these organizations in their activities.