Purchase and sale of corporate rights by prior arrangement + template of a preliminary agreement for the sale and purchase of corporate rights (shares in the authorized capital of LLC)

The purchase and sale of corporate rights is, in fact, the sale of a share in the authorized capital of a company. Such a sale can be carried out immediately by drawing up a contract for the sale of corporate rights (shares in the authorized capital of the company), or you can agree in advance on the sale of such rights by drawing up a preliminary contract. Such a preliminary agreement must necessarily contain the essential terms of the main agreement and reflect the will of the parties to conclude the main agreement in the future. Having concluded a preliminary contract for the sale of corporate rights (shares in the authorized capital), the parties undertake to conclude the main contract in the future.

Corporate rights are the rights of a person whose share is determined in the authorized capital (property) of a business organization, including the right to participate in the management of a business organization, receive a certain share of the profit (dividends) of this organization and assets in the event of liquidation of the latter in accordance with the law, as well as other powers provided by law and statutory documents (part 1 of article 167 of the Economic Code of Ukraine).

The alienation of corporate rights is regulated by the Law of Ukraine "On Limited and Additional Liability Companies".

Article 21 of the Law of Ukraine "On Limited and Additional Liability Companies" defines the conditions for the alienation of a share in the charter capital of a company to other members of the company or third parties. At the same time, this article clearly defines the essential terms of the contract for the sale of corporate rights:

1. A member of the company has the right to alienate his share (part of the share) in the authorized capital of the company for a fee or free of charge to other members of the company or third parties.
2. The charter of the company may establish that the alienation of a part (part of a share) and its provision as a pledge are allowed only with the consent of other participants. The relevant provision may be included in the charter or excluded from it by a unanimous decision of the general meeting of participants, in which all members of the company took part.
3. The participant of the company has the right to alienate his share (part of the share) in the authorized capital only in the part in which it is paid.
4. A participant in a company may establish a requirement for notarization of a transaction for the alienation, pledge of a share of such a participant in the authorized capital of the corresponding company and cancel such a requirement, information about which is entered in the Unified State Register of Legal Entities, Individual Entrepreneurs and Public Formations in the manner prescribed by law. Such a requirement of the participant, as well as the cancellation by the participant of this requirement, are unilateral powers and are subject to notarization.

An agreement according to which the emergence, change or termination of rights and obligations for the alienation of a share in the authorized capital of the company is due to circumstances (for example, the mandatory alienation of such a share no later than one year in the event of the acquisition of the participant’s share by the company itself, part 4 of article 25 of the Law of Ukraine "On companies with limited and additional liability"), is made in writing. The essential terms of such an agreement are the size of the share in the authorized capital of the company being alienated, the price of the agreement, the circumstances causing the onset, change or termination of the rights and obligations of the parties to alienate the share in the authorized capital of the company, the term of the agreement. The company may conclude an agreement according to which the emergence, change or termination of rights and obligations for the alienation of a share in its own authorized capital is due to circumstances only if such a share belongs to the company.

The charter of the company may establish a restriction on the alienation or encumbrance by the company of a share (part of a share) in its own authorized capital. The relevant provision may be included in the charter of the company, amended or excluded from it by a unanimous decision of the general meeting of participants, in which all members of the company took part.

Important: since corporate rights are property, the right of ownership arises from the moment such rights are transferred. This follows from the analysis of the norms of Article 190 of the Civil Code of Ukraine and Art. 334 of the Civil Code of the Russian Federation. Thus, it is important to understand that (1) under a preliminary agreement for the sale of a share in the authorized capital, the ownership of the share will not be transferred in any case and (2) that the very moment of transfer of the share should be stipulated in the contracts.

It should be noted that, in contrast to the contract for the sale of corporate rights (shares in the authorized capital), which provides for state registration of changes in the Unified State Register of Legal Entities, Individuals - Entrepreneurs and Public Formations, a preliminary contract for the sale of copy rights does not provide for any changes in such register.