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The question of how to get out of the partnership should be raised even before the start of the partnership business. As statistics show, successful in small business is a rather rare phenomenon. I have not seen exact statistics - how many businesses break up precisely because of an unsuccessful partnership. But even if we assume that this is a part of 90% of failed businesses (and this is world statistics), then their number will be very large. Therefore (I wrote about this) it is so important to decide at the initial stage of the business how the partners will diverge.
When business partners part.
And in this article I want to give some tips on how to get out of a partnership with minimal losses for partners and for.
To begin with, let's look at the cases in which co-owners break up, go out of business, when they want to leave the partnership and have to decide on the division of joint property.
Naturally, when the business went bankrupt, and none of the co-owners wants to continue it. In this case, it is necessary to sell as much as possible all the property of the business - fixed assets, production reserves, leftover materials and components, etc. The proceeds will go towards paying off the debt of the business. Well, the rest should be divided in accordance with the profit sharing agreement between the co-owners. If the proceeds from the sale were not enough to cover the debts of the business, the remaining part of the debt must be divided among the co-owners in proportion to their share of ownership of the business. In the same proportion, all the property remaining after the sale should be divided.
Exactly the same procedure was followed when closing a normally operating business, which the partners decided not to continue, but failed to sell.
In the case of a sale of a small business, the proceeds (perhaps after taxes) are divided among the former partners in accordance with a profit-sharing agreement.
Now let's move on to the most common cases of termination of a partnership - the exit of one of the partners from the business. There can be many reasons for this. I won't even list them. This process is not simple. After all, it is not for nothing that they say that it is quite easy to enter a business, it is difficult to get out of it. And one of the partners needs to leave so that the remaining partners (one or more) can continue the business.
In practice, there are several ways to part with a companion. I will list them in order of preference.
The most painless option for a partner to exit the business.
The most, in my opinion, painless option for business is how to get out of the partnership. The remaining partners (partner) redeem the share of the partner leaving the business. This can be done by the remaining partners for their money. They can do this at the expense of business money, dividing the redeemed share proportionally among themselves. But it doesn't always work out
make painless. First of all, the question of estimating the value of a business on this moment and the value of the share of the exiting co-owner. If this issue is omitted in the partnership agreement, it will be very difficult to resolve the situation that has arisen peacefully.
Most often, such a situation can be resolved only by a lengthy trial, which causes significant material losses to both parties (and one should not forget about the moral side). Therefore, the issue of assessing the value of the business and the process of exiting one of the partners from the business should be most carefully developed and prescribed at the stage of preparation for opening a business. And it is also necessary to prescribe there that the co-owners of the outgoing partner have the pre-emptive right to purchase a share of the business of the outgoing partner.
Sale of the share of the outgoing partner.
If the remaining partners cannot or do not want to buy out the business share of the leaving partner, he can sell it to an outside person. But this issue also needs to be fixed in the partnership agreement. Selling to a third party is fraught with a lot of pitfalls. First of all - the cost of the sold share of the business. It may be obviously overestimated and, having bought this share, will consider his participation in the common business to be much higher than the real one.
Therefore, the cost of the sold share of the business must certainly be agreed with all partners, and not be the business of the seller and the buyer. Great danger for business is fraught with the possible incompatibility of a new partner coming into business with the remaining ones. Rarely, the entry into a small business of a new, practically unknown partner passes without excesses. And it seems to me that it is best to write in the partnership agreement a clause on the impossibility of selling partners their share in a small business to a third party without the consent of all partners to this transaction. If this is not done, the partner leaving the business can carry out such a transaction through the courts.
Dividing the business into parts.
One of the options for one of the partners to leave the business may be to simply divide the business into two or more parts. Those. one business split into two or more small businesses. This option is not suitable for all businesses. For example, if the business is based on a manufacturing process with equipment that cannot be divided. Or even a store with a small space owned by the business, which cannot even be shared by two.
Typically, small businesses from the service sector are subject to the section. For example, two companions for the repair of electronic equipment can disperse almost without damage, dividing instruments, tools and hired personnel. It is even easier to file a divorce for businesses operating in the intellectual field. For example, lawyers, programmers can easily divide their businesses, if necessary.
What to do in case of death of one of the partners.
It is impossible to ignore such a not very pleasant question of leaving the business, how to leave the partnership in connection with the death of one of the partners. In the event of the death of one of the partners, the heirs of the deceased have rights to his part in the business. They can exercise these rights in several ways. They can continue to participate in the activities of the business in accordance with the share of the inheritance received. Those. become full owners of the business. They can sell their share of the business to the remaining partners, as described in the first option.
Some small businesses also provide for the option of making a decision by the heirs of the deceased, depending on the state of the business. For example, if the business is in a bad state, they can simply give up their stake in the business and not be held responsible for it. further fate. There is another aspect of this issue that needs to be identified. Heirs usually inherit the financial component of the business, but do not inherit the right to manage the business. For example, if the deceased companion was a director, this does not mean that his heir receives this post. Many countries have laws governing various aspects inheritance of part of the business. But not in all countries and not for all cases of life situations. Therefore, the partnership agreement must also provide for this situation. After all, there are times when the remaining partners resort to various tricks to reduce the share of heirs.
When to exit a business partner should go to court.
One more, not quite pleasant, situation should be considered. This is a situation when the co-owners of the business could not come to an agreed decision on the exit of one of the partners from the business. Then consideration of the decision how to withdraw from the partnership is transferred to the court. Through the court, co-owners can also seek the withdrawal of one of the partners of their business. This may be the case when they believe that being in business, he brings him losses or other harm.
Litigation usually takes a very long time. During this time, both sides suffer material losses. Judgments may be completely opposite to the expectations of the parties. Therefore, this business partition option should only be used when absolutely necessary. It is better to make concessions to each other and agree among themselves.
Analysts predict that the crisis is just beginning and its peak is this year. This means only one thing - organizations will begin to lose profits and go bankrupt, and business partners will think how to share a business. The division of business between partners is a difficult procedure if the partners do not find a common language and divide the business on their own. The question of "how to divide the business" is acute when one of the partners wants to get out of business. But the question is even more acute when the business does not make a profit and there are outstanding contracts and debts.
Interesting fact: people are willing to pay their lawyers most of their profits, but not to get a share of the business with losses. This is due to the fact that a person is initially negatively disposed to losses. Losses are bad, evil, why should I get them - these and many other questions are asked to each other when they are engaged in dividing a business on their own. As a rule, the division of losses occurs in a more aggressive environment with resentment and disappointment in each other than the division of profits.
How to share a business, if it was not possible to divide the world, then you need to decide which outcome will be favorable for you. You have two options: minimize your losses and give the business away, or take the business and pay off your debts yourself.
The first step is to file a lawsuit in court, and at the same time hire a lawyer with whom to discuss a plan of action. The lawyer will contact your partner or his lawyer. You must immediately decide on the number of meetings that you will hold to achieve the result. If the result is not obtained, then the case will go to court and it will be much more difficult and longer to divide the business. The interesting thing is that some losses over time can turn into some profit, so you should not take drastic actions.
Do not operate with numbers when dividing a business. The division of the business should take place in percentage terms, both in the division of profits and in the division of losses. The best option for dividing the business is 50 to 50, provided that the development of the business began in equal shares. If one of the partners invested more money, effort, time in business, then, of course, he should get most of the remaining profits. Division of business - mathematics at the level of the 5th grade.
How to share a business - do not bargain. Bargaining is not appropriate when dividing a business, because everyone's nerves are on edge and any extra word - a break in "relationships" and negotiations will come to a standstill, and the case will go to court. It is better to entrust the division of business to professionals chosen by each party.
When dividing a business, be polite and kind to your partner. It is always easier to find a common language in a calm environment. The best option for dividing a business is to pay off all debts with common forces and, but already taking into account the mistakes made. This will allow you to maintain friendship and a faithful companion.
INSTRUCTIONS FOR DIVORCE
Let me tell you a secret: there is no actual instruction. The separation process is a mixture of psychology and jurisprudence.
The law is quite indifferent to such a procedure, so you can go into an LLC if it is not prohibited by the charter, in a joint stock company you can only sell shares, and a business registered as an individual entrepreneur is generally extremely difficult to divide in the usual sense of the word.
There is also the most civilized form - this is the transfer of part of the property of the common business to each of the business partners. This can be implemented either by transferring a specific property as a share, or by reorganization, by separating or separating a legal entity, if the business itself is included in it. If the business structure is complex (holding), then we can talk about the transfer of 100% of the shares in specific firms to specific partners, as well as the redistribution of property between these firms.
Standard risks in such a situation: the withdrawal of assets from the companies being divided for their depreciation, the transfer of the client base to other legal entities, the poaching of key employees, falsification financial statements and management accounting to reduce the payable fair value of the share.
Another major problem and headache partners and their lawyers - non-transparency of doing business. The more transparent the business is, the easier it is to share.
It is difficult to divide the business between partners if their shares in the business are not officially registered (registered to employees, nominees, etc.), “gray” schemes are used, assets are not formalized, and accounting records are poorly maintained.
It is believed that some businesses are better not to be divided at all. The exit of one of the partners usually means paying him a substantial amount of money, which a small or medium-sized business simply may not have. If the partner requires part of the fixed assets, then it is likely that the company will have a new competitor, and it, in turn, will lose part of the product line or the range of services provided. In such cases, it is advisable to sell the business to a new partner for one or even all business owners.
BUSINESS "IN STYLE" IP
Small business justifiably sees no point in creating a legal entity (the most common forms of business throughout post-Soviet history are LLCs and JSCs) - it is more expensive both at the creation stage (a legal entity has significantly higher fines, it is more expensive to withdraw profits to an LLC), and the maintenance of the company as a whole: deductions from the salary of the director, a little more reporting, for JSCs it is also legal support for fairly complex corporate procedures (non-compliance is punishable by a fine of 500-700 thousand rubles for the company itself) and maintaining a register of shareholders by a specialized company. But the main advantage is that an individual entrepreneur can freely spend the money he receives for almost any purpose. His task is to pay taxes and various contributions to funds in a timely manner, the rest is his personal funds.
The problem is that the simplicity of working “under an individual entrepreneur” has corresponding disadvantages - this is not a legal entity, which means that “on the shore” you can only negotiate with a partner orally. Individual entrepreneur- this is a person who has been given the right, by virtue of registration as such, to engage in business, and everything that he acquires is his personal property, and debts are his personal debts, regardless of this entrepreneurial status. Yes, and more unpleasant news: the property acquired by an individual entrepreneur during marriage is the joint property of the other spouse. Only a marriage contract can help with this, with which, as usual, few people in Russia get in touch. At least at the business level "in the style" of IP.
As it is easy to guess, it is possible to divide a business registered on an individual entrepreneur only with the consent of the owner-individual entrepreneur. Sometimes receipts, loan agreements, pledges concluded with another partner who has invested in such a business help. But legally effective way it is to divide the business without the consent of such an IP still does not exist. If the business is divided into several IP partners, then there is a risk of being left with what is issued for each of them. It is worse when these are ordinary employees who can go free swimming with all their property, realizing that your “business ship” is sinking. Legal work usually comes down to settling accounts (and between the partners themselves, including in the literal sense), who officially owes whom and how much, and collecting this money from each other. If transactions between such partners were formalized without a clear entrepreneurial goal, then there is a chance to go to a court of general jurisdiction (district and city, as well as magistrates) and quickly get an arrest of property former partner property. In arbitration, getting the same is very, very problematic.
POPULAR THREE O
The most mass form joint business- LLC - provides for several options for its completion: sale of a share; withdrawal from the membership with payment of the actual value of the share; exclusion of a participant; liquidation of the company and distribution of its property.
Share sale
The sale of a share can be both between other members of the company and with third parties, if this is permitted by the company's charter. The latter option is somewhat reminiscent of the recently liquidated legal form of a CJSC. By law, it is impossible to oblige other participants in the company to buy a share. If the sale to third parties is prohibited by the charter, and other members of the company have refused the pre-emptive right to purchase, then the company itself must buy the share. At the same time, the company must do this within 3 months from the date of the request by such a participant, paying him the actual value of the share, calculated on the basis of the financial statements for the last reporting period (the last day of the quarter) preceding the date of filing such a request.
When you or your lawyers prepare the charter and other corporate documents of a future company, it is a good idea to foresee in the event of a sale of a share in the company: whether or not there will be a pre-emptive right to purchase from other participants, the company itself, the share being sold; conditions for the sale of a share at a predetermined price, the conditions for the emergence of the right to such a purchase; the pre-emptive right to purchase a share is exercised in proportion to the existing share or it is possible to buy out the whole share being sold; a participant can freely sell (alienate in another way, for example, by compensation, within the framework of a settlement agreement or donate, etc.) his share to any other participant in the company, or the consent of the other participants is required.
The principle of proportionality was initially “hardwired” into the LLC Law, which means, if, for example, there are three participants in a company with shares of 20%, 30% and 50%, and a participant with a share of 50% plans to sell it, then general rule a participant with 20% has the right to buy 40% of the sold share (that is, 20% of the authorized capital), and a participant with 30% - 60% of the sold share. But the charter can “adjust” this condition to the interests of each of the business owners.
It is important to provide for such conditions with a pre-emptive right at the time of the creation of the company, otherwise, to introduce such conditions after its registration, a unanimous decision of all participants will be required.
The pre-emptive right to purchase a share from other participants is valid for 30 days from the date of receipt of the offer (proposal for sale) by the company itself, and not by each participant individually. The company itself can exercise such a right to purchase (if provided for by the charter) within 7 days from the expiration of the specified 30-day period for the participants in the company or the company receiving a waiver of the pre-emptive right to purchase by all participants. However, these terms can be extended by the charter of the company, but not reduced.
To reduce the possibility of dilution of the shares of the original participants and exclude the appearance of outside partners in the business, it is also possible to include in the charter the right of the company or participants to buy all or part of the sold share at a predetermined price, which, for example, can be determined by an independent appraiser on a date specified in the charter or on on the basis of financial statements, or it will generally be the sale price pre-fixed in the charter. At the same time, the participants can provide that not only they themselves, but also the company, can buy out the share being sold at such a price, after which, within a year, the company must either distribute the share among the remaining participants (which is also very interesting), or sell this share. The charter of a company cannot provide for the simultaneous granting of a pre-emptive right to purchase a share of a company member at the offer price to a third party and a pre-emptive right to purchase a share of a company member at a price predetermined by the charter.
After the introduction of mandatory notarization of contracts for the sale of shares and between company members (before January 1, 2016 this was not required), the number of disputes that could arise after the conclusion of such contracts has decreased: before documents are submitted to the tax office, such a transaction is checked by a notary . If the priority right of the participants or the company is violated, the notary will not certify such a transaction.
Nevertheless, disputes may arise in a situation where the seller of the share sent a proposal for the sale (offer) to the company, but as a result of negotiations, the buyer from the outside brought down the price and is ready to buy at a price lower than that offered to the other participants. Although the buyer and seller may agree to such a reduction, entering into such a transaction would be a clear violation of the pre-emptive right of other participants or the company. In such a situation, it is required to re-send the offer to the company for sale at a new price.
Withdrawal from the membership
A member of an LLC, as a general rule, has the right, without the consent of the company itself and other participants, to withdraw from the company, transferring its share to the company itself, unless this is prohibited by the charter. But you cannot leave a society if there are no more participants left. To withdraw, there is no need to convene a general meeting and adopt any internal documents, except for an order to an accountant to pay the actual value of the share to the withdrawing participant, but even this is a problem for the company itself. At the same time, it is allowed, with the consent of the participant, to give him property of the corresponding value instead of money.
A member of the company writes an application for withdrawal from the company and sends it to the legal address or hands it to the head of the company or other responsible person.
After receiving such an application, the following irreversible consequences arise: the exit is considered completed, and the share at the time of receipt of the application passes to the company itself; it is impossible to withdraw such a statement; former member is deprived of the right to challenge any transactions of the company and can no longer influence its activities in any way; the company is obliged to pay the actual value of the share of the withdrawing participant within 3 months, unless another period is established by the charter.
Please note: the share that has passed to the company may not be reflected in the Unified State Register of Legal Entities if the company has not taken the necessary actions for this.
Calculation and payment of the actual value of the share
The stumbling block is the identification of the size of the actual value of the share (DV), which the company must determine on the basis of accounting data. The actual value of the share is paid at the expense of the difference between the value of the net assets (NA) of the company and the size of its authorized capital (UK). 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 can lead to its size becoming less than 10 thousand rubles, then the payment is made according to the formula DSD = NA - 10 thousand rubles.
Net assets are the book value of all that would be left in a society if it paid off all of its liabilities. The value of net assets is determined as the difference between the amount of assets and liabilities of the organization accepted for calculation, but with the exception of: accounting objects accounted for by the organization on off-balance accounts; accounts receivable of participants for contributions (contributions) to the authorized capital; deferred income recognized by the organization in connection with the receipt of state assistance, as well as in connection with the gratuitous receipt of property.
Judicial practice proceeds from the fact that the actual value of the share of a participant who has submitted an application for withdrawal from an LLC should be determined both taking into account the market value of real estate objects reflected on the company's balance sheet, and taking into account the value of other assets reflected in the company's financial statements. In case of disagreement with the amount of the payment, the withdrawing participant has the right to apply to the arbitration court within 3 years from the date of expiration of the period for such payment established by law or the charter of the company. However, practice shows that delay in such claims leads to the impossibility of recovering anything: companies withdraw assets or naturally they are wasted, and sometimes they initiate their own bankruptcy. In the event of a dispute about the reliability of the financial statements, on the basis of which the actual value of the share of a participant who has withdrawn from the company is determined, such information must be confirmed by tax authorities, an independent examination or other evidence. The expert opinion (an independent appraiser's report) on the value of the share of the withdrawing participant is recognized as sufficient evidence confirming the size of the actual value of the share, but conscious manipulation of the company's management with the financial statements cannot be ruled out, which in the end can even lead to negative net assets. This, in turn, means that there is no need to pay anything to the withdrawing participant. The second method of manipulation is the withdrawal of assets retroactively and the adjustment of financial statements, but this method has a lot of difficulties and limitations and is also illegal.
There are a number of rules for paying the actual value of a share: payment is made in proportion to the size of the share; the actual value is paid in proportion to the part of the share paid by the participant; the company is not entitled to change the procedure for calculating the actual value of the share established by law; if there are signs of bankruptcy, the company does not have the right to pay the actual value of the share, as well as if such signs appear after payment; the company is obliged to restore the rights of the participant and return his share if the former participant submitted an application within 3 months from the date of expiration of the payment period (i.e. after 6 months from the date of filing the application for withdrawal), provided that the company cannot make payment due to the appearance of signs of bankruptcy.
Exclusion of a member
Exclusion from the company is an extreme measure that is applied at the request of the company's participants, whose shares in the aggregate amount to at least 10% of the company's authorized capital, in relation to a participant who grossly violates his obligations or by his actions (inaction) makes the company's activities impossible or significantly complicates it .
The consequences of exclusion are similar to voluntary withdrawal from the list of participants: the excluded participant is paid the actual value of the share, which is paid within 1 year from the date of entry into force of the decision of the arbitration court, which decided to exclude the participant.
LLC liquidation
There is a single procedure for the liquidation of all legal entities on a voluntary basis with slight differences for each type. If the company has a debt, then it must be repaid. If there are not enough funds to pay it off, the property is sold at auction. If the value of the legal entity's property is not enough to settle accounts with creditors, then the liquidator (liquidation commission) must file for bankruptcy.
Practice has shown that shared ownership of property that cannot be used freely and jointly is the basis for mutual claims and the basis for litigation.
PARTING IN A JOINT STOCK COMPANY
Unlike an LLC, exit joint-stock company impossible. Therefore, there are fewer ways to part:
sale of a share;
redemption of JSC shares at the request of a shareholder;
liquidation of JSC and distribution of its property.
From the business side, there is no fundamental difference between the sale of a stake in an LLC and shares in a JSC. In one case, the seller and the buyer go to the notary, in the other - to the registrar. The advantage of the second situation is that the information from the register of shareholders, in contrast to the Unified State Register of Legal Entities, where all owners of shares in an LLC are indicated, is the non-publicity of information from the register of shareholders. Therefore, all the methods and mechanisms that are used by partners before a “divorce” are generally identical. The slight difference is that the joint stock law is more similarly regulated than the LLC law.
Redemption of shares at the request of shareholders
The buyout itself is usually not related to the division of the business, however, it can also be used as a tool to protect against actions of the JSC that are not shared by one of the shareholders, as well as a way to obtain the necessary property, including money, from the JSC itself.
Reorganizations;
Making a major transaction, the subject of which is property, the value of which is more than 50% of the book value of the assets of the JSC;
Amendments and additions to the charter of a joint-stock company (adoption by the general meeting of shareholders of a decision that is the basis for making changes and additions to the charter of the company) or approval of the charter of a joint-stock company in a new edition that restricts their rights;
Adoption by the general meeting of shareholders of a decision on the issue of filing an application for the delisting of shares of the company and (or) issue valuable papers JSC convertible into its shares.
JSC liquidation
The charter of the company must determine the value paid upon liquidation of the joint-stock company (liquidation value) for preferred shares of each type. The liquidation value is determined in a fixed amount of money or as a percentage of the par value of preferred shares; the charter of a JSC may establish a procedure for determining such a value.
The procedure for the liquidation of a joint-stock company differs slightly from the liquidation of an LLC, with the exception of the procedure for the distribution of property between former shareholders:
First of all, payments are made on shares that must be redeemed at the request of the shareholder;
In the second place, payments of accrued but unpaid dividends on preferred shares and the liquidation value of preferred shares determined by the charter of the JSC are made;
In the third place, the distribution of the property of the liquidated JSC between shareholders-owners of ordinary shares and all types of preferred shares is carried out.
CORPORATE AGREEMENT
Since July 1, 2009, a corporate agreement has appeared, and since September 1, 2014, it has become widely used - an important tool for fine-tuning corporate relations, which in LLC is called an agreement on the exercise of the rights of company participants, and in JSC - a shareholder agreement. Under such an agreement, participants (shareholders) undertake to exercise their rights in a certain way and (or) refrain (refuse) from exercising these rights, including voting in a certain way at a general meeting of participants (shareholders) of the company, agreeing on a voting option with other participants, selling a share (shares) at the price determined by this agreement and (or) upon the occurrence of certain circumstances, or refrain (refuse) from the alienation of the share (shares) until the occurrence of certain circumstances, as well as carry out other actions in concert related to the management of the company, with the creation, operation, reorganization and liquidation of society.
The corporate agreement allows in the event of a "divorce" to determine:
1. Under what conditions will the remaining participants vote if a decision is made to split the business, who will CEO and how many times it will be possible to “oblige” to re-elect the same person for this post, prescribe consent to a major deal and its conditions in case of alienation of part of the property complex.
2. Prohibit the alienation of one's share until the occurrence of certain circumstances (achievement of a certain level of profit, revenue, area of constructed or leased facilities, quantitative and qualitative characteristics of objects under management, etc.).
In conjunction with the charter of an LLC or JSC, other corporate documents, a corporate agreement can become a kind of “marriage contract”, which will determine the rules of the game not only during the period of work, but also by the time the business is divided:
Decision-making procedure.
Formulate in detail and fix in corporate documents the procedure for making decisions on all key issues (the procedure for convening meetings, appointing management bodies, concluding and approving transactions). Make life-changing business decisions unanimous.
Preemptive right.
The charter should include the pre-emptive right of participants to acquire a share of the exit and the impossibility of an outsider entering the company.
output property.
It is possible to determine what the participant leaving the company will receive - money or specific property.
Inheritance.
Decide whether to allow heirs into the business or pay them the value of the inherited share.
Liquidation.
Formulate questions, in case of failure to reach agreement on which the company must decide on liquidation and divide the property.
Stanislav Solntsev
managing partner
The division of business is one of the natural stages of its development. With a peaceful separation, partners can maintain their interests. But if they start fighting”, then losses are inevitable on both sides.
When the general director and main founder of the Novosibirsk transport and logistics company went abroad for the New Year's holiday, his contacts with the remaining partners turned out to be difficult. When he returned, he realized why he could not get through to any of them. The partners involved in the operational management of the enterprise very quickly divided the business among themselves. They withdrew from the joint-stock company and withdrew their assets - vehicles. The decision was signed by the deputy general director, who acted as the head during his absence. The company turned into a "dummy", on the balance sheet of which there were several old cars, and in liabilities - considerable loans taken to buy vehicles. On its basis, the former co-founders created their own transport enterprise. The CEO had to go to court, but he was never able to prove that he suffered as a result of the “setup” by the former partners.
One of the banal business truths says: when establishing an enterprise in partnership, think about how you will part with partners. Obviously, the general director of the Novosibirsk enterprise did not take into account such a possibility. He completely trusted the partners, and most of the agreements between the parties were "formalized" in words and not documented.
This company was founded in the late 1990s. At that time, many neophyte businessmen did not think about business ethics and did not know about the existence of civilized management procedures. As domestic entrepreneurs accumulated experience (including experience in breaking up relations between co-owners), it became clear that general business far from eternal.
People and enterprises change so much over time that it is sometimes easier for co-owners to disperse than to continue joint activities. After all, partners can not only develop a different view of doing business, but also develop personal hostility, in which there is no room for mutual trust. If in the first case, peaceful forms of parting are still possible, then in the second, most likely, conflicts cannot be avoided.
Experts recommend performing a number of procedures already at the time of the establishment of the enterprise, so that later it would not be excruciatingly painful when “divorcing” a partner. They should be provided for even in the case when the company initially has one owner - after all, partners may appear later, for example, as heirs or investors.
One of the most important and, most importantly, far-sighted procedures is the introduction of relevant clauses into the constituent documents of the enterprise. Moreover, at the first stage, when all parties are interested in the successful development of business, it is easier to agree on how to behave in the event of a conflict and provide options for a way out of this situation.
“Already in the charter and memorandum of association of companies created jointly, it is possible to provide, for example, all the mechanisms that relate to property rights to shares and assets. The charter can fix the procedure for selling shares, describe the exact procedure for repurchasing a share, and so on, - says Oksana Golubtsova, adviser to the legal bureau DS Law. “Such mechanisms will make it possible to eliminate conflicts in the future or reduce their intensity, since the algorithm of actions in a given situation will be known in advance.” Even if such clauses were not initially provided for in the charter, it makes sense to amend the constituent documents as soon as the first doubts about the honesty of the partners arise.
It is necessary to meticulously indicate the maximum possible number of details, Anton Soroko, an analyst at Finam, advises: “It is necessary to determine the procedure for making all key decisions in the life of the company, whether it is convening a general meeting of shareholders, concluding any transactions or changing the type of ownership. It is also necessary to spell out in detail all the situations related to the sale and purchase of a share of a member of the company, indicate as a prerequisite the consent to the transaction in writing of all the remaining members of the company, if one of the owners decided to withdraw from the capital and sell his share to a third party; predetermine the calculation scheme and so on.
Do not forget about the mechanism for informing partners about the desire to exit the business, says Artem Genkin, executive director of the Aspect consulting group: “Such a mechanism should imply a sufficient time lag during which the “pre-divorce preparation” of the company's assets is carried out. At the same time, it is important to record that all important decisions (and not just the approval of major transactions) during this period are made by partners consensually.” It is even possible to provide for a kind of “brake” in the documents, which in some cases will keep partners from leaving the business or make them think about whether it is worth breaking up if this requires going through a risky procedure.
So, in one of the Moscow companies, a principle has been introduced, which its shareholders call “pull and push”. Any of the partners at any time has the right to offer the other to buy out his share in the company at any percentage of the nominal value. The partner who received such an offer must either sell his share in the company or make a counter offer to the initiator to buy out his share already - at the same price.
And then the partner who initiated the first proposal will no longer have a choice: he is obliged to sell his share. “The meaning of such a scheme is that offers to buy out a partner's share are initially made at a fair, and not artificially low price,” Artem Genkin notes.
Another interesting and effective document may be a shareholder agreement. This is a kind of voluntary gentlemen's agreement that regulates the interaction of partners.
“In Russia, this practice is not yet widespread, so many entrepreneurs continue to conclude transactions in English law, as it protects them more than Russian law,” explains Tamara Kasyanova, managing partner of 2K Audit - Business Consulting/Morison International.
Nevertheless, shareholder agreements are becoming more and more popular among domestic businessmen, especially if the holding structure includes non-resident companies. A certain merit of the document is that it may even contain such clauses that are not taken into account by Russian legislation, and sometimes even completely contradict it.
The mechanism of interaction prescribed in the shareholder agreement may not be reflected in the constituent documents. “Since the shareholder agreement allows you to regulate such issues that may not be directly provided for by existing corporate legislation, it is in this document that the procedure for “divorce” is often prescribed in detail,” says Oksana Golubtsova. “And in the event of litigation, the conditions stipulated by the agreement must be considered and taken into account.”
The institution of shareholder agreements was introduced in July 2009, but since the shareholder agreement is a non-public document, there is no reliable data on how widely it is used. The agreement itself does not need to be notarized or stored with a notary, but since this is not a simple document in structure and essence, it is better to involve lawyers in its execution. However, it must be taken into account that expert opinion, it will cost at least 7 thousand euros. Lawyers can value their work for much more, depending on the type of business, its size, and the complexity of drafting the agreement. And if foreign entrepreneurs participate in the agreement, then it is necessary to involve foreign lawyers in its preparation, whose services are even more expensive.
The business division scheme directly depends on the form of ownership in which a particular company operates. And this should also be taken into account at the very beginning of joint work. It is possible that thoughts about a possible upcoming "divorce" will even affect the choice of the type of company being created - LLC, CJSC or OJSC.
None of these forms of ownership has unequivocal pluses or minuses when dividing a business. But, as usual, the nuances are important, which often determine the line of behavior of parting owners or shareholders. “CJSC shareholders have a chance to receive their initial contribution in kind when dividing the business, while JSCs do not have such an opportunity,” explains Tamara Kasyanova. - At the same time, it is somewhat easier to terminate an LLC than an OJSC. And selling a CJSC and its shares is a little easier and more profitable than selling an LLC.
The division of business in an LLC looks the most ambiguous, although theoretically it is enough for one or several co-owners to write a statement asking them to pay their actual share. Its size is calculated based on the market value of assets. In practice, this can cause a serious blow to the participants who remain in the business, since, according to the law, a co-owner leaving an LLC has the right to the property of this company as well. “He can take all the property - for example, assets - and then the company will be left with nothing. There were cases when enterprises had to curtail their activities altogether,” says Tamara Kasyanova.
A similar fate threatens, first of all, small companies, whose business is often concentrated in one or two enterprises, and not in holding structures, as in big business. So the division of business and the sole company are different concepts. "If a we are talking about the division of one enterprise, then everything is quite clear: there is legislation, specific procedures within which the founders/shareholders must act. There are certain assets and liabilities that are subject to division, - says Oksana Golubtsova. - But when there are many enterprises, the situation is much more complicated, since they may have different forms ownership: somewhere we are talking about obtaining shares, somewhere - about obtaining shares, the composition of assets can be completely different, some of them can be liquid, and some - unprofitable.
As a result, a multi-level procedure for dividing the business is launched, and complex calculations are required to determine the fair value of the share of the business that belongs to the exiting partners.
In theory, the simplest division of business takes place in an open joint-stock company. It is only necessary to reimburse the value of the shares to the outgoing one, and the issue will be closed. He will receive either money (if the remaining partners bought back his securities), or an asset that can be offered for sale on the open market. The business of the enterprise will not suffer, and the rights of all shareholders, including minority shareholders, will be protected.
It is by no means always the owners begin to divide the business because of irresolvable differences. It is not uncommon for a business to be divided due to production needs - for example, it is necessary to carry out tax or financial optimization, structure a business in certain areas, or master the new kind activities. “Such amicable or even planned “divorces” in the format of restructuring are very common - simply, unlike high-profile scandals, they are not always well known,” says Oksana Golubtsova. Such schemes are periodically forced to apply by enterprises that fall under the antimonopoly legislation - for example, network retailers.
In the case of a friendly division, the parties should sit down at the negotiating table and, inviting lawyers whom everyone trusts, prescribe the procedure for the upcoming actions. At the same time, partners figure out how to “divorce” in the most profitable way. “In such cases, sometimes it is better to sell the whole business altogether and share the money,” says Tamara Kasyanova. “But it also happens when it is easier for one of the parties to get their share, for which a market assessment is carried out with the involvement of independent specialists.”
If all these details are already indicated in the constituent documents, the work is greatly facilitated, accelerated and much cheaper for the owners. Audit mechanisms for obtaining data on the real value of the company's assets, as well as a scheme for attracting consultants that will be needed during the execution of the transaction, should also be prescribed right away. Then each side will be extremely clear the price of "divorce" - in literally the words. Considering that parting, like starting a business, costs a lot of money, it would be useful to agree on who will bear the burden of financial costs - for example, you can oblige the initiator of a “divorce” to bear 70% of the financial costs.
If there are initial agreements, then partners in the case of a “divorce” will only need legal support for transactions on separation, transfer of assets, and posting of documents. When the parties trust each other, the process of dividing a business goes quickly - according to experts, it is possible to part amicably in one or two months. It was for such a period in 2006 that the co-owners of Stroymontazh, Sergey Polonsky and Artur Kirilenko, divided their business. The first received Moscow assets, which became Mirax Group, the second - the St. Petersburg part of the structure. It all came down to an exchange of shares without cash settlements.
If the division of business resembles military operations, then the process will become much more complicated and protracted. As a rule, in such situations there is no mutual understanding between the partners and it is extremely difficult for them to agree on something. “The loss of mutual trust is the saddest of all possible causes business section,” comments Artem Genkin.
In a conflict, both sides always suffer. “There is a saying: “When going to war, dig two graves.” Losses in a disputed business division are much more likely than in an amicable parting,” notes Tamara Kasyanova. The business begins to lose momentum, it is more difficult to sell it, as the price decreases, the debt may begin to grow. And if the parties begin to take illegal actions, then an attempt to “divorce” risks dragging on for many years litigation. It is possible that in the end, none of the parties will benefit, and the business itself will simply disappear.
The situation is usually exacerbated by the reluctance of the remaining owners to buy out the share of the shareholder leaving the enterprise. “Moreover, the law is on their side in this matter,” notes Anton Soroko. - And all the same, it is better to solve the problem by coming to a mutual agreement. Because in the absence of real progress towards reaching a compromise, partner teams may start using incorrect techniques.
Artem Genkin refers to such actions a number of actions: withdrawal of funds under fictitious contracts; sale of tangible assets at reduced prices; falsification of decisions of the company's management bodies; manipulations with the register of shareholders (list of participants); initiation of unprofitable business operations for the company (failure of contracts, refusal of counterparties to cooperate, etc.); initiation of inspections of the company by state authorities or unjust decisions of the judicial authorities not in favor of the company; criminal raids; actions against the top management of the company; "black" PR, etc.
Meanwhile, in the event of a conflict development of events, it is necessary to strive for negotiations. Only in the case of a positive attitude, you can do without spending significant funds to protect your business interests. Although, of course, you still have to fork out for auditors, appraisers, lawyers, security specialists, and sometimes professional negotiators - mediators.
The mediation market is just beginning to take shape in Russia, so for the time being these functions are more often taken over by proxies. They can be the same lawyers, auditors, and even "neutral" entrepreneurs who are trusted by the conflicting parties. So, in December last year, Alisher Usmanov had to act as a mediator in resolving a protracted conflict between the shareholders of Norilsk Nickel - Vladimir Potanin and Oleg Deripaska. True, Usmanov cannot be called a completely uninterested party - his company Metalloinvest owns 4% of the shares of Norilsk Nickel.
