The increase in the authorized capital of the company (LLC). Options (ways) to increase the authorized capital. Due to the property of the company, due to the contributions of participants and third parties. Necessary decisions (protocols), other documents.
To form the authorized capital (UK) of a company at the stage of its creation is a simple matter.
It is much more difficult for participants in a company when, in the process of its activity, a need arises to increase its authorized capital. Most societies do not face the need to change the size of their assets. Therefore, for many lawyers, procedures for increasing the capital seem complex and obscure.
In today's article, we tried to systematize information on ways to increase the authorized capital, presenting it in a visual form.
The Law on LLC names three possible sources of increasing the authorized capital:
1) property of the company;
2) new contributions of participants;
3) contributions of third parties (not members of the company) with the proviso that this is not prohibited by the charter.
Consider each option schematically.
For the model we take a certain LLC “Firma” with an authorized capital of 10,000 rubles, consisting of three participants - citizens “A”, “B” and “C” with the sizes of 20% (2,000 rubles), 40% (4 000 rubles) and 40% (4 000 rubles), respectively.
1) The authorized capital is expanded at the expense of property.
The general meeting of participants of LLC Firma decided to increase the authorized capital by using a laptop on the balance sheet of the Company valued at 6,000 rubles. To approve such a decision, 2/3 of the total number of votes is enough. Thus, if “B” were against, the consent of participants “A” and “B” would be sufficient - provided that the charter of the Company did not establish a larger number of votes when voting on this issue.
Before making a decision, the participants analyzed the company's financial statements for the previous year, since the increase should not exceed the difference in the value of the company's net assets and the amount of the authorized capital and the company's reserve fund.
As a result of the decision, the authorized capital increased to 16,000 rubles. (changed by 6,000 rubles.) The nominal value of the shares of all participants increased by 2,000 rubles. The size of the shares of participants in this version of the increase does not change.
From the point of view of design, this is the easiest option, since its implementation does not require changing the ratio of the shares of participants, recounting their size and proportions. An application for amendments to the Charter must be submitted by the Company no later than a month from the date of the decision.
2) The expansion of the Criminal Code through additional investments of participants.
This option is more complicated. Following the logic, two subspecies can be distinguished in it (although there is no such clear separation directly in the law).
2.1) an increase in the UK, in which each participant makes a new investment in the UK.
In this case, the initiative comes from Firma LLC represented by the governing body - the General Meeting (quorum again at least 2/3). By a decision, it is necessary to provide for the total value of all contributions made and the same ratio for each of the participants between the value of the contribution and the amount of increase in the nominal value of the share. The proportion is formulated taking into account the fact that the nominal value of a share of a participant in a company cannot increase by more than the amount equal to the value of the contribution made.
At the same time, the contribution of each participant should not exceed part of the total value of deposits proportional to the size of the share of this participant in the authorized capital.
The size of the shares in this case does not change, only the nominal value changes.
Two months are given for actual contributions.
On the example of our model LLC "Firma":
The decision of the general meeting determines the total amount of deposits - 6,000 rubles.
Participant "A" must contribute 1200 rubles. Participants "B" and "C" - 2400 rubles each.
The size of the shares continues to remain 20%, 40% and 40%, the nominal value of the shares is changing: for “A” - 3,200 rubles., For “B” - 6,400 rubles., For “C” - 6,400 rubles.
2.2) The increase in the capital, in which contributions are made by individual participants.
There are cases when only one (or several) participants have the opportunity / desire to make an additional contribution to the CM.
A willing participant sends a statement to the Company stating the size and composition of the deposit, the procedure and term for making it, as well as the size of the share that the company participant would like to have in the Criminal Code.
There should be unanimity in the decision to increase the criminal code based on such a statement. It is also necessary to record conclusions on the increase in the nominal value of the participant’s share and, if necessary, a decision on changing the size of the shares.
The nominal value of the share of the participant making a contribution may increase no more than by its amount of the contribution.
Participant “A” turned to the Company with a statement of readiness to make an additional contribution to the Criminal Code in the amount of 2,000 rubles. By unanimous decision of the general meeting, the application was approved, the Criminal Code was decided to be increased by 2,000 rubles to 12,000 rubles, and the size of the shares was decided to be reviewed. Since the nominal value of the shares of participants “A”, “B” and “C” becomes equal to 4,000 rubles, the size of the share of each of the participants becomes equal to 1/3.
Let us also consider such an option when “B” and “C” do not object to an increase in the authorized capital due to contribution “A”, but are not ready to revise the size of the shares. In this case, if “A” agrees, the nominal value of its share will be set at 4,000 rubles, but its size will still remain equal to 20%.
3) The expansion of the Criminal Code through third-party deposits.
The procedure for submitting and considering an application is similar to the application of a single participant considered above for making a new contribution. The appearance of third parties in the company should not be prohibited by the charter. The decision is made by the participants unanimously. The decision should reflect the expression of will to accept a third party in the company, determining the size of its share, its nominal value, as well as on changing the size of the shares of the remaining participants.
LLC “Firma” received an offer from a third party “D” - to join the company with an additional contribution to the Criminal Code - 2,000 rubles.
Participants "A", "B", "C" by unanimous decision adopted it as a member, increased their authorized capital to 12,000 rubles.
The size and nominal value of the shares, respectively, changed: “A” 16.7% (2,000 rubles), “B” 33.3% (4,000 rubles), “B” 33.3% (4,000 rubles) , "D" 16.7% (2000 rubles).
The contributions of individual participants, as well as third parties, must be made within six months from the date of the decision.
Within a month from the end of the deadline for making contributions to the general meeting, it is necessary to approve the results: recognize that the increase in the authorized capital has taken place or has not taken place. If any of the indicated deadlines is violated, an increase in the authorized capital is declared invalid.
In theory, everything turns out quite logically. In practice, with the increase in the authorized capital, many questions and disagreements arise, and, accordingly, litigation.
a) Interesting statements of claim were considered by the Arbitration Court of the Novosibirsk Region in case No. 45-5593 / 2014 (the decision was upheld by the Decision of the Seventh AAS dated November 20, 2014). Two participants disputed the decisions of the general meetings of the companies on their acceptance into the company and changes in the size of the authorized capital of the companies and the shares of participants. The court revealed that the plaintiffs did not submit applications for acceptance into the society and making additional contributions, they did not actually make money, as evidenced by the explanations of the plaintiffs, third parties, as well as inaccuracies in the documents. At the same time, the court made several interesting conclusions about the application of the law and clarifications of higher courts by analogy.
b) In case No. A81-5483 / 2014, on the contrary, the share of one of the participants was reduced from 30% to 0.1% by increasing the authorized capital due to the contribution of another participant. The court quashed the decision of the general meeting (Resolution of the Arbitration Court of the West Siberian District of 07/30/2015), because it was adopted with gross violations of the Law "On LLC" and caused the plaintiff who did not participate in the voting losses in the form of a decrease in the share in the authorized capital. At the same time, the court of first instance declared the statute of limitations expired upon the request to declare the decision invalid, but indicated that this decision was not valid, since the subsequent decision of the general meeting was adopted in the absence of the necessary majority regarding the approval of the results on making additional contributions to authorized capital is also not legally binding.
c) Sometimes the court is forced not only to assess the legitimacy of the procedures for increasing the authorized capital, but also its appropriateness. In the judgment in the case No. A50-728 / 2015 of 07/14/2015, the Seventeenth Arbitration Court of Appeal indicated that the real need for special equipment does not characterize the feasibility of satisfying it in such a way as an increase in the charter company, as a result of which the share of one of its participants.
Recommendations and advice may be as follows: if there is a need to increase the authorized capital, it is necessary to observe the procedures and terms established by law as closely as possible. Otherwise, there is a high probability of cancellation of such a decision, especially in the presence of potential interested parties.
The experts of the law firm Vetrov & Partners are ready to advise you on increasing the authorized capital of the company so that you can take advantage of all the advantages in the current situation.
We are confident that a clear and human explanation of the advantages and disadvantages of options in your situation will only lead to the adoption of the right management decisions and will have a positive impact on your business. It will also help protect against incorrect decisions and adverse consequences.
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August 03, 2015
Yana Polish
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