The partners of an LLC hold shares and therefore own them. In principle, they are free to sell, sell, pledge or pass them on to their heirs.
We will present in this article the rules relating to the mission: it must respect a certain number of steps to be valid. Selling your shares in a limited liability company is not an insignificant act, but involves the completion of many formalities.
Here is an exhaustive list of the steps to follow to sell your shares in an LLC.
Transfer to a third party: obtaining a license
Transfer between partners or parents
The formalities of the transfer
The consequences of the sale
UNDERSTANDING THE TRANSFER OF SOCIAL PARTS TO THE LLC
First, it should be noted that only shares corresponding to a capital contribution fully paid by the partner may be sold.
The assignment regime varies depending on the acquirer, which can be:
a spouse, descending and growing.
It is important to distinguish to whom the assignment is made, but also to understand the consequences that the transfer of shares may have.
- ASSIGNMENT TO A THIRD PARTY: OBTAINING A CERTIFICATION
The transfer of shares to a third party requires a certain procedure and in particular the consent of the majority of the partners.
The approval procedure
The approval process begins with the notification of the assignment project by the partner affecting the community of other partners. It is also possible that the buyer of the shares presents this notification.
This notification can be made by registered letter with acknowledgment of receipt (LRAR) or served by a bailiff.
Within eight days of the notification of the transfer proposed to the shareholders, the manager of the SARL must convene the general meeting of shareholders to decide on the proposed transfer. It is also possible that all partners (condition of unanimity) consent directly to the assignment in the deed of assignment itself, in which case the meeting of the General Assembly is not necessary (the notification of the project remains , on the other hand, compulsory).
If no GA is held within three months of notification of the proposed transfer, the assignment is free. This is called a “tacit agreement”.
The approval vote
There are two general assemblies to hold:
The holding of the Ordinary General Meeting: allows the shareholders to approve the proposed transfer by a majority representing at least half of the totality of the shares of the company.
If the managing authority approves the transfer, its decision is either notified to the transferor by the supervisor of the remote surveillance, or delivered against signature or against receipt.
If the MA refuses the assignment, its decision must also be notified to the assignor by registered letter or delivered against payment or against receipt. The transferor can then force his co-partners to buy his shares, to buy them by a third party or by the company.
The holding of an extraordinary general meeting: either on the occasion of the same general meeting, the simplest solution, or at the meeting of a special meeting, to vote the statutory modification of the distribution of the shares, consequence of the transfer of the actions. Even if the sale took place without the approval of an AG (free assignment or unanimous agreement of the partners directly on the deed of assignment), this statutory amendment of the EGM is mandatory. The decision of the EGM is taken if at least a quarter of the partners are present or represented and a majority representing at least two-thirds of the partners present or represented is reached.
The consequences of accreditation
A report of the EGM having modified the statutes, as well as an updated copy of the statutes dated and certified by the legal representative, must be deposited at the registry of the commercial court of the place of the registered office of the SARL for registration.
The deposit costs 19,27 € by correspondence or 18,38 € TTC at the counter.
- THE TRANSFER OF SOCIAL ACTIONS TO A CLIENT OR AN ASSOCIATES
Transfer to a spouse, heir, ascendant or descendant
In an LLC, the transfer of shares to a spouse, an ascendant, a descendant or an heir is free. No approval procedure is required. It is said that the assignment is free.
It is possible, however, that the bylaws of the LLC provide for an approval clause. In this case, if approval is necessary, it will be necessary to refer to the procedure described above.
Transfer to a partner of the SARL
Just like transferring shares to a loved one:
transfer between partners is free,
the articles of association may provide for an approval clause so as not to upset the balance of rights and powers of the LLC’s partners.
- FORMALITIES OF THE TRANSFER OF SOCIAL SHARES IN A SARL
The act of assignment
The deed of transfer of the shares can be done either by notarial act (but it is expensive), or by private act. It must be made in as many copies as there are parties (transferor, assignee) plus possibly a copy for the deposit at the head office of the SARL, and another intended to receive taxes.
The notice of assignment to be valid must contain the following information:
the surnames, forenames and addresses of the transferor and the profession and nationality of the assignee
number and designation of units sold
accurate and detailed identification of the company
the price of the sale and the method of payment of the price
proof of approval (if applicable)
Registration of the mission
The deed of assignment must be registered with the Service des Impôts des Entreprises (SIE) at the domicile of the assignee or the assignor. A registration fee payment of 3% of the transfer price is required, after deducting the value of each € 23,000 share divided by the total number of shares.
At least the registration fee is 25 €. This price is in principle borne by the transferee, but nothing prevents the transferor from participating.
Then, the deed of assignment registered with the SIE must be deposited in the registry of the commercial court of the place of spring of the company.
The opposability of the assignment
The opposability of an assignment of shares of a limited liability company must meet a number of conditions, depending on whether the opposability of the company or third parties is at stake.
Opposition to society
First, there is the opposability to the business which requires that one of the following formalities be fulfilled:
deposit of the deed of assignment at the registered office of the company against delivery by the manager of a certificate of this deposit,
acceptance of the assignment by the company through its director in an authentic deed,
service by bailiff of the deed of assignment
Opposition to third parties
Then, with regard to third-party effectiveness, in addition to one of the above-mentioned formalities, the assignment must also be published in the Trade and Companies Register (RCS) and two originals of the deed of assignment must be filed with of the registry. of the Commercial Court, attached to the RCS.
If these formalities are not fulfilled, the assignment will not be opposable. Thus, on the side of the company, the transferor retains the quality of partner and opposability to third parties, the buyer can not claim to a third party that he became a partner, the transferor thus remains bound by rights and obligations in as a partner.
- THE CONSEQUENCES OF THE TRANSFER OF SOCIAL SHARES IN A SARL
The transfer of shares has a number of consequences not only for the transferor and the transferee, but also for the company itself.
Consequences on the assignor and the assignee
The partner who sold his shares loses partner status. He will no longer hold these shares and will lose all rights associated with partner status. In addition, he will no longer have to answer for the debts of the company.
The buyer of the shares thus becomes associated with the company. Acquiring partner status involves a number of tax consequences, but also risks related to debt and social security.
Consequences on society
The sale of shares has a significant impact on society. In fact, the sale changes the ownership conditions of the share capital. A modification of the statutes is then necessary.
The amendment of the statutes of an LLC requires the meeting of the extraordinary general meeting which is the only competent for such an amendment. The decision of the extraordinary general meeting and a copy of the amended statutes must be sent to the registry.
The transfer of the shares of an LLC is strictly regulated by law, it must respect a specific formalism and be defined by law. Therefore, the procedure must be followed by letter and the formalities must be respected in order not to see the mission canceled.
In addition, it is advisable to be accompanied by a specialist in case of transfer of shares. He can advise you on the negotiations to be undertaken, the price of the transfer, the various guarantees to ask. He will write a personalized mission statement adapted to your situation. He takes care of the administrative procedures to accomplish by protecting you from any error. Finally, it can intervene in case of litigation that may occur after the transfer.