Збільшення розміру статутного капіталу ТОВ за рахунок внеску нового учасника

In the modern practice of corporate relations, the question of the possibility of increasing the size of the authorized capital of a limited liability company, in particular, by accepting a new member with an additional contribution, remains problematic. On the one hand, such a mechanism can be a convenient way to attract investments and replenish the capital at its disposal. On the other handon the other hand, the acceptance of a new member with an independent contribution causes a redistribution of the shares of already existing members of the company and leads to their reduction, in connection with which such a mechanism is quite often used in practice to seize control over the company and commit illegal actions regarding the alienation of property belonging to the company. Such an ambiguous situation is facilitated by the insufficiently clear position of Ukrainian legislation in regulating the specified issues.

In accordance with the sixth part of Article 144 of the Civil Code of Ukraine, an increase in the authorized capital of a limited liability company is allowed after all its participants make contributions in full. The procedure for making additional contributions is established by law and the company’s charter.

In accordance with the second part of Article 51 of the Law of Ukraine “On Economic Societies”, changes in the value of property contributed as a contribution and additional contributions of participants do not affect the size of their share in the authorized capital specified in the founding documents of the company, unless otherwise provided by the founding documents. Article 53 of the Law of Ukraine “On Business Companies” contains an exhaustive list of grounds for the transfer of a share (part thereof) of a member of a limited liability company to another person: a member of a limited liability company has the right to sell or otherwise assign his share (part thereof) in the authorized capital to one or more members of this society. Alienation by a member of a limited liability company of his share (part thereof) to third parties is allowed, unless otherwise established by the company’s charter.

In accordance with Clause 10 Part 4 of Art. 17 of the Law of Ukraine “On State Registration of Legal Entities, Individual Entrepreneurs and Public Organizations” for state registration of changes to information about a legal entity contained in the Unified State Register, including changes to the founding documents of a legal entity related to the change of the founders (participants) of the legal entity, the following is submitted: a copy of the original (notarized copy) of the decision of the authorized management body of the legal entity on the withdrawal from the founders (participants) and/or the statement of the natural person on the withdrawal from the founders (participants), and/or the contract , another document on the transfer or transfer of the founder’s (participant’s) share in the authorized (compounded) capital (share fund) of a legal entity, and/or the decision of the authorized management body of the legal entity on forced exclusion from the founders (participants) of the legal entity or a photocopy of the death certificate of a natural person, a court decision to recognize a natural person as missing. Based on the systematic analysis of the above norms of the Civil Code of Ukraine, the Law of Ukraine “On Business Partnerships”, the Law of Ukraine “On State Registration of Legal Entities, Individual Entrepreneurs and Public Organizations”, we come to the conclusion that the legislation provides for a procedure for changing the composition of participants partnership, including for the purpose of increasing the share capital of the partnership, only in a way when one of the participants of the limited liability partnership in one way or another transfers his share or part of it to a third party in order to so that it could join the already existing members of the society. After that, existing participants can increase the size of the company’s authorized capital by making additional contributions of participants, while, unless otherwise determined by the statute, such additional contributions should not affect the size of the share of each of these participants in the company’s authorized capital. As we can see, such a procedure can cause significant difficulties in practice. Thus, when an interested investor appears who wants to invest funds in the company’s activities in exchange for a share in its authorized capital, it is first necessary to accept such a person as a member of the company, alienating him the share (or part thereof) of an already existing member of the company. After that, existing participants can increase the size of the company’s authorized capital by making additional contributions of participants, while, unless otherwise determined by the statute, such additional contributions should not affect the size of the share of each of these participants in the company’s authorized capital. As we can see, such a procedure can cause significant difficulties in practice. Thus, when an interested investor appears who wants to invest funds in the company’s activities in exchange for a share in its authorized capital, it is first necessary to accept such a person as a member of the company, alienating him the share (or part thereof) of an already existing member of the company. After that, existing participants can increase the size of the company’s authorized capital by making additional contributions of participants, while, unless otherwise determined by the statute, such additional contributions should not affect the size of the share of each of these participants in the company’s authorized capital. As we can see, such a procedure can cause significant difficulties in practice. Thus, when an interested investor appears who wants to invest funds in the company’s activities in exchange for a share in its authorized capital, it is first necessary to accept such a person as a member of the company, alienating him the share (or part thereof) of an already existing member of the company. this procedure can cause significant difficulties in practice. Thus, when an interested investor appears who wants to invest funds in the company’s activities in exchange for a share in its authorized capital, it is first necessary to accept such a person as a member of the company, alienating him the share (or part thereof) of an already existing member of the company. this procedure can cause significant difficulties in practice. Thus, when an interested investor appears who wants to invest funds in the company’s activities in exchange for a share in its authorized capital, it is first necessary to accept such a person as a member of the company, alienating him the share (or part thereof) of an already existing member of the company.

Next, it is necessary to increase the authorized capital of the company by making additional contributions of participants. Given the legal requirement that such additional contributions should not affect the size of the participant’s share, accordingly, all participants, together with the original investor, must make additional contributions in proportion to their existing shares in order to maintain their size. However, in the event that the rest of the participants do not intend to contribute additional funds to increase their share, the increase in the authorized capital of the company in the presence of the initiative of only one participant becomes virtually impossible. In practice, the members of the company often neglect this order, considering the fact that there is no direct ban on increasing the authorized capital by including a new member and contributing funds to the authorized capital due to the increase in the authorized capital. A negative result of this method of attracting additional funds may be that due to the contribution of a new participant, a significant reduction in the shares of already existing participants may occur without their knowledge, if the latter for one reason or another did not participate in the general meeting and were not informed about the agenda of the general meeting meetings In connection with the above, it is considered expedient to include a condition in the company’s charter, according to which changes in the value of the property contributed as a contribution and additional contributions of participants may affect the size of their share in the company’s authorized capital. At the same time, in order to provide additional guarantees and protect the rights of the founders of the company, it is necessary to provide, for example, a larger number of votes necessary for the general meeting of the company to adopt a decision on accepting new members.