home Audience 5 Approximate form of a preliminary agreement for the purchase and sale of shares (ready-made business) (prepared by experts of the Garant company). How is a business sale and purchase agreement concluded?

Approximate form of a preliminary agreement for the purchase and sale of shares (ready-made business) (prepared by experts of the Garant company). How is a business sale and purchase agreement concluded?

The institution of buying and selling a business, as a property complex, is relatively new in Russian legislation. The reasons for its occurrence were factors such as the privatization of state and municipal property, as well as global changes in the general economic structure of Russia.

The concept of business can include all types of property - both movable and immovable.

The subject of the agreement is the business as a whole - as a property complex, with the exception of the rights and obligations that the seller of the business does not have the right to transfer to other persons.

Usually, unless otherwise provided by agreement, by standard sample of a purchase and sale agreement for a ready-made business the buyer receives rights to the means of individualization of the seller (his goods, services and works) and to the rights belonging to the seller on the basis of licenses for the right to use means of individualization. By means of individualization we mean a trademark, commercial designation, service mark and other means.

The rights of the seller obtained by him on the basis of a license allowing him to engage in a certain type of activity cannot be transferred to the buyer.

Essential terms business purchase and sale agreements are the cost and composition of the business.

The agreement must be accompanied by a balance sheet, a list of all obligations (if any) indicating creditors, size and timing requirements, and other annexes, depending on the composition of the business, as a property complex (list of equipment, list of buildings, etc.). ).

Agreement for the purchase and sale of a ready-made business is drawn up in simple written form and is considered concluded from the moment of state registration of the agreement. Failure to comply with the simple written form of the agreement entails its invalidity.

Before the state registration of the contract, the buyer receives the right to dispose of the business to the extent required to achieve the necessary economic goals.

As a general rule, unless otherwise provided by the contract, ownership of the business passes to the new owner and is subject to state registration after the business is transferred to him. The moment of business transfer is considered to be the day the buyer and seller sign the transfer deed.

Business purchase and sale agreement is remunerative, consensual and reciprocal.

Structure and content of a standard sample business purchase and sale agreement

For more information about Purchase and Sale Agreements, see the following pages.

One of the fastest and most effective ways to start a business is to purchase an existing enterprise. Purchasing a turnkey company is a sure way to avoid problems with preparing and organizing a new business.

To purchase an existing enterprise, it is necessary to conclude a business purchase and sale agreement. This contract provides the opportunity to choose the type of legal entity, the most favorable location, determine the scope of work, and also take advantage of an already established network of counterparties.

Regulatory framework for preparing the sale of a business

Relations related to the right of property and its protection from illegal attacks are subject to regulation through the following basic legal acts:

Chapter 2, and in particular Art. 35, Constitution of the Russian Federation.
Other normative acts (RLA) designed to protect people's property (Codes, orders, decrees).

At the same time, the main problem is the overall regulation of transactions for the acquisition and alienation of businesses by a large number of legal acts. Thus, the purchase and sale of a company becomes a rather complex financial procedure.

Is it possible to sell an individual entrepreneur?

Separately, it is worth considering cases of business transfer from a private person. Based on the fact that an individual entrepreneur is a legal entity, the sale of an individual entrepreneur is not legally possible. All property, as well as other rights (for example, copyrights) belong to the entrepreneur himself as a citizen.

In this case, it is actually possible to transfer a working system with an already formed client base, established relationships with suppliers and all the equipment necessary for work.

The procedure for preparing and concluding a transaction

To transfer a business, the owner must go through several stages:

Evaluation of the business system being sold. The best option is a preliminary market analysis and independent assessment of the level of competitiveness of the business.
Preparation of a detailed description of the proposal. This approach will help highlight the main aspects of the activity and will allow them to be more advantageously presented to customers.
In the case of an individual entrepreneur, alienation of all commercial real estate owned by him. If the entrepreneur does not have his own real estate, there is a need to enter into new agreements with landlords.
Alienation of all movable property. The best way for the seller is to sell on behalf of an individual entrepreneur, in which case the tax required to pay will be 6% of the cost if the alienation is carried out on behalf of an individual. individuals will have to pay personal income tax of 13%.
Implementation of intellectual property rights (For example, Brand, slogan, logo, database) that is, copyright.
Preparation and further conclusion of the contract.

A standard sales contract is concluded in writing; it does not require certification from a notary, but a state license is required. registration. The main conditions for the conclusion are the composition of the business being sold and its value. The property is considered transferred into the possession of the buyer after signing the acceptance and transfer certificate.

If the individual entrepreneur owns real estate, then the most profitable method of transfer will be the transfer of the business as a property complex used for business activities.

Selling methods

The alienation of an enterprise can be carried out in many ways. The owner of the company can transfer his business either completely, losing any right to dispose of such property, or partially. For example, transferring equipment into the possession of another person or selling a certain part or interest in the enterprise.

Fully

The procedure for the alienation of enterprises is regulated by norms 559-566 of the Civil Code of the Russian Federation. These provisions govern the actions that the buyer and seller take during the transaction. The specifics of such an acquisition are associated with certain nuances that affect the legal execution of the sales agreement.

The process of concluding an alienation agreement, as well as drawing up and signing papers, is determined by the following points:

Notification of all shareholders or participants of the intention to sell the enterprise.
Receiving a written document of consent or refusal from each shareholder.
Resolving disagreements and obtaining further consent from all participants.
Signing the contract.
Preparation of documentation in the process of receiving money and transfer of ownership to the new owner.
State registration.
Creating a protocol that takes into account new circumstances.

Actions that must be performed before concluding a contract at the initial stage:

make an inventory - describe in detail all the property that is to be transferred;
draw up accounting documents reflecting the financial condition;
if necessary, carry out an audit that will confirm information about the legality of the enterprise’s operation;
identify all debtors and creditors.

In addition, when concluding an agreement on the sale of a company, you need to carefully study and check the details of the seller and the acquirer, as well as the personal data of the parties.

The presence of errors in the contract or inconsistencies with the documentation may cause the contract to be invalidated.

Share or controlling interest

A separate type of transaction for the purchase of a company is the alienation of a share in the organization. In such cases, it is not the acquisition of a new business that takes place, but the joining of participants for further common activities. In order for one of the owners to transfer the rights to a share in the company and authorized capital, it is necessary to obtain permission from the remaining co-founders. Such consent must be formalized by approval at a general meeting of partners.

When selling a stake in a company, the parties enter into a sales agreement, which must provide for:

the exact nominal size of the part being sold as a percentage or in money (cost);
the manner in which the cost will be determined;
the procedure for the new owner to take over;
availability of permission from other participants to sell the share.

To introduce a new owner, after purchasing a share, into the number of co-founders, amendments are required to the constituent documentation, as well as to the Unified State Register of Legal Entities. Therefore, it is necessary to register changes with the Federal Tax Service in accordance with the general rules of this procedure, Chapter VI of Law 129-FZ.

After the conclusion of the contract, all changes in the shares of the founders, as well as a change in the owner of one of them, will be reflected in the registered documentation. The new owner acquires rights to the common property based on the size of his share.

Equipment, technologies and property complex

This method of selling property involves the transfer not only of the property itself, but also of other assets that are used in the activity:

In addition, the complex can include:

property rights;
intellectual property rights (brand, slogan, logo, databases, proven production technologies);
accounts receivable.

However, not all types of rights can be betrayed. Thus, it is impossible to transfer the right to engage in those types of activities that are permitted only upon receipt of the appropriate license. When purchasing a company through reorganization, if its work is subject to licensing, the new owner must go through the procedure again to obtain permitting documentation.

It is also impossible to sell tax debts, since the Tax Code of the Russian Federation does not provide for the transfer of tax obligations.

Cash settlements

The company can be sold:

at a price confirmed by accounting documentation, that is, the book value of assets and liabilities;
market price. This sales method is common among companies that generate large income, well-known and prestigious companies. Since these enterprises are profitable to purchase, their price increases based on the well-known name or brand of product;
auction value, the price is determined based on the results of the auction (auction);

The company's price is reflected in the sales contract and is the main condition for concluding the contract. In the absence of a value clause, the agreement is considered not concluded.

Payment terms after signing the contract

The transfer of a ready-made company is implemented by using one of the following schemes:

The classic option is a one-time, full payment of the value of the company specified in the contract. For a person selling his company, this scheme is the best, since after the alienation he immediately receives all the money from the sale of assets.
Installment option - phased payment by the buyer of the cost of the enterprise in equal shares. This payment method is most beneficial in cases where the company is experiencing any problems, or when customer demand is low.

Selling a business in installments

The alienation of an enterprise through installments can be formalized through several changes in the constituent documentation. Thus, the buyer is given part of the purchased property after the next payment is made. Full registration of the company under the new owner occurs only after the final payment of the agreement amount.

Another option for purchasing in installments is pledging shares. The encumbrance is removed after the last payment of the amount under the contract.

Nuances of drafting

The main feature of a transaction for the alienation of an enterprise is the possibility of the parties concluding a preliminary contract. Such an agreement is necessary so that the buyer can check the status of the acquired company, while the seller will be given time to collect all the necessary documentation.

In addition, such agreements stipulate a condition under which, in the event of further refusal of one of the parties to the agreement to sign the main contract, he will be obliged to pay a penalty.

Typically, a preliminary contract for the acquisition of an organization contains the following conditions:

A list of reasons on which the purchaser may refuse a further purchase without paying any fines.
Time frame for making the final decision on acquisition or refusal.
A list of problems that, if detected, may reduce the value of the company.

After the expiration of the preliminary contract, the parties draw up an agreement on the purchase and sale of the business.

The contract for the sale of an enterprise is drawn up in accordance with the norms of civil legislation. The clauses of the contract must go in the following order:

Information about the seller and buyer (personal data).
Indication of the place and time of compilation.
Description of the company (subject of the transaction).
Duration of the contract. Upon acceptance of the company's acceptance certificate, the term of the main agreement ends.
Description of the rights and obligations assigned to the parties for the period of validity of the act of implementation.
Enterprise price calculation.
Responsibility imposed on the parties for violation of any requirements of the transaction.
Methods of unilateral termination of a contract and resolution of conflict by judicial method.
Explanations of situations in which violation of the conditions is possible.
Additional agreements.
Details and signatures.

Documents, reporting and transaction registration

The implementation of the enterprise involves the transfer of the following documentation:

To sell the complex, you need to make an inventory of the company, prepare accounting documentation, obtain an audit report, and also obtain certificates from the BTI to evaluate the property owned. Information about debts and obligations is required.

The alienation agreement of an enterprise must be registered in the Unified State Register of Legal Entities. Only after this the transaction will be considered completed.

An application for registration is submitted by both the acquirer and the seller. If one of them evades registration, it can be initiated through the court.

To carry out this procedure, you need to submit the following package of documents:

Statement from the parties or proxies.
Receipt for payment for the services of the registration authority (for individuals 2000 rubles, for companies 22 thousand).
Personal documents of the parties.
Property rights papers.

The fact of business transfer must be recorded before registration begins. An exception may be cases where the parties themselves have agreed on a different procedure. The transfer deed contains information about the composition of the business, data on its shortcomings, and copies of creditor notifications about the alienation. The act is prepared at the expense of the seller, that is, preparation costs are not included in the balance sheet. A certificate of business ownership can be obtained in 10 days.

Advice from a lawyer on selling an enterprise as a whole or individual commercial property of an entrepreneur can be found below.

The initial purchase and sale agreement is a very important stage of the transaction. The conclusion of this agreement creates a set of obligations that the Seller and the Buyer undertake voluntarily.

The subject of the Preliminary Purchase and Sale Agreement is the conclusion of the Main Agreement within a certain period.

There is a certain form of the Preliminary Agreement, which is regulated by Art. 429 of the Civil Code of the Russian Federation. Failure to comply with the form of the contract entails its nullity.

As a rule, at the time of signing the Preliminary Purchase and Sale Agreement, the Buyer transfers to the Seller a deposit, the amount of which is agreed upon in advance. One of the main tasks for counterparties to a transaction is to minimize the risks that determine the fate of the deposit. The most popular way to “freeze” this amount of funds is safekeeping, which is offered by a business broker free of charge, unlike commercial banks.

Responsible storage of funds is secured by an act between the Seller and the Business Broker.

After concluding the Preliminary Sale and Purchase AgreementSalesman undertakes the following obligations:

· Remove this property from sale

· Do not change the cost of the Object

· Conclude the Main Sales and Purchase Agreement with the counterparty under the Preliminary Agreement

Buyer undertakes:

· Purchase the Property at the price specified in the contract

· Purchase the Object within the period specified in the contract

· Maintain confidentiality about the sale (if this is regulated by the contract)

Between the signing of the Preliminary and Main Sale and Purchase Agreements, the parties to the transaction undertake to conduct an inventory of tangible assets and hold a meeting with the lessor in order to sign the lease agreement.

1. INVENTORY OF ASSETS WHEN PURCHASING A READY BUSINESS

The performance and condition of material assets are checked at the Facility.

The brokerage company, with the help of the business seller, prepares a list of property that is transferred under the purchase and sale agreement.

Important! Often not all property belongs to the Seller of the business. You need to understand what equipment/furniture belongs to the lessor and will be transferred under the lease agreement.

By describing assets as specifically as possible, we minimize the risks of replacing them with cheaper, similar models/brands. Also, it is necessary to calculate the exact amount of property being transferred.

In many areas of business, tangible assets play a key role (for example, a production line in production or a forklift in a warehouse rental business).

In this case, a business broker will help the parties to maximize the security of the transaction and avoid misunderstandings through personal testimony, special annexes to the contract, applying a nameplate, etc.

2. MEETING WITH THE LESSOR WHEN PURCHASING A READY BUSINESS

Landlord– an individual or legal entity that provides property to the Tenant for a certain (usually monthly) fee for a certain period.

The duration of the agreement is agreed upon in advance and included in the rental agreement.

An employee of a business brokerage company will help you:

· Find out about any outstanding rent and utility bills

· Examine the title documents for the premises

· Order an extract from the Unified State Register of Real Estate

· Check the tenant's right to rent out the premises in case of sublease

· obtain the Lessor’s consent to conclude a new contract and hold a meeting with the owner or his representative

· agree on the terms of the lease agreement and much more.

It is better to plan the signing of the lease agreement on the same day as the conclusion of the Main Sale and Purchase Agreement!

3. BASIC AGREEMENT FOR PURCHASE AND SALE OF READY BUSINESS

The last stage of the transaction is the conclusion of the Sale and Purchase Agreement. At the time of signing, the Buyer transfers the remaining funds to the Seller. The Seller “hands over the keys” to the Property.

If the transaction includes the transfer of a legal entity (LLC, etc.), then by law it will be carried out by a notary. In addition to the Main Sale and Purchase Agreement, the parties are required to change the founders and/or the general director within the Company. The value of a legal entity is assessed by its authorized capital. The costs of a notary's work are most often shared between the parties.

Before signing the Basic Agreement, it is important to discuss all the nuances and raise remaining issues.

The list of tangible assets may be changed during the transaction by agreement of the Parties.

Also, the business broker company will help you draw up additional agreements on changing parties to the contract, if necessary.

The goal of Goodwill Brokers is to make the transaction as safe and comfortable as possible. The legal department, heads of sales departments and company managers will be able to advise you on all questions.

There are many options for starting a business, each of which has advantages and disadvantages. One of the most effective and fastest ways to create a new business is a business sale agreement.

Purchasing a ready-made company allows you to avoid difficulties at the stage of preparing constituent documents and registering them with the tax authorities. Within the framework of such an agreement, it is possible to choose the form of a legal entity, a list of types of economic activities, a convenient location and even a ready-made network of counterparties.

The purchase of an existing business is carried out by concluding an agreement between the current owners of the enterprise and one or more persons wishing to purchase the operating company. The subject of the transaction is a specific company that has all the elements and characteristics of a legal entity:

Registration with the Federal Tax Service and entering information into the Unified State Register of Legal Entities;
There is a certificate of OGRN and TIN;
Constituent documents have been registered and governing bodies have been formed;
Has a registered legal address;
There is an authorized capital or the primary issue of securities (shares) has been registered;
The main and additional types of economic activities have been selected.

Note! The list of additional elements of a ready-made company is practically unlimited. It may have current accounts in several banks, licenses to carry out certain types of activities, etc.

The variety of options for ready-made business structures makes transactions for their acquisition an extremely convenient tool for clients who want to begin actual activities as soon as possible. All you need to do for this is to draw up a purchase and sale agreement for an existing business.

Share acquisition price;
Procedure for paying the cost of shares;
Determining the composition of property that is sold together with the enterprise;
The procedure for re-registration of constituent documents;
Time frame for making a decision on changing the composition of the founders;
Deadlines for registering changes with the tax authority.

Note! In a business purchase and sale agreement, there is no need to indicate the specific parameters of the acquired enterprise (availability of accounts, licenses, etc.). These issues are resolved by the buyer at the stage of choosing a possible option for acquiring the company.

The conclusion of an agreement does not automatically transfer rights to the new owners, since all changes must be made through mandatory procedural decisions:

Approve a change in the composition of the founders through a general meeting or a decision of the sole participant;
Approve changes to the constituent documents;
Submit an application to the tax authority to make changes to the Unified State Register of Legal Entities.

Only after completing all of the above actions and receiving an extract from the Unified State Register of Legal Entities with registered changes in the composition of participants, the purchase and sale agreement for a ready-made business is considered implemented.

Required documents

To complete this transaction, both parties are required to provide a number of documents. In relation to the buyer, such documents include:

Personal data of individuals who will be new participants in the enterprise;
Information about companies and their representatives, if the founders include a legal entity.

For a business seller, a set of documents includes:

Changes to the constituent documents of the enterprise, by which new owners are included in the founders;
Minutes of the general meeting or decision of the sole participant;
Application for state registration, certified by a notary;
Receipt of payment of the state fee for registration actions.

Since the sale of ready-made companies is usually carried out by legal or consulting firms, their specialists must have the authority to perform any actions related to the re-registration of rights. Such powers are expressed in a notarized power of attorney.

Note! When selling a business, there is no need to reissue existing licenses, except in cases where the company’s permitting documents are inextricably linked with specific founders.

All documents prepared at various stages of preparation of the transaction must be sent to the tax authority to register changes in the composition of participants. The registration procedure ends with the issuance of the following documents:

An extract from the Unified State Register of Legal Entities, which will contain information about the new owners;
Certified copies of constituent documents with amendments.

After receiving these documents, the new owners can begin to carry out activities with the acquired company.

How to correctly compose and sample

A business purchase and sale agreement is drawn up in simple written form, since the law does not establish additional requirements for its form. Since the acquisition of shelf companies is a complex and time-consuming process, it is necessary to adhere to certain rules when drawing up an agreement.

The text must provide in detail the procedure for transferring shares to new owners. This procedure can be simultaneous or stage-by-stage, when new owners are first introduced into the founders by a general increase in the authorized capital, and then the former owners of the business are excluded and the cost of the shares is paid to them.

If there is a one-time alienation of the rights of the owners, all issues regarding the payment to them of the value of the shares and property of the enterprise must be fixed in the terms of the agreement. The more detail this procedure is described in the text of the agreement, the less likely it is that disputes will arise.

A sample agreement can be found on our website in this article.

Note! In each specific case, the content of the contract will vary greatly due to the specific terms of the transaction.

In order to avoid risks at each stage of purchasing a business, it is worth entrusting the preparation and drafting of the contract to an experienced lawyer with practical experience in carrying out such transactions. As part of the contract for the provision of legal assistance, the specified specialist will quickly and efficiently draw up all the necessary documents and re-register the legal entity under the new owners.

Sale by installments

An operating enterprise with a large volume of assets is acquired;
A company that is just starting to operate is acquired.

To reduce the seller’s risks, the execution of an installment plan may be conditioned by the phased implementation of the contract, when the next payment is made after the completion of a legally significant action (approval of changes to the constituent documents, etc.).

Important! In practice, the sale of a business in installments can be formalized by several changes in the constituent documents, when, after the next payment, a proportional transfer of shares occurs to the new owners. The final registration of the company in the name of the new owners will occur after full payment of the contract amount.

Also, the acquisition of a business in installments can be carried out by pledging shares, which can be withdrawn after full repayment of the amount under the agreement. If the purchase is completed with the help of specialists from a law firm, the buyer can be confident in the legality of each procedural action and the absence of risks of investing in a new business.

If a share is sold

A separate case of business acquisition transactions is the sale of a share of an enterprise. In this case, it is not the purchase of a new company that occurs, but the joining of participants for subsequent joint activities.

Note! To alienate a share in the authorized capital by one of the owners, the consent of the other founders is required. Such permission is formalized by approving the decision at the general meeting of participants.

The share purchase and sale agreement will provide for:

The specific nominal size of the share to be alienated;
The procedure for determining the value of a share;
The procedure for transferring rights to the new owner;
The presence of consent of the remaining participants to the alienation of the share.

The introduction of a new owner after acquiring a share also requires amendments to the constituent documents and the Unified State Register of Legal Entities. To do this, changes are registered with the tax authority according to the general rules of this procedure.

After completing the share purchase transaction, the registered documents will reflect the change in the shares of the founders or the preservation of the size of the shares with a simultaneous change in the owner of one of them. After registering such changes, the new owner simultaneously acquires the right to part of the common property of the enterprise, which corresponds to his share in the authorized capital.