Memorandum of association or agreement on the establishment of a company. The constituent agreement as the main regulator of the relations between the founders of a legal entity is determined by the constituent agreement
Since July 1, 2010, the constituent agreement is called the agreement on the establishment of a limited liability company (Article 89 of the Civil Code of the Russian Federation and Article 11 of Law 14-FZ).
What is a memorandum of association
The founding agreement of an LLC (Establishment Agreement) is a document necessary when creating a company with two or more founders, which allows you to formalize in writing the agreements on the creation of the company, the procedure for the distribution of profits and general interaction, the entry and exit of participants, as well as their heirs.
- The constituent agreement is not a constituent document (clause 5 of article 11 of the LLC Law, clause 1 of article 89 of the Civil Code of the Russian Federation). It is an internal corporate agreement regulating relations between the founders.
- If an LLC is created by one person, an incorporation agreement is not required (clause 5, article 11 of the LLC Law, clause 1, article 89 of the Civil Code of the Russian Federation).
Why is this agreement necessary?
- The obligation to conclude a constituent agreement is determined by paragraph 1 of Article 89 of the Civil Code of the Russian Federation.
- The founders of a limited liability company enter into an agreement among themselves on the establishment of a limited liability company, which determines the procedure for their implementation joint activities on the establishment of the company, the size of the authorized capital of the company, the size of their shares in the authorized capital of the company and other established by law about limited liability companies conditions.
- The agreement on the establishment of a limited liability company is concluded in writing.
The founding agreement is presented simultaneously with the charter, however, the role of this agreement is less significant for them than for those legal entities where the founding agreement is the only constituent document.
There are two types of agreement for establishing a company
What does the memorandum of association consist of?
The LLC formation agreement may include the following sections
- Introductory part for the purpose of concluding a contract.
- Name and legal form of the organization.
The legislation does not contain mandatory requirement on inclusion of the name of the company being founded in the agreement. At the same time, this information seems necessary to specify the subject of the agreement. - Subject of activity and location of the LLC.
In the agreement on establishment, you can indicate the planned address of the company's location. - Responsibilities of participants (founders) to create legal entity.
The contract must contain information that allows its parties to be accurately identified (clause 1 of Article 432 of the Civil Code of the Russian Federation). As a rule, the preamble indicates the surname, name and patronymic of the parties - individuals, and the company name of legal entities. In relation to representatives of the parties (if any), it is also necessary to provide the grounds for the emergence of their powers (charter of the company, details of the power of attorney). - The procedure for the formation of property (payment of shares) and the size of the authorized capital.
Information on the timing of payment of shares is mandatory (Clause 5, Article 11 of the LLC Law)
Data on the size of the authorized capital is mandatory (clause 1, article 89 of the Civil Code of the Russian Federation and clause 5, article 11 of the LLC Law). The size of the authorized capital is determined in rubles and cannot be less than 10,000 rubles. (paragraph 2, clause 1, article 14 of the LLC Law). - Conditions on the liability of specific participants (founders) for the obligations of the created legal entity.
- The procedure for distribution of profits and repayment of losses.
- The procedure for managing the affairs of a legal entity.
This information is mandatory (Clause 5, Article 11 of the LLC Law). As a rule, it includes:- the date of the general meeting of founders;
- the procedure for sending the founders a notice of the meeting;
- rules for nominating candidates for elected positions.
- Rights and obligations of participants (founders).
- Liability for breach of contract.
- Conditions and procedure for the withdrawal of participants (founders) from the organization and the admission of new members, including:
- features of the use of the participant’s property transferred to pay for the share in the event of the subsequent withdrawal or expulsion of such a participant from the company (Clause 4 of Article 15 of the LLC Law).
- Procedure for consideration of disputes.
- The procedure for changing and terminating a contract, reorganization and liquidation of a legal entity.
- Other information and documents
This information may include:- provisions on the liability of founders (forfeit, fine, penalty) in case of non-payment of shares in the authorized capital (clause 3 of article 16 of the Law on LLC);
- the procedure for distributing expenses associated with the creation of a company;
- the procedure for a participant to provide compensation to the company in the event of termination of the right to use property before the expiration of the period for which such property was transferred for use to the company as payment for a share (paragraph 2, paragraph 3, article 15 of the LLC Law);
- procedure for resolving disagreements that may arise in the process of establishing a company.
Sample constituent agreement for individuals
Agreement on the establishment of a limited liability company where the founders are individuals
AGREEMENT
on the establishment of the Company with
limited liability
«_____________________________»
(founders are legal entities)
g.___________ "___"__________ ___ g.
In the person of ___________________________________,
(name of organization) (position, full name)
acting___ on the basis of ___________________, and __________________________
(Charter, regulations, power of attorney) (name of organization)
represented by __________________________________________, acting on the basis of
(position, full name)
__________________________, hereinafter referred to as “Founders”,
(Charter, regulations, power of attorney)
agreed to create in accordance with current legislation
Russian Federation Limited Liability Company "__________":
(Name)
1. THE SUBJECT OF THE AGREEMENT.
FOUNDERS AND PROCEDURE FOR THEIR JOINT ACTIVITIES
1.1. Under this Agreement, the Founders create a business company in the form of a limited liability company and undertake to comply with all related requirements of the current legislation of the Russian Federation.
1.2. Limited liability company "____________" (hereinafter referred to as the "Company") is created in accordance with the Civil Code of the Russian Federation, Federal Law dated 02/08/1998 N 14-FZ "On Limited Liability Companies" and other current legislation of the Russian Federation.
1.3. Composition of the founders of the Company:
1) ___________________________________________________________________ (name of legal entity), registered ________________________, OGRN ___________________________
2) _____________________________________________________________________ (name of legal entity), registered __________________________, OGRN _________________________
(certificate of state registration No. ______ from ________________),
TIN ___________________________, account code _____________________________________,
1.4. The responsibilities of the Founders to perform actions related to the establishment of the Company are distributed among them as follows:
1) _____________ undertakes to perform the following actions before “___”__________ ____: _________________________________________________;
2) _____________ undertakes to perform the following actions before “___”__________ ____: _____________________.
1.5. The founders undertake to bear the costs of establishing the Company in proportion to the acquired shares in the authorized capital of the Company in accordance with this Agreement.
1.6. This Agreement determines the procedure for the Founders to carry out joint activities to establish the Company, the size of the authorized capital of the Company, the size and nominal value of the share of each of the Founders of the Company, as well as the size, procedure and terms of payment for such shares in the authorized capital of the Company.
2. NAME AND LOCATION OF THE COMPANY
2.1. Full official name of the Company in Russian:
Limited Liability Company "______________".
Abbreviated name of the Company in Russian: LLC “______________”.
Full official name of the Company in _____________________ language: _____________________.
Abbreviated name of the Company in ________ language: ___________________.
2.2. Location of the Company: _______________________________.
2.3. Mailing address: __________________________________________.
3. SUBJECT AND GOALS OF THE COMPANY’S ACTIVITIES
3.1. The subject and goals of the Company's activities are established in the Company's Charter.
3.2. The Company has the right to perform all actions not prohibited by the current legislation of the Russian Federation. The activities of the Company are not limited to those specified in the Charter.
4. LEGAL STATUS
4.1. The company acquires the rights of a legal entity from the moment of its state registration in established by law Russian Federation is ok.
4.2. In accordance with the current legislation of the Russian Federation, the Company owns separate property, which is accounted for on its independent balance sheet, and can, in its own name, acquire and exercise property and personal non-property rights, perform duties, and be a plaintiff and defendant in court.
Society can have civil rights and perform civil duties necessary to carry out any types of activities not prohibited by federal laws, unless this contradicts the subject and goals of the activity, as determined by the limited Charter of the Company.
4.3. Members of the Company are not liable for its obligations and bear the risk of losses associated with the activities of the Company, within the value of their shares in the authorized capital of the Company.
4.4. The founders of the Company bear joint liability for obligations related to the establishment of the Company and arose before its state registration.
The Company is liable for the obligations of the Founders associated with its establishment only in the event of subsequent approval of their actions General meeting members of the Society. In this case, the amount of liability of the Company in any case cannot exceed one fifth of the paid authorized capital of the Company.
4.5. The company is liable for its obligations with all its property.
4.6. The company is not responsible for the obligations of its participants.
4.7. In the event of insolvency (bankruptcy) of the Company through the fault of its participants or through the fault of other persons who have the right to give instructions binding on the Company or otherwise have the opportunity to determine its actions, these participants or other persons in the event of insufficiency of the Company's property may be assigned subsidiary liability according to his obligations.
4.8. Russian Federation, constituent entities of the Russian Federation and municipalities are not liable for the obligations of the Company, nor is the Company liable for the obligations of the Russian Federation, constituent entities of the Russian Federation and municipalities.
4.9. The Company is obliged to store the following documents at the location of the executive body of the Company:
— Agreement on the establishment of the Company, protocol on the establishment of the Company, the Charter of the Company, as well as changes made to the Charter of the Company and registered in the prescribed manner;
— minutes (minutes) of the meeting of the Founders of the Company, containing the decision to establish the Company, the conclusion of an independent appraiser on approval of the monetary valuation of non-monetary contributions to the authorized capital of the Company, as well as other decisions related to the creation of the Company;
— a document confirming the state registration of the Company;
— documents confirming the Company’s rights to property on its balance sheet;
— internal documents of the Company;
— regulations on branches and representative offices of the Company;
— documents related to the issue of bonds and other issue-grade securities of the Company;
— minutes of General Meetings of the Company’s participants, meetings of the Board of Directors (Supervisory Board) of the Company, the collegial executive body of the Company and audit commission Societies;
— lists of affiliated persons of the Company;
— conclusions of the audit commission (auditor) of the Company, auditor;
— other documents provided for by federal laws and other legal acts of the Russian Federation, the Charter of the Company, internal documents of the Company, decisions of the General Meeting of Participants of the Company, the Board of Directors (Supervisory Board) of the Company and the executive bodies of the Company.
5. AUTHORIZED CAPITAL
5.1. The authorized capital of the Company determines minimum size his property guaranteeing the interests of the Company's creditors.
The authorized capital of the Company is made up of nominal value shares of its participants.
At the time of creation of the Company, its authorized capital is _____ (_________) rubles.
5.2. The size of the shares of the Founders of the Company in its authorized capital and their nominal value upon the establishment of the Company:
1) “_____________” (name of organization) - ___%, nominal value of the share - _________ rubles;
payment for a share in the authorized capital of the Company is made in money (option: securities, other things or property rights or other rights with a monetary value);
2) “_____________” (name of organization) - ____%; the nominal value of the share is _________ rubles;
payment for a share in the authorized capital of the Company is made in money (option: securities, other things or property rights or other rights with a monetary value).
The maximum size of a participant's share is limited and amounts to _____________, which is __% of the authorized capital.
(Option: The maximum size of a participant’s share is not limited.)
The ratio of shares of participants can be changed (cannot be changed).
5.3. At the time of state registration of the Company, its charter must be paid by the Founders by _____%<1>:
1) “____________” (name of the organization) undertakes to pay at least ___% of its share in the authorized capital of the Company by the time of state registration of the Company;
2) “_____________” (name of the organization) undertakes to pay at least ___% of its share in the authorized capital of the Company by the time of state registration of the Company.
5.4. Each Founder of the Company must pay in full his share in the authorized capital of the Company within ____________.
5.5. In case of incomplete payment of a share in the authorized capital of the Company within the period determined in accordance with clause 5.4 of this Agreement, the unpaid part of the share passes to the Company. Such part of the share must be sold by the Company in the manner and within the time limits established by Art. 24 of the Federal Law of 02/08/1998 N 14-FZ “On Limited Liability Companies”.
If the Founder of the Company fails to fulfill the obligation to pay for the share in the authorized capital of the Company within the time limits established in clause 5.4 of this Agreement, he shall pay the Company a fine in the amount of ____% of the amount not paid on time (of the value of the property to be contributed as payment for the share)<2>.
5.6. If the Company's right to use property is terminated before the expiration of the period for which such property was transferred for use to the Company to pay for the share, the Company participant who transferred the property is obliged to provide the Company, upon its request, with monetary compensation equal to the payment for the use of the same property on similar terms. during the remaining period of use of the property. Monetary compensation must be provided at a time within a reasonable time from the moment the Company submits a request for its provision, unless the procedure for provision is different monetary compensation not established by the decision of the General Meeting of Participants of the Company. This decision adopted by the General Meeting of Participants of the Company without taking into account the votes of the participant of the Company who transferred to the Company the right to use property that was terminated early to pay for its share<3>.
In case of failure to provide compensation within the established period, a share or part of a share in the authorized capital of the Company, proportional to the unpaid amount (cost) of compensation, passes to the Company. Such a share (or part of a share) must be sold by the Company in the manner and within the time limits established by Art. 24 of the Federal Law of 02/08/1998 N 14-FZ “On Limited Liability Companies”.
5.7. Property transferred by a member of the Company for use to the Company to pay for his share, in the event of withdrawal or expulsion of such a participant from the Company, remains in the use of the Company for the period for which this property was transferred<4>.
5.8. It is not permitted to release the Founder of the Company from the obligation to pay for a share in the authorized capital of the Company.
5.9. The procedure for changing the size of the authorized capital, as well as the procedure for the participants to transfer their shares to third parties, are determined by the Charter.
6. DISTRIBUTION OF PROFIT OF THE COMPANY
BETWEEN SOCIETY PARTICIPANTS
6.1. The Company has the right to make a decision quarterly (once every six months or once a year) on the distribution of net profit among the members of the Company. The decision on the distribution of part of the Company's profit is made by the General Meeting of Participants of the Company.
6.2. Part of the Company's profit intended for distribution among its participants is distributed in proportion to their shares in the authorized capital of the Company.
6.3. The Company makes a decision on the distribution of its profit among the Company's participants and makes appropriate payments in compliance with the requirements for limiting the distribution of profit between the Company's participants, established by Art. 29 of the Federal Law of 02/08/1998 No. 14-FZ “On Limited Liability Companies”.
7. MANAGEMENT BODIES OF THE COMPANY
7.1. The supreme body of the Society is the General Meeting of Participants of the Society.
The general meeting of the Company's participants may be regular or extraordinary. All members of the Society have the right to attend the General Meeting of Members of the Society, take part in the discussion of agenda items and vote when making decisions.
7.2. The Company provides for the formation of a Board of Directors.
7.3. The sole executive body of the Company is ______________<5>.
7.4. The collegial executive body of the Company is ______________.
7.5. The procedure for formation (election), termination of powers, as well as the competence and procedure for making decisions by the management bodies of the Company are determined by its Charter.
8. EXIT OF A PARTICIPANT OF THE SOCIETY FROM THE SOCIETY
8.1. Provisions on the possibility of a participant leaving the Company, as well as the procedure for such exit, are provided for in the Charter of the Company.
9. CONTROL, ACCOUNTING AND REPORTING
9.1. To exercise their rights to control the activities of the Company, each participant has the right to receive information and certificates on all issues related to the activities of the Company. The forms of control, as well as accounting and reporting, are determined by the Charter of the Company, the current legislation of the Russian Federation, as well as decisions of the General Meeting of Participants.
10. PRIVACY
10.1. Each of the Founders undertakes not to disclose information recognized as confidential in the prescribed manner.
10.2. The transfer of information that is not subject to disclosure to third parties, publication or other disclosure of such information can be carried out only in the manner established by the General Meeting of Participants of the Company.
11. FORCE MAJEURE
11.1. The Founders are exempt from partial or full fulfillment of obligations under this Agreement if the failure to perform was the result of force majeure circumstances that arose after the conclusion of this Agreement as a result of extraordinary events that the Founder could neither foresee nor prevent by reasonable measures. Force majeure circumstances include events that the Founder cannot influence and for the occurrence of which he is not responsible, for example: earthquake, flood, fire, as well as a strike, government regulations or orders of government bodies.
11.2. The Founder, citing force majeure circumstances, is obliged to immediately inform the other Founders about the occurrence of such circumstances in writing, and at the request of the other Founders, an certifying document must be presented.
11.3. The Founder, who is unable to fulfill his obligations under this Agreement due to force majeure circumstances, undertakes to make every effort to compensate for the consequences of failure to fulfill obligations as soon as possible.
12. CONSIDERATION OF DISPUTES
12.1. All disputes and disagreements that may arise in connection with the execution of this Agreement shall be resolved through negotiations between the Founders.
12.2. Disputes and disagreements that are not resolved as a result of negotiations are resolved in court, established by the current legislation of the Russian Federation.
13. FINAL PROVISIONS
13.1. This Agreement comes into force on the date of its signing.
13.2. All changes and additions to this Agreement are made in writing in accordance with the provisions of the current legislation of the Russian Federation.
13.3. In everything that is not provided for in this Agreement, the Founders are guided by the provisions of the current legislation of the Russian Federation.
13.4. This Agreement is drawn up in ________ copies.
SIGNATURES OF THE FOUNDERS
(signature) (full name)
(M.P.<6>)
_______ «_________________» _______________/_______________________
(signature) (full name)
(M.P.<6>)
Note:
In cases where, in accordance with the law, state registration of a business company is allowed without prior payment of three quarters of the authorized capital, the company's participants bear subsidiary liability for its obligations that arose before the full payment of the authorized capital (paragraph 2, paragraph 4, article 66.2 of the Civil Code of the Russian Federation ).
<3>In accordance with paragraph. 2 p. 3 art. 15 of the Federal Law of 02/08/1998 No. 14-FZ “On Limited Liability Companies”, the agreement on the establishment of the company may provide for other methods and a different procedure for the provision by a company participant of compensation for the early termination of the right to use property transferred by him for the use of the company to pay for the share in the charter capital of the company.
<4>In accordance with paragraph 4 of Art. 15 of the Federal Law of 02/08/1998 No. 14-FZ “On Limited Liability Companies”, the agreement on the establishment of the company may provide otherwise.
<5>According to paragraph 3 of Art. 65.3 of the Civil Code of the Russian Federation in a corporation a sole executive body is formed (director, CEO, chairman, etc.). The corporation's charter may provide for the granting of the powers of a sole executive body to several persons acting jointly, or the formation of several sole executive bodies acting independently of each other (paragraph 3, paragraph 1, article 53 of the Civil Code of the Russian Federation). As the sole executive body of a corporation, it can act as individual, and a legal entity.
<6>From 04/07/2015, business companies are not required to have a seal (Federal Law dated 04/06/2015 No. 82-FZ “On Amendments to Certain legislative acts Russian Federation regarding the abolition of the mandatory seal of business companies").
Sample constituent agreement for individuals and LLCs
Agreement on the establishment of a limited liability company where the founders are individuals and legal entities
Concluded on
General meeting of founders,
Protocol No. _________
from "___"_________ ____ g.
Establishment agreement
Limited Liability Companies
«____________________________»
g. _______________ “___”__________ ____ g.
A citizen of Russian Federation _______________________________________,
citizen of the Russian Federation _________________________________________________,
(Full name, passport details, place of residence)
_____________________________________ represented by ___________________________________,
(name of organization, OGRN, INN) (position, full name)
acting on the basis of _____________________________________________, and
(Charter, power of attorney)
_________________________________ represented by _________________________________,
(position, full name)
acting on the basis of _________________________ (Charter, power of attorney), hereinafter referred to as the “Founders”, agreed to create a Limited Liability Company “________________________” in accordance with the current legislation of the Russian Federation.
1. THE SUBJECT OF THE AGREEMENT. FOUNDERS
AND THE PROCEDURE FOR JOINT ACTIVITIES TO ESTABLISH A COMPANY
1.1. Under this Agreement, the Founders undertake to create a limited liability company and comply with all related requirements of the current legislation of the Russian Federation.
1.2. Limited Liability Company "____________" (hereinafter referred to as the "Company") is established in accordance with the Civil Code of the Russian Federation and Federal Law dated 02/08/1998 N 14-FZ "On Limited Liability Companies".
1.3. Composition of the Founders of the Company:
1) citizen of the Russian Federation __________________________________,
2) citizen of the Russian Federation __________________________________,
passport series _______ No. ______________,
issued by ______________________________________________________________,
date of issue "___"__________ ____,
department code ____________ - ______________,
registered _____________________________________________________;
3) ___________________________________________________________________,
(name of the legal entity)
registered _________________________________, OGRN _______________________
(certificate of state registration No. ______ dated ________________),
TIN ___________________________, account code _____________________________________,
address: _____________________________________________;
4) ___________________________________________________________________,
(name of the legal entity)
registered ___________________________, OGRN ___________________________
(certificate of state registration No. ______ dated ________________),
TIN ___________________________, account code _____________________________________,
address: _____________________________________________.
1.4. The responsibilities of the Founders for performing actions related to the establishment of the Company are distributed as follows:
1) _____________ undertakes to perform the following actions before “___”__________ ____: ___________________________________;
2) _____________ undertakes to perform the following actions before “__”__________ ____: _____________________;
3) _____________ undertakes to perform the following actions before “___”__________ ____: _____________________;
4) _____________ undertakes to perform the following actions before “___”__________ ____: _____________________.
1.5. The founders undertake to bear the costs of creating the Company in proportion to the acquired shares in the authorized capital of the Company in accordance with this Agreement.
2. NAME AND LOCATION OF THE COMPANY.
SUBJECT AND GOALS OF THE COMPANY'S ACTIVITIES
2.1. The full corporate name of the Company in Russian is Limited Liability Company “_______________”.
The abbreviated corporate name of the Company in Russian is LLC “______________”.
Full corporate name of the Company on _____________ (on any foreign language or the language of the peoples of the Russian Federation) language - “_______________”, abbreviated company name in _____________ (in any foreign language or language of the peoples of the Russian Federation) language - “_______________”<1>.
2.2. Location of the Company: ___________________________.
2.3. The subject and goals of the Company's activities are specified in detail in the Charter.
2.4. The Company has the right to perform all actions not prohibited by the current legislation of the Russian Federation.
The activities of the Company are not limited to those specified in the Charter. Transactions that go beyond the scope of the statutory activities, but do not contradict the law, are recognized as valid.
3. LEGAL STATUS
3.1. The company acquires the rights of a legal entity from the moment of its state registration.
3.2. The company owns separate property, which is accounted for on its independent balance sheet, and can, in its own name, acquire and exercise property and personal non-property rights, bear responsibilities, and be a plaintiff and defendant in court. In accordance with the current legislation of the Russian Federation, the Company’s property is formed from the contributions of the Founders (participants), including Money received as payment for shares, as well as property produced and acquired by the Company through its economic activities.
3.3. The company is liable for its obligations with all its property.
3.4. The company is not responsible for the obligations of its participants.
3.5. Members of the Company are not liable for its obligations and bear the risk of losses associated with the activities of the Company, within the value of their shares in the authorized capital of the Company.
Participants of the Company who have not fully paid for their shares bear joint liability for the obligations of the Company to the extent of the value of the unpaid portion of their shares in the authorized capital of the Company.
3.6. In the event of insolvency (bankruptcy) of the Company through the fault of its participants or through the fault of other persons who have the right to give instructions binding on the Company or otherwise have the opportunity to determine its actions, these participants or other persons in the event of insufficiency of the Company's property may be assigned subsidiary liability according to his obligations.
4. SIZE OF THE AUTHORIZED CAPITAL OF THE COMPANY, SIZE AND NOMINAL
VALUE OF THE SHARE OF EACH OF THE FOUNDERS OF THE COMPANY
4.1. The authorized capital of the Company is made up of the nominal value of the shares of its participants.
4.2. The size of the authorized capital of the Company at the time of its creation is __________ (______________) rubles<2>.
4.3. The authorized capital of the Company determines the minimum amount of its property, which guarantees the interests of its creditors.
4.4. The size of the share of the Company's participants in the authorized capital:
1) _________________________________________________ — _______________
(Full name of the participant)
(_________________) rubles.
______________________________________________________________ undertakes
pay your share in the authorized capital of the Company in the next
order: ________ rubles - within the period “___”_________ ____ (by the time
state registration of the Company), the remaining ________________ rubles -
within the period before “__”________ ____, in accordance with clause 4.5 of this
Agreement;
2) _________________________________________________ — _______________
(Full name of the participant)
percent (or as a fraction) with a nominal value of ______________________
(________________) rubles.
_________________________________________________ undertakes to pay
its share in the authorized capital of the Company in the following order: _______________
rubles - up to “__”________ ____ (by the time of the state
registration of the Company), the remaining ______________________ rubles - by
“_____”_______ ____, in accordance with clause 4.5 of this Agreement;
3) _____________________________________________________ — ____________
(name of the legal entity)
percent (or in the form of a fraction) with a nominal value of _______________________ (_______________) rubles.
___________________________ undertakes to pay for its share in the authorized capital of the Company in the following order: ____________________________________
rubles - up to "_____"_______ ____ (by the time of state registration of the Company), the remaining ______________________ rubles - up to
"___"__________ _____, in accordance with clause 4.5 of this
Agreement;
4) ____________________________ undertakes to pay for its share in the authorized capital of the Company in the following order: _________________ rubles - within the period before “__”_____ ____. (at the time of state registration of the Company),
the remaining ________________ rubles - by “__”_________ ____, in
in accordance with clause 4.5 of this Agreement.
4.5. Payment for shares in the authorized capital of the Company is made in money (option: securities, other things or property rights or other rights with a monetary value)<3>.
4.6. At the time of state registration of the Company, its authorized capital must be paid for _____%<4>.
4.7. In case of incomplete payment of the share in the authorized capital of the Company within the period established by clause 4.4 of this Agreement, the unpaid part of the share passes to the Company. Such part of the share must be sold by the Company in the manner and within the time limits established by Art. 24 of the Federal Law of 02/08/1998 No. 14-FZ “On Limited Liability Companies”.
4.8. If the Founder fails to fulfill his obligation to pay for his share in the authorized capital of the Company within the time limits established in clause 4.4 of this Agreement, he shall pay the Company a penalty in the amount of ___% of the amount not paid on time (of the value of the property to be contributed as payment for the share) for every day of delay<5>.
4.9. If the Company's right to use property is terminated before the expiration of the period for which such property was transferred for use to the Company to pay for the share, the Founder who transferred the property is obliged to provide the Company, upon its request, with monetary compensation equal to the payment for the use of the same property on similar terms in during the remaining period of use of the property. Monetary compensation must be provided as a lump sum within _____ days from the date the Company submits a request for its provision. A different procedure for providing monetary compensation may be established by a decision of the General Meeting of Participants of the Company. This decision is made by the General Meeting of Members of the Company without taking into account the vote of the member of the Company who transferred to the Company the right to use property that was terminated early to pay for its share.<6>.
4.10. Property transferred by a member of the Company for use to the Company to pay for his share, in the event of withdrawal or expulsion of such a participant from the Company, remains in the use of the Company for the period for which this property was transferred<7>.
5. FORCE MAJEURE
5.1. The Founders are exempt from partial or full fulfillment of obligations under this Agreement if the failure to perform was the result of force majeure circumstances that arose after the conclusion of this Agreement as a result of extraordinary events that the Founder could neither foresee nor prevent by reasonable measures. Force majeure circumstances include events that the Founder cannot influence and for the occurrence of which he is not responsible, for example: earthquake, flood, fire, as well as a strike, government regulations or orders of government bodies.
5.2. The Founder citing force majeure circumstances is obliged to immediately inform the other Founders of the occurrence of such circumstances in writing. At the request of other Founders, an identification document must be presented.
5.3. The Founder, who cannot, due to force majeure circumstances, fulfill his obligations under this Agreement, is obliged to make every effort to compensate for the consequences of failure to fulfill obligations as soon as possible.
6. CONSIDERATION OF DISPUTES
6.1. The founders are obliged to make every effort to resolve through negotiations all disagreements and disputes that may arise in connection with the implementation of this Agreement.
6.2. Disputes and disagreements that cannot be resolved through negotiations are resolved in court in accordance with the current legislation of the Russian Federation.
7. PRIVACY
7.1. Each of the Founders undertakes not to disclose information recognized as confidential in the prescribed manner.
7.2. The transfer of information that is not subject to disclosure to third parties, publication or other disclosure of such information can be carried out only in the manner established by the General Meeting of Participants of the Company.
8. FINAL PROVISIONS
8.1. This Agreement comes into force from the date of its signing by the Founders.
8.2. All changes and additions to this Agreement are made in writing in the manner prescribed by the legislation of the Russian Federation.
8.3. In everything that is not provided for in this Agreement, the Founders are guided by the current legislation of the Russian Federation.
8.4. This Agreement is drawn up in __ copies and is subject to storage by the Company.
SIGNATURES OF THE FOUNDERS
(signature) (full name)
____________________/____________________
(signature) (full name)
_________________________/_______________
(signature, position) (full name) M.P.
Note:
<1>The corporate name of the legal entity is selected taking into account the requirements of Art. Art. 1473 - 1474 of the Civil Code of the Russian Federation.
<2>The size of the authorized capital of the company must be no less than ten thousand rubles (paragraph 2, clause 1, article 14 of the Federal Law of 02/08/1998 No. 14-FZ “On Limited Liability Companies”).
<3>The monetary valuation of a non-monetary contribution to the authorized capital of a business company must be carried out by an independent appraiser. Participants in a business company do not have the right to determine the monetary value of a non-monetary contribution in an amount exceeding the amount of the valuation determined by an independent appraiser (paragraph 2, paragraph 2, article 66.2 of the Civil Code of the Russian Federation).
<4>Each founder of the company must pay in full his share in the authorized capital of the company within the period determined by the agreement on the establishment of the company or, in the case of the establishment of the company by one person, by the decision on the establishment of the company. The period for such payment cannot exceed four months from the date of state registration of the company. In this case, the share of each founder of the company can be paid at a price not lower than its nominal value (Clause 1, Article 16 of the Federal Law of 02/08/1998 No. 14-FZ “On Limited Liability Companies”).
In cases where, in accordance with the law, state registration of a business company is allowed without prior payment of three quarters of the authorized capital, the company's participants bear subsidiary liability for its obligations that arose before the full payment of the authorized capital (paragraph 2, paragraph 4, article 66.2 of the Civil Code of the Russian Federation) Federation).
<5>In accordance with paragraph. 2 p. 3 art. 16 of the Federal Law of 02/08/1998 No. 14-FZ “On Limited Liability Companies”, this provision may not be provided for in the agreement on the establishment of the company.
<6>The agreement on the establishment of a company may provide for other methods and a different procedure for each participant in the Company to provide compensation for the early termination of the right to use property transferred by them for use to the company to pay for a share in the authorized capital (paragraph 2, paragraph 3, article 15 of the Federal Law of 02/08/1998 No. 14-FZ “On Limited Liability Companies”).
The memorandum of association is one of the most important species an agreement that provides for the voluntary association of two or more persons, their property, in which each of the participants assumes certain obligations in relation to other participants in order to appropriate profits, therefore it focuses on the total volume of the authorized capital, the share of each of the founders and the form (natural or material) in which it is paid, as well as on the methods of payment for goods, services or work performed provided to each other.
Important in the constituent agreement are also provisions on the forms of responsibility of participants for failure to fulfill their obligations, on the procedure for resolving disputes, conditions for termination or extension of the agreement, etc. The signing of the constituent agreement is usually preceded by a thorough comprehensive feasibility study of the enterprise’s activities, first of all, calculations authorized capital, expected profits, balance of income and expenses for the operation of the enterprise, etc. The constituent documents on the creation of a joint-stock company must contain data on the types of shares that it will issue, their nominal value and quantitative ratio various types shares
In the constituent agreement, the founders undertake to create an enterprise or organization as a legal entity, determine the procedure for joint activities for its creation, the conditions for transferring their property to it and participation in its activities. The constituent agreement also determines the conditions and procedure for the distribution of profits and losses between participants, management of the organization’s activities, and the withdrawal of founders (participants) from its composition.
In addition to the above, the memorandum of association general partnership must contain:
- - the size and procedure for changing the shares of each participant in the share capital;
- - the amount, composition, timing and procedure for making contributions;
- - liability of participants for violation of obligations to make deposits.
The articles of association of a limited partnership must include:
- - conditions on the size and composition of the share capital;
- - the size and procedure for changing the shares of each of the general partners in the share capital;
- - the amount, composition, timing and procedure for making deposits, their responsibility for violation of obligations to make deposits;
- - the total amount of deposits made by investors (limited partners).
The constituent agreement of a limited liability company must include:
- - conditions on the amount of authorized capital;
- - the size of the shares of each of the deposits, the liability of participants for violation of obligations to make deposits;
- - the composition and competence of the company’s management bodies and the procedure for their decision-making, etc.
The constituent agreement of an association of legal entities (association, union) must include:
- - conditions on the composition and competence of the association’s management bodies and the procedure for their decision-making;
- - the procedure for the distribution of property remaining after the liquidation of the association. Main sections of the memorandum of association:
- - the subject and purpose of the enterprise’s activities;
- - its legal status;
- - authorized capital and its share in total expenses;
- - contributions of participants in material and cost forms, as well as in the authorized capital;
- - conditions and procedure for lending;
- - estimated production volumes, incl. for export;
- - the procedure for accumulating and distributing profits;
- - income taxes;
- - rights and obligations of founders;
- - managment structure;
- - the procedure for remuneration of employees;
- - system of supply and sales of products;
- - forms of control over the activities and quality of products;
- - trade secret;
- - liability for breach of contract;
- - procedure for liquidation of the enterprise.
Foundation agreement is an agreement concluded between the founders of a legal entity upon its creation. In the Memorandum of Association, the founders undertake to create a legal entity, determine the procedure for joint activities for its creation, the conditions for transferring their property to it and participation in its activities. The agreement also determines the conditions and procedure for distributing profits and losses between participants, managing the activities of a legal entity, and the withdrawal of founders (participants) from its composition.
Until July 1, 2009, the constituent agreements in their status related to constituent documents, as evidenced by Art. 89, 122 Civil Code of the Russian Federation. The articles of association must meet the following requirements:
The constituent documents of a legal entity must define the name of the legal entity, its location, the procedure for managing the activities of the legal entity, and also contain other information provided by law for legal entities of the corresponding type. In the constituent documents non-profit organizations and unitary enterprises, and in cases provided for by law, other commercial organizations, the subject and goals of the activities of the legal entity must be determined. Subject and specific goals of the activity commercial organization may be provided for by constituent documents even in cases where this is not mandatory by law.
The constituent agreement, if any data contained in it was changed, was subject to mandatory registration with the tax authorities, as well as the second constituent document of Companies with several participants - the Charter of the Companies.
After July 1, 2009, the constituent agreements of the Companies registered earlier ceased to be valid, and the founders of Limited Liability Companies stopped concluding constituent agreements when creating a legal entity. However, the founding agreement was replaced by another document defining the procedure for the founders to carry out joint activities to establish a company and some other issues - the establishment agreement. Based on the decisions made by the founders, reflected, among other things, in the agreement on the establishment of the Company, and the documents prepared in accordance with them, the person authorized by the founders submits documentation for the state registration of the company as a legal entity.
The main provisions on the agreement on the establishment of a limited liability company are contained in Article 11 of the LLC Law. The founders of the company enter into a written agreement on the establishment of the company, which must reflect the following key points:
- · the procedure for the founders to carry out joint activities to establish a company,
- · size of the company's authorized capital,
- · size and nominal value of the share of each of the founders of the company,
- · the size, procedure and terms of payment for such shares in the authorized capital of the company.
The main difference between the establishment agreement and the constituent agreement valid until July 1, 2009 is its status. The agreement on the establishment of the Company is a civil law agreement of a multilateral nature, which is concluded by drawing up one document. Such an agreement must meet general requirements requirements of the Civil Code of the Russian Federation for contracts and transactions, and also reflect the features provided for by the LLC Law for this agreement. However, it is not a constituent document and is not registered by the tax authorities.
The establishment agreement is intended to regulate the activities of the founders in creating a limited liability company. After registering the company and acquiring the status of a legal entity, the joint activity to create it is completed, and accordingly the agreement is terminated in connection with its execution and achievement of the set goal.
However, the agreement does not terminate after the creation of the Company, since the joint activities of the founders to create the Company is only one of the elements of the complex subject of this agreement. The establishment agreement retains legal significance as a document containing information about the creation of the company and the conditions under which it was founded. These provisions do not lose their significance until the Company ceases to exist.
What is the significance of the agreement on the creation of a company after the completion of the process of its establishment? When considering an agreement as a civil transaction (bilateral or multilateral - depending on the number of founders who signed it), it is necessary to take into account its specifics related to the subject and purpose of the agreement - the creation of a limited liability company, a new legal entity. Between the founders of the company who signed the agreement, obligations arise arising from a civil law transaction. Between the founders and the company - after its state registration - corporate relations are established, within the framework of which the participants have obligations in relation to the company, but of a different nature, arising from the right to participate in it.
However, with termination, the agreement signed by the founders does not lose its legal significance. The need for documentary confirmation of the data recorded in it sometimes arises even after the creation of a company. In particular, the agreement on establishment is one of the documents, along with an extract from the Unified state register legal entities, which indicates the size of the founders’ contributions to authorized capital Society. Information on the size and nominal value of the share of each participant in the company is entered into the unified state register of legal entities in accordance with federal law on state registration of legal entities. In this case, information about the nominal value of the shares of the company's participants upon its establishment is determined based on the provisions of the agreement on the establishment of the company.
In addition, when making transactions to transfer shares in the authorized capital of the Company, this procedure will be impossible if there is no agreement on the establishment of the Company. In accordance with paragraph 13 of Art. 21 of the “Law on LLC”, if a share or part of a share in the authorized capital of a company is alienated by the founder of a company founded by several persons, his powers are confirmed by a notarized copy of the agreement on the establishment of the company, as well as an extract from the unified state register of legal entities, compiled no earlier than within thirty days before the day of contacting a notary for notarization of the transaction.
The same procedure for submitting documents also applies to companies registered before July 1, 2009, which at the time of creation had not a foundation agreement, but a constituent agreement. In this case, the right of the participant to dispose of shares will be confirmed by the most recent founding agreement registered with the tax authority.
Summarizing the consideration of the differences between the constituent agreement and the agreement on establishment concluded by the founders of limited liability companies after July 1, 2009, it can be noted that new agreement reflects many of the same issues as the previous articles of incorporation. However, the establishment agreement has a completely different status, procedure for conclusion, termination and validity.
Despite the fact that the agreement on establishment is not a constituent document, and its registration with the tax authorities is not required, this does not relieve the founders from the need to conclude it when creating a Limited Liability Company and does not reduce its legal significance for the further functioning of the organization.
The constituent agreement is a document that is concluded when an organization is created by its founders. In this agreement, the participants determine the terms of joint activity, the procedure for transferring their property and participation in the work of the enterprise. Such a document must also contain clauses on the distribution of profits and losses between the founders, management of the company’s activities, as well as the procedure and conditions for the withdrawal of participants from its composition.
Document requirement
According to the Civil Code, the constituent agreement in its status can be classified as However, an agreement on the establishment of a limited liability company is not considered the constituent documents of such a legal entity.
The foundation agreement must necessarily comply with the requirements of the law. The documents must specify the name of the company, its location, the procedure for managing the organization’s activities and other data required by law. The documentation of non-profit structures must also indicate the subject and goals of their activities. The parties to the agreement can be at least two participants, which can be citizens, legal entities or even public legal entities. For example, the founding agreement of an OJSC can be concluded by both individuals and legal entities. True, for some types of enterprises certain restrictions are established on the composition of founders. Any party to the agreement may leave the founders without the consent of the other members.
Features for different types of legal entities
For a general partnership, the agreement is the only constituent document. At the same time, for various associations, along with the constituent agreement, an important document is the charter. In addition, if the constituent agreement of a closed joint-stock company contradicts its charter, then the provisions of the latter will play a decisive role. In addition, the law allows closed joint stock companies to transform into a cooperative or limited liability company. By decision of the shareholders, it can be re-registered as a non-profit organization.
State registration
Until the enterprise has passed state registration, the founding agreement may be terminated or amended, and all resulting obligations of the parties may be terminated. For example, such an agreement may terminate if members of the company are unable to
After state registration, all parties to the constituent agreement are required to begin its execution. Now such an agreement can be changed or terminated only with subsequent registration of the changes with the tax office. The memorandum of association is valid throughout the existence of the enterprise, regardless of legal form. In some cases, if provided for in the agreement, it will remain in force after the liquidation of the company until the founders pay off creditors and distribute the remaining property.
The constituent agreement is concluded by the participants of the organization in the form of a limited liability company at the stage of its creation. The conclusion of this agreement is not a prerequisite for the registration and subsequent activities of a legal entity, therefore the issue of carrying out this procedure is left to the discretion of the founders.
During education joint stock companies it is possible to conclude a similar agreement, which is called an agreement on the establishment of a company. The memorandum of association has no status constituent document, not available in various government bodies for implementation by a legal entity own rights, fulfillment of duties.
How to conclude a memorandum of association?
To conclude a constituent agreement, future participants of the company must agree on all its basic conditions. Typically, this agreement is signed before the charter of the legal entity is drawn up; sometimes in the constituent agreement a reference is made to the charter, which supplements and deciphers some of the conditions of this transaction.
The main issues that, when signing the constituent agreement and are recorded in its text, are the conditions for the transfer of property of the created organization, the features of participation in this company of the founders, the rules for the distribution of profits and losses, methods of managing the company, and other essential points. After this, the founders draw up a written agreement, which is signed by each of them. Once an agreement is reached between the participants, the constituent agreement comes into force.
What can be included in the articles of association?
Structurally, the memorandum of association usually includes introductory, main and final parts. The introductory part indicates the purpose of concluding the agreement, names its parties, and provides the name and legal form of the legal entity being created. This block also records information about the type of activity and location of the future company.
The main part describes the responsibilities of participants, the procedure for forming the company’s property, the features of the formation of management bodies, the procedure for distributing profits and other significant issues. In the final part, the participants agree on the procedure for resolving disputes that may arise in the future, and also determine the conditions possible change, termination of the contract subsequently.
1. The concept of a constituent agreement
In cases where the share is alienated in full, the place of the participant who alienated the share is taken by the acquirer of the share, to whom corporate rights and obligations are transferred. In case of partial alienation of a share, the participant who alienated part of the share remains, along with the acquirer of part of the share, a participant in the corporate legal relationship. In other words, by acquiring a share (part of a share), the subject becomes the legal successor of the alienator of the share (part of the share). But succession is not possible for all rights that the alienator of the share had. According to paragraph 2 of Art. 8 of the Law on Limited Liability Companies additional rights(for example, the right to receive company services free of charge) granted to a certain participant in a limited liability company, in the event of alienation of his share (part of the share), does not pass to the acquirer of the share (part of the share). This demonstrates the principle of non-transferability of the special rights of an individual member of a corporation granted to him by the constituent documents.
