Constituent documents are a list of rights, obligations, conditions for the functioning of the enterprise, its labor collective, establishing the status of the enterprise. Depending on what kind of organizational legal form property, there are two types of such documents - the memorandum of association, as well as the charter. The difference is that the constituent agreement is concluded, and the charter is approved by its founders (participants). The main constituent document for state, as well as for state and unitary enterprises is the charter of the enterprise, which is developed and approved by its founders (participants), and the constituent document of a state-owned enterprise is its charter, approved by the Government Russian Federation.
The charter must contain information on the organizational and legal form, name, location of the enterprise, the amount of its authorized capital (fund), composition, procedure for distributing profits and forming funds, and in the event of reorganization and liquidation of the enterprise - on the procedure and conditions in which they occur. It is necessary to establish in the memorandum of association that the founders undertake to create a legal entity, determine the procedure for joint activities in this direction, the conditions for the transfer of property to a legal entity, participation in its activities, the procedure and conditions under which profits and losses are distributed between participants in the management of activities legal entity, as well as the withdrawal of founders (participants) from its composition. Memorandum of association must contain information about the name, location and legal status of the founders, state registration, the size of the authorized capital of the enterprise, the participation shares (shares, number of shares) that belong to each founder, on the size, procedure and methods of making contributions and paying for shares. The content of constituent documents can be supplemented, depending on the organizational and legal form of the enterprise.
Business partnerships are formed and operate on the basis of a constituent agreement, which in a full partnership is signed by all its participants, and in a limited partnership the agreement is signed by all of its general partners. The constituent documents of the company with limited liability become the memorandum of association, which is signed by its founders, and the charter approved by them. In the case when a company is organized by one person, the charter approved by the founder becomes its constituent document. Founding document joint-stock company- charter, which is approved by the founders. The founders of a JSC conclude an agreement in which it is necessary to determine the procedure for their joint activities to create a company, the amount of the authorized capital, the categories of shares to be issued, as well as the procedure for their distribution, and other conditions provided for by the JSC Law.
The article considers the concept of a constituent agreement and its relationship with the charter in accordance with the law, lists which organizations should have an agreement, as well as its comparability with a simple partnership agreement. Special attention is paid to the similarities and differences between the corporate and memorandum of association and the content of the latter.
What is a memorandum of association
Concept and norms
The memorandum of association is a written agreement of the founders on certain, its goals and activities, financial and organizational issues: and, as well as the procedure for entering and exiting the founders.
The legal basis of the nature of the memorandum of association is:
- Civil Code of the Russian Federation;
- Profile laws for each separate organizational and legal form, for example: law on or law on.
The video below will tell about the constituent documents of legal entities:
Subjects
The second section provides a detailed list of those that require a memorandum of association.
- For since December 2008, the founding agreement began to be called, which is drawn up and valid until and is an internal corporate document regulating relations between the founders.
- The participants of a joint-stock company conclude an agreement on the establishment of a company, which determines the procedure for joint activities, or, categories and the procedure for placing shares.
- Constituent agreements are also concluded, information on which will be further.
The memorandum of association is always concluded, there is no one to conclude an agreement with, the registration authority will also require the decision of the sole founder on the establishment of a legal entity from him.
The charter regulates the relationship of a legal entity with third parties, while the memorandum of association is aimed at regulating the mutual relations of the founders regarding the contribution of shares, entry and exit from the company, obligations to each other. Legal nuance: the charter is approved collectively, and the agreement is signed by the founders personally, each for himself.
Important! Summarizing the content of the first section, we note that the constituent agreements are concluded by the founders of commercial and not commercial organizations. An LLC concludes an agreement on the establishment, and a joint stock company concludes an agreement on the establishment, and although the names of the documents differ from the constituent agreement, they have the same goal - the establishment of a legal entity. For an organization with sole founder– no memorandum of association is required!
Which organizations are required to have UD
To answer this question, we turn to all-Russian classifier organizational and legal forms and check the need to conclude a constituent agreement under the Civil Code of the Russian Federation:
| THE FORM | DE NEED |
|---|---|
| Business partnerships | Need |
| Need | |
| Need | |
| Business companies | See more JSC and LLC |
| Joint stock companies | It's called the "Establishment Agreement" |
| Creation Agreement | |
| Creation Agreements | |
| OOO | It's called the "Establishment Agreement" |
| Not required | |
| (artels) | Not required |
| Agricultural production cooperatives | Not required |
| Agricultural artels (collective farms) | Not required |
| Fishing artels (collective farms) | Not required |
| Cooperative farms (co-farms) | Not required |
| Production cooperatives (except agricultural production cooperatives) | Not required |
| Not required |
From non-profit organizations a memorandum of association is required for associations and unions.
Correlation of the document with the simple partnership agreement
An agreement aimed at creating a simple partnership is an agreement on joint activities of individuals and / or legal entities, in which a legal entity is not created, but cooperation is carried out while maintaining the original organizational and legal forms of the cooperating persons. The conclusion of the memorandum of association is aimed primarily at the creation of a new legal entity with its registration with the registration authorities, with the presence of all the accompanying features of a legal entity: separate property, capital formation, contribution of shares, etc.
Similarities and differences with a corporate agreement
| Criterion | Corporate agreement | Memorandum of association |
|---|---|---|
| Considered the founding document | Not | For some forms |
| Character | Voluntary | Required |
| Subject of the contract | Exercise of founders' rights (voting, decision-making) | Legal entity establishment |
| Parties to the agreement | Members or some of them | All members/founders without exception |
| The form | simple writing | simple writing |
| Notifications of the company on the conclusion of the contract | Required | |
| Disclosure of content to the public | Not required, can remain confidential | Automatically known to the public and all founders |
| Recognition of the decision of the body of the company as invalid in case of violation of the contract | If all participants/founders are parties to the agreement | Yes |
| May be against the rules | Yes | Not |
Features of the conclusion of the founding agreement of the LLP are described in this video:
Registration of UD
- document title, date, city;
- details of the parties to the agreement;
- subject - the establishment of a legal entity of a certain organizational and legal form;
- full and abbreviated name of the legal entity, address;
- the legal status of a legal entity, its rights, responsibilities and obligations in accordance with the Civil Code of the Russian Federation;
- listing the purpose and types of activities that the legal entity will carry out;
- liability of the legal entity and participants/founders: joint and several, subsidiary;
- authorized / share capital, sizes and;
- rights, obligations of participants;
- entry and exit of participants;
- governing bodies;
- property, accounting and reporting;
- distribution of profits and losses;
Surprisingly, there is no such thing as a “memorandum of association” for a limited liability company as of July 1, 2009. However, there is the concept of "an agreement on the establishment of a company." We will tell you what is the difference between these wordings, and also how the charter differs from the memorandum of association.
Previously, a written agreement between the founders of the company was formulated as a constituent agreement of a legal entity and was a mandatory document of an LLC along with the charter.
Now Article 11 federal law dated February 8, 1998 No. 14-FZ " About limited liability companies» it is determined that the agreement on the establishment of the company is no longer the constituent document of the company. But despite this, the founders of an LLC are obliged to conclude it in writing(Clause 5, Article 11 of the Federal Law No. 14) and store (Clause 1, Article 50 of the Federal Law No. 14-FZ).
Memorandum and Articles of Association of LLC
These documents have completely different status and purpose, however, they are often compared. For ease of comparison, we will make it in the form of a table.
Memorandum of Association of LLC, sample
So, what information should contain the correct memorandum of association, a sample of which we will give below?
- Information about the founders of the company, which is indicated in the preamble. At the same time, speaking about individuals, it is recommended to indicate, in addition to the last name, first name and patronymic, information about citizenship, passport data, date of birth and place of registration on the territory of the Russian Federation. About legal entities - company name, PSRN and TIN for a Russian legal entity, registration information for a foreign legal entity, location. In other words, information must be provided to accurately identify the parties to the agreement. It is obligatory to indicate the representatives of the founders and the grounds for their powers (charter, power of attorney).
- Full or abbreviated corporate name of the organization being created. The legislator does not require a mandatory mention of the name in the agreement, but in the future - at the stage of preparing the Charter - such information will be strictly mandatory. In the agreement considered in the article, it will help to specify the subject of the agreement.
- Location of the new company (actual or planned).
- The amount of the authorized capital, which is determined in rubles and cannot be less than 10,000 rubles.
- The size and nominal value of the share of each of the founders. A share is always a percentage or a fraction (the ratio of the value of the share of each founder to the authorized capital of the company as a whole). The nominal value is the amount in rubles.
- The procedure and terms of payment of shares in the authorized capital. Shares can be paid in cash securities, other things, property or other rights having a monetary value. Monetary valuation of a non-monetary contribution to the authorized capital is carried out by an independent appraiser.
- Information on the procedure for the joint activities of the founders of the company to establish a company (for example, on holding meetings, elections, etc.).
- Other information, the need to include which the founders agree (for example, on fines for non-payment of a share, the procedure for resolving disagreements).
- Signatures of the parties or their representatives, as well as seals (if any) - are affixed, as a rule, at the end of the agreement, in a separate section.
Thus, the agreement of the founders on the creation of an LLC is recorded in the document on the establishment, and nothing more.
How to work with a document
As already mentioned, the described agreement - along with the minutes of the decision to establish an LLC - confirms the intention of the founders to create an LLC; discussed and accepted general meeting. Both individuals and legal entities can act as founders.
The document must be printed in the required number of copies (according to the number of founders), signed and distributed for storage to all participants. It does not require notarization.
This agreement is not amended regarding, for example, an increase in the authorized capital, etc. However, it will have to be adjusted if the share is alienated (sale, donation, inheritance) by the founder to a third party. In this case, he will confirm the legality of the acquisition of the share by the founder. Changes must be made and recorded in writing.
The agreement may be terminated by decision of the founders.
To demonstrate the above in the form of a document, here is a sample agreement on the establishment of an LLC between an individual and a legal entity.
The memorandum of association originates from the simple partnership agreement. Its design was used in Roman law to create public associations that pursued the goal of joint trade and fishing by participants. With the development of commodity-money relations, it became obvious that such societies require the delimitation of the property used in its circulation from the property of individual participants, as well as to ensure the stability of the existence of this society, regardless of changes in the composition of participants. During the period of the principate, Roman law began to recognize certain types of partnerships as legal entities.
Under the founding agreement, the founders undertake to create a legal entity, determine the procedure for their joint activities regarding its creation, the conditions for transferring their property to it (part 2 of article 88 of the Civil Code).
The memorandum of association also defines the conditions for the distribution of profits and losses among the participants, participation in the activities of a legal entity, and the withdrawal of founders from the company.
A memorandum of association may be concluded only if there are at least two founders of a legal entity.
In a memorandum of association, as in a simple partnership agreement, the participants have a common goal. Therefore, all parties in the contract are called founders (participants). By general rule Participants can be individuals and legal entities. However, unlike a simple partnership, the result of the conclusion and execution of a memorandum of association is the emergence of a new subject of law - a legal entity, while concluding a simple partnership agreement, the parties do not aim to create a new entity.
The memorandum of association of the legal entity to be created specifies:
Organizational and legal form of a legal entity;
The procedure for joint activities of the founders for its creation;
Transfer of property by the founders to a legal entity;
Participation of founders in the activities of a legal entity;
The procedure for managing the activities of a legal entity;
The procedure for the withdrawal of founders from the legal entity.
When creating a legal entity carrying out entrepreneurial activity, the condition on the distribution of profits between the founders is essential.
The list of conditions may be supplemented depending on the type of legal entity that is being created.
The constituent agreement is concluded in a simple written form, but the agreement on the creation of a joint-stock company is subject to notarization if the joint-stock company is created by individuals (part 2 of article 153 of the Civil Code).
Like a simple partnership agreement, the memorandum of association is a consensual, multilateral, reimbursable and fiduciary transaction.
The term of the memorandum of association corresponds to the term of existence of the full or limited partnership, the founding document is this agreement, and the term of the agreement on the establishment of a limited liability company or a joint-stock company is limited to the moment of state registration of these economic companies.
The Memorandum of Association establishes the obligations of its participants to create a legal entity, form its capital, part of which is paid before registration. Consequently, the conditions relating to the joint activities of the participants prior to the registration of a legal entity come into force from the moment the memorandum of association is concluded. From this moment on, obligations arise between its participants. The state registration of a legal entity established in pursuance of the constituent agreement gives rise to a set of rights and obligations both between the legal entity and the participants in the constituent agreement, and between the participants themselves. This complex constitutes the content of a relative legal relationship, which is not binding, but corporate.
The parties to the agreement are responsible for the formation of the capital of the legal entity as subjects of a corporate legal relationship, as well as other property and non-property (not to disclose confidential information about the activities of the legal entity) rights and obligations.
Amendment and termination of the memorandum of association
Before the state registration of a legal entity, the memorandum of association may be amended and terminated on a general basis. After state registration, any changes or termination of the constituent agreement is directly related to the change or termination of corporate legal relations existing between the founders, as well as between the founders and the legal entity.
Any member of a legal entity established on the basis of a memorandum of association has the right to freely withdraw from the company, regardless of the consent of the other members. The law can only establish the procedure and terms of withdrawal. Members of limited liability companies and additional liability companies have the right to dispose of their share in common property by making various transactions for its alienation. In cases where the share is alienated in full, the place of the participant is taken by the acquirer of the share, to whom corporate rights and responsibilities. In case of partial alienation of a share, the participant remains on an equal footing with the acquirer. Thus, by acquiring a share or part of a share, the subject becomes the legal successor of the alienator of the share or its parts. A change in the composition of the participants in the memorandum of association may take place as a result of the entry into the company of the heirs of the deceased individual or successors of the reorganized legal entity. The consent of other participants is required for the entry into the society of the said persons. Changes to the memorandum of association due to a change in the composition of the participants come into force for third parties from the moment of state registration of these changes.
The termination of the memorandum of association may be the result of the liquidation of the legal entity created on its basis. Reasons and grounds in this case do not matter. The action of the memorandum of association will be considered terminated either in the event of the liquidation of the legal entity in connection with the achievement of the purpose for which it was created, or with the expiration of the period for which it was created, as well as in cases of its liquidation by agreement of the participants, by decision of such, etc.
Constituent documents- these are documents on the basis of which legal entities (institutions, organizations, enterprises) operate. The founding documents include the memorandum of association and articles of association.
Memorandum of association- this is an agreement in which the parties (founders) undertake to create a legal entity and determine the procedure for joint activities to create it, the conditions for transferring their property to it and participating in its activities. The agreement also defines the conditions and procedure for the distribution of profits and losses among the participants, management of the activities of a legal entity, withdrawal of founders (participants) from its composition.
On the basis of the memorandum of association general partnerships and fellowship of faith. On the basis of the charter - joint-stock companies, limited and additional liability companies created by one person, as well as public organizations (associations, etc.).
Limited and additional liability companies, as well as associations of legal entities (associations and unions) operate on the basis of the founding agreement and the charter.
A non-profit organization may act on the basis of the general regulation on organizations of this type. Commercial organizations cannot act on the basis of the general provision on organizations of this type.
At the stage of creating a joint-stock company, the main role is played by the memorandum of association and the charter, which fix the subject, goals and nature of the company's activities, its status, the procedure for formation and the size of the authorized capital, the size of the share of each of the founders (participants) of the company, the amount and composition of contributions, the procedure and terms their contribution to the authorized capital, the principles of relations between the participants of the company, the principles and procedures for management.
The constituent agreement also defines the composition of the founders (participants) of the company, their liability for violation of the obligation to make contributions, the conditions and procedure for the distribution of profits between the founders (participants) of the company, the composition of the bodies and the procedure for the withdrawal of participants from the company.
The texts of the memorandum and articles of association are typical and require only minor modifications, taking into account the specifics of the joint-stock company being created.
Charter
Charter- a legal act defining the status, organizational structure, goals, nature and procedure for the activities of the established legal entity. General provisions on the charter are contained in the first part of the Civil Code of the Russian Federation.
The constituent documents of a legal entity must contain the name of the legal entity, its location, the procedure for managing the activities of the legal entity, as well as other information provided by law for legal entities of the relevant type (for example, the subject and goals of the legal entity's activities).
A legal entity acts on the basis of a charter, or a constituent agreement and a charter, or only a constituent agreement. A legal entity that is not a commercial organization, in cases statutory may act on the basis of the regulation on organizations of this type.
The constituent agreement of a legal entity is concluded, and the charter is approved by its founders (participants).
A legal entity created by one founder acts on the basis of the charter approved by this founder.
The constituent agreement is consensual in terms of the method of execution, since it enters into force after an agreement is reached between the parties, and according to its purpose in management activities- organizational document.
The procedure for concluding, drawing up and formalizing, entry into force, termination and other legal aspects of the memorandum of association are regulated by the legislation of the Russian Federation.
The memorandum of association may consist of the following sections:
1. Introduction.
2. The purpose of the conclusion of the contract.
3. Name and legal form of the organization.
4. Subject of activity.
5. Location of the organization.
6. Obligations of participants (founders) to create a legal entity.
7. Procedure for the formation of property.
8. Conditions on the liability of specific participants (founders) for the obligations of the established legal entity.
9. The procedure for the distribution of profits and repayment of losses.
10. The procedure for managing the affairs of a legal entity.
11. Rights and obligations of participants (founders).
12. Liability for breach of contract.
13. Conditions and procedure for the withdrawal of participants (founders) from the organization and the admission of new members
14. Procedure for consideration of disputes.
15. The procedure for changing and terminating the contract, reorganization and liquidation of a legal entity.
If necessary, the constituent agreement approves the charter, which supplements the agreement and fixes the organizational and legal status of the organization.
The memorandum of association shall enter into force from the moment of its signing, unless otherwise specified in the memorandum itself.
If a legal entity acts as a founder, then the agreement on its behalf is signed by the head of the institution or a person endowed with powers confirmed by a power of attorney.
The organization is considered established and acquires the rights of a legal entity from the date of state registration. The constituent agreement and the charter or only the constituent agreement are submitted to the relevant state bodies.
Charter - a set of rules governing the activities of an organization, institution, societies and citizens, their relationship with other organizations and citizens, rights and obligations in a certain area government controlled, economic or other activities. For example, the Charter of a voluntary sports society, the Charter railways, Veterinary charter, etc. General statutes are approved higher authorities state power and management, and charters public organizations accepted and approved by their congresses.
The charters of enterprises, institutions and organizations are approved by higher authorities (ministries, administrations of subjects of the federation), the charter of a legal entity is approved by its founders (participants) and is subject to state registration in in due course. The charter refers to the mandatory constituent documents for the creation of non-governmental commercial organizations. General requirements to the procedure for compiling, formalizing and maintaining the charter of a legal entity are given in part one of the Civil Code of the Russian Federation.
The structure of the text of the charter varies depending on its variety. For example, an organization's charter includes: general provisions; targets and goals; rights; activity; property; control; reorganization and liquidation.
The charter of a joint-stock company contains the following sections:
General provisions;
Share capital;
The order of activity;
Control;
Accounting and reporting;
Profit distribution;
Other savings;
Termination of activity.