From July 1, 2010, the memorandum of association is called the agreement on the establishment of a company with limited liability(Article 89 of the Civil Code of the Russian Federation and Article 11 of Law 14-FZ).
What is a memorandum of association
Memorandum of association LLC (Establishment Agreement) is a document required when creating a company with two or more founders, which allows you to fix in writing the agreements on the creation of the company, the procedure for distributing profits and general interaction, entry and exit of participants, as well as their heirs.
- The memorandum of association is not a constituent document (clause 5, article 11 of the LLC Law, clause 1, article 89 of the Civil Code of the Russian Federation). It is an internal corporate agreement that regulates relations between the founders.
- In the case of the creation of an LLC by one person, an establishment 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 memorandum of association is determined by paragraph 1 of Article 89 of the Civil Code of the Russian Federation.
- The founders of a limited liability company conclude between themselves an agreement on the establishment of a limited liability company, which determines the procedure for their implementation joint activities on the establishment of the company, the amount of the authorized capital of the company, the amount of their shares in the authorized capital of the company and other conditions established by the law on limited liability companies.
- The agreement on the establishment of a limited liability company is concluded in writing.
The Memorandum of Association is submitted simultaneously with the articles of association, but the role this agreement for them is less significant than for those legal entities where the constituent agreement is the only constituent document.
There are two types of partnership agreement
What is the memorandum of association
An LLC creation 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 in the agreement of the name of the company being founded. However, this information seems necessary to specify the subject matter of the contract. - The subject of activity and location of the LLC.
In the foundation agreement, the planned address of the location of the company can be indicated. - Obligations of participants (founders) to create legal entity.
The contract must contain information that makes it possible to accurately identify its parties (clause 1, article 432 of the Civil Code of the Russian Federation). As a rule, the surname, name and patronymic of the parties - individuals, the company name of legal entities are indicated in the preamble. In relation to the 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 terms of payment of shares is mandatory (clause 5, article 11 of the LLC Law)
Data on the amount of the authorized capital are mandatory (clause 1, article 89 of the Civil Code of the Russian Federation and clause 5, article 11 of the LLC Law). The amount 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 holding the general meeting of founders;
- the procedure for sending a notice to the founders about the holding 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:
- peculiarities of using the property of a participant transferred as payment for a share in the event of a subsequent withdrawal or exclusion of such a participant from the company (clause 4, article 15 of the LLC Law).
- Dispute resolution procedure.
- The procedure for changing and terminating the contract, reorganization and liquidation of a legal entity.
- Other information and documents
This information may include:- provisions on the liability of the founders (forfeit, fine, penalties) in case of non-payment of a share in the authorized capital (clause 3 of article 16 of the LLC Law);
- the procedure for distributing the costs associated with the establishment of the company;
- the procedure for the 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 to the use of the company as payment for a share (paragraph 2, clause 3, article 15 of the LLC Law);
- the procedure for resolving disagreements that may arise in the process of establishing a company.
Sample memorandum of association for individuals
Agreement on the establishment of a limited liability company where the founders are individuals
CONTRACT
on the establishment of the Society with
limited liability
«_____________________________»
(founders are legal entities)
___________ "___" __________ ___
In the face of ___________________________________,
(name of organization) (position, full name)
acting ___ on the basis of ___________________, and __________________________
(Charter, regulations, powers of attorney) (name of organization)
represented by _________________________________________, acting ___ on the basis of
(position, full name)
____________________, hereinafter referred to as the "Founders",
(Charter, regulations, powers of attorney)
agreed to create in accordance with applicable law
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 established in accordance with the Civil Code of the Russian Federation, Federal Law No. 14-FZ of 08.02.1998 "On Limited Liability Companies" and other applicable 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 ___________________________, r / s _____________________________________,
1.4. The obligations of the Founders to perform actions related to the establishment of the Society 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 Company's authorized capital, the size and nominal value of the share of each of the Company's Founders, as well as the amount, procedure and terms for payment of such shares in the Company's authorized capital.
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 OBJECTIVES OF THE COMPANY'S ACTIVITIES
3.1. The subject and goals of the Company's activities are established in the Charter of the Company.
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 Society are not limited to those stipulated 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 accordance with the procedure established by the legislation of the Russian Federation.
4.2. In accordance with the current legislation of the Russian Federation, the Company owns separate property recorded on its independent balance sheet, can acquire and exercise property and personal non-property rights on its own behalf, perform obligations, be a plaintiff and defendant in court.
The Company may have civil rights and perform civil obligations necessary for the implementation of any types of activities not prohibited by federal laws, if this does not contradict 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 shall be jointly and severally liable for obligations related to the establishment of the Company and arising prior to its state registration.
The Company shall be liable for the obligations of the Founders associated with its establishment only in the event of subsequent approval of their actions by the General Meeting of Members of the Company. At the same time, the amount of the Company's liability in any case cannot exceed one fifth of the paid-in authorized capital of the Company.
4.5. The Company shall be liable for its obligations with all its property.
4.6. The Company is not liable for the obligations of its members.
4.7. In case of insolvency (bankruptcy) of the Company due to 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, the said participants or other persons in case of insufficiency of the Company's property may be assigned subsidiary liability for his obligations.
4.8. Russian Federation, subjects of the Russian Federation and municipalities are not liable for the obligations of the Company, just as the Company is not liable for the obligations of the Russian Federation, constituent entities of the Russian Federation and municipalities.
4.9. The Company is obliged to keep the following documents at the location of the Company's executive body:
— The Agreement on the establishment of the Company, the protocol on the establishment of the Company, the Charter of the Company, as well as those entered into the Charter of the Company and registered in in due course changes;
— the 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 the approval of the monetary value 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 equity securities of the Company;
— minutes of the General Meetings of Members of the Company, meetings of the Board of Directors (Supervisory Board) of the Company, the collegial executive body of the Company and audit commission Society;
— lists of affiliated persons of the Company;
— conclusions of the audit commission (auditor) of the Company, the auditor;
— other documents stipulated 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 Members of the Company, the Board of Directors (Supervisory Board) of the Company and the executive bodies of the Company.
5. SHARE CAPITAL
5.1. The authorized capital of the Company determines minimum size its property guaranteeing the interests of the Company's creditors.
The authorized capital of the Company is made up of the nominal value of the shares of its members.
At the time of the establishment of the Company, its authorized capital is _____ (_________) rubles.
5.2. Sizes of shares of the Founders of the Company in its authorized capital and their nominal value at the time of founding the Company:
1) "_____________" (name of the organization) - ___%, the nominal value of the share - _________ rubles;
payment of a share in the authorized capital of the Company is made in money (option: securities, other things or property rights or other rights having a monetary value);
2) "_____________" (name of organization) - ____%; par 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 having a monetary value).
The maximum share of a participant is limited and amounts to _____________, which is __% of the authorized capital.
(Option: There is no maximum limit for a member's share.)
The ratio of participants' shares 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 for _____%<1>:
1) “____________” (name of 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 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 its share in the authorized capital of the Company within ____________.
5.5. In case of incomplete payment of the 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 shall be transferred 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 federal law dated 08.02.1998 N 14-FZ "On Limited Liability Companies".
If the Founder of the Company fails to fulfill the obligation to pay a 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 paid as payment for the share)<2>.
5.6. In the event that the Company's right to use property is terminated before the expiration of the period for which such property was transferred for use by the Company to pay for the share, the member of the Company who transferred the property is obliged to provide the Company, at his request, with monetary compensation equal to the payment for the use of the same property on similar terms for the remainder of the term 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 a different procedure for providing monetary compensation not established by the decision of the General Meeting of Members of the Company. This decision is made by the General Meeting of Members of the Company without taking into account the votes of the member of the Company who transferred to the Company to pay for his share the right to use the property, which was terminated ahead of schedule.<3>.
In case of failure to provide compensation within the established period, the share or part of the share in the authorized capital of the Company, proportional to the unpaid amount (value) of compensation, shall be transferred 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 February 8, 1998 N 14-FZ "On Limited Liability Companies".
5.7. The property transferred by a member of the Company for use by the Company to pay for its share, in the event of withdrawal or exclusion of such a member from the Company, remains in use by the Company for the period for which this property was transferred<4>.
5.8. It is not allowed to release the Founder of the Company from the obligation to pay 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 transfer by participants of their shares to third parties, are determined by the Charter.
6. DISTRIBUTION OF THE COMPANY'S PROFIT
BETWEEN THE MEMBERS OF THE COMPANY
6.1. The Company has the right to quarterly (once every six months or once a year) to make a decision on the distribution of net profit among the members of the Company. The decision on the distribution of a part of the Company's profit is made by the General Meeting of the Company's Members.
6.2. The 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 decides on the distribution of its profits among the members of the Company and makes appropriate payments in compliance with the requirements for limiting the distribution of profits between the members of the Company, established by Art. 29 of the Federal Law of February 8, 1998 No. 14-FZ "On Limited Liability Companies".
7. MANAGEMENT BODIES OF THE COMPANY
7.1. supreme body The Society is the General Meeting of the Society's Members.
The General Meeting of Members of the Company may be regular or extraordinary. All members of the Company have the right to be present at the General Meeting of Members of the Company, to take part in the discussion of agenda items and to vote when making decisions.
7.2. The Company provides for the formation of the 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 the formation (election), termination of powers, as well as the competence and procedure for making decisions by the Company's management bodies are determined by its Charter.
8. WITHDRAWAL OF A MEMBER OF THE COMPANY FROM THE COMPANY
8.1. Regulations on the possibility of withdrawal of a participant from the Company, as well as the procedure for such withdrawal are provided for in the Charter of the Company.
9. CONTROL, ACCOUNTING AND REPORTING
9.1. In order to exercise their rights to control the activities of the Company, each participant has the right to receive information and inquiries on all issues related to the activities of the Company. 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. Transfer of information 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 Members of the Company.
11. FORCE MAJOR
11.1. The Founders are exempted from partial or complete fulfillment of obligations under this Agreement, if the failure 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 decrees or orders of state bodies.
11.2. The Founder, referring to force majeure circumstances, is obliged to immediately inform other Founders about the occurrence of such circumstances in writing, and at the request of other Founders, a certifying document must be submitted.
11.3. The Founder, who, due to force majeure, cannot fulfill the obligations under this Agreement, undertakes to make every effort to compensate for the consequences of failure to fulfill obligations as soon as possible.
12. RESOLUTION 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 not settled as a result of negotiations are resolved in a judicial procedure established by the current legislation of the Russian Federation.
13. FINAL PROVISIONS
13.1. This Agreement shall enter into force from 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 by this Agreement, the Founders are guided by the provisions of the current legislation of the Russian Federation.
13.4. This Agreement is made 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 prepayment of three-quarters of the authorized capital, the participants in the company bear subsidiary liability for its obligations that arose before the full payment of the authorized capital (paragraph 2, clause 4, article 66.2 of the Civil Code of the Russian Federation ).
<3>In accordance with par. 2 p. 3 art. 15 of the Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies”, an agreement on the establishment of a company may provide for other methods and a different procedure for providing compensation by a participant in a company early termination the right to use the property transferred by him for use to the company to pay for a share in the authorized capital of the company.
<4>In accordance with paragraph 4 of Art. 15 of the Federal Law of 08.02.1998 No. 14-FZ “On Limited Liability Companies”, the agreement on the establishment of a company may provide otherwise.
<5>According to paragraph 3 of Art. 65.3 of the Civil Code of the Russian Federation, a sole executive body (director, general director, chairman, etc.) is formed in the corporation. The charter of a corporation 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, clause 1, article 53 of the Civil Code of the Russian Federation). The sole executive body of a corporation may act as individual as well as a legal entity.
<6>Since 04/07/2015, business entities are not required to have a seal (Federal Law No. 82-FZ dated 04/06/2015 “On Amendments to Certain Legislative Acts of the Russian Federation Regarding the Removal of the Compulsory Seal of Business Companies”).
Sample memorandum of association for individuals and LLC
An 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 "___" _________ ____
Establishment agreement
Limited liability companies
«____________________________»
_______________ "___" __________ ____
Citizen of the Russian Federation _______________________________________,
citizen of the Russian Federation ___________________________________________,
(Full name, passport data, place of residence)
_____________________________________ represented by _____________________________,
(name of organization, OGRN, TIN) (position, full name)
acting on the basis of ______________________________________________, and
(Charter, powers of attorney)
_________________________________ represented by ________________________________,
(position, full name)
acting on the basis of _________________________ (Charter, Power of Attorney), hereinafter referred to as the "Founders", agreed to establish the Limited Liability Company "________________________" in accordance with the current legislation of the Russian Federation.
1. THE SUBJECT OF THE AGREEMENT. FOUNDERS
AND PROCEDURE FOR JOINT ACTIVITIES ON THE ESTABLISHMENT OF 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 No. 14-FZ of 08.02.1998 "On Limited Liability Companies".
1.3. Composition of the Founders of the Society:
1) a citizen of the Russian Federation __________________________________,
2) citizen of the Russian Federation __________________________________,
passport series ______ No. ______________,
issued by ______________________________________________________________,
date of issue "___" __________ ____,
subdivision code ____________ - ______________,
registered ____________________________________________________;
3) ___________________________________________________________________,
(name of the legal entity)
registered ________________________, OGRN _______________________
(certificate of state registration No. ______ dated ________________),
TIN ___________________________, r / s _____________________________________,
address: _____________________________________________;
4) ___________________________________________________________________,
(name of the legal entity)
registered ________________________, OGRN ___________________________
(certificate of state registration N ______ dated ________________),
TIN ___________________________, r / s _____________________________________,
address: _____________________________________________.
1.4. The obligations of the Founders to perform actions related to the establishment of the Society 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 expenses for the creation of 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 OBJECTIVES OF THE COMPANY'S ACTIVITY
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 Society'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 Society are not limited to those stipulated in the Charter. Transactions that go beyond 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 recorded on its independent balance sheet, can acquire and exercise property and personal non-property rights on its own behalf, incur obligations, be a plaintiff and defendant in court. In accordance with the current legislation of the Russian Federation, the Company's property is formed at the expense of the contributions of the Founders (participants), including funds received as payment for shares, as well as property produced and acquired by the Company through its economic activities.
3.3. The Company shall be liable for its obligations with all its property.
3.4. The Company is not liable for the obligations of its members.
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.
Members of the Company who have not fully paid their shares shall be jointly and severally liable for the obligations of the Company within the value of the unpaid part of their shares in the authorized capital of the Company.
3.6. In case of insolvency (bankruptcy) of the Company due to 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, the said participants or other persons in case of insufficiency of the Company's property may be assigned subsidiary liability for his obligations.
4. AMOUNT OF THE AUTHORIZED CAPITAL OF THE COMPANY, AMOUNT 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 members.
4.2. The size of the authorized capital of the Company at the time of its establishment is __________ (______________) rubles<2>.
4.3. The authorized capital of the Company determines the minimum amount of its property that guarantees the interests of its creditors.
4.4. The share of the Company's members in the authorized capital:
1) _________________________________________________ — _______________
(full name of the participant)
(_________________) rubles.
_______________________________________________________________ undertakes
pay your share in the authorized capital of the Company in the following
order: ________ rubles - by "___" _________ ____ (by the time
state registration of the Company), the remaining ________________ rubles -
up to "__" ________ ____, in accordance with paragraph 4.5 of this
Agreement;
2) _________________________________________________ — _______________
(full name of the participant)
percent (or in the form of 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 - up to
"_____" _______ ____, 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 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 paragraph 4.5 of this
Agreement;
4) ____________________________ undertakes to pay 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 - before "__" _________ ____, 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 having 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 shall be transferred to the Company. Such part of the share must be sold by the Company in the manner and terms established by Art. 24 of the Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies”.
4.8. If the Founder fails to fulfill the obligation to pay for the share in the authorized capital of the Company within the time limits established in clause 4.4 of this Agreement, he pays the Company a penalty in the amount of ___% of the amount not paid on time (of the value of the property to be paid as payment for the share) for every day of delay<5>.
4.9. In the event that the Company's right to use property is terminated before the expiration of the period for which such property was transferred for use by the Company to pay for the share, the Founder who transferred the property is obliged to provide the Company, at its request, with monetary compensation equal to the payment for the use of the same property on similar terms in the remainder of the term of the property. Monetary compensation must be provided at a time within _____ days from the moment 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 Members 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 to pay for his share the right to use the property, which was terminated ahead of schedule.<6>.
4.10. The property transferred by a member of the Company for use by the Company to pay for its share, in the event of withdrawal or exclusion of such a member from the Company, remains in use by the Company for the period for which this property was transferred<7>.
5. FORCE MAJOR
5.1. The Founders are exempted from partial or complete fulfillment of obligations under this Agreement, if the failure 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 decrees or orders of state bodies.
5.2. The Founder, referring to force majeure circumstances, is obliged to immediately inform other Founders about the occurrence of such circumstances in writing. At the request of other Founders, an certifying document must be submitted.
5.3. The Founder, who, due to force majeure, cannot fulfill the 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. RESOLUTION 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 execution 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. Transfer of information 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 Members of the Company.
8. FINAL PROVISIONS
8.1. This Agreement shall enter 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 by this Agreement, the Founders are guided by the current legislation of the Russian Federation.
8.4. This Agreement is made 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 company 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 at least ten thousand rubles (paragraph 2, clause 1, article 14 of the Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies”).
<3>A monetary assessment of a non-monetary contribution to the authorized capital of a business entity must be carried out independent appraiser. Participants of a business company are not entitled 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, clause 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 term of such payment cannot exceed four months from the date of state registration of the company. At the same time, 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 February 8, 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 prepayment of three-quarters of the authorized capital, the participants in the company bear subsidiary liability for its obligations that arose before the full payment of the authorized capital (paragraph 2, clause 4, article 66.2 of the Civil Code of the Russian federation).
<5>In accordance with par. 2 p. 3 art. 16 of the Federal Law of 08.02.1998 No. 14-FZ “On Limited Liability Companies”, this provision may not be provided for in the agreement on the establishment of a company.
<6>The agreement on the establishment of the company may provide for other methods and a different procedure for each member of the Company to provide compensation for the early termination of the right to use the property transferred by him for use by the company to pay for a share in the authorized capital (paragraph 2, clause 3, article 15 of the Federal Law of 02/08/1998 14-FZ "On Limited Liability Companies").
Civil Code of the Russian Federation Article 52. Constituent documents of legal entities
1. Legal entities, with the exception of business partnerships and state corporations, act on the basis of charters, which are approved by their founders (participants), except for the case provided for in paragraph 2 of this article.
(see text in previous edition)
Economic partnership acts on the basis of a constituent agreement, which is concluded by its founders (participants) and to which the rules of this Code on the charter of a legal entity are applied.
State Corporation acts on the basis of the federal law on such a state corporation.
2. Legal entities may act on the basis of a model charter approved by the authorized government agency. Information that the legal entity is acting on the basis of model charter approved by the authorized state body are indicated in the unified state register of legal entities.
The model charter approved by the authorized state body does not contain information about the name, company name, location and amount of the authorized capital of the legal entity. Such information is indicated in the unified state register of legal entities.
(see text in previous edition)
3. In cases statutory, an institution may act on the basis of a single model charter approved by its founder or a body authorized by him for institutions established to carry out activities in certain areas.
4. The charter of a legal entity, approved by the founders (participants) of the legal entity, must contain information about the name of the legal entity, its organizational and legal form, 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 organizational - legal form and kind. In the statutes non-profit organizations, statutes unitary enterprises and in the cases provided for by law, the charters of other commercial organizations must define the subject and goals of the activities of legal entities. The subject and specific goals of the activity commercial organization may also be provided for by the charter in cases where this is not mandatory by law.
(see text in previous edition)
5. The founders (participants) of a legal entity shall have the right to approve regulating corporate relations (paragraph 1 of Article 2) and internal regulations and other internal documents of the legal entity that are not founding documents.
The form of the document "Memorandum of Association" refers to the heading "Agreement of partnership, joint activity". Save a link to the document in in social networks or download it to your computer.
Memorandum of Association of OOO "___________"
City _________, "____" _____________.
Citizens of the Russian Federation:
_____________________, passport series ____ No. _____, issued by the Department of Internal Affairs "___________" GOR. ____________, date of issue: __________ of the year, subdivision code _______, residing at: ________________________________.
_____________________, passport series ____ No. __________, issued by the Passport Office No. __ of _______, date of issue _________, subdivision code: ______, residing at: _____________________________________,
hereinafter collectively referred to as the "Founders" and / or "Participants", on the basis of the Civil Code of the Russian Federation, Federal Law No. 14-FZ of February 8, 1998 "On Limited Liability Companies" (hereinafter referred to as the "Law") have concluded this Agreement as follows :
1. The Subject of the Agreement
1.1. The founders, on the basis of the pooling of their contributions, undertake to create a Limited Liability Company "__________", hereinafter referred to as the "Company".
1.2. The Company was established and operates in accordance with the Civil Code of the Russian Federation, the Federal Law of the Russian Federation "On Limited Liability Companies", this Agreement and the Charter.
1.3. The company was created to meet the needs of internal and foreign market in products, goods and services produced and rendered by the Company, and profit from the results of its activities.
1.4. To achieve the goal, the Company has the right to engage in any type of activity, subject to the restrictions established by the current legislation. Activities, the implementation of which is possible only with special permits (licenses), is carried out by the Company if they are available.
1.5. The Company is a legal entity, owns and on the basis of other real rights separate property, is liable for its obligations with all its property, can acquire and exercise property and personal non-property rights and incur obligations on its own behalf, be a plaintiff and defendant in courts.
1.6. Location of the Company: ___________________________________
1.7. Postal address of the Company: ____________________________________
2. Authorized capital of the Company, shares and contributions of participants
2.1. The value of the authorized capital of the Company is determined in the amount of _______ rubles and consists of the nominal value of the shares of its participants.
2.2. The nominal value and size of shares of the Company's members are determined as follows:
_______________________ has a share with a nominal value of __________ rubles, which is _______ percent of the authorized capital of the Company;
_______________________ has a share with a nominal value of ______ rubles, which is _______ percent of the authorized capital of the Company.
2.3. Contributions to the authorized capital of the Company are paid by the founders in cash in Russian currency. The contribution to the authorized capital of the Company at the time of state registration of the Company was paid in full by the founders of the Company in cash in Russian currency in the amount of _________ rubles, of which: ___________ rubles paid _____________________, __________ rubles paid _________________
2.4. The contribution to the authorized capital of the Company may be money, securities, other things or property rights or other rights having a monetary value. The monetary value of non-monetary contributions to the Authorized Capital made by the Company's members and third parties accepted into the Company is approved by the decision of the General Meeting of the Company's Members, adopted by all members of the Company unanimously.
2.5. The actual value of the share of a member of the company corresponds to a part of the value net assets company in proportion to the size of its share.
2.6. It is not allowed to release the founder of the company from the obligation to make a contribution to the authorized capital of the company, including by offsetting his claims to the company.
3. Distribution of the Company's profit
3.1. The profit remaining with the Company after payment of taxes and other obligatory payments (net profit) shall be at the full disposal of the Company.
3.2. The Company has the right to quarterly, every six months or once a year to make a decision on the distribution of its net profit among the members of the Company. The decision to determine the part of the Company's profit to be distributed among the members of the Company is made by the General Meeting of the Members of the Company. The part of the Company's profit intended for distribution among its participants is distributed in proportion to their shares in the authorized capital.
3.3. The Company is not entitled to make a decision on the distribution of its profits among the members of the Company:
- until full payment of the entire authorized capital of the Company;
- before payment of the actual value of the share (part of the share) of a member of the Company in cases provided for by the current legislation on limited liability companies;
- if at the time of making such a decision the Company meets the signs of bankruptcy or if the indicated signs appear in the Company as a result of such a decision;
- if at the time of making such a decision, the value of the Company's net assets is less than its Authorized Capital and Reserve Fund or becomes less than their size as a result of payment;
3.4. The Company is not entitled to pay to the Company's members the profit, the decision on the distribution of which among the members has been made:
- if at the time of payment the Company meets the signs of bankruptcy or if the indicated signs appear in the Company as a result of payment;
- if at the time of payment the value of the Company's net assets is less than its authorized capital and reserve fund or becomes less than their size as a result of payment;
- in other cases stipulated by federal laws.
3.5. Upon termination of those listed in clause 3.4. of this agreement, the Company is obliged to pay the members of the Company the profit, the decision on the distribution of which among the members of the Company has been made.
4. Responsibility of the Company
The Company shall be liable for its obligations with all its property. The Company is not liable for the obligations of its members. Participants are not liable for the obligations of the Company and bear the risk of losses associated with the activities of the Company, within the value of their contributions. Members of the Company may be held subsidiary liability in cases and in the manner prescribed by law.
5. Management bodies of the Company
5.1. The supreme governing body of the Company is the General Meeting of Members of the Company, which includes members of the Company or their legal representatives. The competence of the General Meeting of Participants is determined by the current legislation and the Charter of the Company.
5.2. Management of the current activities of the Company and execution of decisions made by the General Meeting of Participants is carried out by the sole executive body of the Company - CEO in accordance with the powers determined by the Charter of the Company and the current legislation of the Russian Federation.
6. Rights and obligations of participants
6.1. Members of the Society have the right:
- participate in the management of the Company's affairs;
- receive information about the activities of the Company and get acquainted with its accounting books and other documentation;
- take part in the distribution of profits in the prescribed manner;
- receive, in the event of liquidation of the Company, part of the property remaining after settlements with creditors or its value.
- sell or otherwise assign its share in the authorized capital of the company or part of it to one or more members of the Company, the Company itself or third parties in the manner prescribed by the Charter of the Company and this agreement;
- at any time to withdraw from the company, regardless of the consent of its other participants.
6.2. Additional rights:
6.2.1. Members of the Company enjoy the pre-emptive right to fulfill orders received by the Company, as well as to receive orders from the Company for the performance of work and the provision of services.
6.2.2. By decision of the general meeting of participants, all participants or a certain participant of the Company may be granted other additional rights.
6.2.3. Additional rights granted to a certain member of the Company, in the event of the alienation of his share (part of the share) to the acquirer of the share (part of the share), do not pass.
6.2.4. By decision of the general meeting of the Company's members, the additional rights of a member (members) of the Company may be terminated or restricted.
6.3. Members of the Society are obliged:
- comply with the provisions of this Charter and the memorandum of association, implement the decisions of the general meeting of members of the Company;
- to make contributions in the manner, in the amount, in the composition and within the time limits stipulated by the legislation and the constituent documents of the Company;
- not to disclose confidential information about the activities of the Company;
- provide the Company with the information necessary for its successful operation and provide any assistance to the Company in achieving its statutory goals;
refrain from actions that could cause moral or material harm to the Company or its members.
6.4. The assignment of additional obligations to a member of the Company is carried out by decision of the General Meeting of Members of the Company, adopted by a majority of at least two-thirds of the votes of total number votes of the members of the Company, provided that the member of the Company who is additional responsibilities, voted for the adoption of such a decision or gave written consent.
7. Withdrawal of a participant from the Company
7.1. A member of the Company has the right to withdraw from the Company at any time, regardless of the consent of its other members or the Company. In the event that a participant in a company withdraws from the company, his share shall be transferred to the company from the moment of filing an application for withdrawal from the company. At the same time, the company is obliged to pay the participant of the company who submitted an application for withdrawal from the company the actual value of his share, determined on the basis of the data financial statements of the company for the year during which the application for withdrawal from the company was filed, or with the consent of the participant in the company, give him property in kind of the same value, and in case of incomplete payment of his contribution to the authorized capital of the company, the actual value of the part of his share proportional to the paid part of the contribution .
7.2. The company is obliged to pay the participant of the company who filed an application for withdrawal from the company the actual value of his share or to give him property in kind of the same value within six months from the date of termination fiscal year during which the application for withdrawal from the company was submitted.
7.3. Withdrawal of a participant from the Company does not release him from the obligation to the Company to make a contribution to the property of the Company, which arose before the filing of an application for withdrawal.
8. Trade secret
8.1. The technical, financial, commercial and other information provided to the participants related to the establishment and activities of the Company is considered confidential.
8.2. The volume of information considered confidential is determined by the General Meeting of Members of the Company in accordance with the current legislation of the Russian Federation.
9. Termination of the Company's activities
Termination of the Company's activities occurs through its reorganization (merger, accession, separation, transformation) or liquidation in cases and in the manner prescribed by the current legislation of the Russian Federation.
10. Dispute Resolution
10.1. The Participants will make every effort to resolve all disagreements and disputes related to the implementation of this Agreement through negotiations.
10.2. If disagreements and disputes cannot be resolved through negotiations, they are resolved in general order in a court. The decision of the court is final and binding on the disputing parties.
11. Validity of this Agreement
11.1. This Agreement is concluded for an indefinite period and is valid from the moment of its signing by the parties.
11.2. This agreement may be amended, supplemented, terminated in cases and on the grounds provided for by applicable law.
The founders of the Society:
__________________________________ ____________________
For the registration of an LLC in the MIFTS ___ in _______, the following set of documents is required:
1. application form ________;
2. protocol (if 1 founder-decision)
3. 1 original Charter
4. 1 copy of the Charter
5. 1 original of the Memorandum of Association
6. 1 copy of the Memorandum of Association
7. receipt of payment for the state. fees ____ p.
8. Receipt of payment for the certification of the uchr. documents (___ r. plus ___ r., total ___ r.)
9. request for certified constituent documents
10. letter of guarantee from the owner non-residential premises on providing the address indicated in the constituent documents as the address of the location of the Company.
11. Certificate of state. registration of property rights (to this address)
- What is the founding document of an LLC;
- What is the Charter;
- What information should the Articles of Association contain;
- Is it possible to amend the Charter;
- What is a memorandum of association.
Since July 1, 2009, the list of constituent documents has been reduced to one item. From this date, the only founding document of the Limited Liability Company is the Charter of the LLC. The Memorandum of Association is no longer considered a founding document, but it is a mandatory document for registering an LLC.
LLC Charter
As mentioned above, the Charter is the only founding document of the LLC and all future activities of the Company are carried out on the basis of the Charter.
According to Federal Law No. 14-FZ “On Limited Liability Companies” (Article 12, paragraph 2), the Charter must contain:
- full and abbreviated name of LLC;
- information about the location of the LLC;
- information on the competence of the governing bodies of the LLC, including on issues constituting the exclusive competence of the general meeting of participants in the LLC, on the procedure for making decisions by the company's bodies, including on issues decisions on which are taken unanimously or by a qualified majority of votes;
- information on the amount of the authorized capital of the LLC;
- rights and obligations of LLC participants;
- information on the procedure and consequences of the participant's withdrawal from the company;
- information on the procedure for the transfer of a share (part of a share) in the authorized capital of an LLC to another person;
- information on the procedure for storing LLC documents and on the procedure for the company to provide information to LLC participants and other persons;
- other information provided for by the Federal Law "On Limited Liability Companies"
At the same time, the Charter of an LLC may contain other provisions that do not contradict the current legislation.
Any interested person, including participants or an auditor, can familiarize themselves with the current version of the Charter. A fee may be charged for making a copy of the Charter, but it should not exceed the actual cost of making it.
Changes to the Articles of Association of LLC
Changes may be made to the Charter of a Limited Liability Company, for example, when the size of the authorized capital of an LLC is increased or the legal address is changed. Such changes are made only by decision of the General Meeting of Participants or the sole participant.
All changes are subject to state registration. The procedure for state registration of changes to the Charter of an LLC is reflected in the Law on State Registration of Legal Entities (,). Changes come into force from the moment of their state registration.
Memorandum of association
When registering an LLC, the Memorandum of Association, as before, is submitted along with other documents, although it is not a constituent document. The memorandum of association is internal document of the Company and contains information on the amount of the authorized capital of the LLC and methods of its formation, the nominal value of the share of each member of the Company and other provisions.
A specific document in the structure of limited liability companies (LLC) is the memorandum of association. The document is controversial, not mandatory for creation, but necessary for the successful functioning of the company. The presence of a memorandum of association in a number of cases helped to avoid many problems in business, therefore, it is recommended that the owners of each company draw up such a document.
What is LLC
In the field entrepreneurial activity There is a concept of a limited liability company. This type of business organization has firmly taken its place among the main ways of doing business. LLC successfully combines the features of individual entrepreneurship and the fundamental features of large joint-stock companies.
In a number of countries, the word "partnership" is used instead of the word "society". These are Kazakhstan, Ukraine and others. Without going into linguistic features, it can be noted that such a term better reflects the essence of the way a company is organized as an LLC. It is a group of like-minded people or friends who in everyday life creates a company according to the LLC scheme.
The term "limited liability company" has firmly entered our lives more than a quarter of a century ago.
Table: the main advantages and disadvantages of a business in the form of an LLC
LLC occupies an intermediate position between the simplest individual entrepreneurship and more complex shapes organization of the enterprise in the form of a joint-stock company. In the structure of LLC there are signs of both formations. The memorandum of association (UD) performs the same intermediate function.
What does a proper memorandum of association look like?
The activities of the LLC are regulated by Law No. 14-FZ of February 8, 1998, as amended on July 3, 2016. The changes came into effect on January 1, 2017. In accordance with this law, the UD is not a constituent document: a memorandum of association is not needed to register an LLC. It is considered as the main founding document only for non-profit organizations. This document is strictly confidential. Therefore, you are not obliged to present it to anyone, except as a representative of the investigative department, if there is a sanction or with your consent.
Why is the memorandum of association so important? In terms of company structure, nothing. Usually, the same provisions are briefly spelled out in the UD as in the charter. But in the legal sense, it is more difficult to challenge the UD in the order of civil law relations, because:
- this document is signed by each founder on an equal footing with the other participants, and the charter is approved by the first head by decision of the general meeting;
- the memorandum of association is notarized in the presence of all stakeholders, and the charter of LLC for registration refers one representative.
The UD can be drawn up at any time: both before the signing of the charter, and after that. At its core, the memorandum of association is an agreement between the founders of the company about the financial system of the company. It is written in it:
- the percentage of the funds of the founders in the authorized capital at the time of opening the company;
- equity participation in the structure of the company;
- the procedure for the redistribution of shares, the sale of a share to the parties to the agreement and the transfer to third parties;
- issues of resolving disputes and conflict situations;
- the terms and procedure for making their share by the founders;
- distribution of income from LLC activities.
The last two paragraphs contain confidential information and may be trade secrets.
Features of the memorandum of association
The memorandum of association is an agreement concluded between the founders of a legal entity upon its creation. The text of the document prescribes the obligation of the participants to create a legal entity, determines the nuances of subsequent joint activities and participation in management.
The contract consists of several sections, each of which contains certain information:
- The introductory part, which indicates the purpose of the contract.
- The name of the document and the legal form of the organization (in this case OOO). This information is not mandatory from the point of view of the state, but helps to specify the subject of the agreement.
- The subject of activity and location of the organization. In this paragraph, you should indicate at what address the newly created legal entity will be registered.
- Obligations of the founders to form an LLC. According to paragraph 1 of Article 432 of the Civil Code of the Russian Federation, the document must contain all the information that makes it possible to identify its parties. Therefore, this paragraph begins with a preamble, which indicates the personal data of the participants in the agreement (name, name of legal entities, contact details, etc.).
- The procedure for the formation of the authorized capital and data on the payment of equity contributions. AT without fail the text of the agreement must contain information on the terms of payment for shares (clause 5, article 11 of the LLC Law), the amount of the authorized capital (clause 1, article 89 of the Civil Code of the Russian Federation). When creating an LLC, it must be remembered that the legislator requires that the minimum authorized capital be more than 10 thousand rubles (clause 1, article 14 of the LLC Law).
- Responsibility for the obligations of the created legal entity. Often, liability is established in direct proportion to the share contribution of each founder. If the statutory fund is created on the principle of equality, the size of the shares is identical, then the responsibility will be distributed equally.
- The procedure for the distribution of profits and repayment of losses. The law regarding this point provides complete freedom of action to the parties to the contract. Determine how the division of profits will take place, how they are obliged to fulfill credit obligations on their own.
- LLC management procedure. Clause 5, Article 11 of the LLC Law states that information of this type is entered into the text of the contract without fail. Here you need to indicate how the board of the LLC will be formed, what rules apply when determining candidates for leadership positions. The date of the general meeting of founders and the procedure for notification of the upcoming meeting are also additionally indicated.
- The rights and obligations of the founders, including liability for violation of the agreement, issues related to the exit or entry of the founders into the LLC.
- The procedure for considering disputes, changing and terminating the contract, reorganizing and liquidating the LLC.
- Other information entered at the discretion of the parties to the contractual process. These include the provision on the responsibility of the founders in case of non-payment of their share in the LLC, the provision of compensation to the company by the founder, the procedure for regulating disagreements that arise in the course of work.
Subject and features of the memorandum of association
Memorandum of Association as official document has the following key features:
- The agreement is aimed at creating a collective entity with the status of a legal entity.
- The agreement regulates the issue of making shares in the authorized capital of an LLC by each founder. This issue is regulated independently by all parties to the contractual process, which personally establish specific amounts of contributions.
- The contract establishes a legal relationship between the parties to the agreement at the time of signing. In addition, the document forms the legal relationship of each of the founders with the company they create.
In the agreement, all parties are referred to as founders or participants. Many mistakenly believe that both terms are equivalent, but this is not entirely true. A participant is understood as a person whose participation in a transaction is limited to the contribution of property assets.
At the same time, a founder is a person who directly influences the activities of the newly formed LLC, participating in the management of the company. At the same time, the founder and the participant may coincide in one person, although not always.
The composition of the founders and participants in the memorandum of association directly depends on the organizational and legal form of the company. The legislator points out that both acting legal entities and individuals can act as a party to the contractual process.
Speaking about the subject of the memorandum of association, it must be remembered that, first of all, these are relations for the creation of a legal entity. Thus, the subject matter is the obligation of several parties to form a single production entity, determine the scope of its activities of interests, and resolve the issue regarding the authorized capital and property assets of the LLC.
Regardless of the chosen legal form of the company (in this situation, an LLC), the contract must include mandatory conditions regulated by the provisions of the Civil Code:
- Organizational and legal aspects;
- Order joint work several persons as founders of a new LLC;
- Transfer of property assets belonging to the parties to the transaction in favor of the newly formed company;
- Participation of all founders in the management of the company;
- The procedure for the exit of old parties to the agreement and the entry of new persons;
- The condition for the distribution of available profits among all equity holders.
Functions of the memorandum of association
The memorandum of association has 3 main functions:
- Regulation corporate relations arising at the time of state registration of LLC on the basis of signed agreements between several parties. At the same time, the fact is taken into account that relations arise not only between the direct founders, but also between each of them and the LLC.
- Determining the legal status of an LLC. It is the memorandum of association that is responsible for legal status a newly formed legal entity that acquires eligibility at the time of registration of the contract in state structures.
- Formation of relations between the founders from the moment of concluding the memorandum of association to the actual registration of the enterprise.
An exemplary sample of a typical UD
In the heading of the agreement, it is necessary to refer to the date of the general meeting of the founders, reflect the number of persons present at it, and also note that the decision to organize the LLC was made unanimously. If this is not the case, your company simply will not be registered.
The text of the agreement should reflect the most important points regarding the activities of the company, the distribution of rights and responsibilities between its participants. It is imperative to describe the procedure for acquiring, selling, inheriting and donating shares, the specifics of the distribution of net profit, what to do in case of signs of bankruptcy of the company, and other points that may cause disagreements between the co-founders.
Conditions for signing the memorandum of association
Article 52 of the Labor Code of the Russian Federation unequivocally classifies the memorandum of association as a constituent document. But the comments explain that the charter of the enterprise is of paramount importance, after which the very concept of UD faded into the background.
List actual changes The Labor Code of the Russian Federation can be viewed for free at this link.
Currently valid Labor Code as amended on 07.02.2017. It contains norms General partnership”and“ Faith Partnerships ”, the creation of which does not provide for the approval of the Charter. For such organizations, the UD is the main constituent document (Articles 70 and 83 of the Labor Code). As lawyers explain, for an LLC, Federal Law No. 14-FZ is of paramount importance, according to which (clause 5, article 11) UD is not a constituent document, therefore, it is not taken into account during registration.
How is the UD different from the charter
If you come to register an LLC only with a memorandum of association, then you will be denied registration and will be required to have a Charter, which will be legal. There is no provision in the Labor Code of the Russian Federation that allows registration of an LLC only on the basis of UD. And the requirements for the charter and the memorandum of association are almost the same. From here came the formal attitude to the UD and the actual duplication of these documents. However, in practice there are differences. Sample documents, charters and constituent documents are located.
Table: difference between articles of association and memorandum of association
| Comparison criteria | Charter | Memorandum of association |
| One founder | Not needed | |
| Multiple founders | Mandatory founding document | Can be drawn up |
| Form of taxation | Prescribed | May not be specified |
| Approval procedure | Agreed on general meeting, approved by the first head | Signed by all participants on equal terms |
| Approval procedure | Provided to the tax office upon registration | Certified by a notary. |
| Application | Management in the activities of the enterprise | Document for internal use |
| Order of change | Within 5 days when changing the taxation system, founders, etc. | It may not change. A new one is drawn up with the general consent of the founders |
As can be seen from the table, when an LLC is established by one person, compiling the UD does not make sense. With several founders, an agreement may be drawn up, but is not binding. A rough comparison, but when organizing an LLC, the memorandum of association plays the same role as the marriage contract in the family.
The issue of trust in the co-founders does not matter when deciding to conclude an UD. Here, rather, we are talking about legal expediency. If there is a charter, LLC UD is not necessary, therefore, no responsibility for its absence is provided for the founders and managers.
Trust between the co-founders is great, but drafting a well-thought-out memorandum of association will save them from possible disagreements in difficult situations. How to make a UD
The requirements for the drafting of a memorandum of association are practically the same as for the Charter of a commercial organization. They are regulated by paragraph 2 of Art. 52 of the Labor Code of the Russian Federation (see also clause 3 of article 54 of the Civil Code of the Russian Federation). And also Art. 70, 83, 89, 95, 98, 108, 113, 116, 118 and 122 of the Labor Code of the Russian Federation. The name and legal address of the company must be indicated in the UD.
Registration is carried out only according to the Russian-language version of the name of the LLC and with a real legal address, which can receive notifications. The remaining provisions of the charter may, to one degree or another, take into account the specifics of entrepreneurship and organization of the enterprise.
Given that the UD for LLC is not the main constituent document, it is not required to submit and register with the tax authorities. The content of the document can be greatly simplified, leaving the fundamental principles of contributions to the authorized capital and the income distribution system. Contributions to the authorized capital can be made both in the form of fixed assets and in cash. Shares can also be experience, special skills of the shareholder or his acquaintances, connections (the so-called administrative resource). Everything is expressed in monetary terms or in conventional units (in this case, foreign currency is not implied).
Table: example of founders' contributions to the enterprise
We see the consent of the three founders to organize an LLC in the field of production with an equal distribution of shares. The sale of products in this case is negotiated separately. Here you can also provide for the conditions for violating the terms of the contribution to the common capital. The Charter may not provide such a breakdown. The requirements for the Charter are given in Article 12 of Federal Law No. 14-FZ. A form of a standard memorandum of association can be found on the Internet.
It is worth paying additional attention to the extract from legislative changes in the statutory documents dated 01/01/2017.
A formal approach to the drafting of the memorandum of association will lead to blind copying of the Charter. None practical value UD will not have. And in this case, there is no need to draw it up. The UD is drawn up only in the presence of all the founders and by common agreement. The memorandum of association is certified by a notary, then it has real legal force.