Establishment of the company, Charter capital of the company - Commercial law

Establishment of the Society

Following the domestic tradition and the rules of the US Civil Code, the LLC Law retained for these companies the requirement of two constituent documents: of the articles of association and the memorandum of association (if the number of participants is two or more) .

In the constituent contract, the founders of the company undertake to create a society and determine the order of joint activities for its creation. The constituent agreement also defines the main parameters of the company: the composition of the founders (members) of the company, the size of the company's charter capital and the size of the share of each of the founders (members) of the company, the size and composition of deposits, the procedure and terms for their introduction into the charter capital of the company when it is established, (participants) of the company for violation of the obligation to make deposits, the terms and procedure for the distribution of profit between the founders (members) of the company, the composition of the bodies of the company and the procedure for the withdrawal of the participant of society.

The company's charter must contain:

o full and abbreviated company name of the company;

o information about the location of the company;

o information on the composition and competence of the bodies of the company, including on matters that constitute the exclusive competence of the general meeting of the company's participants, on the procedure for the adoption by the company's bodies of decisions, including on issues decided unanimously or by a qualified majority of votes;

o information on the size of the company's authorized capital;

o information on the amount of the nominal value of the share of each member of the company;

o rights and duties of company participants;

o information about the order and consequences of the withdrawal of a company member from it;

o information on the procedure for transferring a share (part of a share) in the authorized capital of the company to another person;

o information on the order of keeping the documents of the company and on the procedure for providing the company with information to the participants of the company and other persons

o other information provided by the LLC Law.

The company's charter may also contain other provisions that do not contradict federal laws.

The Law on LLC provides that in case of contradictions in the content of the memorandum of association and the charter, the preference should be given to the charter, not only in relations with third parties (in fact, the statute is calculated), but also in relations with the participants in the society.

Founders of Society:

o conclude a memorandum of association;

o approve the charter of the company (the decision must be taken unanimously);

o elect (appoint) the executive bodies of the company;

o approve the monetary valuation of non-monetary contributions to the charter capital of the company;

o are jointly and severally liable for the obligations associated with the establishment of the company (before approval of their actions by the general meeting of participants).

Authorized capital of the company

The authorized capital of a limited liability company under the LLC Law is not made up of the value of its participants' contributions "; (item 1 of article 90 of the RF PS), and from the "par value of its participants' shares" (and. Section 14 of the LLC Law.) In this respect, the LLC Law took a more precise position than the Code. He distinguishes the par value of the participant's share , but the ratio of which to the authorized (initial) capital is determined by the size of its share, and the actual value of the share, which corresponds to a part of the value of the company's net assets proportional to the size of the participant's share.

For example, if the charter capital of the company at the time of its creation was 10 million rubles, and net assets as a result of its activities amount to 40 million rubles, then the par value of the participant who contributed U5 of the charter capital of the company is 2 million rubles, then as its real value will be 8 million rubles.

Thus, the nominal value of a share is determined by its initial assessment, and the actual value of a share is a real valuation, which in the usual case should be higher than the nominal value, since a successfully operating company will have more property than its authorized capital. From this, in particular, it follows that the value of the contribution of each company's founder can not be less than the nominal value of its share, and when a new participant is admitted to the company, it must pay the actual, and not the nominal value of the share. Accordingly, contributions to the charter capital of the society increase the nominal value of the shares of its participants, while contributions to other assets societies increase the actual value of the participants' shares, without affecting the size and par value of their shares in the authorized capital.

The company's charter capital can not be less than 100 times the minimum wage and is considered as the minimum amount of the company's property that guarantees the interests of its creditors.

In order to maintain the balance of interests between the members of the society of the company's charter or the unanimous decision of its general meeting, it is possible to limit the maximum stake of the participant (if, for example, the members of the company want to exclude the possibility of preferential position of one of them) or to limit the possibility of changing the ratio of their shares, t . from. prohibition of an unlimited increase in the proportion of one or more participants with a corresponding decrease in the shares of other participants. However, such a decision must be general in nature, concerning any members of the society, and can not be taken with respect to a particular participant (s).

things (including money and securities), as well as eligibility or use, having a monetary value. In this capacity, professional and other knowledge and skills, services rendered to the company or promises of providing services, business reputation and business ties can not act as they can not constitute the object of claims of possible creditors of the society. In addition, the charter of a particular company can additionally determine types of property that can not serve as a contribution to its authorized capital. It should be noted the increase in the guarantee for certain things transferred to the company's authorized capital use rights . Upon the withdrawal or exclusion from the company of the participant who transferred the property for use to the company as a contribution, and not as property, this property remains in the use of the company for the period for which it was originally transferred.

The monetary valuation of non-monetary deposits is approved by a unanimous decision of the general meeting of the company's participants. Non-monetary contributions of participants for more than 200 times the minimum wage are subject to independent evaluation. In case of an overestimation of the valuation of such contribution, both the company's participants and the independent appraiser are jointly and severally liable for the company's liabilities in the course of three years from the date of its deposit, in the event of the insufficiency of its property in the amount of overvaluation of the non-monetary contribution (in subsidiary order).

Members of the company are responsible for observing the period for which the property was transferred to the company as their contribution: in the event of termination of the company's right to use the property before the expiry of the term on which such property was transferred to the company for use as a contribution to the authorized capital, the participant of the company that transferred the property is obliged to provide to the company on its demand monetary compensation, equal to the payment for using the same property on similar terms for the remainder of the term.

The period during which each founder of a company must fully contribute to the authorized capital can not exceed one year from the date of state registration of the company. By the time of the state registration of the company, its authorized capital must be paid at least half.

Along with protecting the interests of potential creditors, the LLC Law establishes a number of new guarantees for members of the company. So, in order to preserve the size of their shares and maintain the existing balance of their mutual and property interests, special rules have been established to change (increase and decrease) the size of the company's charter capital.

The increase of the company's authorized capital is allowed in three ways. First, it is possible for account of the property of the company itself (without additional contributions of its participants), i.e. due to its net assets. In order for the increase amount (AUC) to reflect a real, rather than fictitious, increase in the company's property, it obviously should not exceed the difference between the value of its net assets (CA) * and the amount of the authorized capital (CC) and the reserve fund (RF), t .e

or newly formed authorized capital (MC = CC + + AUC) should not exceed the difference between net assets and the reserve fund:

At the same time, the size of the shares of the company's participants remains unchanged, but their nominal value increases, and the ratio of the total nominal value of the shares of its participants (authorized capital) to their real (estimated, market) value (K) increases in the capital structure of the society:

Increase of the authorized capital at the expense of property raises guarantees to creditors and allows the company, if necessary, to increase the total amount of liabilities, which leads to a decrease in the reserve value of net assets.

If the excess of net assets over the authorized capital is DCA = K - CC, then with the increase in total liabilities by the amount of the increment of the authorized capital (DUK), the reserve value (in this case, the actual) of net assets will be:

t. it decreases by the value of the ARC.

Owing to the decrease in the reserve value of net assets, the risk of insolvency of the company increases, so the increase of the authorized capital at the expense of the property of the company and, accordingly, the increase in the volume of total liabilities is advisable only under favorable conditions for society.

Secondly, the increase of the authorized capital is possible due to additional contributions of participants to the authorized capital. Additional contributions can be made by all participants of the company in proportion to their shares, which in this case will increase their nominal value while maintaining the size of the share of each participant.

The general meeting determines by its decision:

o total value of additional deposits (DC):

where DDK; - the actual value of the additional contribution (DC) of the/-th participant; n - number of community members;

o the common for all participants ratio (d)) between the value of the additional deposit and the amount of increase in the nominal value of the share (CSN,).

The Law on LLC provides that the nominal value of a share of a company member may increase by an amount equal to or less than the value of its additional contribution, i.e.

This rule is based on the assumption that when increasing the authorized capital, the reserve value of net assets should not decrease. In support of this, we present some of the transformations.

In accordance with the previously established norm = const - for all members of society,

Authorized capital due to additional contributions of participants is increased by an AQL, while:

If the total liabilities of the company are equal to the authorized capital, the reserve value of net assets will be:

before the increase of the authorized capital

after the increase of the authorized capital

If л = 1,0, then ДЧА = ДЧА; at h & lt; 1.0 - DHA & gt; DZHA. This means that with the increase of the company's charter capital due to additional contributions of all company participants in accordance with the legal norm established in the Law, the reserve value of the company's net assets will not decrease if the company takes additional obligations within the authorized capital.

The Law on LLC provides that additional contributions to the authorized capital may not be made by all, but only by some participants or a member of the company. To this end, a decision of the general meeting is also necessary, as the result not only increases the nominal value of the shares (stake) of the participants who have made an additional contribution, but also the size of their share, and consequently, the shares of other participants decrease accordingly.

Thirdly, the increase of the authorized capital is possible due to contributions of newly accepted participants (if this possibility is not directly excluded by the charter of a particular company). At the same time, a decision of the general meeting is mandatory, in particular, because the increase in capital thus always entails a corresponding change in the shares of participants. The nominal share of a new member of the company can not exceed the value of its contribution and, as a rule, should be less than this cost, since a certain part of its contribution should serve as payment for the relevant part of the company's net assets (the new participant must pay the actual, and not the nominal value of the allocated share ).

Reduction of the company's authorized capital is allowed in two ways: either by proportionately reducing the nominal value of the shares of all participants (preserving the size of their shares) or by paying off shares owned by the company. The rules of conduct of stakeholders in various situations related to the reduction of the authorized capital are presented in Table. 2.1.

The algorithm for introducing changes to the charter capital of the company and related changes in the company's charter are shown in Figure 2.7.

The Law on LLC establishes the rules: the transfer of a share (part of a share) of a company participant in the company's authorized capital to other participants and third parties; acquisition by the company of a share (part of a share) in the authorized capital; pledge of shares of participants; foreclosure on a share (part of a share) of a company participant. In addition to the LLC Law, such rules can be established by the company's charter.

A participant in the company has the right to sell or otherwise concede his share in the company's share capital or

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Algorithm for Making Changes to the Authorized Capital (CC) and Charter of the Company (UO):

Schema 2.7. Algorithm for making changes in the authorized capital (CC) and the charter of the company (UO):

OS - General Meeting of Shareholders

Table 2.1

Current situation

Stakeholder behavior rules

1. Incomplete payment of the company's charter capital within a year from the date of its state registration

The company must declare a reduction in its authorized capital to its actually paid amount and register its reduction in the prescribed manner, or take a decision on liquidation society

2. At the end of the second and each subsequent fiscal year, the value of the company's net assets became:

- less than its charter capital;

- less than the minimum amount of the authorized capital

The company is obliged to announce reduction of its statutory capital to a size not exceeding the value of its net assets, and register such a decrease

The company is subject to liquidation

3. The Company made a decision to reduce the authorized capital

The Company is obliged to notify > in writing within 30 days from the date of adoption of such decision about the reduction of the authorized capital of the company and its new size of all creditors known to it of the company, and also to publish in the press body, in which information on the state registration of legal entities is published, a message on the decision taken. The creditors of the company are entitled to demand in writing within 30 days from the date of notification to them or within 30 days from the date of publication of the communication on the decision to early annul or fulfill the respective obligations of the company and compensate them for losses

4. In situations 1, 2, the company within a reasonable time has not decided to reduce its authorized capital or to liquidate itself

Creditors have the right to demand from the company early termination or performance of the obligations of the company and compensation for damages.

Body that performs state registration of legal entities, or other state bodies or bodies

Local government, which the right to produce such a claim is granted by federal law, in these cases the right to bring a claim to the court on the liquidation of the company

5. Lack of property of the company for payment to the outgoing member of the company of the actual value of its share

The company is obliged to pay to the company participant who submitted an application for withdrawal from the company, the actual value of his share or to give him in kind property of the same value. The actual value of a participant's share of a company is paid at the expense of the difference between the value of the company's net assets and the size of its authorized capital. In the event that such a difference is not enough for the payment to the company participant who submitted the application for withdrawal, the company is obliged to reduce its authorized capital by the missing amount

part of one or several participants in this company or, if it is not prohibited by the charter of the company, to a third party. At the same time, members of the company use the pre-emptive right to purchase a share (part of the share) of a company participant at the price of the offer to a third party in proportion to the size of their shares, if the charter of the company or the agreement of the participants of the company does not provide for a different procedure for the exercise of this right. The company's charter may provide for the company's priority right to acquire a stake (part of the stake) sold by its participant, unless other members of the company have exercised their pre-emptive right to purchase a stake (part of the share). The right to purchase a share (part of a stake), the disproportionate of the shares of the company's participants, may be provided by the company's charter when it was established, amended and excluded from the company's charter by decision of the general meeting of shareholders society, adopted by all participants unanimously.

The possibility of keeping the members of a limited liability company unchanged is one of the advantages of this organizational and legal form.

For this purpose, the LLC Law allows the statute of a particular company to prohibit not only the sale but also the other assignment of a stake of a participant to a third party or the obligatory consent of the company or other participants in such an assignment or sale.

The company's charter may provide for the need to obtain the consent of the remaining members of the company and to transfer the share to the heirs or other successors of the person who was a member of the company.

A company's participant has the right to pledge its share (part of a stake) in the company's share capital to another member of the company or, if it is not prohibited by the company's charter, to a third party with the consent of the company decision of the general meeting of participants.

The pledge of a shareholder (or part thereof) by a company participant in a company to a third party may also be prohibited by the charter of the company. After all, when a stake (or part thereof) is sold with public tenders (including when it is sold as collateral), the stakeholder becomes a participant in the company, regardless of the consent of the company itself or its other participants.

If the company's charter concludes the assignment of a share (part of a share) of a company participant to third parties, and other members of the company refuse to purchase it from the company, as well as in case of refusal to concede a share (part of the share) to a company participant or a third party, if the need to obtain such consent is stipulated by the charter of the company, the company is obliged to purchase its share (part of the stake) at the request of the company's participant.

The share held by the company within one year from the date of its transition to the company must be distributed by all participants in proportion to their shares in the authorized capital by decision of the general meeting of the company's participants of the company or sold (to the decision of the general meeting of the company's participants unanimously) to all or some of the members of the company and (or), if it is not prohibited by the charter, to third parties and fully paid. The undistributed or unsold portion of the share must be repaid with a corresponding reduction in the authorized capital of the company.

Appeal at the request of creditors foreclosure (part of the share) of a company participant in the company's share capital in debt of this participant is allowed only on the basis of a court decision in case of insufficient coverage of debts of another property of a company participant. At the same time, the company has the right to pay to the creditors the actual value of the share (part of the stake) of the company's participant.

A member of the company may at any time withdraw from the company regardless of the consent of its other members or society. At the same time, his share passes to society and society is obliged to pay him the real value of his share or (with the consent) to give him in kind property of the same value. If the payment is made at the expense of a decrease in the authorized capital, then this entails extremely unfavorable consequences for society.

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