Memorandum of association- This is a document that is concluded when an organization is created by its founders. In this agreement, the participants determine the terms joint activities, the procedure for the transfer of their property and participation in the work of the enterprise. Such a document should also contain clauses on the distribution of profits and losses between the founders, the management of the company's activities, as well as the procedure and conditions for the withdrawal of participants from its composition.
Document requirement
According to the Civil Code, the memorandum of association in its status can be attributed to However, an agreement on the establishment of a company with limited liability is not considered to be the founding documents of such a legal entity.
The memorandum of association must necessarily comply with the requirements of the law. The documents must specify the name of the company, its location, the procedure for managing the activities of the organization and other data that are provided for by law. The documentation of non-profit structures must also indicate the subject and goals of their activities. The parties to the agreement can be at least two participants, which can be citizens, legal entities or even public legal entities. For example, the constituent agreement of an OJSC has the right to conclude both individuals and legal entities. True, for some types of enterprises, certain restrictions are established on the composition of the founders. Any party to the agreement may withdraw from the founders without the consent of other members.
Features for different types of legal entities
For a general partnership, the contract is the only founding document. At the same time as for associations different along with the founding agreement important document is the statute. In addition, if the memorandum of association of a CJSC contradicts its charter, then the provisions of the latter will play a decisive role. In addition, the law allows closed joint-stock companies to be transformed into a cooperative or a limited liability company. By decision of the shareholders, it can be re-registered as a non-profit organization.
State registration
Until the enterprise has passed state registration, the memorandum of association may be terminated or amended, and all the resulting obligations of the parties may be terminated. For example, such an agreement may terminate if the members of the company do not have the opportunity
After holding state registration all parties to the memorandum of association are required to begin its execution. Now you can change or terminate such an agreement only with the subsequent registration of changes in tax office. The Memorandum of Association is valid throughout the entire period of existence of the enterprise, regardless of the legal form. In some cases, if it is provided for by the agreement, it will be valid after the liquidation of the company until the moment when the founders pay off creditors and divide the remaining property.
The constituent agreement is concluded by the participants of the organization in the form of a limited liability company at the stage of its creation. The conclusion of this agreement is not a prerequisite for the registration and subsequent activities of a legal entity, therefore, the issue of conducting this procedure is left to the discretion of the founders.
When forming joint-stock companies, it is possible to conclude a similar agreement, which is called an agreement on the creation of a company. The memorandum of association does not have the status of a constituent document, is not available in various government bodies for the legal entity to exercise its own rights, fulfill its obligations.
How to conclude a memorandum of association?
To conclude a memorandum of association, future members of the company must agree on all its main conditions. Usually, this agreement is signed before the charter of the legal entity is drawn up, sometimes the memorandum of association makes reference to the charter, which supplements and deciphers some of the conditions of this transaction.
The main issues that, when signing the memorandum of association and are fixed in its text, are the conditions for the transfer of property of the organization being created, the features of the participation of founders in this company, the rules for distributing profits and losses, ways of managing the company, and other significant points. After that, the founders draw up a written text of the agreement, which is signed by each of them. After reaching an agreement between the participants, the memorandum of association comes into force.
What can be included in a memorandum of association?
Structurally, the memorandum of association usually includes an introductory, main and final part. In the introductory part, the purpose of concluding the contract is indicated, its parties are named, the name, organizational and legal form created legal entity. Also in this block information about the type of activity and the location of the future company is recorded.
The main part describes the obligations of the participants, the procedure for the formation of the company's property, the features of the formation of management bodies, the procedure for distributing profits and other significant issues. In the final part, the participants agree on the procedure for resolving disputes that may arise in the future, and also determine the conditions for a possible change, termination of the contract later.
Constituent documents- these are documents on the basis of which legal entities (institutions, organizations, enterprises) operate. The founding documents include the memorandum of association and articles of association.
Memorandum of association is an agreement in which the parties (founders) undertake to create entity and determine the procedure for joint activities for its creation, the conditions for transferring its property to it and participation in its activities. The agreement also defines the conditions and procedure for the distribution of profits and losses among the participants, management of the activities of a legal entity, withdrawal of founders (participants) from its composition.
General partnerships and limited partnerships operate on the basis of the founding agreement. On the basis of the charter - joint-stock companies, limited and additional liability companies created by one person, as well as public organizations (associations, etc.).
Limited and additional liability companies, as well as associations of legal entities (associations and unions) operate on the basis of the founding agreement and the charter.
A non-profit organization may act on the basis of the general regulation on organizations of this type. Commercial organizations cannot act on the basis of the general provision on organizations of this type.
At the stage of creation joint-stock company the main role is played by the memorandum of association and the charter, which fix the subject, goals and nature of the company's activities, its status, the formation procedure and the size of the authorized capital, the size of the share of each of the founders (participants) of the company, the amount and composition of contributions, the procedure and terms for their introduction into the authorized capital , the principles of relations between the members of the society, the principles and procedures of management.
The constituent agreement also defines the composition of the founders (participants) of the company, their liability for violation of the obligation to make contributions, the conditions and procedure for the distribution of profits among the founders (participants) of the company, the composition of the bodies and the procedure for the withdrawal of participants from the company.
The texts of the founding agreement and the charter are standard and require only minor revision, taking into account the specifics of the joint-stock company being created.
Charter
Charter - legal act, defining the status, organizational structure, goals, nature and procedure for the activities of the established legal entity. General provisions on the charter are contained in the first part Civil Code Russian Federation.
The constituent documents of a legal entity must contain the name of the legal entity, its location, the procedure for managing the activities of the legal entity, as well as other information provided for by law for legal entities of the relevant type (for example, the subject and goals of the legal entity's activities).
A legal entity acts on the basis of a charter, or a constituent agreement and a charter, or only a constituent agreement. A legal entity that is not a commercial organization, in cases provided for by law, may act on the basis of the regulations on organizations of this type.
The constituent agreement of a legal entity is concluded, and the charter is approved by its founders (participants).
A legal entity created by one founder acts on the basis of the charter approved by this founder.
The memorandum of association in terms of the method of execution is consensual, since it enters into force after reaching an agreement between the parties, and according to its purpose in management activities, it is an organizational document.
The procedure for concluding, drawing up and formalizing, entry into force, termination and other legal aspects of the memorandum of association are regulated by the legislation of the Russian Federation.
The memorandum of association may consist of the following sections:
1. Introduction.
2. The purpose of the conclusion of the contract.
3. Name and legal form of the organization.
4. Subject of activity.
5. Location of the organization.
6. Obligations of participants (founders) to create a legal entity.
7. Procedure for the formation of property.
8. Conditions on the liability of specific participants (founders) for the obligations of the established legal entity.
9. The procedure for the distribution of profits and repayment of losses.
10. The procedure for managing the affairs of a legal entity.
11. Rights and obligations of participants (founders).
12. Liability for breach of contract.
13. Conditions and procedure for the withdrawal of participants (founders) from the organization and the admission of new members
14. Procedure for consideration of disputes.
15. The procedure for changing and terminating the contract, reorganization and liquidation of a legal entity.
If necessary, the constituent agreement approves the charter, which supplements the agreement and fixes the organizational and legal status of the organization.
The memorandum of association shall enter into force from the moment of its signing, unless otherwise specified in the memorandum itself.
If a legal entity acts as a founder, then the agreement on its behalf is signed by the head of the institution or a person endowed with powers confirmed by a power of attorney.
The organization is considered established and acquires the rights of a legal entity from the date of state registration. The constituent agreement and the charter or only the constituent agreement are submitted to the relevant state bodies.
Charter - a set of rules governing the activities of an organization, institution, societies and citizens, their relationship with other organizations and citizens, rights and obligations in a certain area government controlled, economic or other activities. For example, the charter of the voluntary sports society, Charter railways, Veterinary charter, etc. General statutes approved by higher authorities state power and management, and charters public organizations accepted and approved by their congresses.
The charters of enterprises, institutions and organizations are approved by higher authorities (ministries, administrations of subjects of the federation), the charter of a legal entity is approved by its founders (participants) and is subject to state registration in the prescribed manner. The charter refers to the mandatory constituent documents when creating non-state commercial organizations. General requirements to the procedure for compiling, formalizing and maintaining the charter of a legal entity are given in part one of the Civil Code of the Russian Federation.
The structure of the text of the charter varies depending on its variety. For example, an organization's charter includes: general provisions; goals and objectives; rights; activity; property; control; reorganization and liquidation.
The charter of a joint-stock company contains the following sections:
General provisions;
Share capital;
The order of activity;
Control;
Accounting and reporting;
Profit distribution;
Other savings;
Termination of activity.
Surprisingly, there is no such thing as a “memorandum of association” for a limited liability company as of July 1, 2009. However, there is the concept of "an agreement on the establishment of a company." We will tell you what is the difference between these wordings, and also how the charter differs from the memorandum of association.
Previously, a written agreement between the founders of the company was formulated as a constituent agreement of a legal entity and was a mandatory document of an LLC along with the charter.
Now Article 11 federal law dated February 8, 1998 No. 14-FZ " About limited liability companies» it is determined that the agreement on the establishment of the company is no longer the constituent document of the company. But despite this, the founders of an LLC are obliged to conclude it in writing(Clause 5, Article 11 of the Federal Law No. 14) and store (Clause 1, Article 50 of the Federal Law No. 14-FZ).
Memorandum and Articles of Association of LLC
These documents have completely different status and purpose, however, they are often compared. For ease of comparison, we will make it in the form of a table.
Memorandum of Association of LLC, sample
So, what information should contain the correct memorandum of association, a sample of which we will give below?
- Information about the founders of the company, which is indicated in the preamble. At the same time, speaking of individuals, it is recommended to indicate, in addition to the last name, first name and patronymic, information about citizenship, passport data, date of birth and place of registration on the territory of the Russian Federation. About legal entities - company name, PSRN and TIN for a Russian legal entity, registration information for a foreign legal entity, location. In other words, information must be provided to accurately identify the parties to the agreement. It is obligatory to indicate the representatives of the founders and the grounds for their powers (charter, power of attorney).
- Full or abbreviated corporate name of the organization being created. The legislator does not require mandatory mention of the name in the agreement, however, in the future - at the stage of preparing the Charter - such information will be strictly mandatory. In the agreement considered in the article, it will help to specify the subject of the agreement.
- Location of the new company (actual or planned).
- Size authorized capital, which is determined in rubles and cannot be less than 10,000 rubles.
- The size and nominal value of the share of each of the founders. A share is always a percentage or a fraction (the ratio of the value of the share of each founder to the authorized capital of the company as a whole). nominal cost is the amount in rubles.
- The procedure and terms of payment of shares in authorized capital. Shares can be paid in cash securities, other things, property or other rights having a monetary value. Monetary valuation of a non-monetary contribution to the authorized capital is carried out by an independent appraiser.
- Information about the procedure for joint activities by the founders of the company to establish a company (for example, on holding meetings, elections, etc.).
- Other information, the need to include which the founders agree (for example, on fines for non-payment of a share, the procedure for resolving disagreements).
- Signatures of the parties or their representatives, as well as seals (if any) - are affixed, as a rule, at the end of the agreement, in a separate section.
Thus, the agreement of the founders on the creation of an LLC is recorded in the document on the establishment, and nothing more.
How to work with a document
As already mentioned, the described agreement - along with the minutes of the decision to establish an LLC - confirms the intention of the founders to create an LLC; discussed and accepted general meeting. Both individuals and legal entities can act as founders.
The document must be printed in the required number of copies (according to the number of founders), signed and distributed for storage to all participants. It does not require notarization.
This agreement is not amended regarding, for example, an increase in the authorized capital, etc. However, it will have to be adjusted if the share is alienated (sale, donation, inheritance) by the founder to a third party. In this case, he will confirm the legality of the acquisition of the share by the founder. Changes must be made and recorded in writing.
The agreement may be terminated by decision of the founders.
To demonstrate the above in the form of a document, here is a sample agreement on the establishment of an LLC between an individual and a legal entity.
MEMORANDUM OF ASSOCIATION
one of the founding documents of a legal entity. W.d. is a consensual civil law bilateral or multilateral agreement that regulates the relationship of the founders to create a legal entity, on the one hand, and the relationship between the founders and the legal entity being created, on the other hand. W.d. is concluded in writing by drawing up one document and signed by all its participants - the founders of the legal entity. W.d. valid for the entire period of existence of the legal entity. W.d. obligatory for a legal entity in cases,
provided by law. For legal entities certain types the law provides only U.d., for others - U.d. along with the statute. For a number of legal entities, it is not required at all.
W.d. must include the conditions provided for: a) for all constituent documents (part 1, clause 2, article 52 of the Civil Code of the Russian Federation);
b) for all U.d., (part 2, paragraph 2 of article 52 of the Civil Code of the Russian Federation);
c) special norms of the Civil Code of the Russian Federation and other laws for U.d., individual legal entities.
Apart from mandatory conditions determined by the mandatory provisions of laws, the founders of a legal entity have the right to include in the U.d. additional conditions reflecting the specifics of the created legal entity. This is especially true for those legal entities where U. d. is the only constituent document (general partnership, limited partnership).
W.d. must contain general information on the legal entity, the obligations of the founders and the procedure for their joint activities to create a legal entity, the conditions for allocating property to the legal entity, the procedure for distributing profits and losses among the participants, the procedure for managing the activities of the legal entity, the withdrawal of participants from its composition. In W.D. of a general partnership, conditions are additionally included on the size and composition of the partnership's share capital, the shares of participants in the share capital, the responsibility of participants for the fulfillment of obligations to make contributions, etc. (Article 70 of the Civil Code of the Russian Federation). For W.D. limited partnerships, in addition to the above, a condition is added on the total amount of contributions made by investors (Article 83 of the Civil Code of the Russian Federation).
For state registration of contractual and statutory legal entities U.d. is presented simultaneously with the charter, however, the role of U.d. for them is less significant than for those legal entities where U.d. is the only founding document.
From W.d. one should distinguish between the agreement on the establishment of a joint-stock company (clause 1, article 98 of the Civil Code of the Russian Federation, Federal Law of the Russian Federation of December 26, 1995 No. 208-FZ "On Joint Stock Companies"). An agreement on the establishment of a joint-stock company is concluded in writing between the founders of the joint-stock company. It defines the procedure for the founders to carry out joint activities to establish a joint-stock company, their rights and obligations, the size of the authorized capital of the joint-stock company, issues related to shares, however, this agreement is not a C.d. JSC (see also Constituent documents):
Pleshanova O.P.
Law Encyclopedia. 2005 .
See what the "FOUNDATION AGREEMENT" is in other dictionaries:
An agreement concluded between the founders of a legal entity upon its creation. In the memorandum of association, the founders undertake to create a legal entity, determine the procedure for joint activities to create it, the conditions for transferring their property to it ... ... Wikipedia
FOUNDATION agreement, an agreement between the founders (parties) on the establishment of an enterprise (general partnership, joint-stock company, etc.) in the form of a legal entity. The Memorandum of Association defines the procedure for joint activities to create ... ... Modern Encyclopedia
Big Encyclopedic Dictionary
An agreement between the founders (participants) on the creation of a legal entity. In the founding agreement, the founders undertake to create a legal entity, determine the procedure for joint activities to create it, the conditions for transferring their property to it and ... ... Political science. Dictionary.
Memorandum of association- (founding agreement) in civil law RF type of constituent document of a legal entity, concluded by the founders during its creation. In W.D. founders undertake to create a legal entity, determine the procedure ... Encyclopedia of Law
Memorandum of association- FOUNDATION AGREEMENT, an agreement between the founders (parties) on the establishment of an enterprise (general partnership, joint-stock company, etc.) in the form of a legal entity. The Memorandum of Association defines the procedure for joint activities to create ... ... Illustrated Encyclopedic Dictionary
Law Dictionary
MEMORANDUM OF ASSOCIATION- one of the founding documents of a legal entity. In W.D. the founders undertake to create a legal entity, determine the procedure for joint activities to create it, the conditions for transferring their property to it and participating in its activities. Contract... ... Legal Encyclopedia
MEMORANDUM OF ASSOCIATION- according to Article 52 of the Civil Code of the Russian Federation, - one of the types of constituent documents, according to which the parties (founders) undertake to create a legal entity, as well as determine the procedure for joint activities for its creation, ... ... Office work and archiving in terms and definitions
An agreement between the founders (participants) on the creation of a legal entity. In the founding agreement, the founders undertake to create a legal entity, determine the procedure for joint activities to create it, the conditions for transferring their property to it and ... ... encyclopedic Dictionary
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