First of all, considering the relationship between the charter and the constituent agreement of the organization, it is necessary to talk about their legal nature.

The memorandum of association is essentially civil contract which is subject to all the norms of the Civil Code of the Russian Federation on transactions and contracts, as well as reflect the features provided by law for this contract as a constituent document legal entity appropriate organizational and legal form.

Like any civil law contract, the memorandum of association contains certain conditions- essential, ordinary additional.

The charter by its legal nature is a special type of document. It is not subject to contract requirements.

The difference between the memorandum of association and the articles of association lies primarily in their content. The memorandum of association must contain conditions on the obligation to form a legal entity, determine the procedure joint activities on its creation, the conditions for the transfer of property to it by the founders and participation in its activities, as well as the conditions and procedure for the distribution of profits and losses between the participants, its management and the withdrawal of the founders (participants) from its composition). This provision is enshrined in general rules governing the provisions on legal entities. This section does not contain rules on the content of the charter of the organization. The information that should be contained in the charter is indicated in the rules on a particular organizational - legal form legal entity. For example, the charter of a joint-stock company must contain the following information:

full and abbreviated trade names of the company;

location of the company;

type of company (open or closed);

the number, par value, categories (ordinary, preferred) shares and types of preferred shares placed by the company;

rights of shareholders - owners of shares of each category (type);

the size of the authorized capital of the company;

the structure and competence of the company's management bodies and the procedure for their decision-making;

procedure for preparing and conducting general meeting shareholders, including a list of issues, the decision on which is made by the management bodies of the company by a qualified majority of votes or unanimously;

information about branches and representative offices of the company;

other provisions stipulated by this Federal Law and other federal laws.

In this case, it should be noted that if there are contradictions between the charter of the company and the memorandum of association, preference is given to the charter.

The difference between the charter and the memorandum of association is the procedure for their adoption. The constituent agreement of a legal entity is concluded, and the charter is approved by its founders (participants).

When concluding a memorandum of association, general rules conclusion of contracts. This agreement is considered concluded, from the moment of reaching an agreement on all material conditions. The charter is established at the general meeting.

The difference lies in the fact that the charter must be accepted by all the founders of the organization, but there is no memorandum of association, as, for example, in a limited partnership. The difference between constituent documents is in the order of their cancellation. Upon termination of the memorandum of association, the rules on termination of transactions shall apply.

A special procedure for recognizing the charter and the memorandum of association as invalid. The recognition of the memorandum of association as invalid is subject to the general rules on the invalidity of transactions. The transaction is invalid on the grounds established by this Code, by virtue of its recognition as such by the court (disputable transaction) or regardless of such recognition (void transaction). The demand to recognize a voidable transaction as invalid may be presented by the persons specified in this Code. That is, in this case, the general rules of Chapter 9 of the Civil Code of the Russian Federation apply.

Since the charter is not a transaction, the rules of Chapter 9 of the Civil Code of the Russian Federation cannot be applied. To invalidate the charter, it is necessary to prove that its content is contrary to the regulatory requirements of the law, which is stated in the Decree of the Federal Antimonopoly Service of the Volga-Vyatka District dated 05.05.2006 in case N A43-25365 / 2005-1-759: limited liability is a local regulatory document that is binding on all participants in a given company and for the company itself. The requirements for its content are defined in paragraph 2 of Article 12 of the Federal Law "On Limited Liability Companies", by virtue of which the company's charter, along with the mandatory requirements listed in the named article, may contain other provisions that do not contradict other federal laws. Therefore, in order to invalidate the statute, it is necessary to prove that the provisions contained in it contradict the mandatory provisions of the law. Decree of the Federal Antimonopoly Service of the Volga-Vyatka District dated May 5, 2006 in case N A43-25365 / 2005-1-759 "

This section contains samples and forms of legal documents that are often mentioned in your questions: charter, charter of OJSC, charters of LLC, download charter, charter sample, charter sample, copy of the charter, amendments to the charter, charters of organizations, charter of the organization, download charters, statutes of institutions, charter of institutions, etc.

Answers your questions:
Legal Group of Lawyers "Legal Protection"

The charter of JSC - XIV. Major deals. Your questions are answered expert - lawyers and advocates of Moscow.

• II. Subject, main tasks and goals of the Company's activities
• XII. The Board of Directors of the Company and the executive body of the Company
• XIV. big deals
• XV. Control over the financial and economic activities of the Company

XIV. big deals

135. A major transaction is a transaction (including a loan, credit,
pledge, guarantee) or several related transactions related to
acquisition, alienation or possibility of alienation by the Company directly
or indirectly property, the value of which is 25 or more
percent of the book value of the Company's assets, determined according to the data
his financial statements as of the last reporting date, except
transactions carried out in the ordinary course of economic activity
Companies, transactions related to placement through subscription
(realization) of ordinary shares of the Company, and transactions related to
placement of emission valuable papers convertible into ordinary shares
Society. The Articles of Association of the Company may also establish other cases where
of which transactions made by the Company are subject to the procedure
approval of large transactions, provided for by Federal Law N 208-FZ.
In the event of alienation or the possibility of alienation
property with the book value of the Company's assets is compared
the value of such property, determined according to the data accounting,
and in the case of the acquisition of property - the price of its acquisition.
For adoption by the Board of Directors of the Company and the General Meeting
shareholders of the decision to approve a major transaction the price of the alienated or
of the acquired property (services) is determined by the Board of Directors of the Company
in accordance with Federal Law N 208-FZ.
136. A major transaction must be approved by the Board of Directors of the Company
or the General Meeting of Shareholders.

property, the value of which is from 25 to 50 percent of the balance
value of the Company's assets, is accepted by all members of the Board of Directors
Society unanimously.
In the event that the unanimity of the Board of Directors of the Company on the specified
issue has not been achieved, by decision of the Board of Directors of the Company, this
the issue may be submitted for decision by the General Meeting of Shareholders. In such
case, the decision to approve a major transaction is taken by the General Meeting
shareholders by a majority vote of shareholders - owners of voting
shares participating in the General Meeting of Shareholders of the Company.
The decision to approve a major transaction, the subject of which is
property, the value of which is more than 50 percent of the balance sheet
the value of the Company's assets, is adopted by the General Meeting of Shareholders
by a three-quarters majority vote of shareholders - owners of voting
shares participating in the General Meeting of Shareholders.
The decision to approve a major transaction must identify the person
(persons) who are its party(s), beneficiary
(beneficiaries), price, subject of the transaction and its other significant
conditions.
137. On other issues of major transactions, as well as on
issues of interest in the Company's transaction, not set forth in
in the provisions of this Charter, the Company and its management and
executive bodies should be guided by the provisions of the Federal
Law of December 26, 1995 N 208-FZ.

See other charter samples, as well as additional documents:
Charters of organizations:

• Charter of the federal state unitary enterprise

Founding treaties:

The General Director has the right to make transactions on behalf of the organization without any additional approvals from its owners. But if we are talking about the so-called major transaction, he must first obtain permission (consent) from the business owners to conclude it. Otherwise, such a transaction, made without proper approval by the owners, may subsequently be declared invalid. How to properly execute a large deal and prevent possible mistakes?

On the intention to conclude a transaction on behalf of the organization that meets the criteria for a major one, it is necessary to inform the owners of this legal entity and obtain their approval of such a transaction. Business owners, that is general meeting of participants (shareholders) business entity, and in some cases board of directors (supervisory board), must discuss and approve the very possibility of concluding a major transaction and its main conditions: the parties, the subject, the price of the transaction and other essential conditions. It is not their responsibility to agree on other terms of a major transaction. If more than one transaction is subsequently entered into, certainty must be achieved as to which transaction was approved.

The procedure for classifying transactions as major transactions and the procedure for approving major transactions differ depending on the legal form.

Big deal concept

A major transaction is one or more interconnected transactions related to the acquisition, alienation or the possibility of alienation by the company directly or indirectly of property, the value of which is 25% or more of the total value of the property of this company. The value of the property is determined on the basis of the company's financial statements for the last reporting period preceding the day the decision to conclude the transaction was made. This definition of a major transaction is guided by. The basis is paragraph 1 of Art. 46 of the Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies" (hereinafter - Law N 14-FZ).

Similar but not analogous concept established For in paragraph 1 of Art. 78 of the Federal Law of December 26, 1995 N 208-FZ "On joint-stock companies"(hereinafter - Law N 208-FZ).

Despite the fact that significant changes were made to the norms of the legislation on limited liability companies (Articles 87 - 94 of the Civil Code of the Russian Federation and Law N 14-FZ) from July 1, 2009 30.12.2008 N 312-FZ) and in terms of large transactions they are largely close to the norms applicable to joint-stock companies, some fundamental differences between the two specified definitions still remain (Table 1 on pp. 60 - 61).

Table 1. Features of the conclusion of major transactions by limited liability companies and joint-stock companies

Characteristic (peculiarity)	Limited responsibility	Joint-Stock Company
Deal, recognized major	One or more related transactions, directed for the purchase, alienation or related with the possibility of alienation property, value which is as at least 25% of the total property value companies (clause 1, article 46 Law N 14-FZ)	One or more related transactions, directed for the purchase, alienation or related with the possibility of alienation property, value which is as at least 25% of the balance sheet the value of the company's assets (Clause 1, Article 78 of the Law N 208-FZ)
deals, not recognized large (regardless from the cost property, being their subject)	Transactions made during the normal economic company activities (Clause 1, Article 46 of the Law N 14-FZ)	Transactions (clause 1, article 78 of the Law N 208-FZ): 1) committed in the process ordinary economic activities of the society; 2) accommodation related by subscription (realization) of ordinary company shares; 3) accommodation related equity securities, convertible into ordinary shares societies
Increase minimum the size of a large transactions in the articles of association societies	Allowed (clause 1, article 46 Law N 14-FZ)	Not allowed (ch. X Law N 208-FZ)
Charter expansion list societies types and (or) resizing transactions for which distributed by approval procedure big deals	Allowed (clause 7, article 46 Law N 14-FZ)	Allowed but not change in the size of the transaction, recognized as large (clause 1 Art. 78 of Law N 208-FZ)
Indication in the charter society conditions about what for major deal approval owners not required	Allowed (clause 6, article 46 Law N 14-FZ)	Not allowed (ch. X Law N 208-FZ)
Indicator (base) for comparison (with what to compare price property, being the subject of the transaction)	The value of the entire property society, certain according to accounting accounting for the last reporting period, pre-day decision making on the transaction (clause 1 Art. 46 of Law N 14-FZ)	The book value of all company assets, determined from data accounting as of the last reporting date (Clause 1, Article 78 of the Law N 208-FZ)
Comparison object (what to compare) in case of conclusion deals, directed for the purchase property	Offer price for the acquired property (clause 2, article 46 Law N 14-FZ)	Acquisition price property (clause 1, article 78 Law N 208-FZ)
Comparison object (what to compare) in case of conclusion deals, directed for alienation property	The cost of the alienated property, defined based on data accounting (clause 2 Art. 46 of Law N 14-FZ)	The cost of the alienated property, defined based on data accounting (clause 1 Art. 78 of Law N 208-FZ)
Who should approve a major deal, subject which is property cost from 25 to 50% of the total cost property (assets) societies	General meeting of participants society, and if the decision this issue by the statute society is assigned to the competence of the council directors (supervisory board) societies - advice directors (supervisory council) of the company (clause 3 and 4 st. 46 of Law N 14-FZ)	Board of Directors (supervisory board) society, and if the council directors (supervisory advice) society did not come to a unanimous decision for the approval of this transactions - general meeting shareholders of the company (Clause 2, Article 79 of the Law N 208-FZ)
Who should approve big deal the subject of which is the property worth over 50% of total cost property (assets) societies	General meeting of participants companies (clauses 3 and 4 Art. 46 of Law N 14-FZ)	General Meeting of Shareholders companies (clause 3 of article 79 Law N 208-FZ)
Who should approve big deal in society, consisting of one participant (shareholder)	Sole Member society (enough written consent this participant to the conclusion of a major transactions)	Sole Shareholder society (enough the written consent of this shareholder for conclusion big deal)
Who should approve a major deal in society consisting of one participant (shareholder), if this member (shareholder) simultaneously is a director or general company director	Deal approval not required (clause 1 clause 9 Art. 46 of Law N 14-FZ)	Deal approval not required (clause 7, article 79 Law N 208-FZ)
Subsequent major deal made without preliminary approval owners societies	Allowed (clause 5, article 46 Law N 14-FZ)	Allowed (clause 6, article 79 Law N 208-FZ)
Who is eligible to apply action for recognition invalid big deal, concluded without preliminary approval owners societies	Society itself limited liability or any its participant (clause 5, article 46 Law N 14-FZ)	The joint-stock company itself or any of its shareholders (Clause 6, Article 79 of the Law N 208-FZ)

Note. Transactions of joint-stock companies related to the placement by subscription or sale of ordinary shares of the company, and transactions related to the placement of issue-grade securities convertible into ordinary shares of the company, are not large, regardless of their price (clause 1, article 78 of Law N 208-FZ ).

Transactions that can be considered major

Some types of transactions that can be recognized as large and require approval by the owners of a business entity are listed directly in paragraph 1 of Art. 46 of Law N 14-FZ and paragraph 1 of Art. 78 of Law N 208-FZ. Among them, in particular, are transactions under loan, credit, pledge and surety agreements. However, the list is not exhaustive. This is indicated in paragraph 30 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of November 18, 2003 N 19 (hereinafter - Resolution N 19). Separate types of transactions that, with the corresponding amount of the transaction, can be recognized as large, are given in paragraph 30 of Resolution N 19 and paragraphs 1, 4, 6 and 7 information letter Presidium of the Supreme Arbitration Court of the Russian Federation dated March 13, 2001 N 62 (hereinafter - Information Letter N 62).

Note! Ordinary business transactions are not considered major

Transactions entered into by a limited liability company or a joint-stock company in the course of normal business activities cannot be recognized as major transactions, regardless of the value of property acquired or alienated under such transactions. This is established in paragraph 1 of Art. 46 of Law N 14-FZ and paragraph 1 of Art. 78 of Law N 208-FZ. What is meant by these transactions? The answer to this question is not contained in either Law N 14-FZ or Law N 208-FZ. The Plenum of the Supreme Arbitration Court of the Russian Federation in paragraph 30 of Resolution No. 19 explained that transactions in the ordinary course of business may, in particular, include transactions:

On the acquisition by the company of raw materials and materials necessary for the implementation of production and economic activities;

Implementations finished products;

Obtaining loans to pay for current operations (for example, obtaining trading company a loan aimed at purchasing wholesale consignments of goods intended for their subsequent sale through a retail network).

The Presidium of the Supreme Arbitration Court of the Russian Federation also confirmed that the transaction under the loan agreement concluded by the company in the course of its ordinary business activities is not large, regardless of the amount of the loan received. This is indicated in paragraph 5 of the Information Letter N 62.

Based on the above explanations, we conclude that the rules for approval of major transactions also apply to transactions:

Purchase and sale (including real estate, securities, enterprises as a property complex);

donations;

Assignments of the right to claim;

Debt transfer;

Contributing to authorized capital another economic company in payment for shares (shares) in it;

Credit;

Guarantees;

Pledge of property;

Other types of transactions aimed directly or indirectly at the acquisition or alienation of the property of the organization or providing for the possibility of foreclosure on its property with the subsequent alienation of this property.

The obligation to coordinate with the business owners any of these agreements arises only if, as a result of the conclusion of such an agreement, the organization has the opportunity to acquire or alienate property, the value of which is at least 25% of the total value of the property (assets) of the company. An exception to this rule are transactions entered into by the organization in the ordinary course of business. Such transactions, regardless of the amount, can be concluded without the consent of the business owners (clause 1, article 46 of the Law N 14-FZ and clause 1 of article 78 of the Law N 208-FZ).

Similarities and differences in definitions

So, starting from July 1, 2009, both in limited liability companies and joint-stock companies, a transaction or several interconnected transactions made with property, the value of which is 25% or more of the total value of the company's property, is recognized as a major transaction. Recall that before the specified date, the transaction of a limited liability company with property, the value of which was equal to 25%, was not considered large and, therefore, was not subject to prior approval by the owners.

Note. Several transactions that are entered into between the same persons within a short period on identical terms, have the same nature of the obligations of the parties and entail the same consequences for the organization, are considered interconnected transactions. If the total value of property acquired or alienated under such transactions is 25% or more, these transactions must be approved by the owners of the organization.

As before, the charter of a limited liability company may provide for a higher amount of the amount of a transaction recognized as a large one (clause 1, article 46 of Law N 14-FZ). For example, the charter of a company may state that a transaction is considered a major one and therefore, before it is concluded, it must be approved by the company's participants if it is associated with the acquisition or alienation of property worth more than 30% of the total value of the company's property.

Moreover, a limited liability company has the right not to coordinate with its owners plans for concluding major transactions at all, if its charter provides that such transactions do not require a decision of the general meeting of participants or the board of directors (supervisory board) of the company. The basis is paragraph 6 of Art. 46 of Law N 14-FZ. This is not allowed in joint-stock companies, just as it is not allowed by the charter of a joint-stock company to increase the maximum amount of a transaction classified as large.

The charter of a limited liability company or joint-stock company may provide for other types of transactions that are subject to the established procedure for approving major transactions (clause 7, article 46 of Law No. 14-FZ and clause 1, article 78 of Law No. 208-FZ). So, in the charter of the company, it can be indicated that any transactions on the alienation and pledging of real estate, regardless of value, must be coordinated with the participants (shareholders) or with the board of directors (supervisory board) of the company.

Note. A loan agreement may be recognized as a major transaction if the amount of the loan granted under it and the prescribed interest for using the loan (excluding interest for late repayment of the loan) is 25% or more of the book value of the property (assets) of the company.

With what to compare the cost of the transaction, or Base for comparison

Another difference is the metric used for comparison. Limited Liability Company compares the value of the property that is the subject of the transaction with the value of the entire property of the company, determined according to the financial statements for the last reporting period preceding the day the decision was made to complete the transaction (clause 1, article 46 of Law N 14-FZ).

A joint-stock company must compare the value of property acquired or alienated under a transaction with the book value of all the company's assets as of the last reporting date (clause 1, article 78 of Law N 208-FZ). The total value of the property of a limited liability company and the total value of the assets of a joint-stock company are determined based on accounting data for the last reporting period preceding the day the decision to conclude the transaction was made.

Note. When deciding on the issue of classifying a transaction as a large value of the property that is the subject of the transaction, it should be compared with the book value of the property (assets) of the company, and not with the size of its authorized capital.

Obviously, the book value of all the assets of an organization is a broader concept than the value of its property. After all, in addition to the property itself (fixed assets, raw materials, materials, finished products, cash, etc.), the company's assets also include accounts receivable, costs in work in progress, deferred expenses and other indicators.

The Presidium of the Supreme Arbitration Court of the Russian Federation in paragraph 3 of Information Letter No. 62 confirmed that joint-stock companies compare the value of property acquired or alienated under a major transaction with the total amount of the company's assets according to the last approved balance without reducing it by the amount of debts (unfulfilled obligations). That is, as a basis for comparison, joint-stock companies use the balance sheet currency (the sum of all current and non-current assets) as of the last reporting date preceding the day the major transaction was approved.

Please note: when classifying transactions as major transactions, the book value of the assets of a joint-stock company should not be identified with the value of its net assets(Letter of the FCSM of Russia dated 16.10.2001 N IK-07/7003). After all, the value of net assets is an independent indicator that is used, for example, when deciding whether to pay dividends on shares or when distributing the profits of a limited liability company among its participants. The amount of net assets does not affect the order of approval of major transactions.

Note. The value of the net assets of a business company is understood as the balance sheet value of its property (all its assets), reduced by the amount of obligations of this company.

What to compare, or the object of comparison

In contrast to the basis for comparison, the object of comparison itself (that is, the value of property acquired or alienated on the basis of a transaction) and limited liability companies and joint-stock companies are determined according to uniform rules. These rules differ only depending on the type of transaction being made (clause 2, article 46 of Law N 14-FZ and paragraph 2, clause 1 of article 78 of Law N 208-FZ).

If the transaction is aimed at acquiring property, then when classifying it as a large one with the total value of the property (assets) of the company, it is necessary to compare the purchase price (offer price) of the property specified in the contract. This price does not include additional charges (fines, penalties, forfeits), claims for the payment of which may be presented in connection with non-fulfillment or improper fulfillment by the parties of their obligations (Such explanations are given in clause 31 of Resolution No. 19).

Example 1 . Promtorg LLC, the main activity of which is wholesale food products, decided to acquire ownership of another warehouse space. In October 2010, such a room was found. Individual entrepreneur, to whom it belongs by right of ownership, is ready to sell it for 9,100,000 rubles. The main indicators of the asset of the balance sheet of Promtorg LLC as of September 30, 2010 are given in Table. 2. Deferred expenses and costs in work in progress (included in the total amount of stocks in line 210 of the balance sheet) amounted to 100,000 rubles as of the indicated date.

(thousand roubles.)

Balance sheet indicator	Code indicator
I. Non-current assets
Intangible assets
fixed assets
Construction in progress
Long-term financial investments
Other noncurrent assets
Total for sect. I
II. current assets
Accounts receivable more than 12 months after reporting date)
Accounts receivable (payments for which are expected within 12 months after reporting date)
Short-term financial investments
Cash
Other current assets
Total for sect. II

When calculating the total value of the property as of the last reporting date preceding the day the transaction was approved (as of September 30, 2010), Promtorg LLC does not take into account the amount of receivables, deferred expenses and costs in work in progress. Thus, the total value of the property of the organization, determined according to the balance sheet, is 28,000,000 rubles. (36,400,000 rubles - 300,000 rubles - 8,000,000 rubles - 100,000 rubles).

The cost of the acquired premises is RUB 9,100,000, which is 32.5% (RUB 9,100,000 : RUB 28,000,000 x 100) of the value of the entire property of the company. Since the value of the purchased property exceeds 25% of the total value of the property of Promtorg LLC, this transaction is a major one for the company and must be approved by the owners before it is completed.

Example 2 . Let's use the condition of example 1. Let's assume that the organizational-legal form of the Promtorg company is not a limited liability company (LLC), but a closed joint-stock company (CJSC). To resolve the issue of recognizing a transaction as a large joint-stock company, the transaction price is compared with the value of all current and non-current assets (with the balance sheet currency) as of the last reporting date preceding the day the transaction is approved. The cost of the premises that CJSC Promtorg plans to acquire is exactly 25% (9,100,000 rubles : 36,400,000 rubles x 100) of the value of all assets of the organization. This means that the transaction for the purchase of this premises is recognized as a major one, which means that it is subject to prior approval by the owners of the organization.

Note. To determine whether several interconnected transactions are a single major transaction, it is necessary to sum up the value of the property acquired (alienated) under all interconnected agreements and compare the resulting figure with the total value of the property (assets) of the organization.

Suppose the subject of the transaction is the alienation or the possibility of alienation of property belonging to the company. In this case, the value of the alienated property calculated on the basis of accounting data is compared with the total value of the property (all assets) of the company, and not the market value of the property being sold and not the actual value at which the property was sold.

Example 3 . Let's use the condition of example 1. Suppose, in October 2010, Promtorg LLC received a bank loan for the purchase of a consignment of goods. As security under the loan agreement, the organization offered to pledge to the bank a part of the office space owned by it (acquired in 2004). The initial cost of the office space, at which it was accepted for accounting, is 10,700,000 rubles. From the beginning of the operation of the premises to September 2010 inclusive, depreciation in the amount of 2,140,000 rubles was accrued in accounting.

The conclusion of a pledge agreement by an organization creates, directly or indirectly, the possibility of alienating property transferred as pledge. After all, in case of non-fulfillment by the company of the loan agreement, the bank has the right to foreclose on the mortgaged office space with its alienation in the manner prescribed by law (clause 4 of the Information Letter N 62).

To resolve the issue of whether a major transaction for the transfer of office premises to the bank as a pledge, Promtorg LLC needs to compare the cost of the premises, calculated on the basis of accounting data, with the total value of the entire property of the company. Since this issue was resolved in October 2010, the organization used the information reflected in the balance sheet as of September 30, 2010.

The residual value of the office space as of September 30, 2010 is RUB 8,560,000. (10,700,000 rubles - 2,140,000 rubles). The total value of the property of the organization on the same date is 28,000,000 rubles. The value of the pledged property amounted to 30.57% (RUB 8,560,000 : RUB 28,000,000 x 100) of the total property value. Consequently, the conclusion of the office premises pledge agreement was a major transaction for Promtorg LLC and was subject to prior approval by the owners of the organization.

Note. In the event that the debtor fails to fulfill an obligation secured by a pledge, the creditor (pledgee) shall have a priority right to receive satisfaction from the value of the pledged property over other creditors of the person who owns the said property (pledger). The basis is paragraph 1 of Art. 334 of the Civil Code of the Russian Federation.

Example 4 . Let's use the condition of example 3. Suppose the Promtorg company is a closed joint stock company (CJSC). Unlike limited liability companies, joint-stock companies, when deciding whether to recognize a transaction as a major one, compare the price of the transaction with the value of all assets. The residual value of the office premises pledged as collateral amounted to 23.52% (8,560,000 rubles : 36,400,000 rubles x 100) of the total value of the organization's assets, i.e. less than 25%. This means that for CJSC "Promtorg" the transaction on pledging the office premises was not a major one and could be concluded without prior approval by the owners of the company.

The procedure for approving a major transaction in a limited liability company

In a limited liability company, a major transaction must be approved by the general meeting of participants in this company. So it is said in paragraph 3 of Art. 46 of Law N 14-FZ. The transaction is considered approved if a simple majority of the total number of votes of the company's participants voted for the decision to approve it (clause 8, article 37 of Law No. 14-FZ).

Reference. Requirements for the execution of a decision on the approval of a major transaction

The decision to approve a major transaction must include the following information (clause 3, article 46 of Law No. 14-FZ and clause 4, article 79 of Law No. 208-FZ):

List of persons who are parties to the transaction;

The list of persons who are beneficiaries under the transaction (that is, persons in whose favor or in whose interests this transaction was concluded);

Price and subject of the transaction;

Other material terms of the transaction.

These requirements apply to both limited liability companies and joint-stock companies. There is a special rule for limited liability companies. If a major transaction of such a company is subject to conclusion at auction or at the time of its approval, the parties (beneficiaries) of the transaction have not yet been determined, the decision on approving the transaction may not indicate the persons who are parties (beneficiaries) of the transaction (clause 3 of article 46 of Law N 14- FZ).

In limited liability companies in which a board of directors (supervisory board) is created, the approval of major transactions may be referred by the charter of the company to the competence of the board of directors (supervisory board). But such an opportunity is provided only for transactions related to the acquisition or alienation of property, the value of which is from 25 to 50% of the total value of the company's property (clause 4, article 46 of Law N 14-FZ). Transactions aimed at the acquisition or alienation of property, the value of which exceeds 50% of the total value of the company's property, are subject to approval exclusively by the general meeting of the company's participants.

Note. The charter of a limited liability company may provide that neither a decision of the general meeting of the company's participants nor a decision of the board of directors (supervisory board) of the company is required to complete major transactions (clause 6, article 46 of Law N 14-FZ).

Suppose a limited liability company has only one member and this member performs the functions of a sole proprietor executive body of this company, that is, is its director or general director. In pp. 1 p. 9 Art. 46 of Law N 14-FZ states that in similar situation approval is not required for a major transaction. If the sole member of the company is not its director or general director, the written consent of this member to conclude it is sufficient to complete a major transaction (clause 11 of Information Letter No. 62).

The procedure for approving major transactions does not apply to legal relations arising (clauses 2 and 3, clause 9, article 46 of Law N 14-FZ):

When transferring to a company a share or part of a share in its authorized capital in cases provided for by Law N 14-FZ;

Transfer of rights to property in the process of reorganization of the company (including under merger or accession agreements).

The procedure for approving a major transaction in a joint-stock company

In a joint-stock company, a major transaction must be approved by the board of directors (supervisory board) or the general meeting of shareholders of the company (clause 1, article 79 of Law N 208-FZ). If the subject of a major transaction is property, the value of which is from 25 to 50% of the book value of all assets of the company, the decision to approve such a transaction is within the competence of the board of directors (supervisory board) of the company. This is indicated in paragraph 2 of Art. 79 of Law N 208-FZ. This solution must be adopted unanimously by all members of the board of directors (supervisory board) of the company. In this case, the votes of retired members of the board of directors (supervisory board) of the company are not taken into account.

Note. Retired, in particular, are members of the board of directors (supervisory board), whose powers were terminated ahead of schedule by the decision of the general meeting of shareholders in accordance with paragraphs. 4 p. 1 art. 48 of Law N 208-FZ.

Please note: a major transaction, the subject of which is property worth from 25 to 50% of the book value of all assets of the company, must be approved unanimously by all members of the board of directors (supervisory board) of the joint-stock company, and not just those present at a specific meeting of the board (clause 2 article 79 of the Law N 208-FZ). Suppose the board of directors (supervisory board) of a joint-stock company did not come to a unanimous decision to approve a major transaction. Then the issue of its approval can be submitted to the general meeting of shareholders of the company. In this case, the decision to approve a major transaction is made by a majority vote of shareholders - owners of voting shares participating in the general meeting of shareholders of the company (clause 2, article 79 of Law N 208-FZ).

Major transactions in which property worth more than 50% of the book value of all assets of the company is acquired or alienated can only be approved by the general meeting of shareholders of the company (clause 3 of article 79 of Law N 208-FZ). Moreover, the decision to approve such a transaction must be made by a 3/4 majority vote of shareholders - owners of voting shares participating in the general meeting of shareholders.

The Presidium of the Supreme Arbitration Court of the Russian Federation in paragraph 10 of Information Letter No. 62 and the Plenum of the Supreme Arbitration Court of the Russian Federation in paragraph 32 of Resolution No. 19 also indicated that such transactions cannot be concluded on the basis of a decision of the board of directors (supervisory board) of a joint-stock company. To make them, in all cases, a decision of the general meeting of shareholders is required, adopted by a majority of 3/4 of the votes of shareholders - owners of voting shares participating in the general meeting of shareholders.

Approval is not required if the joint-stock company has a sole shareholder who owns 100% of the company's shares and is at the same time its director or general director (clause 7, article 79 of Law N 208-FZ). From the sole shareholder who is not a director or general director of the company, it is enough to obtain his written consent to make a major transaction.

If a major transaction was concluded without the approval of the owners

Major transaction entered into by a limited liability company or a joint stock company in violation of the established approval procedure, may be declared invalid by the court. The company itself or its participant or shareholder may apply to the court with a corresponding claim. This is provided for in paragraph 5 of Art. 46 of Law N 14-FZ and paragraph 6 of Art. 79 of Law N 208-FZ.

Note. Statement of claim on the recognition of a major transaction as invalid cannot be brought to court by third parties.

So, a major deal concluded without the approval of the business owners can be challenged (clause 1, article 166 of the Civil Code of the Russian Federation). The limitation period for a claim to declare a voidable transaction invalid and to apply the consequences of its invalidity is one year (Clause 2, Article 181 of the Civil Code of the Russian Federation). This means that a limited liability company (joint stock company) or its participant (shareholder) has the right to apply to the court to declare a major transaction invalid within one year from the date when the plaintiff learned or should have learned about the circumstances that are the basis for declaring the transaction invalid . Similar explanations are given in paragraph 36 of Resolution No. 19.

Please note: the limitation period established for filing a claim for the recognition of a major transaction as invalid cannot be restored if it is missed (clause 5, article 46 of Law N 14-FZ and clause 6, article 79 of Law N 208-FZ).

Note! In what cases will the court refuse to recognize a major transaction as invalid?

The court has the right to refuse to satisfy the company, its participant or shareholder in a claim for invalidating a major transaction that was concluded in violation of the established procedure for approving major transactions, if at least one of the circumstances exists (clause 5, article 46 of Law N 14-FZ and paragraph 6 article 79 of Law N 208-FZ):

The voting of a member (shareholder) of the company that filed a claim for the recognition of a major transaction as invalid could not affect the voting results, even if this member (shareholder) took part in the voting on the approval of this transaction (provided that the decision to approve transactions are accepted by the general meeting of participants (shareholders), and not by the board of directors (supervisory board) of the company);

It has not been proven that the completion of this transaction has entailed or may entail the infliction of losses on the company or the participant (shareholder) of the company who filed the relevant claim, or the occurrence of other adverse consequences for them;

By the time the case is considered in court, evidence has been presented of the subsequent approval of this transaction in the manner prescribed by Laws N N 14-FZ or 208-FZ;

During the consideration of the case in court, it was proved that the other party to this transaction did not know and should not have known about its commission in violation of the requirements provided for in Art. 46 of Law N 14-FZ or Art. 79 of Law N 208-FZ.

A transaction declared invalid by a court is such from the moment it was made (clause 1, article 167 of the Civil Code of the Russian Federation). This means that the parties to the transaction must be returned to the position in which they were before its conclusion. That is, each of the parties is obliged to return to the other everything received under the transaction, and if it is impossible to return what was received in kind (including if the received is expressed in the use of property, work performed or services provided), reimburse its cost. in cash(Clause 2, Article 167 of the Civil Code of the Russian Federation). If the property is returned in kind, its condition should be taken into account. In addition, it is necessary to compensate for the deterioration (damage) of the property, taking into account normal depreciation, as well as to compensate for the improvements made to the property.

Note. An invalid transaction does not entail legal consequences, with the exception of those related to its invalidity, and is invalid from the moment it is made (clause 1, article 167 of the Civil Code of the Russian Federation).

Subsequent approval of a major transaction entered into without owner approval

Civil law does not exclude the possibility of subsequent approval of an already concluded transaction. So, in Art. 183 of the Civil Code of the Russian Federation states that a transaction made by an unauthorized person may subsequently be approved by the person in whose interests it was concluded. In the absence of subsequent approval, the transaction is considered concluded on behalf and in the interests of the person who made it.

The possibility of subsequent approval of a major transaction concluded on behalf of a limited liability company is stated in paragraph 5 of Art. 46 of Law N 14-FZ. The said paragraph states that the court will refuse to satisfy the claim for the recognition of a major transaction as invalid if it was concluded in violation of the procedure for the mandatory approval of a major transaction, but by the time the case was considered in court, it was approved in the manner established by Law N 14-FZ. A similar rule regarding joint-stock companies is provided for in paragraph 6 of Art. 79 of Law N 208-FZ.

Recall that the above provisions appeared in the Laws N N 14-FZ and 208-FZ from October 21, 2009. Prior to this date, subsequent approval of a major transaction was allowed only in limited liability companies. The fact is that even before October 21, 2009, such a possibility was indicated in paragraph 20 of the joint Decree of the Plenum Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated 09.12.1999 N 90/14, which provides explanations to the courts on some issues of the application of Law N 14-FZ.

Similar clarifications on the procedure for applying Law N 208-FZ, including those related to the subsequent approval of a major transaction, were contained in clause 14 of the joint Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of 04/02/1997 N 4/8. However, in 2003 this joint Decree became invalid. Instead, Decree N 19 applies, which does not contain a rule on the admissibility of approving a major transaction concluded on behalf of a joint-stock company in violation of the requirements of Law N 208-FZ. Now, the possibility of subsequent approval of such a major transaction is mentioned directly in paragraph 6 of Art. 79 of Law N 208-FZ.

At the same time, the FCSM of Russia recommends that joint-stock companies approve all major transactions even before they are completed. After all, the lack of prior approval of a major transaction makes it voidable, which creates the risk of the transaction being declared invalid and creates instability in the company's relations with counterparties. This is indicated in paragraph 1.2 of Ch. 6 of the Code of Corporate Conduct dated 04/05/2002, the provisions of which the FCBC of Russia recommends that all joint-stock companies established in the Russian Federation be guided by (Order No. 421/r dated 04/04/2002).

Note. If there are doubts whether this or that transaction is major, it is recommended to make such a transaction only after its approval by the owners in the manner prescribed by Laws N 14-FZ or N 208-FZ.

Below is a sample charter of an LLC in general view, this option is suitable for those who have already dealt with the drafting of charters for legal entities and are looking for a basic option. If you are just registering a company and you need an individual charter with all the changes and amendments of 2019, we recommend that you create it in our service:

If one founder:
APPROVED
decision No. 1 of the sole founder

from xx____________ 202x

If there are several founders:
APPROVED
decision of the general meeting of participants
Limited liability companies "_____________________"
Minutes No. 1 dated xx____________ 202x

U S T A V
Limited liability companies
«_____________________»

Moscow city
2019

1. NAME, LOCATION AND TERM OF ACTIVITY OF THE COMPANY

1.1. This Charter determines the procedure for organizing and operating a commercial organization - Limited Liability Company "_____________________", hereinafter referred to as the "Company", established in accordance with the current legislation of the Russian Federation, including Federal Law No. 14-FZ of February 8, 1998 "On limited liability companies” (hereinafter referred to as the “Law”).
1.2. Names of the Society:

The full corporate name of the Company in Russian is Limited Liability Company "_____________________".

The abbreviated name of the Company in Russian is “________________” LLC.
1.3. The location of the Company is determined by the place of its state registration. The company is registered at the address: index, g._____________________, st. __________, d. ____, office. _______.

1.4. The Company is a non-public commercial corporate organization.

1.5. The Company was established without limiting the period of its activity.

2. MEMBERS OF THE COMPANY

2.1. Member of the Company - a person owning a share in its authorized capital.
2.2. Members of the Company may be any individuals and legal entities that, in accordance with the procedure established by the legislation of the Russian Federation and these Articles of Association, have acquired a share in the authorized capital of the Company, with the exception of those persons for whom the legislation of the Russian Federation establishes a restriction or prohibition on participation in economic Companies.
2.3. The number of members of the Society should not exceed fifty. If the number of participants exceeds the established limit, the Company is subject to transformation into a joint-stock company within one year.
2.4. The Company shall, in accordance with the requirements of the Law, maintain and store a list of the Company's members indicating information about each member of the Company, the amount of its share in the authorized capital of the Company and its payment, as well as the amount of shares owned by the Company, the dates of their transfer to the Company or acquisition by the Company.

3. OBJECTIVES AND ACTIVITIES OF THE COMPANY

3.1. The purpose of the Company's activities is to achieve maximum economic efficiency and profitability, the most complete and high-quality satisfaction of the needs of individuals and legal entities in the products manufactured by the Company, works and services performed.
3.2. The main activities of the Company are:

• type of activity according to OKVED without code;
• etc.

3.3. The Company has the right to carry out any other types of activities not prohibited by the legislation of the Russian Federation.
3.4. Certain types of activities, the list of which is determined by the federal laws of the Russian Federation, may be carried out by the Company only on the basis of a special permit.

4. LEGAL STATUS OF THE COMPANY

4.1. The company is considered to be established as a legal entity from the moment of its state registration.
4.2. 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.
The Company may have civil rights and bear 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 Company's activities.
4.3. The Company shall be liable for its obligations with all its property.
4.4. The Company is not liable for the obligations of the state and its bodies, as well as for the obligations of its members. The State and its bodies shall not be liable for the obligations of the Company. 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 to the extent of the value of the paid and unpaid parts of their shares in the authorized capital of the Company.
4.5. The Company may create independently or participate in the establishment of newly created legal entities, including with the participation of foreign legal entities and individuals, as well as create their own branches and open representative offices, both in Russia and abroad.
4.6. Subsidiaries and dependent business companies are legal entities and are not liable for the obligations of the Company, and the Company is not liable for the obligations of such companies, except as otherwise provided by the legislation of the Russian Federation.
4.7. The working language of the Society is Russian. All documents related to the activities of the Company are drawn up in the working language.
4.8. The company has a round seal, stamps and forms with its name. The company may have a trademark, as well as a company logo and other means of individualization.
4.9. Society has an independent balance sheet. The Company has the right to open bank accounts in the territory Russian Federation and beyond.

5. BRANCHES AND REPRESENTATIVE OFFICES OF THE COMPANY

5.1. Branches and representative offices of the Company act on behalf of the Company on the basis of their Regulations , are not legal entities, are endowed with property at the expense of the Company's own property.
The Company is liable for obligations related to the activities of branches and representative offices of the Company.
5.2. The decision on the establishment of branches and representative offices and their liquidation, the approval of the Regulations on them, as well as the introduction of appropriate amendments to this Charter, are made by the General Meeting of the Company's Participants in accordance with the legislation of the Russian Federation and the country of establishment of branches and representative offices.
The head of a branch or representative office of the Company is appointed by the Sole Executive Body of the Company and acts on the basis of a power of attorney issued by the Company.
5.3. Information about branches and representative offices of the Company: none.

6. AUTHORIZED CAPITAL OF THE COMPANY

6.1. The authorized capital of the Company determines minimum size property of the Company, which guarantees the interests of its creditors, and consists of the nominal value of the shares of the Company's members.
6.2. The authorized capital of the Company is equal to __________ (amount in words) RUB.
6.3. The company may increase or decrease the size of the authorized capital. The change in the size of the authorized capital is carried out by decision of the General Meeting of Participants. The decision to change the size of the authorized capital of the Company shall enter into force after the relevant changes are made to this Charter and their state registration in accordance with the procedure established by law.
6.4. An increase in the authorized capital of the Company is allowed only after its full payment.
An increase in the authorized capital of the Company may be carried out at the expense of the Company's property and (or) at the expense of additional contributions of the Company's members to the authorized capital, and (or) at the expense of contributions to the authorized capital of third parties accepted as members of the Company.
The procedure for increasing the authorized capital is determined by the Law.
6.5. In the event of an increase in the authorized capital, participants may contribute money, securities, other things or property rights, or other rights having a monetary value as payment for shares.
6.6. The Company has the right, and in the cases provided for by the Law, is obliged to reduce its authorized capital.
The authorized capital can be reduced by reducing the nominal value of the shares of all participants in the authorized capital of the Company and (or) redemption of the shares owned by the Company.
The procedure for reducing the authorized capital is determined by the Law.

7. RIGHTS AND OBLIGATIONS OF PARTICIPANTS. TRANSFER OF A SHARE IN THE AUTHORIZED CAPITAL. WITHDRAWAL OF A PARTICIPANT FROM THE COMPANY

7.1. Members of the Society have the right:
- participate in the management of the affairs of the Company in the manner prescribed by the Law and these Articles of Association, including attending the General Meeting of Members of the Company, making proposals for inclusion in the agenda of the General Meeting of Members of the Company additional questions, take part in the discussion of agenda items and vote when making decisions;
- receive information about the activities of the Company and get acquainted with its accounting books and other documentation in the manner prescribed by this Charter;
- take part in the distribution of profits;
- sell or otherwise alienate their shares or parts of shares in the authorized capital of the Company to one or more members of the Company or to another person in the manner prescribed by the Law and these Articles of Association;
- acquire a share (part of a share) of another member of the Company at the offer price to a third party in proportion to the size of its shares in the manner prescribed by the Law and these Articles of Association (preemptive right to purchase);
- pledge their shares or parts of shares in the authorized capital of the Company to another member of the Company or, with the consent of the General Meeting of Members of the Company, to a third party. The decision of the General Meeting of Members of the Company to give consent to the pledge of a share or part of a share in the authorized capital of the Company owned by a member of the Company shall be made by a majority of votes of all members of the Company. The votes of a member of the Company who intends to pledge his share or part of the share are not taken into account when determining the voting results;
- withdraw from the Company by alienating its shares to the Company or demand the acquisition by the Company of a share in cases provided for by the Law;
- receive, in the event of liquidation of the Company, a part of the property remaining after settlements with creditors, or its value in accordance with the size of their shares in the authorized capital of the Company.
Participants also have other rights provided for by the Law and this Charter.
7.2. In addition to those specified in clause 7.1. of this Charter of rights, a participant (s) of the Company may be granted additional rights by making appropriate additions to this section of the Charter.
Additional rights granted to a certain member of the Company, in the event of the alienation of his share or part of the share to the acquirer, do not transfer to the acquirer.
The Member of the Company, who has been granted additional rights, may refuse to exercise the additional rights belonging to him by sending a written notice to the Company. From the moment the Company receives the said notice, the additional rights of a member of the Company shall cease.
7.3. Members of the Society are obliged:
- pay for shares in the authorized capital of the Company in the manner, in the amount and within the time limits stipulated by the Law and the agreement on the establishment of the Company;
- to make contributions to the property of the Company by decision of the General Meeting of Members of the Company;
- not to disclose information about the activities of the Company, in respect of which there is a requirement to ensure its confidentiality;

Obtain the consent of the other members of the Company for the alienation, other than by selling, of their shares or parts of shares to third parties;

Obtain the consent of the General Meeting of Participants to transfer their shares or parts of shares as a pledge to other members of the Company or third parties;
- timely inform the Company about changes in information about their name or designation, place of residence or location, as well as information about their shares in the authorized capital of the Company. If a member of the Company fails to provide information about a change in information about himself, the Company shall not be liable for the losses caused in connection with this.
Participants also bear other obligations stipulated by the Law.
7.4. In addition to those specified in clause 7.3. of this Charter of obligations, the participant (participants) may be assigned additional obligations by making appropriate additions to this section of the Charter.
Additional obligations assigned to a certain member of the Company, in the event of the alienation of his share or part of the share to the acquirer, do not transfer to the acquirer.
7.5. Members of the Company enjoy the pre-emptive right to purchase a share or part of a share of a member of the Company at the offer price to a third party in proportion to the size of their shares.
If the members of the Company did not use their pre-emptive right to purchase a share or part of the share of a member of the Company, the Company has the pre-emptive right to purchase it at the offer price to a third party.
7.6. A member of the Company who intends to sell his share or part of a share in the authorized capital of the Company to a third party is obliged to notify the other members of the Company and the Company itself in writing about this by sending through the Company at his own expense a notarized offer addressed to these persons and containing an indication of the price and other terms of sale. An offer for the sale of a share or part of a share in the authorized capital of the Company is considered received by all members of the Company at the time of its receipt by the Company. At the same time, it can be accepted by a person who is a member of the Company at the time of acceptance, as well as by the Company in cases provided for by this Charter and the Law. The offer shall be deemed not received if no later than the day of its receipt by the Company, the Company's participants received a notice of its withdrawal. Revocation of an offer for the sale of a share or part of a share after it has been received by the Company is only allowed with the consent of all members of the Company.
Members of the Company have the right to use the pre-emptive right to purchase a share or part of a share in the authorized capital of the Company within 30 (thirty) days from the date of receipt of the offer by the Company.
The decision on the acquisition by the Company of a share or part of a share not acquired by the members of the Company is made by the sole executive body of the Company. The sole executive body of the Company must decide on the acquisition no later than 10 (ten) days from the date of expiration of the thirty-day period from the date of receipt of the offer by the Company.
The pre-emptive right to purchase a share or part of a share in the authorized capital of the Company from the participants and from the Company shall terminate on the day:
- submission of an application for refusal to use this pre-emptive right, drawn up in the form and manner prescribed by the Law;
- expiration of the period of use of this pre-emptive right.
7.7. If within forty days from the date of receipt of the offer by the Company, the members of the Company or the Company do not use the preemptive right to purchase a share or part of a share in the authorized capital of the Company offered for sale, including those resulting from the refusal of individual members of the Company and the Company from the preemptive right to purchase shares or parts of a share in the authorized capital of the Company, the remaining share or part of the share may be sold to a third party at a price that is not lower than the price established in the offer, and on the terms that were communicated to the Company and its participants.
7.8. Assignment of the pre-emptive right to purchase a share or part of a share in the authorized capital of the Company by the participants or the Company is not allowed.
7.9. The assignment of a share or part of a share in the authorized capital of the Company must be made in the form and procedure established by the Law.
7.10. The Company, in the manner prescribed by the Law, must be notified of the assignment of a share or part of a share in the authorized capital of the Company.
7.11. With the exception of cases specified in paragraph 7 of Art. 23 of the Federal Law “On Limited Liability Companies”, a share or part of a share in the authorized capital of the Company passes to its acquirer from the moment the corresponding changes are made to the unified state register of legal entities. Making an entry in the unified state register of legal entities on the transfer of a share or part of a share in the authorized capital of the Company in cases that do not require notarization of a transaction aimed at alienating a share or part of a share in the authorized capital of the Company is carried out on the basis of title documents.

The acquirer of a share or a part of a share in the authorized capital of the Company shall transfer all the rights and obligations of a member of the Company that arose prior to the transaction aimed at alienating the specified share or part of a share in the authorized capital of the Company, or before the occurrence of another basis for its transfer, with the exception of additional rights granted this member of the Company, and the duties assigned to him.

A member of the Company who has alienated his share or part of a share in the authorized capital of the Company shall be liable to the Company for making a contribution to the property that arose prior to the transaction aimed at alienating the specified share or part of a share in the authorized capital of the Company, jointly with its acquirer.

7.12. When withdrawal of a participant from the Company its share passes to the Company from the date of receipt by the Company of the participant's application for withdrawal from the Company. The Company is obliged within 6 (six) months to pay to the participant who filed an application for withdrawal from the Company, the actual value of his share in the authorized capital of the Company, determined on the basis of the data of the Company's financial statements for the last reporting period preceding the day of filing an application for withdrawal from the Company, or with the consent of this member of the Company, give him in kind property of the same value or, in case of incomplete payment of his share in the authorized capital of the Company, the actual value of the paid part of the share.
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 that arose prior to filing an application for withdrawal from the Company.
7.13. In the event of the acquisition of a participant's share (its part) by the Company, it is obliged to sell it to other participants or third parties within a period of not more than one year in the manner prescribed by the Law. During this period, the distribution of profits, as well as the adoption of a decision by the General Meeting, is carried out without taking into account the share acquired by the Company. If during the year the Company has not sold its share, it is obliged to reduce the authorized capital by an amount equal to the nominal value of such a share.

8. DISTRIBUTION OF PROFIT. COMPANY FUNDS

8.1. The company has the right once a year [quarterly, every six months] decide on the distribution of net profit (its part) among the participants of the Company. Such a decision is made by the General Meeting of Members of the Company.
8.2. 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.
8.3. In the cases provided for by the Law, the Company is not entitled to make a decision on the distribution of profits among the participants and pay out profits, the decision on the distribution of which has been made.
8.4. By decision of the General Meeting of Participants, the Company may create reserve and other funds at the expense of the Company's net profit. The order of creation, size, purposes for which the funds of such funds can be spent, the procedure for spending the funds of the funds are determined by the decision on their creation.

9. MANAGEMENT BODIES OF THE COMPANY

9.1. The management bodies of the Company are:
- General meeting of participants;
- sole executive body of the Company - General Director [Director, President].

10. GENERAL MEETING OF PARTICIPANTS

10.1. supreme body management of the Society is the General Meeting of its members.
10.2. The exclusive competence of the General Meeting of Members of the Company includes:
10.2.1. determination of the main directions of the Company's activity;
10.2.2. decision-making on participation in associations and other associations commercial organizations;
10.2.3. change of this Articles of Association, including change of the size of the authorized capital of the Company;
10.2.4. election/appointment of the sole executive body of the Company and early termination of its powers;
10.2.5. setting the amount of remuneration and monetary compensation to the sole executive body of the Company, members of the collegial executive body of the Company;
10.2.6. statement annual reports and annual balance sheets;
10.2.7. making a decision on the distribution of net profit, including among the members of the Company;
10.2.8. approval or adoption of documents regulating the organization of the Company's activities (internal documents of the Company);
10.2.9. adoption of a decision on the placement by the Company of bonds and other issue-grade securities, as well as approval of the conditions for their placement;
10.2.10. purchase of bonds and other securities placed by the Company;
10.2.11. appointment of an audit, approval of the auditor and determination of the amount of payment for his services;
10.2.12. adoption of a decision on reorganization or liquidation of the Company;
10.2.13. appointment of a liquidation commission and approval of liquidation balance sheets;
10.2.14. adoption of a decision on the conclusion by the Company of a major transaction related to the acquisition, alienation or the possibility of alienation by the Company directly or indirectly of property, the value of which is at least 25% of the value of the Company's property, determined on the basis of financial statements for the last reporting period;
10.2.15. adoption of a decision on the conclusion by the Company of a transaction in which the members of the Company have an interest;
10.2.16. adoption of a decision on the establishment of branches and opening of representative offices of the Company;
10.2.17. making a decision on granting, terminating and restricting additional rights of the Company's members and on imposing, changing and terminating additional obligations of the Company's members;
10.2.18. adoption of a decision on limiting and changing the maximum size of the share of a member of the Company and on limiting the possibility of changing the ratio of shares of the members of the Company;
10.2.19. statement monetary value non-monetary contributions to the authorized capital of the Company, made by the members of the Company and third parties accepted into the Company;
10.2.20. adoption of a decision on making contributions to the property of the Company;
10.2.21. approval of the income and expenditure budget for the current activities of the Company;
10.2.22. making a decision on the participation of the Company in the creation of legal entities;
10.2.23. approval of transactions related to the acquisition, alienation and the possibility of alienation of shares, shares in the authorized capital of other legal entities;
10.2.24. making decisions on the use of the rights granted by the shares, stocks, shares in the authorized capital of other legal entities owned by the Company, including, but not limited to:
- determination of a representative for participation in general meetings of participants/shareholders of other companies where the Company is a participant/shareholder, making proposals for the agenda of these general meetings, identification of candidates for the management bodies of such companies;
- decision-making on issues related to the competence of the general meetings of participants/shareholders of companies in which the Company is the sole participant/shareholder;
10.2.25. approval of transactions related to the acquisition, alienation and the possibility of alienation by the Company of real estate, regardless of the amount of the transaction;
10.2.26. approval of transactions for the Company to lease or otherwise use immovable property for a period of more than 1 (one) year, regardless of the amount of the transaction;
10.2.27. approval of transactions for the transfer by the Company for lease or other fixed-term or perpetual use of real estate for a period of more than 1 (one) year, regardless of the amount of the transaction;
10.2.28. approval of transactions related to the acquisition, alienation or the possibility of alienation, receipt for use intellectual property(trademarks, inventions, utility models, industrial designs, know-how) regardless of the amount of the transaction;
10.2.29. approval of transactions related to the issuance of guarantees by the Company, regardless of the amount of the transaction;
10.2.30. making a decision on the Company's making a bill of exchange transaction, including the issuance by the Company of promissory notes and bills of exchange, the production of endorsements, avals, payments on them, regardless of their amount;
10.2.31. making a decision to apply to the court with an application for declaring the Company bankrupt;
10.2.32. resolution of other issues provided for by the Law and this Charter.
10.3. Issues attributed by the Law to the exclusive competence of the General Meeting of Members of the Company cannot be transferred to them for decision by the sole executive body of the Company.
10.4. Other issues may also be referred to the competence of the General Meeting of Participants, subject to the introduction of appropriate amendments to this section of the Articles of Association.
10.5. The general meeting of participants may be regular or extraordinary.
10.6. The next General Meeting of Members is held once a year [twice a year, quarterly]. It should resolve the issues specified in clause 10.2.7. of this Charter, as well as other issues related to the competence of the General Meeting of Participants may be resolved.
The next General Meeting is convened by the sole executive body of the Company.
10.7. The Extraordinary General Meeting of the Company's Members is convened by the Company's sole executive body on its initiative, at the request of the auditor, as well as the Company's Members holding in aggregate at least one tenth of the total number of votes of the Company's Members.
The sole executive body of the Company is obliged, within 5 days from the date of receipt of the request to hold an extraordinary General Meeting of Members of the Company, to consider this requirement and make a decision to hold an extraordinary General Meeting of Members of the Company or, in cases provided for by the Law, to refuse to hold it.
If a decision is made to hold an extraordinary General Meeting of Members of the Company, the said General Meeting must be held no later than 45 days from the date of receipt of the request to hold it.
In the event that a decision on holding an extraordinary General Meeting of Participants is not made within the above period
of the Company or a decision was made to refuse to hold it on grounds not provided for in the Law, an extraordinary General Meeting of the Company's Participants may be convened by bodies or persons requiring it to be held.
10.8. The General Meeting of the Company's Members may be held in the form of joint attendance (meeting) or absentee voting (by poll) in accordance with the Law.
10.9. The General Meeting of Participants is convened in accordance with the requirements of the Law.
10.10. The notice of the General Meeting of the Company's Members shall be sent to the Members by registered mail.
10.11. The following terms are established regarding the convening of the General Meeting of Participants:
10.11.1. the deadline for notifying each member of the Company of the convening of the General Meeting of Members - no later than 15 days before its holding;
10.11.2. the deadline for the Company's participants to submit proposals for inclusion in the agenda of the General Meeting of Participants of additional issues - no later than 10 days before it is held;
10.11.3. the deadline for notifying each member of the Company of changes made to the agenda of the General Meeting of Members - no later than 7 days before it is held.
10.12. Information and materials to be provided to participants in the preparation of the General Meeting of Participants must be available to all participants of the Company and persons participating in the meeting for familiarization at the premises of the sole executive body of the Company within 15 days prior to the General Meeting of Participants of the Company.
10.13. In case of violation of the procedure established by the Law and these Articles of Association for convening the General Meeting of the Company's Members, such General Meeting shall be recognized as competent if all the Company's Members are present.
10.14. The procedure for holding the General Meeting of Participants is determined by the Law and this Charter.
10.15. Before the opening of the General Meeting of Members of the Company, the registration of the arrived members of the Company is carried out.
Members of the Company have the right to participate in the General Meeting in person or through their representatives. Representatives of the members of the Company must present documents confirming their proper authority. A power of attorney issued to a representative of a member of the Company must contain information about the person represented and the representative (name or designation, place of residence or location, passport details), be drawn up in accordance with the requirements of the Civil Code of the Russian Federation or certified by a notary.
An unregistered member of the Company (representative of a member of the Company) is not entitled to take part in voting.
10.16. The General Meeting of Members of the Company opens at the time specified in the notice of the General Meeting of Members of the Company or, if all members of the Company are already registered, earlier.
10.17. The sole executive body opens the General Meeting of the Company's Members and elects the chairman of the General Meeting from among the members of the Company.
When electing the Chairman of the General Meeting of Members of the Company, each of the participants in the meeting has the number of votes proportional to his share in the authorized capital of the Company.
The functions of the Secretary of the General Meeting are performed by the sole executive body or another person chosen by the General Meeting.
10.18. The sole executive body of the Company organizes the keeping of the minutes of the General Meeting of Participants.
The minutes of the General Meeting of Participants shall be signed by the Chairman and Secretary of the General Meeting of Participants.
Not later than within ten days after drawing up the minutes of the General Meeting of Members of the Company, the Secretary of the General Meeting of Members is obliged to send a copy of the minutes of the General Meeting of Members of the Company to all members of the Company in the manner prescribed for the notification of the General Meeting of Members of the Company.

10.19. The adoption of a decision by the General Meeting of the Company, as well as the composition of the participants present at the General Meeting, is confirmed by the signing of the minutes of the General Meeting by all participants present at the General Meeting. notarization these facts are not required.

10.20. Not later than within ten days after drawing up the minutes of the General Meeting of Members of the Company, the Secretary of the General Meeting of Members is obliged to send a copy of the minutes of the General Meeting of Members of the Company to all members of the Company in the manner prescribed for the notification of the General Meeting of Members of the Company.

10.21. The General Meeting of Members of the Company has the right to make decisions only on the agenda items communicated to the Members of the Company, except in cases where all members of the Company participate in this General Meeting.

10.22. Each member of the Company shall have the number of votes at the General Meeting of Members proportional to its share in the authorized capital, except for the cases established by the Law and this Charter.

Unpaid shares do not participate in voting. If a decision is made to conclude a transaction in respect of which there is an interest, the votes of the participants interested in its completion are not taken into account. The votes of a participant who intends to pledge his share in the authorized capital shall not be taken into account when voting on the issue of giving the Company's consent to the pledge of the share.

A person exercising the functions of the sole executive body, who is not a member of the Company, may participate in the General Meeting of Members with the right of an advisory vote.

10.23. To make a decision by the General Meeting of the Company's Members, the following number of votes is required (the count is based on the number of votes of all the Members of the Company, and not just those present at the General Meeting):

10.23.1. The following decisions are made unanimously by all members of the Company:

On granting additional rights to members of the Company, as well as termination or restriction of additional rights granted to all members of the Company;

On the imposition of additional obligations on all members of the Company, as well as the termination of additional obligations;

On the introduction, amendment and exclusion from this Charter of provisions on limiting the maximum size of the share of a member of the Company, on limiting the possibility of changing the ratio of shares of members of the Company;

On approval of the monetary value of non-monetary contributions to the authorized capital of the Company, made by the members of the Company and third parties accepted into the Company;

On increasing the authorized capital of the Company on the basis of an application from a participant or third parties admitted to the Company, on making an additional contribution;

On introducing amendments to this Charter in connection with an increase in the authorized capital of the Company, on an increase in the nominal value of a share of a member of the Company or shares of members of the Company who have submitted applications for making an additional contribution, and, if necessary, on changing the size of shares of members of the Company;

On the admission of a third party or third parties to the Company, on amendments to this Charter in connection with an increase in the authorized capital of the Company, on determining the nominal value and size of the share or shares of a third party or third parties, as well as on changing the size of the shares of the Company's members;

On introducing provisions into this Charter or changing the provisions of this Charter establishing the pre-emptive right to purchase a share or part of a share in the authorized capital by the Company's members or the Company at a price predetermined by the Charter, including changing the amount of such a price or the procedure for determining it;

On introducing provisions into this Articles of Association or amending the provisions of this Articles of Association, establishing the possibility for the members of the Company or the Company to exercise the pre-emptive right to purchase not the entire share or not the entire part of the share in the authorized capital of the Company offered for sale;

On introducing provisions into this Articles of Association or amending the provisions of these Articles of Association establishing the procedure for exercising by the Company's members the pre-emptive right to purchase a share or part of a share disproportionately to the size of the shares of the Company's members;

On the introduction of provisions into this Articles of Association or amendments to the provisions of these Articles of Association establishing a period or procedure for payment by the Company of the actual value of a share or part of a share in the authorized capital of the Company other than specified in the Law;

On the sale of the share owned by the Company to the members of the Company, as a result of which the size of the shares of its participants changes, the sale of the share owned by the Company to third parties and the determination of a different price for the sold share;

On payment in the event of foreclosure on the share or part of the share of a member of the Company in the authorized capital of the Company for the debts of the participant of the actual value of the share or part of the share to creditors by other members of the Company;

On introducing provisions into this Articles of Association or changing the provisions of these Articles of Association establishing the right of a member of the Company to withdraw from the Company;

On the introduction of provisions into this Articles of Association or amendments to the provisions of these Articles of Association establishing the obligation of the Company's members to make contributions to the Company's property;

On the introduction, amendment and exclusion from this Charter of provisions establishing the procedure for determining the amount of contributions to the Company's property disproportionately to the size of the shares of the Company's participants, as well as provisions establishing restrictions related to making contributions to the Company's property;

On the introduction, amendment and exclusion from these Articles of Association of provisions providing for the distribution of the Company's profits among the Company's members disproportionately to their shares in the charter capital;

On the introduction, amendment and exclusion from these Articles of Association of provisions providing for the determination of the number of votes of the Company's participants at the General Meeting of Participants disproportionately to their shares in the authorized capital;

On the reorganization or liquidation of the Company.

On the establishment of branches and opening representative offices of the Company;

On the termination or restriction of additional rights granted to a certain member of the Company;

On the imposition of additional obligations on a certain member of the Company;

On increasing the authorized capital of the Company at the expense of its property;

On increasing the authorized capital of the Company by making additional contributions by the members of the Company;

On the exclusion from the Charter of the Company of the provisions establishing the pre-emptive right to purchase a share or part of a share in the authorized capital of the Company at a price predetermined by the Charter;

On the exclusion from the Charter of the Company of the provisions establishing the possibility of the members of the Company or the Company to exercise the pre-emptive right to purchase not the entire share or not the entire part of the share in the authorized capital of the Company offered for sale;

On the exclusion from the Charter of the Company of the provisions establishing the procedure for exercising by the members of the Company of the pre-emptive right to purchase a share or part of a share disproportionately to the size of the shares of the members of the Company;

On making contributions by the Company's members to the property of the Company;

On the amendment and exclusion of the provisions of the Company's Articles of Association, which establish restrictions related to making contributions to the Company's property, for a certain member of the Company;

On amendments to this Articles of Association, including changes in the size of the authorized capital of the Company, with the exception of those changes for which, in accordance with the Law or these Articles of Association, a larger number of votes is required.

10.23.3. On all other issues, decisions are made by a majority vote of the total number of the Company's participants, unless the need for a larger number of votes for their adoption is provided for by the Law.

10.24. If the Company consists of one member, then decisions on issues within the competence of the General Meeting of Members are taken by the sole member of the Company solely, drawn up in writing and signed by the sole member. At the same time, the provisions of this Charter and the Law that determine the procedure and terms for preparing, convening and holding the General Meeting of Participants, the procedure for making decisions by the General Meeting, do not apply, with the exception of the provisions relating to the timing of the next General Meeting.

11. SOLE EXECUTIVE BODY

11.1. The sole executive body of the Company, which manages the current activities of the Company, is the General Director. The sole executive body is accountable to the General Meeting of Members of the Company.
11.2. The competence of the sole executive body of the Company includes all issues of managing the current activities of the Company, with the exception of issues referred to the competence of the General Meeting of Members of the Company.
11.3. The sole executive body without a power of attorney acts on behalf of the Company, including:
11.3.1. represents the interests of the Company both in the Russian Federation and abroad;
11.3.2. independently, within the limits of its competence or after approval by their management bodies of the Company in the manner prescribed by the Law, these Articles of Association and internal documents of the Company, makes transactions on behalf of the Company;
11.3.3. manages the property of the Company to ensure its current activities within the limits established by this Charter;
11.3.4. issues powers of attorney for the right of representation on behalf of the Company, including powers of attorney with the right of substitution;
11.3.5. concludes labor contracts with the employees of the Company, issues orders on the appointment of employees, on their transfer and dismissal;
11.3.6. applies incentive measures to the Company's employees and imposes disciplinary sanctions on them;
11.3.7. issues orders and gives instructions that are binding on all employees of the Company;
11.3.8. organizes the implementation of decisions of the General Meeting of Members of the Company;
11.3.9. opens bank accounts of the Company;
11.3.10. represents the interests of the Company in all judicial instances (courts of general jurisdiction, arbitration courts, arbitration courts) on the territory of the Russian Federation and abroad at all stages of the judicial process, including at the stage of enforcement proceedings;
11.3.11. resolve issues related to the preparation, convening and holding of the General Meeting of the Company's Members;
11.3.12. ensures that the information about the members of the Company and about their shares or parts of shares in the authorized capital of the Company, about the shares or parts of shares owned by the Company, the information contained in the unified state register of legal entities, and notarized transactions for the transfer of shares in the authorized capital of the Company, about which the Society became aware;
11.3.13. exercises other powers necessary to achieve the goals of the Company's activities and ensure its normal operation, in accordance with the current legislation of the Russian Federation and this Charter, with the exception of the powers assigned to other bodies of the Company.
11.4. The sole executive body is responsible for the safety of information constituting a state secret.
11.5. The General Director is elected/appointed by the General Meeting of Members of the Company for a period of _____ (in words) years. The General Director may be elected/appointed not from among the members of the Company.
11.6. The employment contract with the General Director on behalf of the Company is signed by the Chairman of the General Meeting of Participants, unless it is entrusted by the General Meeting of Participants to another person.
11.7. The General Meeting of Members of the Company has the right to release at any time Director General from his position with simultaneous termination employment contract in the manner prescribed by the legislation of the Russian Federation.

12. AUDITOR OF THE COMPANY

12.1. In order to verify and confirm the correctness of the annual reports and balance sheets of the Company, as well as to check the status of the current affairs of the Company, it has the right to engage a professional auditor who is not connected by property interests with the Company, the person exercising the functions of the sole executive body of the Company, and the members of the Company.
12.2. At the request of any member of the Company, an audit may be carried out by the professional auditor, which must comply with the requirements established by clause 12.1. of this Statute.
12.3. In the event of such an audit, payment for the auditor's services is carried out at the expense of the Company's member, at the request of which it is carried out. Expenses of a member of the Company for paying for the services of an auditor may be reimbursed to him by decision of the General Meeting of Members of the Company at the expense of the Company.

13. ACCOUNTING AND REPORTING. COMPANY DOCUMENTS

13.1. The Company maintains accounting records and submits financial statements in accordance with the procedure established by the current legislation of the Russian Federation.
13.2. Responsibility for the organization, condition and reliability of accounting in the Company, timely submission of the annual report and other financial statements to the relevant authorities lies with the sole executive body of the Company in accordance with the legislation of the Russian Federation.
13.3. The company is obliged to keep the following documents:

• the agreement on the establishment of the Company, the Articles of Association of the Company, as well as amendments made to the Articles of Association of the Company and duly registered;
• minutes of the meeting of the founders of the Company and / or decisions in the case of one founder of the Company, containing a decision to establish the Company and to approve 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 General Meetings of Members of the Company (decisions of the sole member of the Company), meetings of the Board of Directors 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, state and municipal financial control bodies;
• 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 and the sole executive body of the Company.

13.4. The Company shall store the documents specified in Clause 13.3 of these Articles of Association (hereinafter referred to as "documents") at the location of the sole executive body of the Company in the manner and within the time limits established by the legal acts of the Russian Federation.
13.5. Organization of storage of documents of the Company is provided by the sole executive body of the Company.
Organization of storage of documents generated in the activities of separate structural divisions of the Company, prior to their transfer to the archive at the location of the sole executive body of the Company, is provided by the heads of these separate structural divisions of the Company.
13.6. Within five working days from the date of presentation of the relevant request by the Company's member, the documents specified in paragraph 13.3 of this Charter must be provided by the Company for review at the premises of the Company's executive body. Information about the activities of the Company to other persons is provided in the manner prescribed by the current legislation of the Russian Federation.

13.7. Members of the Society have the right to get acquainted with documents related to the use of information constituting a state secret, only if they have an admission form.

14. PRIVACY

14.1. The technical, financial, commercial and other information provided to the Company's participants, members of the Company's management bodies, the Company's auditor, related to the establishment and activities of the Company, is considered confidential, with the exception of information:

• which is already known to this person at the time of its communication;
• which, due to the actions of third parties, has already become public knowledge;
• which is received by that person without restriction on disclosure from any third party entitled to such disclosure.

14.2. These persons are obliged to take all necessary and reasonable measures to prevent the disclosure of the received confidential information in excess of official or production necessity in connection with the performance of duties within the framework of the Company's activities.
14.3. Transfer of confidential information to third parties, publication or other disclosure of such information by the above persons during the period of their participation in the Company and/or its bodies and within 5 years after the termination of participation in the Company and/or its bodies, regardless of the reason for termination, can only be carried out with written consent of the General Meeting of Participants or if such information is requested by a state body in the manner prescribed by the legislation of the Russian Federation.

15. LIQUIDATION OF THE COMPANY

15.1. The liquidation of the Company entails its termination without the transfer of its rights and obligations by succession to other persons.
15.2. The Company may be liquidated voluntarily by decision of the General Meeting of Members of the Company or by force by a court decision on the grounds provided for by the legislation of the Russian Federation.
15.3. The decision of the General Meeting of Members of the Company on the voluntary liquidation of the Company and the appointment of a liquidation commission is made at the suggestion of the sole executive body or member of the Company. The General Meeting of Participants of a voluntarily liquidated Company makes a decision to liquidate the Company and appoint a liquidation commission.
15.4. The procedure for the liquidation of the Company, the satisfaction of creditors' claims and the procedure for the distribution of the property of the liquidated Company among the participants is determined by the legislation of the Russian Federation.
15.5. The liquidation of the Company is considered completed, and the Company - ceased to exist from the moment the corresponding entry is made in the unified state register of legal entities.
15.6. During the reorganization and liquidation of the Company, the safety of information constituting a state secret must be ensured. In the absence of an assignee, documents related to the use of information constituting a state secret shall be destroyed.

16. FINAL PROVISIONS

16.1. This Charter is approved by the minutes of the general meeting of the Company's participants and becomes effective from the moment of its state registration.
16.2. The provisions of this Charter shall retain their legal force for the entire period of the Company's activity.
If one of the provisions of this Charter becomes invalid due to changes in the legislation of the Russian Federation, then this is not a reason for suspending the validity of the remaining provisions. The invalid provision must be replaced by a provision that is legally permissible and close in meaning to the replaced one.

Compliance of the charter with the above sample will help you avoid annoying mistakes when registering an LLC, but often regional tax authorities may impose specific requirements that are not explicitly specified in the legislation, so the service is now available specifically for our usersfree document verification

Avlukova Olga Viktorovna

master student, International Institute of Economics and Law, Moscow, Russian Federation

Resume: The article is devoted to the study of the legal nature of the constituent document of the charter. Existing scientific views on the legal nature of the charter are analyzed as a normative act of a local nature, which defines legal status legal entity and governs the relationship between the participants and the legal entity itself. As well as the point of view according to which the charter is recognized as a unilateral corporate transaction, if a legal entity is established sole founder or multilateral with two or more founders. The article reasonably indicates the shortcomings of the transactional legal nature of the charter, since the charter is not an action and determines the civil legal capacity of a newly created corporation, and also has a different target orientation than a transaction in its traditional sense. As a result of the study, it is established that the charter is a legal corporate act that regulates legal status of the emerging legal entity, the volume and content of its corporate legal capacity, as well as the basis for the functioning of a separate corporation, approved by the founders when creating a corporation.

Keywords: charter, legal nature, normative act, local regulation, transaction, founding document, corporation, founders

Questions of the legal nature of the charter of a legal entity

Avlukova Olga Viktorovna

International Institute of Economics and Law Moscow, Russian Federation

Abstract: The article is devoted research of the legal nature of the founding document of the statute. Analysis of the existing scientific views on the legal nature of the statute as a normative act of a local character, which defines the legal status of a legal entity and regulates the relations between the parties and by legal entity. As well as point of view, according to which, the statute recognizes unilateral corporate transaction , in case if a legal entity founded by a single founder or multilateral when two or more founders. The article convincingly shows the flaws sdelano the legal nature of the statute, because the statute is not an action and determine the civil legal capacity of a newly created Corporation, and also has a different focus than the transaction in its traditional sense. The study establishes that local corporate statute perpetual the act regulating the legal status of the emerging legal entity, the scope and content of corporate legal capacity, as well as bases of functioning of certain Corporation, approved by the founders during the creation of the Corporation.

Keywords: statute, legal nature, normative act, local regulation, deal, founding document, corporation, founders

For most legal entities, the constituent document is only the charter signed by their founders (clause 3 of article 98, clause 1 of article 108, clause 2 of article 114, clause 2 of article 116, clause 4 of article 118 of the Civil Code of the Russian Federation , item 1, article 11 of the Law on joint-stock companies, item 1, article 5 of the Law on production cooperatives, item 1, article 14 of the Law on non-profit organizations and etc.). The charter serves as the only constituent document for business companies created by one founder (part 3, clause 1, article 52 of the Civil Code of the Russian Federation). Being a constituent document, the charter establishes the civil status of a legal entity.

The issue of the legal nature of the charter of a legal entity remains debatable in modern civil science. In the last century, Russian scholars and judicial practice failed to develop a consensus on legal entity and the nature of the charter of the legal entity.

IN scientific literature a number of opinions have been expressed as to what constitutes a statute from a legal standpoint. Stepanov D.I. pointed out that historically there was an understanding of the charter of a legal entity as an agreement based on an agreement or including an agreement. The charter of a legal entity was considered by the scientist as a special type of contract, obviously expressed or implied, which forms a legal entity by fixing the relationship between the persons who signed the charter. This point of view was supported by both foreign legal doctrine and pre-revolutionary Russian civil law. In particular, Shershenevich G.F. wrote: "In fact, the legal force of the charter lies in its contractual nature, which is acquired by it from the moment of the signing."

The contractual theory of the charter of a legal entity has been criticized by Russian and foreign legal scholars. Firstly, it is difficult to recognize as a contract the charter of a joint-stock company or a limited liability company created by a single founder (the so-called one-man company). Secondly, the contractual theory of the charter does not explain the possibility provided for by law to change the charter by decision not of all, but of the majority of the founders (participants). Thirdly, the contractual interpretation of subscription to shares is questioned. A member of a joint-stock company who buys and sells all his shares within a few days cannot in any way be considered a party negotiating with other shareholders. Fourthly, if the charter of a legal entity is a contract, then if it is declared invalid on one of the grounds, the logical consequence will be the invalidation of the legal entity itself, which is contrary to common sense and the needs of civil circulation.

Some Soviet jurists believed that the charter of a legal entity is a local normative act (Genkin D.M., Galperin L.B., Antonova L.I., etc.) A similar position was expressed by modern scientists. Eliseev I.V. writes that "the charter can be considered as a local normative act that defines the legal status of a legal entity and regulates relations between the participants and the legal entity itself." I. S. Shitkina defines the charter of a joint-stock company as “the fundamental normative act local system legal regulation of the activities of a joint-stock company, which creates legal framework for other internal documents of the company”. She especially emphasizes the growing role of local rule-making in corporate legislation, which provides legal regulation of business companies and partnerships.

Lomakin D.V. indicates that the charter of a joint-stock company, being a local normative act, regulates the activities of the company, which is obliged to comply with it. The legislator provided sanctions for influencing a legal entity guilty of violating the provisions of its charter. A transaction made by a legal entity contrary to the objectives of its activity, enshrined in its constituent documents, may be declared invalid by a court (Article 173 of the Civil Code of the Russian Federation). The charter also regulates the status of shareholders. However, the norms of the charter are of a general nature, in turn, legal obligations are the content of specific legal relations. The obligation to comply with the charter is not included in the content of the joint-stock legal relationship, therefore, sanctions cannot be applied to the shareholder for violation of the charter. Accordingly, in order to be fulfilled, the obligation must be transformed into a specific prescription.

A similar position was expressed by A.V. Mitskevich, V.D. Popov and some other scientists who consider the charter of a legal entity to be a corporate regulatory legal act containing corporate norms and being a source of Russian law.

The above statements are questionable. So, Stepanov D.I. considers that the charter is not a local normative act. He believes that the charter of a legal entity is an act of applying the law, since it implements the rules of law on legal entities. The researcher writes: Civil Code The Russian Federation does not provide for the right of citizens and legal entities to create norms of civil law, and the concept of a local normative act is also unknown to it; the opinion that the charter acquires force as a local normative act in connection with its state registration is not based on the current legislation, because by virtue of Art. 51 of the Civil Code of the Russian Federation, it is not the charter that is subject to state registration, but the legal entity itself, changes and additions to the charter become effective for the company and its participants not from the moment of their registration, but from the moment they are adopted in the manner prescribed by law.

Kozlova N.V., criticizing the position of Stepanov D.I., indicates that “the concept of the application of law, despite the various options for its definition, is nevertheless unambiguously interpreted as a form of realization of the right, which is carried out by authorized government bodies and officials and is of a state-imperious character. From the point of view of N.V. Kozlova, the charter is a transaction of a special kind. This understanding has not been confirmed in judicial practice. Thus, the federal arbitration courts of the Moscow District in their decisions came to the conclusion that the charter of a legal entity is not a transaction.

To determine the legal nature of the charter of a legal entity, it is necessary to take into account which entities act as its founders, in what order the charter is approved. It seems that the charter of a legal entity, established by a single founder - a citizen or a legal entity, is a one-sided corporate transaction. The charter of a legal entity signed by two or more founders should be recognized as a multilateral corporate transaction, which is not a contract.
The legal definition of a transaction is contained in Art. 153 of the Civil Code of the Russian Federation. However, the very concept of a transaction, as well as a contract (Clause 1, Article 420 of the Civil Code of the Russian Federation) is ambiguous. Transactions are called both legal facts (actions, expressions of will), and documents that draw up them.

paragraph 1 of Art. 154 of the Civil Code of the Russian Federation states that transactions can be bilateral or multilateral (contracts) and unilateral. Therefore, it is considered that any bilateral or multilateral transaction is a contract. But this statement is undeniable, since the terms bilateral transaction and contract are not equivalent. Theoretically, there may be bilateral and multilateral transactions that are not treaties. As an example of a bilateral transaction that is not recognized as a contract, we can name the transfer of property performed in pursuance of a contract of sale, that is, a bilateral administrative transaction.

It is necessary to highlight the inaccuracy of paragraph 3 of Art. 154 of the Civil Code of the Russian Federation, according to which, in order to conclude an agreement, it is necessary to express the agreed will of two (bilateral transaction) or three or more parties (multilateral transaction). The cited norm does not need to be interpreted in the literal sense of the word, since its wording allows for the merging of two different civil definitions: a bilateral (multilateral) type of contract and the number of participants (parties) of the contract. For example, a memorandum of association is considered multilateral in its subjective nature, even if it is concluded only between two participants (parties).

In view of the foregoing, there is no doubt that, in the sense of Art. 153 of the Civil Code of the Russian Federation, the adoption of the charter by the sole founder - a citizen or a legal entity is a unilateral civil-law corporate transaction. The decision of the general meeting of founders (participants) of a legal entity to approve its charter is considered a multilateral corporate transaction of the founders (participants) themselves, which becomes binding not only for any of them, but also for the legal entity itself and the entities performing the functions of its bodies as participants corporate relationship.

In this way, if a legal entity is established by one or more (two or more) citizens and / or legal entities, which females declare its order, it is possible to conclude that the charter of a legal entity established and certified by the founders (residents and / or lawyers) implies is an act registering a unilateral or multilateral corporate transaction made by founders (participants), which defines and regulates corporate legal relations between a legal entity, its founders (participants) and persons performing the functions of its bodies, forming corporate rights and direct obligations for them. Along with other participants, public entities represented by their own authorized representatives can participate in this transaction.

It seems that the normative nature of the charter of any legal entity, which is noted by numerous jurists, is explained by a variety of circumstances categorically established by laws on certain types legal entities. The charter is similar to the accession agreement (Article 428 of the Civil Code of the Russian Federation), since new members joining a legal entity (corporation) join the proposed charter in full.

Being a corporate transaction made in accordance with the requirements of the law, the charter contains rules that are binding on all participants in a corporate relationship: a legal entity, its founders (participants) and persons exercising the functions of its bodies, even if individual subjects of a corporate legal relationship did not accept participation in the transaction or opposed its completion. In cases prescribed by law, the charter may give rise to legal consequences for third parties who are not participants in the corporate relationship.

It is possible to identify features that distinguish the charter as a multilateral corporate transaction from ordinary civil law transactions and contracts.

Firstly, an obligation legal relationship arises from the contract only between the persons participating in it, for whom it becomes binding (clause 1, article 425 of the Civil Code of the Russian Federation). The agreement does not create obligations for persons who are not parties to it (clause 3, article 308 of the Civil Code of the Russian Federation). Only in cases provided for by legal acts or by agreement of the parties, rights arise from the contract for third parties in relation to one or both parties (clause 3, article 308, article 430 of the Civil Code of the Russian Federation). There is one exception - this is the memorandum of association, which, due to its corporate nature, regulates not only the obligations of the parties, but also their corporate relations with the participation of a legal entity and third parties.

Being a corporate transaction, the charter of a legal entity gives rise not to an obligation, but to a corporate legal relationship, the circle of participants in which is much wider than the circle of participants in the transaction (founders). The corporate relationship involves not only the founders (participants), but also the legal entity itself and the entities that perform the functions of its bodies. We repeat that corporate relations exist not only within corporations, but arise between any legal entity and each of its founders. Secondly, the contract and the charter have a different order of execution. The contract is concluded by sending an offer by one of the parties and its acceptance by the other party. The principle of freedom of contract means that compulsion to conclude a contract is not allowed, except in cases where the obligation to conclude a contract is provided for by law or a voluntary obligation. The parties are free to determine the terms of the agreement, except for accession agreements (Article 428 of the Civil Code of the Russian Federation). In fact, the contract is considered concluded if the parties come to an agreement on all its terms. When concluding a multilateral agreement by three or more persons, the offer must be brought to the attention of each party to the agreement and accepted by him.

The charter of a legal entity is approved by the founders at the general constituent meeting, although unanimously (clause 3, article 9 of the Law on Joint Stock Companies; clause 1, article 11 of the Law on Limited Liability Companies). However, the unanimity of the founders (participants) for the adoption of the charter is not always required. The charter of a cooperative can be approved by 3/4 of the votes of the members of the cooperative present at the general meeting, while the general meeting itself is entitled to make decisions if more than 50% of the total number of members of the cooperative is present at this meeting (part 1, clause 1, article 5, part 3 paragraph 1, part 1, 4 paragraph 2 article 15 of the Law on production cooperatives). It turns out that if the charter is adopted by a majority of votes, the founders (members) remaining in the minority, who do not agree with the charter, will nevertheless be forced to join it and obey its terms. Otherwise, they may refuse membership in the cooperative. As you can see, in the process of approving the charter, its corporate nature is traced, when the entities participating in the transaction are in an equal legal position, but at the same time, some are subordinate to others.

Thirdly, the contract and the charter have a different order of change. As a rule, the change (addition) and termination of the contract occurs by agreement of the parties. Unlike the contract, the charter is changed (supplemented) by decision not of the founders, but of a higher and even other collegiate body management of a legal entity, which can be adopted by a majority vote. According to paragraph 1 of Art. 12 of the Law on joint-stock companies, amendments (additions) to the charter of the company, its approval are carried out by decision of the general meeting of shareholders, except for the cases provided for by this Law. So, paragraph 5 of Art. 12 of the Law on Joint Stock Companies establishes that amendments to the charter related to the creation of branches, the opening of representative offices of the company and their liquidation are carried out on the basis of a decision of the board of directors (supervisory board) of the company. It turns out that the charter can be changed not only by the participants in the transaction (for example, the founders), but also by other participants in the corporate relationship. It is possible that the charter may be amended by a court decision taken at the suit of a minority of shareholders whose rights were violated during the adoption of the charter.

Having an idea of ​​the essence of the statutory provisions, let us return to the clarification and definition of the legal nature of the statute. According to paragraph 1 of Art. 52 of the Civil Code of the Russian Federation, it is a kind of constituent documents. But the charter is not just a document, but a constituent document, moreover, named in paragraph 1 of Art. 52 of the Civil Code of the Russian Federation as the basis for the activities of a legal entity. Thus, a charter is a legal or legal document. A legal document was defined in the science of civil law as a document whose content certifies certain legally significant facts or legal relations based on them, i.e. it is a phenomenon of an actual order.

The legal document is understood in science not so unambiguously. “A legal act-document is a decision expressing the will of the subject of law and executed in the prescribed manner, containing legal means (prescriptions), designed to achieve the relevant goals (regulate social relations) and entail certain results (legal consequences)”. Thus, the main feature legal instrument is that it contains means of legal influence, which include not only the rules of law.

The charter of a legal entity, as shown above, contains means of legal action, therefore, it can be defined as a legal document containing corporate provisions. At the same time, by its legal nature, it is a legal act, which is a form of law-establishing and law-realization processes of influencing the behavior of subjects. So, we came to the conclusion that, by its nature, the charter of a legal entity is a form of law.
Note that not all charters of legal entities are corporate legal documents. There are statutes that have the character of a normative legal act. These include, for example, the charters of legal entities approved by state bodies (clause 2, article 9 of the Federal Law of November 14, 2002 No. 161-FZ “On State and Municipal Unitary Enterprises”).

In conclusion, we will define the practical aspects of the charter as a legal document. Firstly, there is a clear difference between declarations of will and the charter, since they are related as an action and its result. The charter signed by the founders formalizes the corporate transaction and is the founding document that determines the legal status of the legal entity. Secondly, it becomes possible to determine the principles of operation of the charter, which are not enshrined in legislation today, which creates big problems in the legal regulation of the creation and activities of legal entities. Being by nature a legal act, the charter belongs to the same group of phenomena as normative legal acts. Therefore, the same rules of operation should apply to it as to a law or regulation. Of course, we are only talking about general rules actions characteristic of all legal acts.

Bibliography:

1. The Civil Code of the Russian Federation (part one) dated 11/30/1994 N 51-FZ (as amended on 02/07/2017) // Collection of Legislation of the Russian Federation, 12/05/1994, N 32, art. 3301.

2. the federal law dated 12/26/1995 N 208-FZ (as amended on 07/03/2016) "On Joint-Stock Companies" (as amended and supplemented, effective from 01/01/2017) // "Collected Legislation of the Russian Federation", 01/01/1996, N 1, Art. 1.

3. Federal Law No. 41-FZ of May 8, 1996 (as amended on November 30, 2011) "On Production Cooperatives" // Collection of Legislation of the Russian Federation, May 13, 1996, No. 20, art. 2321.

4. Rulings of the Federal Arbitration Court of the Moscow District dated June 16, 2005 No. KG-A40/4896-04; dated January 17, 2005 No. KG-A40 / 12689-04.

5. Civil law: textbook. T. 1. / I. V. Eliseev; ed. A. P. Sergeev, Yu. K. Tolstoy. – M.: Prospekt, 2002. 784 p.

6. Isakov N. V., Malko A. V., Shopina O. V. Legal acts: general theoretical aspect of research // Jurisprudence. 2002. No. 3. S. 18.

7. Kozlova NV Legal nature of constituent documents of a legal entity // Economy and law. 2004. No. 1. S. 64.

8. Lomakin D.V. Corporate interest and exercise of the right to participate in management economic society// Economy and law, 2016. No. 4.C. 3-17.

9. Stepanov D. I. Legal nature of the charter of a legal entity // Economy and law. 2000. No. 6. S. 43.

10. Shershenevich G. F. Textbook of commercial law. M., 1994., S. 153–154.

11. Shitkina I. S. Local rule-making of commercial organizations // Appendix to the journal "Economy and Law". - 2002. - No. 3. C.115.