The founding agreement is concluded only between the founders when creating limited liability companies .
Establishment agreements began to be applied from July 1, 2009 (based on 312-ФЗ dated December 30, 08) and replaced the Memorandum of Association , and it should be noted:
- The foundation agreement (in contrast to the Memorandum of Association ) is not a constituent document and therefore regulates only legal relations related to the fulfillment by the Founders of the obligations assumed by themselves when establishing the company ;
- Limited liability companies established before 07/01/2009 do not need to renegotiate Foundation Agreements;
- Limited liability companies consisting of one participant should not conclude an Agreement on the establishment in the event of an increase in the number of their participants subsequently.
Content of the Agreement on the Establishment of an LLC
Peremptory requirements for the Establishment Agreement
The full list of mandatory requirements is established exclusively in paragraph 5 of article 11 of the Federal Law "On limited liability companies" (hereinafter - the Law):
- the procedure for the joint activities of the Founders on the establishment of the Company;
- amount of authorized capital ;
- the procedure for payment of shares by the founders;
- amount of payment of shares by the founders;
- the term for payment of shares by the founders (see also paragraph 1 of article 9 and paragraph 1 of article 16 of the Law);
- the size of the share of each of the Founders;
- face value of the share of each of the Founders.
Establishment Requirements for the Foundation Agreement
Such provisions as may be provided for by the Founding Agreement at the request of the founders:
1. Other methods and procedures may be envisaged for the Participant to provide compensation for the early termination of the right to use property transferred by the Founder to the Company for use as a contribution to the authorized capital (Clause 3 of Article 15 of the Law)
- By default , in the event that the Company terminates the right to use the property before the expiration of the period for which such property was transferred to the Company for use as a contribution to the authorized capital, the Participant transferring the property is obliged to provide the Company, upon request, with monetary compensation equal to the payment for using such property. property under similar conditions for the remaining period.
2. It may be stipulated otherwise in respect of property transferred by the Participant, expelled or withdrawn from the company, to the Company for use as a contribution to the Authorized Capital (Clause 4 of Article 15 of the Law)
- By default - such property remains in use of the Company for the period for which it was transferred.
3. It is possible to envisage the collection of a penalty (fine, penalty) for failure to fulfill the obligation to pay shares in the authorized capital (clause 3 of article 16 of the Law - applies only to payment of shares at the establishment of the Company;)
- By default - no forfeits for failure to fulfill obligations are provided.
Note
The Institutional Agreement should not be confused with:
- creation agreement concluded by shareholders in joint-stock companies ;
- memorandum of association , which, starting from July 1, 2009, is no longer concluded in limited liability companies
- an agreement on the exercise of the rights of participants , which can be concluded by the founders of the company on a par with the Agreement on the establishment, since one of the subjects of regulation of such an agreement may be the obligation of the founders to coordinate the implementation of actions related to the creation of the company (clause 3 of article 8 of the Law)