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Legislative Updates

Re-registration of Incorporation documents and information on shareholders of LLC



TERM FOR RE-REGISTRATION: 1 July 2009 through 31 December 2009.

Federal Law No 312-FZ "On changes to Part 1 of the Civil Code and other laws of the Russian Federation introduced changes to Law No 14-FZ "On limited liability companies", Civil Code and Law No 129-FZ "On state registration of legal entities and individual entrepreneurs", to be effective starting 1 July 2009.

The changes oblige all limited liability companies (hereinafter referred to as "OOO") registered before 1 July 2009 change incorporation documents and register the changes with the relevant registration authority within the term from 1 July 2009 through 31 December 2009.

The following changes have to be or may be (if necessary) made to the incorporation documents of an OOO.

Incorporation Agreement is to be excluded from incorporation documents. Charter is deemed to be the only incorporation document. OOO's having an Incorporation agreement (more than one shareholder) at the moment have to re-register the incorporation documents.

Incorporation Agreement will nevertheless be required in the future in case of two or more shareholders due to such agreement becomes the only document on the basis of which information on shareholders, shares and shares value is introduced with the Consolidated State Register of Legal Entities (EGRUL) at the moment of the OOO registration (note that in case of a sole shareholder such information is introduced basing on the Resolution of the sole shareholder). Along with changing the status of the agreement it must be re-named into an Agreement on incorporation of OOO.

It is noteworthy to mention that upon the re-registration of the incorporation documents the information on the shares and shareholders is introduced to EGRUL basing on the incorporation documents valid through 1 July 2009. It is not unambiguously stated in the Law that there is a necessity to make any amendments into Incorporation agreement due to the change of the name of the agreement but the purpose of the agreement and its changed status mean that such amendments are unlikely to be necessary. We expect the registration authorities to provide official explanations in this regard.

Charter should not obligatorily contain information on the size and value of the shares. Information on shareholders, size and value of their shares in the charter capital of OOO will be determined on the basis of Agreement on incorporation of OOO (upon registration of OOO), List of Shareholders of OOO and data contained in EGRUL which is registered in EGRUL upon registration, re-registration and/or on the basis of notaries' and other authorized applicants' information on deals with shares and other transfers (e.g. heritage). Obviously, Charter containing information on shares is not incompliant. The Law does not introduce any changes to Article 12 of Law No 14-FZ regarding the possibility to include in Charter any information which is not specifically prohibited for inclusion. But it may be reasonable for OOO to exclude such information from Charter not to amend it each time of a share transfer and not to let the information open to different authorities and organizations.

In case the charter capital of OOO is below 10000 rubles the shareholders must contribute to cover the minimum and make the relevant changes to Charter.

The definition "contribution to the charter capital" must be changed for "payment for shares".

A shareholder may leave OOO without agreement of other shareholders and OOO only if such a leave is stipulated in Charter. Therefore such provision should be introduced into Charter if necessary. Please note that such provision should be approved by ? of the shareholders' votes.

A definition of "stated by Charter value of a share" was introduced by the Law. Purchase price of a share or part of a share may be established by Charter in a fixed amount or on a basis of some criteria (net assets, balance value of assets on a date, net profit of OOO and other). The stated value of a share of part of a share is to be the same of any shareholder irrespectively of ownership for the share or part of the share.

Charter of OOO may transfer the right to form and liquidate executive bodies of OOO to the Council of Directors (Supervision Council) from the Shareholders' meeting.

Considering the above, despite the wish or necessity to make amendments to Charter, the re-registration of incorporation documents is inevitable because:

  1. There is a necessity to change some definitions, and;
  2. In case there are more than 1 shareholder there is a necessity to exclude Incorporation Agreement from registered incorporation documents and/or;
  3. There is a necessity to introduce information on shareholders and shares to EGRUL.
Besides the above requirements on amending the incorporation documents and registration of amendments the Law introduces new rules regarding monitoring of information on shareholders, deals with shares and information on shares.

OOO is to compile List of Shareholders, where information on each shareholder, the relevant share and OOO's shares, changes in charter capital and other information is kept and monitored.

Deals on sale of shares of OOO are to be notarized from 1 July 2009, otherwise are void. It is the notary which is to provide information on the notarized deals with shares to the registration authorities, i.e. the notary is to submit an application on making changes in shareholding and notarized agreement on sale of a share.


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