Non-public joint-stock company: charter, registration

2024 Author: Howard Calhoun | [email protected]. Last modified: 2023-12-17 10:16

Non-public joint-stock companies have appeared in the business community. And all because the sensational amendments to the Civil Code were adopted. What are they? What types of organizations appeared in Russia according to them? How should the correct name of a non-public joint-stock company sound if we are going to do business within the framework of this organizational and legal form? We will try to answer these questions and at the same time consider the most remarkable nuances that reveal the essence of legislative innovations.

New law

Such a phenomenon as a non-public joint-stock company is completely new for Russia. This term has become widespread only after some legislative reforms carried out in September 2014. Then several amendments to the Civil Code of the Russian Federation came into force. According to them, joint-stock companies of open and closed type, as types of organizational and legal form of work of enterprises, received a different name. Now other terms are used, namely, "public" and "ordinary" society. What are they?

Public companies now include organizations that own shares and securities that are placed in an open format (or traded on the market in accordance with the norms of legal acts regulating the circulation of securities). Other types of business companies - CJSC, as well as OJSC - that do not have securities in free circulation, receive the status of "ordinary". Their name sounds like "joint stock company", without any additions. We also note that such a format for organizing enterprises as ALC, in principle, was not classified and abolished in any way. Thus, firms established before September 2014 should be renamed accordingly. The new ones will function in the status established by law.

Nuances of terminology

In the new law there is no term that would sound exactly like "non-public joint-stock company". Thus, such an organizational and legal form as a CJSC has not received a direct analogue. However, if the organization still has shares, even if not launched into free trade, the use of the term "non-public joint-stock company" in relation to them is quite acceptable in an informal manner. In turn, an LLC in which there are no shares (there is only authorized capital) is still called.

So, the main criterion for "publicity" - open trading in shares and other securities. In addition, experts note that another aspect is no less important. "Publicity"JSC, in addition, should be reflected in its charter.

We also note that under the new law, the re-registration of organizations in order to bring their names in line with the amendments does not need to be carried out urgently. In addition, when implementing the corresponding procedure, firms are not required to pay a state duty. An interesting fact is that the amendments to the Civil Code of the Russian Federation in question were initiated by the authorities back in 2012.

LLC is a non-public company?

With regard to such an organizational and legal form of business as an LLC, there is a peculiarity in terms of the amendments under consideration to the Civil Code of the Russian Federation. On the one hand, in the new edition of the Code, LLCs now refer to non-public companies, on a par with "former" CJSCs. On the other hand, other provisions of the Civil Code of the Russian Federation do not say anything about changing their status. Thus, an LLC is, as it were, a "non-public company", like a CJSC, and at the same time, as it were, an independent organizational and legal form of an enterprise.

Three types of societies

So, what do we have on the fact of amending the law? Three main types of organizations remain in Russia.

1. Public Joint Stock Companies

These are enterprises that have shares in free circulation. In any case, these are "former" JSCs.

2. Two subtypes of non-public companies:

- JSC, which does not have shares in free circulation (it can be both "former" CJSC, and JSC with securities not issued for sale), unofficially - "non-public joint-stock company";

- LLC without shares.

Former ODOsabolished. For those firms that managed to register in this status, the rules specific to LLCs will now apply.

Nuances of re-registration

What should already registered firms do? Do they need to rename in accordance with the new norms of the Civil Code of the Russian Federation? Lawyers believe that no, based on the content of the norms of the amendments to the Code. The fact is that in the 11th paragraph of the 3rd article of the relevant law on the renaming of companies, organizations that were created before the amendments came into force and have signs of public ones are automatically recognized as such. In turn, a CJSC can also not be re-registered, however, only until the moment when changes are made to the charter - this is what the 9th paragraph of the 3rd article of the law on amendments says.

Re-registration algorithm

Let's consider how the re-registration (renaming) of the company should be carried out in practice, if the need for this nevertheless arises. The procedure consists of the following main steps.

First, the company fills out an application on the form number P13001, which is approved by the Federal Tax Service. The firm then attaches the following documents to it:

- minutes of the meeting of founders (shareholders);

- new charter of a non-public joint stock company.

Duty, as we said above, you do not need to pay. The next step is to put the founding documents in order. In particular, the abbreviation CJSC and the corresponding term "closed joint stock company" should be renamed JSC. AfterTo do this, it is also necessary to change the structure of seals, make changes to bank documents, and also send information to partners that such and such a CJSC is now a non-public joint-stock company. In this connection, some experts still recommend that a renaming procedure be carried out so that counterparties and potential investors understand more clearly what type of company is or will be cooperating with. Although the law does not require it by default.

Some experts point out, referring to paragraph 1 of Article 97 of the Tax Code of the Russian Federation, that JSCs that have signs of "publicity" are required to add a corresponding indication to their name. "Non-public" JSCs, at their discretion, may do the same if the shareholders intend to announce that the securities will go on public subscription.

Registry and registrar

We also note the fact that the amendments to the Civil Code of the Russian Federation were also accompanied by a number of by-laws. These, in particular, include one of the Letters of the Bank of Russia. It reflects the obligation of organizations to transfer to a specialized registrar - whether it be an open or non-public joint stock company - a register of shareholders. This is a binding order for all joint-stock companies, as lawyers note, for execution by the order of the Central Bank. If an open or non-public joint-stock company has not yet transferred the register of shareholders to anyone, then its founders must carry out a number of procedures. Namely:

- choose a registrar and discuss the terms of the registry agreement with him;

- prepare relevant documents and information;

- conclude an agreement with the registrar;

- disclose information (if the AO is required to do so) about the partner firm;

- notify persons whose data is present in the registration documents;

- transfer the register to the partner organization;

- enter information about the registrar into the Unified State Register of Legal Entities;

All these procedures were ordered by the Central Bank to be carried out by October 2, 2014.

Significance of reforms

What are the practical consequences of the reform of CJSC and OJSC? Experts believe that now the state can control the work of joint-stock companies more actively than before. In particular, all JSCs will have to undergo a mandatory audit, both public and those whose shares are not freely traded. It does not matter the status of the JSC's securities. Even for such a form of business as non-public joint-stock companies, an audit becomes a mandatory procedure.

The auditor should not be associated with the interests of the audited JSC or personally with the shareholders of the company. The subject of the audit is accounting and financial statements. Owners of more than 10% of the corporation's assets (shares or authorized capital) can initiate an unscheduled inspection. The criteria for this procedure may be reflected in the charter of the JSC.

We also note that a number of other amendments were made to the Civil Code, supplementing those that we are considering. In particular, several people can now work in the company for the position of general manager.director. However, the charter of a non-public joint-stock company or its "open" analogue must contain information about the powers of each. Interestingly, the position of chief accountant can be exclusively individual. Another significant innovation is that some types of decisions made by shareholders of firms must now be notarized.

Significant changes relate, for example, to such a nuance as the method of confirming the list of persons participating in the shareholders' meeting. For public JSCs, a norm has been established - the corresponding procedure can be carried out by a person who maintains a register of shareholders and at the same time performs the functions characteristic of a counting commission. These are the innovations. In turn, in such a form of business organization as non-public joint-stock companies, the registry can also be maintained by an executive, but its function, which is related to determining the composition of the meeting participants, can be performed by a notary. In addition, as some lawyers note, the features of this procedure can also be prescribed in the charter of a non-public company - the law does not directly prohibit doing this.

Also, the new version of the Civil Code changed the procedure for transforming one society into another. Now a JSC can become an LLC, a business partnership or a cooperative. However, JSC loses the right to become a non-profit organization.

Corporate agreement

The amendments to the Civil Code also introduced a new term into legal circulation - "corporate agreement". It can be included at willcompany shareholders. If they do this, then if the JSC is public, the content of the document must be disclosed (however, the current rules governing this procedure have not yet appeared). In turn, if the "corporate agreement" was drawn up by a "former" CJSC, a non-public joint-stock company, then the law does not prescribe its details to be disclosed.

Changes in charter

There are a number of nuances to which it is useful to pay attention to the owners of joint-stock companies who decide to amend the organization's charter. The new edition of the Civil Code contains a number of new requirements for this constituent document. Consider the clauses that a typical charter of a non-public joint stock company may contain. Knowing them can be useful both when creating a new company, and when re-registering an existing one. So, the form of the charter of a non-public joint stock company should include the following items:

- corporate name of the organization;

- an indication that it is public (if the actual activity and type of action correspond to that);

- the procedure and conditions under which the audit requested by shareholders who own at least 10% of the securities will be carried out;

- the name of the locality where the company is registered;

- a list of the rights and obligations of the founders of the company;

- features of the procedure in which some shareholders notify others that they will go to court with independent claims;

- a list of rights established for persons forming a collegial structure of company management;

- information about the distribution of powers between various internal corporate structures.

What other nuances does work on the charter include? The following fact can be noted: when a non-public joint-stock company is registered, it is not required to enter information about the sole shareholder in the main constituent document. Or, for example, information about how the composition of participants in joint-stock meetings is determined - the law in this sense gives the owners of non-public companies relative freedom of action.

The approximate model of the charter of a non-public joint stock company, which we outlined above, can also be supplemented with a number of provisions. True, this requires a unanimous decision of the founders. But if it is received, then it is permissible to include the following provisions in the constituent document:

- on assigning issues decided at the general meeting to the competence of the collegial structure of the company management;

- on determining the cases that lead to the creation of an audit commission;

- about how the meeting of shareholders is carried out in a special order;

- on the procedure for granting the preemptive right to purchase securities that are converted into company assets;

- on the procedure for consideration by the general meeting of those issues that, according to the legal acts of the Russian Federation, do not fall within its competence.

This is a very rough sample of the charter of a non-public joint stock company. However, we touched on the key nuances that it is useful for entrepreneurs to pay attention to.