Non-public company: charter, registration

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

New law

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

Public organizations now include organizations that hold shares and securities, which 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 entities - CJSC, as well as OJSC - that do not have securities in free circulation, receive the status of "ordinary". Their name sounds like a "joint stock company", without any additions. We should also note that such a format of organization of enterprises, like ODL, was not in principle classified and abolished in principle. Thus, the companies created before September 2014 should be appropriately renamed. The new ones will function in the same status as established by law.

Nuances of terminology

The new law does not have a term that would sound exactly like a "non-public joint-stock company". Thus, such an organizational and legal form as 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" with respect to them is entirely permissible in an informal manner. In turn, LLC, in which there are no shares (there is only an authorized capital) is still called.

So, the main criterion of "publicity" is open trade in shares and other securities. In addition, experts note that another aspect is equally important. "Publicity" AO, in addition, should be reflected in its charter.

Also, we note that under the new law, the re-registration of organizations to bring their names into line with the amendments does not need to be urgently carried out. In addition, when carrying out the corresponding procedure, firms are not required to pay a state fee. An interesting fact is that the amendments to the Civil Code of the RF in question were initiated by the authorities in 2012.

LLC is a non-public company?

With regard to such an organizational and legal form of business as LLC, in the part of the amendments to the Civil Code of the Russian Federation, there is a special feature. On the one hand, in the new wording of the Code, LLCs now refer to non-public companies, along with the "former" CJSC. On the other hand, other provisions of the Civil Code of the Russian Federation do not say anything about changing their status. Thus, LLC - it seems to be a "non-public company", as well as CJSC, and at the same time as an independent organizational and legal form of the enterprise.

Three types of societies

So, what do we have after the amendment of the law? There are three main types of organizations in Russia.

1. Public Joint Stock Companies

These are enterprises that have shares that revolve in free circulation. In any case, this is the "former" JSC.

2. Two subtypes of non-public companies:

- JSCs that do not have shares in free circulation (these may be both "former" CJSC and JSC with unreleased securities), unofficially - "non-public joint-stock company";

- LLC without shares.

Former ODLs are abolished. To those firms that managed to register in this status, the norms typical for LLC will now apply.

Nuances of re-registration

What should you do already registered firms? Do they need to rename in accordance with the new rules of the Civil Code of the Russian Federation? Lawyers believe that no, based on the content of the norms of amendments to the Code. The fact is that in the 11th paragraph of the third article of the corresponding law on the renaming of the companies of the organization that were created before the amendments come into force and have signs of public, they are automatically recognized as such. In turn, ZAO can also not be re-registered, however, only until the time when the changes to the charter will be made - so says the 9th paragraph of the third article of the law on amendments.

Algorithm of re-registration

Consider how re-registration (renaming) of a firm should be carried out in practice, if the need for this still arises. The procedure consists of the following main steps.

First, the company completes the application on the form numbered P13001, which is approved by the Federal Tax Service. Then the company encloses the following documents:

- Minutes of the meeting of founders (shareholders);

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

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

Some experts note, referring to the first paragraph of Article 97 of the Tax Code of the Russian Federation, that JSCs that have signs of "publicity" are required to add the appropriate instruction to their name. "Non-public" JSC at its discretion can do the same if the shareholders have the intention to declare that the securities will go to open subscription.

Registry and Registrar

Note also the fact that the amendments to the Civil Code of the Russian Federation were accompanied by a number of by-laws. One of the Letters of the Bank of Russia is one of them. It reflects the obligation of organizations to transfer to the specialized registrar, be it an open or non-public joint-stock company, a register of shareholders. This is mandatory for all joint-stock companies, as the lawyers note, to execute the order of the Central Bank. If an open or non-public joint-stock company has not yet transferred the shareholder register, its founders must implement a number of procedures. Namely:

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

- prepare relevant documents and information;

- conclude a contract with the registrar;

- Disclose information (if the JSC is ordered to do this) about the affiliate firm;

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

- transfer the register to the partner organization;

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

All these procedures, the Central Bank ordered to hold the JSC until October 2, 2014.

Relevance of reforms

What are the practical consequences of the reform of ZAO and OAO? Experts believe that now the state can control the work of joint-stock companies more actively than before. In particular, all joint-stock companies will have to undergo mandatory audit, both public and those whose shares do not circulate freely. Does not matter the status of AO securities. Even for such a form of business as non-public joint-stock companies, audit becomes an obligatory procedure.

At the same time, the auditor should not be associated with the interests of the audited company or personally with the shareholders of the company. The subject of the audit is accounting and financial reporting. Initiate an unscheduled inspection can be owned by more than 10% of the corporation's assets (shares or registered capital). The criteria for carrying out this procedure can be reflected in the charter of the JSC.

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

Significant changes concern, for example, such a nuance as the way to confirm the list of persons participating in the shareholders' meeting. A rule is established for public joint stock companies - a person who maintains the register of shareholders and simultaneously performs the functions specific to the counting commission can produce the corresponding procedure. Such are the innovations. In turn, in this form of business organization, as non-public joint-stock companies, keeping the register can also be carried out by an executive person, but its function, which is related to determining the composition of participants in the meeting, can be performed by a notary. In addition, as some lawyers note, the specifics of this procedure can also be prescribed in the charter of a nonpublic society - the law does not explicitly prohibit it.

Also, the new version of the Civil Code changed the order of the transformation of one society into another. Now AO can become an LLC, a business partnership or a cooperative. At the same time, AO loses the right to become a non-profit organization.

Corporate agreement

Amendments to the Civil Code also introduced into legal circulation a new term - "corporate contract". It can be concluded by shareholders of societies at will. If they do this, then, if the AO is public, the content of the document should be disclosed (although, actual norms regulating this procedure have not yet appeared). In turn, if the "corporate contract" was "former" ZAO, a non-public joint-stock company, then the law does not prescribe to disclose its details.

Changes in the statute

There are a number of nuances to which it is useful to pay attention to owners of joint-stock companies, who decided to make changes to the charter of the organization. The new version of the Civil Code contains a number of new requirements to this constituent document. Consider the items that may contain a standard charter of a non-public joint-stock company. Knowledge of them can be useful both for the creation of a new firm, and when re-existing. So, the form of the charter of a non-public joint-stock company should include the following items:

- company name of the organization;

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

- the procedure and conditions under which an audit will be conducted, requested by shareholders who hold at least 10% of the securities;

- name of the locality where the company is registered;

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

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

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

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

What other nuances include work on the charter? One can note this fact: when a non-public joint-stock company is registered, the main constituent document is not required to enter information about the sole shareholder. Or, for example, information on how the membership of shareholders is determined - the law in this sense gives owners of non-public companies a relative freedom of action.

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

- on referring issues to be decided at the general meeting, to the competence of the collegial management structure of the firm;

- on determining the cases that cause the establishment of the Audit Commission;

- on how the shareholders meeting is held in a special order;

- on the procedure for granting the pre-emptive right to purchase securities that are converted into the company's assets;

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

This is a very approximate example of the charter of a non-public joint-stock company. However, we touched upon the key nuances that entrepreneurs are interested in paying attention to.