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Analysis of companies to set up agreements with the Articles of Association of the Company applicable

Author: LiZuo From: www.yourpaper.net Posted: 2010-04-24 16:02:28 Read:
If in the process of setting up a company, several promoters agreed in the establishment of an agreement: the establishment of the content of the agreement and the articles of association is inconsistent, to set up the content of the agreement shall prevail. This set up the terms of the agreement can take effect this? Provisions in the articles of association of the company to shareholders part of the equity, the shareholders of the actual zero funded and want to allow it to enjoy equity was just to give him part of the capital contributions, whether shareholders agree otherwise of between the actual proportion of investments, agreed to the establishment of a protocol it? agreement validity and effectiveness of the Articles of Association of the Company to which shall prevail?

The above issues the focus of controversy in the establishment of both internal company agreement and the company's articles of association, in the end how the relationship between the two? Difference between the two is what? Should the establishment of the company's agreement with the Articles of Association of the Company provides inconsistent This paper company set up to discuss how to apply the Agreement and the Articles of Association of the Company co-exist within the company more than a few questions to which provisions prevail?

First, the company set up the agreement with the Articles of Association of the Company of the nature and role of

Companies to set up an agreement, citizens, legal persons or other organizations, entered into for the purpose of setting up a company on the future of the company's capital structure (the amount of registered capital contributed by each person of contribution, the contribution amount, invested time), ownership structure (profit-sharing ratio ), the governance structure of the Company (the shareholders' meeting, board of directors, managers, board of supervisors, etc.), business scope and the investor is in the process of establishing the rights and obligations of the company set up fail to reach cost-sharing, breach of responsibility as well as dispute settlement agreement. It is consistent with the meaning of the specific rights and obligations reached between the shareholders of the Company for the purpose of setting up a company internal contract between the shareholders, essentially belongs to the partnership agreement. Company practice, it is not a limited liability company (except for foreign-invested enterprises to take the form of a limited liability company), must file in accordance with the provisions of the Companies Act, Corporation must have entered into between the promoters establishment of protocols. Companies to set up the purpose of the agreement is to determine the basic nature and structure of the established company, the rights and obligations of coordination between the shareholders in the process of setting up a company.
Articles of Association, initiated the establishment of the company's investors, to regulate the responsibility of the shareholders, the scope of responsibility, the allocation of rights and obligations, profit-sharing ratio, and the nature of the company, the purpose, scope, organization, activities, methods and records a company set up the necessary documents. It is based on the specification structure and behavior of the company to focus on, is that credit and important legal documents of the organization so that it is understood that the company and the status of the property to a third party. Essentially belongs to the company's internal autonomy rules. Company practice, the articles of association must file all types of companies established the basic norms of corporate behavior, the company's external reputation prove. The fundamental basis of the Articles of Association is a company set up its activities, is to adjust the company's investors, between investors and companies, investors and operators as well as between the operators and the company rights and obligations.

Second, the relationship between the establishment of the company's agreement with the Articles of Association of the Company

First of all, both have a great deal of commonality in the main body of enacted. The establishment of the company's agreement with the Articles of Association of the Company are formulated by the establishment of the company's shareholders or promoters. Secondly, they are consistent in the target, in order to set up the company. The establishment of agreements in order to set up the company entered into between the shareholders of the rights and obligations of the contract; articles of association is one of the prerequisites for companies to set up. Third, both on the contents of the file have a lot in common. As mentioned earlier, the establishment of the company's agreement and the contents of the Articles of Association of the Company including company name, registered capital, scope of business, shareholders constitute a capital contribution in the form and amount of organization, capital increase, capital reduction, merger, division, termination matters. Company practice, most of the Articles of Association of the Company under the major issues usually set up protocol matters agreed purpose of the promoters entered into an agreement in addition to the rights and obligations of the two sides agreed upon the establishment of the process, and to coordinate the establishment of the promoters behavior, but also In order to make the overall design of the future nature, framework and legal relationship between inside and outside of the company. Third, the company set up the agreement with the Articles of Association of the Company on the applicable difference between

First, as mentioned above, the establishment of the company's agreement in terms of the usual limited liability company, any file; Articles of Association must file for each company, the establishment of the company's articles of association must have, and the Company Law also clearly defined writing the articles of association of the company should be making, and contains the necessary content of entries, so the articles of association is to be file. Secondly, both embodied will. The establishment of the company's agreement is essentially a contract signed by the company's shareholders (or promoter shareholders) for setting up a company, mainly based on the intention of the company's shareholders (or promoter shareholders) entered into, the manifestation of its contents will and demands of the shareholders (or promoter shareholders). The articles of association is mandatory and necessary legal documents, must be developed in accordance with the provisions of the Companies Act, otherwise it will lead to the invalidity of the Articles of Association of the Company, embodied in the law will. Third, the constraints between the two different targets. The establishment of the company's agreement is a contract entered into between the shareholders of the Company (or promoter shareholders), contract a relative characteristics, so the establishment of the agreement to set up only for all signed the agreement, the shareholders (or promoter shareholders) takes legal effect, and on later joined the company shareholders have no legal effect; adjustment and articles of association of internal self-rule of the entire company, so including all shareholders, the legal relationship between the shareholders and the company, between the company's management bodies and companies, also includes later the company's new shareholders. Finally, the establishment of the validity of the agreement and the Articles of Association of the Company during the establishment of protocols adjust the company to set up the process of legal relations and legal acts, the establishment of the agreements before the establishment of the company, the set-up phase of the company, the shareholders (or promoter shareholders) agreed signed and sealed that has the force of law. The articles of association based company established as a prerequisite, not take effect until after the establishment of the company, the shareholders binding.

Fourth, the company set up agreements inconsistent with the Articles of Association of the contents should be treated differently

Although the vast majority of the Articles of Association of the Company absorbed the establishment of the company's agreement to the company to set up the agreement based on both content consistency. But for certain matters, the establishment of the Agreement and the Articles of Association of the Company may still have different regulations, I believe that you should be treated differently, is not blind to the Articles of Association shall prevail. First, in the effectiveness of the human. Agreement of the establishment of the company's shareholders (or the promoter shareholder) signed between the contract and the contract relative characteristics, so the establishment of the company's agreement not against an external third party, can only take effect in the contract between the parties; company Articles of the company's code of conduct, the relevant departments for approval once it has been registered with the credibility, against all third party. Secondly, on the terms and conditions applicable to the effectiveness. If the matter is a shareholder (or promoter shareholders) the rights and obligations between the content, it should be established as a company, be subject to agreement than the effectiveness of the company's articles of association, that the effectiveness of the companies to set up an agreement. The reason is that the controversial company set period, rather than the controversial behavior occurred after the company was founded, the dispute involved the interests of the individual interests of the parties to the agreement should be the establishment, rather than the company as a whole, so in the event of a dispute If both provisions inconsistent, shareholders should be court complaint for breach of contract instead infringement complaint. If the inconsistent matters about matters other than the shareholders (or promoter shareholders) the rights and obligations should be based on the provisions of the articles of association prevail, because the shareholder (or promoter shareholders) on matters other than the rights and obligations of the Company, the Directors, constraints of supervisors and senior management personnel matters, constraints such main legal norms, of course, is the articles of association, which is both contract manifestation of the principle of relativity, is the proper meaning of the articles of association binding rules. If the shareholder behavior damages the interests of the company as a whole, should be the name of the company is based on the articles of association filed the infringement complaint.
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