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An important element for this type of company is the limited liability of the partners up to the value of the subscribed registered capital. The patrimony contribution is materialized in the share that may be alienated. The KFT (except the sole partner KFT) may be set up with at least two natural or legal persons. 1. Registered capital (subscribed capital) The law provides that the minimum registered capital is 3.000.000 Ft for setting up a KFT; that is to say that the registered capital can not be less than 3.000.000 Ft. At the setting u, the value of the paid capital can not be less than
30% of the minimum capital prescribed by the law, that is to say that
the minimum is The registered capital consists of the total deposit made by the
partners. The registered capital is the contribution of the founding members and may consist of contributions in cash and in kind. The contribution in kind may be any asset existent in the civil circuit, having a patrimony value or a spiritual product or a patrimony right. As contribution in kind may be accepted any asset, spiritual product or patrimony right that can be executed by force and which the KFT can alienate without the agreement of the thirds. In this respect, there must be an acceptance of the contribution that has already got all the necessary approvals up to the payment of the contribution. The contribution to the capital of the members may be different, the value subscribed by a person can not be less than 100.000 Ft. The subscribed capital must be expressed in HUF and must be multiples of 10.000. Each founding member has a share and the share can have more owners according to the rules of common property. If - at the date of setting-up the company - the whole-subscribed capital has not been paid, the conditions and deadlines for the payment of the unpaid quota from the capital will be stipulated in the company contract. Within one year from the registration of the company the whole-subscribed capital must be deposited and the leaders of the company leaders must prove it in front of the Commercial Courthouse. Those partners who accepted or influenced other members to accept
a contribution in kind at a higher value than the real value or made
use of cunning methods at the company set up are unlimitedly and jointly
liable for the damages caused to the company. 3. The legal relationship between the company and its partners The partners are obliged to pay the subscribed capital and to place
the contribution in kind at the company's disposal. They can not be
exempted from the payment of the registered capital and can not get
approvals for compensations towards the company. The partners pledge themselves to additional services except that of payment of the contribution in kind or in cash. An accepted additional service is the labor of other partners than those elected in leading positions. The conditions of this additional contribution must be stipulated in the company contract. For these additional services the party has the right to compensation. 5. Additional payment obligation The company contract entitles the General Assembly to impose the partners the obligation of additional payment in order to cover the losses. The contract must stipulate the maximum amount the partner can pledge himself, the payment term, the periodicity of obligations and the payment deadlines. The amount deposited as additional payment does not increase the subscribed capital. The additional payment obligation - if the company contract does
not stipulate otherwise - is determined and due proportionally to
the subscribed registered capital. The payment of the additional payment
can be prescribed before the integrand payment of the subscribed capital. After the registration of the company, the rights of the partners and the quota from the patrimony of the company are expressed in the share. The same shares determine the same rights within the company. The contract may provide differentiated rights for some shares as compared to the others. Each partner has only one share. If the partner obtains another independent share, its share increases with the value of the obtained share. A share may have more owners. These owners have the quality of a partner against the company; otherwise, the rights - the conclusion of the company contract included - can be exercised only through an authorized agent and answer jointly for the obligations of the partner. The share may be transmitted freely to the partners. By the company
contract the members reciprocally provide the pre-emption right. The share can be transmitted to any person outside the company only after the whole payment of the subscribed capital. The partner, the company or the person appointed by the General Assembly - this order should be observed - have pre-emption right upon the share whose transmission is intended by concluding a selling - purchasing contract. If the partners do not express their option within 15 days from the date the alienation intention was communicated there must be considered that they do not wish to exercise their pre-emption right. In case of company or person appointed by the company, the term is 30 days from the date the alienation intention was communicated. The transfer of the pre-emption right is null, no one has the right to give up his pre-emption right. In order to ascertain the cancellation since then of the contract concluded with the endangering of the pre-emption right, the request for pressing charges can be forwarded within 1 year from the conclusion of the contract. The term is of withdrawal of rights. The partners may condition the transfer of the share to the thirds by the approval of the company. The conditions of approval or rejection of the transfer request will be stipulated in the company contract. The transfer with another juridical title than that of selling - purchasing can be limited or banned by the company contract. In case of transfer of the share, the rights of the partner rise from the juridical relationships with the company and are trasmitted to the person that acquired the share. The transfer of the share does not imply the modification of the company contract. The person that acquired the share has the obligation to announce the company about the date of acquisition and the modification related to the change of the owner of the share in view of performing the amendments in the Trade Registry. The communication will be made under the form of an authentic writ
or a writ under private signature on the condition that the latter
accomplishes the format and contents requirements to be considered
a certain proof. It must comprise, beside the state of fact regarding
the acquisition, the declaration of the new owner stating that he
accepts all the obligations deriving from the company contract. Following the death of the partner the share is transmitted to the
lawful heir. The company contract may forbid the transmission but
in this case the contract must stipulate the purchasing of the share
by the other partners or the company itself. If the partner has not
a lawful heir, the company takes over the share by paying its countervalue. Transfer only, inheritance or acquisition may divide the share by the lawful heir of the partner legal person that is dissolute. The General Assembly only may decide on the division of the share. The rules on the minimum level of the subscribed capital are compulsory in case of division, too. The company contract may forbid the division of the share. Partners do not have the right to ask for the restitution of their contribution to the capital. After the calculation according to the norms in force with regard to the accounting system of companies, the deduction of the tax, partners get that part of the dividends that the General Assembly decides. Partners have the right to dividends in accordance with their paid contribution to the capital. In the absence of other provisions in the company contract dividends will be divided to the partners proportionally to the share they have. The General Assembly may decide upon the payment of dividends after the approval of the balance sheet drawn up in accordance with the Accountancy Law, on the proposal of the executive board of the company. Dividends can not be paid if by paying them the registered capital
would decrease below the level of the registered capital on the date
the company was set up according to the calculation methods prescribed
by the Accountancy Law. With the approval of the quorum of at least 3, the company may get at the most one third of the share from the exceeding patrimony as to the registered capital at the setting-up date. Only those shares may be acquired for which the contribution has been entirely paid. After acquiring the share the company has no voting right. The share purchased this way - within 1 year from the purchasing
date - the company has the obligation to alienate it or hand it over
to the partners, proportionally to the share each partners helds -
without compensation or the company will take it over after the expiry
of the period according to the rules of capital reduction. The company takes over the share by:
In case of canceling of the partner with no lawful heir, the shares may be taken over by the company even if the company contract does not have provisions in this respect. The company may decide that the share should be handed in to the partners, without equivalent. The taking over of the share - with this exemption - can be made only if the contract has special provisions in this respect. For performing the taking over it is not necessary to have the approval of the partner if the conditions of the taking over have not been stipulated in the company contract on the date the partner obtained the share. Once the taking over accomplished the share ceases and the registered
capital of the company diminishes with its value. The rules for the
decrease of capital are to be applied. 13. The share of the employees The company contract may have special provisions according to which the employees of the company may obtain shares free of charge or at attractive prices. The employees may obtain shares only by an increase of capital. The hares of the employees may not exceed 15% of the registered capital. The holders of the shares have the same rights as the rest of the
partners. The company contract may provide preferential rights for
the employees who are holders of shares. The General Assembly
An authorized agent may represent the partner in the general assembly. There may not become authorized agents the administrator, the members of the auditors' commission and the person in charge with the financial audit. The representation right must be proved by an authentic writ under private signature, accepted by right with a probatory value. The general assembly has the right of decision if at least half of the registered capital is present. The company contract may prescribe a higher quorum. If the general assembly is not statutory, during the second convocation
the present partners may decide with regard to the agenda, no matter
of the number of shares that are represented or the proportion of
those who have the voting right if the company contract does not prescribe
otherwise. 15. Convocation of the general assembly The administrator makes the convocation of the general assembly. Except for the cases stipulated by the law with regard to trading companies or the company contract, the general assembly must be convoked any time the interests of the company ask for it. The general assembly must be convoked at once for taking the necessary measures if the balance sheet or the financial records reveal that, due to the losses, the registered capital reduced to half or below the minimum registered value or if the company is unable to pay its debts and the patrimony does not cover them. For the above stated cases the partners must decide with regard to the additional payments or - if the company contract does not have stipulations in this respect - about the increase or decrease of the registered capital, turning the KFT into general partnership or limited partnership by shares or, if these possibilities lack, ending the activity of the company. The general assembly is convoked at the headquarters of the company and derogation is given only with the previous agreement of all the partners. Convocation of the general assembly Partners convoke the general assembly by announcing the agenda. The convocation must be sent at least 15 days before the established date for the general assembly. Any partner has the right to ask the discussion of issues that are not contained in the agenda if this proposal was make known to all partners at least three days before the date of the general assembly. If the convocation was not made according to the procedure, it may
be considered as valid only if all partners are present and none of
them contests it. For issues other than the approval of the report on the balance sheet drawn up in conformity with the provisions of the Accountancy Law and the establishment of the destination of the outcome left after the tax deduction, partners may decide without meeting in the general assembly. The decision project submitted for approval, with no convocation of the general assembly - if the company contract does not stipulate a shorter term -, must be communicated to the partners in writing at least 8 days before and in their turn, partners will vote in writing. The approval is considered as valid in the day following the reception of the last vote. The administrator will communicate the result of vote in writing
to each partner within 8 days from the reception of the last vote.
By request of any partner, the general assembly will be convoked in
order to discuss the decision project. The leader of the KFt is the administrator. 17. Criteria for the administrator's mandate A person may be elected as administrator at the most three companies. The administrator elected to run a company must communicate the other two companies the state of facts, in writing, within 15 days from the acceptance of the function. As administrator, he does not get obligatory orders from the partners or employer. Only a natural person may become administrator. Only that person who may not authorize another person can exercise this function. There may not become administrator of a company a person convicted for crimes that led to imprisonment by a final courthouse decision or an offence until he is not rehabilitated de facto and de jure. That who suffered a penalty forbidding the exercise of a profession by final courthouse decision may not become administrator of a company whose object of activity is identical with that for which the restraint was pronounced. There may not become administrator of a company which for a duration of three years from the establishment of facts of the payment disablement of the company by a final decision that person who was the administrator of a company in dissolution if he exercised this position at least one year in the last two years previous to the day the final decision had been pronounced by which the liquidation of the company started. An exception is the situation in which the appointment of the administrator was expressly made in view of preventing the dissolution. Within two years from the cancellation of the company from the Trade Registry there may not become the administrator of another company that person who was the administrator of the cancelled company at least one year before the cancellation had been decided. The administrator may not get shares in companies that have the same activity object and may not become administrator of another company with the same object of activity, except for the case when the company contract prescribes this possibility or the general assembly agrees on it. The administrator and his close relatives may not conclude in their own name or for their interest contracts/conventions in the activity object of the company, except for the case when the company contract stipulates it. The compensations for the damages brought to the company by not observing
these rules may be asked within one year from the date the damage
was caused. Administrators are elected for a given period of time and a mandate may last at the most 5 years. Administrators may be appointed by company contract. The mandate comes into force on the date it is accepted. Administrators
may be re-elected and may be called back any time by the general assembly. In order to exercise his function the administrator may be remunerated. 20. Duties of the administrator Administrators have the duty to make the registration in the Trade Registry upon the setting-up of the company, register the amendments of the company contract, the rights recorded in the Trade Registry, the state of facts, data and any other changes and information provided by the law. Administrators are unlimitedly and jointly liable for the damages caused to the company by recording false data, rights or state of facts or delays or omissions of registrations. Administrators have the obligation to keep the secret on the information with regard to the commercial relations of the company. Administrators are bound to provide information on the activity of the company, by request of the partners and to allow the study of the documents and account books. In case of refusal, by request of the interested partner, the judge delegated at the Trade Registry will oblige the company to provide the information and documents. The exercise of these rights will not prejudice the economic interests
of the company or the trade secret. 21. Exercise of the employer's rights In relation with the employees of the trading company the employer's
rights will be exercised by the administrator if the company contract
does not provide the contrary. 22. Liability of the administrators Administrators have the obligation to run the company with increased diligence having all the time in view the priority of the company's interests. They are liable to the company for the damages caused by infringing the legal norms, the provisions of the company contract, decisions of the general assembly and the obligations that come out from the mandate as an administrator according to the provisions of the Common Law. In case of administrators with the same rights concerning the registrations in the Trade Registry the liability for the damages caused according to the above stated is joint. The company is liable for the damages caused to third parties by its administrator, within the limitations of his duties. After the dissolution of the company with no lawful heirs, the partners who had juridical relations with the company on the date of cancellation in the Trade Registry may exercise the right of indemnification against the administrators, within one year from the final decision of cancellation. If the liability of the partner for the obligations of the company
were limited on the duration of the company's operation, the right
of indemnification may be exercised proportionally to the share the
partner has the right to following the distribution of the patrimony
of the company. 23. End of the administrator's mandate The mandate of the administrator ends:
The administrator will take care that all the changes regarding the partners or shares, as to their transmission, division, inclusion in the patrimony of the company should be written down in the Registry of partners. The administrator has the duty to communicate the registry of partners or any updating changes that may occur to the delegate judge from the Trade Registry. Any interested person may ask for consultation the registry of partners,
at the company's headquarters. 25. Legal representation of the trading company, pledging of the company The administrator (administrators) represents the company in its
relation with third parties, in front of the court and officials,
respectively. The limitation of the representation right to the thirds
has no validity. The right to pledge the company, the administrator and the financial manager in what the bank account is concerned - can be only personal and should this right be given to other persons it is needed to have the signatures of two persons with representation right. The right to pledge the company by the representatives may be joint; consequently, in the relationships with the thirds they involve jointly the company. The pledging of the company in official documents is so that the
persons who have the representation right of the company sign the
documents written on papers with the logo of the company, according
to their declaration regarding authorized signatures. The general assembly may appoint an employee as executive manager who may be given a right of general representation. Manager general may be that employed person who satisfies the general conditions for administrators. If the company has activities elsewhere than the headquarters, in subsidiaries or operation units, several executive managers may be appointed. The executive manager performs his tasks as the administrators gave
them to him. If the executive manager considers that the tasks delegated
by the administrators as illegal and useless, he may address the auditors'
commission. The executive manager and the employed person having the
representation right can not transmit this right to other persons. 28. Modification of the company contract In order to modify the company contract it is necessary to have the decision of the general assembly, with a majority of at least 3. It is not necessary to convoke the general assembly and modify the
form of the company contract when changes with regard to the partners
occur. 29. Increase of the registered capital If the general assembly decides on the increase of the registered capital, this can be done by new cash (or in kind) contributions only, if the subscribed capital was entirely paid. An exception is the situation in which the company from its surplus patrimony as to the initial registered capital performs the increase. The general assembly may decide on the increase of the registered
capital and from the surplus patrimony as to the registered capital.
Such an increase of the registered capital determines the increase
of the shares of the partners - without additional payments - proportionally
to the contribution of each partner to the capital. 30. Diminishing of the registered capital The general assembly may decide on the diminishing of the registered capital and in some well-established cases has the obligation of diminishing it. The registered capital can not be diminished below 3 million HUF. If, under the circumstances, the law provides the diminishing of
the registered capital, and this can not be performed because by doing
so the registered capital falls below the minimum limit admitted by
the law, the general assembly has the duty to decide either the modification
of the legal type of company or its dissolution without lawful heir. Important influence: if the partner has over 25% of the votes; Majority leadership: if the partner has over 50% of the votes; Direct leadership: if the partner has more than 75% of the votes. These influences must necessarily be announced to the holder within
30 days and also to the delegate judge at the Chamber of Commerce
and the Official Journal of the companies. Up to the performance of
the announcement, they may exercise their voting right only upon the
share that is unaffected by the communication obligation. 32. Sole partner limited liability company (KFT) A person may set up o limited liability company and an already set up company may turn into a sole partner limited liability company if a single person acquires the ownership over all shares. For setting up a sole partner company an authentic bylaw is necessary. In case of sole partner companies, before the registration of the company, the whole registered capital must be paid and the whole contribution in kind must be handed over to the company. For this type of company, the competencies of the general assembly fall under the authority of the sole partner. If the founder is a natural person, the bylaw may provide that he has the right of representation and solves the problems of the company (the duties of the executive manager). If the sole partner company, by division of the shares or increase
of capital, will adopt other partners thus becoming a limited liability
company with several partners, they have the obligation to turn the
bylaw into company contract. By request of the trading company, the court may dispose the exclusion of the partner if by keeping him into the company he would endanger the achievement of the company's goal. In connection with the start of the legal procedure, the general assembly may decide with a majority of 3/4. The decision will be in written form. The partner in question has no voting right with regard to the beginning of the legal procedure. The summon request will be registered within 15 days from the date the decision has been taken by the general assembly under the sanction of rights withdrawal, at the competent County Courthouse, according to the headquarters location. The decision of the general assembly on the starting of the exclusion procedure can not go to law but the defendant has the right to defend himself in the exclusion action by invoking the illegality of the general assembly decision. The assessment of the conduct, except the extreme cases and those
that are inadmissible without any doubt, will be always made according
to the case and having good knowledge of all circumstances.
34. Convocation of the General Assembly The partners representing at least 10% of the votes may ask whenever they consider to the convocation of the general assembly by stating the reason and goal. By the articles of association this right may be stated for the partners representing a lower proportion. If the administrator does not respond to this request within 30 days,
by request of the initiators, the judge decides the convocation of
the general assembly within 30 days from the registration of the request.
The legal decision id final and there is no other way to attack it. If the general assembly does not answer to the initiative regarding
the control on the last report drawn up according to the Accountancy
Law or on an event related to the execution activity in the last two
years or if the general assembly omitted to take the decision, this
control will be ordered by the judge in case this is requested by
the partners with at least 10% of the votes. 36. Damages brought to the company If the general assembly does not initiate the accomplishment of a right against the partners, administrators, members of the auditors' commission or the person that performed the financial control, if the general assembly omitted to take the decision on such an initiative, communicated according to the regulations, the holders of at least 10% of the votes that can be expressed have the right to go to law on behalf of the company for the accomplishment of the claimed right within 30 days from the convocation of the general assembly under the sanction of the rights withdrawal. The company and the partners which initiated the sue will pay the
Courts costs in advance and bear the joint responsibility to compensate
the company in case the process is lost. 37. Legality in company operation It is compulsory to choose an expert who will exercise the financial control in the limited liability companies where the registered capital is over 50.000.000 HUF or if it is a sole partner limited liability company. The general assembly may decide on the selection of a chartered accountant
who will exercise the financial control of the company and if there
are no legal provisions in this respect. 38. Criteria of the financial control mandate One of the people listed as a chartered accountant can be selected. There can not become a chartered accountant of the company the natural person who is a founding member or a partner in the company. There may not be selected as a chartered accountant the administrator of the company or a member of the auditors' commission or their close relatives, or an employee of the company within 3 years from the cease of the labor contract concluded with the company. If a legal person accomplishes the accounting activity - one may take into account the incompatibilities mentioned above - with regard to all partners (shareholders), the administrator and the senior staff of the legal person. The person that performs the economical and financial control of
the company can not perform other activities for the company but the
legal person can do it if this does not bring damages to the duties
contained in the contract concluded as a chartered accountant. The chartered accountant is selected or appointed by company contract for a stated period of time of maximum 5 years. After the selection or appointment, the administrator of the company
concludes a contract with the chartered accountant according to the
general rules of common law. 40. Tasks of the chartered accountant The chartered accountant checks the accuracy and legality of the reports drawn up according to the provisions of the Accountancy Law, has the obligation to control all the important reports on the activity of the company which afterwards are presented to the supreme leading body accompanied by his own point of view regarding the truthfulness and legality of the content of the documents. The chartered accountant has the right to ask for the book keeping, to request information from the administrator, members of the auditors' commission and the employees of the company and has the right to check the bank account, the cash, the availability, the goods in stock and the contracts concluded by the company. The chartered accountant has the obligation to keep for himself the
information on the company and to treat it as commercial secrecy. 41. The establishment of the auditors' commission is compulsory:
43. Operation of the auditors' commission The auditors' commission operates as a collective body. A president is elected from among the members. The auditors' commission has the right to take decisions if 2/3 of
the members but at least three is present and simple majority takes
decisions. 44. Liability of the members of the auditors' commission The members are unlimited and jointly liable for the damages caused
to the company by breaching the control obligations. 45. Necessary documents for setting-up a company and registration procedure "For setting-up a trading company it is necessary to conclude the company contract and for the sole partner company the setting-up document." The company contract and the setting-up document must be signed by every partner/founder. In the name of the partner, another person may sign the company contract/the setting-up document as well, which has been given an authentic power-of-attorney or a writ under private signature. The bylaw of the joint stock company must be approved in the first general assembly of the company. The company contract/setting-up document must be authenticated by
the notary or must be countersigned by a lawyer or legal advisor. The above quoted paragraph from the law shows that the setting-up document, the company contract respectively must be comprised in the document authenticated by the notary or must be countersigned by a lawyer or a legal advisor. The lawyers countersign the contracts or the setting-up documents drawn up by them and based on the mandate contract concluded with the client they represent him in front of the law court. "The setting-up of the trading company - if the law on the firms registry, publicity of firms and judicial procedure of firms does not contain contrary provisions - within 30 days from the conclusion of the company contract/setting-up document, the approval of the bylaw must be communicated to the County (Capital) Courthouse in view of registration and performance of the publicity procedure; also, the Trade Registry will be informed. If, for setting-up a trading company it is necessary to get the setting-up approval, the communication will be obligatorily made within at most 30 days from the date the approval was released. The trading company is considered set-up from the date of registration in the Registry of Firms. The norms regarding the registration are contained in Law CXLV/1997 on the Registry of Firms, their publicity and judicial procedure. Before starting the setting-up of a trading company it is recommended that information should be collected with regard to the setting-up, operation, norm in the field of finance, book-keeping, taxes and fees as well as on the costs related to the setting-up and operation of trading companies. You will find out about setting-up a company and how it operates
from the lawyers and legal advisors and on matters as financial issues,
taxes and fees from the specialized offices on book keeping of the
companies, tax councilors and chartered accountants. |