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3.
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DESCRIPTION OF TRADING COMPANIES | |||||
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SA
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JOINT
STOCK COMPANY |
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There may become partners and set-up a SA:
a.) natural private persons, Romanian or foreign citizens
b.) Romanian or foreign legal persons
2. NUMBERS OF PARTENRS (share holders)
Can not be less than 5.
The commercial companies with entirely or majority state-owned capital can operate with any number of partners.
Company contract and statutes
or a unique document called SET-UP DOCUMENTThe signatories of the set-up documents along with the persons that play a part in the setting up of the company are considered as founders.
There can not be founders those persons who, according to the law are seen unable or have been accused of fraudulent administration, abused of confidence, false, use of false, fraud embezzlement, false testimony, bribery as well as other crimes provided by the law.
a.) Any company must have a firm.
b.) The firm is the name or the denomination under which a trader operates and undersigns.
c.) the Firm must be first written in the Romanian language
d.) the Firm of a SRL is made up of its own denomination that may be followed by the name of one or more of the partners and will be accompanied by the fully written mention " societati cu raspundere limitata " or SRL
e.) Any new firm must differentiate from the existing ones
f.) No firm will bear a denomination used by the traders in the public sectorThe firm of a company is made up of its own denomination meant to differentiate the firm of other companies and will be accompanied by the mention "SOCIETATE PE ACTIUNI" or SA.
a) The LOGO is the sign or the denomination that differentiates a trader of another one of the same kind
b) The LOGO must be primarily written in Romanian
c) Any LOGO must be different from the logos registered in the same trade register for the same type of trade as well from the logo of other traders of the market, where the trader in question operates
d) The LOGO can be used when accompanied by the trader's firm
a.) The company must have a headquarters which is the place and address, where the leading body and the administration operate
b.) The headquarters is an identification element of the company according to which the following are established : applicable law, competent courthouse, nationality of the company, place where registration, publicity and licensing formalities must be accomplished
c.) The company may establish offices with no legal status (branches, agencies, representation offices, operational units, etc.)
a) The set-up document must contain the activity, which will be developed by the company in view of getting profit: production, trade, services, transactions, intermediation, etc.
b) The object of activity must be established having in view the main domain of activity , the main activity and the secondary activities
c) The object of activity is established according to the classification of activities CAEN, approved by Decision of the Government of Romania 656/97
d) The object of activity established must be legal and moral.
a) The registered capital is made up by the share contribution in two ways
-by integral and simultaneous subscription of the registered capital by the signatories of the set-up documents or
- public subscriptionb) The registered capital can not be less than 25 million LEI, and is divided into shares, not less than 100. 000 LEI / each
c) According to their transmissions the shares can be nominative or at bearer
d.) The nominative shares are transmitted by the declaration given in the share holders register's of the issuer subscribed by the assignor and assignee and by the mention written on the share or other modalities provided in the set-up documents.
e.) The shares at bearer are transmitted by their handing over
f.) The dematerialised and traded shared an on unorganised market are transmitted according to Law 52/94 , on property values
g.) The share must be of an equal value and give equal rights to the holders
h.) Preferential shares with priority dividend with no voting right my be issued. These shares are not to exceed ¼ of the registered capital and will have the same nominal value as the ordinary shares.
i.) Shares are indivisible
j.) Any share gives the right to one vote in the General Assembly if not otherwise stated in the set-up document.
k.) The shareholders whose shares are for sale through public bid must draw up an offer according to the provision of Law 52/94.
9. CONTRIBUTION OF THE PARTNERS
a) The contribution may be in cash (compulsory) and in kind (optional).
b) The contribution in currency is recorded in the set-up document in LEI also at the official rate exchange on the date the deposit was made
c) the contribution in currency of foreign partners is recorded in Lei and USD
d) the goods counting as contribution in kind become the property of the commercial company
e) the contribution to the capital does not bear interest
f) the contribution in a accounts receivable is not admitted for the company that is set-up by the public subscription
g) under the form of labour is not admitted no matter the setting up method
h) The value of the contribution in kind is established or confirmed by the experts
i) For the new assets the invoice is not taken in to consideration
j) In exchange of their contribution share holders get share
a) The leadership of the company is performed by the General Assembly of the share holders and by one or more administrators
b) General Assembly are ordinary and extraordinary
c) The Ordinary General Assembly is meets once a year and must- to debate , approve or modify the balance sheet after the presentation of the administrator's and auditor's report and to establish the dividend
- to assign the managers and the auditors
- to establish the payment for the administrators and auditors if not otherwise set in the set-up documents
- to pronounce upon the administrators exercise to establish the profit and expenses budget and according the situation the activity of the program for the next year
- to decide the pledging renting or end of activity of one or more units of the companyd.) On the first meeting, the Generally Assembly is legally constituted if the share holders representing at least ½ of the registered capital are present and the decision will be taken by the share holders that have the absolute majority of the registered capital represented in the assembly. The by law can state a higher majority.
e.) If the first ordinary meeting doesn't comply with the set-up conditions, there will be a second convocation; when decisions can be taken no matter of the share of the capital represented on the conditions of the majority.
f.) the extraordinary Generally Assembly will meet when ever necessarily in order to decide issues related to
f1.) change of the legal form of the company
f2.) change of the company's headquarters
f3.) change of the object of the activity of the company
f4) prolongation of the company duration
f5.) increase the capital of the company
f6.) Reduction of the registered capital or its recoverd by issuing new shares
f7.) merging with other companies or splitting of the company
f8.) anticipating dissolution of the company
f9.) conversion of the shares from one category in to other
f10.) conversion of one category of bonds in to another one or into shares
f11.) issuance of bonds
f12.) any other modification of the set -up document or any other decision that requires the approval of the extraordinary Generally Assemblyg.) On the first extraordinary meeting the presence of the shares holders representing ¾ of the registered capital is necessarily
h.) For the next meeting only the presence of the share holders representing ½ of the registered capital is necessarily and decisions be taken with the vote of the share holders representing 1/3 of the register capita
i.) The extraordinary generally Assembly will be in the position to delegate the attribution described at f.) points 2, 3 5, 6 and 9 to the sole administrator or administration board
j.) SA is administrated by one or more administrators appointed by the Generally Assembly of the share holders
k.) The first administrators may be appointed by the set-up document and their mandated can not be extended for more that 4 years
l.) There can be administrators legal or natural persons
m.) The sole administrator or the president of the board and at least ½ of the number of administrators must be Romanian citizens if the set-up document doesn't state otherwise
n.) The persons that can not be founders can not be either administrators or representatives or managers of the company.
o.) The administration board may transfer part of its powers to a management committee
Made up of elected members from among the administrators
p.) The execution of the company operation may be entrusted to one or more chief executives, employed by the company
q.) The appointment of the companies personnel is made by the sole administrator or the administration board if not other wise stated in the set-up document
r.) A person can not serve in more that three administration boards at the same time, except the cases provided by the law
s.) Administrators must deposit a guarantee equal to at least the nominal value of ten share or two monthly payments
a.) SA will be controlled by auditors
b.) With this in view the company will have 3 auditors and 3 ?? supleanti ?? elected on the first meeting for a period of three years
c.) At least one of the auditors must be an authorised accountant or an expert
d.) The majority of the auditors and the deputies must be Romanian citizens
e.) The auditors must be share holders with the exception of the accountant auditor
f.) The auditors must deposit the third part of the guarantee required by the administrators
g.) Their can not be auditors- the relatives up to the fourth degree inclusively or the administrator's wives;
- the persons that get for other positions than that of an auditor, a salary or any payment from the administrators of the company
- persons who are forbidden the function of administrator according of the provision of art. 135 from Law 31/90h.) The auditors must :
- supervise the administration of the company
- to check whether the balance sheet and the profit and loss of account are legally drawn up whether the records of the company are updated and the evaluation of the patrimony has been made according to the rules established for the drawing up of the balance sheet
- to check monthly and unexpectedly the cash desk and to verify the existence of the titles or the values that are the property of the company or have been received as pledge, bail bond or deposit
- to convoke the extraordinary or ordinary meeting when this was not done by the administrators
- to participate to the ordinary or extraordinary meetings when they the can introduce on the agenda their proposals
- to acknowledge that the administrators pay their guarantee on a regular bases
- to watch that the provision of the law and the set-up documents are accomplished by the administrator s and liquidates
12. PARTENRS PARTICIPATION TO PROFIT AND LOSS
a.) The distribution of the net profit is made by the General Assembly
b.) The shared quota from the net profit payable to the each partner is called dividend
c.) Dividends are paid to the partners according to their participation share to the deposited registered capital if the set-up document does not state the contrary
d.) Dividends are paid from the real benefits only and on the basis on the balance sheet
e.) The partners are liable for the losses of the company proportionally with their participation to the registered capital up to the limit of the subscribed registered contribution
f.) for the SA set-up by public subscription the first meeting will decide upon the participation share from the founders' net profit. The share is not to exceed 6 % of the net profit and can not be granted for a period longer than 5 years from the date the company was set-up.
The set-up document of the SA will contain:
- name and given name, place and date of birth, home address and citizenship of the partners of the natural persons; denomination, headquarters and nationality of partners for legal persons. For the SCA , the partners and the sleeping partners will be shown
- legal form, denomination , headquarters and if the case -the logo of the company
- Activity object stating the main dominion and activity
- the subscribed and paid registered capital. Initially the subscribed registered capital paied by every shareholder will not be less than 30 % of the subscribed one if the law doesn't state otherwise. The remaining of the registered capital will be paied within 12 month from the registration of the company.
- value of the goods that are brought as a contribution in kind the evaluation method and the number of the shares granted for them ;
- number and the nominal value of the shares with the specification whether they are nominative or at bear. If there are more categories of shares their number nominal value and rights conferred to each category of shares will be shown
- Named and given name, place and date of birth address and citizenship of the administrators when natural person; denomination, headquarters and the administrators when legal persons; guarantee which is to be paid by the administrators, their powers and whether they will exercised them jointly or separately; special representation and administration rights granted to some of them. For the SCA there will be an indication of the active partners representing and administrating company;
- named and given name , place and date of birth, address and citizenship of the auditors when natural persons ; denomination, headquarters and nationalities of the auditors when legal persons;
- closes on the leadership , management, control and operation of the company;
- duration of the company;
- distribution of the profits and losses
- secondary offices
- agencies, representation offices and the like having no legal status - when they are set-up at the same time of the company or the conditions for them to set-up ;
- advantages of the founding members
- the shares of the active partners in the SCA
- operations concluded by the shareholders on the account of the company that will be established and which the company will be taking over, along with the amounts that must be paied for these operations.
- the way of desolution of the liquidation of the company
14. SET-UPDOCUMENT MODIFICATION
a.) The set-up document can be modified by the partners with the observance of the conditions provided for its conclusion
b.) The modifying additional document will comprise the whole text of the modified provisions from the set-up document
c.) If several modification of the set-up document will be made, the latter will be updated
15. DIMINUATION OR ENCREASE THE REGITER CAPITAL
a.) The register capital can be diminished by :
- decrease of the number of shares
- reduction of the nominal value of the share acquiring by the company of its own shares followed that by their annulment
- total or partial exemption of the due payments of the share holders
- paying back to the share holders of a quota from the contribution
b.) The register capital may be increased by:
- issuing new shares or by increasing the nominal of the existing share as consequence of a :
- some new contribution in cash and /or in kind
- incorporation of the reserves with the exceptions of the legal ones
- incorporation of the benefits or issue bonuses
- compensation of some cash and eligible claims upon the company with its shares
- inclusion in the reserves of the favourable differences , which came out after the revaluation of the patrimony and used to increased the register capital.
a.) The company can merge with one or more existing companies
b.) The merging is made either by absorbing another company or by merging and a new company results
c.) The splitting of the company can take place by- splitting a part of the patrimony and the transmission to one or more existing companies or which come into being this way
- division of the whole patrimony of the company between two or more existing companies or come into being this wayd.) In this case the splitting company ends its existence
The company is dissolute by
a.) Expiry of the company duration
b.) Impossibility of achieving its objet of activity
c.) Declaration of the company's nullity
d.) Decision of the General Assembly
e.) Decision of the Courthouse by request of any partner for thorough reasons like deep disagreements between partners which prevent the operation of the company
f.) Bankruptcy of the company
g.) Lack of capacity exclusion, withdrawal or decease of some partners when, due to these causes the number of partners reduced to one.Exceptions makes when the set-up documents contains the continuation clause for the inheritors or when the remaining partner decides the continuation of the existence company under the form of a sole partner SRL
h.) Loss of half of the registered capital or its diminution below the legal minim.
The company is not dissolute if within nine months from the date of the loss or diminution of the register capital is acknowledged, the latter is re-completed.
The capital can be reduced to the left amount or the legal minim amount or the company is transformed into another one where the registered capital is acceptable.
Also, the Courthouse may pronounce the dissolution by request of the Camber of Commerce and Industry or of any other concerned party:
i.) The company does not have the statutory bodies or they can not gather
j.) During three consecutive years the company did not forward its balance sheet or other documents to the office of the Trade Registry
k.) The company ceased its activity has no known headquarters, the partners disappeared, or have no known domicile or residence.
The company is not dissolute if the ceased of activity has been announced to the fiscal bodies and registered in the office of the Trade Registry and the time period of ceasing the activity does not exceed three years.
l.) When the number of the shareholders foals under the legal minim number
a.) The effect of the company dissolution is the starting the liquidation procedures except for the merging or total division cases or the dissolution case of a sole partner SRL
b.) The liquidation and distribution of the patrimony is provided by authorised liquidates appointed by the partners or Courthouse.
c.) By the end of the liquidation procedures, the liquidates will drawn up the liquidation balance sheet and will make proposals with regard to the distribution of the existing assets between partners.