Increase of the authorized capital of LLC (+ protocol templates)

In accordance with Art. 12 of the Law of Ukraine "On Limited and Additional Liability Companies", the size of the authorized capital of the company consists of the nominal value of the shares of its participants, expressed in the national currency of Ukraine. The size of the share of a company participant in the charter capital of the company may be additionally determined as a percentage. The size of the share of a participant in the company in percent must correspond to the ratio of the nominal value of his share and the authorized capital of the company.

At the same time, the contribution of a member of the company may be money, securities, other property, unless otherwise provided by law. The company cannot provide a loan to pay for a participant's contribution or a guarantee for loans, credits provided by a third party to pay for his contribution. A contribution in non-cash form must have a monetary value, approved by a unanimous decision of the general meeting of participants, in which all participants of the company took part. When creating a company, such an assessment is determined by the decision of the founders to create a company (Article 13 of the Law of Ukraine "On Limited and Additional Liability Companies").

Now the Law provides for two ways to increase the authorized capital of a commodity group:

Increase of the authorized capital without additional contributions
Increase of the authorized capital due to additional contributions
But before proceeding to these two paths, one must clearly understand that each member of the company must fully contribute within six months from the date of state registration of the company, unless otherwise provided by the charter. The relevant provisions can be introduced into the charter, changed or excluded from it by a unanimous decision of the general meeting of participants, in which all participants of the company took part (part 1 of article 14 of the Law of Ukraine "On limited and additional liability companies"). the contribution of each member of the company must be at least the nominal value of his share (part 2 of article 14 of the Law of Ukraine "On limited and additional liability companies").

If a participant is late in making a contribution or part of it, the executive body of the company must send him a written warning about the delay. The warning should contain information about a non-timely deposit or part of it and an additional period provided for repayment of the debt. An additional period provided for repayment of debt is established by the executive body of the company or the charter of the company, but cannot exceed 30 days. If a member of the company has not made a contribution to pay off the debt within the provided additional period, the executive body of the company must convene a general meeting of participants who can take one of the following decisions (Article 15 of the Law of Ukraine "On Limited and Additional Liability Companies"):

1) on the exclusion of a member of the company who is in arrears on making a contribution;

2) on the reduction of the charter capital of the company by the amount of the unpaid part of the share of a participant in the company;

3) on the redistribution of the unpaid share (part of the share) between other members of the company without changing the amount of the authorized capital of the company and the payment of such debt by the relevant participants;

4) on the liquidation of the company.

The adoption of one of the listed decisions is the right of the general meeting of participants, and not its obligation. At the same time, verification of the actual contribution is the responsibility of the executive body of the company itself and such verification is not carried out by any other body or person. However, by and large, there is no clear mechanism for such a check. One of the methods of such verification can be a comparison of data from the Unified State Register of Legal Entities, Individual Entrepreneurs and Public Formations by the size of the state capital of the company with the balance sheet of such an enterprise, where unpaid capital should be displayed in line 1425. Now the STS begins to disclose, in particular, such a set of data in the form of open data as financial statements (statement of financial position (balance sheet) and statement of profit and loss and other comprehensive income (statement of financial results), presented in addition to the reporting ( reporting new) tax reporting for the annual tax (reporting) period in accordance with paragraph 46.2 of Article 46 of the Tax Code of Ukraine. Resolution of the Cabinet of Ministers of Ukraine dated March 3, 2021 No. 407 "On Amending the Resolutions of the Cabinet of Ministers of Ukraine No. 835 dated October 21, 2015 and No. 867 dated November 30, 2016".

So, there are often situations when the size of the authorized capital of a company, reflected in the register, does not correspond to the real state of affairs. Companies are created, but the authorized capital is not actually contributed.

As for the increase in the authorized capital without additional contributions, Article 17 of the Law of Ukraine "On Limited and Additional Liability Companies" states that the members of the company can increase the authorized capital of the company without additional contributions at the expense of retained earnings of the company. In the event of an increase in the authorized capital at the expense of retained earnings of the company without attracting additional contributions, the composition of the company's participants and the ratio of the sizes of their shares in the authorized capital do not change. In fact, this happens by holding a general meeting of the company's participants and making an appropriate decision, formalized by the minutes (or the sole decision of the owner). The minutes of the general meeting on increasing the authorized capital without additional contributions can be made using the constructor in InstaDoc.

According to Part 3 of Art. 26 of the Law of Ukraine "On Limited and Additional Liability Companies", dividends may be paid for any period that is a multiple of a quarter, unless otherwise provided by the charter.

Consequently, the decision of the general meeting to increase the authorized capital at the expense of retained earnings is made after considering the issue of the distribution of the company's net profit and the payment of dividends for a certain period. The Law of Ukraine "On Limited and Additional Liability Companies" does not indicate whether it is possible to direct all retained earnings to increase the authorized capital or only a part of it; directed to increase the authorized capital.

As for increasing the authorized capital through additional contributions, Article 18 of the Law of Ukraine "On Limited and Additional Liability Companies" stipulates that the company's participants can increase the authorized capital of the company at the expense of additional contributions from participants and / or third parties by decision of the general meeting of participants.

Each participant has the preemptive right to make an additional contribution within the amount of the increase in the authorized capital in proportion to his share in the authorized capital. Third parties and members of the company can make additional contributions after each participant exercises his preemptive right or refuses to exercise such right within the difference between the amount of the increase in the authorized capital and the amount of additional contributions made by the participants only if this is provided for by the decision of the general meeting of participants on attracting additional contributions ( Part 2 of Article 18 of the Law of Ukraine "On Limited and Additional Liability Companies").

The decision of the general meeting of the company's participants on attracting additional deposits determines the total amount of the increase in the authorized capital of the company, the ratio of the amount of the increase to the size of the share of each participant in the authorized capital and the planned size of the authorized capital (Part 3 of Article 18 of the Law of Ukraine "On Limited and Additional Liability Companies The decision of the general meeting of the company's participants to attract additional contributions can be made using the constructor in InstaDoc.

According to h.ch. 4, 5 Art. 18 of the Law of Ukraine "On Limited and Additional Liability Companies", in addition to monetary form, additional contributions may be made in non-monetary form. In this case, the decision of the general meeting of participants determines the members of the company and / or third parties who contribute the property and its monetary value. Additional contributions can be made by offsetting equal counter claims between the company and the participant and / or a third party.

Members of the company may make additional contributions during the period established by the decision of the general meeting of participants, but not more than within one year from the date of the decision to attract additional contributions. Third parties and members of the company may make additional contributions within six months after the expiration of the period for making additional contributions by members who intend to exercise their preemptive right, unless a shorter period is established by the decision of the general meeting of members on attracting additional contributions. The charter or a unanimous decision of the general meeting of participants, in which all the company's participants took part, may establish other terms for making additional contributions, it may establish the possibility of participants to make additional contributions without observing the proportions of their shares in the authorized capital, or the right of only certain participants or only third parties to make additional contributions, and the stage of making additional contributions only by those members of the company who have a preemptive right can be excluded. (Part 6, 7, 8 of Article 18 of the Law of Ukraine "On Limited and Additional Liability Companies").

According to part 9 of Art. 18 of the Law of Ukraine "On Limited and Additional Liability Companies", an agreement on making an additional contribution may be concluded with a member of the company and / or a third party, according to which such a member and / or a third party undertakes to make an additional contribution in cash or in kind, and company - to increase the size of its share in the authorized capital or to accept it to the company with a corresponding share in the authorized capital. in full and in a timely manner, such an agreement is considered terminated if the decision of the general meeting of participants does not approve the size of the share of such a participant and / or a third party based on the additional contribution actually made by him (part 11 of article 18 of the Law of Ukraine "On companies with limited and additional responsibility ").

Part 10 of Article 18 of the Law of Ukraine "On Limited and Additional Liability Companies" provides that within one month from the date of expiry of the period for making additional contributions established in accordance with this article, the general meeting of participants in the company makes decisions on:

1) approval of the results of making additional contributions by the company's participants and / or third parties;

2) approval of the size of the shares of the company's participants and their nominal value, taking into account the additional contributions actually made by them;

3) approval of the increased size of the charter capital of the company.

Consequently, the increase in the size of the authorized capital through additional contributions is carried out in the following order:

- the general meeting of participants makes a decision on attracting additional contributions, where they determine the total amount of increase in the amount of the authorized capital, the ratio of the amount of the increase to the size of the share of each participant in the authorized capital, the planned size of the authorized capital, the period for participants to make additional contributions, the possibility or prohibition for third parties and / or participants in the addition of additional contributions after the implementation or refusal to exercise the preemptive right of the participants, the period for third parties and / or participants to make additional contributions. Such a decision is not submitted to the state registrar.

- conclusion of an agreement on making an additional contribution, according to which the participant and / or a third party undertakes to make an additional contribution in monetary or non-monetary form, and the company - to increase the size of its share in the authorized capital or take it to the company with a corresponding share in the authorized capital

- the general meeting of participants makes a final decision on approving the results of making additional contributions by the company's participants and / or third parties, on approving the size of the shares of the company's participants and their nominal value, taking into account the additional contributions actually made by them, and on approving the increased size of the charter capital of the company (such a decision accepted within 1 month after the expiration of the term for making additional deposits).

The protocol on the approval of the increase in the authorized capital due to the entry of a new participant can be done using the constructor in InstaDoc.

The protocol on the approval of the increase in the authorized capital due to the entry of a third party can be done using the constructor in InstaDoc.

Images (freepik.com).

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