See more
Publication date: 23.05.2024
lawyer, 23 years of experience in enforcement.
The procedure for establishing a corporate fund
A corporate fund is a legal entity that is formed in the form of a joint-stock company and conducts exclusively joint investment activities.
For the general procedure for formation of a joint-stock company, see in the procedure of Registration of a joint-stock company.
In accordance with the provisions of Art. 8 of the Law of Ukraine "On Joint Investment Institutions" dated 07.05.2012 No. 5080-VI, a corporate fund can be created exclusively by establishment. Merger, division, division, merger or transformation of the corporate fund is prohibited. Allocation from the corporate fund of another legal entity is prohibited. Joining the corporate fund of another legal entity is prohibited.
A corporate fund is considered created and acquires the status of a legal entity from the date of its state registration in accordance with the procedure established by law.
A corporate fund acquires the status of a joint investment institute from the day of entering information about it into the State Register of Enterprises.
In the period between the creation and entry of information into the Register, the corporate foundation has no right to take any actions other than those aimed at its creation and entry of information about it into the UDR.
According to Clause 1, Part 4 of Art. 9 of Law No. 5080-VI, the founders make a decision on the creation of a corporate fund, approve the draft of its charter, make a decision on the private placement of shares of the corporate fund.
The next stage is the submission to the National Securities and Stock Market Commission of an application and all documents necessary for approval of the draft charter of the corporate fund and registration of shares for the purpose of forming the initial authorized capital.
Clause 3 of Section II of the Regulation on the Procedure for Registration of the Prospectus and Issue of Shares of a Corporate Investment Fund, approved by the decision of the National Securities and Stock Market Commission No. 1104 dated 06.20.2013, establishes the list of documents to be attached to the application. The application is submitted within 60 days after the decision on the private placement of shares of the corporate fund is adopted by the meeting of founders.
Registration of the issue of corporate fund shares by the Commission is carried out on the basis of documents submitted in accordance with the law.
According to Clause 4 of Chapter II of Regulation No. 1104, the authorized person of the Commission approves the draft charter of the corporate fund and registers the issue of shares for the purpose of forming the initial authorized capital.
Registration of the issue of shares for the purpose of forming the initial authorized capital of the corporate fund and issuance of a temporary certificate of registration of this issue is the basis for entering the issue of shares in the Unified State Register of Joint Investment Institutions.
In accordance with Clause 4 of Chapter II of Regulation No. 1104, one copy of the agreed charter of the corporate fund and a temporary certificate of registration of the issue of shares for the purpose of forming the initial authorized capital of the corporate fund is issued to the applicant.
On the basis of the certificate, in accordance with Part 4 of Art. 9 of Law 5080-VI, the shares are assigned an international identification number, an agreement is concluded with the Central Securities Depository on servicing the issue of corporate fund shares, and a global certificate is issued.
According to Clause 2 of Section III of the Regulation on the Procedure for Placement, Circulation and Redemption of Securities of the Joint Investment Institute, approved by the decision of the National Commission for Securities and the Stock Market No. 1338 of 30.07.2013, when forming the initial authorized capital of a corporate fund, exclusively private placement of shares is carried out . Each placed share of the corporate fund gives its owner the same amount of rights.
Features of the placement of shares are established by sections II-III of Regulation No. 1338.
After the placement, the full nominal value of shares of the corporate fund is paid for the purpose of forming the initial authorized capital.
According to Clause 8, Part 4 of Art. 9 of Law No. 5080-VI, constituent meetings are convened for the purpose of approving the results of the private placement of shares among the founders of the fund, approving the charter, electing members of the supervisory board, approving draft contracts with the asset management company and the custodian of the assets of the corporate fund.
Based on the analysis of the provisions of the Law of Ukraine "On State Registration of Legal Entities, Individual Entrepreneurs and Public Organizations" dated 15.05.2003 No. 755-IV and the Procedure for State Registration of Legal Entities, Individual Entrepreneurs and Public Organizations that Do Not Have the Status of Legal Entities, approved by the order of the Ministry of Justice of Ukraine dated February 9, 2016 No. 359/5, it follows that the procedure for state registration of corporate funds is identical to the procedure for registration of joint-stock companies.
Article 17 of Law No. 755-IV establishes a list of documents submitted by the applicant for state registration of a legal entity.
According to Clause 2, Part 1, Art. 17 of Law No. 755-IV, when submitting documents for registration, the applicant can choose a simplified taxation system, for which he should submit an application for the application of a simplified taxation system and/or a registration application for voluntary registration as a value added tax payer (or an application for inclusion in the Register non-profit institutions and organizations).
For the registration of the regulation, a fee is charged in the amount established by the resolution of the Cabinet of Ministers of Ukraine "Some issues of the provision of paid administrative services by the National Securities and Stock Market Commission" dated 10/26/2011 No. 1097.
According to Art. 26 of Law No. 755-IV, documents submitted for state registration and other registration actions for legal entities are considered within 24 hours after receipt.
Based on the results of the examination, the state registrar makes a decision on registration, stops the examination of documents or refuses to carry out state registration.
Article 27 of Law No. 755-IV establishes an exhaustive list of grounds for which the state registrar stops consideration of submitted documents. Termination is carried out within 24 hours from the date of receipt of documents. Consideration of documents is suspended for a period of up to 15 days from the date of their suspension. The grounds for refusal to carry out registration are provided by regulations 28 of Law No. 755-IV.
In accordance with the Resolution of the Cabinet of Ministers of Ukraine "On the Creation of the Unified State Register of Enterprises and Organizations of Ukraine" dated 22.01.1996 No. 118, in the absence of grounds for stopping the review of documents and refusing state registration, the state registrar carries out registration actions by making an entry in the Unified State Register, and after of the specified actions - forms statements and publishes them on the portal of electronic services. On the day of the registration action, the registrar transmits information about state registration to the information systems of the State Fiscal Service, the Pension Fund, and statistical authorities.
Decisions, actions or inaction of the state registrar, the subject of state registration may be appealed to the Ministry of Justice of Ukraine and its territorial bodies within 60 calendar days from the day of the contested decision, or from the day when the person learned or could have learned about the violation of his rights by appropriate action or inaction (Part 3 of Article 34 of Law No. 755-IV).
In accordance with Clause 1 of Section II of the Regulation on the Registration of Regulations of Joint Investment Institutions and Maintenance of the Unified State Register of Joint Investment Institutions, approved by the decision of the National Securities and Stock Market Commission No. 1047 dated 18.06.2013, within 6 months from the date of state registration of the corporate fund as of a legal entity, the corporate fund is obliged to register the regulations.
Part 6 of Art. 9 of Law No. 5080-VI, the deadline for registration of the report on the results of the private placement of shares among the founders of the corporate fund is 30 working days from the date of receipt of the relevant documents by the Commission.
The commission checks the package of documents for compliance with the requirements established by paragraph 2-3 Regulation No. 1047.
According to the provisions of Clause 4 of Section II of Regulation No. 1047, the report on the results of the private placement of shares among the founders of the corporate fund and the regulations of the corporate fund are certified by the stamp (inscription) "REGISTERED" with the date of their registration, the signature of an authorized person of the Commission and the seal of the Commission.
Simultaneously with the registration of the report on the results of the private placement of shares among the founders of the corporate fund, the regulations of the corporate fund and the entry of information about the corporate fund into the Register, the temporary certificate of registration of the issue of shares is replaced by the certificate of registration of the issue of shares of the corporate fund in accordance with Appendix 4 to the Regulations, as well as a Certificate is issued in accordance with Appendix 5 to the Regulations.
The commission, after reviewing the package of documents, refuses to approve the report and regulations, as well as to issue a certificate, in case of non-compliance with the requirements of paragraph 2-3 of Chapter II of Regulation No. 1047.
The date of registration of the regulations of a corporate fund is the date of entering information about such a fund into the Unified State Register of Joint Investment Institutions.
In accordance with Part 5 of Art. 9 of Law No. 5080-VI, violation of the procedure for creating a corporate fund is grounds for the Commission's refusal to issue a certificate of registration of the issue of shares of a corporate fund, registration of regulations and a report on the results of private placement of shares among the founders of a corporate fund.
Legal service "Consultant" will provide professional legal services for business, business services. Lawyers and lawyers will provide qualified legal support to the business, as well as provide assistance in the preparation of the contract or the preparation of a claim to a debtor for making additional contributions to the authorized capital by the participants of the LLC, contract preparation, counterparty verification, etc.
