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1. the conclusion of the constitutive act; 2. the incorporation of the company in the Register of Trade; 3. the publicity of the companys setting up.
The company contract has the following features: 1. it is a multilateral contract, meaning that it is concluded by two or more persons and each party undertakes certain obligations;
2. it is contract made by onerous title, because each associate wants to obtain a patrimonial benefit, namely the profits obtained through the performance of the common activity; 3. it is a commutative contract because the associates know from the very moment of concluding the contract which are their mutual obligations;
4. it is a formal contract, because it must be concluded in one of the forms required by the law.
general partnership or a limited partnership company contract company by shares, limited liability company company contract and articles of association limited liability company with sole associate articles of association
As an exception, the constitutive act of the company must be concluded in authentic form (it must be authenticated by a public notary) in the following cases:
The term founders is a common element for all the juridical forms of commercial companies. In order to become a founder, the person must fulfill two conditions, as follows: - he must have full concrete capacity; - he must not have been convicted of any criminal offence related to commercial activity such as forgery, use of forgery, breach of trust an so on.
The content
Regardless of the juridical form of a commercial company, its constitutive act must contain the following common elements:
- the identification elements of the associates;
- the firm of the company, its juridical form, the headquarters and the emblem of the company, if any;
- the companys object of activity, specifying the main field of activity; - subscribed and paid-up registered capital; - the bodies of decision, management and control of the company; - the manner in which the associates share the profit and the loss of the company;
- the time limit of the company; - the branches, agencies or other divisions without legal personality; - the ways for the dissolution and the liquidation of the company.
Beside these general elements, the constitutive act of a limited liability company must provide the number and the nominal value of the social parts as well as the number of social parts acquired by each associate on the basis of his contribution. The constitutive act of a limited partnership or a limited partnership by shares must provide in a distinctive manner the two categories of partners: active partners and sleeping partners.
The constitutive act of a company by shares or a limited partnership by shares must also mention:
- the number and the nominal value of shares; - the type of shares, meaning bearer shares or registered shares;
Beside these general elements, the constitutive act of a limited liability company must provide the number and the nominal value of the social parts as well as the number of social parts acquired by each associate on the basis of his contribution. The constitutive act of a limited partnership or a limited partnership by shares must provide in a distinctive manner the two categories of partners: active partners and sleeping partners.
The constitutive act of a company by shares or a limited partnership by shares must also mention:
- the number and the nominal value of shares; - the type of shares, meaning bearer shares or registered shares;
the prospectus must contain all the elements that are compulsory for the constitutive act of the company It must also provide the date when the subscription is closed. The prospectus has to be concluded in authentic form and be signed by all founders It must be registered within the Office of the Register of Trade prospectus which does not fulfill the above-mentioned conditions is sanctioned with the absolute nullity
of subscribed shares, while the rest may be paid within 12 months form the
date of companys incorporation
The founders are liable towards the company and third parties for: - the full subscription of the registered capital and its payment; - the existence of goods that are contributed in kind; - the accuracy of the publicity made in order to set up the company.
After the incorporation, the applicant is obliged to publish the judgment of authorization provided by Register of Trade in the Official Monitor of Romania
This publicity has an opposability function, meaning that the law considers that the existence of the company is known by third parties form the date of the publication