May 16, 2022
Amendments to the founding (constituent) documents of the LLP
- In what cases is it necessary to amend the constituent documents.
- The procedure for amending the constituent documents.
The development of entrepreneurial activity is subject to changes in the current economic conditions that are difficult for business, which have developed at the present time, against the backdrop of recent events taking place in the world. Despite all the changes in the economic life of the country, entrepreneurs must operate within the strict framework established by laws and by-laws established on the territory of the Republic of Kazakhstan. Accordingly, all changes that require the passage of registration procedures in state bodies must be made to the constituent documents of a limited liability partnership (hereinafter referred to as LLP) correctly.
1. In what cases is it necessary to amend the constituent documents of an LLP
A legal entity may be faced with the need to make changes to its constituent documents, for example, changing the composition of participants; denominations; (increase, decrease) of the authorized capital; a list of activities reflected in the charter; locations, etc.
When making changes for the following reasons, state re-registration is required:
— changing the membership of the LLP;
— change of the LLP name;
— reduction of authorized capital.
The procedure for amendments and additions is of a notification nature, when:
1) change of location of a legal entity;
2) change of the head (appointment of the head, appointment of the acting head, appointment of the manager of the property and activities of the legal entity, dismissal of the head);
3) introduction of amendments and additions to the constituent documents, with the exception of the requirements provided for by the Law “On State Article 14-1 Registration of Legal Entities and Record Registration of Branches and Representative Offices” (hereinafter referred to as the Law);
4) transfer of a share of the authorized capital to trust management;
5) increase in the authorized capital of economic partnerships;
6) change in the main type of economic activity;
7) changing the composition of the founders (participants, members) of non-profit organizations, with the exception of political parties.
Changes and additions to the registration data of a legal entity, branch (representative office) specified in subparagraphs 2), 6) and 7) are made automatically on the basis of an electronic notification.
Changes and additions to the registration data of a legal entity, branch (representative office) specified in subparagraphs 1), 3), 4) and 5) are made on the basis of an electronic notification with the documents provided for in this article attached.
When the location of the LLP changes, in addition to the notification, a document confirming the location of the LLP, for example, a lease agreement, is attached.
If the owner of the premises is an individual, a notarized consent of the individual to provide the premises for the location of the legal entity is submitted.
When transferring a share of the authorized capital to trust management, a notarized trust management agreement is additionally submitted.
The LLP shall notify the registering body of the introduction of amendments and additions to the constituent documents within one month from the date of the decision to introduce amendments and additions to the constituent documents.
Changes and additions to the registration and other information of the LLP are made within three working days from the date of submission of the electronic notification.
Untimely notification of the registering authority about a change in the location of the LLP entails administrative liability in accordance with the Code of the Republic of Kazakhstan on Administrative Offenses.
2. The procedure for amending the constituent documents of the LLP
Changes and additions to the constituent documents can be issued:
– in the form of an annex to the former constituent documents;
– as constituent documents in the new edition.
The choice of option remains with the founders.
If the constituent documents of a legal entity are subject to notarization, then the changes must also be notarized.
As for the memorandum of association, in accordance with paragraph 1 of Article 402 of the Civil Code of the Republic of Kazakhstan, an agreement to amend the agreement is concluded in the same form as the agreement itself. Usually, the participants draw up an agreement to amend the memorandum of association or conclude a new version of the memorandum of association, terminating the previous one.
An exception is the situation of admission of a new participant in an LLP, which, in accordance with paragraph 1 of Article 22 of the Law of the Republic of Kazakhstan “On Limited and Additional Liability Partnerships”, is drawn up by an agreement on accession to the memorandum of association, which is signed by the authorized head of the body of the partnership and the joined participant.
Usually, the decision to amend the constituent documents is assigned by law to the exclusive competence of the supreme management body of a legal entity, in accordance with paragraph 1 of Article 43 of the Law “On Limited and Additional Liability Partnerships”.
The following shall be submitted to the registration authority:
1) an application in the form established by the Ministry of Justice of the Republic of Kazakhstan, if the portal contains an electronic application. The electronic application is signed by the EDS of the service recipient. If the authorized person of the service recipient is not his head, then the application is agreed with the head. For a legal entity, with the exception of economic partnerships, joint-stock companies and electronic production cooperatives, the application must be agreed on the PEP with its participants.
2) a document confirming the payment to the budget of the registration fee for the state re-registration of a legal entity,
3) a decision or an extract from the decision of the authorized body of the legal entity on state (record) re-registration, providing for the introduction of amendments and additions to the constituent documents of the legal entity, the regulation on the branch (representative office);
4) two copies of the constituent documents with the amendments and additions made or the text of the amendments and additions made to the constituent documents of the legal entity;
5) originals of the former constituent documents of the legal entity;
6) in case of a decrease in the size of the authorized capital and notification in print media, an electronic copy of the clipping about the publication;
7) in the case of ownership of a real estate object: an electronic confirmation from the State Database “Real Estate Register” (hereinafter referred to as the SDB RN) about the ownership of the primary or secondary real estate registered on the business identification number of the service recipient, located at the address specified by the service recipient, signed by the EDS of the SDB RN;
8) in the case of renting premises from a legal entity: an electronic copy of the lease agreement. In the case of renting premises from an individual: an electronic copy of the notarized consent of the individual to provide the premises as the location of the legal entity; in case of sublease of the premises: electronic copies of the lease and sublease;
9) when included in the list of participants of a non-resident of the Republic of Kazakhstan, an electronic copy of a legalized extract from the trade register or other legalized document certifying that the founder – a foreign legal entity is a legal entity under the laws of a foreign state, with a notarized translation in Kazakh and Russian;
10) when a foreign person is included in the list of participants, an electronic copy of the passport or other document proving the identity of the founder – a foreigner, with a notarized translation in Kazakh and Russian, if the head of the new participant / founder is a foreign person;
11) when changing the composition of participants by a joint-stock company or business partnership, in which the register of participants is maintained by the central depository, an electronic copy of the register of participants, certified by the seal of the registrar.
12) when changing the composition of participants, an agreement on the alienation (assignment) of the right of the withdrawing participant of the economic partnership to a share in the property (authorized capital) of the partnership or its part is submitted in accordance with the laws of the Republic of Kazakhstan and constituent documents. The contract of alienation (assignment) of the right of the departing participant of a business partnership to a share in the property (authorized capital) of the partnership or a part thereof, to which an individual is a party, is subject to notarization.
The registration fee for re-registration is 6.5 MCI (for 2022, 1 MCI = 3063 tenge).
