Amending the Constituent Documents of Legal Entity

Amendmending the constituent documents is a common procedure, which is often needed within business activity of legal entity, especially when you want to change a name, types of activity, composition of participants, distribution of shares in the authorized capital and any other information provided in a charter.

One of the most popular forms of business in Ukraine is a limited liability company (LLC). That is why we propose to consider in more details the procedure of making amendments to the constituent documents on the example of LLC.

In general, a constituent document of a legal entity is a charter. Conditionally, the procedure for amending the charter of LLC may be divided into two stages:

  1. Deciding on amendments to the charter;
  2. State registration of changes to the charter.

Amending a charter relates to the exclusive competence of the supreme governing body of the company – the General Meeting of Participants. Therefore, the issue of amendments to the charter is always resolved at the General Meeting.

At the same time, when convening and holding a General Meeting, you should follow the procedure prescribed by law and the charter.

The General Meeting of Participants is empowered to make decisions if it is attended by participants (or their representatives) who, in the aggregate, hold a majority of votes proportionally equal to the size of each participant’s contribution to the autorized capital.

It should be noted that the LLC’s charter may set the other minimum number of votes (not less than 50%) that is required to make a decision. At the same time, decisions on issues of redistribution of shares between participants, creation of bodies of the company, acquisition by the company of the share of the participant, approval of monetary assessment of non-monetary contribution to the authorized capital are always made unanimously by all participants of the LLC.

Thus, the decision on amending the charter is made by a majority vote of the participants, unless otherwise is provided by the charter, and also if the basis for the amendment is not a decision that requires a unanimous vote (for example, the redistribution of shares in the authorized capital between the members of the LLC).

The absence of some members of the LLC at the General Meeting will not be an obstacle to resolving the issue of amendmending the charter, if the number of votes of the present participants is sufficient to make a decision.

The new version of the charter is signed by the participants who attended the meeting and voted for the decision. The authenticity of signatures should be notarized.

Changes to the charter of the LLC are subject to mandatory state registration for entrying into force.

 

To perform a registration action the following documents must be submitted to the state registrar:

  • application for registration of changes to information about a legal entity (Form 3, approved by the Ministry of Justice Order № 3238/5 dated 06.01.2016). The application can be filled in both machine-typed and handwritten letters. Each page of the application is signed by the head of the company or a person authorized to take actions for state registration, by a power of attorney.
  • original or notarized copy of the minutes of the General Meeting of Participants (decision of the sole participant), which recorded the decision to amend the constituent documents of the LLC.
  • the charter of the LLC in the new edition;
  • a receipt for payment of the administrative fee for carrying out the registration action (0.3 of the subsistence level for able-bodied persons; if an extract from the National State Registry of Ukrainian Enterprises and Organizationsis required, this amount is increased by a product of 0.1 of the subsistence minimum and the number of persons who will receive an extract);
  • power of attorney if the documents are submitted by an authorized person.

This list of documents can be submitted to the administrative center or notary. Notary services are paid separately.

Changes to the constituent documents of the LLC are registered within 24 hours from the moment of submitting the documents.

You may like
A new law on virtual assets: the picture is formed, but without details. On September 8, 2021, the Verkhovna Rada has finally adopted the long-awaited law "On Virtual Assets", which clarified many ambiguous points. This is especially true for the status of cryptocurrency and the rules of its circulation in the country. Let`s take a closer look at novelties. An ambiguous term Let's start with what the legislator actually means by "virtual assets". There are the following features:  they are an intangible good (cannot be represented on tangible media)  fall under the list of objects of civil rights (that is, they can be owned and be disposed of)  represent an electronic form of a set of data (essentially, they are blocks of information put in order);  the existence and circulation of assets are due to software tools (specific electronic environment). From these features we can draw the following conclusion: virtual assets are not limited to cryptocurrency. Digital currency is part of the concept, but other instruments, such as tokens, NFTs, or even in-game items, fall under the definition. Actually, the actual existence of most digital products, having a certain value, is due to the software environment (ecosystem), either it is blockchain technology, a trading platform, or an online game server. It should be noted that the attempt to define virtual assets was already made in the adopted Law of Ukraine in counteracting money laundering. In this act, they understand it as digital means of payment, which goes against the new definition. As a result, there are now two different explanations for virtual assets, which causes significant confusion not only in regulation but also in interpretation. It is definitely necessary to expect clarifications from competent state bodies. Let's return to the new law. Its application covers legal relations in which the "Ukrainian element" is present:  provider or recipient of services represented in Ukraine;  an agreement according to which the turnover of virtual assets is carried out in accordance with Ukrainian legislation;  the acquirer of assets (or both counterparties) is a resident(s) of Ukraine. The law also introduces an interesting division of all virtual assets into two groups: secured and unsecured. Here again, there is a problem of interpretation. The first category includes products exchanged for (state) currency, the second category includes instruments that can be exchanged only for other digital assets. There is an alternative opinion: that the turnover of secured assets is supported by real goods (money or other property), while unsecured ones are not supported by anything. The latter interpretation is the most credible, as the new law stipulates that virtual assets are NOT means of payment. Moreover, they cannot be exchanged for real goods, be they property, services or money. This significantly narrows the potential for the use of virtual assets not only for commercial but also for civilian purposes. About obligatory licensing The new law states that in some cases, the use of virtual assets will require licensing. The 4 types of activity are mentioned:  storage and management of virtual assets (or its` keys)  servicing of exchange operations with virtual assets (both for other analogues and for real goods);  translation of digital assets;  any intermediary services. A list is quite impressive, but there are some important exclusions:  if your service works with cryptocurrency wallet (it means users can dispose of accumulations into cryptocurrency independently);  If your service works on smart contracts or decentralized protocol, based on which internal transfers are performed. As to intermediary services, everything is more compicated. Actually, any mediation is based on the public share offering. That is why it is subject to licensing. How to get a license? A company that wishes on legal grounds to engage in virtual assets must satisfy legislative requirements. The key role is played by the minimum amount of the statutory capital, which equals 1,19 million hryvnyas (for non-residents it is 5,95 million hryvnyas) in case of storage and administration. For other types of activity (trading, translation and mediation services) the minimum size of the statutory capital amounts to 595 thousand hryvnyas (for non-residents is 2,98 million hryvnyas). The order of the registration of license:  to compose an application and prepare documents.  to pay state fee (68-136 thousand hryvnyas for residents and 340-680 thousand hryvnyas is for non-residents).  to pend review of the request (30 days).  to get a license. The duration of the license is 1 year. No norms about the continuation of legal force of permission are set (we are expecting amendments or explanations from the Ministry of Digital transformation of Ukraine). Notably that non-residents must pay a far greater sum, than domestic companies. The Ukrainian legislator obviously encourages an internal market, getting rid of a strong foreign presence (that, in fact, coincide with modern politics of the state on the whole). Together with an application, the following documents must be prepared: The access code to the copy of the Statute of the company (or the foundation agreement) kept in an electronic file in the database of the Unified State Register of Enterprises and Organizations (USREO);  Funding sources of the statutory capital (where the money are taken from);  confirmation of the actual injection of money;  information about beneficiaries (special attention must be paid to business reputation);  the information about the director and founders;  the check about payment of state fee;  the internal regulations, in accordance with which ones, the privacy policy rules are regulated. In the terms of volume of necessary documentation of licensing is very alike with complete registration of legal entity. It is understood that the state wants the severe adjusting of activity of organizations that will engage in virtual assets. Is it already possible to get a license? The adoption of the law by the parliament is a significant step forward in adjusting and legal market of virtual assets creation in Ukraine. However, the new rules haven`t come into effect yet - their term of introduction depends on making amendments in the Internal Revenue Code. It is yet unknown, when a legislator will decide to enter the renewed system of taxation for such assets. Being "IT-hub" and territory, where cryptocurrency enjoys large popularity, the question of taxes must be decided maximally safely. Despite the presence of obvious gaps in interpretation, a new law on virtual assets gives the official narrative of what takes place and that, how the legal relationships related to cryptocurrency will be regulated. It is to be hoped that in the nearest time the Ministry of digital information will give out the detailed explanations concerning debatable norms.
20/01/2022
We will
call you