AIFC COMPANIES REGULATIONS AIFC REGULATIONS No. 2 of 2017 (with amendments as of 25 November 2021, which commence on 1 January 2022) Approval date: 20 December 2017 Commencement date: 1 January 2018 Nur-Sultan, Kazakhstan
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5. Application of these Regulations
7. Prohibition against conduct of business without incorporation or registration in the AIFC
PART 2: THE APPOINTMENT AND ROLE OF REGISTRAR
10. Registrar’s Objectives and Functions
PART 3: INCORPORATION AND REGISTRATION OF COMPANIES
PART 4: COMPANY FORMATION AND INCORPORATION
15. Decision on incorporation application etc
16. Effects of incorporation etc
17. Notification of change in Registered Details of Company
18. Effect of Articles of Association
19. Amendment of Articles of Association
20. Copies of Articles of Association for Shareholders
21. Prohibition against use of misleading, deceptive or conflicting Company names
23. Power to require change of name
24. Registered office and conduct of business
25. Particulars in Company communications
26-1. Annual confirmation of accuracy of information in the register
28. Filing of Special Resolutions and certain other Resolutions and agreements
PART 5: CORPORATE CAPACITY AND TRANSACTIONS
31. Pre-incorporation contracts
32. Participation in Holding Company
33. Variation or abrogation of class rights
34. Shareholders’ right to object to variation or abrogation
PART 7: PRIVATE COMPANIES AND PUBLIC COMPANIES
CHAPTER 1-FEATURES OF A COMPANY
36. Requirements for Public and Private Companies
CHAPTER 2-ALTERATION OF COMPANY TYPE
39. Re-registration of Public Company as Private Company
40. Re-registration of Private Company as Public Company
CHAPTER 3-SHAREHOLDERS AND SHARES GENERALLY
44. Alteration of share capital
45. Non-cash consideration for Shares in Private Company
46. Non-cash consideration for Shares in Public Company
48. Shareholders’ pre-emption rights
49. Exceptions to pre-emption right
CHAPTER 4-PROHIBITION OF PUBLIC OFFERS BY PRIVATE COMPANIES
50. Prohibition of public offers by Private Companies
51. Enforcement of section 50(1) prohibition
CHAPTER 5-REGISTERS OF SHAREHOLDERS AND DEBT SECURITY HOLDERS AND SHARE CERTIFICATES
53. Register of Debt Security Holders
54. Transfer and registration of Shares and Debt Securities
55. Place where registers must be kept
57. Rectification of registers
59. Right of Public Company to request information about interests in its Shares
CHAPTER 6-REDEMPTION AND PURCHASE OF SHARES
60. Power to issue redeemable Shares
61. Power of Company to purchase its own Shares
63. Prohibition on financial assistance to acquire Shares
CHAPTER 7-REDUCTION OF CAPITAL
64. Reduction of Share Capital
65. Reduction of Share Capital by Private Company supported by solvency statement
66. Reduction of Share Capital by Special Resolution confirmed by Court order
67. Court order confirming reduction of Share Capital
68. Registration of order and statement of capital
69. Public Company reducing its Share Capital below its authorised minimum
70. Liability to Creditors in respect of reduction of Share Capital by Court order
71. Treatment of reserves arising from reduction of capital
72. Restrictions on Distributions
73. Consequences of unlawful Distribution
CHAPTER 9-DIRECTORS AND SECRETARIES
75. Election, term and removal of directors
78. Duty to promote success of Company
79. Duty to exercise independent judgement
80. Duty to exercise reasonable care, skill and diligence
81. Duty to avoid conflicts of interest
82. Duty not to accept benefits from third parties
83. Duty to declare interest in proposed transaction or arrangement
84. Breaches of Directors’ duties
85. Duty of Directors to declare interest in existing transaction or arrangement
86. Ratification of interest in existing transaction or arrangement
87. Prohibition of financial assistance to Directors etc
88. Validity of acts of Director
90. Register of Directors and Secretaries
91. Assumptions in relation to Directors and Secretary
96. Registrar’s power to call meeting in default
98. General provisions about meetings and votes
99. Representation of Body Corporate at meetings
100. Resolutions in writing of Private Companies
101. Recording of decisions by sole Shareholder
104. Minutes and examination of minute books
CHAPTER 11-PROTECTION OF MINORITIES IN TAKEOVERS
106. Right of The Offeror to buy out minority Shareholders
107. Effect of notice under section 106
108. Right of minority Shareholder to be bought out by The Offeror
109. Effect of requirement under section 108
113. Application and interpretation of Part 8
CHAPTER 2-MERGERS REQUIREMENTS
115. Resolutions and certificates for merger
117. Objection to merger by Shareholders
118. Notice to Creditors of merger
119. Company to apply to Court if solvency statement not made
120. Objection by Creditor if solvency statements made
121. Consent of Registrar required for mergers involving bodies other than Companies
CHAPTER 4-COMPLETION OF MERGER AND GROUNDS FOR OPINIONS
122. Effect of completion of merger
123. Grounds for opinion relating to merger
PART 9: COMPROMISES AND ARRANGEMENTS
124. Power of Company to compromise with Creditors and Shareholders
125. Information relating to compromise to be circulated
126. Provisions for facilitating Company reconstruction or amalgamation
PART 10: ACCOUNTS, REPORTS AND AUDIT
CHAPTER 1-ACCOUNTS, REPORTS AND AUDIT: GENERAL
CHAPTER 2-ACCOUNTS AND REPORTS
129. Accounting Records of Companies
132. Provision of copy of accounts to Shareholders
133. Directors’ report for Public Companies
134. Qualification and registration of Auditors
136. Appointment and removal of Auditors
137. Auditor’s report to Company
140. Cooperation with Auditors
141. Obligation of disclosure by Auditor
PART 11: OTHER TYPES OF COMPANY
143. Incorporation of prescribed types of Company
145. Refusal to register Foreign Company
146. Effect of registration as Recognised Company
147. Requirements of Recognised Company
148. Notification of change in Registered Details of Recognised Company
149. Accounting Records of Recognised Companies
PART 13: TRANSFER OF INCORPORATION
151. Transfer of incorporation to AIFC
152. Certificate of continuation
154. Copy of certificate of continuation
155. Rights and Liabilities of continued Foreign Company
156. Transfer of incorporation from AIFC to another jurisdiction
157. Refusal to grant authorisation to transfer incorporation
CHAPTER 1-POWERS OF INVESTIGATION
158. Application and interpretation of Part 14
159. Appointment of Inspectors
160. Powers of Inspectors to obtain information and Documents etc
161. Use and effect of information and Documents obtained for investigations
162. Obstructing or hindering Inspectors
164. Application to Court by Registrar of Companies
165. Direction to comply with Legislation Administered by the Registrar
166. General power to obtain information
167. Powers to strike off names of Companies from Register
CHAPTER 3-GENERAL CONTRAVENTIONS
169. When does a Person Contravene these Regulations
170. Involvement in Contraventions of these Regulations
173. Administrative imposition of fines
CHAPTER 5-APPLICATIONS TO COURT
175. Orders for unfair prejudice to Shareholders
178. Power of Court to grant relief in certain cases
PART 14-1: ULTIMATE BENEFICIAL OWNERS
CHAPTER 1-BENEFICIAL OWNERSHIP OF RELEVANT PERSONS
179-1 Meaning of Ultimate Beneficial Owner
179-2 Ultimate Beneficial Ownership information
179-3 Notice in respect of Ultimate Beneficial Ownership
CHAPTER 2: BENEFICIAL OWNERSHIP REGISTER
179-4 Requirements relating to Beneficial Ownership Register
179-5 Application to the Court to rectify the Beneficial Ownership Register
179-6 Duty of Nominee Directors
179-7 Register of Nominee Directors
179-9 Ownership through an exempt entity
CHAPTER 5: PROVISION OF INFORMATION TO REGISTRAR
179-11 Notification to the Registrar
179-12 Notices issued by the Registrar of Companies
CHAPTER 6: OBLIGATIONS OF REGISTRAR OF COMPANIES
179-13 Obligations of the Registrar of Companies
179-14 Removal of Ultimate Beneficial Owner
179-16 Meaning of Protected Report, Protected Reporter, Worker, and Employer
CHAPTER 2-RIGHTS AND REMEDIES FOR WHISTLEBLOWERS
179-17 Protected Reports and Protected Reporters
179-18 Right not to suffer detriment
179-19 Remedies where detriment is suffered
CHAPTER 3-WHISTLEBLOWING POLICIES
179-21 Content of whistleblowing policy
179-22 Implementation of whistleblowing policy
CHAPTER 1-BOARD OF DIRECTORS OF THE AFSA
180. Functions of Board of Directors of the AFSA in relation to the Registrar etc
182. Publication of proposed Rules
188. Annual budget of Registrar
194. Independent review of Registrar
195. Waivers and modifications of certain provisions
196. Obligation of disclosure to Registrar
200. Giving false or misleading information to Registrar etc
201. Compliance with orders etc. of Registrar
202. Notification of Registrar’s decisions and reasons
1. Meaning of Legislation Administered by the Registrar
2. Meaning of Subsidiary, Wholly-Owned Subsidiary, Holding Company, and Ultimate Holding Company
4. Definitions for these Regulations
PART 1: GENERAL
CHAPTER 1-PRELIMINARY
1. Name
These Regulations are the AIFC Companies Regulations 2017.
2. Date of enactment
These Regulations are enacted on the day they are adopted by the Governor.
3. Commencement
These Regulations commence on 1 January 2018.
4. Legislative authority
These Regulations are adopted by the Governor under paragraph 1 of article 3 and article 4 of the Constitutional Statute and subparagraph 3-1) of paragraph 9 of the Management Council Resolution on AIFC Bodies.
5. Application of these Regulations
(1) These Regulations apply within the jurisdiction of the AIFC.
(2) Without limiting subsection (1), these Regulations apply to any Person who conducts business in or from the AIFC as an AIFC Participant.
(3) Any other Legislation Administered by the Registrar is additional to, and its operation is not affected by, these Regulations.
(4) The Rules on Registration and Recognition of the Astana International Financial Centre Participants 2017 as in force immediately before the commencement of these Regulations are repealed.
(5) Except where otherwise provided in these Regulations, anything done or omitted to be done under or for the Rules on Registration and Recognition 2017 are taken to have been done or omitted under or done under or for these Regulations.
6. Interpretation
Schedule 1 contains definitions and other interpretative provisions used in these Regulations.
CHAPTER 2 CERTIFICATES
7. Prohibition against conduct of business without incorporation or registration in the AIFC
(1) A Person must not conduct business in or from the AIFC as an AIFC Participant unless the Person is incorporated or registered as an AIFC Participant.
(2) Subsection (1) does not apply to a Person if the Person:
(a) is an exempt Person under the Rules.
(b) [intentionally omitted]
(3) Contravention of this section is punishable by a fine.
(4) Where a Person enters into a contract with a third party and that third party knows (or ought reasonably to know that entry into that contract is) in contravention of subsection (1), that contract may be terminated at the sole option of that third party unless a court or other tribunal determines otherwise.
8. Certificates
(1) The Registrar may issue a certificate subject to any conditions or restrictions.
(2) The AIFC Participant must not Contravene a condition or restriction to which the certificate is subject.
(3) The Registrar may suspend the activity of the AIFC Participant on the Registrar’s own initiative or on the application of the AIFC Participant.
(4) The Registrar may exercise a power under subsection (3) in relation to an activity of the AIFC Participant on the Registrar’s own initiative only if the Registrar:
(a) complies with the Decision-making Procedures; and
(b) either:
(і) is satisfied that the AIFC Participant, or an officer, employee or agent of the AIFC Participant, has Contravened, is Contravening or is likely to Contravene these Regulations; or
(ii) considers that the exercise of the power is necessary or desirable in the interests of the AIFC.
(5) [intentionally omitted]
(6) [intentionally omitted]
(7) Contravention of subsection (2) is punishable by a fine.
PART 2: THE APPOINTMENT AND ROLE OF REGISTRAR
9. Appointment of Registrar
(1) The office of the Registrar of Companies is established within the framework of the AFSA.
(2) The Chief Executive Officer of the AFSA must appoint an individual as Registrar of Companies and may dismiss the person from office for proper cause.
(3) In Exercising the Registrar’s Functions, the Registrar must act in an independent way, even though the Registrar is an agent of the AFSA.
10. Registrar’s Objectives and Functions
(1) In Exercising the Registrar’s Functions, the Registrar must pursue the following objectives (the Registrar’s Objectives):
(a) to promote good practices and observance of the requirements of these Regulations, the Rules and any other Legislation Administered by the Registrar;
(b) to administer these Regulations, the Rules and any other Legislation Administered by the Registrar in an effective and transparent way;
(c) to prevent, detect and restrain conduct that is, or may be, in a Contravention of these Regulations, the Rules and any other Legislation Administered by the Registrar;
(d) to maintain a reliable and up-to-date Register of Companies, and provide public access to the register, in accordance with these Regulations, the Rules and any other Legislation Administered by the Registrar.
(2) The Registrar has the Functions given to the Registrar by or under these Regulations, the Rules or any other AIFC Regulations or AIFC Rules.
(3) The Registrar must Exercise the Registrar’s Functions only in pursuit of the Registrar’s Objectives.
(4) Without limiting subsection (2), the Registrar’s Functions include the following:
(a) preparing draft rules, standards and codes of practice and submitting them to the Board of Directors of the AFSA for its consideration;
(b) preparing and adopting non-binding guidance for AIFC Participants, and advising the Board of Directors of the AFSA of any guidance adopted by the Registrar;
(c) issuing or prescribing forms to be used for these Regulations, the Rules or any other Legislation Administered by the Registrar;
(d) issuing or prescribing procedures and requirements relating to these Regulations, the Rules or any other Legislation Administered by the Registrar;
(e) specifying the method of filing, delivery or deposit (however described) of Documents under or for these Regulations, the Rules or any other Legislation Administered by the Registrar, whether by electronic or any other means;
(f) Exercising any Function delegated to the Registrar under these Regulations or any other Legislation Administered by the Registrar.
(5) The Registrar may permit or require the use of an electronic or computer-based system for the filing, delivery or deposit of Documents or information required under or for these Regulations, the Rules or any other Legislation Administered by the Registrar and may specify the circumstances in which Persons are taken to have signed or certified Documents on an electronic or computer-based system for any purpose under these Regulations, the Rules or any other Legislation Administered by the Registrar.
(6) The Registrar must, through the Exercise of the Registrar’s Functions, assist Kazakhstan to comply with its obligations under any international treaty or other agreement to which it is a party.
(7) The Registrar may do anything the Registrar considers necessary or desirable to be done for or in connection with, or reasonably incidental to, the Exercise of the Registrar’s Functions subject to any applicable Decision-making Procedures.
(8) The Registrar may delegate all or any of the Registrar’s Functions to another Person in accordance with the Rules.
PART 3: INCORPORATION AND REGISTRATION OF COMPANIES
11. Types of companies
(1) The types of companies that may be incorporated under these Regulations are:
(a) Private Companies, if they meet the requirements in section 36(1) (Requirements for Public and Private Companies); and
(b) Public Companies, if they meet the requirements in section 36(25) (Requirements for Public and Private Companies).
(2) A Foreign Company may be registered under these Regulations as a Recognised Company if it meets the requirements in Part 12 (Recognised Companies).
12. Legal personality
A Company incorporated under these Regulations has a separate legal personality from that of its Shareholders. The Liabilities of a Company, whether arising in contract, tort or otherwise, are the Company’s Liabilities and not the personal Liabilities of any Shareholder or Officer of the Company, except where otherwise provided under these Regulations.
PART 4: COMPANY FORMATION AND INCORPORATION
13. Formation of companies
(1) A company may be incorporated under these Regulations on the application of any 1 or more Persons in accordance with this Part.
(2) A company must not be incorporated for an unlawful purpose.
(3) An application for the incorporation of a company must be filed with the Registrar by the Incorporators or their duly authorised representative.
(4) The application must state the following:
(a) the proposed name of the Company;
(b) whether the proposed Company is to be a Private Company or a Public Company;
(c) the nature of the business to be conducted by the proposed Company;
(d) the amount of the initial share capital and shareholdings of the Incorporators;
(e) the nominal value of each Share;
(f) the address of the proposed Company’s registered office;
(g) the following information for each Incorporator:
(і) the full name, nationality and address of the Incorporator;
(ii) if the Incorporator is an individual and is to hold Shares in trust for another Person—the full name, nationality and address of the beneficial owner of the Shares;
(iii) if the Incorporator is a Body Corporate—the beneficial ownership information of the Body Corporate required by the Rules;
(h) the full name (including any previous names), nationality, address, business occupation (if any) and date of birth of the individuals who are to serve as the Directors and, if applicable, the Secretary;
(і) the other particulars (if any) required by the Registrar or the Rules; and
(j) the particulars required by Part 14-1 (Ultimate Beneficial Owners) of these Regulations.
(5) Unless the Standard Articles are adopted by a Company in their entirety, the proposed Articles of Association, signed by or on behalf of each Incorporator, must be filed with the application.
14. Articles of Association
(1) A Company’s Articles of Association must be in the English language and must be divided into paragraphs numbered consecutively.
(2) A Company’s Articles of Association must contain:
(a) a statement as to whether the Company is a Private Company or a Public Company; and
(b) the information mentioned in section 13(4)(a) to (c) (Formation of companies); and
(c) the other matters (if any) required by these Regulations or the Rules to be included in the Articles of Association of a Company.
(3) The Articles of Association may contain any other matters that the Shareholders wish to include in the Articles of Association. However, the Articles of Association must not contain a provision that is inconsistent with these Regulations or the Rules.
(4) A Company may adopt, as its Articles of Association, the whole or any part of the Standard Articles that is relevant to the Company.
(5) If Standard Articles are not adopted by a Company in their entirety, the Company must submit to the Registrar, before the Articles of Association are adopted by the Company, a statement by the Incorporators that the Articles of Association proposed to be adopted by the Company comply with the requirements of these Regulations, the Rules and all other applicable AIFC Regulations and AIFC Rules.
(6) If any change to these Regulations, the Rules or any other applicable AIFC Regulations or AIFC Rules results in an inconsistency between the provisions of a Company’s Articles of Association and the provisions of these Regulations, the Rules or any other applicable AIFC Regulations or AIFC Rules:
(a) the provisions of these Regulations and any other applicable AIFC Regulations and AIFC Rules prevail; and
(b) the Company is not required to amend its Articles of Association, unless these Regulations, the Rules or any other applicable AIFC Regulations expressly require it to do so.
15. Decision on incorporation application etc.
(1) The Registrar may refuse to incorporate a Company for any reason the Registrar considers to be a proper reason for refusing to incorporate the Company.
(2) If the Registrar incorporates a Company, the Registrar must register the Articles of Association filed with the application for incorporation, unless the Standard Articles are adopted by a Company in their entirety.
16. Effects of incorporation etc.
(1) On the incorporation of a Company, the Registrar must:
(a) issue a certificate of incorporation confirming that the Company is incorporated as either a Private Company or a Public Company; and
(b) assign a number to the Company, which is to be the Company’s identification number; and
(c) enter the name of the Company in the Register.
(2) On the date of incorporation mentioned in the certificate of incorporation:
(a) the Incorporators of the Company become the Shareholders of the Company; and
(b) the Company, having the name contained in the certificate of incorporation, becomes a body corporate, capable of Exercising all the Functions of an incorporated Company.
(3) A certificate of incorporation issued by the Registrar is conclusive evidence of the following matters:
(a) that the Company has been duly incorporated;
(b) whether the Company is a Public Company or a Private Company;
(c) that the requirements of these Regulations and the Rules have been complied with in respect of the incorporation of the Company.
(4) Without limiting subsection (1)(a), the Registrar may make alternative arrangements relating to the issue of certificates of incorporation to Companies in circumstances prescribed by the Rules.
17. Notification of change in Registered Details of Company
(1) If any of the Registered Details of a Company change, the Company must notify the Registrar in Writing of the change within 14 days after the day the change happens and must comply with all other requirements applying to the Company under the Rules in relation to the change.
(2) Contravention of this section is punishable by a fine.
(3) Changes in the Registered Details notice must be accompanied by the prescribed fee set out in the Rules from time to time.
18. Effect of Articles of Association
(1) Subject to these Regulations and the Rules, the Articles of Association bind the Company and its Shareholders to the same extent as if they had been signed by the Company and by each Shareholder, and contained covenants by the Company and each Shareholder to comply with all their provisions.
(2) An amount payable by a Shareholder to the Company under the Articles of Association is a debt due from the Shareholder to the Company.
19. Amendment of Articles of Association
(1) Subject to these Regulations and the Rules, a Company may amend its Articles of Association by Special Resolution or by any other means provided by the Company’s Articles of Association.
(2) The Company must, within 14 days after the amendments to the Articles of Association are made, submit to the Registrar:
(a) a copy of the amended Articles of Association;
(b) a certificate given by at least 1 of the Directors of the Company stating that the proposed amendment complies with the requirements of these Regulations and the Rules and all other applicable AIFC Regulations and AIFC Rules; and
(c) a copy of a Special Resolution, agreement, enactment, order or any other document by which the Articles of Association are amended.
(2-1) The Registrar may rely on the certificate, provided in accordance with subsection 2 (b), as sufficient evidence of the matters stated in it.
(3) If the Articles of Association of a Company are amended, the rights and obligations of the Shareholders and the Company that arose under the Articles of Association before the amendment is made are not be affected unless the amendment expressly provides for it to have such an effect.
(4) Despite anything in the Articles of Association of a Company, a Shareholder of the Company is not bound by an amendment made to the articles after the day the Shareholder became a Shareholder so far as the amendment:
(d) requires the Shareholder to take or subscribe for more Shares than those held by the Shareholder at the end of the day immediately before the amendment is made; or
(e) in any way increases the Shareholder’s Liability at the end of that day to contribute to the Company’s share capital or otherwise to pay an amount to the Company.
(5) Subsection (4) does not apply in relation to the Shareholder if the Shareholder, either before or after the amendment is made, agreed to be bound by it.
20. Copies of Articles of Association for Shareholders
(1) A Company must, at a Shareholder’s request, give the Shareholder a copy of the Company’s Articles of Association if the Shareholder pays the reasonable fee (if any) that the Company requires.
(2) Contravention of this section is punishable by a fine.
21. Prohibition against use of misleading, deceptive or conflicting Company names
(1) A Company must not use a name that, because of any fact, matter or circumstance, is, or is reasonably likely to become, misleading, deceptive or conflicting with another name (including an existing name of another Company or Recognised Company).
(2) If, because of the happening or likely happening of any fact, matter or circumstance, a Company’s name is, has become, or is reasonably likely to become, misleading, deceptive or conflicting with another name (including an existing name of another Company or Recognised Company), the Company must change its name within 30 days or, if the Registrar agrees to a longer period, that longer period.
(3) Contravention of this section is punishable by a fine.
22. Change of Company name
(1) A Company must not change its name otherwise than by Special Resolution or by other means provided for by the Company’s Articles of Association and must not change its name to a name that is not acceptable to the Registrar.
(2) If a Company changes its name in accordance with subsection (1), the Company must file the accompanying notice or a statement that the change of name has been made by the means provided for by the Company’s Articles of Association with the Registrar within 14 days after the day the change is made.
(3) Contravention of subsection (1) or (2) is punishable by a fine.
(4) If a Company changes its name and complies with subsection (2) in relation to the change, the Registrar must, as soon as practicable: