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Title Сторинка документу

PROCEDURE for approval of acquisition of or increase in a major interest in a professional securities trader

General information:

№:
394
Approval date:
13.03.2012
Ministry of Justice:
635/20948
Registered:
26.04.2012
Subject:
Licensing
Category:
Procedure
Status:
In force
Issuer:
NSSMC
Draft regulatory act:
Link to external document:
Recent changes:
27.06.2017
Entry into force:
21.05.2012

Contents

https://www.nssmc.gov.ua/wp-content/uploads/2017/04/№394-Порядок-погодження-істотної-участі.doc

APPROVED BY:
Decision
of the National Securities
and Stock Market Commission
No. 394 dated 13 March 2012
(as amended by Decision
of the National Securities
and Stock Market Commission
No. 1101 dated 20 June 2013)

 

Registered with the Ministry
of Justice of Ukraine
on 26 April 2012
under No. 635/20948

 

PROCEDURE
for approval of acquisition of or increase in a major interest in a professional securities trader by a person so as to own or control, directly or indirectly, 10, 25, 50 and 75 percent in the authorized capital of the securities trader or the voting rights in its governing bodies provided by the acquired shares (interest)

{In the text of this Procedure, the words “law-enforcement agencies” have been replaced by the words “bodies of the National Police” in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

І. General Provisions

  1. This Procedure shall establish the procedure and conditions for obtaining an approval of the National Securities and Stock Market Commission (hereinafter referred to as the Commission) for acquisition of or increase in the major interest in a professional securities trader (other than a bank) by a person so as to own or control, directly or indirectly, 10, 25, 50 and 75 percent in the authorized capital of the securities trader or the voting rights in its governing bodies provider by the acquired shares (interest), as well as requirements for the business reputation and the financial standing of such person, the filing procedure, and requirements for disclosure of the ownership structure (for legal entities) and associated persons.
  2. For the purpose of this Procedure, the following terms shall have the following meanings assigned thereto:

“major shareholder” means a resident legal entity and individual or a non-resident legal entity and individual that have received an appropriate approval from the Commission and/or have obtained a major interest in a professional securities trader;

{Paragraph two of Clause 2 of Section I as amended by Decision of the National Securities and Stock Market Commission No. 1287 dated 30 September 2014}

“applicant” means a resident legal entity and individual, a non-resident legal entity and individual, a group of persons or an authorized representative of such persons that intend to acquire or to increase a major interest in a professional securities trader and submit an application with the relevant documents for obtaining a written approval from the Commission;

“major interest” means possession, direct and indirect, independent or jointly with other persons, of 10% or more in the authorized capital or the voting rights provided by the acquired shares (or interest) in a legal entity or the possibility of significant influence on the management or activities of the legal entity, regardless of the formal ownership;

“ultimate owner” means the ultimate beneficiary owner (controller) or an legal entity that has no ultimate beneficiary owner (controller);

{Clause 2 of Section I has been amended to include new paragraph 5 in accordance with Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

“control” means the ability to exercise a decisive influence over the management and/or activities of a legal entity through direct and/or indirect ownership of a share in the legal entity that corresponds to the equivalent of 50% or more in the authorized capital by one person independently or jointly with other persons, and/or the possibility of exercising such influence regardless of the formal ownership on the basis of an agreement or otherwise;

“indirect ownership of a share” means ownership of a share in a professional securities trader that occurs if a person, either independently or jointly with other persons: directly owners a share in the authorized (share) capital of the major shareholder (of a legal entity) in an amount that ensures ownership of 10% or more in the authorized capital of a professional securities trader through this person, and/or acquires the possibility of significant (decisive) influence on the management or activities of a professional securities trader;

{Paragraph of Clause 2 of Section I as amended by Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

“direct ownership of a share” means the possession, independently or jointly (by several persons), of 10% or more in the authorized capital of a professional securities trader under the right of ownership;

{Paragraph 8 of Clause 2 of Section I as amended by Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

“direct owner of the applicant” means a legal entity or an individual that owns an interest (or shares) in the applicant’s authorized capital;

{Clause 2 of Section I has been amended to include new paragraph 9 in accordance with Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

“public company” means a foreign legal entity established in the form of a public joint-stock company whose shares are listed on the foreign exchange market and that is a member of the World Federation of Exchanges;

{Clause 2 of Section I has been amended to include new paragraph in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

“joint ownership of shares” means possession of a major interest in a professional securities trader by a group of persons related through the control relationship and/or by associated persons.

{Paragraph of Clause 2 of Section I as amended by Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

Other terms used in this Procedure shall have the meanings defined by the Laws of Ukraine “On Financial Services and State Regulation of the Financial Services Market”, “On Securities and the Stock Market”, “On State Regulation of the Securities Market in Ukraine”, “On Prevention of and Counteraction to Legalization (Laundering) of Proceeds from Crime, Terrorist Financing, and Financing of Proliferation of Mass Destruction Weapons”, and regulations of the Commission.

{Paragraph of Clause 2 of Section I amended in accordance with Decisions of the National Securities and Stock Market Commission No. 272 dated 10 March 2016 and No. 490 dated 27 June 2017}

  1. An applicant intending to acquire or to increase a major interest in a professional securities trader so as to directly or indirectly own or control 10, 25, 50 and 75 percent in the authorized capital or voting rights in the bodies of the professional securities trader provided by the acquired interest (or shares) (hereinafter referred to as the “acquisition” or the “increase of the major interest”), either independently or jointly with other persons, shall submit an application and the relevant documents for obtaining a written approval from the Commission not later than a month prior to the date of acquisition or increase of the major interest.

{Paragraph 2 of Clause 3 of Section I has been excluded on the basis of Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

The person(s) shall obtain an approval for the major interest in a professional securities trader, regardless of the method of acquisition thereof in both the primary and secondary markets (under contracts with a professional securities trader, its owners, reorganization, performance of other juridical acts, etc.).

  1. If the holder of a major interest of 10, 25, or 50 percent in the authorized capital of a professional securities trader intends to acquire additional interest (or shares) in this trader so as to increase its major interest other than by increasing the same to 25, 50, or 75 percent, respectively, in the authorized capital of the professional securities trader, no approval of the Commission for such an increase in the major interest between the above values shall be required.

If any person has received an approval from the Commission to hold a major interest in the amount of 75 percent in the authorized capital of a professional securities trader, a subsequent increase in its major interest shall require no further approval from the Commission.

{Paragraph two of Clause 4 of Section I as amended by Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

If the major interest in a professional securities trader is acquired or increased by the State, a territorial community represented by the relevant state or local self-government authority, the acquisition of or increase in such major interest shall require no approval from the Commission.

{Clause 4 of Section I has been amended to include new paragraph in accordance with Decision of the National Securities and Stock Market Commission No. 490 dated 27/06/2017}

  1. The size of the applicant’s major interest in a professional securities trader in case of simultaneous direct and indirect ownership or joint ownership of the interest (or shares) in the authorized capital of the professional securities trader shall be determined by through aggregating the sizes of direct and indirect interest.

The amount of the applicant’s major interest in the authorized capital of a professional securities trader held independently or jointly with other persons shall be calculated by multiplying the amount of the direct interest in the authorized capital of the holder of major interest by the amount of direct (indirect) interest of this holder of major interest in the authorized capital of a professional securities trader, followed by division of this product by 100 (calculated in the appropriate sequence of relations between the holders of major interest in the ownership structure, namely from the final indirect major interest holder to the major interest holder that has a direct interest in the authorized capital of the professional securities trader). This calculation procedure shall not apply to persons that, either directly or indirectly, control the direct holder of major interest in a professional securities trader.

{Paragraph two of Clause 5 of Section I as amended by Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

The size of the applicant’s major interest in the authorized capital of a professional securities trader held indirectly independently or jointly with other persons through two or more direct holders of major interest shall be calculated by aggregating the sizes of all shares held indirectly through such persons.

The total number of votes of the applicant that obtains the right to vote at the general meeting of a professional securities trader under the securities management agreement and/or on behalf of the interest holder (member) of the professional securities trader shall be calculated on the basis of its direct interest by aggregating the number of votes owned and obtained by such applicant.

If a person exercises control over the holder of the direct major interest in a professional securities trader directly or through other persons, the size of indirect interest held by such person in the professional securities trader shall be equal to the amount of the direct participation of the holder of the major interest in the professional securities trader.

{Clause 5 of Section I has been amended to include a new paragraph in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

The size of the major interest in the applicant owned by a group of associated persons shall be calculated by aggregating the interests held by all such persons in the ownership structure of the professional securities trader.

{Clause 5 of Section I has been amended to include a new paragraph in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

The size of the major interest in the applicant obtaining the possibility of significant influence on the activities of a professional securities trader regardless of the formal ownership shall be equal to 10 percent and, in case of a decisive influence, to 100 percent.

{Clause 5 of Section I has been amended to include a new paragraph in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

When determining whether the applicant has a significant influence (from 10 to 50 percent) or the decisive influence (50 percent or more) on the management or activity of a professional securities trader, regardless of the formal ownership, the following criteria, inter alia, shall be taken into account:

{Clause 5 of Section I has been amended to include a new paragraph in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

compliance of the ownership structure of the professional securities trader in terms its transparency with Clause 3 of Section III and the presence of other major interest holders in this structure;

{Clause 5 of Section I has been amended to include a new paragraph in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

the applicant ability to influence the appointment of officer of the professional securities trader in any way (in particular, to be the director of such an institution, to have representatives of the applicant in the management bodies, or to be a member of the supervisory board of the professional securities trader);

{Clause 5 of Section I has been amended to include a new paragraph in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016; as amended in accordance with Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

the applicant’s ability to participate in decision-making on the main areas of activity of the professional securities trader (investment or accounting policies of the professional securities trader), regardless of whether a fee or remuneration is received for such work (in particular, acquisition of voting rights in the amount of 10 and more percent in the authorized capital on the general meeting of shareholders of the professional securities trader (except in case where the voting right of 10% or more in the authorized capital of the professional securities trader is provided to a person employed by or employing by a trustee upon request or when the power of attorney specifies a list of agenda items of the general meeting with the indication of voting instructions for each of them) and/or receipt of significant stock of shares for management on the basis of a securities management agreement;

{Clause 5 of Section I has been amended to include a new paragraph in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

the applicant’s ability to influence the activities of the professional securities trader in any way on the basis of a contract.

{Clause 5 of Section I has been amended to include a new paragraph in accordance with Decision of the National Securities and Stock Market Commission No. 490 dated 27/06/2017}

  1. If a legal entity intending to acquire or increase a direct major interest in a professional securities trader has persons that control and hold indirect interest in a professional securities trader (10% or more) through this legal entity, such persons shall simultaneously submit an application and a corresponding package of documents for obtaining an approval from the Commission.

At the same time, the application and documents relating to such persons may be filed by a single person that simultaneously acquires major interest, subject to availability of signatures of all the persons, in whose respect the relevant documents must be attached to the application, or such an application and documents are provided for each person individually in accordance with the requirements of this Procedure.

{Clause 6 of Section I has been amended to include a new paragraph in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

In this case, all persons in the chain of the ownership structure filing the application and the documents shall comply with the requirements of this Procedure to decide on the approval of the major interest.

{Clause 6 of Section I has been amended to include a new paragraph in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

  1. If a person acquires a major interest in a professional securities trader or increases the same to the level provided for in Clause 3 of this Section without an approval from the Commission (except as provided for in Clause 4 of this Section), such person shall not have the right to use the voting rights provided the acquired interest (shares), directly or indirectly and in whole or in part, or to participate in the management of activities of the professional securities trader in any way until such approval is obtained.
  2. The Commission shall issue an approval for direct (individual or joint) and/or indirect (individual or joint) acquisition of and/or increase in the major interest in a professional securities trader to a person (group of persons) acquiring and/or increasing such interest in the following cases:

direct acquisition of and/or increase in the major interest in the authorized capital of a professional securities trader;

simultaneous direct and indirect folding the interest which constitutes a major interest in a professional securities trader in aggregate ;

{Clause 8 of Section I has been amended to include a new paragraph in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016; as amended in accordance with Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

indirect acquisition of, and/or increase in, the major interest, provided that the person:

{Paragraph 4 of Clause 8 of Section I as amended by Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

acquires the ability of significant (decisive) influence on the management or activities of a professional securities trader, irrespective of the formal ownership;

{Paragraph 5 of Clause 8 of Section I as amended by Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

{Paragraph 6 of Clause 8 of Section I has been excluded on the basis of Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2017}

{Paragraph 7 of Clause 8 of Section I has been excluded on the basis of Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2017}

and/or controls one or more direct holders of interest in a professional securities trader, either directly or through other persons;

{Paragraph 6 of Clause 8 of Section I as amended in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016; as amended in accordance with Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

{Paragraph 7 of Clause 8 of Section I has been excluded on the basis of Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

{Paragraph 8 of Clause 8 of Section I has been excluded on the basis of Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

{Paragraph 9 of Clause 8 of Section I has been excluded on the basis of Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

and/or holds a major interest of 25% or more among the owners of legal entities within the ownership structure of a professional securities trader (for ultimate owners).

{Clause 8 of Section I has been amended to include a new paragraph in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016; as amended in accordance with Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

The Commission shall issue an approval for the indirect acquisition of the major interest in the ownership structure of a professional securities trader by all persons in the cases listed in this Clause.

{Clause 8 of Section I has been amended to include a new paragraph in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016; as amended in accordance with Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

The Commission shall issue an approval for joint acquisition of the major interest by other persons (a group of persons, namely: associated persons, contractually related persons, and other persons that form a group and intend to acquire the major interest jointly).

{Clause 8 of Section I has been amended to include a new paragraph in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016; as amended in accordance with Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

  1. No approval of the acquisition of an indirect major interest by the Commission shall be required if such interest holder has an indirect major interest in a professional securities trader but does not exercise control and/or is not the ultimate beneficiary owner holding 25% or more.

{Paragraph 1 of Clause 9 of Section I as amended by Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

No approval of the acquisition of a major interest from the Commission shall be required in case of acquisition of such interest by an interest holder (member) of a professional securities trader due to the fact that the professional securities trader holds redeemed shares (or interests) until they are cancelled or sold.

{Clause 9 of Section I has been amended to include a new paragraph in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016; as amended in accordance with Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

  1. The requirements established by this Procedure shall be fulfilled by legal entities and individuals throughout the period when they hold the major interest in a professional securities trader.
  2. The documents submitted to the registration authority hereunder shall not be required to be sealed.

{Section I has been amended to include new Clause 11 in accordance with Decision of the National Commission for Securities and Stock Market No. 490 dated 27 June 2017}

ІІ. Procedure for submission and the list of documents submitted to the Commission for obtaining an approval of the acquisition of or increase in the major interest in a professional securities trader

  1. In order to obtain an approval of the acquisition of or increase in the major interest in a professional securities trader, the applicant shall submit an application for approval of an acquisition of a major interest in a professional securities trader and/or an application for obtaining approval of an increase in the major interest in a professional securities trader (Annex No. 1) and a copy of the list (inventory) of documents submitted for approval of the acquisition of or the increase in the major interest in a professional securities trader (Annex No. 2) to the Front Office of the Commission or send the same by registered mail. In the list (inventory) of documents submitted for approval of the acquisition of or increase in the major interest in a professional securities trader, the applicant shall specify which of the documents attached to the application contain confidential information.

The application and the documents provided by legal entities or individuals in accordance with this Procedure shall be provided in the official language and shall be signed by an authorized person (for a legal entity) or by an individual (an authorized representative of an individual), sealed (if a seal is available) (for a legal entity), and be free of any corrections or inaccuracies. If a document has more than one sheet, it must be bound, numbered, signed by an authorized person (for a legal entity) or an individual (an authorized representative of an individual), and certified by a round seal (if any) (for a legal entity).

{Paragraph 2 of Clause 1 of Section II as amended by Decision of the National Securities and Stock Market Commission No. 1287 dated 30 September 2014}

If major interest is acquired jointly, the application and documents containing information relating to all such persons, in addition to documents relating to business reputation, shall be signed by all persons intending to acquire the major interest, or such application and documents shall be provided individually for each person where such person shall identify all persons involved in the joint acquisition of the major interest.

{Clause 1 of Section I has been amended to include new Paragraph 3 in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2017}

In case of submission of documents to the Commission, the authorized person shall attach relevant authorization documents (or notarized copies thereof) to the application. The power of attorney to represent the applicant’s interests before the Commission shall specify all the powers granted to such representative in respect of submitting and signing documents. The power of attorney issued by an individual shall be notarized.

{Clause 1 of Section II has been amended to include new Paragraph 4 in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

The documents submitted by the applicant in accordance with annexes to the Procedure shall be made in accordance with the form established in annexes and have the date of signature.

The applicant shall have the right to provide other documents containing information about the financial (property) status of the applicant, availability of equity capital, sources of funds, business reputation of the persons concerned etc. in addition to the documents provided for by this Procedure.

At the date of submission of the application and attached documents, the deadline for filing the documents drawn up in accordance with annexes hereto, statements from other state authorities and documents on valuation of property shall not exceed two months from the day when they were signed or drawn up. The deadline for submission of documents for identification of non-resident legal entities shall not exceed six months from the date of notarization of the corresponding documents at the place of issue.

{Paragraph 7 of Clause 1 of Section II as amended in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016; as amended in accordance with Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

{Paragraph 6 of Clause 1 of Section II has been excluded on the basis of Decision of the National Securities and Stock Market Commission No. 1287 dated 30 September 2014}

Documents concerning a non-resident legal entity or a non-resident individual or documents issued by an authority of a foreign state shall be filed with a notarized translation into the official language. Documents issued by an authority of a foreign state shall be notarized at the place of issue and legalized in the established manner, unless otherwise provided for by international treaties ratified by the Verkhovna Rada of Ukraine.

Documents relating to a resident individual whose legalization is not provided for by international treaties ratified by the Verkhovna Rada of Ukraine shall be submitted to the Commission with the signature of the individual that shall be notarized at the place of issue.

Documents relating to a resident legal entity whose legalization is not provided for in international treaties ratified by the Verkhovna Rada of Ukraine shall be submitted to the Commission with the signature of the authorized person whose authority shall be notarized at the place of issue.

Where individual documents stipulated by this Procedure cannot be submitted by a non-resident legal entity or individual, a written statement (in an arbitrary form) of the absence of requirements of the relevant state for obtaining such documents (permits, approvals etc.) shall be filed.

  1. To obtain an approval for the acquisition of or increase in the major interest in a professional securities trader, a resident legal entity registered in accordance with the applicable legislation of Ukraine shall submit the following documents:

1) an application for obtaining an approval for the acquisition of the major interest in a professional securities trader and/or an application for obtaining the approval of an increase in the major interest in a professional securities trader (Annex No. 1);

2) documents providing the possibility to identify the legal entity:

information on the date of state registration of the legal entity in an arbitrary form, with an indication of all provisions of the charter certified by the signature of the director and the seal of the legal entity (if any);

{Paragraph 2 of Sub-Clause 2 of Clause 2 of Section II as amended by Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

3) a copy of the decision of the authorized body of the legal entity on the acquisition of or the increase in the major interest in a professional securities trader signed by the authorized persons and certified by the applicant;

4) copies of documents confirming the intention to acquire or increase the major interest in a professional securities trader or the fact of such acquisition certified by the applicant;

{Sub-Clause 4 of Clause 2 of Section II as amended by Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

5) documents on the business reputation of the legal entity, the business reputation of the chairman (members) of its executive body, the chairman and members of the supervisory board (if any):

an application form (Annex No. 3) filled in by the legal entity intending to acquire or increase the major interest in a professional securities trader;

an application form of the chairman (members) of the executive body, the chairman and members of the supervisory board of the applicant legal entity intending to acquire or increase the major interest in a professional securities trader (Annex No. 4) filled in by the director (or members) of the executive body and the chairman (members) of the supervisory board (if any) of the legal entity;

a certificate issued by the bodies of the National Police regarding the absence (presence) of a conviction or the presence of an outstanding or unexpunged criminal conviction;

6) information about the ownership structure of the legal entity in accordance with the requirements of Section ІІІ hereof;

7) documents providing the possibility to assess the financial standing of the legal entity and the presence of sufficient amount of equity capital for such entity to acquire or increase the major interest in a professional securities trader and confirming the source of such funds:

{Paragraph 1 of Sub-Clause 7 of Clause 2 of Section II as amended by Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

an audit report (an independent auditor’s report) and/or an opinion on the audit of interim financial statements drawn up on the basis of the audit of financial statements of the legal entity for the quarter preceding the adoption of a decision to acquire or to increase the major interest in a professional securities trader and for the last financial year, regardless of the legal and ownership form, which shall meet requirements of Decision of the Commission No. 160 dated 12 February 2013 “On Approval of Requirements for Audit Reports Submitted to the National Securities and Stock Market Commission to Obtain a License for Professional Activities in the Securities Market” registered with the Ministry of Justice of Ukraine on 11 March 2013 under No. 386/22918 (as amended).The above opinions shall contain a copy of the certificate of the auditor that signed the opinion and copies of the balance sheet and the profit and loss statement of the applicant attached thereto;

{Paragraph 2 of Sub-Clause 7 of Clause 2 of Section II as amended in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016; as amended in accordance with Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

certificates issued by banks servicing accounts of the legal entity from which payments will be made for acquiring or increasing the direct major interest in a professional securities trader confirming the availability of funds on these accounts (with an indication of the amount of such funds), unless the payment for acquisition of the major interest in cash is not made (in case of reorganization, donation, conclusion of an exchange agreement, acquisition of the major interest regardless of the formal ownership etc.).

{Paragraph 3 of Sub-Clause 7 of Clause 2 of Section II as amended by Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

The above documents shall be filed with respect to the owners who have direct interest in a professional securities trader and, in case of a legal entity, with respect to the ultimate controller legal entity without a ultimate beneficiary owner;

{Paragraph 4 of Sub-Clause 7 of Clause 2 of Section II as amended by Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

8) a copy of the preliminary conclusions or the corresponding decision of the Antimonopoly Committee of Ukraine in cases stipulated by the applicable legislation of Ukraine on the protection of economic competition or written statements (in an arbitrary form) confirming the absence of the requirement to obtain such documents;

{Sub-Clause 8 of Clause 2 of Section I as amended by Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

9) copies of documents confirming the acquisition of or increase in the major interest through reorganization, acquisition of interest (or shares) in a professional securities trader through the introduction of such interest (or shares) into the authorized (share) capital of other legal entities, commission of gifts, inheritance, exchange, as well as a redemption of interest (or shares) by the professional securities trader resulting in a reduction in the authorized capital of such trader and, accordingly, an increase in the major interest of the owner, certified by the applicant.

The above documents shall be provided by the applicant in the cases specified in this Sub-Clause.

{Paragraph 9 of Sub-Clause 2 of Clause 2 of Section II as amended by Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

  1. To obtain an approval for the acquisition of or increase in the major interest in a professional securities trader, a non-resident legal entity shall provide the following documents, together with an application for an approval for the acquisition of the major interest in a professional securities trader and/or an application for an approval for the increase in the major interest in a professional securities trader (Annex No. 1) and the documents provided for by Sub-Clause 4 of Clause 2 of Section II hereof, Sub-Clause 5 of Clause 2 of Section II hereof, Sub-Clause 6 of Clause 2 of Section II hereof, Sub-Clause 3 of Sub-Clause 7 of Clause 2 of Section II hereof, Sub-Clauses 8 and 9 of Clause 2 of Section II hereof:

{Paragraph 1 of Clause 3 of Section II as amended by Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

a copy of the decision of the authorized management body of a non-resident legal entity to participate in a professional securities trader in Ukraine;

an extract from a commercial, bank, judicial register, or another official document confirming the registration of a non-resident legal entity in the country where its headquarters are registered;

a written permission for the non-resident legal entity to participate in a professional securities trader in Ukraine issued by the authorized supervisory body of the country where the headquarters of the non-resident legal entity are registered if the applicable legislation of such country requires obtaining a specified permit, or a written statement that the applicable legislation of the country of its origin does not provide for such permission;

a copy of the auditor’s opinion (report) and/or a foreign auditor’s opinion on the audit of the interim financial statements of the financial position of the non-resident legal entity at the end of the last reporting period (year) established by the applicable legislation of the country of origin of the non-resident legal entity before the decision to acquire or increase the major interest in the authorized capital of a professional securities trader on the following issues:

{Paragraph 5 of Clause 3 of Section II as amended by Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

reliability and completeness of financial statements, their compliance with the applicable legislation of the state where the legal entity is registered and with the established requirements of accounting regulations (standards);

availability of equity capital in the amount necessary to acquire or increase the major interest and the source of such funds;

{Paragraph 7 of Clause 3 of Section II as amended by Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

assessment of the financial standing and solvency on the basis of calculations of indicators established by the applicable legislation of the country of origin of the non-resident legal entity;

information that may be contained in the auditor’s report (lack of grounds for deterioration of the financial position following the acquisition of or increase in the major interest, ability to ensure repayment of its obligations and conduct profitable activities etc.).

{Paragraph 10 of Clause 3 of Section II has been excluded on the basis of Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

The above information shall be filed with respect to the owners who have direct interest in a professional securities trader and, in case of a legal entity, with respect to the ultimate controller legal entity without a ultimate beneficiary owner;

{Clause 3 of Section II has been amended to include new paragraph in accordance with Decision of the National Securities and Stock Market Commission No. 490 dated 27/06/2017}

  1. To obtain an approval for the acquisition of or increase in the major interest in a professional securities trader, a resident individual shall submit the following documents:

1) an application for obtaining an approval for the acquisition of the major interest in a professional securities trader and/or an application for obtaining the approval of an increase in the major interest in a professional securities trader (Annex No. 1);

2) documents providing the possibility to identify the individual:

photocopies of the passport pages containing a photograph, the surname, first name, patronymic (if any), date of birth, passport series, number, issue date, and the name of the issuing authority, residence registration and citizenship information certified by the individual’s signature;

3) documents concerning the business reputation of the individual:

a notarized application form (Annex No. 5) signed by the individual;

a certificate issued by the bodies of the National Police regarding the absence (presence) of a conviction or the presence of an outstanding or unexpunged criminal conviction;

4) documents that provide the possibility to assess the financial standing of the individual and the availability of sufficient amount of funds for such individual to acquire or increase the major interest in a professional securities trader:

{Paragraph 1 of Sub-Clause 4 of Clause 4 of Section I as amended by Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

a copy of the declaration of the property status and revenues with the mark of the supervisory body on its receipt (provided for the number of years necessary to confirm the sufficiency of funds);

{Paragraph 9 of Sub-Clause 2 of Clause 2 of Section II as amended by Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

a statement from the bank in which the individual’s account (if any) is opened from which the payment will be made for the acquisition of or increase in the major interest in a professional securities trader regarding the availability of funds on the account as of the date of signing the application in accordance with Annex No. 5 hereto.

In the absence of such documents, copies of documents confirming the property status and availability of funds certified by the individual’s signature shall be submitted.

{Paragraph 4 of Sub-Clause 4 of Clause 4 of Section II as amended by Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

The above documents shall be filed with respect to the owners who have direct interest in a professional securities trader and, in case of a legal entity, with respect to the ultimate beneficiary owner;

{Paragraph 5 of Sub-Clause 4 of Clause 4 of Section II as amended by Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

information in an arbitrary form on the origin of funds and on the possibility of such a person to provide additional financial support to the professional securities trader in case of need, regardless of the method of acquisition of or increase in the major interest, with attached documents confirming the property status of an individual, presence/absence of liabilities to financial institutions (in case such liabilities exist, the composition, amount, maturity, full name and the USREOU identification code of the legal entity to which liabilities are due) certified by the individual’s signature.

{Sub-Clause 4 of Clause 4 of Section II has been amended to include a new paragraph in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016; as amended in accordance with Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

This information shall be filed by the applicant in an arbitrary form with the mandatory indication of the following data at the beginning of the certificate:

{Paragraph 4 of Sub-Clause 4 of Clause 4 of Section II as amended by Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

“I hereby declare that the information provided herein is true and complete as of the date of being filed.”;

{Paragraph 4 of Sub-Clause 4 of Clause 4 of Section II as amended by Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

5) copies of documents confirming the intention to acquire or increase the major interest in a professional securities trader or the fact of such acquisition certified by the individual;

{Sub-Clause 5 of Clause 4 of Section II as amended by Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

6) a certificate of legal entities in which the individual applicant is the director and/or the controller, as well as associated persons of this individual (Annex No. 6);

{Paragraph 2 of Sub-Clause 6 of Clause 4 of Section II has been excluded on the basis of Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

7) a copy of preliminary conclusions or the corresponding decision of the Antimonopoly Committee of Ukraine in cases stipulated by the applicable legislation of Ukraine on the protection of economic competition;

{Sub-Clause 8 of Clause 4 of Section II has been excluded on the basis of Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

8) documents on an independent valuation of the property of such an applicant certified by the signature and seal (if any) of an independent valuer.

{Paragraph 1 of Sub-Clause 8 of Clause 4 of Section II as amended by Decision of the National Securities and Stock Market Commission No. 490 dated 27/06/2017}

These documents shall be provided by the applicant in case of conclusion of an exchange agreement, as well as in case of absence of sufficient amount of cash on the bank accounts to acquire or increase a major interest in the declared amount and availability of property the amount of which provides for sufficient funds as confirmed by an independent valuation as of the date of submission of documents in accordance with this Procedure.

  1. To obtain an approval for the acquisition of or increase in the major interest in a professional securities trader, a non-resident individual shall provide the following documents, together with an application for an approval for the acquisition of the major interest in a professional securities trader and/or an application for an approval for the increase in the major interest in a professional securities trader (Annex No. 1) and the documents provided for by Sub-Clause 2 of Clause 4 of Section II hereof, Sub-Clause 3 of Clause 4 of Section II hereof, Paragraphs 3 and 4 of Sub-Clause 4 of Clause 4 of Section II hereof, and Sub-Clauses 5 to 8 of Clause 4 of Section II hereof:

{Paragraph 1 of Clause 5 of Section II, as amended by Decisions of the National Securities and Stock Market Commission No. 272 dated 10 March 2016 and No. 490 dated 27 June 2017}

information provided by the tax authority of the country on income and taxes amounts paid during the period for which the individual filed tax returns (declaration of property and income) and a copy of such declarations with a mark on receipt by the tax authority (to be provided for the number of years that is required to confirm the sufficiency of funds) and/or a written statement of the impossibility to provide information by the authorized body of a foreign state on the income and taxes amount paid during the period for which the individual filed tax returns (income statements) if the applicable legislation of the country of residence of the non-resident individual does not provide for its receipt;

{Paragraph 2 of Clause 5 of Section II, as amended by Decision of the National Securities and Stock Market Commission No. 1287 dated 30 September 2014; as amended by Decision of the National Securities and Stock Market Commission No. 272 ​​dated 10 March 2016}

written permission to participate in a professional securities trader in Ukraine issued by the authorized supervisory authority of the country where the individual has a permanent place of residence if the applicable legislation of this country requires such permit to be obtained, or a written statement that the applicable legislation of that country does not provide for such permission.

  1. An international financial institution and a public company intending to acquire a major interest in a professional securities trader shall submit the documents provided for in Sub-Clauses 1 and 6 of Clause 2 and Paragraphs 2 to 4 of Clause 3 of Section II hereof.

{Section II has been amended to include new Clause 6 in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016; as amended in accordance with Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

ІІІ. Procedure for Submission of Information on the Ownership Structure of a Legal Entity Applicant

  1. A legal entity applicant intending to acquire or increase the major interest in a professional securities trader shall submit an application form on the ownership structure of the legal entity acquiring or increasing the major interest in a professional securities trader (Annex No. 7).

In addition, information about the ownership structure shall be provided as a schematic representation of such structure.

Such schematic representation shall indicate the name and the identification code of each legal entity, the surname, name, and patronymic of all individuals who hold the major interest in the legal entity applicant and the persons through which the applicant and its owners exercise ownership/control of interest in a professional securities trader, directly or indirectly, with an indication of the relations between them.

When arranging the information on the ownership structure of the applicant in the form of a schematic representation, the schematic representation shall be placed on sheets separately for each owner of the applicant if all the data cannot be fit into one sheet.

  1. The above application form shall indicate all members, including their signatures. If a line in any column is not filled because of the lack of data, a dash be placed in that line in the corresponding column.

For non-resident legal entities, the full name shall be indicated in accordance with the document on the basis of which the information is submitted, as well as a variant of this name in Ukrainian (the name in Cyrillic letters). If there are several names or variants of their spelling, all these names or variants of their spelling shall be indicated.

  1. The ownership structure of the applicant (for a legal entity) shall be transparent and comply with the requirements of this Procedure.

{Section I has been amended to include new Clause 3 in accordance with Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

  1. Information on the ownership structure of the applicant (for a legal entity) and on the legal entities where the individual applicant is the director or the controller, as well as associated persons of such individual, shall be transparent and shall comply with the requirements of this Procedure if they disclose information about the system of relations of legal entities and individuals in this legal entity, thus enabling the Commission to identify all persons who have a major interest in the applicant, including the control relationship between them. The applicant has declared that the above information on the ownership structure is true and complete and that it reveals the system of relationships and contains information on all holders of the major interests in the legal entity and complies with the requirements of this Procedure.

The ownership structure is deemed non-transparent if it is not possible to identify all holders of major interests in the applicant due to the presence of structures of mutual control (counter-investments) of one person over another in the ownership structure and/or the presence of persons having the legal right to own, use and dispose of rights regarding the major interest in the professional securities trader in the ownership structure, who simultaneously act on the instructions of the ultimate beneficiary owners.

{Section III has been amended to include a new Clause in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

  1. Conditions to be Met by the Applicant upon Receipt of the Commission’s approval for Acquisition of or Increase in the Major Interest in a Professional Securities Trader
  2. In accordance with the auditor’s opinion (an independent auditor’s report) provided in accordance with Section II hereof, a legal entity applicant (other than a bank or a non-bank financial institution) shall meet the following requirements:

{Paragraph 1 of Clause 1 of Section IV as amended by Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

{Paragraph 2 of Clause 1 of Section IV has been excluded on the basis of Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

{Paragraph 3 of Clause 1 of Section IV has been excluded on the basis of t Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

the acquisition of or increase in the major interest will not result in a deterioration in the applicant’s financial standing;

the applicant is able to ensure repayment of its liabilities or conduct profitable activities;

the applicant’s financial and solvency status corresponds to the optimum values in accordance with Annex No. 8 hereto;

{Clause 1 of Section IV has been amended to include a new paragraph in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

the applicant has available funds in the amount sufficient to acquire or increase the major interest (including provision of the opportunity to provide additional financial support, if necessary, to a professional securities trader, irrespective of the method of acquisition of or increase in the major interest, in the future).

{Clause 1 of Section IV has been amended to include a new paragraph in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016; as amended in accordance with Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

For an applicant that acquires and/or increases a direct major interest in a professional securities trader, the amount of the equity capital is deemed sufficient if it exceeds the amount of capital invested in the authorized capital of a professional securities trader and/or, in case of acquisition of or increase in the major interest in the secondary market, it exceeds the value proportional to its share acquired in a professional securities trader expressed as percentage of its nominal value in UAH in the statutory capital of a professional securities trader or in the authorized capital of such a professional securities trader where its statutory capital is less than its authorized capital.

{Clause 1 of Section IV has been amended to include a new paragraph in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016; as amended in accordance with Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

For an applicant that acquires and/or increases the major interest and is or will become the ultimate controller in the ownership structure of a professional securities trader, the amount of the equity capital is deemed sufficient if it amounts to a value proportionate to its share in the professional securities trader expressed as a percentage of its nominal value in UAH in the statutory capital of a professional securities trader or in the authorized capital of such a professional securities trader where its statutory capital is less than its authorized capital;

{Clause 1 of Section IV has been amended to include a new paragraph in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016; as amended in accordance with Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

{Paragraph 8 of Clause 1 of Section IV has been excluded on the basis of Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

{Paragraph 9 of Clause 1 of Section IV has been excluded on the basis of Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

a bank applicant or another financial institution that acquires and/or increases a direct major interest and is or will become the ultimate controller in the ownership structure of a professional securities trader shall meet the economic (prudential) norms regarding the amount of the equity capital (the statutory capital) established by the applicable legislation of Ukraine or the country of residence of such applicants as of the last reporting date preceding the submission of documents for acquiring and/or increasing the major interest.

{Clause 1 of Section IV has been amended to include a new paragraph in accordance with Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

The amount of equity capital for banks and non-bank financial institutions shall amount to the amount of equity (statutory) capital established for such persons by the applicable legislation of Ukraine or the country of residence of the applicant, taking into account compliance of such persons with the established economic (prudential) norms.

{Clause 1 of Section IV has been amended to include a new paragraph in accordance with Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

For banks and non-bank financial institutions that acquire and/or increase a direct major interest and are or will become the ultimate controller in the ownership structure of a professional securities trader, the amount of the equity capital is deemed sufficient if it exceeds the amount of cash invested in the authorized capital of the professional securities trader and/or, in case of acquisition of or increase in the major interest in the secondary market, it exceeds the amount proportional to its share acquired in the professional securities trader expressed as percentage of its the nominal value in UAH in the statutory capital of the professional securities trader if the statutory capital is less than the minimum authorized capital established by law for a particular activity.

{Clause 1 of Section IV has been amended to include a new paragraph in accordance with Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

  1. A legal entity applicant shall have equity capital in the amount necessary to acquire or increase (independently or jointly) the major interest, except for cases of reorganization, acquisition of interest (shares) in a professional securities trader by contributing such interest (shares) into the authorized capital of other legal entities, the commission of donation, inheritance, and redemption of interest (or shares) by a professional securities trader, which results in a decrease in the authorized capital of such trader and, accordingly, an increase in the major interest of the holder etc.

{Paragraph 1 of Clause 2 of Section IV as amended by Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

Calculation of the amount of the equity capital of a legal entity applicant shall be carried out by an auditor on the basis of financial statements for the year (quarter, month) preceding the acquisition of the major interest in a professional securities trader.

{Paragraph 2 of Clause 2 of Section IV as amended by Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

The amount of a legal entity applicant’s equity capital to meet its obligations to acquire or increase the major interest in the authorized capital of a professional securities trader shall be calculated according to the following formula:

К = ВК – (РК+НА+МІУ),

{Paragraph 4 of Clause 2 of Section IV as amended by Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

where: K is the amount of a legal entity applicant’s equity capital to meet its obligations to acquire or increase the major interest in the authorized capital of a professional securities trader;
ВК is the equity capital (part of assets remaining after deducting liabilities);
РК is the reserve capital;
НА is the non-current assets (including intangible assets, long-term biological assets, long-term financial investments, long-term receivables, deferred tax assets, goodwill, other non-current assets), except for property, plant and equipment, capital investments, and investment property;

{Paragraph 8 of Clause 2 of Section IV as amended by Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

МІУ is the amount of the major interest in the authorized capital of another professional securities trader to be acquired whose acquisition has not yet been approved by the Commission.

{Clause 2 of Section IV has been amended to include new Paragraph 9 in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

The amount of the equity capital for this calculation shall not be less than the amount of the declared major interest.

When calculating the amount of equity capital of a legal entity that is a non-bank financial institution (K) and which, in accordance with the applicable legislation, may be an shareholder (member) of a professional securities trader, the amount of cash that, according to the applicable legislation governing the activities of a non-bank financial institution, cannot be transferred to the authorized capital of another entity shall be deducted from the equity capital (ВК) of such meet its liabilities in case of a direct independent or joint acquisition of or increase in the major interest in the authorized capital of a professional securities trader.

{Paragraph 12 of Clause 2 of Section IV has been excluded on the basis of Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

  1. The property status of an individual applicant shall ensure the possibility of acquiring or increasing the major interest in a professional securities trader, in particular, at the individual’s own expense (cash placed on bank accounts and property that has passed an independent valuation), except for gifts or inheritance, as well as redemption of interest (shares) by a professional securities trader, which results in a reduction in the authorized capital of such a trader and, accordingly, in an increase in the major interest of the holder.

For the purpose of confirming the financial (property) status in accordance with the objectives of this Procedure, an individual applicant’s funds shall not include cash (property) received under loan or credit agreements and other transactions under which such funds are to be repaid.

{Clause 3 of Section IV has been amended to include new Paragraph 2 in accordance with Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

An individual applicant’s financial condition shall ensure that the individual can provide, if necessary, additional financial support to the professional securities trader in the future, irrespective of the method of acquisition of or increase in the major interest.

{Clause 3 of Section IV has been amended to include new Paragraph 3 in accordance with Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

For an individual applicant that acquires and/or increases a direct major interest in a professional securities trader, the financial (property) status (including for the provision of a possibility to provide additional financial support, if necessary, to the professional securities trader in the future, resulting thus in the increase of the major interest) shall meet the requirements for the availability of funds in the amount larger than the amount of cash invested in the authorized capital of a professional securities trader and/or, in case of acquisition of (increase in) a direct major interest in the secondary market that is larger than the amount proportional to its share acquired in a professional securities trader expressed as percentage of its nominal value in UAH in the statutory capital of a professional securities trader or in the authorized capital of such a professional securities trader if its statutory capital is less than its authorized capital.

{Paragraph 4 of Clause 3 of Section IV as amended by Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

For an individual applicant that acquires and/or increases the major interest and is the ultimate controller of a professional securities trader, financial (property) status (including for the provision of the opportunity to provide additional financial support, if necessary, to a professional securities trader in the future, regardless of the method of acquisition of or increase in the major interest) shall meet the requirements for the availability of funds, the amount of which is proportional to its share in the professional securities trader, expressed as a percentage of its nominal value in UAH in the statutory capital of the professional securities trader or in the authorized capital of such a professional securities trader if its statutory capital is less than its authorized capital.

{Paragraph 5 of Clause 3 of Section IV as amended by Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

{Clause 3 of Section IV as amended by Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

  1. Acquisition of or increase in the major interest in a professional securities trader shall be carried out at the applicant’s expense using the funds the origin of which has been confirmed.

The sources of funds used for the acquisition of or increase in the major interest in a professional securities trader shall be deemed confirmed in the presence of all information about the availability of equity capital in the amount sufficient to acquire or increase the major interest and the sources of origin of such funds provided in the package of documents in accordance with the requirements of Section II hereof.

{Clause 4 of Section IV has been amended to include new Paragraph 2 in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

In case a decision is made on the direct independent or joint acquisition of or increase in the major interest in the authorized capital of a professional securities trader, a legal entity applicant shall be comply with requirements of the legislation regarding formation of the authorized capital (in particular, the Laws of Ukraine “On Securities and the Stock Market”, “On the Depository System of Ukraine”, “On Financial Services and State Regulation of Financial Services”, “On Business Companies”, “On Joint-Stock Companies”.

{Paragraph 3 of Clause 4 of Section IV as amended by Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016}

  1. The business reputation of persons (namely, a legal entity applicant, an individual, a chairman (members) of the executive body, and the chairman (members) of the supervisory board of the legal entity applicant over the past two years) shall meet the following requirements:

{Paragraph 1 of Clause 5 of Section IV as amended by Decision of the National Securities and Stock Market Commission No. 490 dated 27/06/2017}

1) the person does not have unpaid fines imposed for violations in the financial services market (securities market);

{Paragraph 1 of Sub-Clause 1 of Clause 5 of Section IV as amended in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016; as amended in accordance with Resolution of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

previous activities (inactivity) of the person exercising control over the financial institution and/or, in the absence of controllers in the ownership structure, acting as the ultimate beneficiary owner (controller), exercising the powers of the sole executive body (or being appointed by the chairman or a member of the collegial executive body) of the financial institution has not resulted in decisions on bankruptcy (compulsory liquidation) of the financial institution, appointment of an interim manager (provisional administration) as of any date during one year before the specified events;

{Paragraph 2 of Sub-Clause 1 of Clause 5 of Section IV as amended by Decisions of the National Securities and Stock Market Commission No. 272 dated 10 March 2016 and No. 490 dated 27 June 2017}

previous activity (inactivity) of the person exercising control over the financial institution and/or, in the absence of controllers in the ownership structure of the entity, acting as the ultimate beneficiary owner (controller), exercising the powers of the sole executive body (or being appointed by the chairman or a member of the collegial executive body) of the financial institution has not resulted in the application of any sanctions in the form of cancellation (revocation) of the corresponding license in the financial services market (in addition to cancellation of the license due to non-performance of a certain type of activity in the financial services market by the licensee) that was not cancelled in accordance with the procedure established by the applicable legislation, as of any date during one year before the specified events;

{Sub-Clause 1 of Clause 5 of Section IV has been amended to include a new paragraph in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016; as amended in accordance with Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

the person has obtained approval for the major interest in the professional securities trader in case of its acquisition and/or increase in accordance with the procedure established by the applicable legislation;

the person is not included in the list of persons involved in terrorist activity or subjected to international sanctions in accordance with the procedure established by the applicable legislation;

{Paragraph 5 of Sub-Clause 1 of Clause 5 of Section IV, as amended by Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

the person has not been subjected to economic and other restrictive measures (sanctions) by foreign countries (except for countries engaged in military aggression against Ukraine as defined in Article 1 of the Law of Ukraine “On the Defence of Ukraine” and (or) whose actions create conditions for a military conflict or the use of military force against Ukraine), intergovernmental associations, international organizations, or Ukraine;

{Sub-Clause 1 of Clause 5 of Section IV has been amended to include a new paragraph in accordance with Decision of the National Securities and Stock Market Commission No. 272 dated 10 March 2016; as amended in accordance with Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

2) the persons (namely the chairman (members) of the executive body and the chairman (members) of the supervisory board of the legal entity applicant and the individual applicant) have a business reputation for the last two years that, in addition to the requirements specified in Sub-Clause 1 of this Clause, meets the following requirements:

{Paragraph 1 of Sub-Clause 2 of Clause 5 of Section IV, as amended by Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

the person has not been deprived of the right to occupy certain positions or to engage in certain activities;

the person does not have outstanding or unexpunged criminal convictions in accordance with the procedure established by the applicable legislation;

{Paragraph 4 of Sub-Clause 2 of Clause 5 of Section IV has been excluded on the basis of Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

{Paragraph 5 of Sub-Clause 2 of Clause 5 of Section IV has been excluded on the basis of Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

the person has not been held administratively liable for violation of the applicable legislation on the securities market more than twice within the same year;

the person arrived for drafting a securities market administrative offence report (in case of its drafting);

{Paragraph 6 of Sub-Clause 2 of Clause 5 of Section IV has been excluded on the basis of Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

the person has not been dismissed on the request of a public authority (including a foreign one) and on the basis of Clauses 2, 3, 4, 7, 8 of Part 1 of Article 40 and Article 41 of the Labour Code of Ukraine (other than a non-resident).

{Paragraph 7 of Sub-Clause 2 of Clause 5 of Section IV has been excluded on the basis of Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

{Paragraph 8 of Sub-Clause 2 of Clause 5 of Section IV has been excluded on the basis of Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

{Paragraph 9 of Sub-Clause 2 of Clause 5 of Section IV has been excluded on the basis of Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

  1. The person shall have the right to provide additional information and documents confirming that its business reputation meets the requirements of this Section.

{Clause 6 of Section IV as amended by Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

  1. According to the decision of the Antimonopoly Committee of Ukraine (where its receipt is required in accordance with the applicable legislation on the protection of economic competition), such acquisition of or increase in the major interest does not result in monopolization or significant restriction of competition in the whole market or in a significant part thereof.
  2. Information about the applicant’s ownership structure (for a legal entity) complies with the requirements established in Section III hereof.

{Clause 8 of Section IV as amended by Decision of the National Securities and Stock Market Commission No. 272 dated 10/03/2016}

  1. Information provided by the applicant in the application and the documents for approval of the major interest shall correspond to the data in the applicant’s identification documents.
  2. Procedure for Reviewing Documents Submitted for Obtaining the Approval for Acquisition of or Increase in the Major Interest in a Professional Securities Trader from the Commission
  3. The Commission shall have the right to verify the reliability of the information specified in the documents submitted to obtain the approval for acquisition of or increase in the major interest in a professional securities trader during the period of reviewing the application and the relevant documents.

The Commission shall have the right to send inquiries regarding the applicant to state and local self-government authorities, legal entities and individuals in order to obtain information necessary to confirm the origin of the funds used to form the authorized capital of the professional securities trader, the financial standing and business reputation of the holders of the major interest (persons who claim the major interest).

  1. If the applicant has undergone any changes in any of the information provided in these documents during the period of consideration of the application and the relevant documents by the Commission, the applicant shall notify the Commission of such changes within the next business day.

In this case, the decision to approve the acquisition of or the increase in the major interest in a professional securities trader shall be made by the Commission taking into account the changes made by the applicant during the consideration of the relevant documents.

  1. The Commission shall make the relevant decision and send a written notice thereof within a month upon the date of submission of the application and corresponding documents, the list of which is established by this Procedure.

{Clause 3 of Section IV as amended by Decision of the National Securities and Stock Market Commission No. 1287 dated 30 September 2014}

  1. A decision to approve the acquisition of or increase in the major interest in a professional securities trader or to refuse such approval shall be made at a meeting of the Commission in accordance with its regulations and shall be executed in the form of a corresponding decision of the Commission.

The decision to refuse the approval shall indicate the reasons for refusal with the corresponding substantiations.

The decision of the Commission on the approval of the acquisition of the major interest or increase thereof in the authorized capital of a professional securities trader shall be valid for six months upon the date of its issue.

  1. The Commission shall send a written notification of the relevant decision (with a copy thereof) within three business days from the date of the decision. Such notice shall be signed by the director of the structural subdivision of the Commission that considers the application and relevant documents.
  2. If a decision to refuse the approval for the acquisition of the major interest or increase thereof in the professional securities trader is made, the submitted documents shall not be returned to the applicant.
  3. A decision to refuse the approval of the acquisition of the major interest or increase in the major interest in a professional securities trader by the Commission may be made on the following grounds:

1) the applicant has submitted an incomplete package of documents specified by this Procedure or incorrect information or the documents submitted do not meet the requirements of the Law of Ukraine “On Financial Services and State Regulation of the Financial Services Market” or this Procedure;

{Subparagraph 1 of Clause 7 of Section IV as amended by Decision of the National Securities and Stock Market Commission No. 1287 dated 30 September 2014}

2) the applicant has an outstanding or unexpunged criminal conviction;

3) the applicant’s business reputation or financial standing does not meet the requirements established by the Law of Ukraine “On Financial Services and State Regulation of the Financial Services Market” or this Procedure;

4) the applicant does not have funds in the amount necessary to acquire or increase the major interest and/or fails to confirm the source of the funds contributed to its authorized capital;

5) the applicant does not meet the requirements of the Law of Ukraine “On Financial Services and State Regulation of the Financial Services Market” or this Procedure in accordance with the submitted documents;

6) the bodies of the Antimonopoly Committee of Ukraine prohibit the concentration as such that results in monopolization or a significant restriction of competition in the whole or in a significant part of the market;

7) the acquisition of or increase in the major interest of the applicant in a financial institution threatens the interests of depositors and/or other creditors of such a financial institution or the development of a competitive environment.

  1. In case the Commission decides to refuse the approval for the acquisition of or increase in the major interest in a professional securities trader, the applicant shall have the right to submit a new application and related documents to the Commission after eliminating the reasons that have led to such refusal.

If the applicant’s business reputation (for the last two years), financial standing, or the absence of funds to acquire or increase the major interest does not meet the established requirements, the applicant shall have the right to submit documents after the deadlines specified by this Procedure to fulfil the specified conditions.

  1. A decision to refuse the approval for the acquisition of or increase in the major interest in a professional securities trader may be appealed in the court.

VІ. Information Provided by the Holders of the Major Interest in a Professional Securities Trader

  1. A major interest holder intending to transfer the major interest in a professional securities trader to another person or to reduce the same in such a way that the share owned by the person in the authorized capital of the professional securities trader or the voting rights in the management bodies of the professional trader provided by the acquired interest (or shares) is below 10, 25, 50, or 75 percent or to transfer control over the professional securities trader to another person shall notify the professional securities trader and the Commission thereof within 30 days of the date of such intention to reduce the major interest.

Such notice shall be provided in an arbitrary form and shall indicate the share amount (nominal value and percentage) with attached documents confirming the date of such intention (if any).

  1. A major interest holder in possession of 10, 25, 50, or 75 percent in the authorized capital of a professional securities trader that intends to increase its major interest in a way that the latter does not amount to 25, 50, 75 or more percent in the authorized capital of the professional securities trader shall not be obliged to notify the Commission of such acquisition.
  2. An individual holding a major interest in a professional securities trader shall provide information to the Commission in accordance with this Procedure on all changes in the data about such individual’s associated persons (in relation to individuals holding a direct major interest) and the individual’s own business reputation within a month upon the date of such changes.

A legal entity holding a major interest in a professional securities trader shall provide the Commission with information on all changes in the ownership structure and business reputation of the newly appointed executives in accordance with this Procedure within one month upon the date of the relevant change.

  1. The Commission shall consider the information provided for in Clause 3 of this Section and, in case of any discrepancies between the information provided and the requirements of this Procedure, shall submit a written notice of correction of the revealed discrepancies signed by the director of the corresponding structural subdivision. Upon receipt of such notice, the person shall correct such discrepancies and submit the corrected documents to the Commission within ten business days from the date of receipt of the notice from the Commission.
  2. The person that have received the approval of the Commission for the acquisition of or increase in the major interest in a professional securities trader shall submit copies of the relevant civil-law agreements and/or other documents certified by such person confirming the major interest in a professional securities trader to the Commission within twenty business days upon the date of commission thereof.

VІІ. State Control over Legal Entity and Individual Holders of the Major Interest in a Professional Securities Trader

  1. State supervision and control over holders of the major interest in professional securities traders shall be carried out by the Commission and its territorial bodies in accordance with the Laws of Ukraine “On State Regulation of the Securities Market in Ukraine” and “On Financial Services and State Regulation of the Financial Services Market”.

Other state authorities shall exercise control over holders of major interest within the scope of their powers determined by the applicable legislation.

  1. Complaints on the actions of the Commission and its territorial bodies related to the implementation of the requirements of this Procedure with respect to the major interest holders shall be considered by the Commission (its collegial body). Decisions of the Commission adopted on the basis of consideration of such complaints may be appealed in court.

{Procedure as amended by Decision of the National Securities and Stock Market Commission No. 1101 dated 20 June 2013}

Director
of the Department for Regulation
of Activities of Traders
and Stock Exchanges

О. Naumenko

 

Annex No. 1
to the Procedure for Approval
of Acquisition of or Increase in a Major Interest
in a Professional Securities Trader by a Person
so as to own, directly or indirectly,
or control 10, 25, 50 and 75 percent
in the authorized capital of the securities trader
or the voting rights
of the acquired shares (interest)
in its governing bodies
(Clause 1 of Section II)

APPLICATION
for obtaining an approval for the acquisition of the major interest in a professional securities trader

{Annex No. 1 as amended in accordance with Decision of the National Securities and Stock Market Commission No. 1101 dated 20 June 2013; as amended in accordance with Decisions of the National Securities and Stock Market Commission No. 1287 dated 30 September 2014, No. 272 dated 10 March 2016, and No. 490 dated 27 June 2017}

Annex No. 2
to the Procedure for Approval
of Acquisition of or Increase in a Major Interest
in a Professional Securities Trader by a Person
so as to own, directly or indirectly,
or control 10, 25, 50 and 75 percent
in the authorized capital of the securities trader
or the voting rights
of the acquired shares (interest)
in its governing bodies
(Clause 1 of Section II)

LIST
(description) of documents submitted for approval of the acquisition of or increase in the major interest in a professional securities trader

Signature date:

Item No. Name of the document provided in accordance with the Procedure Number of sheets Please specify the type of information (confidential or non-confidential)
1 2 3 4
1
2
3

__________
* The term “confidential information” shall only apply to the information provided for in the Laws of Ukraine “On Information” and “On Access to Public Information”.

Director of the legal entity/
individual Seal (if available)
___________
(signature)
____________________________
(full name)

{Annex No. 2 as amended in accordance with Decision of the National Securities and Stock Market Commission No. 1101 dated 20 June 2013; as amended in accordance with Decisions of the National Securities and Stock Market Commission No. 1287 dated 30 September 2014, No. 272 dated 10 March 2016, and No. 490 dated 27 June 2017}

Annex No. 3
to the Procedure for Approval
of Acquisition of or Increase in a Major Interest
in a Professional Securities Trader by a Person
so as to own, directly or indirectly,
or control 10, 25, 50 and 75 percent
in the authorized capital of the securities trader
or the voting rights
of the acquired shares (interest)
in its governing bodies
(Sub-Clause 5 of Clause 2 of Section II)

APPLICATION FORM

{Annex No. 3 as amended in accordance with Decision of the National Securities and Stock Market Commission No. 1101 dated 20 June 2013; as amended in accordance with Decisions of the National Securities and Stock Market Commission No. 1287 dated 30 September 2014, No. 272 dated 10 March 2016, and No. 490 dated 27 June 2017}

Annex No. 4
to the Procedure for Approval
of Acquisition of or Increase in a Major Interest
in a Professional Securities Trader by a Person
so as to own, directly or indirectly,
or control 10, 25, 50 and 75 percent
in the authorized capital of the securities trader
or the voting rights
of the acquired shares (interest)
in its governing bodies
(Sub-Clause 5 of Clause 2 of Section II)

APPLICATION FORM
of the chairman (members) of the executive body, the chairman and members of the supervisory board of the legal entity applicant intending to acquire or increase the major interest in a professional securities trader

{Annex No. 4 as amended in accordance with Decision of the National Securities and Stock Market Commission No. 1101 dated 20 June 2013; as amended in accordance with Decisions of the National Securities and Stock Market Commission No. 1287 dated 30 September 2014, No. 272 dated 10 March 2016, and No. 490 dated 27 June 2017}

Annex No. 5
to the Procedure for Approval
of Acquisition of or Increase in a Major Interest
in a Professional Securities Trader by a Person
so as to own, directly or indirectly,
or control 10, 25, 50 and 75 percent
in the authorized capital of the securities trader
or the voting rights
of the acquired shares (interest)
in its governing bodies
(Sub-Clause 3 of Clause 4 of Section II)

APPLICATION FORM

{Annex No. 5 as amended in accordance with Decision of the National Securities and Stock Market Commission No. 1101 dated 20 June 2013; as amended in accordance with Decisions of the National Securities and Stock Market Commission No. 272 dated 30 September 2014 and No. 490 dated 27 June 2017}

Annex No. 6
to the Procedure for Approval
of Acquisition of or Increase in a Major Interest
in a Professional Securities Trader by a Person
so as to own, directly or indirectly,
or control 10, 25, 50 and 75 percent
in the authorized capital of the securities trader
or the voting rights
of the acquired shares (interest)
in its governing bodies
(Sub-Clause 6 of Clause 4 of Section II)

CERTIFICATE
of legal entities in which the individual applicant is the director and/or the controller, as well as associated persons of this individual

Certificate signature date:

Table No. 1. Information about individual applicant’s associated persons*

Surname, name, and patronymic of the individual applicant Surname, name, and patronymic of the family members of the individual applicant Taxpayer’s registration number (if any) or passport series and number of the family members of the individual applicant Family relations in accordance with the definition of the term “associated persons” Full name of the legal entity where the family member of the individual applicant is employed or owns a share in excess of 10% Identification code of the legal entity Location of the legal entity Professional securities trader’s symbol*** (for legal entities) Share in the authorized capital owned by a family member of the individual applicant that represents more than 10% of the legal entity Position held by the applicant’s associated person in the indicated legal entity Consent to provide personal data of each associated person (signature)
1 2 3 4 5 6 7 8 9 10 11

Table No. 2. Information about legal entities in which the individual applicant is the director and/or the controller

Item No. Full name of the legal entity Identification code of the legal entity Professional securities trader’s symbol*** (for legal entities) Surname, name, and patronymic of the individual applicant Taxpayer’s registration number (if any) or passport series and number Position held by the individual applicant in the legal entity Share in the authorized capital of the legal entity (50% or more) Total share in the authorized (share) capital of the legal entity (%)
direct interest indirect interest acquired voting right
1 2 3 4 5 6 7   8   9
1  
2  

I hereby declare that the information provided herein is true and complete as of the date of its submission and do not object to the verification of the submitted documents and the personal data contained therein by the Commission.

In the event of any changes to the information provided herein that occurred before the Commission’s approval of the acquisition of or increase in the major interest in a professional securities trader, I undertake to immediately notify the Commission thereof.

I am aware that the information contained herein can be brought to the attention of other state bodies in cases provided for by the applicable legislation of Ukraine.

Director of the legal entity/directors of legal entities Seal (if available) ___________
(signature)
____________________________
(full name)
Individual ___________
(signature)
____________________
(full name)

___________
* Table 1 shall be filled in case of acquisition of and/or increase in the major interest with respect to the applicant’s associated persons that hold the major interest or are directors (members of the supervisory board, heads of the internal audit service) in the professional securities trader where the applicant acquires the major interest, or other financial institutions, as well as holders of the major interest in other legal entities that are related parties in respect of the applicant and/or such professional securities trader.
** T – securities traders; R – independent registrars; I – investment funds; D – depositories; E – exchanges; S – self-regulatory organizations; C – custodians; AMC – asset management companies; О – other legal entities that are not professional securities traders; IC – insurance companies; PF – the pension fund; DU – depository institutions; CI – clearing institutions; CD – central securities depositories.

 

{Annex No. 6 as amended in accordance with Decision of the National Securities and Stock Market Commission No. 1101 dated 20 June 2013; as amended in accordance with Decisions of the National Securities and Stock Market Commission No. 1287 dated 30 September 2014, No. 272 dated 10 March 2016, and No. 490 dated 27 June 2017}

Annex No. 7
to the Procedure for the approval
of the acquisition of or increase in the major interest
in a professional securities trader by a person
so as to directly or indirectly own
or control 10, 25, 50, and 75 percent
of the authorized capital of the securities trader
or the voting rights
of the acquired shares (interest)
in its governing bodies
(Clause 1 of Section III)

CERTIFICATE
on direct owners and major interest holders in the applicant’s ownership structure

{Annex No. 7 as amended in accordance with Decision of the National Securities and Stock Market Commission No. 1101 dated 20 June 2013; as amended in accordance with Decisions of the National Securities and Stock Market Commission No. 1287 dated 30 September 2014, No. 272 dated 10 March 2016; as amended in accordance with Decision of the National Securities and Stock Market Commission No. 490 dated 27 June 2017}

Annex No. 8
to the Procedure for the approval
of the acquisition of or increase in the major interest
in a professional securities trader by a person
so as to directly or indirectly own
or control 10, 25, 50, and 75 percent
of the authorized capital of the securities trader
or the voting rights
of the acquired shares (interest)
in its governing bodies
(Clause 1 of Section IV)

PROCEDURE
for calculation of recommended solvency and financial stability indicators of a legal entity applicant

Financial ratio Formula for calculation of solvency and financial stability indicators
1. CR1 means the current ratio characterizing the possibility of repayment of short-term liabilities in due time at the expense of cash and cash equivalents, current financial investments and receivables. The theoretical optimal CR1 value shall not be less than 0.5. Current assets
_________________
Current liabilities
2. QR2 means the quick asset ratio characterizing how quickly short-term liabilities can be repaid at the expense of liquid current assets and claims. The theoretical optimal QR2 value shall not be less than 0.2. Monetary current assets
_____________________
Current liabilities
3. ETA means Equity to Total Assets characterizing the financial risk level. The theoretical optimal ETA value shall not be less than 0.5. Equity
__________________
Balance currency (liability)

{The procedure has been amended to include the new Annex No. 8 in accordance with Decision of the National Commission for Securities and Stock Market No. 272 dated 10 March 2014}

 

 

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National Securities and Stock Market Commission