DECISION OF THE NATIONAL COMMISSION ON SECURITIES AND STOCK MARKET OF UKRAINE

of June 21, 2018 No. 425

About approval of the Regulations on procedure of bond emission of the companies and their address

According to Items 1, 3 parts two of Article 7, to Item 13 of article 8 of the Law of Ukraine "About state regulation of the security market in Ukraine", to the Law of Ukraine of November 16, 2017 No. 2210-VIII "About modification of some legal acts of Ukraine concerning simplification of business and investment attraction by issuers of securities", for the purpose of establishment of procedure of bond emission of the companies and their address the National commission on securities and the stock market SOLVED:

1. Approve Regulations on procedure of bond emission of the companies and their address which is attached.

2. Action of this decision extends to all societies which made the decision on bond emission of the companies, from the effective date this decision.

3. And corporate finances (Khokhlov N.) to provide to corporate management department submission of this decision on state registration in the Ministry of Justice of Ukraine.

4. And corporate finances (Khokhlov N.) to provide to corporate management department promulgation of this decision on the official website of the National commission on securities and the stock market.

5. To management of international cooperation and communications (Yushkevich A.) provide publication of this decision in the official printing publication of the National commission on securities and the stock market.

6. This decision becomes effective from the date of, the following, behind day of its official publication, but not earlier than July 1, 2018.

7. Control over the implementation of this decision to assign to the member of the National commission on securities and the stock market Libanov N.

Approved by the Decision of the National commission on securities and the stock market of Ukraine of June 21, 2018 No. 425

Regulations on procedure of bond emission of the companies and their address

I. General provisions

1. This Provision establishes procedure of issue, the circulation of registered bonds of the companies, registration of bond issue, registration of bond issue and approval of the prospectus of bonds, approvals of changes and/or amendments to the avenue of bonds, approvals of changes in the decision on bond emission, registration of the report on results of bond emission in the National commission on securities and the stock market (further - registering body), provisions in registering body of the report on results of repayment and cancellation of registration of release of these bonds.

This Provision is not applied to issue of securities by foreign issuers.

2. In this Provision terms are used in such values:

default - one or several circumstances determined by the prospectus of bonds and the decision on bond emission of the companies which constitute violation of obligations of the issuer or person providing providing on bonds which confirm possibility of such violation in the future or doing harm to the rights and/or interests of bondholders and in case of which approach bondholders acquire the rights determined by the prospectus of bonds and the decision on bond emission of such bonds. In case of absence in the prospectus of bonds or the decision on bond emission of the specified circumstances they determine circumstances about insolvency of bond issuing institution to pay to owners of bonds in time, the established by the prospectus of bonds and the decision on bond emission, interest income on bonds and/or to extinguish part or all-in cost of bonds;

early repayment of bonds - set of actions of the issuer and owners of the securities performed in the procedure established by this Provision based on the decision on early repayment made by the issuer and obligations connected with accomplishment by the issuer on bonds by payment to owners of such securities of nominal value and the income for such bonds (if other is not provided by the prospectus of bonds and/or the decision on bond emission), either deliveries (provision) of goods (services), or converting of such bonds to the corresponding number of shares/payment of nominal value of such bond (for convertible bonds) before repayment periods of the bonds provided by the prospectus of bonds and/or the decision on bond emission and cancellations of registration of bond issue;

bond issuing institution (further - the issuer) - legal resident person who on its own behalf places bonds and undertakes the obligations following from conditions of issue of these bonds before their owners;

skilled investors in financial instruments (further - skilled investors) - investors in financial instruments which have abilities, experience and knowledge in the field of the capital markets, sufficient for adoption of investment decisions by them concerning transactions concerning financial instruments;

converting coefficient - indicator which characterizes ratio of nominal value of the bonds which are subject to converting and share par value into which these bonds are converted;

convertible bonds of the companies - bonds which issue is performed by joint-stock company and providing obligations of the issuer on payment of the income, bond redemption by converting of such bonds on the corresponding number of shares of this issuer or by payment of nominal value of such bond at the choice of the owner of such bond according to the procedure, provided by the prospectus and/or the decision on bond emission;

the financial reporting - the reporting (for banks - in the corresponding forms which are determined by the regulatory legal acts on creation of the financial reporting of banks of Ukraine approved by resolutions of Board of the National Bank of Ukraine which affected the corresponding reporting dates; for other legal entities - the financial reporting in the corresponding forms which are determined by regulatory legal acts of the Ministry of Finance of Ukraine concerning creation of the financial reporting of the legal entities (except banks) acting on the corresponding reporting dates) which consists from:

report on financial condition at the end of the period;

profit and loss statement and other comprehensive income for the period;

report on changes in equity for the period;

cash flow statement for the period;

notes to the financial reporting;

The terms "underwriting", "basic prospectus of the issue", "interest bearing bonds", "redemption of securities", "issue of securities", "discount bonds", "issue", "converting of securities", "international security identification number", "security circulation", "bond", "bonds of the companies", "the first owner of convertible bonds of the companies", "issue of securities", "placement of securities", "the prospectus of securities", "repayment of issued securities", "public offer", "circulation period of bonds", "target bonds", "interest bearing bonds", "essential changes", "the principle of acquiescence", "person performing managerial functions" are used according to the Law of Ukraine "About securities and the stock market".

3. Bonds can exist only in paperless form.

4. The issuer can perform issue of regular (unsecured) and secured bonds.

Bonds can be considered secure if:

the issuer signs the corresponding guarantee agreements on ensuring obligation fulfillment on repayment of the main amount to debt/repayment of the main amount of debt and payment of the income for bonds;

to the issuer the guarantee on repayment of the main amount is issued to debt/repayment of the main amount of debt and payment of the income for bonds;

the issuer signs the relevant agreements of pledge on ensuring obligation fulfillment on repayment of the main amount to debt/repayment of the main amount of debt and payment of the income for bonds.

Bonds are considered provided with guarantee if the issuer determined their such in the prospectus of bonds and/or the decision on bond emission and the guarantor (bank, other financial institution) guarantees before bondholders execution by the issuer of the obligation on repayment of the main amount to debt/repayment of the main amount of debt and payment of the income for bonds.

Bonds are considered provided with pledge if the issuer determined their such in the prospectus of bonds and/or the decision on bond emission and the issuer is signed agreements of pledge with the first bondholders during placement about ensuring obligation fulfillment on repayment of the main amount to debt/repayment of the main amount of debt and payment of the income for bonds.

The issuer shall consider that the amount of the providing received from the guarantor(s), the guarantor(s) taking into account the guarantees and/or guarantees which are earlier provided to them shall not exceed the size of equity(equities) of the guarantor(s), the guarantor(s).

The issuer shall take measures concerning providing continuity of bonds in accordance with the terms of the prospectus of bonds and/or the decision on bond emission before completion date of obligations to their owners in full by conclusion/renewal of the relevant agreements (receipt of guarantee).

Person providing providing on the corresponding issue of securities is responsible for inclusion in the prospectus of bonds and/or the decision on bond emission of the false information concerning the provided providing.

5. The issuer can perform issue of interest, target and discount bonds:

1) the bond issuing institution of the companies has the right to place interest and/or discount bonds on the amount which taking into account the amount of releases of unsecured bonds of the same issuer which registration is cancelled for decision date about placement of bonds does not exceed the triple size of equity or the amount of the providing provided to it for this purpose by the third parties in case of placement of secured interest and/or discount bonds;

2) the issuer of interest bearing bonds shall pay interest income on bonds in the amount of and in time, established by the prospectus and/or the decision on issue of such bonds.

Interest income on bonds which nominal value is determined in foreign currency is paid in foreign currency in which nominal value of these bonds is expressed, taking into account the legislation on currency control or in national currency according to the procedure, established by the decision on bond emission and/or the prospectus of bonds;

3) the total nominal amount of issue of target bonds, accomplishment of obligations on which is provided by objects of housing construction for which financing of construction funds from physical persons and legal entities through placement of bonds are raised, cannot exceed construction cost of object on which accomplishment of obligations on target bonds, according to the approved project documentation is supposed.

Issue of target bonds of the companies, accomplishment of obligations on which is performed by transfer of object (part of object) of housing construction, the legal entity who according to the legislation has the right to accomplishment of functions of the customer of construction of such object, or the legal entity who signed the contract of participation in housing construction with the executive bodies, local government bodies having the property right, leases or permanent use of the parcel of land on which object of housing construction to which accomplishment of obligations on target bonds will be provided will be located can perform. The term for which the lease agreement of the parcel of land is signed shall be not smaller, than the term of accomplishment of construction works according to the project documentation and commissioning of the object of housing construction in operation.

Investment and financing of construction of objects of housing construction which is performed with use of the non-state funds raised from physical persons and legal entities except cases stipulated by the legislation, by bond emission are allowed only in case of implementation of issue of target bonds of the companies, accomplishment of obligations on which is performed by transfer of object (part of object) of housing construction.

6. Only the joint-stock company can be the issuer of convertible bonds.

The issuer of convertible bonds of the companies can perform issue of exclusively registered bonds.

The compulsory provision of converting is exchange of the bonds which are subject to converting for the whole number of shares into which these bonds, for each investor are converted.

7. The interest rate for interest bearing bonds can be fixed or floating.

If the interest rate is fixed, the specific size of this rate is determined in the decision on bond emission and/or in the prospectus of bonds.

If the interest rate is floating, in the decision on bond emission and/or in the prospectus of bonds the procedure for its calculation for the corresponding formula is determined or the authorized body of the issuer and the minimum and maximum size of interest rate which such authorized body can determine is determined.

8. The issuer makes the separate decision on bond emission on each bond emission.

9. The decision on bond emission of the companies, except convertible bonds, is accepted by governing body of the issuer which powers are confirmed by constituent documents of the issuer.

The decision on issue of convertible bonds is made only according to the decision of general shareholder meeting.

The issuer shall provide to the investor the verified copy of the decision on issue on its request, and also the last constituted financial reporting for the accounting period which preceded quarter in which the investor addressed the issuer.

10. The sequence of the actions of the issuer directed to registration of bond issue in registering body, their placements among investors in securities are performed according to the procedure, established by this Provision.

Bond emission is performed by the issuer independently or through the underwriter who signed the agreement on underwriting with the issuer.

In the course of bond emission agreements concerning alienation of bonds are signed with the first owners before the date determined by the decision on issue of securities, but no later than two months from the start date of placement of bonds determined by the decision on issue of such bonds except case of implementation of public offer. In that case agreements are signed with the first owners no later than date of loss of force of the prospectus of bonds, and in case of implementation of public offer without execution of the prospectus - no later than twelve months from the date of inclusion of public offer in the list of public offers.

11. In case of bond emission their placement is performed among in advance determined group of people, the number of unskilled investors among which cannot equal or exceed 150 people, except case of implementation of public offer by the issuer in the course of issue.

12. In the course of bond emission the public offer can be performed.

The public offer of bonds in the course of their issue is performed only under condition:

1) promulgation of the prospectus approved by registering body if other is not established by the legislation;

2) fulfillment of requirements of article 29 of the Law of Ukraine "About securities and the stock market";

3) registration of bond issue according to requirements of this provision.

Implementation of public offer of bonds by the issuer in the course of their issue perhaps only on condition of validity of the prospectus according to requirements of the regulatory legal act of registering body for implementation of public offer.

13. Each investor in the bond shall pay bond value in full before approval date of results of issue of the corresponding bond issue.

14. The circulation of bonds is allowed after registration by registering body of the report on results of bond emission and issue of the registration certificate of bond issue.

15. Transition of the property right to bonds of the issuer to other person is not the basis for release of the issuer from obligation fulfillment which is confirmed by the bond.

16. During the circulation of bonds the bondholder has the right to address the issuer with the offer/requirement to redeem paid by the bondholder.

The issuer shall perform bond buyback at their owners in cases which are determined in the prospectus of bonds and/or the decision on bond emission as cases of obligatory bond buyback. At the same time the prospectus of bonds and/or the decision on bond emission shall contain procedure for bond buyback, in particular procedure for decision making about bond buyback at their owners, the notification procedure of bondholders about implementation of bond buyback, procedure for price fixation of bond buyback and term during which bonds can be shown by their owners for the redemption.

17. If the decision on bond emission (the prospectus of bonds) provides holding general meeting of bondholders, in it are determined:

procedure for convocation and holding general meeting of bondholders;

competence of general meeting of bondholders;

cases of holding meeting of bondholders;

rights of bondholders.

18. Recognition of unfair emission of bonds by registering body, temporary suspension and renewal of placement of bonds, and also recognition of bond emission invalid are made according to the regulatory legal act of registering body, the establishing procedure for recognition of issue of securities unfair and invalid.

19. Skilled investors are:

1) Skilled investors are:

1) international financial institutions;

2) foreign states and their Central Banks;

3) the state of Ukraine on behalf of the public authorities authorized by it, the National Bank of Ukraine;

4) professional participants of the security market, banks and insurance companies;

5) the legal entities including created by the legislation of other state if they answer, at least, two of the following criteria:

the balance sheet total constitutes at least 20 million euros at the rate of the National Bank of Ukraine as of day of the last annual accounts;

the annual net income from sales of goods, works and services for the last financial year constitutes at least 40 million euros at the rate of the National Bank of Ukraine as of day of the last annual accounts;

own means constitute at least 2 million euros at the rate of the National Bank of Ukraine as of day of the last annual accounts.

ІІ. Bond emission procedure

1. Bonds of the companies are placed legal entities only after complete payment of the authorized capital.

The limiting amount to which the bond issuing institution has the right to place bonds is established by the legislation of Ukraine.

Placement of bonds for forming and replenishment of the authorized capital of the issuer, and also covering of losses from economic activity by transfer of the income from sale of bonds as result of the current economic activity is not allowed.

2. The bond has the nominal value determined in national currency, multiple 1 hryvnia and if it is provided by the prospectus of bonds (the decision on bond emission), - in foreign currency, multiple to unit of such foreign currency.

3. Sale of bonds is performed in national currency and if it is stipulated by the legislation also the prospectus or the decision on issue of the corresponding bond issue, - in foreign currency.

During established in the solution on bond emission, the prospectus of bonds and changes to the prospectus of bonds (in case of execution of the prospectus for implementation of public offer in the course of their issue and in case of introduction of such changes) placement term participants of such placement submit the application, sign the purchase and sale agreement of bonds. Each investor in securities shall pay bond value in full before approval date of results of bond emission.

4. Bond emission among in advance determined group of people without implementation of public offer is performed by the following stages:

1) acceptance by body (person) of the issuer, the representative to make such decisions, decisions relatively:

bond emissions;

determinations of requirement of body of the issuer (executive body, the supervisory board) if it is not determined by the charter to which powers relatively are conferred:

attraction to accommodation of the underwriter;

changes of start and end dates of placement of bonds;

modification of the decision on bond emission;

determinations of the size of interest income according to interest bearing bonds in the limits determined by the decision on bond emission;

decision makings about the early end of placement of bonds (provided that on the planned amount of bonds agreements are signed with the first owners and bonds are completely paid);

approvals of results of bond emission;

approvals of the report on results of bond emission;

decision makings about refusal of bond emission;

decision makings about carrying out converting of bonds;

decision makings about bond emission for the purpose of carrying out converting of bonds of the existing release;

approvals of results of converting of bonds;

decision makings about refusal of carrying out converting of bonds;

decision makings about cancellation of the redeemed bonds;

decision makings about early repayment of bonds;

decision makings about prolongation of circulation periods and bond redemptions;

return of the fees brought as payment for bonds, in case of recognition of issue invalid or non-confirmations in the terms of results of bond emission by body of the issuer established by the legislation authorized to make such decision, or in case of decision making on refusal of bond emission;

determinations of authorized persons of the issuer to which powers are conferred to perform actions for ensuring carrying out placement of bonds in the course of their issue;

2) acceptance of the issuer by authorized body in case of need decisions on involvement of the underwriter(s) of placement of bonds;

3) conclusion in case of need contracts with the underwriter;

4) submission to registering body of the statement, decision on bond emission and all necessary documents for bond issue registration;

5) registration of bond issue by registering body and issue of the interim certificate on bond issue registration;

6) the conclusion with Central Securities Depository of the service agreement of bond issues (in the absence of such agreement);

7) assignment to bonds of the international identification number;

8) provision to Central Securities Depository of the copy of the decision on bond emission and registration and deposition of the temporary global certificate in Central Securities Depository;

9) disclosure by public joint stock company of information containing in the decision on issue, by promulgation by method, established by the legislation, no later than 3 working days after registration of bond issue by registering body.

10) placement of bonds;

11) approval of results of bond emission by body of the issuer, authorized to make such decision;

12) approval of the report on results of bond emission of the issuer by authorized body;

13) submission to registering body of the statement and all necessary documents for registration of the report on results of bond emission;

14) registration by registering body of the report on results of bond emission and issue of the registration certificate of bond issue, cancellation of the interim certificate on bond issue registration;

15) registration and deposition of the global certificate in Central Securities Depository;

16) promulgation by public joint stock company of the report on results of bond emission by the method determined by the Law of Ukraine "About securities and the stock market" no later than 3 working days after registration of this report by registering body.

5. Bond emission with implementation of public offer is performed by the following stages:

1) acceptance by body (person) of the issuer, the representative to make such decisions, decisions relatively:

bond emissions with implementation of public offer of bonds;

determinations of requirement of body of the issuer (executive body, the supervisory board) if it is not determined by the charter to which powers relatively are conferred:

attraction to accommodation of the underwriter;

execution of the prospectus of bonds, appendices to the prospectus of bonds;

registrations of public offer of bonds;

changes of start and end dates of action of public offer;

modification and/or amendments to the avenue of bonds, appendices to the prospectus of bonds;

determinations of the size of interest income according to interest bearing bonds in the limits determined by the decision on bond emission and/or the prospectus of bonds (in case of execution of the prospectus);

determinations of the price of placement of bonds according to criteria and/or conditions according to which final price of placement is determined (in the absence of the placement price in the prospectus of bonds in case of its registration);

decision makings about the early end of placement of bonds (provided that on the planned amount of bonds agreements are signed with the first owners and bonds are completely paid);

approvals of results of bond emission;

approvals of the report on results of bond emission;

decision makings about refusal of bond emission;

decision makings about carrying out converting of bonds;

decision makings about bond emission for the purpose of carrying out converting of bonds of the existing release;

approvals of results of converting of bonds;

decision makings about refusal of carrying out converting of bonds;

decision makings about cancellation of the redeemed bonds;

decision makings about early repayment of bonds;

decision makings about prolongation of circulation periods and bond redemptions;

return of the fees brought as payment for bonds, in case of recognition of issue invalid or non-confirmations in the terms of results of bond emission by body of the issuer established by the legislation authorized to make such decision, or in case of decision making on refusal of bond emission;

Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info