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

of September 9, 2021 No. 750

About approval of the Regulations on procedure of issue of option certificates and their address

According to Items 1, 3 parts two of Article 7, to Item 13 parts one of article 8 of the Law of Ukraine "About state regulation of the capital markets and the organized goods markets", to the Law of Ukraine of June 19, 2020 No. 738-IX "About modification of some legal acts of Ukraine concerning simplification of investment attraction and implementation of new financial instruments", the National commission on securities and the stock market SOLVED:

1. Approve Regulations on procedure of issue of option certificates and their address which is attached.

2. In the capital markets and the organized goods markets (Peresunko D.) to provide to department of methodology of corporate management, corporate finances, financial instruments:

submission of this decision on state registration in the Ministry of Justice of Ukraine;

promulgation of this decision on the official website of the National commission on securities and the stock market.

3. This decision becomes effective from the date of its official publication.

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

 

It is approved: First Deputy Minister of digital transformation of Ukraine

A. Vyskub

Approved by the Decision of the National commission on securities and the stock market of Ukraine of September 9, 2021 No. 750

Regulations on procedure of issue of option certificates and their address

I. General provisions

1. This Provision establishes procedure of issue, the circulation of option certificates, registration of release of option certificates, registration of release and approval of the prospectus of option certificates, approvals of changes and/or amendments to the avenue of option certificates, approvals of changes in the decision on issue of option certificates, registration of the report on results of issue of option certificates in the National commission on securities and the stock market (further - registering body), for provision in registering body of the report on results of repayment and cancellation of registration of release of option certificates.

2. The terms used in this Procedure are used in the following values:

the option certificate is the derivative security certifying the right of its owner to acquisition at his issuer (the option certificate on acquisition) or for sale to his issuer (the option certificate for sale) underlying asset at the price, in time and other conditions determined by the prospectus (the decision on issue of securities) of option certificates. The option certificate can include calculations between the parties depending on the price of underlying asset without its acquisition or sale;

the underlying asset is issued securities (including foreign issuers), other financial instruments, currency values, products, the works, services having monetary value of cost;

release of option certificates - set of the option certificates of one issuer having one international identification number, providing the identical rights of their owners to acquisition (sale) of underlying asset of such option certificates irrespective of time of their acquisition;

kind of option certificates - set of all option certificates on purchase or sale of one underlying asset;

the issuer of option certificates can have the corresponding ensuring release of such option certificates;

ensuring release of option certificates - the conclusion of the corresponding guarantee agreements, pledge, insurance or is issued guarantee on ensuring obligation fulfillment according to option certificates;

series of option certificates - set of option certificates of one release with identical nominal value, term (for) execution and underlying asset;

accomplishment term - the term during which the issuer fulfills obligations on option certificates;

the accomplishment price - the price of the underlying asset determined in the decision on issue of option certificates and the prospectus of option certificates (in case of its registration);

the financial reporting - the reporting (for banks - in the corresponding forms which are determined by regulatory legal acts by 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 legal entities (except banks) who affected the corresponding reporting dates) which consists from:

financial status statement 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.

If the issuer according to the legislation constitute the financial reporting under International Financial Reporting Standards, he submits the financial reporting constituted under International Financial Reporting Standards.

The terms "security circulation", "redemption of securities", "repayment of issued securities", "international security identification number (ISIN code)", "international identification code of the legal entity (LEI code)", "official channel of communication", "first owner", "prospectus of securities", "decision on issue of securities", "placement of securities", "circulation period of issued securities" "prospectus format" are accepted according to the Law of Ukraine "About the capital markets and the organized goods markets" (further - the Law).

3. Option certificates can exist exclusively electronically.

4. The issuer can perform issue of regular (unsecured) and secure option certificates. Option certificates can be considered secure if the issuer signs the corresponding guarantee agreements, pledge, insurance or the guarantee on ensuring obligation fulfillment according to option certificates is issued.

Option certificates are considered provided with the guarantee if the issuer determined their such in the prospectus of option certificates (in case of its registration) and/or in the decision on issue of option certificates and signed the corresponding guarantee agreement with the guarantor about ensuring obligation fulfillment according to option certificates.

Option certificates are considered provided with guarantee if the issuer determined their such in the prospectus of option certificates (in case of its registration) and/or the decision on issue of option certificates and the guarantor (bank, other financial institution) guarantees before owners of option certificates execution by the issuer of obligations according to these option certificates.

Option certificates are considered provided with pledge if the issuer determined their such in the prospectus of option certificates (in case of its registration) and/or the decision on issue of option certificates and the issuer agreements of pledge are signed with the first owners of option certificates during placement on ensuring obligation fulfillment according to option certificates.

Option certificates are considered secure if the issuer signed the insurance contract of financial risks which subject is risks insurance of non-execution of obligations on securities with the insurer.

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).

5. The issuer of option certificates shall observe the requirements limiting risks on transactions with option certificates.

6. Completion date of option certificates are established by the issuer in the decision on issue of option certificates and the prospectus of option certificates (in case of its registration).

7. The issuer can establish conditions of early obligation fulfillment on option certificates:

during circulation period - the option certificate can be executed before the established final date of its accomplishment at any time;

at the scheduled time of repayment - the option certificate is carried out repayments, determined in the decision on issue of option certificates and the prospectus of option certificates in time (in case of its registration).

The repayment period according to option certificates cannot exceed one year.

If option certificates are not shown to accomplishment in established in the decision on issue of option certificates and the prospectus of option certificates (in case of its registration) repayment period, then obligations according to these option certificates are considered stopped from the next day after end date of repayment period of option certificates. After end date of repayment period of option certificates depository operations in system of depositary accounting of rather appropriate option certificates stop, except transactions, concerning cancellation of option certificates in connection with release registration cancellation.

In case of issue of option certificates with delivery which underlying asset are construction object 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 executive bodies, local government bodies, the having property rights, leases or permanent use of the parcel of land intended for asset construction of residential construction which will be underlying asset of option certificates can be the issuer.

8. The issuer makes the separate decision on issue of option certificates on each issue of option certificates.

9. The amount of obligations according to option certificates cannot exceed the triple size of equity or the amount of the providing provided to the issuer of option certificates for this purpose by the third parties.

10. The issuer shall adhere to the obligations specified in the decision on issue of option certificates and the prospectus of option certificates (in case of its registration), about lack of intentions to perform alienation or encumbrance of the property right to underlying asset of the option certificate.

11. In case of issue of option certificates 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. The sequence of the actions of the issuer directed to registration of release of option certificates in registering body, their placement among investors in securities are performed according to the procedure, established by this Provision.

Issue of option certificates is performed by the issuer independently or through investment firm which performs underwriting and/or activities for placement with provision of a guarantee or activities for placement without provision of a guarantee.

In the course of issue of option certificates agreements on alienation of option certificates are signed with the first owners before the date determined by the decision on issue of option certificates, but no later than two months from the start date of placement of option certificates determined by the decision on issue of such option certificates except case of implementation of public offer. In that case agreements are signed with the first owners no later than date of loss of action of the prospectus of option certificates, 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.

13. In the course of issue of option certificates the public offer can be performed.

The public offer of option certificates 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 92 of the Law of Ukraine "About the capital markets and the organized goods markets";

3) registration of release of option certificates according to requirements of this provision.

Implementation of public offer of option certificates 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 about implementation of public offer.

14. Requirements of this provision about receipt of the LEI code by the issuer are applied in case of implementation of issue of option certificates which is combined with public offer of such option certificates.

15. Each investor in option certificates shall pay the cost of option certificates in full before approval date of results of issue of the corresponding release of option certificates.

16. The circulation of option certificates is allowed after registration by registering body of the report on results of issue of option certificates and issue of the registration certificate of release of option certificates.

17. Transition of the property right to option certificates of the issuer to other person is not the basis for release of the issuer from accomplishment of obligations which is confirmed by the option certificate.

18. During the circulation of option certificates the owner of option certificates has the right to address the issuer with the offer/requirement to redeem the option certificates paid by the owner.

19. Recognition of issue of option certificates by registering body unfair, temporary suspension and renewal of placement of option certificates, and also recognition of issue of option certificates of invalid happen according to the regulatory legal act of registering body establishing procedure for recognition of issue of securities unfair and invalid.

II. Procedure of issue of option certificates

1. Option certificates are placed legal entities only after complete payment of the authorized capital.

The decision on issue of option certificates is made by governing body of the issuer which powers are confirmed by constituent documents of the issuer.

The decision on key parameters of release of option certificates is made by governing body of the issuer which powers are confirmed by constituent documents of the issuer, with possibility of provision of powers to Authorized body (The Supervisory board, Executive body) about execution of the Decision on issue of option certificates according to appendices 6, 7 to this Provision.

2. Placement of option certificates is performed in national currency or foreign currency taking into account the legislation on currency control if it is provided by issue conditions.

During established in the decision on issue of option certificates, the prospectus of option certificates and changes to the avenue of option certificates (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 option certificates. Each investor in securities shall pay the cost of option certificates in full before approval date of results of issue of option certificates.

3. Issue of option certificates among in advance determined group of people without implementation of public offer is performed by the following stages:

1) acceptance by authorized body (person) of the issuer of decisions about:

issues of option certificates;

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

to execution of the Decision on issue of option certificates according to appendix 6 to this Provision;

to attraction to placement of investment firm which performs underwriting and/or activities for placement with provision of a guarantee or activities for placement without provision of a guarantee;

to change of start and end dates of placement of option certificates;

to modification of the decision on issue of option certificates;

to decision making about early the ends of placement of option certificates (provided that on the planned amount of option certificates agreements are signed with the first owners and option certificates are completely paid);

to approval of results of issue of option certificates;

to approval of the report on results of issue of option certificates;

to decision making about refusal of issue of option certificates;

to decision making about cancellation of the redeemed option certificates;

to decision making about early repayment of option certificates;

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