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

of December 24, 2021 No. 1253

About approval of Changes in Regulations on implementation of depository activity concerning holding meetings of bondholders

According 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 "About depositary system of Ukraine", to the Law of Ukraine "About the capital markets and the organized goods markets", for the purpose of settlement of some questions of holding meeting of bondholders the National commission on securities and the stock market SOLVED:

1. Approve Changes in the Regulations on implementation of depository activity approved by the decision of the National commission on securities and the stock market of April 23, 2013 No. 735, registered in the Ministry of Justice of Ukraine on June 27, 2013 for No. 1084/23616, which are applied.

2. To department of methodology of regulation of professional participants of the security market (Kurochkina I.) provide submission of this decision on state registration in the Ministry of Justice of Ukraine and 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. To Central Securities Depository, depository institutions to bring the internal documents into accord with this decision no later than three months from the date of the introduction it in force.

5. Control over the implementation of this decision to assign to the member of the National commission on securities and the stock market Baramiya I.

 

It is approved: Acting as Chairman of Public service of special communication and information security of Ukraine

A. Poty

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 December 24, 2021 No. 1253

Changes in Regulations on implementation of depository activity

1. In Item 2 of the Section I:

add after the paragraph of twenty third with paragraphs the twenty fourth - the thirtieth the following content:

"person responsible for holding meeting - person who has the rights and obligations, stipulated by the legislation about holding meeting of bondholders and is:

1) bond issuing institution (except case of appointment of the administrator on bond issue);

2) the administrator on bond issue (in case of appointment of the administrator on bond issue - since finding of the powers by it and before their termination);

3) the bondholder or one of bondholders determined by agreement between bondholders, drawn up in writing (in case of convocation of meeting of bondholders in the cases provided by the Law of Ukraine "About the capital markets and the organized goods markets" at the initiative of one or several bondholders who in total own bonds which total nominal value is equal or exceeds 10 percent of total nominal value of non-redeemed bonds of the corresponding release);

4) one of persons responsible for holding meeting of bondholders which is determined by the written arrangement of persons responsible for holding meeting of releases of one issuer (in case of holding meeting of bondholders of several bond issues of one issuer and if persons responsible for holding meeting for such releases are different);

5) the Central depositary based on the relevant agreement (in case of the authorization person who has the right to initiate holding meeting, of the Central depositary to perform functions of person responsible for holding meeting of bondholders);

the bondholder's representative at meeting - person to whom the owner (co-owners) of bonds in the procedure established by the legislation confers powers on participation in meeting of bondholders;".

With respect thereto the twenty fourth - the twenty ninth to consider paragraphs respectively paragraphs the thirty first - the thirty sixth;

add after the paragraph of the thirty first with the paragraph the thirty second the following content:

"details of the bondholder, bondholder's representative at meeting (details of person) - surname, name, middle name (in the presence) physical person or the name of the legal entity which are used in the sense given in the Civil code of Ukraine, the name, series (in the presence), number, date of issue of the document certifying physical person this about registration number of accounting card of the taxpayer (in the presence) or series (in the presence) and passport number (for physical person, which because of the religious beliefs refuses adoption of registration number of accounting card of the taxpayer and officially notified on it the relevant monitoring body and in which passport the mark about the right to make any payments on series and/or passport number) or identification code of the legal entity in the Unified state register of the companies and organizations of Ukraine (further - code under RCBO) / identification code is made of the trade, bank or judicial register or information

about registration of the legal entity according to the legislation of the country of its location, code according to the Unified state register of institutes of joint investment (further - EGRISI) (for mutual investment fund);".

With respect thereto paragraphs of the thirty second - to consider the thirty sixth respectively paragraphs thirty third - the thirty seventh.

2. To add Item 10 of the Section III after the words "for implementation of these transactions, except" with words "the cases provided by this Provision or".

3. In the Section V:

in Chapter 1:

In paragraph five of Item 44 of the word "The unified state register of institutes of joint investment (further - EGRISI)" to replace 1) with the word "EGRISI";

2) in Item 63:

word in paragraph five "joint-stock company of notifications to shareholders through depositary system of Ukraine" shall be replaced with words "notifications or other information to the depositor through depositary system of Ukraine and ensuring participation of the owner (joint owners) of bonds in meeting of bondholders in the authorized electronic system according to the legislation";

add after the paragraph of the fifth with the paragraph the sixth the following content:

"In case of appointment as the depositor which is the owner (co-owner) of bonds, the bondholder's representative at meeting the questionnaire of the account shall contain details of person, code of securities of bond issue on which the depositor appoints such representative, the e-mail address and number of the contact mobile phone of the representative of the bondholder at meeting for ensuring its participation in meeting of bondholders in the authorized electronic system according to the legislation in securities.".

With respect thereto to consider the paragraph of the sixth the paragraph the seventh;

3) to add Item 65 after the paragraph of the thirteenth with paragraphs the fourteenth - twenty third the following content:

"Modification of the questionnaire of the account in securities of the depositor which is the owner (co-owner) of bonds about introduction of information about the bondholder's representative at meeting is performed by depository institution on the basis:

orders of the depositor or the account managing deposit account about modification of the corresponding questionnaire in securities;

the renewed questionnaire of the account in securities of the depositor which contains details of person who is the bondholder's representative at meeting, code of securities of bond issue by which the depositor appoints such representative, the e-mail address and number of the contact mobile phone of the representative of the bondholder for ensuring its participation in meeting of bondholders in the authorized electronic system according to the legislation. The questionnaire of the account in securities of the depositor is submitted if internal documents of depository institution provide its representation in the form of the paper document (the preliminary questionnaire according to the procedure, established by internal documents of depository institution, moves to storage to archive of depository institution);

originals or properly certified and drawn up copies of the documents confirming powers of the representative of the bondholder at meeting.

If the owner (co-owners) of bonds has (have) accounts in securities on which bonds of the corresponding release of the issuer, in several depository institutions are considered, the relevant information on person (details of person) who is the bondholder's representative at meeting of bondholders is entered into the system of depositary accounting of each of such depository institutions only concerning that number of bonds, the rights to which are considered on the account in securities of the owner (joint owners) of bonds serviced by such depository institution.

In case of modification of the questionnaire of the account in the securities of the depositor connected with introduction in it of information on the e-mail address and number of the contact mobile phone of the depositor and/or the bondholder's representative at meeting, the depository institution shall perform actions for check of authenticity, uniqueness and correctness of reflection of the relevant data in the questionnaire of the account in securities according to the procedure, provided by internal documents of depository institution. Such procedure shall provide procedures of fixing of actions of depository institution for check of reality, uniqueness and correctness of reflection of the relevant data in the questionnaire of the account in securities, and also fixing of results of such check.

E-mail addresses and numbers of contact mobile phones of the depositor, the bondholder's representative at meeting which are used for ensuring participation in meeting of bondholders in the authorized electronic system according to the legislation shall be unique within the questionnaire of the account in securities of the depositor that means:

the e-mail address of the representative of the bondholder at meeting cannot match with the e-mail address of the depositor which representative he is;

number of the contact mobile phone of the representative of the bondholder at meeting cannot match with number of the contact mobile phone of the depositor which representative he is.

Non-compliance with requirements for uniqueness of the e-mail address and number of the contact mobile phone of the depositor, his representative at meeting of the bondholders specified in the questionnaire of the account in securities for ensuring participation in meeting of bondholders in the authorized electronic system according to the legislation is reason for impossibility of participation of such persons in meeting of bondholders in the authorized electronic system.".

With respect thereto the fourteenth to consider the paragraph the paragraph the twenty fourth;

in Chapter 2:

1) to add Item 7 after the paragraph of the tenth with paragraphs the eleventh, twelfth the following content:

"requirements about holding the meeting of bondholders provided corresponding (corresponding) the owner (owners) of bonds;

the notification of the Central depositary on completion of vote concerning the agenda of the relevant meeting of bondholders;".

With respect thereto the eleventh - the thirteenth to consider paragraphs respectively paragraphs the thirteenth - the fifteenth;

To add 2) after Item 10 with Items 11 - 14 following contents:

"11. In case of holding meeting of bondholders upon the demand of the bondholder or several bondholders which (which) is depositor (depositors) of one depository institution or the client (clients) (the client (clients) of the client) of the nominee holder whose account in securities services this depository institution, such depository institution no later than the next operational day (except case, stipulated in Item the 12th this Chapter) after receipt of the requirement about holding meeting of bondholders from the depositor (depositors) or the nominee holder to whom such requirement was submitted by his client (clients) performs the following actions:

checks that on deposit account (depositors) which (which) gave (submitted) the requirement about holding meeting of holders of bonds / on the account of the nominee holder the client (clients) (the client (clients) of the client) of which is owner (owners) of bonds and gave (submitted) the requirement about holding meeting of bondholders, bonds of the corresponding release of the issuer in the quantity declared in the requirement which according to the law gives the grounds to initiate convocation of meeting of bondholders are considered (including in total on accounts in securities of the corresponding depositors).

If by results of performed by depository institution it is determined that the number of the bonds belonging to the owner (owners) makes quantity which does not correspond declared in the requirement which according to the law does not give the grounds to initiate convocation of meeting of bondholders, the depository institution refuses adoption of the requirement about holding meeting of bondholders and notifies on it the depositor (depositors) / the nominee holder, client (clients) (the client (clients) of the client) of which is the owner (owners) of bonds who (which) gave (submitted) the requirement about holding meeting of bondholders;

performs on the account (accounts) in securities of the depositor (depositors) / the nominee holder specified (specified) in paragraph one of this Item the unconditional transaction on management of the account in securities concerning restriction (blocking) of the rights to the corresponding bonds (if by results of performed by depository institution it is determined that the number of the bonds belonging to the owner (owners) makes quantity which according to the law gives the grounds to initiate convocation of meeting of bondholders);

provides the direction of the requirement about holding meeting of bondholders together with documents which are attached to it, through depositary system of Ukraine according to the procedure, established by the Commission.

12. In case of availability of restriction (blocking) of the rights to bonds of the bondholder who imposed requirement about holding the meeting of bondholders established according to the order of the bondholder for implementation/ensuring payment under the transactions concerning securities made in the organized markets of the capital or out of them, calculations for which are perfromed/carried out by person performing clearing activities, the depository institution postpones carrying out unconditional transaction on management of the account in securities of the corresponding person concerning restriction (blocking) of the rights to the corresponding bonds for accounts in securities of such owner until the next operational day. In that case the depository institution submits to the Central depositary information on receipt of the requirement about holding meeting of bondholders and need of establishment of restriction of the rights to bonds of the corresponding bondholder by it after display by depository institution in system of depositary accounting of transition of the property rights to bonds and is right on bonds by results of completion of all payment under transactions concerning the securities which are performed/provided with person performing clearing activities during the same operational day when such decision is received.

The central depositary in day of obtaining from depository institution of information provided by paragraph one of this Item provides to person performing the clearing activities obtained from depository institution information.

Person performing clearing activities after obtaining from the Central depositary of information provided by the paragraph the second this Item at the beginning of the next operational day provides to the Central depositary information on the number of bonds (including if the number of such bonds is equal to zero), on which in system of clearing accounting restrictions for implementation/ensuring payment under transactions concerning securities are not set and concerning which from the Central depositary information provided by the paragraph the second this Item was obtained.

Based on received from the face, performing clearing activities, reflection in system of depositary accounting is provided to information provided by the paragraph third this Item:

1) the depository operations connected with lifting of restriction (unblocking) of the rights to securities concerning bonds of certain bondholder concerning which in system of clearing accounting there are no restrictions set for implementation/ensuring payment under the transactions concerning securities made in the organized markets of the capital or out of them calculations for which is perfromed/carried out by person performing clearing activities;

2) the depository operations connected with carrying out unconditional transaction on management of the account in securities of the corresponding person concerning restriction (blocking) of the rights to the corresponding bonds for accounts in securities of the owner (except case when the remaining balance of such bonds, shares is equal to zero or constitutes quantity which according to the law does not give the grounds to initiate convocation of meeting of bondholders).

If by results of the carried-out calculations and lifting of restriction (unblocking) of the rights to bonds of certain bondholder concerning which in system of clearing accounting there are no restrictions set for implementation/ensuring payment under the transactions concerning securities made in the organized markets of the capital or out of them the number of such bonds it is equal to zero or constitutes quantity which according to the law does not give the grounds to initiate convocation of meeting of bondholders, the depository institution refuses adoption of the requirement about holding meeting of bondholders and notifies on it the depositor / the nominee holder.

Content, terms and procedure for exchange of information, provided by this Item, between person performing clearing activities, and the Central depositary are determined by the agreement signed by person performing clearing activities with the Central depositary.

13. If holding meeting of bondholders initiates several bondholders whose accounts in securities are serviced by different depository institutions or bonds of which are considered on accounts in securities of nominee holders in different depository institutions, the requirement about holding meeting of bondholders can be submitted to one of bondholders of the depository institution determined by agreement between them (further - the depository institution determined by owners).

At the same time the owner (owners) of bonds whose account (account) in securities (which) are serviced by another (others) depository institution (depository institutions) / the nominee holder shall (shall) provide to depository institution which services this account (accounts), the order about carrying out depository operation on establishment of restriction (blocking) of the rights to the corresponding bonds belonging to the owner (owners) of bonds initiating (initiating) holding meeting of bondholders with indication of information on the depository institution determined by bondholders. The specified depository institutions after carrying out the depository operation provided by this Item provide the direction through depositary system of Ukraine according to the procedure, established by the Commission, the depositary of organization determined by bondholders:

the statement (statements) from the account (accounts) in securities of the owner (owners) of bonds confirming (confirming) availability as of the end of the working day preceding day of submission of the requirement, the rights to bonds of the corresponding release in quantity to which the owner (owners) of bonds for holding meeting refers;

information concerning restriction (blocking) of the rights to bonds on it (such) the account (accounts) in securities.

The depository institution determined by owners no later than the next operational day (except case, stipulated in Item the 12th this Chapter) after receipt of the requirement about holding meeting of bondholders, and also documents and information provided by paragraphs the third and fourth this Item performs the following actions:

checks that on the account of the owner (owners) of bonds which (which) gave (submitted) the requirement about holding meeting of bondholders of accounts of the nominee holder the client (the client to the client) which is bondholder who submitted the requirement about holding meeting of bondholders, bonds of the corresponding release of the issuer in the quantity declared in the requirement which according to the law gives the grounds to initiate convocation of meeting of bondholders are considered (including in total on accounts in securities of the corresponding persons).

If by results of performed by depository institution it is determined that the number of the bonds belonging to the owner (owners) makes quantity which does not correspond declared in the requirement which according to the law does not give the grounds to initiate convocation of meeting of bondholders, the depository institution refuses adoption of the requirement about holding meeting of bondholders and notifies on it the depositor / the nominee holder, client (the client's client) of which is the bondholder, the meeting of bondholders which imposed requirement about carrying out;

performs the unconditional transaction on management of the account in securities of the corresponding person which provides restriction (blocking) of the rights to the corresponding bonds for accounts in securities of it (such) owner (owners) / the nominee holder, the client (the client to the client) which is bondholder who submitted the requirement about holding meeting of bondholders (if by results of performed by depository institution it is determined that the number of the bonds belonging to the owner (owners) makes quantity which according to the law gives the grounds to initiate convocation of meeting of bondholders);

provides the direction of the requirement about holding meeting of bondholders together with documents which are attached to it, through depositary system of Ukraine according to the procedure, established by the Commission.

14. The depository institution performs the unconditional transaction on management of the account in securities on lifting of restriction (unblocking) of the rights to the corresponding bonds on the account (accounts) in securities of the owner (owners) who (which) initiated (initiated) holding meeting of bondholders into accounts in securities of the nominee holder, the client (the client to the client) which initiated holding meeting of bondholders, no later than the next working day after obtaining from the Central depositary of the notification on completion of vote concerning the agenda of the relevant meeting of bondholders. The adequate notice about completion of vote goes the Central depositary according to the procedure, provided by its internal documents, to depository institutions on which accounts bonds of the corresponding release as of date of creation of the list of the bondholders having the participation right in meeting of bondholders were considered.".

With respect thereto Items 11 - 19 to consider respectively Items 15 - 23.

4. In the Section VI:

1) in Item 1:

add paragraph one after the words "having the participation right in general meetings of joint-stock company", words of "the list of the bondholders having the participation right in meeting of bondholders, the list of bondholders to which the notification on holding meeting of bondholders is transferred";

third to state the paragraph in the following edition:

"For the organization of holding general meeting of joint-stock company and shareholders at these meetings, the organization of holding meetings of bondholders and registration of bondholders at these meetings, the organization of ensuring charge and dividend payout on shares/income on securities, other stipulated by the legislation payments, or on other bases determined by the law, the Central depositary constitutes respectively the list of shareholders to which the notification on holding general meeting of joint-stock company, the list of the shareholders having the participation right in general meetings of joint-stock company, the list of bondholders to which the notification on holding meeting of bondholders, the list of the bondholders having the participation right in meeting of bondholders, the list of persons having the right to dividends on shares/income according to valuable papers / the means which are subject to payment with participation of the administrator is transferred is transferred the list of shareholders of society in the form of the register of owners of personalized securities and/or in the form of the list of shareholders to which the notification on holding general meeting of joint-stock company, the list of shareholders who have the participation right in general meetings of joint-stock company, the list of bondholders to which the notification on holding meeting of bondholders, the list of the bondholders having the participation right in meeting of bondholders, or the list of persons having the right to dividends on shares/income according to valuable papers / the means which are subject to payment with participation of the administrator, or in the form of the list of shareholders of society (further - the List of owners), constituted based on the owners of personalized securities this the register, according to requirements of Item 18 of this Section for the corresponding orders is transferred is transferred.";

add after the paragraph of the eleventh with the paragraph the twelfth the following content:

"person responsible for holding meeting of bondholders, if such person is the bondholder.".

With respect thereto the twelfth - the twenty second to consider paragraphs respectively paragraphs the thirteenth - twenty third;

2) to add Item 3 with the new paragraph of the following content:

"The order on creation of the list of the bondholders having the participation right in meeting of bondholders, or the list of bondholders which the notification on holding meeting of bondholders goes the order about providing the notification on holding meeting of bondholders and other orders / documents shall be signed by person responsible for holding meeting, and are provided by such person to the Central depositary in accordance with the terms of the service provision agreement on ensuring holding meetings of bondholders and requirements of internal documents of the Central depositary.";

Paragraph one of Item 6 to replace 3) with five new paragraphs of the following content:

"6. The central depositary constitutes the register of owners of personalized securities according to the procedure, established by Rules and other internal documents of the Central depositary and conditions of contracts with clients (the depositary agreement, the agreement on correspondence relations) based on information on owners of securities as of 24:00 (on the Kiev time) day of date of accounting which is created according to:

entries on accounts in the securities serviced by depository institutions;

information provided to depository institutions by nominee holders who are serviced by these depository institutions and on which accounts in securities securities of such owners are considered, namely - information on owners of securities, and also information on details of the representative of the bondholder at meeting, code of securities of bond issue on which such representative, data on the e-mail address and number of the contact mobile phone of the bondholder, bondholder's representative at meeting for ensuring their participation in meeting of bondholders in the authorized electronic system according to the legislation (in case of creation of the list of the bondholders having the participation right in meeting of bondholders, or the list of bondholders which the notification on holding meeting of bondholders goes is appointed the bondholder and provisions of the relevant information by the owner to the nominee holder of bonds);

information provided by depositaries correspondents namely - information on owners of securities, and also information on details of the representative of the bondholder at meeting, code of securities of bond issue on which such representative, data on the e-mail address and number of the contact mobile phone of the bondholder, bondholder's representative at meeting for ensuring their participation in meeting of bondholders in the authorized electronic system according to the legislation is appointed the bondholder (in case of creation of the list of the bondholders having the participation right in meeting of bondholders, or the list of bondholders which the notification on holding meeting of bondholders, and provisions of the relevant information by the bondholder to depositary correspondent goes);

entries on the account in securities of the issuer as of 24:00 (on the Kiev time) day of date of accounting.".

With respect thereto paragraphs two - to consider the fifth respectively paragraphs the sixth - the ninth;

4) to add Item 8 after the paragraph of the eleventh with the paragraph the twelfth the following content:

"there is solution of the face responsible for holding meeting of bondholders, on holding meeting of bondholders;".

With respect thereto the twelfth to consider the paragraph the paragraph the thirteenth;

5) to add Item 11 with the paragraph of the following content:

"In case of creation of the list of the bondholders having the participation right in meeting of bondholders, or the list of bondholders which the notification on holding meeting of bondholders goes the accounting register also joins information on details of the representative of the bondholder at meeting, and also the e-mail address and number of the contact mobile phone of the bondholder, bondholder's representative at meeting for ensuring their participation in meeting of bondholders in the authorized electronic system according to the legislation (in case of inclusion by the bondholder of the relevant information in the questionnaire of the account in securities according to the procedure, provided by this Provision, or provisions of the relevant information by the nominee holder on which accounts in securities bonds of the corresponding release are considered).";

6) to add Item 12 after the paragraph of the fifth with the paragraph the sixth the following content:

"according to the order of person responsible for holding meeting of bondholders, in case of convocation of meeting of bondholders;".

With respect thereto paragraphs of the sixth - to consider the eighth respectively paragraphs the seventh - the ninth;

7) to add the paragraph one of Item 15 after words and figures "holding general meeting of the issuer with shareholders (shareholder) who, (which) in total are owners (owner) of 10 and more percent of voting shares of joint-stock company)" the words "or according to the legislation provides to the depositor services about the direction of notifications or other information through depositary system of Ukraine", after words "orders about providing the notification of shareholders on holding general meeting of joint-stock company," the words "notification on holding meeting of bondholders".

 

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