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

of February 10, 2022 No. 114

About approval of Licensed conditions of implementation of professional activity in the capital markets - depository activity

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", the Law of Ukraine "About depositary system of Ukraine", the Law of Ukraine "About the capital markets and the organized goods markets" the National commission on securities and the stock market solved:

1. Approve Licensed conditions of implementation of professional activity in the capital markets - depository activity which are applied.

2. Declare invalid the decision of the National commission on securities and the stock market of May 21, 2013 No. 862 "About approval of Licensed conditions of implementation of professional activity in the stock market (security market) - depository activity and clearing activities", registered in the Ministry of Justice of Ukraine on June 06, 2013 for No. 897/23429.

3. The legal entities having licenses for implementation of professional activity in the capital markets - depository activity, shall:

bring the internal documents into accord with these Licensed conditions within six months after entry into force of this decision if other is not established by the standards of corporate management in professional participants of the capital markets and the organized goods markets established by NKTsBFR;

bring structure of property into accord with requirements of these Licensed conditions within six months after entry into force of this decision if in structure of property of such person there is foreign legal person(s) and/or physical person(s) - the foreigner(s) - within year.

Requirements of these Licensed conditions of rather seed capital are applied only to legal entities who intend to perform depository activity and submitted to NKTsBFR the application and the relevant documents for receipt of the license.

4. To department of methodology of regulation of professional participants of the security market () provide Kurochkin I.:

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.

5. This decision becomes effective from the date of its official publication, except paragraph two of item 4 of Chapter 1 of the Section II, second of the offer of the paragraph of the third subitem 4 of Item 1 of the Section III, the offer of the second subitem 12 of Item 6 and the second offer of Item 7 of the Section IV of these Licensed conditions which become effective from the date of entry into force of the procedure provided by the paragraph third parts of the seventeenth article 71 of the Law of Ukraine "About the capital markets and the organized goods markets".

6. 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: Chairman of Public service of financial monitoring of Ukraine

I.Cherkassky

Chairman of the Antimonopoly Committee of Ukraine

O. Peschanskaya

First Deputy Minister digital transformations of Ukraine

A. Vyskub

Approved by the Decision of the National commission on securities and the stock market of Ukraine of February 10, 2022 No. 114

Licensed conditions of implementation of professional activity in the capital markets - depository activity

I. General provisions

1. These Licensed conditions establish the requirements obligatory for accomplishment in case of receipt of the license for implementation of professional activity in the capital markets - depository activity (further - the license), when conducting such activities and feature of combination of such activities with separate types of professional activity in the capital markets.

2. In these Licensed conditions terms are used in such values:

continuous rendering services - provision of services without variation from requirements to rendering the services defined by internal documents of the licensee and/or its agreements with clients/depositors;

the separate division of the applicant/licensee - branch, other division of the legal entity which is located out of its location and performs everything or part of its functions on implementation of depository activity and/or separate type of professional activity in the capital markets (in case of combination of depository activity of depository institution with activities for trade in financial instruments), except specialized structural division;

the applicant - the legal entity created by the legislation of Ukraine which intends to perform depository activity also submits to NKTsBFR the application and the relevant documents for receipt of the license;

the leading officials are persons performing executive functions, and the faces performing supervising functions;

the head of the applicant/licensee - person performing function of sole executive body or the chairman of collegiate executive body of the applicant/licensee;

the licensee - the legal entity created by the legislation of Ukraine, having the license obtained in the procedure established by the legislation;

the mediated essential participation - ownership in the applicant/licensee which comes if person or group of persons directly or indirectly owns share (shares) in the authorized capital of one or several legal entities in structure of property of the legal entity of the applicant/licensee, in such size which provides opportunity to control through this person (these persons) of 10 and more percent of the authorized capital of the applicant/licensee;

persons who perform supervising functions - the chairman and members of the supervisory board (or other body responsible for implementation of supervision of the legal entity according to internal documents of the licensee), other persons who have powers on determination of strategy, the purposes and general activity of the legal entity watch process of acceptance of management decisions and control this process;

the room - the part of unobstructed capacity of the building limited to construction elements with possibility of entrance and exit which is used by the licensee (including its isolated and/or specialized structural divisions) when implementing depository activity;

the direct owner of the applicant/licensee - person who is the owner of share (shares) in the authorized capital of the applicant/licensee;

the public company is:

public joint stock company;

the foreign legal entity who is the issuer of the shares admitted to trading on at least one of the following controlled markets:

New York Stock Exchange (NYSE);

Hong Kong Exchanges and Clearing;

London Stock Exchange (LSE);

Japan Exchange Group;

the controlled markets entering into Nasdaq, Inc.;

the controlled markets of the country entering the European Union and Switzerland;

the certified specialist - physical person addressed to which the certificate of NKTsBFR on the right of making of actions which are directly connected with implementation of professional activity in the capital markets which effective period did not expire is issued;

the systemic risk - risk that event, action or number of events or actions can have the investigation considerable failures in work of person performing depository activity, and as a result - in work of real production sector, and also can do harm to large number of members of the capital markets;

the specialized structural division of the applicant/licensee - department, management, department, the sector which is integral part of internal organizational structure of the applicant/licensee or its separate division and has other location, than the licensee or its separate division;

length of service on executive positions - length of service as the leading official and/or as deputy of the leading official of the professional participant of the capital markets, and/or as the head and/or the deputy manager of separate, specialized structural and/or functional division of the professional participant of the capital markets, and/or as the head and/or the deputy manager in associations (associations) of persons which perform professional activity in the capital markets acquired the status of self-regulatory organization, and/or to positions of public service is not lower than category B in State commission on securities and the stock market and/or NKTsBFR, and/or to positions of the chairman or member of such commission;

length of service in the capital markets is general length of service of physical person:

on the leading positions / as specialist of the subject of the managing performing professional activity in the capital markets;

and/or on the leading positions / as specialist in associations (associations) of persons performing professional activity in the capital markets;

and/or to positions of public service in State commission on securities and the stock market and/or NKTsBFR and/or to positions of the chairman or member of such commission.

The terms "goodwill", "person who performs executive functions", "person performing managerial functions", "official channel of communication", "officials of the professional participant of the capital markets and organized goods markets", "original capital", "professional activity in the organized goods markets", "professional activity in the capital markets", "professional participants of the organized goods markets", "members of the capital markets" are used in the values determined by the Law of Ukraine "About the capital markets and the organized goods markets".

The terms "depository activity", "depositary organization", "depository activity of depository institution, activities for storage of assets of institutes of joint investment", "activities for storage of assets of the pension funds" are used in the values given in the Law of Ukraine "About depositary system of Ukraine".

The terms "essential participation", "controller", "control" are used in the values determined by the Law of Ukraine "About financial services and state regulation of the markets of financial services".

The terms "associated person", "key participant in structure of property of the legal entity", "chain of ownership of corporate laws of the legal entity", "structure of property of the legal entity" are used in the values determined by the Law of Ukraine "About banks and banking activity".

The terms "final beneficial owner" and "trust" are used in understanding of the Law of Ukraine "About prevention and counteraction of legalization (washing) of income gained in the criminal way, to financing of terrorism and financing of distribution of weapons of mass destruction".

The term "force majeur circumstances" is used in the value determined by the Law of Ukraine "About Chambers of Commerce and Industry in Ukraine".

The terms "licensing", "location of the legal entity" are used in the value given according to the procedure of issue, suspension of action and cancellation of the license for implementation of professional activity on the capital markets, approved by the solution of NKTsBFR of October 21, 2021 No. 982, registered in the Ministry of Justice of Ukraine on December 03, 2021 for No. 1563/37185.

The terms "risk profile", "functional division of the professional participant" are used in the value determined in standards of corporate management in professional participants of the capital markets and the organized goods markets established by NKTsBFR (further - Standards).

Other terms which are used in these licensed conditions are used in the values determined by the laws of Ukraine and regulatory legal acts NKTsBFR.

3. Shall correspond to the requirements established by these Licensed conditions:

the applicant and owners of essential participation in the applicant, including final beneficial owners of the applicant, as of date of filing of application about licensing and the documents determined by these Licensed conditions;

the licensee, owners of essential participation in the licensee, including final beneficial owners of the licensee, officials of the licensee during the whole time when they keep the status or have essential participation in the licensee.

The licensee shall fulfill the requirements established by these licensed conditions during all term of implementation of depository activity.

4. According to these Licensed conditions of NKTsBFR can grant licenses for implementation of such types of activity:

depository activity of depository institution;

activities for storage of assets of institutes of joint investment;

activities for storage of assets of the pension funds.

5. In case of combination of depository activity of depository institution with separate type of professional activity in the capital markets the applicant/licensee shall carry out and meet at the same time all requirements established by licensed conditions which are applied to type of activity which are combined by the applicant/licensee.

Depository activity of depository institution can be combined with activities for storage of assets of institutes of joint investment and storage of assets of the pension funds.

Depository activity of depository institution can be combined with activities for trade in financial instruments and/or banking activity on condition of implementation of such types of activity by separate structural divisions of depository institution according to the procedure, the established NKTsBFR.

II. Requirements to which there shall correspond applicant for receipt of the license and the licensee when implementing depository activity

1. General requirements

1. The licensee when implementing depository activity shall observe requirements of the legislation of Ukraine and internal documents of the licensee.

2. Legal entities, including the banks registered in the form of joint-stock company or limited liability company can obtain the license.

The legal entity who answers at least one of the following criteria cannot be person performing depository activity:

sanctions according to the Law of Ukraine "About sanctions" are applied to person;

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