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

of March 13, 2012 No. 394

About approval of the Procedure for approval of acquisition by person of essential participation in the professional participant of the stock market or increase it in such a way that the specified person will own or control directly or indirectly 10, 25, 50 and 75 percent of the authorized capital of such participant or voting power of the acquired shares (shares) in its governing bodies

According to Item 37-3 of part two of article 7 of the Law of Ukraine "About state regulation of the security market in Ukraine", Articles 1, 9 Laws of Ukraine "About financial services and state regulation of the markets of financial services", the Laws of Ukraine "About economic societies", "About joint-stock companies", "About securities and the stock market", "About National depositary system and features of electronic turnover of securities in Ukraine", article 14 of the Law of Ukraine "About the prevention and counteraction of legalization (washing) of income gained in the criminal way or to terrorism financing" the National commission on securities and the stock market SOLVED:

1. Approve the Procedure for approval of intention of acquisition or increase-faced essential participation in the professional participant of the stock market who is applied.

2. And stock exchanges (O. Naumenko) to provide to department of regulation of activities of dealers in securities submission of this decision on state registration in the Ministry of Justice of Ukraine.

3. (Yu.Zhuly) to provide to department of external and internal communications publication of this decision according to the legislation.

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

5. Control over the implementation of this decision to assign to the member of the commission K. Krivenko.

Approved by the Decision of the National commission on securities and the stock market of Ukraine of March 13, 2012, No. 394

Procedure for approval of intention of acquisition or increase by person in essential participation in the professional participant of the stock market

I. General provisions

1. This Procedure establishes the procedure and conditions of receipt of approval of the National commission on securities and the stock market (further - the Commission) intentions of acquisition by person solely or together with other persons of essential participation in the professional participant of the stock market (except bank) or increases it in such a way that the specified person(s) (ут) will own or control directly or indirectly 10, 25, 50 and 75 percent of the authorized capital of such participant or voting power of the acquired shares (shares) in governing bodies of the professional participant of the stock market or irrespective of formal ownership (ут) will have possibility of implementation of considerable influence on management or activities of the professional participant of the stock market.

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

the owner of essential participation - the legal entity (the resident or the nonresident) or physical person (the resident or the nonresident) or group of persons which/which received/received essential participation in the professional participant of the stock market;

group of companies in relation to certain legal entity (group of companies) - group of companies which part is the certain legal entity consisting of mother company, its subsidiary companies, other legal entities in whom the mother company or its subsidiary companies have participation;

group of persons - two or more persons who intend to acquire jointly essential participation in the professional participant of the stock market or increase it in such a way that such persons will own or control directly or indirectly 10, 25, 50 and 75 percent of the authorized capital of such participant or voting power of the acquired shares (shares) in governing bodies of the professional participant of the stock market or irrespective of formal ownership will have possibility of implementation of considerable influence on management or activities of the professional participant of the stock market;

the applicant - person (the legal entity or physical person, resident or the nonresident) or group of persons which has (ют) intention to acquire or increase essential participation in the professional participant of the stock market also submitted the statement with the relevant documents for obtaining to them (them) written approval of the Commission of such intention;

considerable influence on management or activities of the legal entity - immediate and/or indirect possession by one person independently or together with other persons shares, share in the authorized capital or voting power according to shares, share in the authorized capital of the legal entity at the rate from 10 percent and more or possibility of implementation of such influence, independent of formal ownership, on management or activities of the legal entity;

essential participation irrespective of formal ownership - possibility of considerable influence on management or activities of the professional participant of the stock market irrespective of formal ownership directly or indirectly share in the authorized capital of the professional participant of the stock market;

the head of the legal entity - person performing function of sole executive body or the chairman of collegiate executive body of the legal entity;

the leading officials are the persons performing executive functions and persons who perform supervising functions;

chain of ownership of shares (shares) of the legal entity - the list of persons having participation in the legal entity which includes persons of the first and each following level of proficiency of shares (shares) of the legal entity;

intention of acquisition or increase in essential participation - intention of committing by person or transaction group of persons that will lead to acquisition or increase in essential participation of this person / persons in the professional participant of the stock market;

mediate essential participation - ownership in the professional participant of the stock market which comes if person or group of persons directly or indirectly owns share (shares) in the authorized capital of the legal entity - the owner of essential participation in structure of property of the professional participant of the stock market and/or shares (shares) in the authorized capital of legal entities - direct owners in structure of property of the professional participant of the stock market in such size which provides opportunity to control through this person (these persons) of 10 and more percent of the authorized capital of the professional participant of the stock market;

person who actually coordinates activities of the professional participant of the stock market - the physical person - the owner of essential participation or the head of the legal entity - the owner of essential participation, or other person who according to the corresponding transaction has powers on realization of the rights belonging to the owner of essential participation on management of activities of the professional participant of the stock market;

person who performs executive functions - the chairman and members of collegiate executive body, person performing powers of sole executive body or other physical person responsible for the management of the current activities of the legal entity and accountable on this matter to persons who perform supervising functions, in particular, regarding accomplishment by the legal entity and his specialists of internal regulations concerning customer service;

persons who perform supervising functions - the chairman and members of the supervisory board, other persons who have the powers on determination of strategy, the purposes and general activity of the legal entity supervising behind process of acceptance of management decisions and control this process;

direct essential participation - ownership independent or joint with other persons of shares (shares) in the amount of 10 and more percent of the authorized capital of the professional participant of the stock market;

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

the public company - public joint stock company or the foreign legal entity who is issuer of shares which are admitted to trading at least by one of the following stock exchanges:

New York Stock Exchange (NYSE);

Hong Kong Exchanges and Clearing;

the stock exchange entering into Nasdaq, Inc.;

stock exchange of the country entering the European Union;

the foreign stock exchange entering into World federation of the exchanges;

level of proficiency of shares (shares) of the legal entity - the relation concerning ownership of shares (shares) of the legal entity between such legal entity and his participants. If all members of the legal entity are physical persons, such legal entity has only one level of proficiency of shares (shares);

essential participation, joint with other persons, - ownership which comes if participation in the professional participant of the stock market in the amount of 10 and more percent of its authorized capital belongs to group of persons on the right of common property or totally belongs to group of persons which are:

1) associated persons;

2) the faces tied by the agreement and/or common economic interests, the relations of economic and/or organizational dependence influencing activities of the professional participant of the stock market;

3) other persons who jointly acquired essential participation in the professional participant of the stock market and/or declared community of such acquisition publicly and/or in the documents provided to the professional participant of the stock market or Commission;

trust - system of fiduciary relations in which one party, the founder(s) (guarantor(s)), provides to other party, the confided (managing director) (the physical/legal entity who will manage assets), authority to dispose or assets for benefit of the third party (the beneficial owner) in accordance with the terms of the agreement or other document processed according to the legislation of the country of its origin with creation or without creation of certain legal entity, fund, etc.;

participation - immediate, indirect possession by one person independently or together with other persons shares, share in the authorized capital of the legal entity;

fiduciary relations - the relations between two or more persons in case of which one person has fiducial debt in relation to other person (persons), namely obligation to act for the benefit of in the best way such person (persons).

The terms "resident" and "nonresident" are used in the values determined by the Tax code of Ukraine.

Other terms in this Procedure are used in the values determined by the Laws of Ukraine "About financial services and state regulation of the markets of financial services", "About securities and the stock market", "About state regulation of the security market in 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" and regulatory legal acts of the Commission.

3. Person or group of persons which has intention of acquisition or increase in essential participation, shall provide at least a month before acquisition of essential participation or its increase the statement and the relevant documents on receipt of written approval of the Commission of such intention of acquisition or increase in essential participation.

If any person, at the time of emergence of intention of acquisition of essential participation at it, irrespective of formal ownership in the professional participant of the stock market, has approval of the Commission on ownership of essential participation in such professional participant of the stock market, that approval by such person of intention of acquisition of essential participation irrespective of formal ownership is not required.

Person or group of persons shall (ы) approve intention of acquisition or increase in essential participation in the professional participant of the stock market irrespective of the fact which in the way such essential participation will be acquired or increase.

Person or group of persons who acquired or increased essential participation in the professional participant of the stock market in cases, stipulated in Item 9 these Sections, shall (ы) approve such purchase or increase or alienation of the share (shares) acquired without intention.

4. If any person has approval of the Commission on ownership of essential participation which amount constitutes at least 10 percent of the authorized capital of the professional participant of the stock market, and intends to acquire in addition shares (shares) of this participant in such a way that this acquisition will lead to increase in its essential participation, but at the same time will not equal or exceed respectively 25 percent of the authorized capital of the professional participant of the stock market, that approval of the Commission on such increase in the amount of essential participation is not required.

If any person has approval of the Commission on ownership of essential participation which amount constitutes at least 25 percent of the authorized capital of the professional participant of the stock market, and intends to acquire in addition shares (shares) of this participant in such a way that this acquisition will lead to increase in its essential participation, but at the same time will not equal or exceed 50 percent of the authorized capital of the professional participant, that approval of the Commission on such increase in the amount of essential participation is not required.

If any person has approval of the Commission on ownership of essential participation which amount constitutes at least 50 percent of the authorized capital of the professional participant of the stock market, and intends to acquire in addition shares (shares) of this participant in such a way that this acquisition will lead to increase in its essential participation, but at the same time will not equal or exceed respectively 75 percent of the authorized capital of the professional participant, that approval of the Commission on such increase in the amount of essential participation is not required.

If any person has approval of the Commission on ownership of essential participation in the amount of 75 or more percent of the authorized capital of the professional participant of the stock market, for further increase in essential participation approval of the Commission is not required.

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