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

of August 6, 2013 No. 1412

About approval of Requirements to the service agreement of the account in securities

According to Item 38 parts two of Article 7, Item 13 of article 8 of the Law of Ukraine "About state regulation of the security market in Ukraine", part seven of article 5 of the Law of Ukraine "About depositary system of Ukraine" (further - the Law) and for the purpose of ensuring protection of the rights of investors and observance by members of the security market of requirements of acts of the legislation, the National commission on securities and the stock market SOLVED:

1. Approve Requirements to the service agreement of the account in securities (further - Requirements) which are attached.

2. To depository institutions which to the introduction to action of this decision carried out professional activity in the stock market - depository activity, namely depository activity of the keeper of securities, for year from the date of entry into force of the Law to perform actions concerning reduction of the agreements on opening of the account in securities signed with depositors before entry into force of the Law, in compliance with Requirements (except the case provided by the offer the second this Item). For implementation of payment under transactions concerning securities with respect for the principle "delivery of securities against payment" according to requirements of the Law to depository institutions to perform actions concerning reduction of the agreements on opening of the account in securities signed with depositors to the introduction in action of this decision in compliance with Requirements before day of entry into force of the Law.

The depository institution in case of non-execution by the depositor of necessary actions for reduction of the agreement on opening of the account in securities concluded before entry into force of the Law in compliance with Requirements, can refuse to the depositor carrying out depository operations (except the depository operations connected with transfer of securities into own account opened in other depository institution (with the subsequent account termination), account termination in securities), provision of services if it is provided by the contract with the depositor and/or internal documents of depository institution.

3. To provide to department of regulation of depository and settlement and clearing activity (I. Kurochkin) submission of this decision on state registration in the Ministry of Justice of Ukraine.

4. To provide to management of information technologies, external and internal communications (A.Zaik):

publication of this decision in the official printing publication of the National commission on securities and the stock market;

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

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

6. Control over the implementation of this decision to assign to the member of the commission O. Tarasenko.

Approved by the Decision of the National commission on securities and the stock market of Ukraine of August 6, 2013 No. 1412

Requirements to the service agreement of the account in securities

І. General provisions

1. These Requirements extend to owners, including the state / territorial (territorial) society (communities) which management of securities (which) the subject of management of objects of the state property / utility property determined according to the legislation performs (further - the subject of management), co-owners of securities, notaries on whose deposit securities are introduced (further - the depositor), and depository institutions in case of the conclusion of the service agreement of the account in securities (further - the Agreement), modification of it.

In these Requirements the term "consumer of financial services" is used in the value given in the Law of Ukraine "About financial services and finance companies", the term "final beneficial owner" - in the value given in 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", terms "the accountable account", "the status of the tax residence", the controlling person - in the values given in the Tax code of Ukraine.

2. The agreement is signed between the depositor and depository institution according to which the depository institution in the procedure established by the National commission on securities and the stock market opens the account in securities for the depositor and keeps on it account of securities which belong to the owner, co-owners of securities, in case of transfer of securities on the deposit of the notary - to the corresponding creditor, and also accounting of the rights of specified persons to securities which are considered on certain account in securities, and restrictions of such rights.

Concerning the account in securities which opens addressed to the state / territorial (territorial) society (societies) the Agreement is signed between subject of management which acquires on this account the status managing the account in securities, and the depository institution elected by it. For acquisition in depository institution on the account in securities of the state of the status of the management managing the account in securities other subject such subject on behalf of the state shall sign with depository institution the additional agreement to the Agreement based on which this account was opened, with indication of in it all terms of the contract, except requirements concerning opening of the account in securities.

3. The agreement shall be signed exclusively in writing, be stated in the form of the single document signed by the parties in paper form or in the form of the electronic document according to the requirements determined by the Law of Ukraine "About electronic documents and electronic document management".

The agreement fastening can be determined by seals (in case of their use) by the written arrangement of the parties.

In the consent of the depositor the Agreement can be signed by accession of the depositor to the agreement offered by depository institution in general according to the Civil code of Ukraine and the Economic code of Ukraine accounting of the requirements established by part five of article 9 of the Law of Ukraine "About financial services and finance companies". If the conclusion of the Agreement happens by accession of the depositor to the agreement offered by depository institution, the text of such Agreement and change in it shall be promulgated on the website of depository institution. In case of the conclusion of the Agreement by accession the depository institution shall provide informing the depositor on all conditions of such agreement, on procedure for cancellation of the agreement, and also on all changes in it. In case of the conclusion of the Agreement the depository institution has no right to limit the right of the depositor to the conclusion of the Contract with depository institution in the form of the single document determined by this Item.

The contract between depository institution (which at the same time is bank and/or investment firm) and the depositor if such person already is client of depository institution and it was identified, verified during establishment of business relations on provision of banking services and/or services in trade in financial instruments, it can be concluded using specialized software product, including the mobile electronic device of the depositor placed in the hardware-software circle which performs function of means of identification and is used in systems of remote servicing of depositors and corresponds to the regulatory legal act of the National commission on securities and the stock market which determines requirements to software products which are used in the capital markets, and also it is included in the list of software products in the capital markets, which is conducted by the National commission on securities and the stock market according to the regulatory legal act of the National commission on securities and the stock market concerning procedure for accounting of software products in the capital markets.

4. The agreement shall establish conditions concerning procedure for disclosure of information which according to the law belongs to information with limited access (information which is professional secrecy in the capital markets and the organized goods markets).

5. Questions which arise during the conclusion of accomplishment, changes, agreement cancelation and are not settled by it, are regulated by the Civil code of Ukraine, the Economic code of Ukraine, the Law of Ukraine "About depositary system of Ukraine", these Requirements and other regulatory legal acts of the National commission on securities and the stock market.

6. The conclusion of the Service agreement of the account in securities of the depositor does not involve transition of the rights to securities and is right on securities to depository institution.

7. The agreement shall contain condition that money which according to the legislation arrives on the current account of depository institution for the purpose of their further transfer to the depositor are not property of depository institution.

8. It is forbidden to include in the Agreement of provision which provide:

collection from the depositor of separate payment for work and services which are not independent and are intended for ensuring proper service quality, liquidation of the technical damages or accidents which arose not because of the depositor;

obtaining and/or payment by the depositor of services, not stipulated by the legislation and/or which it did not order;

complication of procedure for presentation of claims and claims from the depositor;

conditions which put agreement parties in unequal position limit or worsen the rights of one of the parties in comparison with determined by the legislation and these Requirements;

other provisions which contradict the legislation.

9. The requirement to the Agreement determined by the paragraph the eleventh the subitem 1 of item 4 of the Section II of these Requirements is not obligatory for inclusion in terms of the contract in case of availability of the corresponding norm in domestic situation about the depository activity of depository institution determining procedure for provision of financial services.

10. By agreement of the parties the Agreement may contain references that the list and cost of services of depository institution, procedure for their change and payment, procedure for consideration of disputes and responsibility of the parties for non-execution or improper execution of terms of the contract, procedure of payments in case of cancellation of the Agreement are determined by the parties taking into account requirements of the legislation in other agreements signed between them.

In that case the requirements to the Agreement specified in Items 6, of the 8th Section II of these Requirements are not applied.

11. In case of ambiguous and indistinct provisions of the agreement (including concerning the rights and obligations of the Parties) their interpretation is performed for benefit of the depositor.

12. Any offers of the depository institution to the depositor about change of essential terms of the contract including concluded by accession of the depositor - the consumer of financial services to the agreement offered by depository institution, shall be performed in the terms established by the Agreement, way of the direction depository institution to the notification depositor by method which allows to establish date of sending such notification. Terms of the contract about provision to the depositor of offers on change of essential terms of the contract otherwise, than that which allows to establish date of sending the notification to such depositor without its written consent are insignificant.

The terms of the contract limiting the rights of the depositor in comparison with the rights established by the law are insignificant.

ІІ. Requirements to the Agreement

1. The agreement shall contain:

date and detention center;

Agreement details of the parties;

subject of the agreement;

rights and obligations of the Parties;

rates for services and procedure of payments for the provided services;

responsibility of the parties;

procedure for consideration of disputes which can arise between the parties in the course of accomplishment, change or agreement cancelation;

duration of the agreement, procedure for modification, condition of agreement cancelation and termination of its action;

The paragraph is excluded according to the Decision of the National commission on securities and the stock market of Ukraine of 24.06.2014 No. 807

2. Agreement parties are the depositor and depository institution.

Details of the parties of the Agreement shall contain full name of legal entities and/or surname, name and middle name of physical person (for nonresidents in case of availability), the location (place of residence) of the parties, code on EGRPOU (number of registration of the legal entity in the country of its location for the legal entity - the nonresident) and bank details, series (in the presence), number (in the presence), date of issue to depository institution of the license for carrying out depository activity of depository institution and/or acceptance date and number of the decision of the National commission on securities and the stock market about issue of the corresponding license, data on contact telephone numbers and e-mail addresses, information on the document which confirms the power of the person signing the Agreement.

In the Agreement which is signed for corporate investment fund full name and the location, code on EGRPOU of fund and company for asset management of this fund and contact persons of fund shall be specified.

In the Agreement which is signed for mutual investment fund full name and the location, identification code on EGRPOU of the company on asset management of this fund, and also details of mutual investment fund - full name of fund, registration code of fund for EGRISI shall be specified.

In the Agreement which is signed addressed to the state / territorial (territorial) society (societies) shall be specified the name of the depositor "state" / "territorial society" (with indication of the name of administrative and territorial unit) and the name, the location and code on EGRPOU of the subject of management which initiates the conclusion of the Agreement (the additional agreement). If subject of management is the Cabinet of Ministers of Ukraine or other bodies determined by the Law of Ukraine "About management of objects of state-owned property" which are not legal entities, the code on EGRPOU is not put down.

3. The subject of the agreement is provision of services by depository institution concerning opening and servicing of the account in securities, carrying out depository operations by depository institution on accounts in securities based on orders of the depositor (the subject of management) and in a different way, stipulated by the legislation, and also provision of other services by depository institution in the course of carrying out depository activity according to the Regulations on carrying out 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 (further - the Provision).

4. Rights and obligations of the Parties:

1) the Agreement shall provide such obligations of depository institution:

open for the depositor the account in securities during the term established by the Agreement after submission of documents by the depositor, stipulated by the legislation Ukraine for opening of the account in securities;

inform the depositor of internal documents (excerpts from internal documents) of depository institution which regulate the relations of the depositor and depository institution concerning procedure for accomplishment of orders of the depositor, receipt of bank statements in securities of the depositor and about transactions with securities, information certificates of incomplete transactions with securities on accounts in securities of this depositor, other information references which can be provided in the Agreement, and further acquaint the depositor with changes to these documents by the method defined by the Agreement;

perform accounting of securities which belong to the depositor, on the account in securities;

perform accounting of the rights of the depositor to securities which are considered on its account in securities, and restriction of such rights, including the isolated accounting of the rights to securities which are reserved for implementation/ensuring payment under transactions concerning securities, calculations for which are perfromed/carried out by person performing clearing activities;

perform servicing of turnover of securities on accounts in securities of depositors by carrying out depository operations on the account in securities according to the procedure and the terms determined by the legislation and internal documents of depository institution;

constitute and issue the account statement in securities of the depositor and the statement about transactions with securities periodically in time, provided by the Agreement, or at the request of the depositor and the method defined by the Agreement. Concerning the account in securities which opens addressed to the state / territorial (territorial) society (societies), at the request of the subject of management and quarterly without its request to prepare and provide to the subject of management within its powers the bank statement in securities of the depositor without collection of payment for preparation and provision of such statement;

provide to the depositor information references (about incomplete transactions with securities on accounts in securities of this depositor; other information references if they are provided in the Agreement) periodically, in time, provided by the Agreement, and the method defined by the Agreement;

inform the depositor on carrying out the adjusting transaction in case of identification of the technical mistake made in case of accomplishment of depository operation in accordance with the terms of the Agreement;

not make action and not provide information concerning securities which belong to the depositor, or information concerning the depositor without the corresponding orders of the depositor or the depositor managing the account in securities, except cases, stipulated by the legislation and this Agreement;

provide to Central Securities Depository (further - the Central depositary) information concerning the depositor, investment firm to which the depositor confers powers on transactions on securities for the benefit of the depositor, and the securities belonging to the depositor which is necessary for implementation/ensuring payment under transactions concerning securities, calculations for which are perfromed/carried out by person performing clearing activities for the purpose of further provision of such information to person performing clearing activities for its display in internal system of accounting of such person;

carry out on the account in securities of the depositor which was registered by person performing clearing activities, administrative transactions which are determined by Regulations of the Central depositary as such which can result in impossibility of implementation of calculations in securities by results of transactions, only after obtaining from the Central depositary of information on entering into internal system of accounting of person performing clearing activities, corresponding changes concerning such depositor;

not perform depository operations on the account in securities in case of identification of violations of requirements of representation, filling of the order and information security which is necessary for implementation of these transactions by depository institution or if accomplishment of this order contradicts the legislation;

within five working days from start date depository institution of the procedure of the termination of carrying out professional activity by it in the capital markets - depository activity of depository institution according to requirements of the regulatory legal act concerning the termination of depository activity of depository institution to notify the depositor according to the procedure,
provided by the Agreement, concerning need of account termination for securities within 60 calendar days from start date of this procedure;

close the account in securities according to the procedure, provided by the Agreement and the legislation;

direct the message or other information which goes through depositary system of Ukraine according to requirements of the legislation, according to the procedure, established by internal documents of depository institution, according to the regulatory legal act of the National commission on securities and the stock market concerning procedure for the direction of notifications and information through depositary system of Ukraine.

open to the depositor information on conditions and procedure for activities of depository institution taking into account requirements, the stipulated in Clause 7 Laws of Ukraine "About financial services and finance companies";

2) the Agreement shall provide such obligations of the depositor:

appoint the manager of the account in securities;

observe requirements of internal documents of depository institution which regulate the relations of the depositor and depository institution;

pay services of depository institution in accordance with the terms and the terms provided by the Agreement, and the rates established by depository institution;

provide to depository institution information and documents which are stipulated by the legislation Ukraine and internal documents of depository institution as obligatory for representation or are necessary for it for accomplishment of actions according to requirements of the legislation of Ukraine and terms of the contract;

provide on request of depository institution information and documents on the status of the tax residence concerning itself and the status of the tax residence of the final beneficial owners (for legal entities) controlling faces, the other information and/or documents necessary for forming and submission by depository institution of the reporting under accountable accounts according to provisions of the legislation on exchange of information for the tax purposes which consent to be bound is provided by the Verkhovna Rada of Ukraine, or the interdepartmental agreements signed on their basis, including the explanations and information concerning the suspicion which is available for depository institution reasonable, documentary confirmed that the account in securities belongs to accountable;

during the term established by the Agreement from the date of entering of corresponding changes into the details or documents given for opening bills in securities to provide information on these changes to depository institution, including documents and other information about changes of the corresponding status of the tax residence concerning itself and the status of the tax residence of the final beneficial owners (for legal entities) controlling the faces necessary for forming and submission by depository institution of the reporting under accountable accounts according to provisions of the legislation on exchange of information for the tax purposes which consent to be bound is provided by the Verkhovna Rada of Ukraine, or the interdepartmental agreements signed on their basis, from the date of approach of corresponding change, according to the procedure, established by the legislation and internal documents of depository institution;

within 60 calendar days from start date depository institution of the procedure of the termination of carrying out professional activity by it in the capital markets - depository activity of depository institution according to requirements of the regulatory legal act concerning the termination of depository activity of depository institution to perform all necessary actions concerning account termination in securities;

provide to depository institution for implementation of calculations for security transactions with respect for the principle "delivery of securities against payment" information on investment firm which the depositor confers powers on transactions with securities for the benefit of the depositor, for the purpose of further provision of such information to the Central depositary and person performing clearing activities for its display in internal system of accounting of such person;

3) in the Agreement such rights of depository institution can be specified, in particular:

provide written refusal in issue of the account statement in securities in case of discrepancy of registration of request to requirements of the Provision;

provide to the depositor additional services, in particular, on realization of the rights on securities;

in case of the beginning depository institution of the procedure of the termination of carrying out professional activity by it in the capital markets - depository activity of depository institution according to requirements of the regulatory legal act concerning the termination of depository activity of depository institution to carry out only those orders of the depositor which accomplishment is not forbidden by such regulatory legal act;

close the account in securities of the depositor on which there are no rights to securities, without order of the depositor about account termination in securities and to terminate the Agreement unilaterally in case of the termination of implementation of activities of depository institution by it according to requirements of the regulatory legal act concerning the termination of depository activity of depository institution;

suspend servicing of the account in securities in case of violation by the this Agreement depositor concerning fee of depository institution;

4) in the Agreement such rights of the depositor can be specified, in particular:

appoint managing (managing) the account in securities;

provide to depository institution information only concerning one - investment firm to which the depositor confers powers on transactions concerning securities for the benefit of the depositor which are carried out with ensuring implementation of payment under transactions concerning securities, calculations for which are perfromed/provided by person performing clearing activities;

receive from depository institution in accordance with the terms of the Agreement information concerning securities, the rights to securities which are considered on the account in securities;

provide to depository institution the order and other documents for the direction of the message or other information directed through depositary system according to requirements of the legislation, according to the procedure, established by internal documents of depository institution, according to the regulatory legal act of the National commission on securities and the stock market concerning procedure for the direction of notifications and information through depositary system of Ukraine;

obtain information on conditions and procedure for activities of depository institution taking into account requirements, the stipulated in Clause 7 Laws of Ukraine "About financial services and finance companies".

5) other rights and obligations of the Parties which do not contradict these Requirements and the legislation on depositary system can be established by the Agreement;

6) terms of the contract shall not deprive of the depositor of the rights, limit in the rights, stipulated by the legislation Ukraine.

5. The agreement shall contain conditions concerning payment procedure of income gained by the depositor by results of the performed corporate operations of the issuer.

6. The agreement shall contain list and cost of services of depository institution or specifying on the fact that the depositor agrees with the rates established by depository institution for date of the conclusion of the Agreement.

The agreement shall contain terms and method of the notice of the depositor depository institution about changes to rates for services of depository institution.

Payment terms for provision of services shall be disaggregated by types of payments for each type of service which are charged to the depositor for the received services.

The procedure, terms and payment method of services are specified:

duration of settlement period of provision of services;

conditions, frequency and procedure for provision to the depositor of accounts and disaggregations of the amount added for payment for the provided services (separately on each type of service);

procedure of payments in case of cancellation of the Agreement.

7. The agreement shall establish:

exchange form between the depositor and depository institution orders, messages, information which are provided in connection with accomplishment by agreement parties;

method of confirmation of reliability of the signature on the order of the depositor.

8. In the Agreement are determined responsibility of the parties for failure to carry out or inadequate accomplishment of terms of the contract and procedure for consideration of disputes (conditions under which the parties are exempted from liability, and also cautions concerning procedure for resolution of disputes which can arise between the parties in the course of agreement performance are determined, in particular).

Responsibility of the depositor and depository institution is determined in the Agreement according to the law.

In the Agreement it shall be specified that failure to provide by the depositor within 15 calendar days from the date of receipt of request of depository institution of required information and/or documents or provision of information and/or documents, do not confute reasonable suspicion of depository institution, or provision by the depositor of unreliable information for establishment of its accountability is the basis for refusal to such depositor in accomplishment of orders about carrying out transactions on its account in securities according to the legislation and internal documents of depository institution.

9. In the Agreement the duration of the agreement, procedure for change, condition of agreement cancelation and termination of its action, procedure for account termination in securities shall be specified.

Absence in accounting of securities, rights to securities shall be the compulsory provision of account termination in securities.

10. The agreement shall contain confirmation of accomplishment by depository institution of the obligations established by part five of article 7 of the Law of Ukraine "About financial services and finance companies".

11. The agreement shall contain information that securities, the rights to which are considered by depository institution, are stored according to competence by the Central depositary, the National Bank of Ukraine according to the Law of Ukraine "About depositary system of Ukraine".

12. In case of the conclusion of the Agreement each of the parties shall provide to other party on demand the copies of documents certified in accordance with the established procedure which confirm legal status, obligatory details and powers of persons signing the Agreement.

                                                                            

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