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

of September 30, 2014 No. 1288

About approval of Changes to Licensed conditions of implementation of professional activity in the stock market (security market) - activities for asset management of institutional investors (activities for asset management)

According to Item 13 of article 8 of the Law of Ukraine "About state regulation of the security market in Ukraine", to the Law of Ukraine "About institutes of joint investment" the National commission on securities and the stock market SOLVED:

1. Approve Changes in Licensed conditions of implementation of professional activity in the stock market (security market) - activities for asset management of institutional investors (activities for asset management), No. approved by the decision of the National commission on securities and the stock market of July 23, 2013 1281, registered in the Ministry of Justice of Ukraine on September 12, 2013 for No. 1576/24108, which are applied.

2. To provide to department of general investment and regulation of activities of institutional investors (A. Simonenko) submission of this decision on state registration in the Ministry of Justice of Ukraine.

3. And clerical works (A.Zaik) to provide to management of information technologies promulgation of this decision on the official website of the National commission on securities and the stock market.

4. (A. Zbarazhskaya) to provide to management of internal audit and communications publication of this decision in the official printing publication 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 National commission on securities and the stock market A. Tarasenko.

 

The minutes of the Commission of September 30, 2014 No. 48

Approved by the Decision of the National commission on securities and the stock market of Ukraine of September 30, 2014 No. 1288

Changes to Licensed conditions of implementation of professional activity in the stock market (security market) - activities for asset management of institutional investors (activities for asset management)

1. To state Item 11 of the Section I in the following edition:

"11. In case of the bases for renewal of the license the licensee shall renew the license according to these Licensed conditions.

Effective period of the renewed license (the copy of the license) cannot exceed the effective period (in the presence of the corresponding term in the license) specified in the license that is renewed.

In case of filing of application and the relevant documents it affects renewal of the license before date of issue of the new license which is specified on the form of the license. The form of the license, is renewed, nullified.".

2. In the Section II:

1) in Chapter 1:

in Item 2:

to state the paragraph of the seventh in the following edition:

"Structural division or the certain official for carrying out internal audit (control) which is performed according to requirements of the Regulations on features of the organization and carrying out internal audit (control) in the financial institutions performing professional activity in the stock market, No. approved by the decision of the Commission of July 19, 2012 996, registered in the Ministry of Justice of Ukraine on September 20, 2012 for No. 1628/21940 (in edition of the decision of the Commission of April 29, 2014 No. 577).";

to exclude the paragraph of the eighth;

in Item 8:

in paragraph four "temporary" to exclude the word;

the fifth to state the paragraph in the following edition:

"The participant (shareholder) with essential participation - the physical person and persons through whom the mediated control of the legal entity, members of executive body and/or the supervisory board of the owner of the applicant with essential participation will be exercised; the applicant's head (or the acting as the head of the legal entity who exercises asset management of institutional investors) and members of executive body of the applicant (in case of creation of collegiate executive body), the chief accountant (person to who conducting financial accounting) the applicant is assigned, the head of Service of internal audit (control) (in case of creation of separate structural division) or the internal auditor (controller) (in case of appointment of the certain official) shall have goodwill in the last two years which meets the following requirements:";

to add the paragraph of the eighth after the word "investments" with the words "regarding rejection (illegal acceptance) of the decision on liquidation";

2) in Chapter 2:

in Item 1:

in subitem 3:

the paragraph one before the word "photocopies" to add with the words "for residents-";

add the subitem after paragraph one with the new paragraph the second the following content:

"For nonresidents - photocopy of the national passport or document which replaces it.".

With respect thereto to consider paragraph two the paragraph third;

to add the subitem 7 after the word of "(licensee)" with words ", the legal entity who is executive body (in the presence) of the owner with essential participation at the applicant";

to add the subitem 9 after words of "chief accountant" with words "(faces to which conducting financial accounting is assigned)";

to "form" to add the subitem 12 after the word with the words "with indication of signature date of such reference";

add subitem 15 with words "(the specified document is not filed if conditions of such protection are provided by the relevant document on the property right or uses of the non-residential premise)";

in subitem 23 of the word of "the company on asset management" to replace with the word of "applicant";

in paragraph one of item 4 of the word of "the company on asset management" to replace with the word of "applicant";

state Item 5 in the following edition:

"5. All documents provided according to these Licensed conditions shall be drawn up according to Licensed conditions and appendices to them.

Besides, documents which are provided according to appendices to these Licensed conditions in writing are provided also electronically by means of the automated system posted on the official site of the Commission.

Documents (their copy) which shall be certified by seal (seals) need such certificate in the presence of the corresponding seal (seals).

In the documents having more than one leaf, all sheets shall be numbered, stitched and certified in accordance with the established procedure.";

3) in Chapter 3:

in paragraph eight of Item 1 of the word "and working schedule" shall be replaced with words ", the working schedule, and also stay term on the new location";

add item 4 with the new paragraph of the following content:

"The licensee shall provide documents and other information upon the demand of authorized persons of the Commission in the terms established by requests.";

in Item 5:

state paragraph two in the following edition:

"Notarized copies of changes in the charter (new edition) which are registered according to the legislation (within fifteen working days from registration date of corresponding changes according to the legislation), and in case of transformation to joint-stock company - from registration date of the corresponding share issue of the society created by transformation. In case of modification, connected with increase in the authorized capital, - the copy (copies) of the payment document(s) that confirms (ют) payment of the authorized capital (except case of increase in the authorized capital by profit, reinvestment of dividends) (within fifteen working days from the date of implementation of such payment).";

to add the paragraph of "chief accountant", the eighth after words, with words "(faces to which conducting financial accounting is assigned)";

the thirteenth to replace the paragraph with two new paragraphs of the following content:

"In case of dismissal of the head of the licensee the body given according to the legislation authority to destination to the head shall appoint the new head or the acting as the head of the licensee no later than three working days from the date of dismissal of the head of the licensee. Such person shall meet the requirements established by these Licensed conditions for the head.

In case of temporary absence of the head of the licensee (leave, business trip, temporary disability) person who is temporarily fulfilling its duties shall start accomplishment of obligations of the head of the licensee from the first day of its absence. At the same time person is designated from among the certified specialists of the licensee.";

in Item 11 of the word "The Company on Asset Management" to replace with the word "Licensee".

3. In Item 1 of Chapter 2 of the Section III:

add Item after the word "gives" the words "or sends to general department of the Commission by mail (registered mail)";

exclude the words "in structural division of the Commission which considers the documents submitted on receipt of the license".

4. Third Item 1 of Chapter 2 of the Section IV after the word "market" to add the paragraph with words ", with indication of date of its signing".

5. In the Section V:

Items 2, 3 to state 1) in the following edition:

"2. If during the term of consideration by the Commission of the statement for licensing and the relevant documents the applicant had changes in any information which were provided in these documents, then it shall within five working days from the date of approach of these changes report about them in the Commission.

In this case the decision on licensing to the applicant is made by the Commission taking into account changes which are provided by the applicant during consideration of the relevant documents.

3. The bases for return to the applicant of the statement for licensing and the relevant documents without consideration are:

signing of the statement by person who does not have on it powers;

document creation, enclosed to the application, with violation of requirements of Items 3-5 of Chapter 2 of the Section II of these Licensed conditions;

provision of the incomplete list of the documents enclosed to the application and/or failure to provide electronic form that is provided by means of the automated system posted on the official website of the Commission according to these Licensed conditions;

availability in the Commission for date of filing of application about licensing or during the consideration of the judgment which took legal effect, prohibiting licensing to the applicant and/or the resolution on opening of enforcement proceeding on accomplishment of the decision;

lack of information about the applicant in the Unified State Register of Legal Entities and physical persons - entrepreneurs or availability of data on finding of the legal entity in termination condition by liquidation or about state registration of its termination.";

2) paragraph one of item 4 after the word "specifying" to add with words of "the exhaustive list";

Item 7 to state 3) in the following edition:

"7. The written notice of decision making of issue or refusal in licensing signed by the head of the structural unit of the Commission performs consideration of the application about licensing and the relevant documents (with application of a copy of the relevant decision), send (issue) to the applicant within five working days from acceptance date of the relevant decision.";

Item 10 to exclude 4).

With respect thereto to consider Items 11-14 respectively Items 10-13;

Shall be replaced with words 5) in Item 10 of the word of "one working day from date of issue" "three working days after decision making about issue".

6. In the Section VI:

1) in Item 1:

in paragraph one shall be replaced with words the word of "Commission" "to general department of the Commission or to direct by mail (registered mail)";

"market" to add the subitem 4 after the word with the words "with indication of date of its signing";

to exclude paragraph two of subitem 7.

With respect thereto third to consider the paragraph the paragraph the second;

Item 3 to state 2) in the following edition:

"3. The written notice of decision making by the Commission of issue or of refusal in issue of the copy of the license signed by the head of the structural unit of the Commission performs consideration of the application about receipt of the copy of the license and the relevant documents (with application of a copy of the relevant decision), send (issue) to the applicant within five working days from acceptance date of the relevant decision.";

Item 5 to add 3) with the new paragraph of the following content:

"Provision of the incomplete list of documents, the stipulated in Item 1 this Section, and/or failure to provide electronic form, is provided by means of the automated system posted on the official site of the Commission.";

The paragraph of the seventh of Item 9 after the word "market" to add 4) with the words "with indication of date of its signing";

Item 11 to state 5) in the following edition:

"11. The bases for return to the applicant of the statement for changes concerning the name and/or locations of separate division and the relevant documents without consideration are:

signing of the statement by person who does not have on it powers;

provision of the incomplete list of documents, stipulated in Item 9 these Sections, and/or failure to provide electronic form, is provided by means of the automated system posted on the official site of the Commission;

document creation with violation of the requirements established by Items 3, of the 5th Chapter 2 of the Section II of these Licensed conditions;

discrepancy of the room in the new location of separate division of the licensee to the requirements established for the isolated structural division by these Licensed conditions.";

6) paragraph one of Item 12 after the word "specifying" to add with words of "the exhaustive list".

7. In the Section VII:

1) in Item 1:

in paragraph one shall be replaced with words the word of "Commission" "to general department of the Commission or to direct by mail (registered mail)";

to state the paragraph of the eighth in the following edition:

"Moves the licensee in case of change of its location if in the document confirming the property right or uses of the above-stated room there are no conditions of implementation of such protection;";

the ninth after the word "market" to add the paragraph with words ", with indication of date of its signing";

Item 3 to state 2) in the following edition:

"3. The bases for return to the applicant of the statement for renewal of the license (the copy of the license) and the relevant documents without consideration are:

signing of the statement by person who does not have on it powers;

provision of the incomplete list of documents and/or failure to provide electronic form, is provided by means of the automated system posted on the official website of the Commission, provided by these Licensed conditions;

document creation with violation of the requirements established by Items 3-5 of Chapter 2 of the Section II of these Licensed conditions;

availability in body of licensing for date of filing of application about renewal of the license or during the consideration of the judgment which took legal effect, prohibiting renewal of the license it to the licensee and/or the resolution on opening of enforcement proceeding on accomplishment of the decision;

discrepancy of the room in the new location of the licensee to the requirements established by the Commission for implementation of professional activity - activities for asset management of institutional investors (activities for asset management).";

3) paragraph one of item 4 after the word "specifying" to add with words of "the exhaustive list";

Item 8 to state 4) in the following edition:

"8. The message on the made decision on licensing in connection with its renewal and recognition of the invalid license (the copy of the license) which was renewed, signed by the head of the structural unit of the Commission performs consideration of the application about renewal of the license (the copy of the license) and the relevant documents, send (issue) to the applicant in writing within five working days from decision date.";

Shall be replaced with words 5) in Item 10 of the word of "one working day" "three working days".

8. In the Section VIII:

In paragraph one of Item 2 of the word "file in body of licensing petition" shall be replaced with words 1) "give to general department of the Commission or direct by mail (registered mail) the application";

Item 3 to state 2) in the following edition:

"3. The bases for leaving of the statement for issue of the duplicate of the license without consideration are:

provision of incomplete document package, stipulated in Item 2 presents of the Section;

document creation with violation of requirements of Item 2 of this Section.".

9. State the Section IX in the following edition:

"IX. Suspension of action of the license (copy of the license)

1. The bases for suspension of action of the license according to the relevant decision of the Commission for the term established by this decision are:

1) failure to pay the financial sanction by the licensee which was applied to it when implementing professional activity in the stock market - activities for asset management of institutional investors (activities for asset management) within three months from the date of pronouncement of the resolution on imposing of the sanction, except for resolutions which were cancelled or acknowledged invalid by a court decision, taken legal effect, or action of which is stopped by a court decision;

2) conducting check of circumstances:

disclosure, transfer or provision of access to the insider information (except disclosure of the insider information within accomplishment of professional, labor or service duties, and in other cases, stipulated by the legislation);

provision with use of the insider information of recommendations about acquisition or alienation of securities or other financial instruments;

making with use of the insider information in own favor or advantage of other persons of the transactions directed to acquisition or alienation of securities or other financial instruments";

3) emergence of need of conducting check for course of production on the case of offense in the security market if the offense is lasting and can lead to violation of the rights of investors.

2. The bases for suspension of action of the license under the relevant resolution on imposing of the sanction for offense in the security market (further - the resolution on the imposing of the sanction) which is taken out according to the procedure, determined by Rules of hearing of cases in case of establishment of such violations are:

non-notification of the Commission of rather temporary change of the location of the licensee or its return to the former location;

unacceptance of the licensee by authorized body on the bases established by the legislation, decisions on liquidation of mutual investment fund;

adoption by authorized body of the licensee of the decision on liquidation of mutual investment fund without observance of the requirements established by the Law of Ukraine "About institutes of joint investment";

appointment of the licensee of person as the acting as the head which does not conform to the requirements established for the head of the licensee in case of dismissal of the head.

3. The decision on suspension of action of the license on the bases specified in Item 1 of this Section is drawn up by the relevant decision of the Commission, and on the bases specified in Item 2, - the relevant resolution.

4. The commission publishes information on suspension of action of the license in the official printing publication of the Commission, and also posts it on the official site of the Commission within five working days from acceptance date of the relevant decision of the Commission or pronouncement of the resolution.

5. In the resolution on imposing of the sanction in the form of stop of action of the license the authorized person of the Commission specifies the bases according to which the sanction in the form of stop of action of the license is inflicted. In case of not elimination of violations of the law about securities together with the resolution the authorized person takes out the order at which it is specified about need of elimination of violations which became the basis for suspension of action of the license, and provision at the scheduled time of the report and documents, stipulated in Item 6 these Sections.

6. In pursuance of the order the licensee shall provide to the Commission the report which is constituted in any form and contains list of the events held by the licensee as a result of elimination of offense and the list of the documents confirming these measures, and verified copies of the relevant documents confirming elimination of these violations, in time, established by this order, but not later than twenty working days about day of the termination of term of suspension of action of the license.

7. Action of the license is resumed next day after the expiration on which it was stopped.

8. Following the results of consideration of the report of the licensee and the relevant documents, stipulated in Item 6 these Sections, the authorized person of the Commission within five working days from the date of their provision makes the decision on early renewal of action of the license if the term for which it is suspended the license still proceeds what in writing notifies the licensee on.

9. Condition for early renewal of action of the license is elimination of the bases which became the reason of stop of action of the license according to relevant decisions of the Commission.

10. The decision on early renewal of action of the license which was stopped from the bases specified in Item 1 of this Section is drawn up by the relevant decision of the Commission, and on the bases specified in Item 2, - the corresponding order.

11. The commission publishes information on renewal of action of the license in the official printing publication of the Commission, and also posts it on the official site of the Commission within five working days from acceptance date of the relevant decision of the Commission or the order.

12. In case of failure to carry out by the licensee of requirements of the instruction about elimination of violations of the law about securities which became the basis for suspension of action of the license, and failure to provide the report and the relevant documents according to Item 6 of this Section the authorized person of the Commission performs the actions provided by Rules of hearing of cases.

13. Actions of the licensee which performs professional activity in the stock market - activities for asset management of institutional investors (activities for asset management) (further - the company on asset management), in case of stop of action of the license:

1) the licensee shall within five working days from the date of stop of action of the license notify on suspension of action of the license:

the supervisory board of corporate investment fund with which the relevant agreement is signed;

council of non-state pension fund with which the licensee signs the relevant agreement;

council of non-state pension fund - the subject of the second level of system of provision of pensions with which the licensee signs the relevant agreement;

2) in case of stop of action of the license the licensee does not stop activities for servicing of institutes of joint investment and non-state pension funds which assets it manages;

3) the licensee which license is suspended is not exempted from accomplishment of the obligations to investors provided by the prospectus of the issue, the regulations and the investment declaration, the agreement on asset management signed with council of non-state pension fund, council of non-state pension fund - the subject of the second level of system of provision of pensions;

4) the licensee (during the term of suspension of action of the license) is forbidden to create new mutual investment funds and to sign agreements on asset management with new corporate investment funds and councils of other non-state pension funds, and also councils of non-state pension funds - subjects of the second level of system of provision of pensions;

5) the authorized body of the licensee (during the term of suspension of action of the license) is forbidden to make the decision on approval of the prospectus of the issue, release and placement of investment certificates of mutual investment fund, and also changes in the prospectus of the issue of the investment certificates of fund connected with the subsequent release of investment certificates of mutual investment fund.".

10. In the Section X:

1) in Item 2:

in subitem 10 of the word "or rough" to exclude;

add Item with the new subitem of the following content:

"14) failure to carry out by the licensee of requirements of the instruction about elimination of violations of the law about securities which became the basis for suspension of action of the license.";

2) in Item 3:

in paragraph one of figure and the word "3-8, 10, 12 and 13" to replace with figures "3-7, 12-14";

in the paragraph the second "subitem 1" shall be replaced with words the word and figure also in figures "subitems 1, 8 and 10";

Item 4 to state 3) in the following edition:

"4. In case of cancellation by the Commission of the license for implementation of professional activity in the stock market - activities for asset management of institutional investors (activities for asset management) the licensee shall perform such actions:

stop implementation of professional activity in the stock market - activities for asset management of institutional investors (activities for asset management) from the effective date of the relevant decision about cancellation of the license;

within three working days from the effective date of the relevant decision about cancellation of the license in writing to notify on such decision the supervisory boards of corporate investment funds which assets it manages, with indication of the date of entry into force of this decision;

during the term established by regulatory legal acts concerning regulation of procedure for liquidation of mutual investment funds since the date of entry into force of the relevant decision about cancellation of the license to make the decision on liquidation of mutual investment funds.

Agreement cancelation about asset management is performed according to the legislation.";

The paragraph third Item 5 after words "chief accountant" to add 4) with words "(person to who conducting financial accounting is assigned)";

Item 6 to state 5) in the following edition:

"6. The commission in case of receipt in accordance with the established procedure of the statement of the licensee of the established sample for cancellation of the license with appendix of all documents, stipulated in Item 5 these Sections, or decisions on cancellation of state registration of the licensee as subject of managing shall within thirty calendar days from receipt date of the specified documents to make the decision on cancellation of the license or to leave the plea of nullity of the license (the copy of the license) without consideration (in case of cancellation of the license according to the statement of the licensee).

The decision on cancellation of the license is made on commission session (collegiate organ) and drawn up by the relevant decision of the Commission. In case of provision by the licensee of the plea of nullity of the license the decision is handed sent) to the applicant no later than five working days from the date of its acceptance.

The message on cancellation of the license for implementation of professional activity in the stock market - activities for asset management of institutional investors (activities for asset management) in writing goes within three working days from acceptance date of such decision body of licensing to all funds with which person whose license is cancelled signs agreements on asset management, and also to their keepers, administrators of non-state pension funds and person whose license is cancelled.

The message on cancellation of the license is published within five working days from acceptance date of such decision on the website of the Commission and in the official publication of the Commission.

The bases for leaving of the plea of nullity of the license (copy of the license) without consideration are:

signing of the statement by person who does not have on it powers;

discrepancy of the documents enclosed to the plea of nullity of the license, requirements of Item 5 of this Section.

Without consideration of the applicant notify on leaving of the plea of nullity of the license (the copy of the license) in writing (signed by the member of the commission as whom consideration of these documents enters) with indication of the exhaustive list of the bases for leaving of the plea of nullity of the license (the copy of the license) without consideration within thirty calendar days. In that case documents return to the applicant.

After elimination of the reasons which formed the basis for decision making about leaving of the plea of nullity of the license (the copy of the license) without consideration, the licensee can repeatedly submit the corresponding application and documents on cancellation of the license (the copy of the license).

The licensee along with decision making in the stock market - activities for asset management of institutional investors (activities for asset management) shall make the decision on suspension of placement of investment certificates of mutual investment funds which assets it manages on the termination of implementation of professional activity.";

"The act of factual determination of not giving by the licensee at the scheduled time of the message on change of the data specified in documents which were enclosed to the application for licensing (the copy of the license) and also" to exclude 6) in Item 9 of the word;

7) to add the Section after Item 9 with new Item 10 of the following content:

"10. The decision on cancellation of the license (the copy of the license) becomes effective in 10 days from the date of its acceptance.

In case of decision making about cancellation of the license (the copy of the license) according to subitems 1, of the 2 and 11 Item 2 of this Section it becomes effective from the date of its acceptance.".

With respect thereto 10, 11 to consider Items respectively Items 11, 12;

To state paragraph two of Item 12 in the following edition:

"Cancellation of the license of the company on asset management which exercises asset management of institute of joint investment is the basis for liquidation of mutual investment fund.".

11. In the text of Licensed conditions of the word "About Institutes of Joint Investment (Share and Corporate Investment Funds)" shall be replaced with words "About institutes of joint investment".

12. To state the name of appendix 3 in the following edition:

"The questionnaire concerning goodwill of the legal entity - the owner with essential participation at the applicant (licensee), the legal entity who is executive body (in the presence) of the owner with essential participation at the applicant, and the legal entity of the owner with essential participation at the applicant which is member of the supervisory board (in case of its creation)".

13. Be reworded as follows appendix 5 which is applied.

14. To state the name of column 8 in annex 7 in the following edition:

"Certificate: number, effective period with ___ to ___, type of professional activity in the stock market".

15. To add appendix 9 after the name with line of the following content:

"Date of creation of the reference:" __ "___________ 20 __ years.".

16. In appendix 13 3 tables to exclude column.

 

Appendix 5

to Licensed conditions of implementation of professional activity in the stock market (security market) of activities for asset management of institutional investors (activities for asset management) (the subitem 9 of Item 1 of Chapter 2 of the Section II)

The questionnaire concerning goodwill of the head of the applicant (in case of creation of sole executive body), the head and members of executive body of the applicant (in case of creation of collegiate executive body), the chief accountant of the applicant (or person, the acting as on conducting financial accounting at the applicant), the head of Service of internal audit (control) (in case of creation of separate structural division) or the internal auditor (controller) (in case of appointment of the certain official)

See Appendix 5 (5Kb In original language)

 

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