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Ministry of Justice of Ukraine

June 14, 2022

No. 638/37974

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

of April 29, 2022 No. 321

About approval of Licensed conditions of implementation of professional activity on the organization of trade in financial instruments in the controlled market and on the organization of trade in financial instruments on multilateral trading floor

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", Item 18 of the Section XIII "Final and transitional provisions" of 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 on the organization of trade in financial instruments in the controlled market and on the organization of trade in financial instruments on multilateral trading floor which are applied.

2. Declare invalid the decision of the National commission on securities and the stock market of May 14, 2013 No. 818 "About approval of Licensed conditions of implementation of professional activity in the stock market (security market) - activities for the organization of stock market trading", registered in the Ministry of Justice of Ukraine on June 01, 2013 for No. 856/23388.

3. For the purposes of these Licensed conditions to length of service in the capital markets and the organized goods markets, to length of service on executive positions the corresponding length of service of physical person on the leading positions / as specialist of the commodity exchange created according to the Law of Ukraine "About commodity exchange", and the stock exchange created according to the Law of Ukraine "About securities and the stock market" and also the corresponding length of service in associations of professional participants of the stock market before entry into force of the Law of Ukraine "About the capital markets and the organized goods markets" is equated.

4. Determine that till January 01, 2023 regulations of Item 11 of the Section IV, Item 15 of the Section V of these Licensed conditions of the conclusion are not applied by the operator of the controlled market and the operator of multilateral trading floor with person who carries out clearing activities of the central partner, agreements on clearing implementation to licensees which according to Items 5, of the 6th Section XIII "Final and transitional provisions" of the Law of Ukraine "About the capital markets and the organized goods markets", have the right based on the license for implementation of clearing activities for determination of obligations to perform clearing activities of the central partner.

5. The legal entities having licenses for implementation of professional activity in the capital markets - activities for the organization of trade in financial instruments, shall:

bring the internal documents into accord with these Licensed conditions within six months from the date of, the expiration following later on which martial law is imposed according to the Presidential decree of Ukraine of February 24, 2022 No. 64/2022 "About introduction of warlike situation in Ukraine", to No. 2102-IX approved by the Law of Ukraine of February 24, 2022 "About approval of the Presidential decree of Ukraine "About introduction of warlike situation in Ukraine"" (with changes) if other is not established by standards of corporate management in professional participants of the capital markets and the organized goods markets;

bring structure of property into accord with requirements of these Licensed conditions within six months, from the date of, the expiration following later on which martial law is imposed according to the Presidential decree of Ukraine of February 24, 2022 No. 64/2022 "About introduction of warlike situation in Ukraine", to No. 2102-IX approved by the Law of Ukraine of February 24, 2022 "About approval of the Presidential decree of Ukraine "About introduction of warlike situation in Ukraine"" (with changes) 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 activities for the organization of trade in financial instruments and submitted to NKTsBFR the application and the relevant documents for receipt of the license.

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

submission of this decision for implementation of examination on compliance of the Convention on human rights protection and fundamental freedoms in the Secretariat of the Representative for cases of the European Court of Human Rights of the Ministry of Justice of Ukraine;

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.

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

8. Control over the implementation of this decision to assign to the member of the National commission on securities and the stock market Shlyakhov Ya.

Commission chairman

R. Magomedov

IT IS APPROVED:

Chairman of Public service of financial monitoring of Ukraine

 

I.Cherkassky

Chairman of the Antimonopoly Committee of Ukraine

O. Pishchanskaya

First Deputy Minister of digital transformation of Ukraine

A. Vyskub

 

Approved by the Decision of the National commission on securities and the stock market of April 29, 2022 No. 321

Licensed conditions of implementation of professional activity on the organization of trade in financial instruments in the controlled market and on the organization of trade in financial instruments on multilateral trading floor

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 - activities for the organization of trade in financial instruments in the controlled market and the license for implementation of professional activity in the capital markets - activities for the organization of trade in financial instruments on multilateral trading floor (further - the license) and when implementing these types of professional activity in the capital markets, the list of the documents submitted by the applicant for licensing and feature of combination of such types of professional activity on the organization of trade in financial instruments among themselves and with other types of professional activity in the capital markets and the organized goods markets.

2. These Licensed conditions establish requirements for receipt of the license and implementation of professional activity in the capital markets - activities for the organization of trade in financial instruments (further - activities for the organization of trade in financial instruments) by its following types:

activities for the organization of the securities trading in the controlled stock market;

activities for the organization of the conclusion of derivative contracts in the controlled market of derivative contracts;

activities for the organization of trade in tools of the money market in the controlled money market;

activities for the organization of the securities trading on stock multilateral trading floor (further - MTP);

activities for the organization of the conclusion of derivative contracts for MTP of derivative contracts.

On condition of receipt of the corresponding license operators of the organized market can perform clearing activities for determination of obligations.

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

1) the associated person - the husband or the wife, direct relatives of person (the father, mother, children, brothers and sisters, the grandfather, the grandma, grandsons), direct relatives of the husband or the wife of person, the husband or the wife of the direct relative;

2) separate division of the applicant/licensee - the 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 activities for the organization of trade in financial instruments and/or other professional activity in the capital markets and the organized goods markets (in case of combination of activities for the organization of trade in financial instruments with other types of professional activity in the capital markets and the organized goods markets), except specialized structural division;

3) the applicant - the legal entity created by the legislation of Ukraine which intends to perform activities for the organization of the securities trading in the controlled stock market of activities for the organization of the conclusion of derivative contracts in the controlled market of derivative contracts, activities for the organization of trade in tools of the money market in the controlled money market, activities for the organization of the securities trading on share MTP and/or activities for the organization of the conclusion of derivative contracts for MTP of derivative contracts also submits to NKTsBFR the application and the relevant documents for receipt of the license;

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

7) the key participant in structure of property of the legal entity or applicant/licensee (further - the key participant) - any physical person owning share in the authorized capital (shares) of such legal entity, the legal entity who owns share (block of shares) in the amount of 2 and more percent in the authorized capital of such legal entity, and at the same time:

if the legal entity has more than 20 participants - physical persons, then 20 participants - physical persons which shares are the largest are considered as key members of the legal entity;

if identical by the size of share (blocks of shares) in the authorized capital of the legal entity belonged to more than 20 participants - physical persons, then all physical persons which own shares (block of shares) in the amount of 2 and more percent in the authorized capital of such legal entity are considered as key members of the legal entity;

it is considered that the public company has no key participants;

8) the bid book is set of all requests (including quotations) one type on purchase and sale of the certain asset admitted to trading in the organized market of the capital;

9) critical operational processes - the activities of the applicant/licensee necessary for possibility of the applicant/licensee:

manage all risks characteristic of activities of the applicant/licensee (including to reveal such risks, to prevent them and to minimize their influence);

manage electronic trading system and hardware and software systems which ensure its normal functioning and protection;

provide accomplishment of the transactions made in the organized market which operator will/is the applicant/licensee including:

transfer information to Central Securities Depository or depositary of the National Bank of Ukraine for modification of system of depositary accounting (except case when among the assets admitted to trading in the organized market which operator will/is the applicant/licensee there are no securities);

transfer information to person performing clearing activities for clearing implementation (except case when the applicant/licensee obtained the license for implementation of clearing activities for determination of obligations and registered rules of implementation of clearing activities for the agreements signed in the organized market of the capital which operator he will/is);

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

11) the disorder terms of trade are the conditions complicating conducting the transparent and ordered trade in the organized market of the capital, in particular, failures in work of electronic trading system, sending significant amount of false requests (including quotations) bidders, situations of price instability, etc.;

12) 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;

13) persons performing supervising functions - the chairman and members of the supervisory board or other body responsible for supervision implementation (in case of creation) the legal entity, 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;

14) officials of the applicant/licensee are physical persons - the chairman and members of the supervisory board or other body responsible for supervision implementation (in case of creation), the chairman and members of collegiate executive body (person performing powers of sole executive body and its deputies), the corporate secretary, the chief accountant, the chairman and members of other bodies of the applicant/licensee, education and which competence are provided by its charter;

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

16) 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 activities for the organization of trade in financial instruments;

17) the public company is:

public joint stock company;

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

New York Stock Exchange (NYSE);

Hong Kong Exchange sand 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;

controlled markets of Switzerland;

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

19) specialized structural division of the applicant/licensee - the 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 applicant/licensee or its separate division;

20) length of service on executive positions is length of service:

as the leading official and/or as deputy of the leading official 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 the organized goods markets; and/or

as public service categories B in NKTsBFR and/or as the chairman or the member of NKTsBFR are not lower;

21) length of service in the capital markets and the organized goods markets is general length of service of physical person:

on the leading positions / as specialist in the professional participant of the capital markets and the organized goods markets;

and/or on the leading positions / as specialist in self-regulatory organization or consolidation of professional participants of the capital markets;

and/or on the leading positions / as the specialist of commodity exchange performing activities for the organization of trade in products according to the Law of Ukraine "About commodity exchanges";

and/or on the leading positions / as specialist of other subject of the managing performing activities for the organization of trade in products on the authorized electronic platforms at the organized electronic biddings or with use of other special software according to the legislation of Ukraine;

and/or positions of public service in NKTsBFR and/or the National commission performing state regulation in the sphere of the markets of financial services and/or to positions of the Chairman or member of these commissions.

Terms "outsourcing", "multilateral trading floor (MTF)", "close relations", "high-frequency trade", "gross violation", "goodwill", "investment firm", "operator of MTP", "operator of the controlled market", "operator of the organized market of the capital", "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", "proksimiti-hosting", "professional activity in the organized goods markets", "professional activity in the capital markets", "professional participants of the capital markets and organized goods markets", "controlled market", "system violation", "systemically important professional participant of the capital markets and organized goods markets", "trading floor", "trade repository" are used in the values determined by the Law of Ukraine "About the capital markets and the organized goods markets".

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 "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 "faultless goodwill", "identification data", "final beneficial owner" and "trust" are used in the values determined by 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".

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