It is registered
Ministry of Justice
Republic of Moldova
On December 30, 2016 No. 1180
of December 2, 2016 No. 59/6
About approval of the Instruction about immediate and indirect possession
Based on Art. 6 of the Law No. 171 of July 11, 2012 "About the capital market" (The official monitor of the Republic of Moldova, 2012, No. 193-197, the Art. 665), Art. 22 of the h. (2) and Art. 25 of the h. (2) the Law No. 192-XIV of November 12, 1998 "About the National commission on the financial market" (it is repeatedly published in the Official monitor of the Republic of Moldova, 2007, No. 117-126 BIS) the National commission on the DECIDES: financial market
1. Approve the Instruction about immediate and indirect possession according to appendix.
Deputy Chairman of the National commission on the financial market
to the Resolution of the National commission on the financial market of the Republic of Moldova of December 2, 2016 No. 59/6
1. This instruction establishes procedure for determination of immediate and indirect possession by person securities in the authorized capital of commercial society in the capital market.
2. This instruction is applied in case of determination:
a) qualified participation (Article 6, parts 1) and (2) Articles 40, part (3) Articles 62, part (4) article 83 of the Law No. 171 of July 11, 2012 "About the capital market" (further – the Law No. 171 of July 11, 2012);
c) control (Items 1 and 2 of the Section III of form of 1 Regulations on disclosure of information by issuers of securities approved by the Resolution of the National commission on the financial market No. 7/11 of February 12, 2016).
3. The concepts used in this instruction have the determinations provided by the Law No. 171 of July 11, 2012 and the corresponding subordinate legislations.
4. For the purpose of this instruction the used concepts have the following determinations:
1) Control – situation in which the physical person or legal entity answers, at least, one of the following conditions:
a) owns independently or together with persons acting in coordination, the majority of voting shares or shares in commercial society;
b) owns independently or together with persons acting in coordination, the number of voting shares or shares which allows it to appoint or dismiss most of members of council of society, executive body or most of members of executive body and/or the auditor or most of members of audit committee;
c) exerts the dominating impact on commercial society, shareholder or the member of whom is, based on the contract with this commercial society or provision of the constituent act or the charter of society;
d) is shareholder or the member of commercial society and controls independently based on the agreement signed with other shareholders or members of this society, the majority of voting powers.
2) the Dominating influence on commercial society – availability of some actual situations or some organizational or financial agreements for:
a) distributions of annual profit or repayment of losses of commercial society;
b) coordinating of management of activities of commercial society by other persons pursuing common goal;
c) assignment of competences is more, than those which follow from the owning share;
d) assignment of competence at the choice of members of supervision body or the performing body to other persons, but not those which shall own similar competence based on the shares belonging to them;
e) joint management of persons which are in structure of governing bodies;
f) cases, ever most of members of supervision body or executive body of commercial society, or the shareholder owning at least than 50% of voting shares or the capital of commercial society are in the habit or are forced to be effective for the purpose of management of commercial society according to instructions of other person;
g) the capability to own the decisive majority for vote on questions, stipulated by the legislation, being in competence of general shareholder meeting.
3) the Majority of voting shares or shares – number of shares/share to equal, at least, 50 percent plus one share of all voting shares/share of commercial society.
4) Person – any physical person or legal entity.
5. In case of application of concept "persons acting in coordination", the Law No. 171 determined by Article 6 of July 11, 2012 it is supposed that are effective in coordination, until proved otherwise, persons corresponding to all or, at least, one of the following criteria without being limited to following:
a) persons who acquired shares of society in circumstances which specify the coordinated acquisitions or joint intentions of these persons share acquisition of society;
b) the legal entity with members of governing bodies and with the affiliates, and also these persons among themselves;
c) persons who in carrying out certain economic transactions use the financial resources having the same source or occurring from various organizations which are affiliates;
d) persons who in carrying out certain economic transactions direct the sure gain received thus besides to the receiver or receivers who are affiliates;
e) legal entities, whose corporate structures of property or governing bodies have generally the same structure;
f) persons who accepted or accept similar investment policy by purchase and/or sale of the financial instruments issued by the same issuer or affiliates of the same issuer;
g) persons, whose rights performed identically granted by the securities issued by society specify general long-term policy in relation to society;
h) persons who for carrying out certain economic transactions, representations of interests or implementation of the voting powers granted by the financial instruments belonging to them designated or appoint as the trustee, according to the trustees, the same person or the same persons who are affiliates;
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