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22 лютого 2010

Ринки капіталів 2010. Україна


Автор: Вадим Самойленко
Джерело: PLC Cross-border Capital Markets Handbook 2010

Статтю можна прочитати нижче мовою оригіналу.

EQUITY CAPITAL MARKETS: GENERAL

  1. Please give a brief overview of the equity market(s) in your jurisdiction and initial public offering (IPO) activity generally. What were the large deals over the past year? Have there been many listings of overseas companies on your market(s)?

The recent financial turmoil dramatically affected the Ukrainian equity market in 2009. Additionally, Ukraine Hryvnia depreciation, problems in relations with the International Monetary Fund (IMF), "swine flu" and poor government finances put pressure on the Ukrainian equity market. The Ukrainian market grows in line with global markets, but it is not among the best performers compared to other emerging markets. When global markets decline, the Ukrainian equity market suffers deep correction.

The dominating trends of 2009 were:

• Continuing stagnation of the market during the 1st and the 2nd quarters of the year.

• Reasonable increase in the market in the 3rd and 4th quarters of the year as a result of both:

• the end of the recession;

• stimulation measures in Western economies that lead to replenishment of the market with ready money and involved the rise of investments into risky assets on emerging markets.

In 2009, apart from the global credit market crisis, the decline in M&A activities in Ukraine is attributed to domestic economic problems and remaining political instability. Both factors are likely to diminish after the Presidential elections on 17 January 2010. M&A activities hit their lowest level for several years.

There were no listings of overseas companies in 2009.

  1. Please describe the main equity capital market(s) and summarise the following in relation to each market (distinguishing where appropriate the requirements for overseas companies seeking a primary listing in your jurisdiction):

• The regulator.

• Any minimum size requirement.

• Any minimum trading record required.

• Any working capital requirements.

• Any minimum numbers of shares in public hands.

• Number of companies traded.

• Annual cost of being listed.

The main equity capital markets in Ukraine are the PFTS Stock Exchange (PFTS) and the Perspektyva Stock Exchange (Perspektyva).

PFTS

Regulator. The regulator is the Securities and Stock Market State Commission of Ukraine (Commission) (see box, The regulatory authority).

Size limits. Issuers must:

• Have net assets of at least UAH100 million (about US$12 million) (UAH50 million (about US$6 million) for second tier listing and UAH400,000 (about US$48,300) for out-of listing trading).

• Have annual income for the last financial year of more than UAH100 million (UAH50 million for second tier listing).

• Not have made a loss in the results of the last two financial years (or during the last financial year for second tier listing).

• Have a market capitalisation of at least UAH200 million (about US$24.2 million) (UAH50 million (about US$6 million) for second tier listing).

• Have at least 500 shareholders (no requirement for second tier listing).

Trading record. The issuer must have a record of ten agreements relating to the issuer's securities, concluded during each of the last six months, with a monthly average value of UAH1 million (about US$125,000) (UAH250,000 (about US$31,000) for second tier listing).

Working capital. The issuer must have a minimum working capital of the equivalent of 1,250 minimum statutory salaries at the date of the issuer's incorporation. The minimum statutory salary is currently UAH744 (about US$95) per month.

Shares in public hands. There is no requirement for a minimum number of shares to be in public hands.

Number of companies traded. There are 245 companies traded on the PFTS.

Annual cost. The issuer must pay a one-time trade admission fee of UAH3,000 (about US$360) and an annual services fee of UAH1,500 (about US$181).

Perspektyva

Regulator. The Commission (see box, The regulatory authority).

Size limits. Issuers must:

• Have net assets of at least UAH100 million (about US$12 million) (UAH50 million (about US$6 million) for second tier listing).

• Have annual income for the last financial year of more than UAH100 million (UAH50 million for second tier listing).

• Not have made a loss in the results of the last two financial years (or during the last financial year for second tier listing).

• Have a market capitalisation of at least UAH100 million (about US$12.5 million) (UAH50 million (about US$6.3 million) for second tier listing).

• Have at least 500 shareholders (no requirement for the second tier listing).

Trading record. This is the same as for the PFTS (see above, PFTS: Trading record).

Working capital. This is the same as for the PFTS (see above, PFTS: Working capital).

Shares in public hands. This is the same as for the PFTS (see above, PFTS: Share in public hands).

Number of companies traded. There are six companies traded on Perspektyva.

Annual cost. The issuer must pay a one-time shares admission fee and a listing fee, instead of annual payment. The fees are unsubstantial. The issuer must also pay a shares sale commission fee of 0.01% of the transaction value.

IPOs ON THE MAIN EQUITY CAPITAL MARKET(S)

  1. What are the main ways of structuring an IPO?

IPOs can be structured as either:

• A public offering by a public joint stock company to more than 100 persons (except the shareholders).

• A private offering (placement) by a private joint stock company to no more than 100 predetermined persons.

4. Outline the procedure for a company applying for a primary listing of its shares in your jurisdiction. Is the procedure different for an overseas company? Is an overseas company
likely to seek a listing for shares or depositary receipts?

Procedure

The procedure for a company applying for a primary listing (public offering of its shares) includes the following steps:

• The general meeting adopts a decision to issue shares.

• Drafting the prospectus.

• Filing the shares issue decision, the prospectus and any supporting documents with the Commission.

• Registering the issue and the prospectus after which the Commission issues a temporary issue registration certificate.

• Engaging an underwriter, if needed.

• Obtaining an international identification number for the shares.

• Entering into agreement with a depositary or shares registrar to record and transfer title to the shares.

• Manufacturing share certificates or allocation of the global shares issue certificate at the depository.

• Publishing the prospectus.

• Selling the shares.

• The issuer approves the results of the offering and the report thereon for the Commission.

• The issuer's general meeting of shareholders amends its charter to increase the authorised capital.

• Registering the charter amendment with the state company registrar.

• Filing the shares allocation report and supporting documents with the Commission.

• The Commission registers the shares allocation report.

• The Commission issues the issue registration certificate.

• Filing a copy of the issue registration certificate with the shares registrar or depositary.

• Publishing the shares allocation report.

• Admitting the shares to listing on a stock exchange.

Overseas companies

The procedure for a primary listing is basically the same as for foreign companies as it is for overseas companies. However, several differences do exist, including that the shares of a foreign company must be registered with the Commission.

In addition, any shares issued in Ukraine by an overseas company must be:

• Registered with a depositary in the issuer jurisdiction.

• Listed at a stock exchange (or allowed for trading on an OTC market) in the issuer's home jurisdiction.

• Listed at one of the following stock exchanges: New York, American, Tokyo, Toronto, Hong Kong, Frankfurt or London.

Practically, an overseas company seeking to list its shares in Ukraine is likely to experience certain obstacles due to insufficiency of respective regulation. For example, unlike in relation to a local company, an overseas company cannot file the shares allocation report with the Commission and the Commission cannot register the shares allocation report and issue the shares issue registration certificate.

5. Briefly outline the role of advisers commonly used for an IPO.

The following advisers are commonly used by an issuer in an IPO:

• Brokers and dealers to buy and sell securities.

• Underwriters to place securities for the issuer.

• Depositaries and banks to record and transfer title to deposited securities of the issuer and investors.

• Securities managers to invest in securities.

• Lawyers to review and advise on any documents to be filed with the Commission and to advise generally on the issuer's corporate actions.

• Auditors to give their opinion on the issuer's financial standing for filing with the Commission.

6. What are the principal documents produced in an IPO? The principal documents produced in an IPO are the:

• Decision of the issuer's authorised body, usually the general meeting of shareholders, to carry out the IPO (both for public and private offerings).

• Prospectus (for public offerings only).

• Share Issue Registration Certificate issued by the Commission (for both public and private offerings).

7. Please summarise the requirements for a prospectus (or other main offering document).

It is only mandatory to publish a prospectus for a public offering of securities.

The prospectus must be signed by the issuer's management and auditor, and sealed by the company's corporate seal. In relation to placement of the shares through underwriting, the prospectus must also be approved by the underwriter.

8. Is it possible to extend an offer to certain types of persons within your jurisdiction without preparing a full prospectus (for example, to sophisticated investors, employees or a
small group)? If so, please set out suggested wording that would be used to restrict the offering.

It is not possible to extend an offer to certain types of persons within Ukraine without preparing a full prospectus.

9. Are there any exemptions from the requirements for a prospectus (or other main offering document)?

There are no exemptions from the requirement to publish a prospectus in a public offering of securities.

10. Please outline the contents of the prospectus (or other main offering document).

A prospectus must contain:

• Detailed information on the issuer and its financial condition, including:

• name and address of the issuer and the amount of its share capital;

• the issuer's executive authority and its officials;

• the issuer's commercial activities;

• the financial condition of the issuer;

• details of all companies in which the issuer owns 10%
(or more) of the equity;

• the designated use of the funds raised through the issue;

• annual financial statements and so on.

• A clear and detailed description of the prospective issue and the number, type, par value and sale price of the previously issued shares.

• A detailed description of the procedure of the issue, including:

• time limits;

• the rights of shareholders and outside investors to participate;

• paying for the shares and their delivery;

• relevant corporate actions of the issuer.

• Disclosure of detailed information on:

• the financial condition of the issuer;

• the issuer's commercial activities;

• the designated use of the funds obtained from the issue;

• all companies in which the issuer owns 10% (or more) of the equity.

11. How is the prospectus (or other main offering document) prepared and verified?

The issuer, its officials and advisers (including the underwriter, if any) prepare and sign the prospectus before its submission to the Commission.

The prospectus must conform to the corporate decision to issue the shares and be certified by an independent auditor.

The Commission verifies information contained in the prospectus against the supporting documents filed by the issuer and its own records.

12. Who is responsible for the content of the prospectus (or other main offering document) and any liability arising from its contents?

The following are responsible for the prospectus:

• The head of the executive body of the issuer who signed the prospectus.

• The auditor of the issuer who signed the prospectus.

• The head of the executive body of any adviser to the issuer who signed the prospectus.

13. Briefly explain the ways used to market an IPO. The ways used to market an IPO are as the following:

• Pre-marketing.

• Advertising.

• Publicity in the media.

• Road shows.

• Presentations.

• One-on-one meetings with key investors.

14. Describe any potential liability from publishing research reports by connected brokers and ways used to avoid such liability.

• Total amount of the issue.

• Quantity of the shares to be sold.

• The shares' sale price.

• Dates of beginning and end of the offering.

• The shares' payment procedure.

• The shares' delivery procedure.

• The underwriter fee.

• The underwriting agreement may require the underwriter to purchase any shares that remain unsold.

18. Please provide a summary of the timetable for a typical IPO.

The Commission registers the shares issue within 30 days of receiving the application and supporting documents from the issuer.

The issuer must sell the shares of the issue during the term set out by the prospectus, and not later than one year from the beginning of the public placement or two months from the beginning of the private placement.

Within these terms the issuer must receive from the purchasers at least the par value of the shares sold, if they are sold above the par value. The shares cannot be sold below the par value.

19. Are there rules on price stabilisation in the period after trading starts?

Within the statutory terms of an IPO (one year or two months), the shares must be sold at a fixed price determined in the prospectus or the share issue decision of the issuer. In any case, during this term the shares cannot be sold below par value.

20. What is the approximate cost of an IPO?

No definitive estimation can be made because the cost depends on a variety of factors, such as advisers' fees, regulatory filing fees, costs for printing the prospectus and road show expenses. The legal fees may amount up to EUR60,000 (about US$88,260). Overall, the cost is between 2% and 5% of the amount of funds raised by the issuer.

21. What are the main tax issues that arise on an IPO?

There are no particular tax issues that arise on an IPO. The proceeds received by the issuer from selling the shares are not subject to corporate profit tax, VAT or any other taxes. The only mandatory payment by the issuer is a state duty of 0.1% of the total par value of the issue.

22. Please outline any continuing obligations to which listed companies are subject, in particular:

• The key areas covered by the obligations.

• Whether the same rules apply to domestic and foreign companies and to issuers of shares and depositary receipts.

• How these obligations are regulated and any penalties for breach.

Key areas

The key areas of continuing obligations for listed companies are:

• The issuer must disclose its financial and business position and performance within the statutory reporting periods (annually and quarterly).

• The issuer must disclose any events that may affect the issuer's financial and business position and cause a significant change in the price of its securities.

• The issuer must disclose any holdings of 10% or more in another company.

Domestic and foreign companies

The same rules apply to domestic and foreign companies and to issuers of shares and depositary receipts.

Regulation and penalties

All continuous disclosure requirements are regulated and controlled by the Commission. The Commission can impose a fine for:

• Failure to disclose required information.

• Delay in making required disclosures.

• Intentionally providing the wrong information.

The fine for a one-time infringement can be up to UAH17,000 (about US$2,050) and the fine for multiple infringements during a year can range from UAH17,000 to UAH85,000 (about US$10,260).

DE-LISTING

23. What action is required to de-list a company? Have there been many de-listings on your market(s) in the past year?

A stock exchange can de-list shares if the shares do not comply with certain requirements of the stock exchange. There were 45 de-listings in 2008.

REFORM

24. Please summarise any proposals for reform.

The Law On Joint Stock Companies (Joint Stock Companies Law), effective from 30 April 2009, is the most recent reform affecting IPO activity. It purports to eliminate gaps in the corporate management sphere and protect the interests of shareholders, creditors, employees and the state. However, many bye-laws have not been brought in line with the Joint Stock Companies Law. In particular, the Commission has neither updated the Regulation on Increase (Decrease) of Joint Stock Companies' Authorised Capital nor the Sample Public Joint Stock Companies' Charter. Therefore, this legislation must be reformed to accelerate effective application of the Joint Stock Companies Law.

DEBT CAPITAL MARKETS: GENERAL

25. Please give a brief overview of the debt securities market in your jurisdiction. Has it been active? What were the major deals over the past year?

The global recession practically froze the Ukrainian economy's debt capital market. Many debtors, to avoid defaults and bankruptcies, explored opportunities for restructuring outstanding debts. In relation to restructuring, one of the most significant challenges was the insufficiency of legal regulation of relevant procedures. Internationally acknowledged restructuring techniques for settling disagreements between bond issuers and bondholders have not yet been properly implemented in Ukraine, particularly at regulatory level.

There is a trend in 2009 for restructuring corporate Eurobonds. XXI Century, Nadra Bank, First Ukrainian International Bank, Finance & Credit Bank and Alfa Bank of Ukraine are among the borrowers restructuring Eurobonds. Additionally, Naftogaz, the leading enterprise on Ukraine's fuel and energy market, successfully completed the complex restructuring of its external debt with the formal settlement of its bilateral and Eurobond obligations into a single listed investment instrument.

26. What are the different methods of raising finance through the issue of debt securities in your jurisdiction (for example, bonds or EMTN programmes)?

The following debt securities can be issued in Ukraine:

• Corporate bonds.

• Government bonds of Ukraine.

• Municipal bonds.

• Treasury bills of Ukraine.

• Certificates of deposit.

• Promissory notes and bills of exchange.

27. For new issues to be cleared and settled through Euroclear or Clearstream, what percentage use the New Global Note (NGN) structure? What percentage retain the classic or traditional global note structure?

The NGN structure is not used by Ukrainian issuers.

28. Please describe the main market(s) (including any exchangeregulated market or multi-lateral trading facility (MTF)) for debt securities and summarise the following in relation to
each market:

• The regulator.

• Any minimum size requirement.

• Any minimum trading record required.

• Any working capital requirements.

• Number of issues traded.

• Annual cost of being listed.

The main debt capital markets in Ukraine are the PFTS and Perspektyva (see Question 2).

PFTS

Regulator.See Question 2.
Size limits. The issuer must:

• Have net assets of at least UAH100 million (about US$12 million) (UAH10 million (about US$1.2 million) for second tier listing).

• Have a nominal value of debts issue of at least UAH10 millions (about US$1.25 million) (UAH5 millions (about US$630,000) for second tier listing).

• (Or the person securing the debt must) not have made a loss in the results of the last two financial years (or during the last financial year for second tier listing).

Trading record. The issuer must have a record of five agreements relating to certain debt securities issue, executed and completed during each of the last six months, with a monthly average value of UAH500,000 (about US$60,375) (the monthly average value of agreements executed relating to certain debt securities issue must be at least UAH150,000 (about US$18,110) for second tier listing).

Working capital. See Question 2.

Number of issues traded. There are 378 issues traded on PFTS.
Annual cost. See Question 2.

LISTING ON THE MAIN DEBT CAPITAL MARKET(S)

29. What are the main ways of issuing debt securities on the debt
capital market(s)?

Debt securities are issued in the same way as equity securities (see Question 4).

30. Briefly outline the role of advisers commonly used when issuing and listing debt securities.

The advisers in an issue of debt securities are the same as for an IPO (see Question 5).

31. What are the principal documents produced when issuing and listing debt securities?

The principle documents produced when issuing and listing debt securities are the same as for equity securities (see Question 6).

32. Please summarise the requirements for a prospectus (or other main offering document).

The prospectus requirements when issuing debt securities are the same as for equity securities (see Question 7).

33. Are there any exemptions from the requirements for a prospectus (or other main offering document)?

There are no exemptions from the requirements to publish a prospectus.

34. Please outline the content of the prospectus (or other main offering document).

The prospectus must contain:

• A detailed description of the issuer's:

• name, address and contact details;

• executive authority and its officials;

• legal form;

• date of incorporation;

• shareholders;

• business goals;

• authorised capital (including the amount and date of formation);

• number of employees;

• annual financial statements;

• corporate governance structure.

Country Q&A Ukraine

Disclosure of detailed information on:

• licences that the issuer possesses;

• the financial condition of the issuer;

• major business and financial activities;

• the designated use of the funds obtained from the issue;

• all companies, in which the issuer owns 10% (or more) of the equity;

• the issuer's subsidiaries;

• participation of the issuer in holdings, concerns and associations;

• the issuer's know-how policy;

• the possible business activity risks of the issuer;

• the issuer's business activity perspectives;

• bankruptcy proceedings relating to the issuer;

• the issuers liens;

• the number of shares owned by members of the executive body;

• stock exchanges where the issuer's debt securities are traded or were traded previously;

• previous securities issues and their results.

• Detailed information on the debt securities to be issued, including:

• the type and kind of the securities;

• the date of the corporate decision to issue the securities;

• the number of securities issued;

• the securities total par value;

• the par value of one security.

• the form of their issue;

• the rating of the issue and name of the rating agency;

• starting and finishing dates of the securities offering;

• maturity date(s);

• payment procedure for the securities being sold;

• procedure of repayment for the securities matured,
including coupon payments;

• type and procedure of interest payment to the investor
(sale discount or coupon payment);

• the relevant securities registrar or depositary;

• stock exchange where the securities are to be listed.

35. How is the prospectus (or other main offering document) prepared and verified?

For debt securities, this is the same as for equity securities (see Question 11).

THE REGULATORY AUTHORITY

The Securities and Stock Market State Commission of Ukraine (Commission)

Head. Petrashko Serhiy Yaroslavovych (Chairman)

Contact details. 8 Moskovska Street Kyiv-601, 01010 Kyiv Ukraine

T +380 44 254 24 30
F +380 44 280 16 05
E webmaster@ssmsc.gov.ua
W http://www.ssmsc.gov.ua

Main responsibilities. The Commission is responsible for:

• Implementing and enforcing the state's policy on securities and stock markets.

• Licensing and regulating the professional market participants.

• Issuing regulations under, and clarifications on, securities and stock market laws.

• Registering share and bond issues.

36. Who is responsible for the content of the prospectus (or other main offering document) and any liability arising from its content?

For debt securities, this is the same as for equity securities (see Question 12).

37. Briefly explain the ways used to market debt securities.

For debt securities, this is the same as for equity securities (see Question 13).

38. Please provide a summary of the timetable for issuing and listing debt securities.

The Commission registers the issue within 30 days of receiving the application and supporting documents from the issuer.

39.What is the approximate cost of issuing and listing debt securities?

No definitive estimation can be made because the cost depends on a variety of factors, such as advisers' fees, regulatory filing fees, costs for printing the prospectus, road show expenses. For example, the legal fees may amount up to EUR30,000 (about US$44,130). Overall, the cost is between 2% and 5% of the amount of funds raised by the issuer.

40. What are the main tax issues that arise when issuing and listing debt securities?

For debt securities, the tax issues are the same as for equity securities (see Question 21).

41. Please outline any continuing obligations to which companies with listed debt securities are subject, in particular:

• The key areas covered by the obligations.

• Whether the same rules apply to domestic and foreign issuers.

•How these obligations are regulated and any penalties for breach.

42. Please summarise any proposals for reform.

No major changes are expected in the regulation of debt securities. The newly enacted Law On Joint Stock Companies (see Question 24) is likely to give more confidence to investors in debt securities through:

• Strengthening the regulation of an issuer's disclosure requirements.

• The issuer's shareholders, especially minority ones, having greater control over the company's decisions to issue new securities, the placement process and the use of the funds raised through the issue.



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