Asters Law Associates Oles Kvyat and Oleksandr Mozheiko talk today about the terms and procedures of the Initial Public Offering on the Ukrainian Stock Exchange
The Ukrainian market grows in line with global markets. When global markets decline, the Ukrainian equity market suffers correction as well. The recent financial turmoil experienced by the world in 2009 - 2010 adversely affected the Ukrainian equity market. Ukrainian Hryvnia depreciation throughout 2010 put additional pressure on it. The recession of 2009 - 2010 was accompanied by several reforms held by the Ukrainian government both in economical and corporate governance spheres. It is worth noting that the Ukrainian equity market and, in particular, equity issuers were additionally affected by a new regulation set forth in Joint Stock Companies Law (‘JSC Law’) enacted in 2008.
First edition of the JSC Law provided for mandatory listing for all public joint stock companies ('public JSCs'). Despite mandatory provisions of the JSC Law, the equity market was not filled up with securities of public JSCs. Soon after publication of the JSC Law, mandatory listing provision proved to be of no effect as the issuers do not meet listing threshold. As the matter of practice, severe listing requirements established by Ukrainian law were met by a few powerful domestic public JSCs from energy, agricultural and industrial sectors only, but were not reached by smaller and medium scale equity issuers. Securities of such companies are usually stay included into the stock exchange list only and remain at out-of-listing trade due to their inability to meet the listing requirements.
Such ineffectiveness of the mandatory listing was noticed by business community and the Ukrainian government. To keep the JSC Law adequate to current economic environment and equity issuers of all tiers, in 2011 Ukrainian parliament rescinded mandatory listing requirements and replaced it with an obligation of public JSCs only to put their securities on a stock exchange list. It was believed that in both cases Ukrainian equity market shall become more transparent than before.
According to Ukrainian law, listing rules and minimal listing requirements are endorsed individually by each certain stock exchange. Also, subject to approval by the State Commission on Securities and Stock Market ('Commission'), these rules shall basically correspond with provisions of law. Each stock exchange in Ukraine, being a self-regulated organization, develops its own detailed procedures of registration, admission and listing of securities.
Currently, there are several stock exchanges in Ukraine which actively operate at the equity market. Major stock exchange that operates almost 50% of all traded securities is PFTS Stock Exchange ('PFTS').PFTS listing requirements is similar to requirements of other stock exchanges operating in Ukraine.
In order to start listing procedures either at PFTS or any other Ukrainian stock exchange, the issuer firstly shall apply for inclusion of its securities into the stock exchange list and then meet respective listing requirements. Inclusion into the stock exchange list in Ukraine is used for identification of securities at the stock exchange and admission to trade. Further passing of listing procedures indicates the issuer's compliance with the stock exchange requirements and admission to quoting.
Generally, securities listing requirements for the Ukrainian stock exchange correspond to those minimal set forth by law. Such requirements have two-tier structure according to securities value, financial stability of the issuer and its economic wealth. In particular, to include its shares into a stock exchange's quotation list the issuer shall meet the following first and second tier listing requirements.
The issuer must have the net assets of at least UAH 100 million (about USD 12.5 million) for the first tier listing or UAH 50 million (about USD 6.25 million) for the second tier listing.
The issuer must have a record of ten agreements relating to its securities, executed and completed during each of the
last six months, with a monthly average value of at least UAH 1 million (about USD 125,000) – for the first tier listing; or a record of ten agreements relating to its securities, executed and completed during each of the last three months, with a monthly average value of at least UAH 250,000 (about USD 31,250) – for the second tier listing.
The issuer must have a minimum annual turnover from the sale of goods, works and services of UAH 100 million – for
first tier listing.
The issuer's capitalization shall be of UAH 100 million for the first tier and 50 million for the second tier listing. Also, for the sake of transparency, the issuer is recommended to observe the Corporate Governance Principles approved by the Commission on 11 December 2003. Respective requirements are also established for other securities such as bonds or securities of joint investment institutions. In case the issuer meets the above requirements, its shares shall be included into the stock exchange register. Usually, an issuer or a stock exchange member shall file respective application with supportive documents as required by rules of stock exchange. Further, the issuer which securities were listed must disclose information about its corporate and financial activities on quarterly and annually basis.
The key areas of such information cover:financial and business position of the issuer; buyback of the issuer's shares; listing or delisting of its shares on a stock exchange; any change in the issuer's officers; decrease of its authorized capital; other events that may affect the issuer's financial and business position and cause a significant change in the price of its securities.
The information shall be disclosed in electronic disclosure system ESCRIN as well as published in official printed media. Compliance of the issuer with the statutory disclosure requirements is controlled by the Commission and the failure to comply may entail imposition by the latter of a fine upon such an issuer.
The listing procedure for overseas companies is basically the same as for domestic. 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.