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06.05.2016

On the approval of the Regulation on calculating voting rights and registering transfer of ownership rights over bank shares no. 130 of 04.07.2013 (Official Monitor of the Republic of Moldova no.198-204 of 13.09.2013)

Published in the Official Monitor of the Republic of Moldova no.198-204 of September 13, Art.1420

Registered
at Ministry of Justice
of the Republic of Moldova
no. 934 of August 22, 2013

Coordinated
by protocol signing
of National Commission for Financial Market
no. 36/13 of August 2, 2013

 

COUNCIL OF ADMINISTRATION
OF THE NATIONAL BANK OF MOLDOVA

 

DECISION no.130
of July 04, 2013

On the approval of the Regulation on calculating voting
rights and registering transfer of ownership rights over bank shares

Pursuant to Article 5, Articles 11 and 44 of the Law on the National Bank of Moldova no.548-XIII as of July 21, 1995 (Official Monitor of Republic of Moldova, 1995, no.56-57, art.624), with further amendments and completions, and Articles 15-156 of the Law on Financial Institutions no.550-XIII as of July 21, 1995 (republished in the Official Monitor of Republic of Moldova, 2011, no.78-81, Art.199) with further amendments and completions, the Council of Administration of the National Bank of Moldova

DECIDES:

To approve the Regulation on calculating voting rights and registering transfer of ownership rights over bank shares according to the attachment.

Chairman
of the Council of Administration

Dorin DRĂGUŢANU

 

Attachment
to the Decision of the Council of the Administration
of the National Bank of Moldova
no.130 of July 04, 2013

 

Regulation
on calculating voting rights and registering transfer of ownership rights over bank shares

(compiled version with the amendments and completions of the:
Decision of the CE no.25 of 18.02.2016, Official Monitor of the Republic of Moldova no. 100-105 din 15.04.2016)

Chapter I.
GENERAL PROVISIONS

1. This regulation establish requirements on calculating voting rights and the way of registering transfer of ownership rights over bank shares.

2. The definitions used in this regulation have the meanings set out in Article 3 of the Law on Financial Institutions.

3. For the purposes of this Regulation the definitions used have the following meanings:
1) direct instructions - any instruction sent by the parent company or other person controlled by the parent that specify the way to exercise the voting rights of a person in certain situations.
2) indirect instruction - any general or particular instruction, regardless its form, which is sent to the parent company or other person company controlled by the parent and restricting freedom of another person in the exercise of voting rights to support specific business interests of the parent company or other person controlled by the parent company.

 

Chapter II
CALCULATING VOTING RIGHTS

4. In order to apply the provision of art.15-156 of the Law on Financial Institutions, by determining the amount of significant share, the calculation of voting rights shall be realized according to the provision of this Chapter.

5. Voting rights shall be calculated based on all voting rights of hold shares, even if the exercise of some or all of the voting rights is suspended or limited. In order to calculate the voting rights, bank make available on their website and media indicated in the bank’s bylaws, the information on total number of issued shares and voting rights associated within 3 days after there was a diminution or increasing of capital share/number of voting rights. Treasury shares of the bank shall include the total shares constituting the calculation base for determining significant share.

6. The voting rights held by a person (individual or legal entity) shall be calculated based on:
1) voting rights held by a third party in their own name, but on the account of the respective individual or legal entity;
2) voting rights held by or that can be exercised in accordance with paragraph 3)-6) by an entity controlled by the respective individual or legal entity;
3) voting rights held by a third party with which the respective individual or legal entity concluded an agreement, implicitly or explicitly, by which the two of them obliged to promote a joint policy related to the bank, by exercising in concerted manner their voting rights;
4) voting rights held by a third party with which the respective individual or legal entity concluded an agreement on the temporary transfer, with onerous, of such voting rights;
5) voting rights related to the shares held by the respective individual or legal entity that are constituted as insurance for an obligation, with the condition that this person controls voting rights and states their intention to exercise them;
6) voting rights related to shares, the usufruct of which is held for life by the respective individual or legal entity;
7) voting rights related to shares in possession by the respective individual or legal entity, that can exercise them without any restrictions in the absence of any specific instructions from the owners of the shares;
8) voting rights exercised by the respective individual or legal entity as a mandate which it can exercise without any restrictions in the absence of any specific instructions from the owner of the shares;
9) voting rights held by a third party, other than the one stipulated to paragraph 2) and 3), which act in concerted manner with the respective individual or legal entity.

7. The provisions of item 6 shall not be applied:
1) in case of persons that carry out the custody activities and hold shares as custodians provided, with the condition that they exercise their voting rights related to shares only in accordance with the instructions made in writing or by electronic communication;
2) in case of a purchase or alienation by a market maker of a holding which leads to reaching, exceeding or going under the threshold of the qualifying holding, when it acts as a market maker, with the condition:
a) to be authorized in accordance with the provisions of applicable legislation; and
b) does not interfere in the management of the activities of the issuer of these shares and does not exercise any influence to purchase such shares or to maintain their price.

8. For the purpose of applying the exception from the consolidation of participations stipulated in item 7, a parent company of an investment trust management company or of an investment company shall meet the following conditions:
1) it should not interfere by providing direct or indirect instructions or in any other means with the exercising of voting rights held by the respective investment trust management company or investment company;
2) the investment trust management company or investment company must be free to exercise, independently from the parent company, the voting rights related to assets that they manage. 

9. The provisions of items 5 and 6 shall be applied and in the event that the parent company or any other person controlled by the respective parent has holdings administered by the investment trust management company or the investment company, and the respective company does not freely exercise the voting rights related to their holdings and can exercise the respective rights only after receiving direct or indirect instructions from the parent company or another person controlled by the parent company.

10. A parent company of an investment trust management company or the investment company shall be able to prove upon request that:
1) the organizational structure of the parent company and the investment trust management company or the investment company are of such nature that allows exercising voting rights, independent of the parent company;
2) persons that decide on the way of exercising the voting rights acts independently;
3) exists a clear mandate, in writing, for a mutual independent relationship between the parent company and the investment trust management company or the investment company in case of parent company is the client of its own investment trust management company or of its own investment company and holds shares of the assets managed by these companies.
The provision of paragraph 1) obliges the parent company and the investment trust management company or the investment company to have written reasonable policies and procedures to prevent the distribution of information between the parent company and the investment trust management company or the investment company regarding exercising voting rights.

11. For determining the significant shares shall not be taken into account the voting rights or shares which investment companies may hold as a result of underwriting of financial instruments and/or placing the financial instruments based on a firm commitment, assumed activity with the condition that, on the one hand, the voting rights or respective shares shall not be exercised or used for intervention in the bank management and, on the other hand, the voting rights or the respective shares to be alienated within one year from the date of purchasing the significant share.

 

Chapter II
REGISTERING THE TRANSFER OF OWNERSHIP RIGHTS OVER BANK SHARES

12. The transfer of ownership rights over bank shares shall be performed as stipulated by the normative acts of the National Commission for Financial Market complying with peculiarities stipulated in this chapter.

13. Transfer of shares in the conditions stipulated in art.15 of the Law on Financial Institutions shall be registered only after submitting the written prior permission, issued in the conditions of the mentioned law and complying the provision of art.15 of this regulation.

14. Registering ownership rights over bank shares obtained in the condition of art.151 of the Law on Financial Institutions, related to objective circumstances set up in Regulation on the participation shares in the share capital of the bank, shall be performed without the prior permission of the National Bank, complying the provision of item 15 of this Regulation. Subsequently, with performing the registration of ownership rights, the person keeping the register of securities holders or the person exercising the custody of securities on behalf of the client will perform the registration of the suspension of the voting right exercise.

15. To register the transfer of ownership rights over banks shares, regardless  their volume, mandatory, three copies of the declaration of concerted activity or lack of concerted activity of the legal entity or individual, who intends to acquire a shareholding in the share capital of the bank shall be attached to the documents submitted to the  person keeping the register of securities holders or to the person exercising the custody of securities on behalf of the client, according to the form in Attachment no.1 or, where appropriate, the Attachment no. 2 to this Regulation. The declaration shall be signed by the individual or, where appropriate, by the legal representative of the legal entity, who intends to acquire a shareholding in the share capital of the bank, authenticated by the stamp and signature of the person keeping the register of securities holders or the person exercising the custody of securities on behalf of the client, who registered the ownership rights over the respective bank’s shares. Within 3 days from the date of ownership right registration, the person keeping the register of securities holders or the person exercising the custody of securities on behalf of the client shall send by post a copy of the declaration to the National Bank and to the bank – issuer of shares. The costs of sending the respective letters and declarations shall be borne by the legal entity or individual, intending to acquire a shareholding in the share capital of the bank.

16. Transfer of the banks shares in condition of the art.154 of the Law on Financial Institutions shall be registered only after submitting by the respective shareholder a copy of notification about this decision submitted to the National Bank.

17. Within 3 days after the date of registering the transfer according to item 16, the shareholder, who notified the National Bank, will deliver the copy of this notification to the bank – issuer.

18. In the event that the requirements established in items 15 and 16 shall not be compiled, the transfer of the ownership right can not be registered.

 

Annexes