Аналітика. Статті. Коментарі.
Опубліковано 15.09.2019 Микола Войтович
On 20 July the Order on Calculation of the Number of Voting Shares that Belong to an Individual or Entity, according to financial instruments under part 10 of Article 641 of the Law On Joint-Stock Companies came into force. What are these changes about, and how will they influence joint-stock companies?
Legal regulations on joint-stock companies widely implement the principle of transparency in operations with shares, especially when significant or controlling stakes get bigger. The realization of that principle may be seen in the requirements for a potential buyer of a significant stake to apply and publish special information.
In the case of public joint-stock companies (PJSC), the requirements are more extensive — a person (or legal entity) must apply special information when his/her stake become more, less or equal to threshold amounts (5, 10, 15, 20, 25, 30, 50, 75, 95% of voting shares). The requirement refers to a person (legal entity) who directly or indirectly acquires or sells voting shares. The emphasis here is on the part — indirect acquisition.
Today, financial instruments are so diverse that a buyer may acquire shares not only directly but also indirectly. The approximate list of financial instruments that provide a right to acquire voting shares indirectly is determined by the National Securities and Stock Market Commission (the Commission). The most common are derivatives with a share as a basic asset (futures, forward contracts, options), warrants, some investment securities, and convertible bonds.
With direct ownership of shares it is rather easy to calculate the number of voting shares, but it’s the opposite with indirect ownership, where different approaches could have been met. The Commission’s Procedures No. 207 as of 9 April 2019 are aimed at determining the unitary approach to the calculation of voting shares belonging to a holder of financial instruments. The rule that was introduced is that the calculation is done by multiplying the number of such financial instruments to the number of voting shares, which are a basic asset of such financial instruments, in a specific PJSC. Such calculation must be carried out by a holder of the financial instruments and is the subject to the Commission’s supervision.
Hence, the holders of financial instruments have at their disposal the only formula for the calculation, which will help them to identify whether the obligation to provide special information upon getting the threshold is present.
Николай Войтович
The Ukrainian Journal of Business Law сентябрь 2019 года
http://ujbl.info/article.php?id=1292