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Publication date: 26.03.2024
I am studying in the third year of the State University of Economics and Technology.I specialize in contractual, economic and corporate law, in particular, I provide consultations and write articles.
Current legislation provides for such a type of business entity as an asset management company (hereinafter - AMC), which is a legal entity operating in the form of a JSC or LLC and carrying out professional activities in managing the assets of institutional investors. The basis for carrying out such activities is obtaining a license in the manner prescribed by law. The management activity itself consists of supporting the investment fund, concluding transactions in favor of joint investment institutions and, in general, promoting effective investment. The activities of the AMC are based on the principle according to which the funds received as a result of the association of a large number of investors are invested in various financial assets (real estate, land, corporate rights, etc.) and on this basis a profit is made.
Analysis of the specific features of AMC activities:
We should start with the general requirements related to the activities of the AMC. According to Art. 63 of the Law of Law “On Joint Investment Institutions” the minimum amount of the company’s authorized capital must be UAH 7 million. It is important to note that the state's share in the authorized capital cannot exceed 10%. In addition to the authorized capital, it is necessary to create a reserve fund, the size of which is 25% of the authorized capital. Equally important are the mutual investment funds that the AMC can create, namely: closed-end funds (investment certificates are purchased at the time the fund is created), interval funds (the certificate can be alienated after a certain period of time) and open-end funds, the main feature of which is that that the certificate can be alienated at any time. The legislation also establishes prohibitions regarding the combination of asset management activities with other types of activities. At the same time, it is not prohibited to manage mortgage coverage. If the activity is related to the gratuitous alienation of assets of a joint investment institution, the provision of loans at the expense of such assets, or their execution to ensure the fulfillment of obligations to which the joint investment institution is not a party, or the alienation of property owned by companies, assets of the joint investment institution - all this and many other types of activities, the list of which established by law is unacceptable. According to the above-mentioned operating principle of the AMC, remuneration will be set as a percentage of the value of net assets or their increase in value. The amount of remuneration and the procedure for its payment are established by the National Securities and Stock Market Commission. As already noted, the basis for the activities of the AMC is a license that the National Securities and Stock Market Commission is authorized to issue if the company meets the licensing requirements. In particular, such requirements relate to transparency of ownership structure, managers and other officials, organizational structure of companies, software, etc. Before contacting the licensing authority, you must familiarize yourself with all the requirements in detail. A legal opinion may be needed here.
Procedure for creating an AMC:
1. Before submitting documents to the registrar, the founders must decide on the organizational and legal form of the legal entity, prepare constituent documents, and form the constituent capital.
2. If the above actions have been implemented, you must contact the state registrar in order to enter information into the Unified State Register and obtain a certificate of state registration.
3. Next, you should obtain a license to carry out asset management activities. To do this, you need to submit documents through the official channel in electronic form to the National Securities and Stock Market Commission. Within 5 days after receiving the documents, the licensing authority will send the applicant confirmation of receipt of the documents. The decision to issue a license is made within 6 months.
Legal advice when creating an AMC:
The services of a lawyer may be needed throughout the entire procedure for creating an AMC described above. Starting from determining the organizational and legal form of the business and ending with obtaining a license, the lawyer will ensure that all steps comply with legal requirements, analysis of documents, help draw up a constituent document, properly carry out state registration, and also analyze licensing requirements. So, lawyer's consultation is an integral tool that allows you to avoid unnecessary costs of time and money.
