In the Official Gazette of Romania No 568 / 6 September 2013 was published Regulation No 2 / 28 August 2013, which amends and supplements Regulation No 6 / 2008 of the National Bank of Romania, regarding the commencement of activity and changes in the status of credit institutions that are Romanian legal entities and of the branches in Romania of third-country credit institutions.
The major provisions of Regulation No 2 / 2013 (the “Regulation”) refer to the following:
– The change in the status of credit institutions relating to the decrease of share capital or the acquisition of own shares by credit institutions, which is conducive to the return of capital to security holders, shall be submitted to the NBR for approval.
– With a view to meeting the criterion for the permanency of funds in order to use them immediately and unrestrictedly as per Art.21 (1) of Regulation No 18/23/2006 of the National Bank of Romania and the National Securities Commission, regarding own funds of credit institutions and investment firms, the shares shall be issued for an indeterminate period of time and no contractual clause shall enable security holders to request that the issuing credit institution should return the capital covering the value of the shares held by such security holders, excepting liquidation and other cases provided under the relevant law. Security holders shall have the right to claim receivables over residual securities pro rata in case of liquidation.
– Both contractual provisions and the information supplied in respect to various means of promoting the issue of securities shall be accurate and unequivocal so that no room for interpretation should exist which might mislead security holders and make them request return of capital worth of the shares they hold from the issuing credit institution.
– Security holders shall not have put option against the issuing credit institution. In the case of cooperative credit unions, the members’ right to claim total return of the value of subscribed shares, following such members’ withdrawal from the union, shall not be deemed a put option.
– The National Bank of Romania may deny approval of the forwarded requests or may set limitations on the amount to be returned pursuant to the application of the decision regarding capital decrease, more particularly when the level of credit institution’s own funds, both current and projected, is not adequate to the assumed risks.
– The credit institution may inform security holders of any return of capital only after obtaining approval from the National Bank of Romania.
– After obtaining approval from the National Bank of Romania and after making the capital decrease or the acquisition of own funds public, the credit institution may return the estimated amount which is deducted from Tier 1 basic own funds.
– The acquisition of own funds by an issuing credit institution, which leads to returning capital to security holders shall be notified to the National Bank of Romania (at least thirty (30) days prior to the contemplated acquisition date) if the credit institution intends to temporarily hold, in its capacity as market shaper, the acquired securities/shares or to distribute them to employees, provided that their value is in no way in excess of:
– 3% of the value of the respective issue of shares;
-10% of the value of Tier 1 own funds that remained after the requirement for covering the capital pertaining to this Tier has been met.
– The National Bank of Romania may oppose the acquisition of shares or may set a limitation on the amount which is to be returned following the performance of such operation especially when it identifies that the level of credit institution’s own funds, both current and planned, is not adequate to the risks assumed by such institution.
LEGAL ALERT by Duncea, Stefanescu & Associates/MAZARS
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