Implementation of Article 29 (par. 7, 8 and 9) of Law 4569/2018 (Government Gazette A' 179)
Pursuant to decision no. 281/7.11.2018 of the Board of Directors of Hellenic Central Securities Depository S.A. (ATHEXCSD) and following the relevant announcement dated 8/11/2018 in its capacity as Administrator of the Dematerialised Securities System (DSS), the technical and procedural issues concerning the application of the provisions of par. 7, 8 and 9, article 29 ("Transitional and repealed provisions") of Law 4569/2018 (Government Gazette A' 179) are regulated in accordance with Resolution No. 7 of the Board of Directors of ATHEXCSD, Resolution No. 36 of the Stock Markets Steering Committee of Hellenic Exchanges - Athens Stock Exchange S.A., as well as the procedure and specific terms for the forced sales of securities in the Special Account of beneficiaries of their Share in the Dematerialised Securities System (DSS) and the depositing of the sale proceeds or of unsold securities in the Consignment Deposits & Loans Fund (CDLF) in the name of the beneficiary, as stipulated in detail below.
1. Transfer of available transferable securities, free of encumbrances or attachments, from the special account to an operator account of beneficiaries
According to the provisions of Law 4569/2018 (par. 7a, article 29), the transfer of the above securities from the special account to an operator account of beneficiaries were required to have completed within a period of three months after two months have elapsed from the entry into force of the law, i.e. up until 13/3/2019. Pursuant to the decisions of 27/3/2019 and 29/3/2019 of the Board of Directors (BoD) of the Hellenic Central Securities Depository SA ("ELKAT" or "ATHEXCSD"), the transfers of beneficiaries from the Special Account to the Operator Account were accepted until the day before the forced sales began.
The aforesaid transfer of securities is carried out after submission of a relevant request to ATHEXCSD from the beneficiaries or competent operators, in accordance with existing procedures.
Securities in the Share of a deceased person whose death has been notified to ATHEXCSD, as well as securities in the CDLF Deposit Share in the DSS, and any securities that are blocked due to attachment are excluded and cannot be transferred.
2. New framework for placement of encumbrances (pledges and other charges) on an operator account of beneficiaries
As of 17/12/2018, pledges and other charges will be placed not on the special account, but on an operator account of beneficiaries:
- either by the operator, only in the case of in rem financial collateral,
- or by the DSS Administrator, in accordance with articles 48, 48A and 49 of the DSS Operating Rules.
In the new framework, the DSS Administrator is required to have access to the securities to be pledged/encumbered through the blocking of securities by means of a statement of intent to place an encumbrance by the Operator (article 45 of the DSS Operating Rules), but now without the securities being transferred to the special account.
Subsequently, on the basis of the documents furnished by the contracting parties, the DSS Administrator will carry out a confirmation and final registration of the encumbrance on the Operator account, without the Operator being able to make any modification to the said encumbrance. Similarly, the encumbrance will be removed by the DSS Administrator upon application by the creditor.
3. Transfer of encumbrances from the special account to an operator account
Within the period from 13/12/2018 to 15/4/2019, the encumbrances (pledges, usufructs and other charges) registered in the DSS must be transferred from the special account to an operator account of beneficiaries. The transfer procedure is as follows:
- The encumbrances registered in the special account, for which the contracting parties have appointed a joint Operator (for the return/receipt of benefits), will be transferred by ATHEXCSD on Monday 17/12/2018, en masse and automatically from the special account to the operator account of the beneficiary under the care of the joint Operator, without the contracting parties being required to undertake any action.
- If the beneficiaries do not wish the above automatic transfer to take place, they must designate a different Operator to the one provided in the terms of the pledge or other charge, by submitting a declaration of amendment to the terms of the pledge or other charge to ATHEXCSD by no later than 12/12/2018.
- In the period from 18/12/2018 to 13/3/2019, transfers of any remaining encumbrances (without a joint Operator) can be made through the actions of beneficiaries, but only if a joint Operator is designated by the contracting parties.
- To prevent the forced sale of encumbrances that have not been transferred by 13/3/2019, the person in whose favour the encumbrance has been established (creditor) is entitled to appoint an Operator of its choice to the Securities Account of the Share of the beneficiary in the DSS within one month from the end of the above time limit, i.e. up to 15/4/2019. The aforesaid persons have been notified in this regard by ATHEXCSD after 13/3/2019. The transfer period ended on Monday 15/4/2019.
- At all events, in cases of pledges or charges with multiple rankings, upon transfer the respective persons in favour of whom the pledge or encumbrance of the next rankings has been established shall be notified accordingly through the DSS.
4. Compulsory sale of securities in the special account of beneficiaries
Under the conditions and subject to the time limits stipulated in par. 7 and 8 of Article 29, Law 4569/2018, a forced sales is performed of attached, available and encumbered transferable securities which continue to be kept in the special account of beneficiaries, in cases where their timely transfer to an Operator account is not possible. Specifically:
- The forced sale is performed after an announcement by the DSS Administrator which, pursuant to par. 9 of the same article, have been posted on the website of the DSS Administrator, and published in one (1) daily political and one (1) financial newspaper, which are published in Athens and widely circulated throughout the country, three (3) business days prior to the sale, by a trading member of Athens Exchange (ATHEX) in accordance with Resolution No. 36 of the Stock Markets Steering Committee of Hellenic Exchanges - Athens Stock Exchange S.A.
- The portfolios of beneficiaries of a Special Account, which are to be sold, had been grouped into portfolio sets of approximate value €200,000 each, with valuation date the day preceding the start of each forced sale period as specified in article 29 of Law 4569/2018. The aforesaid sets had been weighted to ensure a pro rata distribution of low-value portfolios and illiquid securities. The sets may exceed the aforesaid value limit only if they contain the portfolio of a Special Account beneficiary which is of equal or higher value than the limit.
- In each forced sale period as specified in article 29 of Law 4569/2018, Members are invited by ATHEXCSD to participate in the relevant sale procedure in alphabetical order on the basis of a list of members which is kept in Latin characters by ATHEX and is posted on the company's website (www.athexgroup.gr). With the relevant invitation to participate from ATHEXCSD, in the situation that the DSS will be in on the business day preceding the start of each forced sale period, the Members will be informed of the following details:
- the total number of beneficiaries' portfolios to be sold;
- the total number of securities (ISINs) of beneficiaries' portfolios to be sold;
- the total quantity of aforesaid securities (ISINs);
- the total value of beneficiaries' portfolios to be sold;
- the number of sets of beneficiaries' portfolios to be sold.
- Members conduct the forced sales of portfolios of beneficiaries which are assigned to them by ATHEXCSD, for a commission that is set, the same for all Members, at a rate of 0.35% of the value of the sale transactions carried out, with no minimum fee.
- In the relevant application to participate in the forced sales procedure of ATHEXCSD, which is submitted between the ninth and the seventh business day prior to the commencement of each forced sale as announced by ATHEXCSD, each Member explicitly and irrevocably declares its participation in the relevant procedure in accordance with the terms hereof, as well as its intention to accept either a specific number of portfolio sets for sale or an unlimited number of portfolio sets for sale. In addition, it declares the International Bank Account Number (IBAN) of its account at ALPHA BANK, which will be credited with its commission (0.35%) and expenses [fees of ATHEX (0.0125%) & ATHEXClear (0.02%)] for the settled forced sale transactions.
- The sale of sets of portfolios of beneficiaries of a Special Account is assigned to participating Members by ATHEXCSD in a random manner and the respective assignment is made five (5) business days prior to the sale and publicly disclosed by ATHEXCSD, by the means stipulated in paragraph 9, Article 29, Law 4569/2018, three (3) business days before commencement of the sale.
- ATHEXCSD notifies participating Members by means of a file (in .csv format) regarding the details of the Special Account beneficiaries of portfolios to be sold on the third business day prior to commencement of the sale and Members without delay notify ATHEXCSD by means of the same file regarding the Client Code of each beneficiary and by no later than the end of the second business day before commencement of the sale.
- On the business day before commencement of the sale, ATHEXCSD notifies participating Members by means of a file (in .txt and .csv format) regarding the portfolios assigned for sale. It should be noted that the Member is not required to create an Operator Account in the DSS for the beneficiaries of the portfolios being sold.
- The forced sale procedure is conducted at the closing price exclusively on the basis of sell orders at the close (ATC) price in accordance with the provisions of article 22.214.171.124 of the Athens Exchange Rulebook.
- Forced sales are carried out daily from the date of their commencement in accordance with the relevant announcement of ATHEXCSD and continue until completion of the sale of the portfolios being sold or until expiration of the forced sale period.
- Participating Members are obliged to enter sell orders daily for the outstanding balances of portfolios being sold, until completion of their sale or expiration of the forced sale period, entering the respective orders with time priority.
- Participating Members shall send to ATHEXCSD:
- Daily, up to 19:00 on the day of conclusion of the forced sale transaction (T), the details of the sale transactions carried out on that day, by means of a file (in .csv format) which for each sale transaction will include the following: Member Code, transaction date, Client Code, ISIN, quantity, ATC price and total value.
- Up to the day after (T+1) the day of conclusion of the forced sale transaction (T), the forced sale transaction reports for each beneficiary (Client Code) and date (T), by means of a file (in .pdf format) which in addition to the detailed transaction data will include the commission of the Member (0.35%) and the fees of ATHEX and ATHEXClear (0.0125% & 0.02% respectively).
- It should be noted that the charge for account notification and the applicable sales tax on forced sale transactions is withheld by ATHEXCSD from the sale proceeds of the beneficiary's portfolio and remitted to ATHEXClear and the Tax Administration respectively. The charges of ATHEXCSD which correspond to the forced sale transactions per beneficiary's Special Account cannot exceed the total proceeds of such sale.
- The clearing of forced sale transactions carried out in accordance with the preceding paragraphs is conducted through ATHEXClear in accordance with the provisions of the Rulebook for Clearing Transactions in Book-Entry Securities. For the settlement of the relevant forced sale transactions, ATHEXCSD acts as exclusive Operator in the Securities Accounts of the Shares of beneficiaries, in respect of those transferable securities for which the forced sale is being conducted in accordance with its procedures.
- Participating Members, after submitting the application to participate in the forced sale procedure of ATHEXCSD, shall be obliged to take steps to ensure the timely submission to ATHEXClear of the required Joint Declaration of the Operator 014 ("ATHEXCSD FORCED SALES Law 4569/2018") and the competent Clearing Member (on the basis of the relevant specimen in Annex I, Resolution 11 of ATHEXClear), in order to enable the transfer of the respective forced sale transactions from the competent Clearing Member to the Operator 014.
- The competent Clearing Members transfer the forced sale transactions to the Operator 014 (ATHEXCSD) up until T+1 (before 16:00) so they are not burdened with additional cost. The only condition being that the forced sale transactions thus transferred have been concluded exclusively at the close (ATC) price.
- On the day after settlement, participating Members are informed regarding their commission (0.35%) and expenses [fees of ATHEX (0.0125%) & ATHEXClear (0.02%)] per forced sale transaction and ATHEXCSD credits the corresponding total monetary amount in the ALPHA BANK account that has been declared in their Application for Participation in the forced sale procedure.
- The contracting parties agree that any dispute regarding the interpretation and/or application of and/or compliance with the terms hereof will be referred to the courts of Athens which have subject-matter jurisdiction.
5. Schedule of tasks for the compulsory sale of securities in the special account of beneficiaries
More specifically, by category of securities to be sold, the relevant tasks had beeen scheduled to be carried out as follows:
5.1 Forced sale of attached securities
Within the aforementioned foreclosure period, new securities were created at the special account due to corporate actions followed by an additional divestiture assignment to the Member who had already received divestiture orders for the investor. Beneficiaries were informed by ATHEXCSD in order to transfer the securities to an Operator account until 11/12/2018.
5.2 Forced sale of available securities
5.3 Forced sale of securities encumbered by pledge or usufruct
5.4 Deposit of proceeds of securities sold or of unsold securities in the LCF
For cash consignment, ATHEXCSD deducted from the net proceeds of the disposal the debtors' fees for the special account and the fees of the Loan and Consignment Fund (LCF). Deposited the remaining amount at LCF on behalf of the beneficiaries (the numbers of the consignments and the dates of filing of the deposit are indicated above).
Securities consignment, although filed by ATHEXCSD within the time limit, were accepted by LCF on 14/11/2019 and 15/11/2019 (consignments numbers mentioned above). The estimate value was based on the closing price on Friday 8/11/2019, following the requirement of LCF to produce new files with closer data. The files were finalized on Monday 11/11/2019 and were finally submitted to LCF on Wednesday 13/11/2019.
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