5. A bank to be reorganized shall within two weeks from the date of receiving the permission from the National Bank for carrying out the reorganization be obliged to inform all of its depositors, clients, correspondents and borrowers of forthcoming changes, by way of direct notice and publication of appropriate advertisement in not less than two National newspapers.
6. The state registration or reregistration of legal entities which form as a result of reorganization shall be carried out in accordance with current legislation.
Article 61. Denial of Permission to Reorganize a Bank
Denial by the National Bank of issuing the permission to reorganize a bank shall take place for any of the following bases:
a) there in not relevant decision by the supreme authorities of banks to be reorganized;
b) violation of depositors" interests as a result of proposed reorganization;
c) violation of prudential requirements and other norms and limits which are compulsory for compliance, as a result of proposed reorganization;
d) violation as a result of proposed reorganization, or the requirements of anti-monopoly legislation.
Chapter 8. Bank Conservation
Article 62. The Concept of Bank Conservation
1. Conservation of a bank shall be a compulsory performance in accordance with the National Bank's decision, of a set of administrative, legal, financial, Institutional, technical and other measures and procedures in relation to a bank for the purposes of improving its financial position and the quality of its operation.
2. A bank may be subjected to conservation for any of the following reasons:
a) reduction of the coefficient of sufficiency of owned resources of the bank down to a level of 0.02 and lower, which is observed for three consecutive months,
b) a failure of the Bank to execute a written prescription of the National Bank.
3. Establishing of the conservation regime shall entail the appointment by the National Bank for a certain definite term of a temporary Administration for managing the bank or a temporary Administrator of the bank.
4. Conservation of a bank shall be carried out at the expense of the bank's own resources.
5. The decision of the National Bank to carry out conservation may be challenged by the bank's shareholders within nine days in a judicial procedure. Challenging of the indicated decision shall not suspend conservation of the bank.
Article 63. Temporary Administration for Managing a Bank (Temporary Administrator of a Bank)
1. Temporary Administration (temporary Administrator of a bank) shall be appointed by the National Bank from amongst its employees, or persons who are not its employees and who comply with the requirements stipulated in paragraphs 3-5 of Article 20 of this Edict.
2. The rights and obligations as weal as the terms of work remuneration of the chief and members of a temporary Administration (temporary Administrator of a bank) shall be established in a separate agreement to be concluded between the National Bank and a temporary Administration (temporary Administrator).
3. Temporary Administration (temporary Administrator of a bank) in their activities shall be guided by this Edict, the normative acts of the National Bank and other legislation of the Republic of Kazakhstan.
4. The National Bank shall have the right to replace members of a temporary Administration (temporary Administrator of a bank).
5. The chief and the members of a temporary Administration (temporary Administrator) shall bear-the responsibility established by current legislation for damage inflicted to the bank. It shall be prohibited to delegate to the chief and the members of a temporary Administration (temporary Administrator of a bank) the responsibility for the damage which may be referred to a category of normal business risk.
Article 64. Resolution on Conducting the Conservation
1. The decision of the National Bank to carry out the conservation of a bank shall be formulated as a resolution of the Board of the National Bank and it must contain the following:
a) name of the bank and its address;
b) substantiation of the decision on conservation of the bank;
c) effective beginning and term of conservation;
d) the list of restrictions of activities imposed on the bank;
e) personal membership of the temporary Administration or Name, Patronymic and Surname of the temporary Administrator;
f) prescription to executives of the bank which is under the regime of conservation, on preparation of the report in their work, declaration of income, information on existence and size of (their) property and on submission of those documents to the temporary Administration (temporary Administrator of the Bank);
g) recommendations to the temporary Administration (temporary Administrator).
2. Resolution of the Board of the National Bank on conducting conservation of a bank shall be published by the National Bank in not less than two National newspapers.
Article 65. Special Considerations in Administering a Bank During its Conservation. Powers of a Temporary Administration (Temporary Administrator) in Respect of Managing of the Bank)
1. With the beginning of effect of conservation and during its period:
a) the rights of the bank's shareholders shall be suspended in respect of its managing;
b) the authority shall be suspended of the bank's bodies and of its executives;
c) all the powers associated with managing of the bank shall be transferred to the temporary administration (temporary administrator);
d) all the transactions committed on behalf and at the expense of the bank without informing and without a written consent of the temporary Administration (temporary Administrator of the bank) shall be recognized as invalid.
2. A temporary Administration (a temporary Administrator of the bank) shall have the following rights:
a) to independently adopt decisions on any issues of activities of the bank taking into account the requirements of Article 66 of this Edict;
b) where necessary, fully or partially to suspend obligations of the bank in respect of adopted deposits for the period of conservation;
c) where necessary to annul agreements concluded by the bank, which envisage investments of the bank's resources" or introduced to them amendments and additions in unilateral procedures including changes in tariff and effective dates;
d) sign any agreements and documents on behalf of the bank;
e) present claims on behalf and in the interests of the bank;
f) issue orders, including orders of dismissal, demotion and temporary suspension from office, division of duties between the employees of the bank.
Article 66. Supervision of Activities of a Temporary Administration (A Temporary Administrator) of a Bank in Relation to Managing of the Bank
1. During the term of conservation of a bank, the supervision of the activities of the temporary Administration (temporary Administrator of the bank) shall be carried out by the National Bank which shall have the following rights:
a) issue recommendations to the temporary Administration (temporary Administrator of the bank) concerning the main directions of efforts during the period of conservation of the bank (propose a schedule of the main efforts);
b) issue written instructions which are compulsory for execution by the temporary Administration (temporary Administrator of the bank);
c) require presentation by the temporary Administration (temporary Administrator of the bank) of any information concerning its (his) activities and activities of the bank;
d) hear reports of the temporary Administration (temporary Administrator of the bank) concerning performed work;
e) extend the term of conservation;
f) adopt the decision concerning the end of conservation of the bank.
2. Detailed regulation of the activities of the temporary Administration (temporary Administrator of the bank) and the principles of its (his) relations with third parties, shall be determined by the normative acts of the National Bank.
Article 67. Cessation of Conservation
1. Conservation of a bank shall cease on the following bases:
a) expiry of the term of conservation established by the decision of the National Bank;
b) adoption of decision by the National Bank on early cessation of the conservation.
2. Cessation of conservation of a bank (including early) in relation to recovery of its financial position and to improvement of quality of operation shall entail abolition of all the requirements in relation to that bank, established by the National Bank or its temporary Administration (temporary Administrator of the bank). In that respect, alterations and additions introduced during the period of conservation to foundation documents, to governing bodies and the membership of employees shall remain in force.
3. In the event that conservation of the bank has not led to recovery of its financial position and improvement of quality of operation, the National Bank shall have the right to carry out the compulsory liquidation of the bank.
Chapter 9. The Procedure for Liquidation of Banks
Article 68. Types of and Bases for Liquidation of Banks
1. A bank may be liquidated as follows:
a) upon decision of its shareholders where there is permission of the National Bank;
b) upon the decision of the National Bank;
c) upon the decision of the court in the cases stipulated by legislative acts of the Republic of Kazakhstan.
2. The resolution of the Board of the National Bank to revoke the permission to open a bank and to annul licenses for conducting banking transactions, shall be the basis for the liquidation of the bank from the moment of its adoption.
3. From the date of adoption of the decision on compulsory liquidation of a bank and prior to the commencement of work of the Liquidation Commission, the operational management of the bank shall be delegated to the temporary Liquidator to be appointed by the National Bank. Powers of a temporary Liquidator of a bank shall be defined by the National Bank.
Article 69. A Voluntary Liquidation of a Bank
1. A bank on the basis of the decision of the general meeting of shareholders shall have the right to appeal to the National Bank with the petition to be issued the permission for its voluntary liquidation.
2. To the petition to be issued the permission of the National Bank for voluntary liquidations a bank shall attach the list of steps and stages in preparation of the bank to termination of its activities as approved by the general meeting of the shareholders, the balance sheet which witnesses the completion of settlements of the bank on its obligations and other necessary information.
3. A petition to be issued the permission for a voluntary liquidation of a bank must be processed by the National Bank within two months from the date of submission of the petition.
4. In the case of the denial of permission for voluntary liquidation of a bank, the National Bank must substantiate its decision and to communicate the denial to the management and shareholders of the bank.
5. The decision to issue the approval of the voluntary liquidation of a bank shall be adopted by the Board of the National Bank with a compulsory indication of revocation on that basis of the permission to open the bank and annulment of the license for conducting of banking transactions.
6. When the permission Is received from the National Bank for a voluntary liquidation, the bank shall form the Liquidation Commission to which the powers shall be transferred, associated with the managing of the bank. That Commission shall include one or more representatives from the National Bank as observers.
7. After receiving of the permission for a voluntary liquidation, a bank shall be obliged to publish information on that in two National newspapers.
8. The Liquidation Commission shall be obliged within seven days after the approval to present to the National Bank and the Ministry of Justice the liquidation balance sheet and the report.
Article 70. Compulsory Liquidation of a Bank
1. In the event of a revocation of the permission to open a bank and the annulment of the license for conducting of banking operations, the National Bank shall have the right to carry out a compulsory liquidation of the bank, which shall be carried out in a non-judicial procedure by the Liquidation Commission.
2. A compulsory liquidation of a bank shall be carried out on the bases indicated in Articles 48 and 49 of this Edict.
3. A Liquidation Commission may include persons who are not employees of the National bank nor of the bank to be liquidated.
The rights and obligations of the members of the Liquidation Commission and any other terms shall be defined in agreements to be concluded with those persons.
Persons Included in a Liquidation Commission shall be obliged to participate in its activities until the completion of the bank liquidation process.
4. The National Bank shall have the right to adopt the decision concerning the introduction of alterations to the membership of the Liquidation Commission or its entire replacement.
5. A Liquidation Commission shall carry out its activities In accordance with legislation of the Republic of Kazakhstan.
Special considerations In activities of bank Liquidation Commissions shall be established by normative acts of the National Bank.
6. The Liquidation Commission shall compile its report on liquidation of the bank as well as the liquidation balance sheet and It shall send it to the National Bank for approval. A liquidation balance sheet and a report on liquidation of a bank shall be subject to publication in two National newspapers.
Article 71. Restrictions of Activities of a Bank Which is Subject to Compulsory Liquidation
1. From the date of adoption by the National Bank of the decision on the compulsory liquidation of a bank and until the liquidation proceedings are completed, the powers of the general meeting of the shareholders and of the other bodies of the bank shall be suspended.
2. Information concerning the decision adopted by the National bank on compulsory liquidation of a bank must be published in two National newspapers.
3. Acts which are carried out on behalf or at the expense of the bank to be liquidated, may have legal force only in the case where they are committed by the chief of the Liquidation Commission or on the basis of a power of attorney issued by him.
4. Periods of all the debt obligations of a bank to be liquidated shall be deemed to have expired.
5. Accrual of penalties and interest shall cease with regard to all types of debts of the bank to be liquidated.
6. All the claims of property or financial nature from that moment may only be applied to the Liquidation Commission of the Bank.
Article 72. Evaluation of Properties and Debts of a Bank. Costs (Expenditures) Associated with Liquidation
1. Total assets of a bank to be liquidated shall form the basis for the formation of the liquidation (auction) mass.
Compilation of inventories and evaluation of the bank's assets shall be carried out with the assistance of hired experts.
2. The Liquidation Commission shall have the right to sell assets of the bank to be liquidated at public auctions.
3. Any costs relating to liquidation of a bank shall be carried out only at the expense of that bank.
When carrying out settlements on obligations of a bank, the expenditures associated with the liquidation proceedings" execution of functions of the entrusted person, and also those ensuing from the necessity to provide for the functioning of the bank, shall be made in a priority procedure.
4. It shall be prohibited to the National Bank to finance expenditures associated with the liquidation of a bank.
5. Claims of creditors which are not satisfied because of a shortage of assets of the bank under the compulsory liquidation, which are not recognized by its Liquidation Commission, shall be deemed to be canceled.
Article 73. Monitoring by the National Bank of Activities of Banks to be Liquidated
1. A Liquidation Commission of a Bank at the first request of the National Bank shall be obliged to present comprehensive information on its work, reports and any other information.
2. Information on activities of the Liquidation Commission and on financial position of a bank may be sent to any other bodies and organizations only with the permission of the National Bank.
Article 74. Recognition of a Bank as Bankrupt
1. Creditors of a bank shall have the right to file action with a court to recognize a bank as bankrupt.
2. Recognition of a bank as bankrupt and its liquidation in a judicial procedure may be effected only subject to special considerations established by this Edict.
Section III. Conclusive Provisions
Chapter 10. Conclusive Provisions
Article 75. The Sphere of Application of this Edict
1. The provisions of this Edict shall apply to any banks which carry out their activities in accordance with legislation of the Republic of Kazakhstan, including those established in a special-purpose procedure i.e. on the basis of separate legislative and normative acts which regulate the initial stage of their organization.
2. Prior to the adoption of a specific legislative act concerning non-banking financial institutions, the requirements of this Edict shall also apply to all operating non-banking institutions which carry out banking transactions and to those which are being formed.
3. The status and procedure for creation and activities of non-banking financial institutions, the list of banking transactions which are carried out by them and the bases for receipt of permissions for that, possible restrictions of their activities shall be established by the normative acts of the National Bank.
4. Provisions of this Edict shall apply to the National Bank only in the cases specifically stipulated in this Edict.
Article 76. Responsibility for Violation of This Edict
1. In the cases of performing banking transactions without appropriate licenses of the National Bank, income from those transactions shall be confiscated into the Republic's Budget.
2. Audit of banking activities performed by a firm of auditors which has not the license from the National Bank shall be deemed to be invalid, and any income from those activities shall be subject to confiscation into the Budget of the Republic.
3. For placement of advertisements which are not consistent with the reality, banks and also legal entities which have not the license of the National Bank for performing of banking transactions, concerning rendering the services which fall into the category of banking transactions, shall be held responsible in accordance with legislation of the Republic of Kazakhstan.
Article 77. Challenging Acts of the National Bank
Acts of the National Bank of the Republic of Kazakhstan In the sphere of regulating banking activities, may be challenged in a judicial procedure.
Article 78. This Edict's Entering into Force
1. This Edict shall enter into force from the date of its publication.
2. In the event that violations are revealed of the procedure for the formation of charter fends of banks, committed during the period of validity of Law of the Republic of Kazakhstan, dated April 14, 1993 "Concerning Banks in the Republic of Kazakhstan" sanctions stipulated in this Edict shall apply to the banks from the date of this Edict's entering into force.
President
of the Republic of Kazakhstan | N. Nazarbaev
|
