BCEAO Instruction No. 001-01-2017 on Prior Authorization for Modifications to Legal Form, Corporate Name, and Share Capital Structure of Decentralized Financial Systems in UMOA

The Governor of the Central Bank of West African States (BCEAO), Having regard to the Treaty of the West African Monetary Union (UMOA) dated 20 January 2007, particularly Article 34; Having regard to the Statutes of the Central Bank of West African States, annexed to the UMOA Treaty dated 20 January 2007, particularly Articles 30 and 59; Having regard to the Uniform Act on the regulation of decentralized financial systems, particularly Articles 8, 9, 15, 16, 19, 29, 53 and 147; Having regard to the implementing Decree of the Uniform Act on the regulation of decentralized financial systems, particularly Articles 31 to 35, DECIDES

Article 1: Object
This instruction aims to define, for a decentralized financial system (SFD) operating within the UMOA, the procedures for applying for prior authorization to modify:

• the legal form;
• the corporate name or trade name;
• the share capital structure of an SFD established as a company. The modification of the share capital structure concerns the acquisition or transfer of participations that would have the effect of increasing the holding of a single person, directly or indirectly, or of a concerted group of persons, first beyond the blocking minority, then beyond the majority of voting rights in the SFD, or decreasing this holding below these thresholds.
  The prior authorizations referred to in the first paragraph above are granted by the Minister in charge of Finance of the state of establishment.

Article 2: Documents forming the prior authorization application file
The prior authorization application file includes a written application addressed to the Minister in charge of Finance of the member state where the SFD's registered office is located, as well as the documents and information listed in Annex 1 of this instruction.

Article 3: Template for presenting the prior authorization application file
The information to be provided in the prior authorization application file for modifying the legal form, corporate name, trade name or share capital structure of an SFD established as a company is presented according to the template set out in Annex 2 of this instruction.

Article 4: Transmission method
The prior authorization application file is submitted in two paper copies to the Ministerial Monitoring Structure of the member state where the SFD's registered office is located. In addition to paper, the file may also be submitted electronically in an accessible format.

Article 5: Information to the General Secretariat of the UMOA Banking Commission
For SFDs referred to in Article 44 of the Act on the regulation of SFDs, the BCEAO National Directorate transmits a copy of the file to the General Secretariat of the UMOA Banking Commission for information.

Article 6: Complementary documents or information
The Ministerial Monitoring Structure and the Central Bank may request any complementary documents and information they deem useful for processing the file. The applicant has a maximum period of one month, from the date of acknowledgment of receipt of the letter from the Ministerial Monitoring Structure or the Central Bank, to submit the complementary documents and information referred to in the first paragraph above. Any request for complementary information suspends the time limits prescribed by the Uniform Act on the regulation of SFDs for processing the file and issuing the ministerial order. Upon expiration of the one-month period referred to in the second paragraph above and failing submission of all required documents and information, the application is rejected by the Ministerial Monitoring Structure, with notification to the applicant.

Article 7: Entry into force
This instruction, including its annexes which form an integral part thereof, enters into force from the date of its signature. It shall be published where necessary.
Done in Dakar, 17 January 2017
Tiémoko Meyliet KONE

ANNEXES TO INSTRUCTION NO. 001-01-2017 ON PRIOR AUTHORIZATION APPLICATIONS FOR MODIFICATION OF THE LEGAL FORM, CORPORATE NAME, TRADE NAME OR SHARE CAPITAL STRUCTURE OF A DECENTRALIZED FINANCIAL SYSTEM OPERATING IN THE WEST AFRICAN MONETARY UNION

ANNEX 1: LIST OF DOCUMENTS AND INFORMATION FORMING THE FILE
I – COMMON DOCUMENTS AND INFORMATION FOR PRIOR AUTHORIZATION APPLICATIONS FOR MODIFICATION OF LEGAL FORM, CORPORATE NAME, TRADE NAME OR SHARE CAPITAL STRUCTURE I.1 - LEGAL AND FINANCIAL DOCUMENTS

• written application addressed to the Minister in charge of Finance signed by the duly authorized representative;
• certified copies of amended statutes signed by authorized persons;
• amended internal regulations, where applicable;
• proposed governance organization and detailed projected organizational chart;
• new composition of the Board of Directors or equivalent body;
• share capital amount and its distribution following the operation, with an indication of shareholder or partner nationality for SFDs established as companies;
• annual reports for the last three financial years, on an individual and/or consolidated basis, as applicable. For network structures and SFDs referred to in Article 44 of the Act on the regulation of SFDs, financial statements must be certified by an auditor;
• reports of statutory auditors for the last three financial years, for network structures and SFDs referred to in Article 44 of the Act on the regulation of SFDs;
• prudential status derived from the SFD's last three financial statements at the date of submission of the prior authorization application.

I.2 - DESCRIPTION OF THE PROPOSED OPERATION

• motivations and objectives for modifying the legal form, corporate name or trade name;
• institutional transformation plan in case of change of legal form;
• financing or partnership agreement, where applicable;
• minutes of the deliberative bodies of the SFD authorizing the operation.

I.3 - OTHER COMPLEMENTARY DOCUMENTS AND INFORMATION

• all complementary documents and/or information required by the Ministerial Monitoring Structure or the Central Bank.

II – SPECIFIC DOCUMENTS AND INFORMATION FOR PRIOR AUTHORIZATION APPLICATIONS FOR MODIFICATION OF SHARE CAPITAL STRUCTURE II.1 – PRESENTATION OF THE SHAREHOLDER OR PARTNER CONCERNED BY CROSSING THE THRESHOLD Where the concerned shareholder or partner belongs to a group of companies, the status of the shareholder/partner and that of their group are presented according to point 2.1.2 of this annex.
2.1.1. Shareholder or partner being a natural person

• certified copies of official documents establishing identity and nationality;
• court record extract dated less than three months old or equivalent document, issued by the national authorities of the country of origin;
• detailed, certified true, dated and duly signed CV of the interested party;
• notarized declaration on the lawful origin of funds to be used for acquiring shares or partnership interests.

2.1.2. Shareholder or partner being a legal entity

• corporate name and registered office address;
• capital amount and list of principal shareholders or partners duly identified, with indication of their participation level in absolute and relative terms, nationality and address;
• financial status with supporting documents, the last three certified financial statements and activity reports, on an individual and/or consolidated basis, as applicable;
• notarized declaration by an authorized representative on the lawful origin of funds to be used for acquiring shares or partnership interests;
• indication of establishment as subsidiaries or branches (agency or counter) with their status;
• minutes of meetings of the bodies authorizing the acquisition of shares or partnership interests;
• prudential status derived from the last three financial statements of the establishment at the date of submission of the prior authorization application.

II.2 – PRESENTATION OF THE PROPOSED OPERATION
2.2.1. General documents and information

• reasons motivating the transfer of shares or partnership interests by the transferor;
• objectives pursued by the transferee in acquiring shares or partnership interests;
• minutes of meetings of the deliberative bodies of the SFD authorizing the operation;
• share or partnership interest transfer agreement, where applicable;
• distribution of share capital in absolute and relative terms following the operation, with an indication of shareholder or partner nationality;
• composition of the management body after the operation, where applicable;
• certified copies of official documents establishing identity and nationality of new administrators and executives, where applicable;
• detailed CVs, certified true, dated and duly signed by the new administrators and executives concerned;
• court record extracts or equivalent documents dated less than three months old concerning the new administrators and executives concerned;
• sworn declaration of links between promoters and reference shareholders or partners with other SFDs, establishments or any other company;
• copies of exemption decisions regarding the nationality condition for new administrators and executives who are not UMOA nationals and do not benefit from assimilation to Union nationals under a treaty of establishment or reciprocity convention;
• technical assistance agreements, where applicable;
• no-objection opinion from the supervisory authority and information on their status for legal entities subject to specific regulation (foreign bank, insurance company, etc.).

2.2.2. Economic and financial documents and information

• strategies and business plan for a period of at least three years including forecast financial statements (balance sheet and income statement) presented in accordance with the specific accounting framework for SFDs, based on three assumptions (high, medium and low);
• cash flow plan for three years based on the aforementioned three assumptions;
• forecast status regarding the prudential framework in force in UMOA for three years based on the aforementioned three assumptions.
  NOTE: All documents and information must be drawn up in French.

ANNEX 2: TEMPLATE FOR PRESENTING FILES
This template serves as a guide for management to present the prior authorization application file for modifying the legal form, corporate name, trade name or share capital structure of an SFD. It comprises two parts and constitutes a minimum basis for presenting the file.

I - COMMON DOCUMENTS AND INFORMATION FOR PRIOR AUTHORIZATION APPLICATIONS FOR MODIFICATION OF LEGAL FORM, CORPORATE NAME, TRADE NAME OR SHARE CAPITAL STRUCTURE I.1 – PRESENTATION OF THE DECENTRALIZED FINANCIAL SYSTEM
1.1.1. Corporate name or trade name
Specify the corporate name (including acronym) under which the SFD was approved and the trade name, where applicable.
1.1.2. Legal form
The legal form of the institution must be recalled, mentioning its most recent modification where applicable.
1.1.3. Registered office
The precise address of the SFD's registered office must be mentioned, including telephone number and electronic address.
1.1.4. Share capital
This section must indicate all information on the SFD's share capital, specifying in particular the paid-up capital amount and the nominal value of shares or partnership interests.
1.1.5. Distribution of share capital
For SFDs established as companies, the presentation of the capital structure is required. The names and surnames (or corporate name for legal entities) of shareholders or partners, their nationality and their share in absolute and relative terms must be included.
1.1.6. Executives or administrators
This section covers the names, surnames and other details of the SFD's administrators or executives. The composition of new corporate bodies must comply with the institution's statutes and prevailing legal texts. Copies of exemption decisions regarding the nationality condition for non-UMOA administrators and executives must be attached to the file, in accordance with the Uniform Act on SFD regulation.

I.2 – EXAMINATION OF THE OPERATION
1.2.1. Motivations for the operation
Covers justification for changing legal form, corporate name, trade name or share capital structure.
1.2.2. Validity of the operation
Indicates the bodies that decided on the operation.

II - SPECIFIC DOCUMENTS AND INFORMATION FOR PRIOR AUTHORIZATION APPLICATIONS FOR MODIFICATION OF SHARE CAPITAL STRUCTURE II.1 – INFORMATION ON THE DECENTRALIZED FINANCIAL SYSTEM
2.1.1. Distribution of share capital
Shareholders or partners must be grouped into homogeneous categories in a synoptic table showing: 1) National shareholders/partners (legal entities, natural persons); 2) Foreign shareholders/partners (legal entities, natural persons); 3) Total = (1)+(2). Comments on capital distribution and future developments, including capital increases, must be included. In particular, operations involving the acquisition or transfer of participation that would bring the holding of a single person (directly or indirectly) or a concerted group beyond the blocking minority, then beyond the majority of voting rights in the SFD, or below these thresholds, must be communicated.
2.1.2. Financial status of the SFD
Characteristic financial elements must be presented to allow analysis of activity evolution, particularly regarding total assets, balance sheet totals, liquidity and profitability over at least three years. The financial status must be presented in relation to the prudential framework, based on the latest financial statements at the date of application.

II.2 - PRESENTATION OF THE SHAREHOLDER OR PARTNER CONCERNED BY CROSSING THE THRESHOLD When multiple shareholders/partners are concerned, each actor's status must be presented according to the same scheme. Where the shareholder/partner belongs to a group of companies, the financial status of the concerned entity and its group must be presented. In both cases, the template is the same and may revolve around:
2.2.1. General information
Legal status and creation date are mentioned. Capital structure is recalled and main executives presented. Establishment zones are mentioned, where applicable, with participation levels in different units.
2.2.2. Activities and financial status
Characteristic balance sheet and income statement elements are presented over at least three years. If the shareholder/partner is a financial institution, its compliance with applicable prudential norms is presented based on the latest financial statements at application date. For files requiring group status presentation, consolidated accounts are analyzed.

II.3 - PRESENTATION OF THE OPERATION
2.3.1. Motivation for the operation
Necessary when threshold crossing results from share/partnership interest transfers.
2.3.1.1. For the transferor
Reasons for transferring shares/partnership interests are specified.
2.3.1.2. For the transferee
Motivations for acquiring shares/partnership interests are specified.
2.3.2. Validity of the operation
Minutes of General Meetings or Boards of Directors authorizing the operation are commented on, considering applicable statutory provisions for concerned shareholders/partners. If threshold crossing results solely from a capital increase, Extraordinary General Meeting decisions must be commented on.
2.3.3. Impact of the operation on share capital structure
Analysis covers pre- and post-operation capital distribution, positioning the request relative to the SFD regulation Act.
2.3.4. Presentation of Management post-operation
Projected management body composition is presented in line with prevailing legal texts, accompanied by administrative documents assessing financial competence, integrity and nationality of new administrators/executives.
2.3.5. Development Strategy
Clarifies how the proposed operation may affect prior strategy and business plan. SFD activity development program is specified, including underlying assumptions. Forecast financial status is presented for at least three years (balance sheets and income statements). Cash flow situation is also analyzed.
2.3.6. Forecast prudential status
Prudential status forecasts are made based on detailed calculated prudential ratios.