Instruction No. 47/2011 amending and repealing Instruction No. 30/2001 on private placement bond registration

Instruction n° 47 / 2011

West African Monetary Union

Regional Council for Public Savings and Financial Markets

INSTRUCTION N°47 / 2011

AMENDING AND REPEALING INSTRUCTION N°30/2001 RELATING TO THE CONDITIONS FOR REGISTRATION OF BOND ISSUES BY PRIVATE PLACEMENT ON THE REGIONAL FINANCIAL MARKET OF THE WEST AFRICAN MONETARY UNION (UMOA)

The Regional Council for Public Savings and Financial Markets

Having regard to the Convention of July 3, 1996 establishing the Regional Council for Public Savings and Financial Markets (hereinafter "the Regional Council");

Having regard to the Annex to the Convention of July 3, 1996 relating to the composition, organization, functioning, and powers of the Regional Council;

Having regard to the General Regulation relating to the Organization, Functioning, and Control of the Regional Financial Market of the UMOA, particularly Article 134, adopted by the Council of Ministers of the Union by Decision No. 001/97 of November 28, 1997;

Having regard to Decision CM No. 2/6/00 of the UMOA Council of Ministers, dated June 28, 2000, determining the criteria for identifying bond issues by private placement issued on the Regional Financial Market of the UMOA;

Having regard to Decision CM No. 1/6/00 of the UMOA Council of Ministers, dated June 28, 2000, establishing a Registration Commission for bond issues by private placement issued on the Regional Financial Market of the UMOA;

Having regard to the deliberations of the Regional Council in its ordinary session held on September 9, 2011, in Dakar, Senegal;

HAS DECIDED

Avenue Joseph ANOMA 01 BP 1878 Abidjan 01 - Côte d'Ivoire TEL.: (225) 20 21 57 42/20 21 51 79 Fax: 20 22 16 57 presidence@crepmf.org www.crepmf.org

Instruction n° 47 / 2011

CHAPTER I: GENERAL PROVISIONS

Article 1

A bond issue made by private placement on the regional financial market of the Union is carried out by:

• The issuance, without publicity, of bonds that will not be listed on the stock exchange of the Regional Securities Exchange.
• The issuance of bonds placed through a circle of no more than one hundred (100) qualified investors acting for their own account. By law, the following are considered qualified investors: banks, financial institutions, Management and Intermediation Companies, Wealth Management Companies acting for their own account, insurance and reinsurance companies, group insurance companies, mutual societies and unions of mutual societies, provident institutions, deposit, amortization, or stabilization funds, investment companies with fixed capital or venture capital firms, and alternative management funds.

Other qualified investors, notably natural persons capable of understanding the merits and risks inherent in operations on financial instruments or securities, are declared as such before the Regional Council.

• The issuance of bonds with a nominal value of 50 million FCFA or any multiple of this amount.

The aforementioned conditions are cumulative.

Article 2

The amount of a bond issue made by private placement on the regional financial market of the UMOA may not exceed ten (10) billion FCFA.

Article 3

Bond issues made by private placement on the regional financial market are subject to prior registration by the Regional Council.

Article 4

In accordance with Article 111 of the General Regulation relating to the Organization, Functioning, and Control of the regional financial market of the UMOA, bonds resulting from a private placement issue must be held by the Central Depository/Settlement Bank on the effective date of the issue.

Avenue Joseph ANOMA 01 BP 1878 Abidjan 01 - Côte d'Ivoire TEL.: (225) 20 21 57 42/20 21 51 79 Fax: 20 22 16 57 presidence@crepmf.org www.crepmf.org

Instruction n° 47 / 2011

Article 5

Any entity intending to issue a bond by private placement on the regional financial market of the UMOA is required:

• To prepare an information note subject to mandatory registration by the Regional Council;
• To transmit a registration request to the Regional Council;
• To designate a Management and Intermediation Company (SGI) which will be responsible, under its liability, for the execution of the operation. The designated SGI will act as the lead manager for the placement of the securities and may rely on a placing network, if necessary.

Article 6

In accordance with Article 780 of the OHADA Uniform Act on Commercial Companies and Economic Interest Groups, the issuance of bonds by private placement is permitted only for Anonymous Companies and Economic Interest Groups composed of Anonymous Companies that have existed for at least two years and have prepared two balance sheets regularly approved by shareholders.

Article 7

In accordance with Article 781 of the OHADA Uniform Act on Commercial Companies and Economic Interest Groups, the issuance of bonds is prohibited for companies whose share capital is not fully paid up.

Article 8

The decision of the Regional Council regarding the registration of the bond issue by private placement, as well as the information note, mentioned in Articles 3 and 5, must contain a warning drafted as follows:

Registration by the Regional Council does not imply approval of the appropriateness of the operation, nor authentication of the accounting and financial elements presented, nor guarantee or certification of the information disseminated.

The information note subject to registration is established solely under the responsibility of the Issuer, and the registration number is assigned only after verification that this information note is complete and understandable and that the information it contains is relevant and coherent in the perspective of the operation proposed to subscribers.

Registration by the Regional Council does not constitute a guarantee against the risk of non-repayment of the installments of the securities whose issuance is thus authorized.

Avenue Joseph ANOMA 01 BP 1878 Abidjan 01 - Côte d'Ivoire TEL.: (225) 20 21 57 42/20 21 51 79 Fax: 20 22 16 57 presidence@crepmf.org www.crepmf.org

Instruction n° 47 / 2011

CHAPTER II: PROVISIONS RELATED TO INFORMATION TO BE TRANSMITTED TO THE REGIONAL COUNCIL IN THE FRAMEWORK OF FILE EXAMINATION

Article 9

The registration request addressed to the Regional Council must be accompanied by the following documents and information:

• A certified true copy of the statutes or any other document serving as such;
• A certified true copy of the Trade and Movable Credit Register dated less than three months ago;
• A certified true copy of approval decisions, licenses, or authorizations for entities with regulated activities (banks and financial institutions, insurance companies, telecommunications companies, etc.);
• The minutes of the General Assembly or the decision of the duly empowered body authorizing the issuance;
• The financial statements (Balance Sheet, Income Statement, TAFIRE, and Annexed Statement) for the last two fiscal years, as well as, where applicable, consolidated accounts, certified by a Statutory Auditor;
• The last two general and special reports of the Statutory Auditors approved by the Ordinary General Assembly ruling on the social accounts;
• The minutes of the Ordinary General Assemblies having approved the accounts of the last two fiscal years;
• The latest verification report from the supervisory authority for entities whose activity is subject to approval, authorization, or license;
• The information note intended for the information of subscribers listed among the prospective investors;
• The list of prospective investors.

After the registration of the operation, the list of prospective investors cannot be subsequently modified by replacing or adding subscribers except with prior authorization from the Regional Council.

The Regional Council may request all additional information in the framework of the file examination.

Article 10

The mandatory mentions contained in the information note referred to in the previous article are specified by Circular.

Avenue Joseph ANOMA 01 BP 1878 Abidjan 01 - Côte d'Ivoire TEL.: (225) 20 21 57 42/20 21 51 79 Fax: 20 22 16 57 presidence@crepmf.org www.crepmf.org

Instruction n° 47 / 2011

CHAPTER III: PROVISIONS RELATED TO THE EXECUTION OF THE OPERATION

Article 11

The Regional Council may at any time, after the registration of the operation, interrupt its execution for any reason likely to harm the proper functioning of the financial market or the interests of investors.

Article 12

During the entire duration of the loan, the Regional Council may carry out all controls to ensure compliance by the issuer with the provisions governing the issuance of bond issues by private placement and those contained in the information note referred to.

Article 13

The information note must be made available exclusively to the subscribers retained on the list of prospective investors.

Article 14

The SGI in charge of the operation is required to inform the Regional Council, on behalf of the issuer, of the progress of subscriptions, according to a periodicity specified in the registration decision of the operation.

Article 15

The SGI in charge of the execution of the operation is required to transmit to the Regional Council, on behalf of the issuer, an issuance report according to a format defined by Circular.

CHAPTER IV: REGISTRATION COMMISSION

Article 16

The Regional Council collects commissions for:

• The registration of bond issues made by private placement on the regional financial market of the Union;
• The visa of the information note.

Article 17

The commission for the registration of bond issues made by private placement is based on the amount of mobilized resources.

Avenue Joseph ANOMA 01 BP 1878 Abidjan 01 - Côte d'Ivoire TEL.: (225) 20 21 57 42/20 21 51 79 Fax: 20 22 16 57 presidence@crepmf.org www.crepmf.org

Instruction n° 47 / 2011

The commission for the visa of the information note as well as that for the list of prospective investors are fixed.

Article 18

The scale of tariffs applicable by the Regional Council is fixed by decision of the Council of Ministers of the UMOA.

CHAPTER V: FINAL PROVISIONS

Article 19

This Instruction, which will be published wherever necessary, repeals Instruction No. 30/2001 of March 27, 2001, and takes effect from its date of signature.

Made in Dakar, on September 9, 2011

The President

(Signature)
Léné SEBGO

Avenue Joseph ANOMA 01 BP 1878 Abidjan 01 - Côte d'Ivoire TEL.: (225) 20 21 57 42/20 21 51 79 Fax: 20 22 16 57 presidence@crepmf.org www.crepmf.org