2016-12-27 | DOF 5467698Added
The CNBV replaces Annexes 13, 14, 15, 16, and 21 of the General Provisions applicable to investment funds and service providers with new formats for information, curriculum, and protest letters. These requirements apply to persons intending to participate in the share capital of operating, distributing, or valuing societies, as well as those administering electronic trading mechanisms or information dissemination. The resolution entered into force the day after its publication on December 27, 2016, while prior procedures remain governed by the regulations in effect at the time of publication.
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DOF: 27/12/2016
RESOLUTION that modifies the General Provisions applicable to investment funds and to the persons who provide services to them.
At the margin, a seal with the National Coat of Arms, which says: United Mexican States.- Ministry of Finance and Public Credit.- National Banking and Securities Commission.
The National Banking and Securities Commission, with the prior agreement of its Board of Directors, based on the provisions of articles 34, fraction IV, 37, first paragraph, and 40, fourth paragraph of the Investment Funds Law, as well as 4, fractions XXXVI and XXXVIII, 16, fraction I, and 19 of the Law of the National Banking and Securities Commission, and
CONSIDERING
That in order to have investment fund operating societies, investment fund share distributing societies, investment fund share valuing societies, and societies that administer electronic trading mechanisms for investment fund shares or information dissemination that are solid and managed under the best quality standards, it is necessary to strengthen the controls that allow the National Banking and Securities Commission to verify the honorability, credit history, and satisfactory business history of potential shareholders, board members, and other relevant executives as required by the Investment Funds Law, has resolved to issue the following:
RESOLUTION THAT MODIFIES THE GENERAL PROVISIONS APPLICABLE TO INVESTMENT FUNDS AND TO THE PERSONS WHO PROVIDE SERVICES TO THEM
SOLE.- The Annexes 13, 14, 15, 16, and 21 of the "General Provisions applicable to investment funds and to the persons who provide services to them," published in the Official Journal of the Federation on November 24, 2014, and modified by resolutions published in said dissemination organ on December 26, 2014, January 6 and 9, July 23, August 3, September 1 and 18, 2015, January 6, September 28, and November 17, 2016, are SUBSTITUTED, to read as follows:
"TITLES FIRST TO EIGHTH
...
Annexes 1 to 12
...
Annex 13
Information format for persons who intend to participate in the share capital of an investment fund operating society, distributing society, or investment fund share valuing society, and persons who intend to constitute themselves as secured creditors with respect to the paid share capital of said societies, as well as for persons who intend to participate in the share capital of a society that administers electronic trading mechanisms for investment fund shares or information dissemination of investment funds.
Annex 14
Protest letter format for persons who intend to participate in the share capital of an investment fund operating society, distributing society, or investment fund share valuing society, and persons who intend to constitute themselves as secured creditors with respect to the paid share capital of said societies.
Annex 15
Curriculum information format for persons proposed to occupy the positions of board member, general director, regulatory controller, or official within the two immediate hierarchies below that of general director of investment fund operating societies, distributing societies, or investment fund share valuing societies, and societies that administer electronic trading mechanisms for investment fund shares or information dissemination of investment funds.
Annex 16
Protest letter formats for persons proposed to occupy the positions of board member, general director, regulatory controller, or official within the two immediate hierarchies below that of general director of investment fund operating societies, distributing societies, or investment fund share valuing societies.
Annexes 17 to 20
...
Annex 21
Protest letter format for persons who intend to participate in the share capital of a society that administers electronic trading mechanisms for investment fund shares or information dissemination."
TRANSITORY PROVISIONS
FIRST.- This Resolution shall enter into force the day following its publication in the Official Journal of the Federation.
SECOND.- Procedures and processes initiated prior to the entry into force of this Resolution shall continue to be governed by the provisions in effect on the date of publication of this Resolution.
Respectfully,
Mexico City, December 19, 2016. - The President of the National Banking and Securities Commission, Jaime González Aguadé. - Signature.
ANNEX 13
INFORMATION FORMAT FOR PERSONS WHO INTEND TO PARTICIPATE IN THE SHARE CAPITAL OF AN INVESTMENT FUND OPERATING SOCIETY, DISTRIBUTING SOCIETY, OR INVESTMENT FUND SHARE VALUING SOCIETY, AND PERSONS WHO INTEND TO CONSTITUTE THEMSELVES AS SECURED CREDITORS WITH RESPECT TO THE PAID SHARE CAPITAL OF SAID SOCIETIES, AS WELL AS FOR PERSONS WHO INTEND TO PARTICIPATE IN THE SHARE CAPITAL OF A SOCIETY THAT ADMINISTERS ELECTRONIC TRADING MECHANISMS FOR INVESTMENT FUND SHARES OR INFORMATION DISSEMINATION OF INVESTMENT FUNDS
Name or possible name of the society. Date of preparation (dd/mm/yyyy).
This information is part of the application submitted to the National Banking and Securities Commission, its content is confidential, and it will be subject to review and verification.
Filling Instructions.
This format must be duly filled out by:
a) Persons who, within the application process for authorization to organize and operate as investment fund operating societies, distributing societies, or investment fund share valuing societies as stated in article 33 of the Law, intend to subscribe to two percent or more of the share capital of the society itself.
b) Persons who intend to obtain authorization to acquire directly or indirectly more than five percent of shares representing the share capital of an investment fund operating society, distributing society, or investment fund share valuing society.
c) Persons who intend to obtain authorization to constitute themselves as secured creditors with respect to more than five percent of shares representing the share capital of an investment fund operating society, distributing society, or investment fund share valuing society.
d) Persons who, within the application process for authorization to organize and operate as a society that administers electronic trading mechanisms for investment fund shares or information dissemination of investment funds, intend to subscribe to two percent or more of the share capital of the society in question.
No blank spaces should be left. In any case, mention: None, No, I do not have, Not applicable.
All names and data required must be expressed in full (e.g., persons with two names).
SECTION 1
PERSONAL IDENTIFICATION DATA
NATURAL PERSONS
First name(s). Paternal last name. Maternal last name. Nationality. Tax ID (with homoclave). CURP (Unique Population Registry Code). Address for hearing and receiving notifications Street and exterior and/or interior number. Neighborhood. Delegation or Municipality. Federative Entity. Postal code. Country. Marital status. Name of spouse, concubine, or concubine, as well as their economic dependents. Name of relatives in the ascending and descending line up to the first degree. 1. 2. 3. 4. 5. 6.
IDENTIFICATION DATA
LEGAL ENTITIES, TRUSTS, OR INVESTMENT VEHICLES
Name or trade name. Main activity. Nationality. Tax ID (with homoclave). Date of constitution. Name of the legal representative. Profession of the legal representative. Work background of the legal representative. Address for hearing and receiving notifications Street and exterior and/or interior number. Neighborhood. Postal code. Delegation or Municipality. Federative Entity. Country. Name of shareholders or persons who participate with 10% or more of the share capital of the legal entity, or of the trust or investment vehicle's assets. * Shareholder (%) 1. 2. 3. 4. 5.
According to statutes, can you invest in societies? Yes ______ No _____
Has the investment in question been approved by your board of directors? Yes ______ No _____
Do you have or have you had investment in financial entities? Yes ______ No _____ Specify: % equity Name:________
SECTION 2
PARTICIPATION OF THE PERSON IN THE INVESTMENT FUND OPERATING SOCIETY, DISTRIBUTING SOCIETY, OR INVESTMENT FUND SHARE VALUING SOCIETY, SOCIETY THAT ADMINISTERS ELECTRONIC TRADING MECHANISMS FOR INVESTMENT FUND SHARES, OR INFORMATION DISSEMINATION OF INVESTMENT FUNDS
Shareholder. ___ % current shareholding. ___ % shareholding after acquisition. ___ % shareholding with which you would participate in the new entity. President of the board of directors. Proprietary board member. Independent: Yes No Alternate board member. Independent: Yes No Secretary of the board of directors. General director. Legal director. Finance director. Commercial director. Other(s). Specify: ____________________________________
SECTION 3
FINANCIAL RELATIONSHIP
a) Assets and rights. AMOUNT (thousands of pesos) 1.- Real estate, of the applicant, their spouse, concubine, or concubine, as well as their economic dependents. Total: 2.- Movable property (including motor vehicles, aircraft, and vessels) of the applicant, their spouse, concubine, or concubine, as well as their economic dependents. Total: 3.- Balances in bank accounts of national or foreign financial entities (including deposits and debt securities). Total: 4.- Others, including investments and other types of securities in the share capital of national or foreign financial entities or for-profit legal entities. 4.1.- Specify the name of the financial entity or legal entity: 4.2.- Specify the percentage of shareholding: ______% Total: 5.- Share participation in the share capital of national or foreign financial entities or for-profit legal entities of the applicant, their spouse, concubine, or concubine, as well as their economic dependents and relatives by blood, affinity, or civil law up to the first degree. Total 6.- Sponsorships, courtesies, and donations received by the applicant, their spouse, concubine, or concubine, as well as their economic dependents and relatives by blood, affinity, or civil law up to the first degree. Total 7.- Total assets and rights (gross assets). b) Debts and obligations. 8.- Mortgages, financial obligations, and loans of the applicant, their spouse, concubine, or concubine, as well as their economic dependents and relatives by blood, affinity, or civil law up to the first degree. Total: 9.- Others, including economic and financial interests. Total: 10.- Total debts and obligations. 11.- Net worth (Subtract 10 from 7). 12.- Guarantees and sureties granted. 13.- Insurance policies. 14.- Total net income of the applicant. Amount (thousands of pesos). Main source(s) of income. Last year 20 . Penultimate year 20 . Antepenultimate year 20 . 15.- Total net income of the spouse, concubine, or concubine and economic dependents of the applicant. Amount (thousands of pesos). Main source(s) of income. Last year 20 . Penultimate year 20 . Antepenultimate year 20 _. 16.- Comments and clarifications.
SECTION 4
ORIGIN OF RESOURCES ²
Source. Entity or person. Exact amount to contribute to the share capital, price of the shares, or amount of the obligation for which the guarantee is received, as the case may be. (%) Own resources. Specify: N/A Others. Specify: (indicate if they come from loans granted by national or foreign financial entities. Total resources: 100 % Comments and clarifications.
² / In the case of those persons who constitute themselves as secured creditors on shares representing more than ten percent of the share capital of an investment fund operating society, distributing society, or investment fund share valuing society, the origin of the resources subject to the guaranteed obligation must be indicated.
SECTION 5
POSITIONS OR ACTIVITIES INFORMATION (NATURAL PERSONS)
1.- Positions and offices held in public or private entities by the applicant, their spouse, concubine, or concubine, as well as their economic dependents and relatives by blood, affinity, or civil law up to the first degree. 2.- Professional or business activities carried out by the applicant, their spouse, concubine, or concubine, as well as their economic dependents and relatives by blood, affinity, or civil law up to the first degree. 3.- Honorary positions and offices held by the applicant. 4.- Participation in councils and philanthropic activities of the applicant, their spouse, concubine, or concubine, as well as their economic dependents and relatives by blood, affinity, or civil law up to the first degree.
SECTION 6
ADDITIONAL INFORMATION
If you consider that there is any other relevant information not contemplated in the previous sections, you must list the information and comment in the following box. Section. Information.
SECTION 7
DECLARATIONS AND SIGNATURES
By this document, the undersigned authorizes the National Banking and Securities Commission, regarding the information provided here, to:
a) Verify it as deemed pertinent, as well as to obtain from any other authority deemed convenient information about my person, in connection with the authorization application submitted to said Commission.
b) Share it on a confidential basis with the National Insurance and Sureties Commission, the National Retirement Savings System Commission, the Bank of Mexico, the Tax Administration System, the Attorney General's Office, and other authorities, for the exclusive fulfillment of their functions.
I confirm that I have carefully read this format and that I understand its content and legal implications.
I understand that providing false data will be grounds for the exclusion of the undersigned, without prejudice to the criminal penalties or legal sanctions that may apply according to the case.
I DECLARE UNDER OATH THAT THE DATA CONTAINED IN THIS DECLARATION ARE TRUE.
Signature of the person or legal representative Name Date
SECTION 8
DOCUMENTS THAT MUST ACCOMPANY THIS APPLICATION
NATURAL PERSONS:
Copy of valid official identification (voter credential or valid passport and in the case of foreign nationals, migratory form or passport).
In its case, copy of the tax identification card.
Copy of the Unique Population Registry Code (CURP).
Credit information report, with the character of special credit report as per the Law to Regulate Credit Information Societies, with an issuance date not older than three months prior to the application date.
Copy of the professional card or certificate of studies or of the document that accredits the highest degree of studies achieved.
Financial situation of the last three years.
Report prepared by legal entities that provide auditing or corporate investigation services of recognized prestige, in the judgment of the National Banking and Securities Commission, on the veracity of the statements regarding the origin of the resources that make up the person's assets, for which the respective documentary support must be at hand. Likewise, the authorization application must be accompanied by documentary evidence related to the aforementioned origin of resources.
Copy of the contract for the provision of auditing or corporate investigation services that the applicant has entered into with the legal entity referred to in the previous paragraph, which contains the terms and conditions agreed upon by the parties for the preparation of the report contained in the previous paragraph, regarding which the National Banking and Securities Commission may require modifications.
Copy of the annual tax return for the last three fiscal years.
LEGAL ENTITIES:
Certified copy of the current articles of incorporation.
Copy of the tax identification card.
Copy authenticated by the sole administrator or by the secretary of the board of directors, of the audited annual financial statements and the external auditor's report, if obliged to do so, approved by their administrative body for the last three fiscal years, or those corresponding in accordance with the date of their constitution.
In its case, copy authenticated by the secretary of the board of directors of the resolution of the administrative body that approves the subscription and payment of the shares of the operating society, distributing society, or investment fund share valuing society to be constituted or in which participation is intended.
Credit information reports, with the character of special credit report as per the Law to Regulate Credit Information Societies, with an issuance date not older than three months prior to the application date.
In the case of legal entities that are not obliged to audit their financial statements as per the applicable provisions, a report prepared by legal entities that provide auditing or corporate investigation services of recognized prestige, in the judgment of the National Banking and Securities Commission, on the veracity of the statements regarding the origin of the resources that make up the person's assets, for which the respective documentary support must be at hand. Likewise, the authorization application must be accompanied by documentary evidence related to the aforementioned origin of resources.
Copy of the contract for the provision of auditing or corporate investigation services that the applicant has entered into with the legal entity referred to in the previous paragraph, which contains the terms and conditions agreed upon by the parties for the preparation of the report contained in the previous paragraph.
Copy of the annual tax returns for the last three fiscal years.
ANNEX 14
PROTEST LETTER FORMAT FOR PERSONS WHO INTEND TO PARTICIPATE IN THE SHARE CAPITAL OF AN INVESTMENT FUND OPERATING SOCIETY, DISTRIBUTING SOCIETY, OR INVESTMENT FUND SHARE VALUING SOCIETY, AND PERSONS WHO INTEND TO CONSTITUTE THEMSELVES AS SECURED CREDITORS WITH RESPECT TO THE PAID SHARE CAPITAL OF SAID SOCIETIES
I. PERSONS WHO, WITHIN THE APPLICATION PROCESS FOR AUTHORIZATION TO ORGANIZE AND OPERATE INVESTMENT FUND OPERATING SOCIETIES, DISTRIBUTING SOCIETIES, OR INVESTMENT FUND SHARE VALUING SOCIETIES, INTEND TO SUBSCRIBE TO TWO PERCENT OR MORE OF THE SHARE CAPITAL OF THAT SOCIETY
A. PROTEST LETTER FORMAT FOR NATURAL PERSONS
Mexico City, to
NATIONAL BANKING AND SECURITIES COMMISSION
Present,
The undersigned, (name of the person signing), by my own right and with the object of providing the information that may be necessary in relation to the authorization application [to be submitted] presented to that National Banking and Securities Commission for the organization and functioning of the investment fund operating society [investment fund share distributing society] [investment fund share valuing society] to be named ____________ I declare under oath that the following is true:
I. That I have a satisfactory credit history according to the credit information report with the character of special credit report as per the Law to Regulate Credit Information Societies, issued by the credit information society named______, and I am up to date in the fulfillment of my credit obligations, including regarding credits that have been subject to restructuring. Attached hereto, please find as Annex 1, the special credit report of the undersigned, in which that Commission can verify that there is no default on my credit obligations, or that if there is any prevention key in this regard, from the report itself it can be appreciated:
a) The existence of a favorable resolution for the debtor regarding the challenge of the record in question, due to errors attributable to the users of the credit information societies that are financial entities subject to the supervision of the National Banking and Securities Commission;
b) The existence of payment of overdue debts as of the date of the inquiry and evidence of sustained payment over a period of 1 year;
c) Payment of losses caused to a financial entity, regardless of the amount, promoted voluntarily by the creditor, or
d) The existence of judicial resolutions favorable to the creditors, in litigation with the creditors.
Similarly, I declare that I do not have nor have I had control, nor do I exercise nor have I exercised command power over an issuing society that has defaulted on its debt securities payment obligations in the securities market.
II. That I am not nor have I been, subject to criminal proceedings for intentional crimes punishable by imprisonment of more than one year, and that, in case I have been, this concluded with an acquittal.
III. That I have not been subject to investigation or administrative inquiry procedures before the National Banking and Securities Commission for violations of national or foreign financial laws, or before other Mexican supervisory and regulatory institutions of the financial system or of other countries, or that if I have been, these concluded with a final and definitive resolution or agreement/convention in which my exoneration was expressly determined.
IV. That I have not been declared in civil or commercial bankruptcy, or that even if I have been, this gave
by terminated by the causes indicated in fractions I, II or V of article 262 of the Mercantile Bankruptcy Law or, in the case of civil bankruptcy, by having paid creditors in full or entered into an agreement with them, in accordance with local laws.
V.
That I am or have been a subject or party in proceedings before common or federal jurisdictional bodies, criminal investigations, as well as any other procedure, even in other countries, individually and, where applicable, in my capacity as legal representative, councilor, official, employee or commissioner of any legal entity, which are indicated below: (1)
| Type of procedure. | Body before which the procedure is carried out. | Capacity in which I intervened. | Status of the procedure, including start date and, where applicable, conclusion. | Sense of the final resolution, where applicable. |
VI.
That I have not been a shareholder, councilor, auditor, general director or relevant executive in a legal entity to which the Ministry of Finance and Public Credit, the National Banking and Securities Commission, the National Insurance and Sureties Commission or the National Retirement Savings System Commission, have denied the concession, authorization or registration, nor has authorization been denied to me to acquire shares representing the social capital of societies supervised by said National Commissions.
VII.
That I have not been a shareholder, councilor, auditor or relevant executive in a financial entity whose concession or authorization has been revoked, or registration cancelled, nor has authorization been denied to me to acquire shares representing the social capital of societies that enjoy the concession, authorization or registration of the Ministry of Finance and Public Credit, the National Banking and Securities Commission, the National Insurance and Sureties Commission or the National Retirement Savings System Commission.
The undersigned authorizes the National Banking and Securities Commission to verify, where applicable, before Mexican financial entities, credit information societies, the Institute for the Protection of Bank Savings and any other competent authority, the veracity of the declarations contained in this document, regarding any type of operation, in terms and with the scope referred to in articles 142 of the Credit Institutions Law, 192 and 295 of the Securities Market Law, 55 of the Investment Funds Law and other relevant provisions that apply.
Likewise, I authorize the said National Banking and Securities Commission to, during the time that I serve as a shareholder of the fund operator society, investment fund share distributor society or investment fund share valuer society in question, or if I maintain in guarantee shares representing its social capital, verify and request the corresponding necessary information if said Commission learns by any means that I no longer meet the conditions of fractions I to IV and VI and VII above, or if it has news that I am in a process before any jurisdictional body.
The declarations under oath contained in this document are made for the purpose of allowing that National Banking and Securities Commission to have elements of judgment to evaluate the honorability and satisfactory credit and business history of the undersigned and to determine, where applicable, in the exercise of the discretionary power conferred by article 34, fraction IV and second paragraph of the Investment Funds Law to that authority, whether it is prudent and opportune to participate as a shareholder in the social capital of the fund operator society [investment fund share distributor society] [investment fund share valuer society] to be named ___________ with the proposed shareholding percentages [to be proposed] in the authorization request we are concerned with.
Respectfully,
(Name and signature of the interested party)
Filling Instructions:
Fill in all blank spaces and provide the information indicated in parentheses, as appropriate.
Attach the credit information report with the character of special credit report in terms of the Law to Regulate Credit Information Societies, which constitutes Annex 1, with an issue date not more than three months prior to the date of application.
In the event that the interested party is not able to make any of the declarations referred to in fractions I to IV of this letter, they must express in the corresponding number that circumstance, detailing the facts, acts and reasons that prevent them or for which they do not fit the referred conditions.
In the event that the person has caused loss, damage or financial detriment, directly or through an intermediary person, to the detriment of financial entities due to non-compliance with obligations under their charge or of discounts, forgiveness or discounts received regarding credits, unless these had been under general programs implemented by the financial entities themselves or the Federal Government, the interested party must declare such situation, indicating the terms and characteristics of the credit in question, with indication of the lending entity, as well as a detailed description of the circumstances under which the loss, damage or financial detriment occurred. For these purposes, it will be understood that a natural person acted through the interposition of a legal entity, when the former has or has had control of the latter, or when it exercises or has exercised command power over the society or association in question.
In the event that the person has caused loss, damage or financial detriment to the detriment of issuers in the securities market in which they exercise or have exercised control or have or have had command power, due to non-compliance with payment obligations contracted with them, the interested party must declare such situation, indicating the terms and characteristics of the operation in question, with indication of the issuing society, as well as a detailed description of the circumstances under which the loss, damage or financial detriment occurred.
In the event that the person has been a shareholder, councilor, auditor, general director or relevant executive in a legal entity to which the Ministry of Finance and Public Credit, the National Banking and Securities Commission, the National Insurance and Sureties Commission or the National Retirement Savings System Commission, have denied the concession, authorization, registration; whose concession or authorization has been revoked, or registration cancelled, or whose authorization to acquire shares representing the social capital of said legal entities has been denied, they must declare such situation, indicating a detailed description of the circumstances under which the concession, authorization, registration was revoked, cancelled or denied or the authorization to acquire shares of the social capital.
Accompany a document issued by a legal entity of recognized prestige in the judgment of the National Banking and Securities Commission, which provides legal services and in which the information indicated in the previous fraction V is stated, noting that it had the supporting documentation for it, in case a procedure has been declared.
Copy of the legal services contract that the applicant has entered into with the legal entity referred to in the previous number, which contains the terms and conditions agreed between the parties for the issuance of the document contained in the previous number, regarding which the National Banking and Securities Commission may require modifications.
Attach your curriculum vitae in which the reasons or causes for the termination of the labor relationships presented in that information are detailed.
Attach your registration data certificate issued by the Attorney General's Office of the Republic or the one that replaces it, as well as the certificate of no criminal records issued by the Justice Attorney's Office or the State Prosecutor's Office of the place of your residence and the State where you have your main business seat.
B. PROTEST LETTER FORMAT FOR LEGAL ENTITIES
Mexico City, to
NATIONAL BANKING AND SECURITIES COMMISSION
Present,
(Name or corporate name of the legal entity), through its representative (name of the legal representative), personality accredited through power contained in (data of the deed and its registration in the Public Commerce Registry), declares under oath and with the object of providing the information that may be necessary in relation to the authorization request presented [to be presented] before that National Banking and Securities Commission for the organization and functioning of the fund operator society [investment fund share distributor society] [investment fund share valuer society] to be named ____________ the following:
I.
That it enjoys a satisfactory credit history according to the credit information report with the character of special credit report in terms of the Law to Regulate Credit Information Societies, issued by the credit information society named______, and is up to date in the fulfillment of its credit obligations, including regarding credits that have been subject to restructuring. Attached hereto, please find as Annex 1, the special credit report in which that Commission can verify that there is no non-compliance with its credit obligations, or that if there is any prevention key in that sense, from the report itself it can be appreciated:
a)
The existence of a favorable resolution for the debtor due to the challenge of the record in question, due to errors attributable to the users of the credit information societies that are financial entities subject to the supervision of the National Banking and Securities Commission;
b)
The existence of payment of overdue debts at the date of the consultation and evidence of sustained payment in a period of 1 year;
c)
Payment of losses caused to a financial entity, regardless of its amount, promoted voluntarily by the borrower, or
d)
The existence of favorable judicial resolutions for the borrowers, before litigation with creditors.
Likewise, we declare that our represented party has not failed to comply with its payment obligations for debt titles in the securities market, nor exercises or has exercised command power of an issuing society that has done so.
II.
That it has not been subject to investigation or administrative investigation procedures before the National Banking and Securities Commission for violations of national or foreign financial laws, or before other Mexican supervisory and regulatory institutions of the financial system or of other countries, or that if it has been, these concluded with a firm and definitive resolution or agreement/convention in which its exoneration was expressly determined.
III.
That it has not been declared in civil or mercantile bankruptcy, or that even if it has been, this was terminated by the causes indicated in fractions I, II or V of article 262 of the Mercantile Bankruptcy Law, or, in the case of civil bankruptcy, by having paid creditors in full or entered into an agreement with them, in accordance with local laws.
IV.
That it is or has been a subject or party in proceedings before common or federal jurisdictional bodies, criminal investigations, as well as any other procedure, which are indicated below: (2)
| Type of procedure. | Body before which the procedure is carried out. | Capacity in which I intervened. | Status of the procedure, including start date and, where applicable, conclusion. | Sense of the final resolution, where applicable. |
V.
That it has not been a shareholder of a legal entity to which the Ministry of Finance and Public Credit, the National Banking and Securities Commission, the National Insurance and Sureties Commission or the National Retirement Savings System Commission, have denied the concession, authorization or registration.
VI.
That it has not been a shareholder of a financial entity whose concession, authorization or registration has been revoked by the Ministry of Finance and Public Credit, the National Banking and Securities Commission, the National Insurance and Sureties Commission or the National Retirement Savings System Commission.
The undersigned on behalf of its represented party authorizes the National Banking and Securities Commission to verify, where applicable, before Mexican financial entities, credit information societies, the Institute for the Protection of Bank Savings and any competent authority, the veracity of the declarations contained in this document, regarding any type of operation, in terms and with the scope referred to in articles 142 of the Credit Institutions Law, 192 and 295 of the Securities Market Law, 55 of the Investment Funds Law and other relevant provisions that apply.
Likewise, I authorize the said Commission so that during the time that my represented party serves as a shareholder of the fund operator society, investment fund share distributor society or investment fund share valuer society in question, or if it maintains in guarantee shares representing its social capital, in case said Commission learns by any means that it no longer meets the conditions of fractions I to III and V and VI above, or if it has news that it is in a process before any jurisdictional body, verify and request the corresponding information.
The declarations under oath contained in this document are made for the purpose of allowing that National Banking and Securities Commission to have elements of judgment to evaluate the honorability and satisfactory credit and business history of my represented party and to determine, where applicable, in the exercise of the discretionary power conferred by article 34, fraction IV and second paragraph of the Investment Funds Law to that authority, whether it is prudent and opportune to participate as a shareholder in the social capital of the fund operator society, share distributor or share valuer society of investment funds to be named ___________ with the proposed shareholding percentages [to be proposed] in the authorization request we are concerned with.
Respectfully,
(Name and signature of the legal representative)
(Name or corporate name of the legal entity)
Filling Instructions:
Fill in all blank spaces and provide the information indicated in parentheses, as appropriate.
Attach the credit information report with the character of special credit report in terms of the Law to Regulate Credit Information Societies, which constitutes Annex 1., with an issue date not more than three months prior to the date of application.
In the event that the interested party is not able to make any of the declarations referred to in fractions I to III of this letter, they must express in the corresponding number that circumstance, detailing the facts, acts and reasons that prevent them or for which they do not fit the referred conditions.
In the event that the person has caused loss, damage or financial detriment, directly or through an intermediary person, to the detriment of financial entities due to non-compliance with obligations under their charge or of discounts, forgiveness or discounts received regarding credits, unless these had been under general programs implemented by the financial entities themselves or the Federal Government, the interested party must declare such situation, indicating the terms and characteristics of the credit in question, with indication of the lending entity, as well as a detailed description of the circumstances under which the loss, damage or financial detriment occurred.
For these purposes, it will be understood that a legal entity acted through the interposition of another legal entity, when the former has or has had control of the latter, or when it exercises or has exercised command power over the society or association in question.
In the event that the person has caused loss, damage or financial detriment to the detriment of issuing societies in the securities market in which they exercise or have exercised control or have or have had command power, due to non-compliance with payment obligations contracted with them, the interested party must declare such situation, indicating the terms and characteristics of the operation in question, with indication of the issuing society, as well as a detailed description of the circumstances under which the loss, damage or financial detriment occurred.
In the event that the person has been a shareholder in a legal entity to which the Ministry of Finance and Public Credit, the National Banking and Securities Commission, the National Insurance and Sureties Commission or the National Retirement Savings System Commission have denied the concession, authorization or registration, or whose concession has been revoked, they must declare such situation, indicating a detailed description of the circumstances under which the concession, authorization or registration was revoked or denied.
Accompany a document issued by a legal entity of recognized prestige in the judgment of the National Banking and Securities Commission, which provides legal services and in which the information indicated in the previous fraction IV is stated, noting that it had the supporting documentation for it, in case a procedure has been declared.
Copy of the legal services contract that the applicant has entered into with the legal entity referred to in the previous number, which contains the terms and conditions agreed between the parties for the issuance of the document contained in the previous number, regarding which the National Banking and Securities Commission may require modifications.
II.
PERSONS SEEKING TO OBTAIN AUTHORIZATION TO ACQUIRE DIRECTLY OR INDIRECTLY MORE THAN FIVE PERCENT OF SHARES REPRESENTING THE SOCIAL CAPITAL OF A FUND OPERATOR SOCIETY, SHARE DISTRIBUTOR OR SHARE VALUER SOCIETY OF INVESTMENT FUNDS
A.
PROTEST LETTER FORMAT FOR NATURAL PERSONS
Mexico City, to
NATIONAL BANKING AND SECURITIES COMMISSION
Present,
The undersigned, ( name of the person signing ), by my own right and with the object of providing the information that may be necessary in relation to the authorization request presented [to be presented] before that National Banking and Securities Commission to acquire directly or indirectly more than five percent of shares representing the social capital of the fund operator society [investment fund share distributor society] [investment fund share valuer society] named____________, I declare under oath the following:
I.
That I enjoy a satisfactory credit history according to the credit information report with the character of special credit report in terms of the Law to Regulate Credit Information Societies, issued by the credit information society named _____, and I am up to date in the fulfillment of my credit obligations, including regarding credits that have been subject to restructuring. Attached hereto, please find as Annex 1, the special credit report of the undersigned, in which that Commission can verify that there is no non-compliance with my credit obligations, or that if there is any prevention key in that sense, from the report itself it can be appreciated:
a)
The existence of a favorable resolution for the debtor due to the challenge of the record in question, due to errors attributable to the users of the credit information societies that are financial entities subject to the supervision of the National Banking and Securities Commission;
b)
The existence of payment of overdue debts at the date of the consultation and evidence of sustained payment in a period of 1 year;
c)
Payment of losses caused to a financial entity, regardless of its amount, promoted voluntarily by the borrower, or
d)
The existence of favorable judicial resolutions for the borrowers, before litigation with creditors.
Likewise, I declare that I do not have nor have had control, nor do I exercise nor have I exercised command power of an issuing society that has failed to comply with its payment obligations for debt titles in the securities market.
II.
That I am not or have not been subject to a criminal process for intentional crime punishable with a penalty of more than one year of imprisonment, and that, in case I have been, this concluded with an acquittal.
III.
That I have not been subject to investigation or administrative investigation procedures before the National Banking and Securities Commission for violations of national or foreign financial laws, or before other Mexican supervisory and regulatory institutions of the financial system or of other countries, or that if I have been, these concluded with a firm and definitive resolution or agreement/convention in which my exoneration was expressly determined.
IV.
That I have not been declared in civil or mercantile bankruptcy, or that even if I have been, this was terminated by the causes indicated in fractions I, II or V of article 262 of the Mercantile Bankruptcy Law, or, in the case of civil bankruptcy, by having paid creditors in full or entered into an agreement with them, in accordance with local laws.
V.
That I am or have been a subject or party in proceedings before common or federal jurisdictional bodies, criminal investigations, as well as any other procedure, even in other countries, individually and, where applicable, in my capacity as legal representative, councilor, official, employee or commissioner of any legal entity, which are indicated below: (3)
| Type of procedure. | Body before which the procedure is carried out. | Capacity in which I intervened. | Status of the |
procedure,
including date of
start and, if applicable,
conclusion.
Meaning of the
definitive resolution,
if applicable.
VI.
That I have not been a shareholder, board member, auditor, general manager or relevant executive in a
legal entity to which the Ministry of Finance and Public Credit, the National Banking and Securities Commission,
the National Insurance and Sureties Commission or the National Retirement Savings System Commission,
has denied the concession, authorization or registration, nor has authorization been denied to me to
acquire shares representing the social capital of companies supervised by
said National Commissions.
VII.
That I have not been a shareholder, board member, auditor or relevant executive in a financial entity to
which the concession or authorization has been revoked, or the registration cancelled, nor has it been denied to me
the
authorization to acquire shares representing the social capital of companies that enjoy the
concession, authorization or registration of the Ministry of Finance and Public Credit, the Commission
National Banking and Securities, the National Insurance and Sureties Commission or the National Commission
of the Retirement Savings System.
The undersigned hereby authorizes the National Banking and Securities Commission to, if applicable,
verify before Mexican financial entities, credit information societies, the Institute for the
Protection of Bank Savings and any competent authority, the veracity of the declarations
contained in this document, with respect to any type of operations, in terms and with the scope referred to in articles 142 of the Credit Institutions Law, 192 and 295 of the Securities Market Law,
55 of the Investment Funds Law and others that may be applicable.
Likewise, I authorize the said Commission to, during the time in which I serve as
shareholder of an investment fund operator society, investment fund share distributor society or
investment fund share valuer society, as applicable, or if I maintain in
guarantee shares representing its social capital, in the event that said Commission learns by any
means that I ceased to meet the conditions of fractions I to IV and VI and VII above, or if I have news
that I am in a process before any judicial body, verify and request the information
corresponding.
The declarations under oath contained in this document are made for the purpose
that the National Banking and Securities Commission has elements of judgment to evaluate the
honorability and satisfactory credit and business history of the undersigned and for it to be determined, if
applicable, in the exercise of the discretionary power conferred by article 34, fraction IV and second paragraph of the
Investment Funds Law on that authority, whether it is prudent and opportune to acquire directly or indirectly
more than five percent of shares representing the social capital of the investment fund operator society,
share distributor society or investment fund share valuer society named
____________, with the proposed shareholding percentages [to be proposed] in the
authorization request we are dealing with.
Sincerely,
(Name and signature of the interested party)
Filling Instructions:
Fill in the blanks and provide the information indicated in parentheses, as
corresponds.
Attach the credit information report with the character of special credit report in terms
of the Law to Regulate Credit Information Societies, with an issuance date not greater
than three months prior to the date of the request, which constitutes Annex 1.
In the event that the interested party is not able to make any of the declarations
referenced in fractions I to IV of this letter, they must express in the corresponding number
such circumstance, detailing the facts, acts and reasons that prevent them or for which they do not
fall under the referred conditions.
In the event that the person has caused damage, loss or detriment to assets,
directly or through an intermediary person, to the detriment of financial entities due to
non-compliance with obligations on their part or of discounts, forgiveness or discounts received
with respect to credits, unless these were under general programs
implemented by the financial entities themselves or the Federal Government, the interested party must
declare such situation, indicating the terms and characteristics of the credit in question, with
indication of the lending entity, as well as a detailed description of the circumstances under
which the damage, loss or detriment to assets occurred.
For the purposes of the above, it will be understood that a natural person acted through the interposition of
a legal entity, when the former has or has had control over the latter, or when
exercises or has exercised power of command over the company or association in question.
In the event that the person has caused damage, loss or detriment to assets in
to the detriment of issuing companies in the securities market in which they exercise or have exercised
control or have or have had power of command, due to non-compliance with payment obligations
contracted with these, the interested party must declare such situation, indicating the terms and
characteristics of the operation in question, with indication of the issuing company, as well as a
detailed description of the circumstances under which the damage, loss or
detriment to assets occurred.
In the event that the person has been a shareholder, board member, auditor, general manager or relevant executive
in a legal entity to which the Ministry of Finance and Public Credit, the Commission
National Banking and Securities, the National Insurance and Sureties Commission or the National Commission
of the Retirement Savings System, has denied the concession, authorization, registration;, has
been revoked the concession or authorization, or cancelled the registration, or if they have denied the
authorization to acquire shares representing the social capital of said legal entities,
they must declare such situation, indicating a detailed description of the circumstances under which
the concession, authorization, registration or the authorization to acquire shares
of the social capital was revoked or denied.
Accompany a document issued by a legal entity of recognized prestige in the judgment of the
National Banking and Securities Commission, which provides legal services and in which it is stated
the information indicated in the previous fraction V, stating that it had
supporting documentation for this in case a procedure was declared.
Copy of the legal services contract that the applicant has entered into with the legal entity
referred to in the previous number, which contains the terms and conditions agreed between
the parties for the issuance of the document contained in the previous number, regarding which the
National Banking and Securities Commission may require modifications.
Attach your curriculum vitae in which the reasons or causes for the
end of the labor relationships presented in that information are detailed.
Attach your registration data certificate issued by the Attorney General's Office of the Republic or
the Prosecutor's Office that replaces it, as well as with the criminal record letter issued by the
State Attorney General's Office or the Prosecutor's Office of the place of your residence and the State where
you have your main place of business.
B.
FORMAT OF PROTEST LETTER FOR LEGAL ENTITIES
Mexico City, to
NATIONAL BANKING AND SECURITIES COMMISSION
Present,
( Name or corporate name of the legal entity ), through its representative ( name of the
legal representative ), personality accredited by power of attorney contained in ( data of the
deed and its registration in the Public Commerce Registry ), declares under oath and with the purpose of
providing the information that may be necessary in relation to the authorization request presented [to
be presented] before the National Banking and Securities Commission to acquire directly or indirectly more than
five percent of shares representing the social capital of the investment fund operator society
[investment fund share distributor society] [investment fund share valuer society]
named ____________, the following:
I.
That it has a satisfactory credit history according to the credit information report with the
character of special credit report in terms of the Law to Regulate Credit Information Societies,
issued by the credit information society named _____, and is
up to date in the fulfillment of its credit obligations, including regarding
credits that have been subject to restructuring. Attached hereto, please find as
Annex 1, the special credit report in which that Commission can verify that there is no
non-compliance with its credit obligations, or that if there is any key of
prevention in that sense, from the report itself it can be appreciated:
a)
The existence of a favorable resolution for the debtor due to the challenge of the record in question,
due to errors attributable to the users of the credit information societies
that are financial entities subject to the supervision of the National Banking and Securities
Commission;
b)
The existence of payment of overdue debts as of the date of the query and evidence of sustained payment
in a period of 1 year;
c)
Payment of losses caused to a financial entity, regardless of the amount, promoted voluntarily by
the borrower, or
d)
The existence of favorable judicial resolutions for the borrowers, in litigation with the
creditors.
Likewise, we declare that our represented party has not failed to comply with its payment obligations
of debt titles in the securities market, nor does it exercise or has it exercised power of command of an
issuing company that has done so.
II.
That it has not been subject to investigation or administrative investigation procedures
before the National Banking and Securities Commission for violations of national or
foreign financial laws, or before other Mexican supervisory and regulatory institutions of the financial system or
of other countries, or that if it has been, these concluded with a firm and
definitive resolution or agreement/contract in which its exoneration was expressly determined.
III.
That it has not been declared in civil or commercial bankruptcy, or that even if it has been, this was
terminated by the causes indicated in fractions I, II or V of article 262 of the
Commercial Bankruptcy Law, or, in the case of civil bankruptcy, by having paid in full to the
creditors or entered into an agreement with them, in terms of local laws.
IV.
That it is or has been a subject or party in processes before judicial bodies of the common or
federal order, criminal investigations, as well as any other procedure, which are indicated below: (4)
Type of
procedure.
Body before whom
the procedure is carried
out.
Character with
which it intervened.
Status of the
procedure,
including date of
start and, if applicable,
conclusion.
Meaning of the
definitive resolution,
if applicable.
V.
That it has not been a shareholder of a legal entity to which the Ministry of Finance and Public
Credit, the National Banking and Securities Commission, the National Insurance and Sureties Commission or the
National Retirement Savings System Commission has denied the concession, authorization or
registration.
VI.
That it has not been a shareholder of a financial entity to which the concession, authorization
or registration has been revoked by the Ministry of Finance and Public Credit, the Commission
National Banking and Securities, the National Insurance and Sureties Commission or the National Commission
of the Retirement Savings System.
The undersigned on behalf of its represented party authorizes the National Banking and Securities
Commission to, if applicable, verify before Mexican financial entities, credit information
societies and any competent authority, the veracity of the declarations contained in
this document, with respect to any type of operations, in terms and with the scope referred to in
articles 142 of the Credit Institutions Law, 192 and 295 of the Securities Market Law, 55 of the Law
of Investment Funds and others that may be applicable.
Likewise, I authorize the said Commission to, during the time in which my represented party
serves as shareholder of an investment fund operator society, distributor society of
investment fund shares or investment fund share valuer society, as applicable, or
well, maintains in guarantee shares representing its social capital, in the event that said Commission learns
by any means that it ceased to meet the conditions of fractions I to III and V and VI
above, or
well, has news that it is in a process before any judicial body, verify and
request the corresponding information.
The declarations under oath contained in this document are made for the purpose
that the National Banking and Securities Commission has elements of judgment to evaluate the
honorability and satisfactory credit and business history of my represented party and for it to be determined, in
its case, in the exercise of the discretionary power conferred by article 34, fraction IV and second paragraph of
the Investment Funds Law on that authority, whether it is prudent and opportune to acquire directly or
indirectly more than five percent of shares representing the social capital of the investment fund
operator society, share distributor society or investment fund share valuer society
named ____________, with the proposed shareholding percentages [to be proposed]
in the authorization request we are dealing with.
Sincerely,
(Name and signature of the legal representative)
(Name or corporate name of the legal entity)
Filling Instructions:
Fill in the blanks and provide the information indicated in parentheses, as
corresponds.
Attach the credit information report, with the character of special credit report in
terms of the Law to Regulate Credit Information Societies with an issuance date not
greater than three months prior to the date of the request, which constitutes Annex 1.
In the event that the interested party is not able to make any of the declarations
referenced in fractions I to III of this letter, they must express in the corresponding number
such circumstance, detailing the facts, acts and reasons that prevent them or for which they do not
fall under the referred conditions.
In the event that the person has caused damage, loss or detriment to assets,
directly or through an intermediary person, to the detriment of financial entities due to
non-compliance with obligations on their part or of discounts, forgiveness or discounts received
with respect to credits, unless these were under general programs
implemented by the financial entities themselves or the Federal Government, the interested party must
declare such situation, indicating the terms and characteristics of the credit in question, with
indication of the lending entity, as well as a detailed description of the circumstances under
which the damage, loss or detriment to assets occurred.
In the event that the person has caused damage, loss or detriment to assets in
to the detriment of issuing companies in the securities market in which they exercise or have exercised
control or have or have had power of command, due to non-compliance with payment obligations
contracted with these, the interested party must declare such situation, indicating the terms and
characteristics of the operation in question, with indication of the issuing company, as well as a
detailed description of the circumstances under which the damage, loss or
detriment to assets occurred.
In the event that the person has been a shareholder in a legal entity to which the Ministry of
Finance and Public Credit, the National Banking and Securities Commission, the National Commission of
Insurance and Sureties or the National Retirement Savings System Commission has denied the
concession, authorization or registration, or if it has been revoked, they must declare such situation,
indicating a detailed description of the circumstances under which the
concession, authorization or registration was revoked or denied.
Accompany a document issued by a legal entity of recognized prestige in the judgment of the
National Banking and Securities Commission, which provides legal services and in which it is stated
the information indicated in the previous fraction IV, stating that it had
supporting documentation for this, in case a procedure was declared.
Copy of the legal services contract that the applicant has entered into with the legal entity
referred to in the previous number, which contains the terms and conditions agreed between
the parties for the issuance of the document contained in the previous number, regarding which the
National Banking and Securities Commission may require modifications.
III.
PERSONS SEEKING AUTHORIZATION TO CONSTITUTE THEMSELVES AS
SECURED CREDITORS WITH RESPECT TO MORE THAN FIVE PERCENT OF SHARES
REPRESENTING THE SOCIAL CAPITAL OF AN INVESTMENT FUND OPERATOR SOCIETY,
DISTRIBUTOR SOCIETY OR INVESTMENT FUND SHARE VALUER SOCIETY
A.
FORMAT OF PROTEST LETTER FOR NATURAL PERSONS
Mexico City, to
NATIONAL BANKING AND SECURITIES COMMISSION
Present,
The undersigned, ( name of the person signing ), by my own right and with the purpose of
providing the information that may be necessary in relation to the authorization request presented [to
be presented] before the National Banking and Securities Commission to constitute myself as a secured creditor
over shares representing more than five percent of the social capital of an investment fund operator society
[investment fund share distributor society] [investment fund share valuer society], I declare under oath the following:
I.
That I have a satisfactory credit history according to the credit information report with the
character of special credit report in terms of the Law to Regulate Credit Information Societies,
issued by the credit information society named _____, and I am
up to date in the fulfillment of my credit obligations, including regarding
credits that have been subject to restructuring. Attached hereto, please find as
Annex 1, the special credit report of the undersigned, in which that Commission can verify that
there is no non-compliance with my credit obligations, or that if there is any key
of prevention in that sense, from the report itself it can be appreciated:
a)
The existence of a favorable resolution for the debtor due to the challenge of the record in question,
due to errors attributable to the users of the credit information societies
that are financial entities subject to the supervision of the National Banking and Securities
Commission;
b)
The existence of payment of overdue debts as of the date of the query and evidence of sustained payment
in a period of 1 year;
c)
Payment of losses caused to a financial entity, regardless of the amount, promoted voluntarily by
the borrower, or
d)
The existence of favorable judicial resolutions for the borrowers, in litigation with the
creditors.
Likewise, I declare that I do not have nor have had control, nor do I exercise nor have I exercised power of
command of an issuing company that has failed to comply with its payment obligations of debt titles
in the securities market.
II.
That I am not or have not been, subject to a criminal process for intentional crime sanctioned with a corporal penalty
greater than one year of imprisonment and that, in case I have been, this concluded with an
acquittal sentence.
III.
That I have not been subject to investigation or administrative investigation procedures
before the National Banking and Securities Commission for violations of national or
foreign financial laws, or before other Mexican supervisory and regulatory institutions of the financial system or
of other countries, or that if I have been, these concluded with a firm and
definitive resolution or agreement/contract in which my exoneration was expressly determined.
IV.
That I have not been declared in civil or commercial bankruptcy, or that even if I have been, this was
terminated by the causes indicated in fractions I, II or V of article 262 of the
Commercial Bankruptcy Law, or, in the case of civil bankruptcy, by having paid in full to the
creditors or entered into an agreement with them, in terms of local laws.
V.
That I am or have been a subject or party in processes before judicial bodies of the common or
federal order, criminal investigations, as well as any other procedure, even in other
countries, individually and, if applicable, in my capacity as legal representative, board member, official,
employee or agent of any legal entity, which are indicated below: (5)
Type of
procedure.
Body before whom
the procedure is carried
out.
Character with
which it intervened.
Status of the
procedure,
including date of
start and, if applicable,
conclusion.
Meaning of the
definitive resolution,
if applicable.
VI.
That I have not been a shareholder, board member, auditor, general manager or relevant executive in a
legal entity to which the Ministry of Finance and Public Credit, the National Banking and
Securities Commission, the National Insurance and Sureties Commission or the National Commission of
Retirement Savings, has denied the concession, authorization or registration, nor has it been denied to me the
authorization to acquire shares representing the social capital of companies supervised by
said National Commissions.
VII.
That I have not been a shareholder, board member, auditor or relevant executive in a financial entity to
which the concession or authorization has been revoked, or the registration cancelled, nor has it been denied to me the
authorization to acquire shares representing the social capital of companies that enjoy the
concession, authorization or registration from the Ministry of Finance and Public Credit, the National Banking and Securities Commission, the National Insurance and Sureties Commission or the National Retirement Savings System Commission.
The undersigned authorizes the National Banking and Securities Commission to verify, before Mexican financial entities, credit reporting agencies, the Bank Savings Protection Institute and any competent authority, the truthfulness of the statements contained in this document, regarding any type of operations, in terms and with the breadth referred to in Articles 142 of the Credit Institutions Law, 192 and 295 of the Securities Market Law, 55 of the Investment Funds Law and any other applicable provisions.
Likewise, I authorize the aforementioned Commission to, during the time that my represented party serves as a shareholder of the investment fund operating company, investment fund share distributing company, and investment fund share valuing company in question, or maintains in guarantee shares representing its share capital, in the event that said Commission learns by any means that it ceased to meet the conditions of fractions I to IV and VI and VII above, or has news that I am in a process before any judicial body, verify and request the corresponding information.
The statements under oath contained in this document are made for the purpose that the National Banking and Securities Commission has elements of judgment to evaluate the honorability and satisfactory credit and business history of the undersigned and to determine, if applicable, in the exercise of the discretionary power conferred by Article 34, fraction IV and second paragraph of the Investment Funds Law to that authority, whether it is prudent and opportune to constitute me as a secured creditor on shares with respect to more than five percent of the share capital of the investment fund operating company, distributing company or investment fund share valuing company named ____________, with the proposed [to be proposed] share percentages in the authorization request we are addressing.
Sincerely,
(Name and signature of the interested party)
Filling Instructions:
Fill in the blanks and provide the information indicated in parentheses, as appropriate.
Attach the credit information report with the character of special credit report in terms of the Law to Regulate Credit Reporting Agencies, issued no more than three months prior to the application date, which constitutes Annex 1.
In the event that the interested party is unable to make any of the declarations referred to in fractions I to IV of this letter, they must express this circumstance in the corresponding number, detailing the facts, acts and reasons that prevent them or for which they do not fall under the referred conditions.
In the event that the person has caused loss, damage or financial detriment, directly or through an intermediary, to the detriment of financial entities due to non-compliance with obligations under their charge or of write-offs, forgiveness or discounts received regarding credits, unless these were under general programs implemented by the financial entities themselves or the Federal Government, the interested party must declare this situation, indicating the terms and characteristics of the credit in question, with indication of the lending entity, as well as a detailed description of the circumstances under which the loss, damage or financial detriment occurred.
For the purposes of the above, it will be understood that a natural person acted through the interposition of a legal person, when the former has or has had control of the latter, or when it exercises or has exercised command power over the society or association in question.
In the event that the person has caused loss, damage or financial detriment to the detriment of issuing companies in the securities market in which they exercise or have exercised control or have or have had command power, due to non-compliance with payment obligations contracted with them, the interested party must declare this situation, indicating the terms and characteristics of the operation in question, with indication of the issuing company, as well as a detailed description of the circumstances under which the loss, damage or financial detriment occurred.
In the event that the person has been a shareholder, counselor, commissioner, general director or relevant executive in a legal person to which the Ministry of Finance and Public Credit, the National Banking and Securities Commission, the National Insurance and Sureties Commission or the National Retirement Savings System Commission, has denied the concession, authorization, registration; has revoked the concession or authorization, or canceled the registration, or has denied authorization to acquire shares representing the share capital of said legal persons, they must declare this situation, indicating a detailed description of the circumstances under which the concession, authorization, registration or authorization to acquire shares of the share capital was revoked, canceled or denied.
Accompany a document issued by a legal person of recognized prestige in the judgment of the National Banking and Securities Commission, which provides legal services and in which the information indicated in the previous fraction V is stated, noting that it had the supporting documentation in view for this, in case a procedure has been declared.
Copy of the legal services contract that the applicant has entered into with the legal person referred to in the previous number, which contains the terms and conditions agreed between the parties for the issuance of the document contained in the previous number, regarding which the National Banking and Securities Commission may require modifications.
Attach your curriculum vitae in which the reasons or causes for the termination of the labor relationships presented in said information are detailed.
Attach the registration data certificate issued by the Attorney General's Office or the Prosecutor's Office that replaces it, as well as the criminal record certificate issued by the State Attorney General's Office or Prosecutor's Office of the place of residence and the State where the main business seat is located.
B. FORMAT OF OATH LETTER FOR LEGAL ENTITIES
Mexico City, on
NATIONAL BANKING AND SECURITIES COMMISSION
Present,
( Name or corporate name of the legal person ), through its representative ( name of the legal representative ), personality accredited through power contained in ( data of the deed and its registration in the Public Commerce Registry ), declares under oath and with the object of providing the information that may be necessary in relation to the authorization request presented [to be presented] before the National Banking and Securities Commission to constitute itself as secured creditors on shares representing more than five percent of the share capital of an investment fund operating company, distributing company or investment fund share valuing company, the following:
I.
That it enjoys a satisfactory credit history according to the credit information report with the character of special credit report in terms of the Law to Regulate Credit Reporting Agencies, issued by the credit reporting agency(ies) named _____ and _____, and is up to date in the fulfillment of its credit obligations, including regarding credits that have been subject to restructuring. Attached hereto, please find as Annex 1, the special credit report in which that Commission can verify that there is no non-compliance with its credit obligations, or that if there is any key of prevention in this regard, from the report itself it can be appreciated:
a)
The existence of a favorable resolution for the debtor due to the challenge of the registration in question, due to errors attributable to the users of the credit reporting agencies that are financial entities subject to the supervision of the National Banking and Securities Commission;
b)
The existence of payment of overdue debts as of the date of the query and evidence of sustained payment over a period of 1 year;
c)
Payment of losses caused to a financial entity, regardless of its amount, promoted voluntarily by the borrower, or
d)
The existence of favorable judicial resolutions for the borrowers, before litigation with creditors.
Likewise, we declare that our represented party has not failed to comply with its payment obligations on debt titles in the securities market, nor exercises or has exercised command power of an issuing company that has done so.
II.
That it has not been subject to investigation or administrative investigation procedures before the National Banking and Securities Commission for violations of national or foreign financial laws, or before other Mexican supervisory and regulatory institutions of the financial system or of other countries, or that if it has been, these concluded with a firm and definitive resolution or agreement/convention in which its exoneration was expressly determined.
III.
That it has not been declared in civil or commercial bankruptcy, or that even if it has been, this was terminated by the causes indicated in fractions I, II or V of Article 262 of the Commercial Bankruptcy Law, or, in the case of civil bankruptcy, by having paid in full to creditors or entered into an agreement with them, in terms of local laws.
IV.
That it is or has been a subject or party in processes before judicial bodies of the common or federal order, criminal investigations, as well as any other procedure, which are indicated below: (6)
Type of procedure.
Body before which the procedure is conducted.
Capacity in which it intervened.
Status of the procedure, including start date and, if applicable, conclusion.
Sense of the definitive resolution, if applicable.
V.
That it has not been a shareholder of a legal person to which the Ministry of Finance and Public Credit, the National Banking and Securities Commission, the National Insurance and Sureties Commission or the National Retirement Savings System Commission, has denied the concession, authorization or registration.
VI.
That it has not been a shareholder of a financial entity to which the concession, authorization or registration has been revoked by the Ministry of Finance and Public Credit, the National Banking and Securities Commission, the National Insurance and Sureties Commission or the National Retirement Savings System Commission.
The undersigned on behalf of its represented party authorizes the National Banking and Securities Commission to verify, before Mexican financial entities, credit reporting agencies and any competent authority, the truthfulness of the statements contained in this document, regarding any type of operations, in terms and with the breadth referred to in Articles 142 of the Credit Institutions Law, 192 and 295 of the Securities Market Law, 55 of the Investment Funds Law and any other applicable provisions.
Likewise, I authorize the aforementioned Commission to, during the time that my represented party serves as a shareholder of the investment fund operating company, investment fund share distributing company or investment fund share valuing company in question, or maintains in guarantee shares representing its share capital, in the event that said Commission learns by any means that it ceased to meet the conditions of fractions I to III and V and VI above, or has news that it is in a process before any judicial body, verify and request the corresponding information.
The statements under oath contained in this document are made for the purpose that the National Banking and Securities Commission has elements of judgment to evaluate the honorability and satisfactory credit and business history of my represented party by the undersigned and to determine, if applicable, in the exercise of the discretionary power conferred by Article 34, fraction IV and second paragraph of the Investment Funds Law to that authority, whether it is prudent and opportune to constitute me as a secured creditor on shares with respect to more than five percent of shares representing the share capital of the investment fund operating company, distributing company or investment fund share valuing company named ____________, with the proposed [to be proposed] share percentages in the authorization request we are addressing.
Sincerely,
(Name and signature of the legal representative)
(Name or corporate name of the legal person)
Filling Instructions:
Fill in the blanks and provide the information indicated in parentheses, as appropriate.
Attach the credit information report, with the character of special credit report in terms of the Law to Regulate Credit Reporting Agencies with an issuance date no more than three months prior to the application date, which constitutes Annex 1.
In the event that the interested party is unable to make any of the declarations referred to in fractions I to III of this letter, they must express this circumstance in the corresponding number, detailing the facts, acts and reasons that prevent them or for which they do not fall under the referred conditions.
In the event that the person has caused loss, damage or financial detriment, directly or through an intermediary, to the detriment of financial entities due to non-compliance with obligations under their charge or of write-offs, forgiveness or discounts received regarding credits, unless these were under general programs implemented by the financial entities themselves or the Federal Government, the interested party must declare this situation, indicating the terms and characteristics of the credit in question, with indication of the lending entity, as well as a detailed description of the circumstances under which the loss, damage or financial detriment occurred.
For the purposes of the above, it will be understood that a legal person acted through the interposition of another legal person, when the former has or has had control of the latter, or when it exercises or has exercised command power over the society or association in question.
In the event that the person has caused loss, damage or financial detriment to the detriment of issuing companies in the securities market in which they exercise or have exercised control or have or have had command power, due to non-compliance with payment obligations contracted with them, the interested party must declare this situation, indicating the terms and characteristics of the operation in question, with indication of the issuing company, as well as a detailed description of the circumstances under which the loss, damage or financial detriment occurred.
In the event that the person has been a shareholder in a legal person to which the Ministry of Finance and Public Credit, the National Banking and Securities Commission, the National Insurance and Sureties Commission or the National Retirement Savings System Commission has denied the concession, authorization or registration, or if it has been revoked, they must declare this situation, indicating a detailed description of the circumstances under which the concession, authorization or registration was revoked or denied.
Accompany a document issued by a legal person of recognized prestige in the judgment of the National Banking and Securities Commission, which provides legal services and in which the information indicated in the previous fraction IV is stated, noting that it had the supporting documentation in view for this in case a procedure has been declared.
Copy of the legal services contract that the applicant has entered into with the legal person referred to in the previous number, which contains the terms and conditions agreed between the parties for the issuance of the document contained in the previous number, regarding which the National Banking and Securities Commission may require modifications.
ANNEX 15
CURRICULAR INFORMATION FORMAT FOR PERSONS PROPOSED TO OCCUPY THE POSITIONS OF COUNSELOR, GENERAL DIRECTOR, REGULATORY CONTROLLER OR OFFICIAL WITHIN THE TWO IMMEDIATELY LOWER HIERARCHIES TO THAT OF GENERAL DIRECTOR OF INVESTMENT FUND OPERATING COMPANIES, DISTRIBUTING COMPANIES OR INVESTMENT FUND SHARE VALUATING COMPANIES AND COMPANIES THAT ADMINISTER ELECTRONIC TRADING MECHANISMS FOR INVESTMENT FUND SHARES OR DISCLOSURE OF INVESTMENT FUND INFORMATION
Name of the company.
Date of preparation (dd/mm/yyyy).
This information is part of the request presented to the National Banking and Securities Commission, its content is confidential and may be subject to review and verification.
Filling Instructions.
This format must be filled out by:
a) Counselors.
b) General director.
c) Regulatory controller.
d) Officials who hold positions within the two immediately lower hierarchies to that of General Director.
No spaces should be left blank, in any case mention: None, No, I don't have, Not applicable.
All names and data required must be presented in full (e.g. people with two names).
SECTION 1
PERSONAL IDENTIFICATION DATA
First name(s).
Paternal surname.
Maternal surname.
Nationality.
RFC (with homoclave).
Unique Population Registry Key
(CURP).
Address for hearing and receiving notifications
Street and exterior and/or interior number.
Neighborhood.
Delegation or Municipality.
Federal Entity.
Postal code.
Country.
Marital status.
Name of spouse or concubine (partner).
Name of relatives in ascending and descending straight line up to the fourth degree.
SECTION 2
PARTICIPATION OF THE PERSON IN THE INVESTMENT FUND OPERATING COMPANY,
DISTRIBUTING COMPANY OR INVESTMENT FUND SHARE VALUATING COMPANY AND
COMPANY THAT ADMINISTERS ELECTRONIC TRADING MECHANISMS FOR INVESTMENT FUND SHARES
OR DISCLOSURE OF INVESTMENT FUND INFORMATION
Position.
£ £
President of the board of directors.
£ £
Proprietary Counselor.
£ £
Independent:
Yes
£
No ¡Error! Undefined marker
£
£
£ £
Alternate Counselor.
£ £
Independent:
Yes
£
No
£
£ ¡Error! Undefined marker
£ £
Secretary of the board of directors.
£ £
General director.
£ £
Regulatory Controller
£ £
Finance Director.
£ £
Legal Director.
£ £
Commercial Director.
£ £
Other(s).
Specify: ____________________________________
SECTION 3
ACADEMIC EXPERIENCE
Institution.
Date.
Degree.
SECTION 4
PROFESSIONAL EXPERIENCE (5 YEARS OF EXPERIENCE IN THE MATTER)
Institution.
Period.
Position.
SECTION 5
ADDITIONAL INFORMATION
If you consider that there is any other relevant information not contemplated in the previous
sections, you must list the information and comment in the following box.
Section.
Information.
SECTION 6
DECLARATIONS AND SIGNATURES
Through this channel, the undersigned authorizes the National Banking and Securities Commission, regarding the
information provided here, to:
a)
Verify it as it deems appropriate, as well as to obtain from any other authority it deems
convenient information about my person, in connection with the authorization request presented
before that Commission.
b)
Share it in a confidential manner with the National Insurance and Sureties Commission, National
Retirement Savings System Commission, the Bank of Mexico, the Tax Administration Service, the
Attorney General's Office and other authorities, for the exclusive fulfillment of their functions.
I confirm that I have read and filled out this format with care, such that I understand its content
and legal implications.
I understand that providing false data will be grounds for considering that the requirements are not met
to occupy the positions referred to in this Annex, without prejudice to the penalties or legal sanctions that
may apply according to the case.
I DECLARE UNDER OATH THAT THE DATA CONTAINED IN THIS
DECLARATION ARE TRUE.
Signature of the person or legal representative.
NAME
DATE
SECTION 7
DOCUMENTS THAT MUST ACCOMPANY THIS APPLICATION
Copy of valid official identification (voter credential or valid passport and in the case of
foreign nationals, migratory form or passport).
Copy of the tax identification card and of the Unique Population Registry Key.
Documentation supporting the information referred to in Sections 3 and 4 of this Annex.
Curriculum Vitae.
Registration data certificate issued by the Attorney General's Office or General Prosecutor's
Office that replaces it, as well as criminal record certificate issued by the State Attorney
General's Office or Prosecutor's Office of the place of residence and the State where the main
business seat is located.
ANNEX 16
FORMATS OF OATH LETTERS FOR PERSONS PROPOSED TO OCCUPY THE POSITIONS
OF COUNSELOR, GENERAL DIRECTOR, REGULATORY CONTROLLER OR OFFICIAL WITHIN THE
TWO IMMEDIATELY LOWER HIERARCHIES TO THAT OF GENERAL DIRECTOR OF INVESTMENT FUND
OPERATING COMPANIES, DISTRIBUTING COMPANIES OR INVESTMENT FUND SHARE VALUATING
COMPANIES
I.
PERSONS PROPOSED AS COUNSELORS IN INVESTMENT FUND OPERATING COMPANIES AND INVESTMENT FUND SHARE VALUATING COMPANIES
NATIONAL BANKING AND SECURITIES COMMISSION
Present,
The undersigned, ( name of the person signing ), by my own right and in relation to the authorization request presented before that Commission for the organization and functioning of the [investment fund operating company] [investment fund share valuing company] to be named
_____________________, in which I would be proposed to serve as a board member, through this statement under oath of telling the truth, I declare the following:
I.
That I do not fall under any of the following circumstances established in Article 34 Bis of the Investment Funds Law, as impediments to serving as an independent board member of an investment fund operating company or investment fund share valuation company:
a)
To be an employee or executive of the company to be constituted.
b)
To be a shareholder who, without being an employee or executive of the company, has Command Power in the company.
c)
To be a partner or person holding an employment, position, or commission in companies or associations considered as important in terms of Article 34 Bis, fifth paragraph, fraction III, second paragraph of the Investment Funds Law, that provide services to the company to be constituted or to the companies belonging to the same Business Group of which this one is part.
d)
To be a client, supplier, service provider, debtor, creditor, partner, board member, or employee of a company that is a client, supplier, service provider, debtor, or creditor considered important of the company in question, in terms of Article 34 Bis, fifth paragraph, fraction IV, second paragraph of the Investment Funds Law.
e)
To be an employee of a foundation, association, or civil society that receives donations from the company to be constituted considered important in terms of what is provided in Article 34 Bis, fifth paragraph, fraction V, second paragraph of the Investment Funds Law.
f)
To be general director or high-level executive of a company in whose board of administration participates the general director or a high-level executive of the company in question.
g)
To be general director or employee of financial entities belonging to the same Business Group or Consortium to which the company to be constituted belongs.
h)
To be spouse, concubine, or concubine, as well as having kinship by blood, affinity, or civil up to the first degree, with respect to any of the persons falling under the circumstances mentioned in fractions III to VII of Article 34 Bis of the Law, or up to the third degree, in relation to those indicated in fractions I, II, and IX of the aforementioned Article 34 Bis of the Investment Funds Law.
i)
To be director or employee of companies in which the shareholders of the company to be constituted exercise Control.
j)
To have a conflict of interest or be subordinated to personal, patrimonial, or economic interests of any of the persons who maintain Control of the company in question, or of the Consortium or Business Group to which the operating company or investment fund share valuation company belongs, having Command Power in any of these.
k)
To have been in any of the aforementioned circumstances during the year prior to the moment when their appointment is intended to be made.
II.
That I am not in any of the restriction or incompatibility circumstances provided for in the applicable legislation.
III.
That I do not have a conflict of interest or interest opposed to that of the persons requesting authorization for the organization and operation of the company to be constituted (nor, if applicable, with any of the companies that form part of the financial group to which the company belongs).
IV.
That I am up to date with my credit obligations of any kind, which I evidence with the credit information report, with the character of special credit report in terms of the Law to Regulate Credit Information Societies, with an issuance date not older than three months prior to the date of this request.
V.
That I know the rights and obligations I would assume upon accepting the appointment as independent board member of the [investment fund share operating company] [investment fund share valuation company] to be named ____________________ and that I have the necessary experience to perform said position.
VI.
That I am or have been a subject or party before common or federal jurisdictional bodies, criminal investigations, as well as any other procedure, even in other countries, individually and, if applicable, in my capacity as legal representative, board member, official, employee, or commissioner of any legal entity, which are indicated below: (7)
| Type of procedure. | Body before which the procedure is carried out. | Capacity in which I intervened. | Status of the procedure, including start date and, if applicable, conclusion. | Sense of the definitive resolution, if applicable. |
|---|
VII.
That I meet the requirements of technical quality, honorability, and satisfactory credit history, as well as extensive experience and knowledge in financial matters in accordance with the general provisions issued by the National Banking and Securities Commission.
VIII.
That I have not been a shareholder, board member, auditor, general director, or relevant executive in a legal entity to which the Ministry of Finance and Public Credit, the National Banking and Securities Commission, the National Insurance and Bonds Commission, or the National Retirement Savings System Commission, have denied the concession, authorization, or registration, nor has authorization been denied to me to acquire shares representing the social capital of companies supervised by said National Commissions.
IX.
That I have not been a shareholder, board member, auditor, or relevant executive in a financial entity to which the concession or authorization has been revoked, or the registration canceled, nor has authorization been denied to me to acquire shares of the social capital of companies that enjoy the concession, authorization, or registration of the Ministry of Finance and Public Credit, the National Banking and Securities Commission, the National Insurance and Bonds Commission, or the National Retirement Savings System Commission.
Likewise, I authorize the National Banking and Securities Commission to verify and request the corresponding information during the time I serve as board member of the investment fund operating company, investment fund share distributing company, or investment fund share valuation company in question, or in case the Commission learns by any means that I no longer meet the circumstances of items I to V and VII to IX above, or if I have news that I am in a process before any jurisdictional body.
Respectfully,
(NAME AND SIGNATURE)
Annexes.- Credit information report, with the character of special credit report in terms of the Law to Regulate Credit Information Societies, with an issuance date not older than three months prior to the date of the request.
Attach a document issued by a legal entity of recognized prestige in the judgment of the National Banking and Securities Commission, which provides legal services and in which the information indicated in the previous fraction VI is stated, noting that it had the supporting documentation for it, in case a procedure has been declared.
Attach a copy of the legal services contract that the applicant has celebrated with the legal entity referred to in the previous paragraph, which contains the terms and conditions agreed upon by the parties for the issuance of the document contained in the previous paragraph, regarding which the National Banking and Securities Commission may require modifications.
Attach the registration data certificate issued by the Attorney General's Office of the Republic or the General Prosecutor's Office that replaces it, as well as the criminal record certificate issued by the Justice Prosecutor's Office or State Prosecutor's Office of the place of residence and the State where the main business seat is located.
II.
PERSONS PROPOSED TO OCCUPY THE POSITION OF BOARD MEMBER, GENERAL DIRECTOR, REGULATORY CONTROLLER, OR OFFICIAL WITHIN THE TWO IMMEDIATE LOWER HIERARCHIES BELOW THAT OF THE GENERAL DIRECTOR OF INVESTMENT FUND OPERATING COMPANIES, INVESTMENT FUND SHARE DISTRIBUTING COMPANIES, OR INVESTMENT FUND SHARE VALUATION COMPANIES
NATIONAL BANKING AND SECURITIES COMMISSION
Present,
The undersigned, ( name of the person signing ), by my own right and in relation to the authorization request presented before this Commission for the organization and operation of the [investment fund operating company, [investment fund share distributing company] [investment fund share valuation company] to be named _______________________, in which I would be proposed to serve as (corresponding position), through this statement under oath of telling the truth, I declare the following:
I.
That I have provided my services for at least five years in high-level decision-making positions, whose performance requires knowledge and experience in financial and administrative matters.
II.
That I do not fall under any of the circumstances established in Article 34 Bis 4 of the Investment Funds Law, as impediments to being a high-level executive of an investment fund operating company, investment fund share distributing company, or investment fund share valuation company.
III.
That I am not in any of the restriction or incompatibility circumstances provided for in the applicable legislation.
IV.
That I am up to date with my credit obligations of any kind, which I evidence with the credit information report, with the character of special credit report in terms of the Law to Regulate Credit Information Societies, with an issuance date not older than three months prior to the date of this request.
V.
That I know the rights and obligations I would assume upon accepting the appointment as (corresponding position) of the [investment fund operating company] [investment fund share distributing company] [investment fund share valuation company] to be named ____________________ and that I have the necessary experience to perform said position.
VI.
That I am or have been a subject or party before common or federal jurisdictional bodies, criminal investigations, as well as any other procedure, even in other countries, individually and, if applicable, in my capacity as legal representative, board member, official, employee, or commissioner of any legal entity, which are indicated below: (8)
| Type of procedure. | Body before which the procedure is carried out. | Capacity in which I intervened. | Status of the procedure, including start date and, if applicable, conclusion. | Sense of the definitive resolution, if applicable. |
|---|
VII.
That I meet the requirements of technical quality, honorability, and satisfactory credit history, as well as extensive experience and knowledge in financial matters in accordance with the general provisions issued by the National Banking and Securities Commission.
VIII.
That I have not been a shareholder, board member, auditor, general director, or relevant executive in a legal entity to which the Ministry of Finance and Public Credit, the National Banking and Securities Commission, the National Insurance and Bonds Commission, or the National Retirement Savings System Commission, have denied the concession, authorization, or registration, nor has authorization been denied to me to acquire shares representing the social capital in companies supervised by said National Commissions.
IX.
That I have not been a shareholder, board member, auditor, or relevant executive in a financial entity to which the concession or authorization has been revoked, or the registration canceled, nor has authorization been denied to me to acquire shares of the social capital of companies that enjoy the concession, authorization, or registration of the Ministry of Finance and Public Credit, the National Banking and Securities Commission, the National Insurance and Bonds Commission, or the National Retirement Savings System Commission.
Likewise, I authorize the National Banking and Securities Commission to verify and request the corresponding information during the time I serve as general director or official within the two immediate lower hierarchies below that of the general director of the investment fund operating company, investment fund share distributing company, or investment fund share valuation company in question, or in case the Commission learns by any means that I no longer meet the circumstances of items I to V and VII to IX above, or if I have news that I am in a process before any jurisdictional body.
Respectfully,
(NAME AND SIGNATURE).
Annexes.- Credit information report, with the character of special credit report in terms of the Law to Regulate Credit Information Societies, with an issuance date not older than three months prior to the date of the request.
Attach a document issued by a legal entity of recognized prestige in the judgment of the National Banking and Securities Commission, which provides legal services and in which the information indicated in the previous fraction VI is stated, noting that it had the supporting documentation for it.
Attach a copy of the legal services contract that the applicant has celebrated with the legal entity referred to in the previous paragraph, which contains the terms and conditions agreed upon by the parties for the issuance of the document contained in the previous paragraph, regarding which the National Banking and Securities Commission may require modifications.
Attach the registration data certificate issued by the Attorney General's Office of the Republic or the General Prosecutor's Office that replaces it, as well as the criminal record certificate issued by the Justice Prosecutor's Office or State Prosecutor's Office of the place of residence and the State where the main business seat is located.
ANNEX 21
FORMAT OF AFFIDAVIT FOR PERSONS INTENDING TO PARTICIPATE IN THE SOCIAL CAPITAL OF A COMPANY THAT ADMINISTERS ELECTRONIC TRADING MECHANISMS FOR INVESTMENT FUND SHARES OR INFORMATION DISCLOSURE
A.
FORMAT OF AFFIDAVIT FOR NATURAL PERSONS.
Mexico City, on
NATIONAL BANKING AND SECURITIES COMMISSION
Present,
The undersigned, ( name of the person signing ), by my own right and with the object of providing the information that may be necessary in relation to the authorization request [to be presented] [presented] before this National Banking and Securities Commission for the organization and operation of the company that [administers electronic trading mechanisms for investment fund shares] [administers electronic information disclosure mechanisms for investment funds] to be named ____________, I declare under oath of telling the truth the following:
I.
That I have a satisfactory credit history according to the credit information report with the character of special credit report in terms of the Law to Regulate Credit Information Societies, issued by the credit information society named ______, and I am up to date in the fulfillment of my credit obligations, including regarding credits that have been subject to restructuring. Attached hereto, please find as Annex 1, the special credit report of the undersigned, in which this Commission can verify that there is no default on my credit obligations, or that if there is any prevention key in this regard, the report itself shows:
a)
The existence of a favorable resolution for the debtor due to the challenge of the registration in question, due to errors attributable to the users of the credit information societies that are financial entities subject to the supervision of the National Banking and Securities Commission;
b)
The existence of payment of overdue debts as of the date of the consultation and evidence of sustained payment over a period of 1 year;
c)
Payment of losses caused to a financial entity, regardless of the amount, promoted voluntarily by the borrower, or
d)
The existence of favorable judicial resolutions for the borrowers, in litigation with creditors.
Likewise, I declare that I do not have nor have had control, nor do I exercise nor have I exercised command power of an issuing company that has defaulted on its debt securities payment obligations in the securities market.
II.
That I am not or have not been subject to criminal proceedings for intentional crimes punishable by imprisonment of more than one year, and that, in case I have been, it concluded with an acquittal.
III.
That I have not been subject to inquiry or administrative investigation procedures before the National Banking and Securities Commission for violations of national or foreign financial laws, or before other Mexican supervisory and regulatory institutions of the financial system or of other countries, or that if I have been, these concluded with a firm and definitive resolution or agreement/convention in which my exoneration was expressly determined.
IV.
That I have not been declared in civil or commercial bankruptcy, or that even if I have been, it was terminated due to the causes indicated in fractions I, II, or V of Article 262 of the Commercial Bankruptcy Law or, in the case of civil bankruptcy, by having paid in full to creditors or entered into an agreement with them, in terms of local laws.
V.
That I am or have been a subject or party in processes before common or federal jurisdictional bodies, criminal investigations, as well as any other procedure even in other countries, individually and, if applicable, in my capacity as legal representative, board member, official, employee, or commissioner of any legal entity, which are indicated below: (9)
| Type of procedure. | Body before which the procedure is carried out. | Capacity in which I intervened. | Status of the procedure, including start date and, if applicable, conclusion. | Sense of the definitive resolution, if applicable. |
|---|
VI.
That I have not been a shareholder, board member, auditor, general director, or relevant executive in a legal entity to which the Ministry of Finance and Public Credit, the National Banking and Securities Commission, the National Insurance and Bonds Commission, or the National Retirement Savings System Commission, have denied the concession, authorization, or registration, nor has authorization been denied to me to acquire shares representing the social capital of companies supervised by said National Commissions.
VII.
That I have not been a shareholder, board member, auditor, or relevant executive in a financial entity to which the concession or authorization has been revoked, or the registration canceled, nor has authorization been denied to me to acquire shares representing the social capital of companies that enjoy the concession, authorization, or registration of the Ministry of Finance and Public Credit, the National Banking and Securities Commission, the National Insurance and Bonds Commission, or the National Retirement Savings System Commission.
The undersigned authorizes the National Banking and Securities Commission to verify, before Mexican financial entities, credit information societies, the Institute for the Protection of Bank Savings, and any other competent authority, the truthfulness of the declarations contained in this writing, regarding any type of operations, in terms and with the breadth referred to in Articles 142 of the Credit Institutions Law, 192 and 295 of the Securities Market Law, 55 of the Investment Funds Law, and other applicable provisions.
Likewise, I authorize said Commission to verify and request the corresponding information during the time I serve as shareholder of the company that administers electronic trading mechanisms for investment fund shares or the company that administers electronic information disclosure mechanisms for investment funds in question, or if I maintain in guarantee shares representing its social capital, in case the Commission learns by any means that I no longer meet the circumstances of fractions I to IV and VI and VII above, or if I have news that I am in a process before any jurisdictional body.
The declarations under oath of telling the truth contained in this document are made for the purposes of the National Banking and Securities Commission having elements of judgment to evaluate the honorability, satisfactory credit history, and business history of the undersigned and to determine if it is prudent and opportune that I participate as a shareholder in the social capital of the [company that administers electronic trading mechanisms for investment fund shares] [the company that administers electronic information disclosure mechanisms for investment funds] to be named ___________ with the proposed shareholding percentages [to be proposed] in the authorization request we are discussing.
Respectfully,
(Name and signature of the interested party)
Filling Instructions:
Fill in all blank spaces and provide the information indicated in parentheses, as appropriate.
Attach the credit information report with the character of special credit report in terms of the Law to Regulate Credit Information Societies that constitutes Annex 1, with an issuance date not older than three months prior to the date of the request.
In the event that the interested party is not in a position to make any of the declarations referred to in fractions I to IV of this letter, they must express such circumstance in the corresponding numeral, detailing the facts, acts, and reasons that prevent them or by which they do not fall under the referred circumstances.
In case the person has caused loss, damage, or patrimonial detriment, directly or through an intermediary, to the detriment of financial entities due to the non-compliance with obligations owed by them or discounts, forgiveness, or reductions received regarding credits, unless these were under general programs implemented by the financial entities themselves or the Federal Government, the interested party must declare such situation, indicating the terms and characteristics of the credit in question, with
indication of the accrediting entity, as well as a detailed description of the circumstances under which the damage, loss, or detriment to patrimony occurred.
For the purposes of the foregoing, it shall be understood that a natural person acted through the interposition of a legal entity when the former has or has had control over the latter, or when it exercises or has exercised command power over the society or association in question.
In the event that the person has caused damage, loss, or detriment to patrimony to the detriment of issuers in the securities market in which they exercise or have exercised control or have or have had command power, due to non-compliance with payment obligations contracted with them, the interested party must declare such situation, indicating the terms and characteristics of the operation in question, with indication of the issuing society, as well as a detailed description of the circumstances under which the damage, loss, or detriment to patrimony occurred.
In the event that the person has been a shareholder, board member, commissioner, general manager, or relevant executive in a legal entity to which the Ministry of Finance and Public Credit, the National Banking and Securities Commission, the National Insurance and Bonds Commission, or the National Retirement Savings System Commission, have denied the concession, authorization, or registration; revoked the concession or authorization; or cancelled the registration; or denied authorization to acquire shares of the social capital of said legal entities, they must declare such situation, indicating a detailed description of the circumstances under which the concession, authorization, registration, or authorization to acquire shares of the social capital was revoked, cancelled, or denied.
Attach a document issued by a legal entity of recognized prestige, in the judgment of the National Banking and Securities Commission, that provides legal services and in which the information indicated in the previous fraction V is stated, noting that it had the supporting documentation for this in view, in case a procedure has been declared.
Copy of the legal services contract that the applicant has entered into with the legal entity referred to in the previous paragraph, which contains the terms and conditions agreed upon between the parties for the issuance of the document contained in the previous paragraph, regarding which the National Banking and Securities Commission may require modifications.
Attach their curriculum vitae in which the reasons or causes for the termination of the labor relationships presented in said information are detailed.
Attach their registration data certificate issued by the Attorney General's Office of the Republic or the one that replaces it, as well as the letter of no criminal records issued by the Justice Attorney's Office or the State Attorney's Office of the place of their residence and the State where they have their main business seat.
B. FORMAT OF PROTEST LETTER FOR LEGAL ENTITIES
Mexico City, to
NATIONAL BANKING AND SECURITIES COMMISSION
Present,
(Name or corporate name of the legal entity), through its representative (name of the legal representative), personality accredited through power contained in (data of the deed and its registration in the Public Commerce Registry), declares under oath and with the object of providing the information that may be necessary in relation to the authorization request [presented] [to be presented] before this National Banking and Securities Commission for the organization and functioning of the society that [administers electronic mechanisms for the negotiation of shares of investment funds] [administers electronic mechanisms for the disclosure of information of investment funds] to be named ____________, the following:
I.
That it has a satisfactory credit history according to the credit information report with the character of special credit report in terms of the Law to Regulate Credit Information Societies, issued by the credit information society named _____, and is up to date in the fulfillment of its credit obligations, including regarding credits that have been subject to restructuring. Attached hereto, please find as Annex 1, the special credit report of the undersigned, in which this Commission may verify that there is no non-compliance with its obligations, or well that if there is any key of prevention in this regard, from the report itself it can be appreciated:
a)
The existence of a favorable resolution for the debtor due to the challenge of the registration in question, due to errors attributable to the users of the credit information societies that are financial entities subject to the supervision of the National Banking and Securities Commission;
b)
The existence of payment of overdue debts as of the date of the inquiry and evidence of sustained payment over a period of 1 year;
c)
Payment of damages caused to a financial entity, regardless of its amount, promoted voluntarily by the accredited, or
d)
The existence of favorable judicial resolutions for the accredited, before litigation with creditors.
Likewise, we declare that our represented party has not failed to comply with its payment obligations on debt titles in the securities market, nor exercises or has exercised command power of an issuing society that has done so.
II.
That it has not been subject to inquiry or administrative investigation procedures before the National Banking and Securities Commission for violations of national or foreign financial laws, or before other Mexican supervisory and regulatory institutions of the financial system or of other countries, or well that having been so, these concluded with a firm and definitive resolution or agreement/convention in which its exoneration was expressly determined.
III.
That it has not been declared in civil or commercial bankruptcy, or well that even if it has been, this was terminated by the causes indicated in fractions I, II, or V of article 262 of the Commercial Bankruptcy Law, or, regarding civil bankruptcy, by having paid in full to creditors or entered into an agreement with them, in terms of local laws.
IV.
That it is or has been a subject or party in processes before jurisdictional organs of the common or federal order, criminal investigations, as well as any other procedure, which are indicated below: (10)
Type of
procedure.
Organ before
whom
the
procedure
carries on.
Character with
which
it
intervened.
Status of the
procedure,
including start date and, if applicable,
conclusion.
Sense of the
definitive
resolution,
if applicable.
V.
That it has not been a shareholder of a legal entity to which the Ministry of Finance and Public Credit, the National Banking and Securities Commission, the National Insurance and Bonds Commission, or the National Retirement Savings System Commission, have denied the concession, authorization, or registration.
VI.
That it has not been a shareholder of a financial entity to which the concession, authorization, or registration has been revoked by the Ministry of Finance and Public Credit, the National Banking and Securities Commission, the National Insurance and Bonds Commission, or the National Retirement Savings System Commission.
The undersigned on behalf of its represented party authorizes the National Banking and Securities Commission to, if applicable, verify before Mexican financial entities, credit information societies, the Institute for the Protection of Bank Savings, and any competent authority, the veracity of the declarations contained in this document, regarding any type of operations, in terms and with the breadth referred to in articles 142 of the Credit Institutions Law, 192 and 295 of the Securities Market Law, 55 of the Investment Funds Law, and others that are applicable.
Likewise, I authorize the same Commission that during the time that my represented party performs as a shareholder of the society that administers electronic mechanisms for the negotiation of shares of investment funds or the society that administers electronic mechanisms for the disclosure of information of investment funds in question or well, maintains in guarantee shares representative of its social capital, in case said Commission finds out by any means that it ceased to be in the assumptions of fractions I to III and V and VI above, or well, has news that it is in a process before any jurisdictional organ, verify and require the corresponding information.
The declarations under oath contained in this document are made for the purposes that this National Banking and Securities Commission has elements of judgment to evaluate the honorability and satisfactory credit and business history of my represented party and to determine if it is prudent and opportune that it participates as a shareholder in the social capital of the society that [administers electronic mechanisms for the negotiation of shares of investment funds] [administers electronic mechanisms for the disclosure of information of investment funds] to be named ___________ with the proposed [to be proposed] shareholding percentages in the authorization request that concerns us.
Sincerely,
(Name and signature of the legal representative)
(Name or corporate name of the legal entity)
Filling Instructions:
Fill in all blank spaces and provide the information indicated in parentheses, as appropriate.
Attach the credit information report with the character of special credit report in terms of the Law to Regulate Credit Information Societies, which constitutes Annex 1, with an issuance date not greater than three months prior to the date of the request.
In the event that the interested party is not able to formulate any of the declarations referred to in fractions I to III of this letter, they must express in the corresponding paragraph this circumstance, detailing the facts, acts, and reasons that prevent them or for which they do not fit the referred assumptions.
In the event that the person has caused any damage, loss, or detriment to patrimony, directly or through an intermediary person, to the detriment of financial entities due to non-compliance with obligations at their charge or with discounts, forgiveness, or discounts received regarding credits, unless these had been under general programs implemented by the financial entities themselves or the Federal Government, the interested party must declare such situation, indicating the terms and characteristics of the credit in question, with indication of the accrediting entity, as well as a detailed description of the circumstances under which the damage, loss, or detriment to patrimony occurred.
For the purposes of the foregoing, it shall be understood that a legal entity acted through the interposition of another legal entity when the former has or has had control over the latter, or when it exercises or has exercised command power over the society or association in question.
In the event that the person has caused damage, loss, or detriment to patrimony to the detriment of issuing societies in the securities market in which they exercise or have exercised control or have or have had command power, due to non-compliance with payment obligations contracted with them, the interested party must declare such situation, indicating the terms and characteristics of the operation in question, with indication of the issuing society, as well as a detailed description of the circumstances under which the damage, loss, or detriment to patrimony occurred.
In the event that the person has been a shareholder in a legal entity to which the Ministry of Finance and Public Credit, the National Banking and Securities Commission, the National Insurance and Bonds Commission, or the National Retirement Savings System Commission have denied the concession, authorization, or registration, or well, it has been revoked, they must declare such situation, indicating a detailed description of the circumstances under which the concession, authorization, or registration was revoked or denied.
Attach a document issued by a legal entity of recognized prestige, in the judgment of the National Banking and Securities Commission, that provides legal services and in which the information indicated in the previous fraction IV is stated, noting that it had the supporting documentation for this in view, in case a procedure has been declared.
Copy of the legal services contract that the applicant has entered into with the legal entity referred to in the previous paragraph, which contains the terms and conditions agreed upon between the parties for the issuance of the document contained in the previous paragraph, regarding which the National Banking and Securities Commission may require modifications.
1
Only for the case in which the undersigned has been subject to some process before common or federal jurisdictional tribunals, criminal investigations, as well as any other that by its relevance must be declared by the applicant. Otherwise, the fields must be filled with "N/A".
2
Only for the case in which the legal entity has been subject to some process before common or federal jurisdictional tribunals, criminal investigations, as well as any other that by its relevance must be declared by the applicant. Otherwise, the fields must be filled with "N/A".
3
Only for the case in which the undersigned has been subject to some process before common or federal jurisdictional tribunals, criminal investigations, as well as any other that by its relevance must be declared by the applicant. Otherwise, the fields must be filled with "N/A".
4
Only for the case in which the legal entity has been subject to some process before common or federal jurisdictional tribunals, criminal investigations, as well as any other that by its relevance must be declared by the applicant. Otherwise, the fields must be filled with "N/A".
5
Only for the case in which the undersigned has been subject to some process before common or federal jurisdictional tribunals, criminal investigations, as well as any other that by its relevance must be declared by the applicant. Otherwise, the fields must be filled with "N/A".
6
Only for the case in which the legal entity has been subject to some process before common or federal jurisdictional tribunals, criminal investigations, as well as any other that by its relevance must be declared by the applicant. Otherwise, the fields must be filled with "N/A".
7
Only for the case in which the undersigned has been subject to some process before common or federal jurisdictional tribunals, criminal investigations, as well as any other that by its relevance must be declared by the applicant. Otherwise, the fields must be filled with "N/A".
8
Only for the case in which the undersigned has been subject to some process before common or federal jurisdictional tribunals, criminal investigations, as well as any other that by its relevance must be declared by the applicant. Otherwise, the fields must be filled with "N/A".
9
Only for the case in which the undersigned has been subject to some process before common or federal jurisdictional tribunals, criminal investigations, as well as any other that by its relevance must be declared by the applicant. Otherwise, the fields must be filled with "N/A".
10
Only for the case in which the legal entity has been subject to some process before common or federal jurisdictional tribunals, criminal investigations, as well as any other that by its relevance must be declared by the applicant. Otherwise, the fields must be filled with "N/A".
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