A form to be filled in by every applicant for a position as non-executive director

Transcription

1 Annex Communication _2009_20-2 of 08 May 2009 A form to be filled in by every applicant for a position as non-executive director Scope: Credit institutions, investment firms, insurance companies, management companies of undertakings for collective investment, public investment companies, settlement institutions or equivalent institutions, financial holding companies, insurance holding companies and mixed financial holding companies. Preface: The personal data submitted on this form will be processed by the Banking, Finance and Insurance Commission (), rue du Congrès/Congresstraat 12-14, 1000 Brussels, in accordance with the Belgian Law of 8 December 1992 on the protection of privacy with regard to the processing of personal data. The will process these data with a view to verifying compliance with the legal provisions listed below. The processed data may be passed on to third parties, where appropriate, only under the conditions set out in Articles 74 and 75 of the Law of 2 August 2002 on the supervision of the financial sector and on financial services. Within the limits provided for in the regulations concerning the protection of privacy, the natural persons whose personal data have been processed have the right to inspect and correct such data in accordance with Articles 10 and 12 of the aforementioned Law of 8 December Scope The information requested on this form will be used for the purposes of supervision of compliance with the provisions of the relevant legislation, as applicable: - Articles 18, second paragraph, and 26bis, of the Law of 22 March on the legal status and supervision of credit institutions, - Articles 69bis of the Law of 6 April 1995 on the legal status and supervision of credit institutions, - Article 14bis and Article 91ter 1, second paragraph, of the Law of 9 July 1975 on the supervision of insurance companies - Articles 38, 2, 151 and 161bis of the Law of 20 July 2004 on certain forms of collective management of investment portfolios, - Articles 9 and 10, 7, of the Royal Decree of 26 September 2005 on the legal status of institutions and equivalent institutions, - Article 4, 4, of the Royal Decree of 12 August 1994 on the supervision of credit institutions on a consolidated basis, - Article 15, 1, of the Royal Decree of 21 vember 2005 on the supplementary group supervision of credit institutions, insurance companies, investment firms and management companies of undertakings for collective investment belonging to a financial services group, and 1 The legal provisions referred to in this form can be found on the web site of the :

2 _2009_20-2 dd. 08/05/ / 30 amending the Royal Decree of 22 February 1991 containing general regulations relating to the supervision of insurance companies and the Royal Decree of 12 August 1994 on the supervision of credit institutions on a consolidated basis. Pursuant to these provisions, - credit institutions, - investment firms, - insurance companies, - management companies of undertakings for collective investment, - public investment firms, - settlement institutions and equivalent institutions, - financial holding companies, - insurance holding companies, - mixed financial holding companies (hereafter "the institutions"), must have a management structure that is appropriate to their intended activities. Persons who participate in the governance or management without being part of senior management must have the necessary expertise and appropriate experience for carrying out the tasks entrusted to them. Structure of the form The information collected via this form, which the Banking, Finance and Insurance Commission () may supplement on the basis of other sources, will enable the to assess the submitted application as regards the necessary professional integrity, expertise and experience of both natural persons and legal persons nominated for the position of non-executive director, as well as of natural persons appointed as representatives of a legal person director of the institution. Without prejudice to the specific provisions mentioned below, anyone who is to be appointed a nonexecutive director or a representative of a legal person director of an institution of the type referred to above is therefore invited to fill in this form and submit it to the. The applicant is also invited to provide, in addition to his or her answers, any and all information that may be useful for understanding or assessing those answers. It is also important to point out in this regard that the answers to the questions below are expected to contain information relevant to the situation of the person concerned both in Belgium and abroad. Where certain information given on this form so requires or where the person concerned wishes to do so, he/she will be given the opportunity to provide the orally with any additional information that may be useful. In addition, the draws attention to the fact that Article 108 of the Law of 22 March 1993, Article 152 of the Law of 6 April 1995, Article 210 of the Law of 20 July 2004 and Article 88 of the Law of 9 July 1975 authorize it to obtain information from the judicial authorities concerning any conviction for or investigation into an infringement of the Law of 22 March 1993, the Law of 6 April 1995, the Law of 9 July 1975, the Law of 20 July 2004 or of one of the legal provisions in Article 19 of the Law of 22 March 1993, Article 61 of the Law of 6 April 1995 or Articles 39 and 152 of the Law of 20 July More specifically, space is provided under questions 5.A. and 5.B. below to fill in additional information if the answer to the question is affirmative. If the space provided is insufficient, supplementary sheets should be attached to the form and numbered in such a way that they follow the pagination of the form correctly (e.g., page 6bis, 6ter, 7bis, 7ter, etc.).

3 _2009_20-2 dd. 08/05/ / 30 The following documents should be enclosed with the application form: - a recent certificate of good character (criminal record check) 2 for the applicant non-executive director (or an equivalent document issued by a foreign authority), - his/her curriculum vitae, - and any document that is necessary for understanding the answers given. A list of the supplementary sheets and enclosures should be added at the end of the form. The form must be duly completed, dated and signed by the natural person director or the representative of the legal person director. It must also be co-signed by the chairman of the statutory governing body of the institution 3. Where the appointment is that of the chairman of the statutory governing body, the form must be cosigned by two other non-executive members of the governing body. 2 3 t older than three months. The current or (in the case of a company yet to be established) the proposed chairman.

4 _2009_20-2 dd. 08/05/ / 30 Specific provisions applicable to persons who have previously submitted to the their answers to the questionnaire required when applying for a position as non-executive director or senior manager of another institution of the type in question 4 : As regards the information requested in section 5.A. and 5.B. of this form (questions concerning professional integrity), it is permissible to refer to an identical or similar form that was previously submitted to the in order to apply for the position of senior manager, non-executive director or representative of a legal person director of another institution belonging to the same group 5 (related company). 6 If the applicant makes use of this option, it is understood that no change is to be made to the answers contained in the previous form. If this is the case, the questions in sections 5.A. and/or 5.B. below need not be answered. Similarly, such persons are exempt from having to submit a new certificate of good character (or equivalent document issued by a foreign authority) if such a document has been enclosed with the form submitted to the in order to apply for the position of senior manager of non-executive director of another institution belonging to the same group (related company). This exemption may be invoked only if those persons have not in the meantime been convicted or any criminal offence. If the applicant makes use of the said exemptions, the necessary details should be provided in point 5.A.0 and/or 5.B.0 below. * * Credit institution, investment firm, insurance company, branch in Belgium of a credit institution, an investment firm or an insurance company governed by the law of a State that does not belong to the European Economic Area, management company of undertakings for collective investment, public investment company, settlement institution or equivalent institution, financial holding company, insurance holding company or mixed financial holding company. As regards public investment companies, 'the same group' means the group to which the promoter of the investment company belongs. The following are likewise considered 'related companies': UCIs promoted by the same entity as the public investment company in question.

5 _2009_20-2 dd. 08/05/ / Name of the institution for which the application is being submitted 2. Identity of the applicant Legal person Name Legal form Incorporation date Nationality V.A.T. number or, if none, national number Registered office Natural person director or representative of a legal person director Surname Given name(s) Place and date of birth Nationality Domicile Administrative office(s) if different from registered office) Place of residence (if different from domicile) Telephone/mobile phone number address Shareholding structure Proposed start date of the appointment Expiry date of the appointment

6 _2009_20-2 dd. 08/05/ / Characteristics of the post of director Please tick the box corresponding to the capacity in which the natural or legal person in question is to be appointed dir 1. in his capacity as shareholder, member of a cooperative or of a mutual 2. in his capacity as representative of a shareholder, member of a cooperative or of a mutual 3. in his capacity as independent director within the meaning of Article 526ter of the Companies Code 4. in another capacity Please explain below if necessary: 4. Information on the experience of the natural person director or the representative of a legal person director Education (beginning with the most recent) Name of institution Start date End date Month Year Month Year Diploma obtained

7 _2009_20-2 dd. 08/05/ / Management experience in companies during the last eight years. Name and activity of the company Position held, whether or not involving participation in day-to-day management Start date End date Month Year Month Year 4.3. Other professional experience during the last eight years. Name and activity of the company Description of the position held Start date End date Month Year Month Year

8 _2009_20-2 dd. 08/05/ / 30 5.A. Information about the professional integrity of the applicant natural person director or the natural person representing a legal person director 5.A.0. Please delete the paragraphs below if they do not apply. a. The applicant natural person director or natural person representing a legal person director has already provided the with the information requested in section 5.A. by submitting an identical or similar form 7. with a view to applying for the position of senior manager/non-executive director/representative of a legal person director (delete as appropriate) of (name of the institution concerned):..., which is a related company of the institution concerned in this form; the previous form is dated... As no changes need to be made to the previously provided information, the applicant natural person director or natural person representing the legal person director refers expressly to it in response to the requests for information contained in this section. b. The applicant natural person director or natural person representing a legal person director declares that he/she has already provided the with a certificate of good character (or an equivalent document issued by a foreign authority), enclosed with the identical or similar document that was submitted previously. with a view to applying for the position of senior manager/non-executive director/representative of a legal person director (delete as appropriate) of (name of the institution concerned):......, which is a related company of the institution concerned in this form; the previous form is dated... As the applicant natural person director has not since then been convicted or any legal offence, he/she confirms that this previously submitted certificate of good character (or equivalent document issued by a foreign authority) is still valid. He/she need not therefore enclose a more recent certificate with this form. 7 Namely, a questionnaire for those intending to hold the position of senior manager, on which answers are given to questions 4.1 through 4.8, or a questionnaire for those intending to hold the position of non-executive director, on which answers are given to questions 5.A.1 to 5.A.8 regarding the integrity of the applicant natural person director or the natural person who represents a legal person director.

9 _2009_20-2 dd. 08/05/ / 30 5.A.1.Have you ever been convicted of, or, to your knowledge, has any inquiry been opened against you for one of the offences referred to in Article 19 of the Law of 22 March 1993, Article 61 of the Law of 6 April 1995, Article 90, 2, of the Law of 9 July 1975, Article 152 of the Law of 20 July 2004 or Article 9, paragraphs 2 and 3, of the Royal Decree of 26 September , or for a similar offence abroad? If your answer to this question is YES, please provide the necessary details below. 8 The legal provisions referred to in this form can be found on the web site of the :

10 _2009_20-2 dd. 08/05/ / 30 5.A.2. a. Has any prudential supervisor ever found or declared that you do not have the necessary professional integrity or appropriate experience to hold the position of director or senior manager at an institution subject to prudential supervision? b. Are you aware of anything that you have been or are accused of by a prudential supervisor? c. To your knowledge, have you ever been or are you currently the subject of any administrative or disciplinary sanction(s) or equivalent administrative measure(s) in respect of your professional activities, or of a suspension or exclusion by a professional organization? Are you aware of any such ongoing proceeding? d. Have you ever been dismissed for serious misconduct or has a contract of independent agent or any other contract under which you carried out a professional activity as a self-employed person ever been terminated for serious misconduct? If your answer to this question is YES, please provide the necessary details below.

11 _2009_20-2 dd. 08/05/ / 30 5.A.3. Has any company of which you were or are a senior manager, or in which you held or currently hold a significant interest 9, ever been the subject of a criminal conviction, of an administrative or disciplinary sanction or an equivalent administrative measure, or of a suspension or exclusion by a professional association? Are you aware of any such ongoing proceeding against a company of which you are senior manager or in which you hold a significant interest? If your answer to this question is YES, please provide the necessary details below. Please identify the company concerned and provide its V.A.T. number or, if none, its national number. 9 A holding of 10% or more.

12 _2009_20-2 dd. 08/05/ / 30 5.A.4. Has any company of which you were or are a director, business manager or senior manager, or in which you held or currently hold a significant interest, ever been the subject of a refusal or withdrawal of authorization? If your answer to this question is YES, please provide the necessary details below. Please identify the company concerned and provide its V.A.T. number or, if none, its national number.

13 _2009_20-2 dd. 08/05/ / 30 5.A.5.a. Have you ever been or are you considering being party to a settlement or agreement in a dispute with third parties relating to an infringement of financial legislation or insurance legislation? b. Has any company of which you were or are director, business manager or senior manager, or in which you held or currently hold a significant interest, ever been party to a settlement or agreement in a dispute with third parties relating to an infringement of financial legislation or insurance legislation, or is any such company considering such a move? If your answer to this question is YES, please provide the necessary details below. Please identify the company concerned and provide its V.A.T. number or, if none, its national number.

14 _2009_20-2 dd. 08/05/ / 30 5.A.6. a. Have you ever been, or are you considering being party to an amicable settlement or judicial proceeding relating to an adjustment and/or discharge of personal debts? b. Have you ever been, or are you considering being party to an amicable settlement or judicial proceeding relating to a debt adjustment and/or discharge in favour of any company of which you were or are senior manager, or in which you held or currently hold a significant interest? If your answer to this question is YES, please provide the necessary details below. Please identify the company concerned and provide its V.A.T. number or, if none, its national number.

15 _2009_20-2 dd. 08/05/ / 30 5.A.7. Has any company of which you were a director, business manager or senior manager, or in which you held a significant interest, ever been declared bankrupt? Are you aware of any such ongoing proceeding against a company of which you are senior manager or in which you hold a significant interest? If your answer to this question is YES, please provide the necessary details below. Please identify the company concerned and provide its V.A.T. number or, if none, its national number.

16 _2009_20-2 dd. 08/05/ / 30 5.A.8. Has any company of which you were or are a director, business manager or senior manager, or in which you held or currently hold a significant interest, ever been the subject of a refusal by the external auditors (accredited auditor(s), statutory auditor(s), etc.) to certify the accounts? If your answer to this question is YES, please provide the necessary details below. Please identify the company concerned and provide its V.A.T. number or, if none, its national number.

17 _2009_20-2 dd. 08/05/ / 30 5.B. Information on the professional integrity of the applicant legal person director 5.B.0. Please delete the paragraphs below if they do not apply. a. The applicant natural person director has already provided the with the information requested in section 5.B by submitting an identical or similar form: with a view to applying for the position of legal person director of: (name of the institution concerned):......,which is a related company of the institution concerned in this form. the previous form is dated... As no changes need to be made to this prior information, the applicant legal person director refers expressly to it in response to the requests for information contained in this section.

18 _2009_20-2 dd. 08/05/ / 30 5.A.1. Has the company ever been convicted of, or, to your knowledge, has any inquiry been opened against it for one of the offences referred to in Article 19 of the Law of 22 March 1993; Article 61 of the Law of 6 April 1995; Article 90, 2, of the Law of 9 July 1975; Article 152 of the Law of 20 July 2004; Article 9, paragraphs 2 and 3, of the Royal Decree of 26 September , or for a similar offence abroad? If your answer to this question is YES, please provide the necessary details below. 10 The legal provisions referred to in this form can be found on the web site of the :

19 _2009_20-2 dd. 08/05/ / 30 5.B.2. a. Are you aware of anything that the legal person concerned has been or is accused of by a prudential supervisor? b. To your knowledge, has the legal person in question ever been or is it currently the subject of any administrative or disciplinary sanction or equivalent administrative measure or of a suspension or exclusion by a professional organization? If your answer to this question is YES, please provide the necessary details below.

20 _2009_20-2 dd. 08/05/ / 30 5.B.3. Has any company of which the legal person was or is a director, or in which it held or currently holds a significant interest, ever been the subject of a criminal conviction, of an administrative or disciplinary sanction or an equivalent administrative measure, or of a suspension or exclusion by a professional association? Are you aware of any ongoing proceeding against such a company? If your answer to this question is YES, please provide the necessary details below. Please identify the company concerned and provide its V.A.T. number or, if none, its national number.

21 _2009_20-2 dd. 08/05/ / 30 5.B.4. Has any company of which the legal person concerned was or is a director, or in which it holds a significant interest, ever been the subject of a refusal or withdrawal of authorization? If your answer to this question is YES, please provide the necessary details below. Please identify the company concerned and provide its V.A.T. number or, if none, its national number.

22 _2009_20-2 dd. 08/05/ / 30 5.B.5. a. Has the legal person concerned ever been or is it considering being party to a settlement or agreement in a dispute with third parties relating to an infringement of financial legislation or insurance legislation? b. Has any company of which you were or are director, business manager or senior manager, or in which you held or currently hold a significant interest, ever been party to a settlement or agreement in a dispute with third parties relating to an infringement of financial legislation or insurance legislation, or is any such company considering such a move? If your answer to this question is YES, please provide the necessary details below. Please identify the company concerned and provide its V.A.T. number or, if none, its national number.

23 _2009_20-2 dd. 08/05/ / 30 5.B.6. a. Has the legal person concerned ever been, or is it considering being party to an amicable settlement or judicial proceeding relating to an adjustment and/or discharge of personal debts? b. Has it ever been, or is it considering being party to an amicable settlement or judicial proceeding relating to a debt adjustment and/or discharge in favour of any company of which it was or is a director, or in which it held or currently holds a significant interest? If your answer to this question is YES, please provide the necessary details below. Please identify the company concerned and provide its V.A.T. number or, if none, its national number.

24 _2009_20-2 dd. 08/05/ / 30 5.B.7. Has any company in the legal person concerned was a director, or in which it held a significant interest, ever been declared bankrupt? Are you aware of any such ongoing proceeding against a company in which the natural person concerned is a director or in which it hold a significant interest? If your answer to this question is YES, please provide the necessary details below. Please identify the company concerned and provide its V.A.T. number or, if none, its national number.

25 _2009_20-2 dd. 08/05/ / 30 5.B.8. Has any company of which the legal person in question was a director, or in which it held or currently holds a significant interest, ever been the subject of a refusal by the external auditors (accredited auditor(s), statutory auditor(s), etc.) to certify the accounts? If your answer to this question is YES, please provide the necessary details below. Please identify the company concerned and provide its V.A.T. number or, if none, its national number.

26 _2009_20-2 dd. 08/05/ / 30 5.B.9. Has any prudential supervisor ever considered or declared that an executive director of the legal person who is currently still in office, does not have the necessary professional integrity or appropriate experience to hold the position of director or senior manager at an institution subject to prudential supervision? If your answer to this question is YES, please provide the necessary details below.

27 _2009_20-2 dd. 08/05/ / 30 6.A. Additional information about the applicant natural person director or the natural person representing a legal person director Please reply to the questions below by ticking YES or NO. Your answers must relate to your situation both in Belgium and abroad. If your answer to one of these questions is YES, please provide all necessary details in a separate document. 6.A.1. In addition to the position which is the subject of this application, have yes no you any plans to continue or start carrying out other duties that involve taking part in the administration or management of a company? If so, the attention of applicant directors of the institutions concerned is drawn to the requirement to comply with the legal provisions concerning the exercise of external functions 11 as well as with the internal rules drawn up in this respect by the institution where they are to take part in the senior management. 6.A.2. Do you intend to conduct any personal transactions with the institution concerned for your own account, either directly or through an intermediary? 6.A.3. Do you personally or via a company governed by Belgian or foreign law hold one or more mandates to manage assets or accounts belonging to third parties, including family members? yes yes no no 6.B. Additional information on the applicant legal person director Please reply to the questions below by ticking YES or NO. Your answers must relate to your situation both in Belgium and abroad. If your answer to one of these questions is YES, please provide all necessary details in a separate document. 6.B.1. Do you intend to conduct any personal transactions with the institution concerned for your own account, either directly or through an intermediary? yes no 11 Article 27 of the Law of 22 March 1993, Article 70 of the Law of 6 April 1995, Article 90? 4, of the Law of 9 July 1975, Article 162 of the Law of 20 July 2004, Article 15 of the Royal Decree of 26 September There is no comparable provision for public investment companies.

28 _2009_20-2 dd. 08/05/ / Additional information Is there any other information which you feel you should communicate because it may be useful for the assessment of your application as natural person director or representative of a legal person director, or for the assessment of the application for the position of director by the legal person concerned? If your answer to this question is YES, please provide the necessary details below.

29 _2009_20-2 dd. 08/05/ / Enclosures and supplementary sheets 8.1. Please indicate the number and pagination of any supplementary sheets attached to this application form Please identify any enclosures with this form, indicate the number of pages of each enclosure and the number of the question above to which each enclosure relates.

30 _2009_20-2 dd. 08/05/ / 30 Declaration of the applicant natural person director "I, the undersigned,... (surname and given name(s) of the applicant director), hereby confirm the accuracy of the answers provided to the above questions and undertake to inform the Banking, Finance and Insurance Commission immediately of any change relating to one or more answers to these questions. As regards these questions, I am aware that communicating incorrect information to the Banking, Finance and Insurance Commission may adversely affect its assessment of my application or, subsequently, of the qualifications required of me to exercise the duties of director that will be entrusted to me." Date and signature of the applicant director Declaration by the natural person who represents the applicant legal person director "In my capacity as representative of:... (name of the institution concerned), I, the undersigned,... (surname and given name(s) of the legal person director) hereby confirm the accuracy of the answers provided to the above questions and undertake to inform the Banking, Finance and Insurance Commission immediately of any change relating to one or more answers to these questions. As regards these questions, I am aware that communicating incorrect information to the Banking, Finance and Insurance Commission may adversely affect its assessment of my application." Date and signature of the representative of the legal person director Declaration by the chairman of the statutory governing body of the institution concerned "In my capacity as chairman of the statutory governing body of... (name of the institution concerned), I, the undersigned,... (surname and given name(s)) hereby declare, after having made the usual verifications, that the information provided by... (surname and given name(s) of the applicant director) to the Banking, Finance and Insurance Commission in this document is, to my knowledge, correct. I undertake to inform the Banking, Finance and Insurance Commission immediately of any and all changes to this information I may become aware of and that would be likely to have an impact on the Banking, Finance and Insurance Commission's assessment of the professional integrity and/or appropriate experience of the applicant senior manager." Date and signature of the chairman of the statutory governing body of two other non-executive members