Collective Investment Funds (Certified Funds – Prospectuses)
(Jersey) Order 2012
1 Interpretation
(1) In this Order, unless
the context otherwise requires –
“bearer certificate”
means a certificate representing units of any class in a fund –
(a) which contains a statement that the bearer
of the certificate is entitled to the number of units of that class represented
by the certificate; or
(b) delivery of which is otherwise sufficient to
transfer title to the units concerned;
“closed-ended fund”
means a certified fund that is not an open-ended fund;
“documents constituting
the fund” includes –
(a) in the case of a certified fund constituted
as a company, the memorandum and articles of association of that company;
(b) in the case of a certified fund constituted
as a unit trust, the trust instrument;
(c) in the case of a certified fund constituted
as an incorporated limited partnership, a limited partnership or a separate
limited partnership, the partnership agreement; and
(d) in every case –
(i) any custodian agreement,
(ii) any management agreement,
(iii) any other contracts or documents that are
material to the constitution or operation of the fund, and
(iv) any agreements, relating to the fund,
entered into by persons carrying on fund services business in relation to the
fund, with each other or with the fund;
“feeder fund”
means a certified fund or separate part of an umbrella fund that
is –
(a) dedicated to a single fund; or
(b) where the fund into which it feeds has more
than one constituent part (or its equivalent), dedicated to a single
constituent part (or its equivalent) or class of the fund;
“general partner” –
(a) in relation to an incorporated limited
partnership, has the same meaning as in the Incorporated
Limited Partnerships (Jersey) Law 2011;
(b)
(c) in relation to a limited partnership, has
the same meaning as in the Limited
Partnerships (Jersey) Law 1994; and
(d) in relation to a separate limited
partnership, has the same meaning as in the Separate
Limited Partnerships (Jersey) Law 2011;
“incorporated cell
company” has the same meaning as in the Companies
(Jersey) Law 1991;
“open-ended fund”
shall be construed in accordance with paragraph (3);
“person carrying on
fund services business” shall be construed in accordance with Article 2(10)
of the Financial
Services (Jersey) Law 1998;
“protected cell company”
has the same meaning as in the Companies
(Jersey) Law 1991;
“umbrella fund”
means a certified fund where –
(a) the contributions of the unit holders and
the profits and income out of which payments are to be made to them are pooled;
and
(b) the documents constituting the fund provide
that such pooling is to be accomplished separately in relation to separate
parts of the property of the fund.[1]
(2) In this Order any reference to –
(a) the manager, registrar, investment manager
or investment adviser; or
(b) the trustee, custodian or depositary,
in relation to a certified
fund is a reference to the person carrying on fund services business of that
description in relation to the fund.
(3) For the purposes of
this Order, a certified fund is open-ended if, under the documents constituting
the fund, the unit holders are entitled to have units repurchased –
(a) out of the property of the fund or out of
property provided by or at the instigation of the fund;
(b) at all times or from time to time; and
(c) at a price related to the net value of the
property of the fund to which the units in question relate.
1A Certificate
holders exempt from complying with Order in relation to marketing certain funds[2]
A certificate holder shall
not be required to prepare a prospectus in compliance with this Order if the
certified fund being marketed is of the type described in Schedule 2.
2 Interpretation:
marketing of and transactions in units
(1) In this Order, unless the context otherwise
requires, a reference to units in a certified fund being marketed is a
reference to their being offered for sale –
(a) by the certificate holder; or
(b) as principal or agent for the certificate
holder, by a person carrying on fund services business in relation to the fund.
(2) In this Order, unless the context otherwise
requires, “issue”, in relation to units in a certified fund, means
their issue or creation, as the case requires –
(a) by the certificate holder; or
(b) as principal or agent for the certificate
holder, by a person carrying on fund services business in relation to the fund.
(3) In this Order, unless the context otherwise
requires, “sale”, in relation to units in a certified fund, means
the sale of units, whether on their issue or subsequent to their
issue –
(a) by the certificate holder; or
(b) as principal or agent for the certificate
holder, by a person carrying on fund services business in relation to the fund,
and “sale
price” and the verb “sell” shall be construed accordingly.
(4) In this Order, unless the context otherwise
requires, “purchaser” means the purchaser in a sale of units in a
certified fund, and the verb “purchase” shall be construed
accordingly.
(5) In this Order, unless the context otherwise
requires, “repurchase”, in relation to units in a certified fund,
means the purchase or redemption of units –
(a) by the certificate holder; or
(b) as principal or agent for the certificate
holder, by a person carrying on fund services business in relation to the fund,
and “repurchase
price” and the verb “repurchase” shall be construed
accordingly.
(6) In this Order, unless the context otherwise
requires, “cancellation” means the cancellation of units in a certified
fund on the winding up of the fund or the termination date (if any) for the
fund.
3 Preparation
of prospectus
(1) A prospectus for a certified fund
shall –
(a) be prepared by the certificate holder;
(b) be in the English language;
(c) contain the information required by Schedule 1
and, having regard to the type of prospective purchaser of units in the fund,
present that information in a format that is designed to be easy for such
persons to understand; and
(d) include –
(i) a copy of the latest annual report and
of any subsequent half-yearly report for the fund, and
(ii) a copy of the latest audited accounts
for the fund and of the report by the fund’s auditors.
(2) Paragraph (1)(d) shall not be read as
requiring the publication of the documents referred to in it and the
information required by paragraph (1)(c) in a single document.
(3) A prospectus shall be revised by the
certificate holder if –
(a) a new issue of units in the fund is
marketed; or
(b) at any time when units in the fund are being
marketed –
(i) any significant change occurs in the
matters stated in it, or
(ii) any significant new matter arises
which ought to be stated in it.
(4) A revision required by paragraph (3)
may be published as a document that supplements the prospectus.
(5) A reference in this Article to the
preparation or revision of a prospectus by the certificate holder does not
preclude the prospectus being prepared or revised by another person on behalf
of the certificate holder.
4 Conditions for marketing of
units
(1) Units in a certified fund shall not be
marketed unless –
(a) a prospectus has been prepared –
(i) that complies with Article 3(1),
or
(ii) for which the Commission’s
consent has been obtained under paragraph (2); and
(b) a copy of the prospectus has been given to
the Commission and to any trustee, custodian or depositary in relation to the
fund.
(2) The Commission may consent to the marketing
of units in a fund by means of a prospectus which does not comply in every
respect with the requirements of Article 3(1) if it is satisfied that the
deviation from those requirements –
(a) does not materially affect the substance of
the prospectus; and
(b) is not calculated to mislead.
(3) This Article applies to a revision of a
prospectus required by Article 3(3) as it applies to the original
prospectus.
5 Provision
of prospectus to purchaser
(1) Where a sale of units in a certified fund is
to be effected in the course of a conversation conducted face-to-face or by
telephone, the certificate holder shall ensure that the sale is not effected
unless the purchaser has been offered a copy of the prospectus, free of charge.
(2) Where a sale of units in a certified fund is
effected other than in the course of a conversation conducted face-to-face or
by telephone, the certificate holder shall, if the purchaser asks for it, send
a copy of the prospectus to the purchaser, free of charge.
6 Inspection
of prospectus by prospective investors
The certificate holder shall
make a copy of the prospectus available for inspection by any prospective
investor free of charge at all times during ordinary office hours at the
certificate holder’s principal place of business in Jersey.
7 Compensation
for false or misleading prospectus
(1) Subject to paragraphs (5) and (6), the
following persons are, for the purposes of this Article, responsible for a
prospectus for a certified fund –
(a) the certificate holder in relation to the
fund;
(b) the manager (where the manager has prepared
the prospectus on behalf of the certificate holder);
(c) every person who has authorized the contents
of the prospectus;
(d) where the certificate holder is a
company, its directors; and
(e) where the certificate holder is a protected
cell company in respect of a cell, the directors of the cell.
(2) A person who has authorized the contents of
part of a prospectus for a certified fund is responsible for that part of the
prospectus.
(3) A person who is responsible for a prospectus
or part of a prospectus shall, subject to Article 8, be liable to pay
compensation to a purchaser of units in the fund who has suffered loss as a
result of any untrue or misleading statement in the prospectus or part of the
prospectus, or the omission from the prospectus or part of the prospectus of
any matter required by this Order to be included in it.
(4) Where this Order requires a prospectus to
include information as to any particular matter on the basis that the
prospectus must include a statement either as to that matter or, if such be the
case, that there is no such matter, the omission from the prospectus of the
information or, as the case requires, the omission of the information from the
part of the prospectus in which the information should have been included,
shall be treated for the purposes of paragraph (3) as a statement that
there is no such matter.
(5) Where the certified fund is a unit trust for
which a trustee is the certificate holder –
(a) if –
(i) one or more of the manager, the
investment manager and the investment adviser in relation to the fund gives
notice in writing to the Commission, no later than the time described in
paragraph (6), that it accepts responsibility for the prospectus, and
(ii) the prospectus contains the statement
required by paragraph 20(7) of Schedule 1,
the certificate holder is
not, by virtue of paragraph (1)(a), responsible for the prospectus and the
person who gives the notice is, for the purposes of this Article, responsible
for the prospectus;
(b) if the trustee is a company or a cell of a
protected cell company, the directors of the company or cell are not, by virtue
of paragraph (1)(d) or (e), responsible for the prospectus.
(6) The notice must be given to the Commission
no later than the time when a copy of the prospectus is given to the Commission
in compliance with Article 4(1)(b).
(7) Nothing in this Article shall make a person
responsible for a prospectus or part of a prospectus by reason only of his or
her having given advice in a professional capacity as to the contents of the
prospectus or part of it.
8 Exemption
from liability to pay compensation
(1) A person shall not incur any liability under
Article 7 for any loss in respect of units in a certified fund caused by
any such statement or omission as is there mentioned if he or she satisfies the
court that, at the time when the prospectus was prepared or revised, or ought
to have been revised as required by Article 3(3), he or she reasonably
believed, having made such enquiries (if any) as were reasonable, that the
statement was true and not misleading or that the matter the omission of which
caused the loss was properly omitted and that –
(a) he or she continued in that belief until the
time when the units were purchased;
(b) the units were purchased before it was
reasonably practicable to bring a correction to the attention of persons likely
to purchase units in the fund;
(c) before the units were purchased he or she
had taken all such steps as it was reasonable to have taken to secure that a
correction was brought to the attention of persons likely to purchase units in
the fund; or
(d) the person who purchased the units was not
materially influenced by that statement or omission in making his or her
decision to purchase the units.
(2) Without prejudice to paragraph (1), a person
shall not incur any liability under Article 7 for any loss in respect of
any units in a certified fund caused by any such statement or omission as is
there mentioned if he or she satisfies the court –
(a) that before the units were purchased a
correction had been published in a manner calculated to bring it to the attention
of persons likely to purchase units in the fund; or
(b) that he or she took all reasonable steps to
secure such publication and reasonably believed that it had taken place before
the units were purchased.
(3) A person shall not incur any liability under
Article 7 if he or she satisfies the court that the person suffering the
loss purchased the units in question with knowledge that the statement was
false or misleading or of the omitted matter, as the case may be.
(4) A person shall not incur any liability under
Article 7 as a result of a failure to prepare a revised prospectus as
required by Article 3(3)(b) if he or she satisfies the court that he or
she reasonably believed that the change or new matter in question was not such
as to call for a revision of the prospectus in compliance with that provision.
9 Citation
and saving
(1) This Order may be cited as the Collective
Investment Funds (Certified Funds – Prospectuses) (Jersey)
Order 2012.
(2) This Order shall not apply to a fund
certified before the 17th November 2012 and to which neither paragraph (3)
or (4) applies, until whichever is the earlier of –
(a) the occurrence of any event described in
Article 3(3)(b); or
(b) the expiry of one year following the 17th
November 2012.
(3) In the case of a certified fund to which,
immediately before the 17th November 2012, the Collective
Investment Funds (Unclassified Funds) (Prospectuses) (Jersey) Order 1995 (the “1995 Order”) applied, this Order shall not apply
and the 1995 Order shall continue to apply in the case of the fund until
whichever is the earlier of –
(a) a requirement arising under Article 2
of the 1995 Order to revise the prospectus for the fund; or
(b) the expiry of one year following the 17th
November 2012.
(4) In the case of a certified fund to which,
immediately before the 17th November 2012, Part 3 of the Companies
(General Provisions) (Jersey) Order 2002 applied, this Order shall not apply and that Part of that Order
shall continue to apply in the case of the fund until the marketing of a new
issue of units in the fund.
SCHEDULE 1
(Article 3(1)(c))
INFORMATION TO BE CONTAINED
IN A PROSPECTUS
1 The
constitution and objectives of the fund
(1) The following shall be stated in respect of
the certified fund –
(a) the name of the fund, and previous names in
the past 5 years;
(b) the date on which the fund was established;
(c) if the fund is a closed-ended fund, the date
on which it will terminate;
(d) in relation to investment policy, full
particulars of the investment policy and investment restrictions to be adopted;
(e) so far as is material, the extent to which
the property of the fund may be invested in the units of funds which are
managed by a person who carries on fund services business in relation to the
fund or by an associate of such a person;
(f) the circumstances in which the
winding-up of the fund can be decided on, a description of the procedure to be
followed in a winding-up and what the rights of unit holders would be in a
winding-up;
(g) the accounting dates;
(h) if the fund is constituted as a company,
particulars of its capital structure.
(2) In the case of a feeder fund, the
information required by sub-paragraph (1) shall also be stated in respect
of the fund or, as the case requires, the constituent part of a fund, to which
the feeder fund is dedicated, unless the prospectus of that other fund or
constituent part of a fund gives the same information and is attached to the
prospectus of the feeder fund.
(3) In the case of an umbrella fund, the
information required by sub-paragraph (1) shall also be stated in respect
of each constituent part, being each of the parts into which the property of
the fund is pooled separately.
2 Particulars of certificate
holder
The following particulars
of the certificate holder shall be stated –
(a) its
name;
(b) what
kind of legal entity it is;
(c) its
place of incorporation, establishment or formation, as the case requires;
(d) the
date of its incorporation, establishment or formation, as the case requires;
(e) the
following addresses –
(i) if it is a body corporate, an
incorporated limited partnership, a limited liability partnership, a limited
partnership or a separate limited partnership, the address of its registered
office or, in the case of any other entity, the address of its principal place
of business,
(ii) the address of its head office if that is
different from the address given in clause (i);
(f) the
nature and extent of any business other than management of collective
investment funds engaged in by it;
(g) if
it is a company, the names of the directors and, in each case, any significant
activities of the directors not connected with the business of the certified
fund;
(h) if
it is a company that is a subsidiary, the name of its ultimate holding company
and the country or territory in which that holding company is incorporated;
(i) if
it is a company that is a closed-ended fund, the amount of its issued share
capital and how much of it is paid up;
(j) if
it is a cell of a protected cell company, the names of the directors of the
cell and, in each case, any significant activities of the directors not
connected with the business of the fund.
3 Particulars of manager
The following particulars
of the manager (if any) in relation to the certified fund shall be
stated –
(a) the
particulars described in paragraph 2; and
(b) if
the manager is also the registrar, that fact.
4 Particulars of trustee,
custodian or depositary
The following particulars
of any trustee, custodian or depositary in relation to the certified fund shall
be stated –
(a) the
particulars described in paragraph 2(a) to (e);
(b) the
amount of its issued share capital and how much of it is paid up;
(c) a
description of its principal business activity;
(d) the
extent (if any) to which it is not independent of the manager (if any) in
relation to the fund;
(e) if
the trustee, custodian or depositary is also the registrar, that fact.
5 Particulars of investment
manager or adviser
The following particulars
of the investment manager or investment adviser (if any) in relation to the
certified fund shall be stated –
(a) its
name;
(b) if
it is a body corporate, an incorporated limited partnership, a limited
liability partnership, a limited partnership or a separate limited partnership,
the address of its registered office or, in the case of any other entity, the
address of its principal place of business;
(c) if
it is a body corporate in a group of which any other person carrying on fund
services business in relation to the fund is a member, that fact;
(d) if
its principal activity is other than providing services as an investment
manager or adviser, what that principal activity is;
(e) the
main terms of any agreement or arrangement, relating to the fund, between it
and the certificate holder or any other person carrying on fund services
business in relation to the fund (except, in the case of a commercial agreement
or arrangement between it and the manager, terms relating to its remuneration);
(f) if
it has the authority of the certificate holder to make decisions on the
certificate holder’s behalf, that fact and a description of the matters
in relation to which it has that authority.
6 Particulars of registrar
The name and address of
the registrar (if any) in relation to the certified fund shall be stated.
7 Particulars of promoter
The following particulars
of the promoter (if any) of the certified fund shall be stated –
(a) the
particulars described in paragraph 2(a) to (f); and
(b) any
amounts to be written off or provided in respect of goodwill or preliminary
expenses, or of any other benefit given out of the property of the fund to the
promoter in respect of the promoter’s role in relation to the fund.
8 Particulars of other fund
service providers and delegates
(1) The
following particulars of a fund service provider in relation to the certified
fund (other than a person to whom any of paragraphs 3 to 7 applies) shall
be stated –
(a) the name of the person and the nature of the
person’s fund services business in relation to the fund;
(b) if the person is a body corporate, an
incorporated limited partnership, a limited liability partnership, a limited
partnership or a separate limited partnership, the address of the
person’s registered office or, if the person is any other entity, the
address of the person’s principal place of business.
(2) Where
a fund service provider in relation to the certified fund has delegated, by any
means, the provider’s fund services in relation to the fund, the
particulars described in sub-paragraph (1)(a) and (b) shall be stated for
each delegate.
9 Particulars of auditor
The name and address of
the auditor of the certified fund shall be stated.
10 Particulars of legal advisers
The name and address of
each legal adviser to the certified fund shall be stated.
11 The register of unit holders
The address at which the
register of unit holders in the certified fund can be inspected shall be stated.
12 Arrangements for safe keeping of fund
property
(1) The
arrangements for safe keeping of the property of the certified fund shall be
stated.
(2) If
the obligation or ability of the custodian (or if there is none of the person
responsible for the safe keeping of the property of the certified fund) to
ensure the safe keeping of the property of the fund is limited in any way, the
limitation shall be stated.
13 The characteristics of units in the
fund[3]
The following shall be
stated in respect of the certified fund –
(a) in
relation to each available type of unit in the fund –
(i) the entitlement of the holder of that
unit to participate in the property of the fund,
(ii) a statement of the nominal value (if any) of
each type of unit, and
(iii) where there is more than one type of unit,
the names given to each type and the characteristics of each type which
distinguish it from the others;
(b) if
the title to the units or to some of the units will be evidenced by the issue
of bearer certificates, that fact;
(c) if
the title to the units or to some of the units is to be evidenced by entries on
a register of unit holders, whether or not certificates evidencing title to
those units will be issued;
(d) how
meetings of unit holders are called or how ballots of unit holders are
organized;
(e) what
voting rights are exercisable by the holders of units and, if different rights
attach to different classes of units, what those different rights are;
(f) in
the case of a fund that is constituted as a company –
(i) whether persons other than unit
holders can vote at meetings or in ballots of unit holders, and who those
persons are, and
(ii) the fact that the nature of the right
represented by units is that of an appropriately described share in that
company;
(g) in
the case of a fund that is constituted as a unit trust, the fact that the
nature of the right represented by units is that of a beneficial interest under
a trust;
(h) in
the case of a fund that is constituted as an incorporated limited partnership,
a limited partnership or a separate limited partnership, the fact that the
nature of the right represented by units is that of a limited partner.
14 Valuation of property, charges and
distributions[4]
(1) The
following shall be stated in respect of the certified fund –
(a) in relation to each purpose for which the
property of the fund will be required to be valued, a description of the
methodology used to make the valuation;
(b) if the price at which units may be sold on
their issue may include a charge, a statement of the amount of that charge,
expressed as a percentage of the sale price of those units, which is permitted
by the documents constituting the fund;
(c) if and to the extent that any of the
following remuneration or expenses are payable out of the property of the fund,
how they will be determined –
(i) the
remuneration of the manager (if any),
(ii) the
remuneration of the trustee, custodian or depositary (if any),
(iii) the
remuneration and expenses of the registrar (if any),
(iv) the
remuneration and expenses of the investment manager or investment adviser (if
any),
(v) where
the fund is constituted as a company or as a protected cell of a company, the
remuneration and expenses of the directors,
(vi) where
the fund is constituted as a unit trust, the remuneration and expenses of the
trustees,
(vii) where
the fund is constituted as an incorporated limited partnership, a limited
partnership or a separate limited partnership, the remuneration and expenses of
the general partner;
(d) the nature of any other expenses or charges
payable out of the property of the fund and how their amounts will be
determined;
(e) if charges are levied when distributions are
reinvested, that fact;
(f) the anticipated date and forecast
amount of the first distribution or dividend to be paid to unit holders;
(g) the dates in each calendar year on which
subsequent distributions or dividends are expected to be paid to unit holders;
(h) how unit holders who are the holders of
bearer certificates are to identify themselves for the purposes of receiving
distributions or dividends;
(i) if there is to be income equalisation
in relation to the fund, that fact together with an explanation of its meaning
and its method of operation.
(2) The
following shall be stated only for certified funds that are
open-ended –
(a) how frequently the property of the fund will
be valued for the purpose of determining prices at which units in the fund may
be sold, subsequent to their issue, or repurchased;
(b) if the price at which units may be sold
subsequent to their issue may include a charge, a statement of the amount of
that charge, expressed as a percentage of the sale price of those units, which
is permitted by the documents constituting the fund and, if different, the
amount currently charged and how it may be altered.
15 Transactions in units in the fund
(1) The
following shall be stated in respect of a certified fund that is
closed-ended –
(a) the days on which and times at which the
certificate holder or, as principal or agent, a person carrying on fund services
business in relation to the fund, will be available to receive requests for the
sale, on their issue, of units;
(b) the procedures for effecting the issue or
cancellation of units;
(c) how a unit holder to whom no certificate has
been issued may produce evidence of title to his or her units;
(d) the amounts of the following minima (if they
apply) for each type of unit in the fund –
(i) the
minimum number of units which any one person may hold,
(ii) the
minimum value of units which any one person may hold,
(iii) the
minimum number of units which may be the subject of one transaction of sale on
the issue of the units,
(iv) the
minimum value of units which may be the subject of one transaction of sale on
the issue of the units;
(e) where an offer of the issue of the units is
contingent upon a specified number of units being subscribed to within a
specified period –
(i) the
start date and end date for the specified period,
(ii) the
specified number of units required to be subscribed to within that period,
(iii) when
and how moneys will be returned to subscribers in the event that the specified
number of units is not subscribed to within that period, and
(iv) how
units will be allocated in the event that subscriptions received exceed the
number of units to be issued and when and how moneys will be returned to
unsuccessful subscribers;
(f) the arrangements (if any) for fixed
price offers subsequent to the initial offer;
(g) the investment exchanges (if any) on which
units in the fund are listed or dealt with.
(2) The
following shall be stated in respect of certified funds that are
open-ended –
(a) the days on which and times at which the
certificate holder or, as principal or agent, a person carrying on fund
services business in relation to the fund, will be available to receive
requests for the sale, subsequent to their issue, or the repurchase, of units;
(b) where and when the most recent sale and
repurchase prices of units will be published;
(c) whether the certificate holder or, as
principal or agent, a person carrying on fund services business in relation to
the fund, deals in units at forward or historic prices and a description of the
methodology used to determine those prices;
(d) the amounts of the following minima (if they
apply) for each type of unit in the fund –
(i) the
minimum number of units which may be the subject of one transaction of sale
subsequent to the issue of the units, or repurchase,
(ii) the
minimum value of units which may be the subject of one transaction of sale
subsequent to the issue of the units, or repurchase;
(e) the procedures for effecting the sale or
repurchase of units and the arrangements for settlements of transactions;
(f) the circumstances in which the sale or
repurchase of units may be suspended.
16 Interests of directors[5]
The following shall be
stated in respect of the certified fund –
(a) full
particulars of the nature and extent of the direct or indirect interest in the
fund or in any offer of units in the fund of –
(i) where the fund is a company, every
director of the company,
(ii) where the fund is a cell of a protected cell
company, every director of the cell,
(iii) where the fund is a unit trust, every
director of a trustee of the trust, or
(iv) where the fund is an incorporated limited
partnership, a limited partnership or a separate limited partnership, every
director of the general partner, or
(A) if
the general partner is an incorporated limited partnership, a limited
partnership or a separate limited partnership, every director of the general
partner of the partnership which is itself the general partner of the fund, or
(B) if
the general partner is a limited liability partnership, every director of every
partner of the partnership which is a company; and
(b) details
of all sums paid or agreed to be paid to any such director in cash, shares or
otherwise, by any person –
(i) to induce that director to become or
qualify as such, or
(ii) for services rendered by that director in
connection with the establishment or promotion of the fund.
17 General information[6]
The following shall be
stated in respect of the certified fund –
(a) the
dates of, parties to, and general nature of, every document constituting the
fund;
(b) when
the annual reports and audited accounts and any half-yearly reports and
accounts will be published;
(c) the
address at which the following documents may be inspected –
(i) the documents constituting the fund,
(ii) the most recent annual reports and audited
accounts,
(iii) unless superseded by the documents described
in clause (ii), the most recent half-yearly reports and accounts;
(d) the
name and address of the person from whom a copy may be obtained of any document
that may be inspected under sub-paragraph (c);
(e) details
of any subscriptions, allotments or other options to be given, or already
existing, in respect of any other securities of the fund, including any that,
in a distribution of the property of the fund, would have a prior right over
the units covered by the offer;
(f) the
rights and protections available for the benefit of unit holders (by classes,
if relevant);
(g) the
means available to a unit holder to assert his or her rights;
(h) any
provision which would have the effect of exempting or limiting the liability
for any failure to exercise due care and diligence in the discharge of the
functions in respect of the fund of any of the following –
(i) the certificate holder,
(ii) any person carrying on fund services
business in relation to the fund,
(iii) in the case of a fund that is constituted as
a company, any director of that company,
(iv) in the case of a fund that is constituted as a
cell of a protected cell company, any director of the cell,
(v) in the case of a fund that is constituted as
a unit trust, the trustees,
(vi) in the case of a fund that is constituted as an
incorporated limited partnership, a limited partnership or a separate limited
partnership, the general partner;
(i) any
indemnities which the fund is permitted to grant;
(j) a
reasonable assessment of the levels of risk, and reasonable information on the
most common risks, involved in achieving the investment objectives of the fund;
(k) any
conduct likely to give rise to a conflict of interest between the fund
and –
(i) any person who carries on fund
services business in relation to it, or
(ii) any associate of or party connected with,
such a person;
(l) the
extent to which and the circumstances in which –
(i) the fund is liable to pay or suffer
tax on any appreciation in the value of the property of the fund or on the
income of the property of the fund, and
(ii) deductions by way of withholding tax may be
made from distributions of income to unit holders and payments made to unit
holders on the repurchase (if relevant) or cancellation of units;
(m) if
there is a serious possibility that the fund may encounter difficulty in
repatriating income or capital, that fact;
(n) details
of information to be included with any application if a printed form is not
used;
(o) in
the case of a fund that is constituted as a company or as a cell of a protected
cell company, the role and rights of the directors of that company or cell;
(p) in
the case of a fund that is constituted as a unit trust, how there will be
published, for the benefit of unit holders whose units are evidenced by bearer
certificates, notice –
(i) of the fact that reports and accounts
are available for inspection,
(ii) that a distribution of income has been
declared,
(iii) of the calling of a meeting of unit holders,
(iv) of the termination of the fund,
(v) that amendments have been made to the trust
instrument, or
(vi) that the prospectus has been revised.
18 Additional material information
Any other material
information in respect of the certified fund shall be included
which –
(a) purchasers
and their professional advisers (if any) would reasonably require, and would
reasonably expect to find and to have brought fairly to their attention in the
prospectus for the purpose of making an informed judgment about –
(i) the merits of purchasing units in the
fund, and
(ii) the nature and levels of the risks accepted
by making such a purchase; and
(b) is
within the knowledge of the certificate holder or manager (if any) or, in the
case of a fund constituted as a company or as a cell of a protected cell
company, the directors, or which the certificate holder, manager or directors,
as the case may be, would have obtained by the making of reasonable enquiries.
19 Umbrella funds: additional information
(1) In
the case of a certified fund which is an umbrella fund the prospectus
shall also contain –
(a) a statement to the effect that an exchange
of units in one part of the fund for units in another part of the fund may in
some jurisdictions be a realisation for the purposes of capital gains taxation;
(b) a statement to the effect that except as may
be specified in the statement a holder who exchanges units in one part of the
fund for units in another part of the fund will not be given a right by law to
reverse the transaction except as a new transaction; and
(c) a statement describing the arrangements made
by the documents constituting the fund for charges in the case of an exchange
of units in one part of the fund for units in another, including the amount of
the charge and the minimum number of exchanges that will be permitted free of
charge.
(2) If
any information required by this Schedule to be included in a prospectus is
different for different parts of an umbrella fund, that information shall be
given in relation to each part of the fund.
20 Statements to be included[7]
(1) Subject
to sub-paragraph (10), statements to the following effect shall be
included in every case –
“If
you are in any doubt about the contents of this prospectus, you should consult
your stockbroker, bank manager, solicitor, accountant or financial
adviser.”;
“It
should be remembered that the price of units and the income from them can go
down as well as up and that unit holders may not receive, on sale or the
cancellation or redemption of their units, the amount that they
invested.”;
“This
prospectus is prepared, and a copy of it has been sent to the Jersey Financial
Services Commission, in accordance with the Collective Investment Funds
(Certified Funds – Prospectuses) (Jersey) Order 2012.”;
“The
Jersey Financial Services Commission does not take any responsibility for the
financial soundness of the fund or for the correctness of any statements made
or expressed in this prospectus.”;
“The
applicant is strongly recommended to read and consider this prospectus before
completing an application.”.
(2) A
statement to the following effect shall be included if any reference is made to
any certificate having been granted by the Commission under the Law –
(3) A
statement to the following effect shall be included if any reference is made to
any entity as being registered under the Financial Services
(Jersey) Law 1998 –
(4) Subject
to sub-paragraph (5), a statement to the following effect shall be
included in the case of a fund constituted as a company –
“The
certificate holder and its directors have taken all reasonable care to ensure
that the facts stated in this prospectus are true and accurate in all material
respects and that there are no other material facts the omission of which would
make misleading any statement in this prospectus, whether of fact or opinion.
The certificate holder and its directors accept responsibility
accordingly.”.
(5) A
statement to the following effect shall be included in the case of a fund
constituted as a cell of a protected cell company –
“The
certificate holder and its directors, and the directors of the cell, have taken
all reasonable care to ensure that the facts stated in this prospectus are true
and accurate in all material respects and that there are no other material
facts the omission of which would make misleading any statement in this
prospectus, whether of fact or opinion. The certificate holder and its
directors, and the directors of the cell, accept responsibility
accordingly.”.
(6) Subject
to sub-paragraph (7), a statement to the following effect shall be
included in the case of a fund constituted as a unit trust, an incorporated
limited partnership, a limited partnership or a separate limited
partnership –
“The
certificate holder has taken all reasonable care to ensure that the facts
stated in this prospectus are true and accurate in all material respects and
that there are no other material facts, the omission of which would make
misleading any statement in this prospectus whether of fact or opinion.”.
(7) A
statement to the following effect shall be included in the case of a fund
constituted as a unit trust in respect of which responsibility for the
prospectus passes to all or any of the manager, investment manager and
investment advisor by virtue of Article 7(5) and (6) –
“The
[manager/investment manager/investment advisor] has taken all reasonable care
to ensure that the facts stated in this prospectus are true and accurate in all
material respects and that there are no other material facts, the omission of
which would make misleading any statement in this prospectus whether of fact or
opinion.”.
(8) A
statement to the following effect shall be included, in addition to the
statement in sub-paragraph (4) or (5), in the case of a fund constituted
as a protected cell company or as a cell of a protected cell
company –
“This
prospectus is issued in respect of [a cell of] a Jersey protected cell company,
which is a specialised corporate vehicle. It is therefore recommended, if you
are unfamiliar with the nature of Jersey protected cell companies, that you
discuss this aspect of the fund with your usual adviser.”.
(9) A
statement to the following effect shall be included in the case of a fund
constituted as a cell of an incorporated cell company –
“This
prospectus is issued in respect of a cell of a Jersey incorporated cell
company, which is a specialised corporate vehicle. It is therefore recommended,
if you are unfamiliar with the nature of Jersey incorporated cell companies and
their cells, that you discuss this aspect of the fund with your usual
adviser.”.
(10) Every statement required by this paragraph to be
included in a prospectus shall be prominently stated and, where the prospectus
includes an application form, a statement to the following effect shall be included
in the application form, instead of the fifth statement required by
sub-paragraph (1) –
“The
applicant is strongly recommended to read and consider the prospectus of the
fund before completing an application.”.
21 Date of publication
The date of publication
of the prospectus or of its most recent revision.
SCHEDULE 2[8]
(Article 1A)
PROSPECTUS
NOT REQUIRED FOR JERSEY ELIGIBLE INVESTOR FUND
1 Interpretation
In this Schedule –
“associate”
means –
(a) in relation to a company –
(i) a
company that is a subsidiary or a holding body of the first-mentioned company
or a subsidiary of any such holding body,
(ii) an
individual, partnership, limited partnership, separate limited partnership,
incorporated limited partnership, limited liability partnership, trust, or
unincorporated association that has direct or indirect control of the
first-mentioned company, or
(iii) a
company that is directly or indirectly controlled by any such individual, partnership,
limited partnership, separate limited partnership, incorporated limited
partnership, limited liability partnership, trust, or unincorporated
association; and
(b) in relation to an individual, partnership,
limited partnership, separate limited partnership, incorporated limited
partnership, limited liability partnership, trust, or unincorporated
association, a company directly or indirectly controlled by the individual, partnership,
limited partnership, separate limited partnership, incorporate limited
partnership, limited liability partnership, trust, or unincorporated
association;
“holding body”
has the same meaning as in the Companies (Jersey)
Law 1991;
“public sector
body” means –
(a) the States or the government of any country
or territory outside Jersey;
(b) a local government of any part of a country
or territory outside Jersey;
(c) any international organization the members
of which include Jersey, the United Kingdom or a member state of the European
Union; or
(d) the central bank of any sovereign State, the
European System of Central Banks or any other system of central banks;
“subsidiary”
has the same meaning as in the Companies (Jersey)
Law 1991;
“wholly-owned
subsidiary” has the same meaning as in the Companies (Jersey)
Law 1991.
2 Jersey
eligible investor fund
The type of fund to which
Article 1A applies is a Jersey eligible investor fund, being a fund where units
are available for subscription, purchase, or exchange, otherwise than by trade
on a stock exchange or stock market and which may be acquired by subscription,
purchase, or exchange only if –
(a) the
acquisition is by an eligible investor, within the meaning given in
paragraph 3;
(b) the
eligible investor signs a declaration that he or she has received the warning
set out in paragraph 5 and understands and accepts its terms in relation
to the subscription, purchase or exchange; and
(c) the
declaration referred to in clause (b) is given to the certificate holder
before the subscription, purchase or exchange is completed.
3 Meaning
of “eligible investor”
(1) For
the purposes of paragraph 2, an eligible investor in relation to a fund is
a person who, at the time of making a subscription, purchase, exchange or
acquisition in relation to the fund, is any of the following
persons –
(a) a person who has agreed to pay consideration
of not less than one million United States dollars, or the equivalent of that
amount in another currency, for the subscription, purchase, exchange or
acquisition;
(b) a person whose ordinary business or
professional activity includes or could be reasonably expected to include –
(i) the
acquisition, underwriting, management, holding or disposal of investments,
whether as principal or agent, or
(ii) the
giving of advice on investment;
(c) an employee, director or shareholder of, or
consultant to, a person specified in clause (b);
(d) a fund service provider in relation to the
fund or an associate of such a fund service provider;
(e) a person who –
(i) is
an employee, director or shareholder of, or consultant to, such a fund service
provider or associate, and
(ii) in
making the relevant subscription, purchase, exchange or acquisition would acquire
units in the fund as remuneration, or reward, as such an employee, director,
shareholder or consultant;
(f) an individual whose property has a
total market value of not less than 10 million United States dollars or
the equivalent of that amount in another currency;
(g) a company, partnership, limited partnership,
separate limited partnership, incorporated limited partnership, limited
liability partnership, trust, or unincorporated association, in relation to
which one or both of the following requirements is met –
(i) its
property (or its property and that of its associates) has a total market value
of not less than 10 million United States dollars or the equivalent of
that amount in another currency,
(ii) every
shareholder of the company, every partner of the partnership, limited
partnership, separate limited partnership, incorporated limited partnership or
limited liability partnership, every beneficiary of the trust or every member
of the association (as the case requires) would, himself or herself, be an
eligible investor in relation to the fund if he or she made in relation to the
fund a subscription, purchase, exchange or acquisition referred to in paragraph 2;
(h) a wholly-owned subsidiary of a company that
satisfies clause (g);
(i) a trustee of a trust established by a
person who is specified in any of clauses (b), (c), (d), (f), (g) and (h)
or is an employee, director, shareholder, or consultant, specified in clause (e)(i);
(j) a trustee of a trust established for
the benefit of –
(i) a
person who is specified in clause (b) or (c) or is an employee, director,
shareholder, or consultant, specified in clause (e)(i),
(ii) any
one or more persons in any one or more of the following classes –
(A) the
spouse or civil partner of a person specified in sub-clause (i),
(B) the
issue of such a person,
(C) the
dependants of such a person, or
(iii) a
person specified in sub-clause (i) and any one or more persons in any one
or more of the following classes –
(A) his
or her spouse or civil partner,
(B) his
or her issue,
(C) his
or her dependants; or
(k) a person who in making the subscription,
purchase, exchange or acquisition is acting as or for a public sector body.
(2) For
the purposes of sub-paragraph (1)(c), a reference to a shareholder of a
person specified in sub-paragraph (1)(b) is a reference to a shareholder
in respect of whom the person has signed a declaration that the investment is
suitable for the shareholder and that the shareholder is able to bear the
economic consequences of the investment, including the possibility of the loss
of the entire investment.
(3) For
the purposes of sub-paragraph (1)(e), a reference to a shareholder of a fund
service provider or associate specified in sub-paragraph (1)(d) is a
reference to a shareholder in respect of whom the fund service provider or
associate (as the case requires) has signed a declaration that the investment
is suitable for the shareholder and that the shareholder is able to bear the
economic consequences of the investment, including the possibility of the loss
of the entire investment.
4 Calculation
of market value
(1) The
total market value of an individual’s property for the purposes of paragraph 3(1)(f)
is calculated as follows –
(a) there shall be added the market value of the
movable and immovable property anywhere in the world of the individual
(determined as if there were no liability in respect of any of that property)
to the market value of the movable and immovable property anywhere in the world
of the individual’s spouse or civil partner (determined as if there were
no liability in respect of any of that property);
(b) there shall then be deducted –
(i) any
liability that is secured over the property of the individual by mortgage,
charge or other security or encumbrance,
(ii) any
liability that is secured over the property of the individual’s spouse or
civil partner by mortgage, charge or other security or encumbrance,
(iii) any
liability of the individual that is not secured as referred to in sub-clause (i),
and
(iv) any
liability of the individual’s spouse or civil partner that is not secured
as referred to in sub-clause (ii).
(2) If
the sum of the deductions that would be made under sub-paragraph (1)(b)(ii)
and (iv) exceeds the total market value of the movable and immovable property (anywhere
in the world) of the spouse or civil partner, then –
(a) the total market value of the spouse’s
or civil partner’s property shall be treated as zero; and
(b) the deductions referred to in sub-paragraph (1)(b)(ii)
and (iv) shall not be made.
(3) A
reference to property in sub-paragraph (1) or (2) shall not include the
individual’s principal residence, or the spouse’s or civil
partner’s principal residence.
(4) The
total market value of the property of a company, partnership, limited
partnership or limited liability partnership, trust, or unincorporated
association for the purposes of paragraph 3(1)(g)(i), except in the case
to which sub-paragraph (5) applies, shall be calculated by –
(a) finding the market value of its movable and
immovable property, anywhere in the world, as if there were no liability in
respect of that property; then
(b) deducting –
(i) any
liability that is secured over that property by mortgage, charge or other
security or encumbrance, and
(ii) any
liability of the company, partnership, limited partnership or limited liability
partnership, trust, or unincorporated association, being a liability that is
not so secured.
(5) Where
the total market value of the property of a company, partnership, limited
partnership or limited liability partnership, trust, or unincorporated
association, and of its associates, is to be calculated, the value shall be
calculated by –
(a) finding the market value of its and their
movable and immovable property (anywhere in the world) as if there were no liability
in respect of that property; then –
(b) deducting –
(i) any
liability that is secured over that property by mortgage, charge or other
security or encumbrance, and
(ii) any
liabilities of the company, partnership, limited partnership or limited liability
partnership, trust, or unincorporated association, and of its associates, being
liabilities that are not so secured.
5 Investment
warning to be given
The investment warning
referred to in paragraph 2(b), must be in, or substantially in, the following
terms –
This fund has been
established in Jersey as a Jersey eligible investor fund. It is only open to
eligible investors who fall within the definition of “eligible investor”
within the meaning of paragraph 3 of Schedule 2 to the Collective
Investment Funds (Certified Funds – Prospectuses) (Jersey)
Order 2012.
This fund is only suitable
for professional or experienced investors, or those who have taken professional
advice. Regulatory requirements, which may be seen as necessary for the
protection of retail investors or those who are not eligible investors, do not
apply to Jersey eligible investor funds.
By declaring that you have
received this warning and understood and accepted its terms you are expressly
agreeing that you are an eligible investor within the meaning of paragraph 3
of Schedule 2 to the Collective Investment Funds (Certified
Funds – Prospectuses) (Jersey) Order 2012. You are also
expressly agreeing that you accept the risks in the investment accordingly.
If you are an investment
manager acquiring an interest in this fund as an investment that is, directly
or indirectly, for or on behalf of persons who are not eligible investors
within the meaning of paragraph 3 of Schedule 2 to the Collective
Investment Funds (Certified Funds – Prospectuses) (Jersey) Order
2012, by additionally declaring that you are satisfied that the investment is
suitable for those investors and that they are able to bear the economic
consequences of investment, including the possibility of the loss of the entire
investment, you are declaring that you have sufficient information in order to
be satisfied as to the truth of that statement.
You are wholly responsible
for ensuring that all aspects of this fund are acceptable to you (and to any
persons referred to in the preceding paragraph). Investment in a Jersey
eligible investor fund may involve special risks that could lead to a loss of
all or a substantial portion of that investment. Unless you (and those persons,
if any) fully understand and accept the nature of this fund and the risks
inherent in investing in this fund you should not invest in this fund.