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 or a member
state of the European Economic Community; 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.