SCHEDULE
1[3]
(Article 2(1))
conditions for unregulated
eligible investor fund
1 Structure
of fund
(1) The
fund is –
(a) a
company incorporated under the Companies (Jersey)
Law 1991;
(b) a
limited partnership (within the meaning of the Limited Partnerships
(Jersey) Law 1994) of which at least one general partner is a company
incorporated under the Companies
(Jersey) Law 1991; or
(c) a
unit trust of which at least one of the trustees, or at least one of the managers,
is a company incorporated under the Companies (Jersey)
Law 1991.
(2) The
name of the fund is not undesirable or misleading.
(3) No
units have been issued in the fund before this Order comes into force.
2 Registered
office of company provided by registered person
In the case of a fund that
is a company, the registered office of the company is provided by way of
business by a person registered under the Financial
Services (Jersey) Law 1998 in
respect of fund services business (within the meaning of that Law) of one or
more classes that are or include that of –
(a) manager,
manager of a managed entity, administrator, investment manager, investment
adviser;
(b) trustee,
custodian or depositary; or
(c) member
(except a limited partner) of a partnership, including a partnership
constituted under the law of a country or territory outside Jersey,
within the meaning of that
Law.
3 Notice of fund to registrar
(1) Written
notice of the establishment of the fund has been given to the registrar.
(2) The
notice –
(a) includes
a declaration that the conditions set out in this Schedule (other than
this paragraph) are satisfied in relation to the fund;
(b) is in
the form approved by the registrar; and
(c) is
executed in relation to the fund by a fund company or another person.
4 Subscriptions
to units
(1) This
paragraph applies in the case where units in the fund are available for subscription,
purchase, or exchange, otherwise than by trade on a stock exchange or stock market.
(2) The
units may be acquired by subscription, purchase, or exchange, only
if –
(a) the
acquisition is by an eligible investor;
(b) the
investor signs a declaration that he or she has received the warning set out in
Schedule 3 and understands and accepts its terms in relation to the
subscription, purchase or exchange; and
(c) the
declaration is given to a fund company before the subscription, purchase, or
exchange, is completed.
5 Exchange
trading of units
(1) This
paragraph applies in the case where units in the fund are traded on a stock exchange
or stock market.
(2) The
units may be acquired pursuant to that trade only if –
(a) no
market makers have been appointed by a fund company or by another person on
behalf of the fund, except, subject to clauses (b), (c), (d) and (e),
where the fund company is a United Kingdom real estate investment trust and units
in the fund company are listed –
(i) on one or more of
the exchanges or markets listed in Schedule 4, or
(ii) in
the case of a United Kingdom real estate investment trust, on a recognized stock
exchange (within the meaning given by section 1005(1) of the Income
Tax Act 2007 (c. 3) of the United Kingdom);
(b) the
fund companies, so far as reasonably possible, restrict transfers of the units
in order to ensure that no person other than an eligible investor can acquire
units in the fund through that trade;
(c) a
person who acquires units in the fund on the stock exchange or stock market signs
a declaration that he or she has received the warning set out in Schedule 3
and understands and accepts its terms in relation to his or her acquisition of the
units;
(d) the
declaration is given to a fund company before the subscription, purchase, or
exchange, is completed; and
(e) the stock
exchange or stock market is conducted in such a way as not to prevent the
restriction referred to in clause (b) from operating.
(3) In
this paragraph –
“market maker”
means a person who –
(a) holds
himself or herself out at all normal times in compliance with the rules of a
securities market as willing to acquire or dispose of securities; and
(b) is
recognized as doing so under those rules;
“securities” has
the same meaning as in the Companies (Jersey)
Law 1991;
“securities
market” means any securities market that is established by or under, or
is regulated by or under, a legislative instrument made by the country or
territory, or the part of a country or territory, that hosts the securities
market;
“United Kingdom real
estate investment trust” means a fund company that has provided a notice
under section 523 or 524 of the Corporation Tax Act 2010
(c. 4) of the United Kingdom.
6 Who
is an eligible investor?
(1) For
the purposes of this Schedule, an eligible investor in relation to a fund is a
person who at the time of making in relation to the fund a subscription,
purchase, or exchange, referred to in paragraph 4 or an acquisition
referred to in paragraph 5 is a person specified in any of the clauses of
sub-paragraph (2).
(2) The
following persons are specified for the purposes of sub-paragraph (1) –
(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) subject
to sub-paragraph (3), an employee, director or shareholder of, or
consultant to, a person specified in clause (b);
(d) a
functionary in relation to the fund or an associate of such a functionary;
(e) subject
to sub-paragraph (3), a person who –
(i) is an employee,
director or shareholder of, or consultant to, such a functionary 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 or 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 or 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 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, or exchange, referred to in paragraph 4
or an acquisition referred to in paragraph 5;
(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.
(3) For
the purposes of –
(a) sub-paragraph (2)(c),
a reference to a shareholder of a person specified in sub-paragraph (2)(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; or
(b) sub-paragraph (2)(e),
a reference to a shareholder of a functionary or associate specified in sub-paragraph (2)(d)
is a reference to a shareholder in respect of whom the functionary 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) To
calculate the total market value of an individual’s property for the
purposes of sub-paragraph (2)(f) –
(a) add the
market value of the movable and immovable property (in Jersey and elsewhere) 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 (in
Jersey and elsewhere) of the individual’s spouse or civil partner (determined
as if there were no liability in respect of any of that property);
(b) deduct
any liability that is secured over that property of the individual by mortgage,
charge or other security or encumbrance;
(c) deduct
any liability that is secured over that property of the individual’s
spouse or civil partner by mortgage, charge or other security or encumbrance;
(d) deduct
any liability of the individual that is not secured as referred to in clause (b);
and
(e) deduct
any liability of the individual’s spouse or civil partner that is not
secured as referred to in clause (c).
(5) However,
if the sum of the deductions that would be made under sub-paragraph (4)(c)
and (e) exceeds the total market value of the movable and immovable property
(in Jersey and elsewhere) of the spouse or civil partner, then –
(a) treat
the latter total market value as zero; and
(b) do
not make the deductions referred to in sub-paragraph (4)(c) and (e).
(6) A
reference to property in sub-paragraph (4) or (5) shall not include the
individual’s principal residence, or the spouse’s or civil
partner’s principal residence.
(7) For
the purposes of sub-paragraph (2)(g)(i), except in the case to which
sub-paragraph (8) applies, to calculate the total market value of the
property of a company, partnership, limited partnership or limited liability
partnership, trust, or unincorporated association –
(a) find
the total market value of its movable and immovable property (in Jersey and
elsewhere) as if there were no liability in respect of that property;
(b) deduct
any liability that is secured over that property by mortgage, charge or other
security or encumbrance; and
(c) deduct
any liability of the company, partnership, limited partnership or limited
liability partnership, trust, or unincorporated association, being a liability
that is not so secured.
(8) For
the purposes of sub-paragraph (2)(g)(i), in the case 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 –
(a) find
the total market value of its and their movable and immovable property (in
Jersey and elsewhere) as if there were no liability in respect of that
property;
(b) deduct
any liability that is secured over that property by mortgage, charge or other
security or encumbrance; and
(c) deduct
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.
(9) For
the purposes of this paragraph –
“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 or 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 or limited liability partnership, trust, or unincorporated
association; or
(b) in
relation to an individual, partnership, limited partnership or limited
liability partnership, trust, or unincorporated association, a company directly
or indirectly controlled by the individual, partnership, limited partnership or
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.
7 Investment
manager who invests in fund on behalf of non-eligible investors
(1) This
paragraph applies in the case where a person –
(a) applies
for the subscription, purchase, or exchange, of units in the fund as an
investment that is, directly or indirectly, for or on behalf of investors who
are not eligible investors; or
(b) acquires
units in the fund on a stock exchange or stock market as an investment that is,
directly or indirectly, for or on behalf of investors who are not eligible
investors.
(2) In
that case, a declaration referred to in paragraph 4(2)(b) in relation to
the subscription, purchase or exchange, or a declaration referred to in
paragraph 5(2)(c) in relation to the acquisition, being a declaration that
is signed by the person referred to in sub-paragraph (1), is not complete
unless it contains an additional declaration signed by the person that he or
she is satisfied –
(a) that
the investment is suitable for the investors referred to in sub-paragraph (1)(a)
or (b), as the case requires; and
(b) that
they are able to bear the economic consequences of the investment, including
the possibility of the loss of the entire investment.
8 Continued
observance of conditions
There are procedures in
place to ensure that the conditions set out in this Schedule (otherwise than in
paragraph 3) continue to be satisfied in relation to the fund.
SCHEDULE
2[4]
(Article 2(2))
conditions for unregulated EXCHANGE-TRADED fund
1 Structure
of fund
(1) The
fund is –
(a) a
company incorporated under the Companies (Jersey)
Law 1991;
(b) a
limited partnership (within the meaning of the Limited Partnerships
(Jersey) Law 1994) of which at least one general partner is a company
incorporated under the Companies
(Jersey) Law 1991; or
(c) a
unit trust of which at least one of the trustees, or at least one of the
managers, is a company incorporated under the Companies (Jersey)
Law 1991.
(2) The
fund is a closed fund.
(3) The
name of the fund is not undesirable or misleading.
(4) No
units have been issued in the fund before this Order comes into force.
2 Registered
office of company provided by registered person
In the case of a fund that
is a company, the registered office of the company is provided by way of
business by a person registered under the Financial
Services (Jersey) Law 1998 in
respect of fund services business (within the meaning of that Law) of one or
more classes that are or include that of –
(a) manager,
manager of a managed entity, administrator, investment manager, investment
adviser;
(b) trustee,
custodian or depositary; or
(c) member
(except a limited partner) of a partnership, including a partnership
constituted under the law of a country or territory outside Jersey,
within the meaning of that
Law.
3 Notice of fund to registrar
(1) Written
notice of the establishment of the fund has been given to the registrar before
1st April 2018.
(2) The
notice –
(a) includes
a declaration that the conditions set out in this Schedule (other than this
paragraph) are satisfied in relation to the fund;
(b) is in
the form approved by the registrar; and
(c) is
executed in relation to the fund by a fund company or another person.
4 Exchange
listing
(1) Units
in the fund are listed only on one or more of the exchanges or markets listed
in Schedule 4.
(2) That
listing occurs no later than 90 days after notice of the establishment of
the fund is given to the registrar under paragraph 3, or such longer
period as is approved by the Commission.
5 Warning
on offer document
A prospectus relating to
the fund contains a prominent warning in the following words –
“This unregulated
exchange-listed fund is not regulated in Jersey. The Jersey Financial Services
Commission has neither evaluated nor approved –
(a) the
scheme or arrangement of the fund;
(b) the
parties involved in the promotion, management or administration of the fund; or
(c) this
prospectus.
The Jersey Financial
Services Commission has no ongoing responsibility to monitor the performance of
the fund, to supervise the management of the fund or to protect the interests
of investors in the fund.”.
6 Continued
observance of conditions
There are procedures in
place to ensure that the conditions set out in this Schedule (otherwise than in
paragraph 3 or 4(2)) continue to be satisfied in relation to the fund.
SCHEDULE
3
(Paragraph 4(2) and
5(2) of Schedule 1)
warning to eligible investor
This fund has been
established in Jersey as an unregulated eligible investor fund. It is only open
to eligible investors (within the meaning of Schedule 1 to the Collective
Investment Funds (Unregulated Funds) (Jersey) Order 2008).
This fund has not been
approved or authorized by the Jersey Financial Services Commission. The fund is
not regulated by the Jersey Financial Services Commission and is only suitable
for professional or experienced investors, or those who have taken appropriate
professional advice. Regulatory requirements, which may be seen as necessary
for the protection of retail or non-expert investors, do not apply to unregulated
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
Schedule 1 to the Collective Investment Funds (Unregulated Funds) (Jersey)
Order 2008. You are also expressly agreeing that you accept the risks in
the investment accordingly.
If you are an investment
manager acquiring units 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 Schedule 1 to the Collective Investment Funds (Unregulated
Funds) (Jersey) Order 2008), 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 the 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 an unregulated
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.
SCHEDULE
4[5]
(Paragraph 5(2)(a)(i)
of Schedule 1 and Paragraph 4(1) of Schedule 2)
exchanges and markets
Australia: Australian Stock
Exchange
Austria: Wiener Bourse
Belgium: Euronext
Bermuda: Bermuda Stock Exchange
Bulgaria: Bulgarian Stock Exchange
Canada:
Bourse de Montreal Inc
Toronto Stock Exchange
Channel Islands: The International
Stock Exchange
China: Hong Kong Exchanges and
Clearing Limited
Cyprus: Cyprus Stock Exchange
Czech Republic: Prague Stock
Exchange
Denmark: Copenhagen Stock Exchange
Estonia: Tallinn Stock Exchange
Finland: Helsinki Stock Exchange
France: Euronext
Germany: Deutsche Bourse
Greece: Athens Stock Exchange
Hungary: Budapest Stock Exchange
Iceland: Iceland Stock Exchange
Ireland: Irish Stock Exchange
Italy: Borsa Italiana
Japan:
Osaka Securities Exchange
Tokyo Stock Exchange
Latvia: Riga Stock Exchange
Lithuania: National Stock Exchange
of Lithuania
Luxembourg:
Bourse de Luxembourg
Malta:
Malta Stock Exchange
Mexico:
Bolsa Mexicana de Valores
Netherlands:
Euronext
New Zealand: New Zealand Stock
Exchange
Norway: Oslo Bors
Poland: Warsaw Stock Exchange
Portugal: Lisbon Stock Exchange
Republic of Mauritius: Stock
Exchange of Mauritius (in respect only of its market known as the “Official
Market”)
Romania: Bucharest Stock Exchange
Singapore: Singapore Exchange
Slovakia: Bratislava Stock
Exchange
Slovenia: Ljubljana Stock
Exchange, Inc
South Africa: Johannesburg Stock
Exchange
South Korea: Korea Stock Exchange
Spain: Bolsas y Mercados Espanoles
Sweden: Stockholmborsen
Switzerland: Swiss Stock Exchange
(“SWX”)
United Kingdom: London Stock
Exchange (the Main Market, Alternative Investment Market and Specialist Fund
Market but not the Professional Securities Market)
United States of America:
American Stock Exchange
Chicago Stock Exchange
National Association of Securities
Dealers Automated Quotations (“NASDAQ”)
New York Stock Exchange
Pacific Exchange
Philadelphia Stock Exchange