Related provisions for PERG 9.7.1
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In the FCA view, this means that the reasonable investor must be satisfied that what he will get when he realises his investment is his proportionate share in the value of BC's underlying assets, less any dealing costs. In other words, that he is satisfied he will get net asset value. The investment condition focuses on the way the body corporate operates over time, and not by reference to particular issues of shares or securities (see PERG 9.6.3 G (The investment condition (section
For the 'satisfaction test' to be met, there must be objectively justifiable grounds on which the reasonable investor could form a view. He must be satisfied that the value of BC's property will be the basis of a calculation used for the whole, or substantially the whole, of his investment. The FCA considers that the circumstances, or combination of circumstances, in which a reasonable investor would be in a position to form this view include:(1) where the basis of net asset valuation
PERG 9.9.3 G (2)and PERG 9.9.3 G (3) refer to circumstances where the reasonable investor may be satisfied that he can realise his investment at net asset value because of arrangements made to ensure that the shares or securities trade at net asset value on a market. There may, for example, be cases of market dealing where the price of shares or securities will not depend on the market. An example is where BC or a third party undertakes to ensure that the market value reflects
However, where there is a market, the FCA does not consider that the test in section 236(3)(b) would be met if the price the investor receives for his investment is wholly dependent on the market rather than specifically on net asset value. In the FCA's view, typical market pricing mechanisms introduce too many uncertainties to be able to form a basis for calculating the value of an investment (linked to net asset value) of the kind contemplated by the satisfaction test. As a
The fact that the definition must be applied to BC as a whole (see PERG 9.6.3 G (The investment condition (section 236(3) of the Act): general)) is also relevant here. So, for example, in a take-over situation the fact that a bidder may be willing to provide an exit route for an investment at net asset value will be irrelevant within the context of the definition. This is so even if an investor invests in particular shares or securities in the knowledge or expectation or in anticipation
The expression 'wholly or mainly' in section 236(3)(b) determines the extent of the permissible departure from the link between the price of BC's shares or securities and the value of its net assets. The word 'mainly' introduces some flexibility to the process to allow for limited account to be taken of factors other than the value of BC's assets that may result in the sum realised failing to reflect the true net asset value. Such factors may include:(1) the payment by the investor
(1) 3The restriction in COBS 4.12.3 R does not apply if the promotion falls within an exemption in the table in (5) below. (2) A firm may communicate an invitation or inducement to participate in an unregulated collective investment scheme without breaching the restriction on promotion in section 238 of the Act if the promotion falls within an exemption in the table in (5) below.(3) Where the middle column in the table in (5) refers to promotion to a category of person, this means
3A certified high net worth investor is an individual who has signed, within the period of twelve months ending with the day on which the communication is made, a statement in the following terms:“HIGH NET WORTH INVESTOR STATEMENTI make this statement so that I can receive promotional communications which are exempt from the restriction on promotion of non-mainstream pooled investments. The exemption relates to certified high net worth investors and I declare that I qualify as
A certified sophisticated investor is an individual:(1) who has a written certificate signed within the last 36 months by a firm confirming he has been assessed by that firm as sufficiently knowledgeable to understand the risks associated with engaging in investment activity in non-mainstream pooled investments; and(2) who has signed, within the period of twelve months ending with the day on which the communication is made, a statement in the following terms:“SOPHISTICATED INVESTOR
3A self-certified sophisticated investor is an individual who has signed, within the period of twelve months ending with the day on which the communication is made, a statement in the following terms:“SELF-CERTIFIED SOPHISTICATED INVESTOR STATEMENTI declare that I am a self-certified sophisticated investor for the purposes of the restriction on promotion of non-mainstream pooled investments. I understand that this means:(i) I can receive promotional communications made by a person
(1) 3A firm which wishes to rely on any of the certified high net worth investor exemptions (see Part I of the Schedule to the Promotion of Collective Investment Schemes Order, Part I of Schedule 5 to the Financial Promotions Order and COBS 4.12.6 R) should have regard to its duties under the Principles and the client's best interests rule. In particular, the firm should take reasonable steps to ascertain that the retail client does, in fact, meet the income and net assets criteria
(1) 3A firm which is asked to or proposes to assess and certify a retail client as a certified sophisticated investor (see article 23 of the Promotion of Collective Investment Schemes Order, article 50 of the Financial Promotions Order and COBS 4.12.7 R) should have regard to its duties under the Principles and the client's best interests rule. In particular, the firm should carry out that assessment with due skill, care and diligence, having regard to the generally complex nature
(1) 3A firm which wishes to rely on any of the self-certified sophisticated investor exemptions (see Part II of the Schedule to the Promotion of Collective Investment Schemes Order, Part II of Schedule 5 to the Financial Promotions Order and COBS 4.12.8 R) should have regard to its duties under the Principles and the client's best interests rule. In particular, the firm should consider whether the promotion of the non-mainstream pooled investment is in the interests of the client
(1) 3A firm which wishes to rely on one of the one-off promotion exemptions provided by the Promotion of Collective Investment Schemes or the Financial Promotion Order to promote a non-mainstream pooled investment to a retail client should have regard to its duties under the Principles and the client's best interests rule. In particular, the firm should consider whether the promotion of the non-mainstream pooled investment is in the interests of the client and whether it is fair
(1) 3A firm which wishes to rely on the excluded communications exemption in COBS 4.12.4R (5) to promote units in a qualified investor scheme to a retail client should have regard to its duties under the Principles and the client's best interests rule. (2) As explained in COLL 8.1, qualified investor schemes are intended only for professional clients and retail clients who are sophisticated investors. Firms should note that, in the FCA's view, promotion of units in a qualified
The fact that a financial promotion may be made following an organised marketing campaign does not mean that it must automatically be regarded as part of the campaign or that it cannot be one-off. For example, after a person has responded to a general promotion, an investment manager may make financial promotions to him and tailor them to his individual objectives. Such subsequent financial promotions can be one-off. Similarly, a person who provides corporate finance services
Whether or not it would be reasonable to believe that any person understands the risks associated with the investment activity covered in a financial promotion or would expect to be contacted about it must be judged on the particular circumstances. In the FCA's opinion, the exemption requires that the recipient has the required understanding of risk at the time the promotion is made to him. However, it would be reasonable to believe that a person understands the risk involved
In order to make an unsolicited real time financial promotion, an overseas communicator must rely on either article 32 or article 33. Article 32 provides an exemption for unsolicited real time financial promotions made by an overseas communicator to persons who were previously overseas and were a customer of his then. This is subject to certain conditions, including that, in broad terms, the customer would reasonably expect to be contacted about the subject matter of the financial
In the FCA's opinion;(1) it will not matter that a person enters into arrangements for investment or other purposes provided that he also enters them into for commercial purposes; and(2) each participant must be carrying on the business in question in their own right.This means that the sponsors or promoters of a company who arrange for private investors to become shareholders will not be setting up a joint enterprise simply because the company may intend to carry on a relevant
There are two exemptions that relate to sophisticated investors. The first (article 50 (Sophisticated investors)) applies to persons who are certified by an authorised person and to a broad range of specified investments. The second (article 50A (Self-certified sophisticated investors)) is similar to the exemption for certified high net worth individuals and applies where the investor has self-certified himself and to a narrower range of specified investments. PERG 8.14.27 G to
The exemption also requires that certain warnings are given to the potential investor. In this respect, article 50(3)(d) provides that the financial promotion must state that there is a significant risk of losing all monies invested or of incurring additional liability. In the FCA's view, these are alternative statements and whichever is the relevant statement should be included. If there is no risk of incurring additional liability the statement may simply say that there is a
The second exemption in article 50A disapplies the restriction in section 21 of the Act from any financial promotions4 which are made to a person who the communicator believes on reasonable grounds to be a self-certified sophisticated investor and which relate to one or more of the specified investments in PERG 8.14.21G (1) to (3) (Certified high net worth individuals (article 484)).44
A self-certified sophisticated investor is an individual who has signed a statement in the form prescribed in Part II (Statement for certified sophisticated investor) of Schedule 5 to the Financial Promotion Order. This requires the individual to certify that one or more of the following statements apply to him:(1) he is a member of a network or syndicate of business angels and has been so for at least the last six months prior to the date on which the certificate was signed;
1(1) This exemption allows a non-real time or solicited real time financial promotion to be made to an association with a particular membership. Membership of this association must be reasonably believed to be wholly or predominantly made up of1 certified high net worth individuals, high net worth companies or unincorporated associations or trusts, or certified or self-certified1 sophisticated investors. The financial promotion must not relate to an investment under the terms
(1) Regulation 45 (References in this part to an AIFM or an investment firm marketing an AIF) provides that:(a) an AIFMmarkets an AIF when the AIFM makes a direct or indirect offering or placement of units or shares of an AIF managed by it to an investor domiciled or with a registered office in an EEA State, or when another person makes such an offering or placement at the initiative of, or on behalf of, the AIFM; and(b) an investment firmmarkets an AIF when it makes a direct
(1) The terms 'offering' or 'placement' are not defined in the AIFMD UK regulation but, in our view, an offering or placement takes place for the purposes of the AIFMD UK regulation when a person seeks to raise capital by making a unit of share of anAIF available for purchase by a potential investor. This includes situations which constitute a contractual offer that can be accepted by a potential investor in order to make the investment and form a binding contract, and situations
(1) Marketing may take place by a direct or indirect offering or placement of units or shares of an AIF. The reference to indirect offering or placement would include situations where an AIFM distributes units or shares of an AIF through a chain of intermediaries.(2) For example, if the units or shares of an AIF are temporarily purchased by a third party (eg, an underwriter or placement agent) with the objective of distributing them to a wider investor base, this could be an indirect
(1) The reference to 'investor' in the AIFMD UK regulation should be regarded as a reference to the person who will make the decision to invest in the AIF. Where that person acts on its own behalf and subscribes directly to an AIF, the investor should be considered to be the person who subscribes to the unit or share of the AIF.(2) However, where that person engages another person to subscribe to the AIF on its behalf, including, for example, where:(a) a nominee company will subscribe
(1) The restrictions on the marketing of an AIF in regulations 49 to 51 only apply to marketing that takes place in the UK. In addition, under regulation 45, an AIFM or an investment firm only markets an AIF if the investor is domiciled in an EEA State or has its registered office in an EEA State.(2) Under regulation 2(2)(a) (Interpretation), the reference to ‘domicile’ should be construed in line with its meaning in AIFMD, ie its meaning under EU law. This may be different to
(1) Regulation 47 (Marketing at the initiative of the investor) states that regulations 49 to 51 do not apply to an offering or placement of units or shares of an AIF to an investor made at the initiative of that investor.(2) A confirmation from the investor that the offering or placement of units of shares of the AIF was made at its initiative, should normally be sufficient to demonstrate that this is the case, provided this is obtained before the offer or placement takes place.
(1) The value of the scheme property is the net value of the scheme property after deducting any outstanding borrowings (including any capital outstanding on a mortgage of an immovable).(2) Any part of the scheme property which is not an investment (save an immovable) must be valued at fair value.(3) For the purposes of (2), any charges that were paid, or would be payable, on acquiring or disposing of the asset must be excluded from the value of that asset.(4) The value of the
(1) 10Where transfer of units in an ACS is allowed by its contractual scheme deed and prospectus in accordance with the conditions specified by FCArules, the authorised contractual scheme manager of the ACS must take reasonable care to ensure that units are only transferred if the conditions specified by the FCA under (2) are met.(2) The FCA specifies that for the purposes of (1), and for the purposes of COLL 8.2.6R(2)(6)(a)(vii)(B) (Table: contents of the instrument constituting
(1) 10The authorised contractual scheme manager of an authorised contractual scheme which is a qualified investor scheme must take reasonable care to ensure that rights or interests in units in the scheme are not acquired by any person from or through an intermediate Unitholder in a qualified investor scheme, unless:11(a) that person11is a:(i) professional ACS investor; or(ii) large ACS investor; or(iii) person who already holds units in the scheme; and(b) units in a qualified
10The authorised contractual scheme manager of a qualified investor scheme which is an ACS must redeemunits in the scheme as soon as practicable after becoming aware that those units are vested in anyone (whether as a result of subscription or transfer of units) other than a person meeting the criteria in COLL 8 Annex 2(1) and (2) (ACS Qualified Investor Schemes: eligible investors).
(1) The authorised fund manager must, at all times during the dealing day, be willing to effect the sale of units to any eligible investor (within any conditions in the instrument constituting the fund12 and the prospectus which must be fair and reasonable as between all unitholders and potential unitholders) for whom the authorised fund manager does not have reasonable grounds to refuse such sale.12(2) The authorised fund manager must, at all times during the dealing day, effect
The maximum period between dealing days for a qualified investor scheme will depend on the reasonable expectations of the target investor group and the particular investment objectives and policy of the scheme. For instance, for a scheme aiming to invest in large property developments, the expectation would be that it is reasonable to have a much longer period between dealing days for liquidity reasons than for a scheme investing predominantly in listed securities.
The characteristics that a reasonable investor can be expected to have will inform the use of judgment required by the 'expectation test' and the 'satisfaction test'. These tests relate to the investor's ability to realise an investment within a reasonable period and to do so on the basis of the net value of its assets. In the FCA's view, the characteristics of the reasonable investor include:(1) sound judgment based on good sense;(2) some knowledge of, and possibly experience
The reasonable investor is a hypothetical investor. The implications of this are that the test does not relate to actual investment by a particular person at a particular time or in relation to a particular issue of any class of shares or securities. In the FCA's view, what underlies the test is what a reasonable investor would think he was getting into if he were contemplating investment in a particular body corporate. In addition, because the investor is hypothetical, the investment
Section 236(3) uses the words "the investor would, if he were to participate in the scheme". This is consistent with the fact that the reasonable investor is hypothetical. But applying the test at this early stage makes it clear that there must be objectively justifiable grounds on which the reasonable investor could base the expectation in section 236(3)(a). And on which he could be satisfied on the matters in section 236(3)(b). In the FCA's view, this requires, for example,
The test in section 236(3)(a) of the Act is whether the reasonable investor would expect that, were he to invest, he would be in a position to realise his investment within a period appearing to him to be reasonable. In the FCA's view, this is an objective test with the appropriate objective judgment to be applied being that of the hypothetical reasonable investor with qualities such as those mentioned in PERG 9.7.2 G (The investment condition: the 'reasonable investor').
An investor in a body corporate may be able to realise part, but not all, of his investment. The FCA considers that the fact that partial realisations may take place at different times does not prevent the body corporate coming within the definition of an open-ended investment company. But, in any particular case, the 'expectation test' will only be met if the overall period for realising the whole of the investment can be considered to be reasonable. Apart from this, the simple
The use of an expectation test ensures that the definition of an open-ended investment company is not limited to a situation where a holder of shares in, or securities of, a body corporate has an entitlement or an option to realise his investment. It is enough if, on the facts of any particular case, the reasonable investor would expect that he would be able to realise the investment. The following are examples of circumstances in which the FCA considers that a reasonable investor
However, a reasonable investor's expectation of being able to realise his investment is not displaced simply because, in certain circumstances, no active steps need to be taken to realise the investment. This might happen where a redemption or repurchase of shares or securities may become compulsory as a result of some aspect of the applicable law.
As indicated in PERG 9.3.5 G (The definition), the potential for variation in the form and operation of a body corporate is considerable. So, it is only possible in general guidance to give examples of the factors that the FCA considers may affect any particular judgment. These should be read bearing in mind any specific points considered elsewhere in the guidance. Such factors include:(1) the terms of the body corporate's constitution;(2) the applicable law;(3) any public representations
(1)7The rules of the [UK RIE] must provide that the [UK RIE] must not exercise its power to suspend or remove from trading on a trading venue operated by it any financial instrument which no longer complies with its rules, where such step would be likely to cause significant damage to the interests of investors or the orderly functioning of the financial markets.7(2)Where the [UK RIE] suspends or removes any financial instrument from trading on a trading venue it operates it must
2In determining whether:(1) business conducted by means of a UK RIE'sfacilities is conducted so;5(2) [deleted]55as to afford proper protection to investors, the FCA5 may, in addition to the matters dealt with in REC 2.7 to REC 2.12, have regard to all the arrangements made by the UK recognised body concerning the operation of its facilities.5
2The FCA5 may also have regard to the extent to which the UK recognised body's rules, procedures and the arrangements for monitoring and overseeing the use of its facilities:5(1) include appropriate measures to prevent the use of its facilities for abusive or improper purposes;(2) provide appropriate safeguards for investors against fraud or misconduct, recklessness, negligence or incompetence by users of its facilities;(3) provide appropriate information to enable users of its
2In determining whether a UK RIE is ensuring that business conducted by means of its facilities is conducted in an orderly manner (and so as to afford proper protection to investors), the FCA5 may have regard to the extent to which the UK RIE's rules and procedures:5(1) are consistent with the Market Abuse Regulation6;6(2) prohibit abusive trading practices or the deliberate reporting or publication of false information about trades; and(3) prohibit or prevent:(a) trades in which
2In determining whether a UK RIE is ensuring that business conducted by means of its facilities is conducted in an orderly manner (and so as to afford proper protection to investors), the FCA5 may have regard to whether the UK RIE's arrangements and practices: 5(1) enable members and clients for whom they act to obtain the best price available at the time for their size and type of trade;(2) demonstrate that the UK RIE is able to satisfy:7(a) either or both of the following:7(i)
For the purposes of article 53(1)1, advice must be given to or directed at someone who either holds investments or is a prospective investor (or their agent). Where the investment is a risk-only contract of insurance such as house contents insurance, the policyholder or prospective policyholder is regarded as an investor.
Advice will still be covered by article 53(1)1 even though it may not be given to or directed at a particular investor (for example, advice given in a periodical publication or on a website). The expression ‘investor’ has a broad meaning and will include institutional or professional investors.
(1) 1The requirements in this section apply:(a) (excluding the requirements in CREDS 3A.5.6R and CREDS 3A.5.7R) to a firm when dealing in or arranging a deal in a deferred share with or for a relevant credit union client where the relevant credit union client is to enter into the deal as buyer; and(b) (excluding the requirements in CREDS 3A.5.3R to CREDS 3A.5.5R) to a firm when:(i) communicating a direct offer financial promotion relating to credit union subordinated debt to a
(1) Where a firm applies any exemption set out in COBS 22.2.4R under CREDS 3A.5.1R(3)2, any reference in COBS 22.2.4R to mutual society share must be read as though it includes a deferred share or credit union subordinated debt, as applicable.(2) For the purposes of any assessments or certifications required by the exemptions in COBS 22.2.4R, as applied for the purposes of this section under CREDS 3A.5.1R(3)2, any reference in COBS 4.12 provisions to non-mainstream pooled investments
A firm which carries on an activity which is subject to this section must comply with the following record-keeping and disclosure requirements:(1) the firm must make a record at or near the time of the activity certifying it complies with the requirements set out in this section;(2) the record in (1) must include information and evidence demonstrating compliance with each of the requirements in this section, as applicable;(3) if the requirements of this section did not apply because
1Each of the exemptions listed below applies only if the retail client is of the type described for the exemption and provided any additional conditions for the exemption are met.TitleType of retail clientAdditional conditionsCertified high net worth investor(a) An individual who meets the requirements set out in COBS 4.12.6R; or(b) an individual in an EEA State other than the UK who meets requirements which are broadly equivalent to those set out in COBS 4.12.6R; or(c) a person
(1) For the purposes of any assessments or certifications required by the exemptions in COBS 22.3.2R, any references in COBS 4.12 provisions to non-mainstream pooled investments must be read as though they are references to contingent convertible instruments or CoCo funds, as relevant.(2) If the firm is relying on the high net worth investor, the sophisticated investor or the self-certified sophisticated investor exemption to comply with this section, the statement the investor
A firm wishing to certify a retail client as a sophisticated investor for the purposes of this section should note that, in the FCA’s view, it is likely that the only retail clients with the requisite sophistication in relation to contingent convertible instruments or CoCo funds are those with significant experience with investment in multiple types of complex financial instruments and who have sufficient understanding of how credit institutions are run, including risks to the
A firm which carries on an activity which is subject to this section must comply with the following record-keeping requirements:(1) the person allocated the compliance oversight function in the firm must make a record at or near the time of the activity certifying it complies with the restrictions set out in this section;(2) the making of the record required in (1) may be delegated to one or more employees of the firm who report to, and are supervised by, the person allocated
If BC comes within the definition of a collective investment scheme, the third element in determining whether it is an open-ended investment company is whether the 'investment condition' is satisfied. This condition is that, in relation to BC, a reasonable investor would, if he were to participate in the scheme:(1) expect that he would be able to realise his investment in the scheme, within a period appearing to him to be reasonable; his investment would be represented, at any
Under the investment condition, the reasonable investor is looking to satisfy two criteria. Both of these are fundamental to his decision to invest. But the thresholds referred to in PERG 9.6.1 G (1) and PERG 9.6.1 G (2) are different. In the FCA's view, a person expects something where he regards it as likely to happen or anticipates that events will turn out in a particular way. A person is satisfied of something where he has made up his mind or is persuaded that it is the case.
In the FCA's view, and within limits, the investment condition allows for the possibility that a body corporate that is an open-ended investment company may issue shares or securities with different characteristics. Some shares or securities may clearly satisfy the condition whereas others may not. The FCA considers that a reasonable investor contemplating investment in such a body corporate may still take the view, looking at the body corporate overall, that the investment condition
The FCA's views on the following three elements of the investment condition are explained separately:(1) the 'reasonable investor' (see PERG 9.7 (The investment condition: the 'reasonable investor'));(2) the 'expectation' test (see PERG 9.8 (The investment condition: the 'expectation test' (section 236(3)(a) of the Act))); and(3) the 'satisfaction' test (see PERG 9.9 (The investment condition: the 'satisfaction test' (section 236(3)(b) of the Act)).
(1) This chapter assists in achieving the statutory objective of protecting consumers by providing an appropriate degree of protection in respect of authorised funds that are only intended for investors that are, in general, prepared to accept a higher degree of risk in their investments or have a higher degree of experience and expertise than investors in retail schemes.(2) This section ceases to apply where a qualified investor scheme has converted to be authorised as a UCITS
(1) Subject to (3), the3authorised fund manager of a qualified investor scheme must take reasonable care to ensure that ownership of units in that scheme is recorded in the register only2 for a person to whom such units may be promoted under COBS 4.12.4R2.32112(2) The authorised fund manager will be regarded as complying with (1) and (3)3 to the extent that it can show that it was reasonable for it to rely on relevant information provided by another person.(3) 3In addition to
(1) Qualified investor schemes are authorised funds which are intended only for professional clients and for retail clients who are2 sophisticated investors. For this reason, qualified investor schemes are subject to a restriction on promotion under COBS 4.12.3 R. See also COBS 4.12.13 G.22123211(1A) 3The authorised contractual scheme manager of a qualified investor scheme which is4 an ACS must take reasonable care to ensure that subscription in relation to the units of this type
A management company must ensure that its remuneration policy: (1) is in line with the business strategy, objectives, values and interests of: (a) the management company; (b) the UCITS it manages; and(c) the investors in such UCITS; and(2) includes measures to avoid conflicts of interest.[Note: article 14b(1)(b) of the UCITS Directive]
(1) A management company must establish a remuneration committee if it is significant in terms of: (a) its size, or the size of the UCITS that it manages2; (b) [deleted]2(c) the complexity of its internal organisation; and2(d) the nature, the scope and the complexity of its activities.(2) The remuneration committee must be constituted in a way that enables it to exercise competent and independent judgment on: (a) remuneration policies and practices; and(b) the incentives created
A management company must ensure that the assessment of performance is set in a multi-year framework appropriate to any holding period recommended to the investors of the UCITS managed by the management company to ensure that the: (1) assessment process is based on the long-term performance of the UCITS and its investment risks; and (2) actual payment of the performance-based components of remuneration is spread over the same period. [Note: article 14b(1)(h) of the UCITS Dire
(1) Subject to the legal structure of the UCITS and the instrument constituting the fund, a management company must ensure that a substantial portion, and in any event at least 50%, of any variable remuneration component consists of: (a) units or shares of the UCITS concerned; or (b) equivalent ownership interests in the UCITS concerned; or (c) share-linked instruments relating to the UCITS concerned; or (d) equivalent non-cash instruments relating to the UCITS concerned with
(1) A management company must not award, pay or provide a variable remuneration component unless a substantial portion, and in any event at least 40%, of the variable remuneration component, is deferred over a period which is:(a) appropriate in view of any holding period recommended to the investors of the UCITS concerned; and(b) correctly aligned with the nature of the risks of the UCITS in question.(2) The period referred to in (1) must be at least three years.(3) Remuneration
7A unit in a closed end fund shall be taken to be a transferable security for the purposes of investment by a UCITS scheme, provided it fulfils the criteria for transferable securities set out in COLL 5.2.7A R, and either:(1) where the closed end fund is constituted as an investment company or a unit trust:(a) it is subject to corporate governance mechanisms applied to companies; and(b) where another person carries out asset management activity on its behalf, that person is subject
(1) 7An authorised fund manager should not invest the scheme property of a UCITS scheme in units of a closed end fund for the purpose of circumventing the investment limits set down in this section.(2) When required to assess whether the corporate governance mechanisms of a closed end fund in contractual form are equivalent to those applied to companies, the authorised fund manager should consider whether the contract on which the closed end fund is based provides its investors
(1) A market is eligible for the purposes of the rules in this sourcebook if it is:(a) a regulated market;(b) a market in an EEA State which is regulated, operates regularly and is open to the public; or(c) any market within (2).(2) A market not falling within (1)(a) and (b) is eligible for the purposes of the rules in this sourcebook if:(a) the authorised fund manager, after consultation with and notification to the depositary (and in the case of an ICVC, any other directors),
(1) 7(In addition to instruments admitted to or dealt in on an eligible market) a UCITS scheme may invest in an approved money-market instrument provided it fulfils the following requirements:(a) the issue or the issuer is regulated for the purpose of protecting investors and savings; and(b) the instrument is issued or guaranteed in accordance with COLL 5.2.10B R.[Note: article 50(1)(h)(i) to (iii)13 of the UCITS Directive]13(2) The issue or the issuer of a money-market instrument,
(1) 7In addition to instruments admitted to or dealt in on an eligible market, a UCITS scheme may also with the express consent of the FCA (which takes the form of a waiver under sections 138A and 138B of the Act as applied by section 250 of the Act or regulation 7 of the OEIC Regulations) invest in an approved money-market instrument provided:(a) the issue or issuer is itself regulated for the purpose of protecting investors and savings in accordance with COLL 5.2.10AR (2);(b)
(1) 7Collateralised debt obligations (CDOs) or asset-backed securities using derivatives, with or without an active management, will generally not be considered as embedding a derivative except if:(a) they are leveraged, i.e. the CDOs or asset-backed securities are not limited recourse vehicles and the investors' loss can be higher than their initial investment; or(b) they are not sufficiently diversified.(2) Where a transferable security or approved money-market instrument embedding
(1) The authorised fund manager of an AUT, ACS21 or an ICVC16 must:16(a) provide16 a copy of the scheme's most recent prospectus drawn up and published in accordance with COLL 4.2.2 R (Publishing the prospectus) free of charge to any person on request; and16(b) file a copy of the scheme's original prospectus, together with all revisions thereto, with the FCA and, where a UCITS scheme is managed by an EEA UCITS management company, with that company's Home State regulator on request.1616(1A)
(1) 16The authorised fund manager of a UCITS scheme that is a feeder UCITS must:(a) where requested by an investor, provide a copy of the prospectus of its master UCITS free of charge; and(b) file a copy of the prospectus of its master UCITS and any amendments thereto with the FCA.(2) Except where an investor requests a paper copy or the use of electronic communications is not appropriate, the prospectus of the master UCITS may be provided in a durable medium other than paper
(1) 18The authorised fund manager of a feeder NURS must, where requested by an investor or the FCA , provide such person with a copy of the prospectus of its qualifying master scheme free of charge.(2) 18Except where an investor requests a paper copy or the use of electronic communications is not appropriate, the prospectus of the qualifying master scheme may be provided in a durable medium other than paper, or by means of a website that meets the website conditions.20
This table belongs to COLL 4.2.2 R (Publishing the prospectus).Document status1A statement that the document is the prospectus of the authorised fund valid as at a particular date (which shall be the date of the document).Authorised fund2A description of the authorised fund including:(a) its name;29(aa)its FCA product reference number (PRN);(b)whether it is an ICVC, ACS21 or an AUT;173(ba)whether it is a UCITS scheme or a non-UCITS retail scheme;17(bb)a statement that unitholders
28Transparency of collective investment undertakings in pre-contractual documents1.The UCITS prospectus referred to in Article 69 of Directive 2009/65/EC, and the disclosure by AIFMs to investors referred to in Article 23(1) and (3) of Directive 2011/61/EU shall specify the SFT and total return swaps which UCITS management companies or UCITS investment companies, and AIFMs respectively, are authorised to use and include a clear statement that those transactions and instruments
(1) In relation to COLL 4.2.5R (3)(b) the prospectus might include:(a) a description of the extent (if any) to which that policy does not envisage the authorised fund remaining fully invested at all times;(b) for a non-UCITS retail scheme which may invest in immovable property:(i) the maximum extent to which the scheme property may be invested in immovables; and(ii) a statement of the policy of the authorised fund manager in relation to insurance of3 immovables forming part of
(1) An authorised fund manager must ensure that a prospectus of a qualified investor scheme is drawn up which contains the information, specified in COLL 8.3.4 R (Table: contents of qualified investor scheme prospectus), and the authorised fund manager must:(a) revise the prospectus immediately upon the occurrence of any materially significant change in the information required to be stated within it;(b) include the date of any revision in a prominent manner in the revised prospectus;22(c)
(1) 17The PRIIPs Regulation requires the manufacturer of a PRIIP to draw up a key information document in accordance with the PRIIPs Regulation before that PRIIP is made available to retail investors (as defined in the PRIIPs Regulation).(2) The requirements of the PRIIPs Regulation are directly applicable.(3) As a result, when a qualified investor scheme is made available to retail clients the authorised fund manager will need to prepare a key information document in accordance
This table belongs to COLL 8.3.2 R.1Document statusA statement that this document is the prospectus of the authorised fund valid as at a particular date which shall be the date of the document.2Description of the authorised fundInformation detailing:(1)the name of the authorised fund;16(1A)its FCA product reference number (PRN);(2)that the authorised fund is either an ICVC, ACS11 or an AUT;(3)that the scheme is a qualified investor scheme;(4)where relevant, that the unitholders
(1) 15The Securities Financing Transactions Regulation sets out the additional information which an authorised fund manager who is a full-scope UK AIFM of a qualified investor scheme must make available to investors before they invest.(2) COLL 4.2.5BEU and COLL 4.2.5CEU copy out the relevant provisions of that regulation.(3) An authorised fund manager who is a full-scope UK AIFM of a qualified investor scheme should publish the information in the schemeprospectus.(4) An authorised
Although account should be taken of the guidance on fundamental changes (COLL 4.3.5 G (Guidance on fundamental changes)) and significant changes (COLL 4.3.7 G (Guidance on significant changes)) the impact of any change to the scheme should be assessed individually based on the nature of the scheme and its investor profile.
(1) 1The purpose of LR 6.2.1R(2), LR 6.2.3R, and LR 6.3.1R is to ensure that the applicant has representative financial information throughout the period required by LR 6.2.1R(1) and LR 6.2.3R and to assist prospective investors to make a reasonable assessment of what the future prospects of the applicant’s business might be. Investors are then able to consider the applicant’s historical financial information in light of its particular competitive advantages, the outlook for the
Under the Act, the FCA may also refuse an application for admission if it considers that:(1) admission of the securities would be detrimental to investors' interests; or(2) for securities already listed in another EEA State, the issuer has failed to comply with any obligations under that listing.
An issuer must provide to the FCA as soon as possible:(1) any information and explanations that the FCA may reasonably require to decide whether to grant an application for admission;(2) any information that the FCA considers appropriate to protect investors or ensure the smooth operation of the market; and [Note: Article 16.1 CARD](3) any other information or explanation that the FCA may reasonably require to verify whether listing rules are being and have been complied with
(1) The FCA may, at any time, require an issuer to publish such information in such form and within such time limits as it considers appropriate to protect investors or to ensure the smooth operation of the market. [Note: Article 16.2 CARD](2) If an issuer fails to comply with a requirement under paragraph (1) the FCA may itself publish the information (after giving the issuer an opportunity to make representations as to why it should not be published). [Note: Article 16.2 CA