Pursuant to section 38 of the Securities Markets Act 1988, the Securities Commission gives the following notice.
N o t i c e
Clause 1. Title, commencement and expiry—(1) This notice is the Authorised Futures Dealers Notice (No. 4) 2006.
(2) This notice comes into force on the day after the date of its publication in the New Zealand Gazette.
(3) This notice expires on the close of 30 November 2011.
Clause 2. Interpretation—(1) In this notice, unless the context otherwise requires:
“Act” means the Securities Markets Act 1988.
“AFS Licence” means an Australian Financial Services Licence granted under the Corporations Act 2001.
“ASIC” means the Australian Securities and Investments Commission.
“ASX” means Australian Stock Exchange Limited.
“company” means Man Financial Australia Limited (ABN 50 001 662 077).
“Corporations Act 2001” means the Corporations Act 2001 of the Commonwealth of Australia.
“product disclosure statement” means a document:
(a) that describes and contains the offer of, and relates specifically to, the specified futures contracts;
(b) that is identical to a document that is:
(i) a product disclosure statement in terms of the Corporations Act 2001; and
(ii) signed by the persons (if any) who are required by law to sign that document;
(c) by means of which it is lawful under the laws of Australia to make an offer of the specified futures contracts to the public in Australia; and
(d) that is not an “offer information statement” or “profile statement” (as those terms are defined in section 9 of the Corporations Act 2001).
“recognised exchange” means an authorised futures exchange or any exchange in a country other than
New Zealand which is authorised by the laws of that country to operate as a futures exchange.
“Regulations” means the Futures Industry (Client Funds) Regulations 1990.
“SFE” means Sydney Futures Exchange Limited.
“specified futures contract” means a futures contract
that is:
(a) a contract for difference, or a forward foreign exchange contract, that is issued by the company and described in the product disclosure statement; or
(b) a contract traded on a recognised exchange that is offered by the company and described in the product disclosure statement (other than contracts traded on the SFE).
(2) Any term or expression that is defined in the Act or the Regulations and used, but not defined, in this notice has
the same meaning as in the Act or the Regulations.
Clause 3. Authorisation—(1) The company is authorised to carry on the business of dealing in specified futures contracts.
(2) The authorisation only applies to specified futures contracts to which the company is, or intends to be, a party.
(3) The authorisation is subject to the conditions that:
(a) the company does not enter into specified futures contracts with any person other than a person
who has entered into a written agreement with
the company, and then only in accordance with the terms of that agreement;
(b) the company is licensed as an Australian Financial Services Licensee under the Corporations Act and holds an AFS Licence which authorises the company to advise retail and wholesale clients on, and deal with or on behalf of retail and wholesale clients in, specified futures contracts;
(c) the company notifies the Commission if the company’s AFS Licence is varied or revoked and notifies the Commission of any regulatory action taken by ASIC in relation to the company’s AFS Licence;
(d) the company is a full participant of SFE and a participant of ASX;
(e) there is a product disclosure statement relating to
the specified futures contracts at the time that the specified futures contracts are made available to New Zealand investors, or the company gives advice or assistance to, or induces or attempts to induce, New Zealand investors in relation to the acquisition or disposal of any specified futures contract;
(f) before the company enters into a specified futures contract with any person, that person has received copies of the following:
(i) a product disclosure statement relating to that specified futures contract;
(ii) every supplementary product disclosure statement relating to that specified futures contract in use at the time of the entry by the company into the specified futures contract; and
(iii) an investment broker disclosure document including the information listed in section 3 of the Investment Advisers (Disclosure) Act 1996;
(g) no employee, director or agent of the company may give investment advice to any client unless that director, employee or agent has first provided investment adviser disclosure to that client in terms of the Investment Advisers (Disclosure) Act 1996, including the request disclosure under section 4 of the Act;
(h) any company document that states the company has been authorised by the Securities Commission to carry on the business of dealing in futures contracts includes a statement to the effect that:
(i) the Securities Commission’s role in authorising futures dealers is limited and does not imply approval or endorsement of the business, trading or solvency of the company; and
(ii) the Securities Commission has not approved any agreements or any disclosure documents of the company;
(i) the company maintains proper records:
(i) to record dealings in respect of specified futures contracts with clients;
(ii) to record client money, funds and property held or received in connection with dealings in specified futures contracts; and
(iii) which are audited or reviewed, and reported on, in accordance with the Regulations;
(j) the company provides the Commission with a copy of the company’s audited financial statements no later than three months after the end of each financial year for the company;
(k) the company maintains adequate professional indemnity insurance for its business at all times;
(l) the company immediately notifies the Securities Commission in writing of any of the following events:
(i) the insolvency of the company or the bankruptcy of any of its directors or senior management;
(ii) if the company, or any of its directors or senior management, is convicted of an indictable offence;
(iii) where a receiver, provisional liquidator, liquidator or a similar officer is appointed, or any resolution is passed or order made for the winding up or dissolution of the company;
(iv) any regulatory action taken against the company, or any of its directors or senior management whether in New Zealand or elsewhere; and
(v) if any director or member of the senior management leaves the company or if any new director or member of senior management is appointed to the company;
(m) the company maintains at all times an external dispute resolution scheme that is available to its New Zealand clients who are members of the public;
(n) the product disclosure statement for the specified futures contracts to be entered into by the company is accompanied by statements or information to the following effect under the heading “Important Information for New Zealand Investors”:
(i) the name and address of the company
(unless the information is provided in the product disclosure statement);
(ii) that the company may not be subject in all respects to New Zealand law;
(iii) information describing how returns to
New Zealand investors are likely to be affected by New Zealand taxation rules and how, as a result, any returns to New Zealand investors may differ from the returns for Australian investors described in the product disclosure statement;
(iv) that, despite the information provided under paragraph (iii), investors should satisfy themselves as to the tax implications of entering into the specified futures contracts;
(v) that entry into the specified futures contracts may carry with it a currency exchange risk;
(vi) that the financial reporting requirements applying in New Zealand and those applying in respect of the company may be different, and the financial statements of the company may not be compatible in all respects with financial statements prepared in accordance with New Zealand law; and
(vii) information or statements to the following effect under the heading “Agreement as to Jurisdiction”:
A that, in respect of a dispute concerning the specified futures contracts, the company:
1 agrees to submit to the non-exclusive jurisdiction of the New Zealand courts;
2 has instructed the New Zealand agent for service referred to in subparagraph (C) to accept service on the company’s behalf;
3 agrees that this statement is an agreement with each investor for the purposes of section 389 (1) (e) of
the Companies Act 1993; and
B that, despite the statements referred to in subparagraph (A), the specified futures contract may not always be enforceable in New Zealand courts; and
C the name and contact address of the person in New Zealand who has been appointed by the company to accept service in
New Zealand of any document on its behalf; and
(o) at the same time as the specified futures contracts are made available by the company to New Zealand investors in reliance on the authorisation in this notice, those specified futures contracts are also made available to Australian investors in accordance with the laws of Australia.
Clause 4 . Further condition relating to on-exchange dealing in futures contracts—The authorisation is also subject to the condition, in respect of any futures contract that is made on or effected through a recognised
exchange, that any acquisition or disposal of the contract is effected through a person, whether that be the company or another person, who is an authorised participant or member of the recognised exchange and who is authorised or licensed by the laws of the country in which it operates to deal in futures contracts and to hold client money for that purpose.
Dated at Wellington this 31st day of October 2006.
The Common Seal of the Securities Commission was affixed in the presence of:
[L.S.]
COLIN BEYER, Member.