Pursuant to section 38 of the Securities Markets Act 1988, the Securities Commission gives the following notice.
N o t i c e
1. Title, commencement, and expiry-(1) This notice is the Authorised Futures Dealers (Bank of New York Mellon) Notice 2011.
(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 31 March 2016.
2. Interpretation-(1) In this notice, unless the context otherwise requires:
Act means the Securities Markets Act 1988.
Company means the Bank of New York Mellon, a bank chartered under the laws of the State of New York
and having its principal place of business at One Wall Street, New York, New York, United States of America.
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.
wholesale client means any client that is:
(a) a person who controls at least $10 million; or
(b) a trustee of a trust or a funds manager, acting in
that capacity, who has under that person’s control,
as trustee or funds manager, net assets of at least
$10 million; or
(c) a person who is authorised to carry on the business of dealing in futures contracts under the Act; or
(d) a person authorised in another jurisdiction by the competent authority of that jurisdiction to deal in futures contracts; or
(e) Her Majesty The Queen in right of New Zealand,
a Crown entity named in the Crown Entities Act 2004, or a State enterprise named in the First or Second Schedule to the State-Owned Enterprises Act 1986 (each as amended from time to time); or
(f) a person who is a statutory corporation or a registered bank; or
(g) a person whose principal business is the investment of money or who, in the course of and for the purposes of their business, habitually invests money; or
(h) a person who is a related body corporate of any of the persons mentioned in subparagraphs (a) to (g) above.
(2) Any term or expression that is defined in the Act and used, but not defined, in this notice has the same meaning as in the Act.
3. Authorisation-(1) The Company is authorised to carry on the business of dealing in futures contracts generally.
(2) The authorisation in clause 3(1) is subject to the conditions that:
(a) the Company deals only on behalf of its wholesale clients; and
(b) before dealing in any futures contract in respect of which the authorisation applies, the Company is satisfied on reasonable grounds that the wholesale client is contracting:
(i) as principal on its own account; or
(ii) on behalf of a related body corporate; or
(iii) as trustee of a trust or manager of a managed fund; and
(c) in respect of any futures contract that is not made on or effected through a recognised exchange, that the terms of such a futures contract require that any transfer of obligations under the futures contract can be made only to a person who meets the criteria described in clauses 3(2)(a) and (b) above; and
(d) 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 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 on behalf of that person and to hold client money for that purpose; and
(e) the Company does not carry on the business of dealing in futures contracts on behalf of any wholesale client other than one who has entered into a written contract for services with the Company, and then only in accordance with the terms of the contract; and
(f) the Company, and any other person acting on its behalf, does not hold or receive any client money or client property in the course of carrying on its business as a dealer in futures contracts; and
(g) the Company remains licensed as a bank under the laws of the State of New York and the United States of America; and
(h) the Company notifies the Commission as soon as practicable of any regulatory action taken by
the State of New York Banking Department, the
United States Federal Reserve, the US Commodity Futures Trading Commission or any other competent regulatory authority in relation to its futures dealings; and
(i) the Company provides the Commission with a copy of its parent corporation’s audited annual financial statements no later than three months after the end
of each financial year for the Company; and
(j) the Company notifies the Commission of any material matter concerning its authorisation as a futures dealer.
Dated at Wellington this 15th day of April 2011.
The Common Seal of the Securities Commission was affixed in the presence of:
[L.S.]
D. W. MAYHEW, Member.