Pursuant to section 38 of the Securities Markets Act 1988, the Financial Markets Authority gives the following notice.
N o t i c e
1. Title, commencement and expiry-(1) This notice is the Authorised Futures Dealers (Fonterra Commodities Limited) Notice 2013.
(2) This notice comes into force on the day after the date of its notification in the New Zealand Gazette.
(3) This notice expires on the close of 28 February 2018.
2. Interpretation-(1) In this notice, unless the context otherwise requires:
Act means the Securities Markets Act 1988.
company means Fonterra Commodities Limited.
Fonterra means Fonterra Co-operative Group Limited.
FMA means the Financial Markets Authority established by Part 2 of the Financial Markets Authority Act 2011.
recognised exchange means an authorised futures exchange under the Securities Markets Act 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 person means any person:
(a) who controls at least $10 million; or
(b) that is 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) who is authorised to carry on the business of dealing in futures contracts under the Act; or
(d) who is authorised in another jurisdiction by the competent authority of that jurisdiction to deal in futures contracts; or
(e) that is 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) who is a statutory corporation or a registered bank; or
(g) 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) 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 given to it by the Act.
3. Authorisation for wholesale persons-(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 wholesale persons; 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 person is contracting:
(i) as principal on its own account; or
(ii) on behalf of a related body corporate; or
(iii) a trustee of a trust or manager of a managed fund; and
(c) the terms of every futures contract in respect of which the authorisation applies, other than a futures contract which is made on or effected through a recognised futures exchange:
(i) create obligations that cannot be transferred (other than to a related body corporate of the company) or terminated by either party to
the futures contract without the consent of the other party; and
(ii) require that any transfer of obligations under the futures contract can be made only to a person who meets the criteria described in paragraphs (a) and (b); and
(d) in respect of every futures contract the company enters into with a wholesale person as principal, the company makes available a guarantee from Fonterra in respect of its payment obligations under the futures contract;
(e) the company provides FMA with a copy of:
(i) Fonterra’s audited annual financial statements (being its consolidated group financial statements) no later than three months after the end of Fonterra’s financial year; and
(ii) unaudited financial statements of the company, which have been prepared internally as part of the process of preparing Fonterra’s consolidated group financial statements, no later than three months after the end of Fonterra’s financial year; and
(f) the company notifies FMA of any material matter concerning its authorisation as a futures dealer or its dealing pursuant to that authorisation.
(3) 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 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 future contracts and to hold client money for that purpose.
Dated at Wellington this 13th day of March 2013.
ELAINE CAMPBELL, Head of Compliance Monitoring, Financial Markets Authority.