Related provisions for SUP 11.7.1
Sections 85 and 86 of the Act provide for when a prospectus approved by the FSA will be required:
85 |
(1) |
It is unlawful for transferable securities to which this subsection applies to be offered to the public in the United Kingdom unless an approved prospectus has been made available to the public before the offer is made. |
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(2) |
It is unlawful to request the admission of transferable securities to which this subsection applies to trading on a regulated market situated or operating in the United Kingdom unless an approved prospectus has been made available to the public before the request is made. |
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(3) |
A person who contravenes subsection (1) or (2) is guilty of an offence and liable – |
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(a) |
on summary conviction, to imprisonment for a term not exceeding 3 months or a fine not exceeding the statutory maximum or both; |
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(b) |
on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine or both. |
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(4) |
A contravention of subsection (1) or (2) is actionable, at the suit of a person who suffers loss as a result of the contravention, subject to the defences and other incidents applying to actions for breach of statutory duty. |
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(5) |
Subsection (1) applies to all transferable securities other than – |
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(a) |
those listed in Schedule 11A; |
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(b) |
such other transferable securities as may be specified in prospectus rules [see PR 1.2.2 R]. |
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(6) |
Subsection (2) applies to all transferable securities other than – |
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(a) |
those listed in Part 1 of Schedule 11A; |
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(b) |
such other transferable securities as may be specified in prospectus rules [see PR 1.2.3 R]. |
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(7) |
"Approved prospectus" means, in relation to transferable securities to which this section applies, a prospectus approved by the competent authority of the home State in relation to the issuer of the securities. |
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86 |
Exempt offers to the public |
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(1) |
A person does not contravene section 85(1) if – |
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(a) |
the offer is made to or directed at qualified investors only; |
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(b) |
the offer is made to or directed at fewer than 100 persons, other than qualified investors, per EEA State; |
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(c) |
the minimum consideration which may be paid by any person for transferable securities acquired by him pursuant to the offer is at least 50,000 euros (or an equivalent amount); |
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(d) |
the transferable securities being offered are denominated in amounts of at least 50,000 euros (or equivalent amounts); or |
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(e) |
the total consideration for the transferable securities being offered cannot exceed 100,000 euros (or an equivalent amount). |
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(2) |
Where - |
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(a) |
a person who is not a qualified investor ("the client") has engaged a qualified investor falling within Article 2.1(e)(i) of the prospectus directive to act as his agent; and |
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(b) |
the terms on which the qualified investor is engaged enable him to make decisions concerning the acceptance of offers of transferable securities on the client's behalf without reference to the client, |
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an offer made to or directed at the qualified investor is not to be regarded for the purposes of subsection (1) as also having been made to or directed at the client. |
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(3) |
For the purposes of subsection (1)(b), the making of an offer of transferable securities to – |
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(a) |
trustees of a trust, |
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(b) |
members of a partnership in their capacity as such, or |
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(c) |
two or more persons jointly, |
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is to be treated as the making of an offer to a single person. |
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(4) |
In determining whether subsection (1)(e) is satisfied in relation to an offer ("offer A"), offer A is to be taken together with any other offer of transferable securities of the same class made by the same person which – |
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(a) |
was open at any time within the period of 12 months ending with the date on which offer A is first made; and |
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(b) |
had previously satisfied subsection (1)(e). |
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(5) |
For the purposes of this section, an amount (in relation to an amount denominated in euros) is an "equivalent amount" if it is an amount of equal value denominated wholly or partly in another currency or unit of account. |
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(6) |
The equivalent is to be calculated at the latest practicable date before (but in any event not more than 3 working days before) the date on which the offer is first made. |
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(7) |
"Qualified investor" means – |
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(a) |
an entity falling within Article 2.1(e)(i), (ii) or (iii) of the prospectus directive; |
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(b) |
an investor registered on the register maintained by the [FSA] under section 87R; |
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(c) |
an investor authorised by an EEA State other than the United Kingdom to be considered as a qualified investor for the purposes of the prospectus directive. |
Applicable sections (see SUP 3.1.1 R)
(1) Category of firm |
(2) Sections applicable to the firm |
(3) Sections applicable to its auditor |
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(1) |
Authorised professional firm which is required by IPRU(INV) 2.1.2R to comply with chapters 3, 5,10 or 13 of IPRU(INV) (Note 1) |
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(2) |
Authorised professional firm not within (1) to which either or both of CASS 2 (Client assets) and CASS 4 (Client money and mandates: designated investment business) applies , unless the firm is regulated by The Law Society (England and Wales), The Law Society of Scotland or The Law Society of Northern Ireland (Note 2) |
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(3) |
Authorised professional firm not within (1) or (2) which has an auditor appointed under or as a result of a statutory provision other than in the Act |
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(4) |
Bank or building society which in either case carries on designated investment business (Note 2A) |
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(5) |
Bank or building society which in either case does not carry on designated investment business (Note 2A) |
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(5A) |
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(5B) |
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(6) |
Insurer, the Society of Lloyd's, underwriting agent or members' adviser (Note 5)7 |
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(7) |
Investment management firm, personal investment firm (other than a small personal investment firm), UCITS management company, or securities and futures firm (Note 3) |
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(8) |
Small personal investment firm or service company which, in either case, has an auditor appointed under or as a result of a statutory provision other than in the Act |
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(9)8 |
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(10)8 |
Insurance intermediary (other than an exempt insurance intermediary) to which CASS 5 (Client money and mandates) (except for CASS 5.2 (Holding money as agent)) applies (see Note 4)8 |
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(11)8 |
Exempt insurance intermediary and insurance intermediary not subject to SUP 3.1.2 R(10) which has an auditor appointed under or as a result of a statutory provision other than in the Act |
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(12)8 |
Mortgage intermediary or mortgage administrator which has an auditor appointed under or as a result of a statutory provision other than in the Act. |
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Note 1 = This chapter applies to an authorised professional firm in row (1) (and its auditor) as if the firm were of the relevant type in the right-hand column of IPRU(INV) 2.1.4R. |
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Note 2 = In row (2): (a) CASS 2 (Client assets) is treated as applying only if (i) the firm safeguarding and administering investments in connection with managing investments (other than when acting as trustee) or (ii) it safeguarding and administering investments in relation to bonded investments; (b) CASS 4 (Client money and mandates: designated investment business) is treated as applying only if the firm receives or holds client money other than under an arrangement where commission is rebated to the client; but, if CASS 2 or CASS 4 is treated as applying, then SUP 3.10 (Duties of auditors: notification and report on client assets) applies to the whole of the business within the scope of CASS 2 or CASS 4. |
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Note 2A = For this purpose, designated investment business does not include either or both: (a) dealing which falls within the exclusion in article 15 of the Regulated Activities Order (Absence of holding out etc) (or agreeing to do so); and (b) dealing in investments as principal (or agreeing to do so): (i) by a firm whose permission to deal in investments as principal is subject to a limitation to the effect that the firm, in carrying on this regulated activity, is limited to entering into transactions in a manner which, if the firm was an unauthorised person, would come within article 16 of the Regulated Activities Order (Dealing in contractually based investments); and (ii) in a manner which comes within that limitation; having regard to article 4(4) of the Regulated Activities Order (Specified activities: general: core investment services by investment firms). |
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Note 3 = This note applies in relation to an oil market participant to which IPRU(INV) 3 does not apply and in relation to an energy market participant to which IPRU(INV) 3 does not apply. In SUP 3: (a) only SUP 3.1, SUP 3.2 and SUP 3.7 are applicable to such a firm; and (b) only SUP 3.1, SUP 3.2 and SUP 3.8 are applicable to its auditor; and, in each case, only if it has an auditor appointed under or as a result of a statutory provision other than in the Act. |
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Note 4 = The client money audit requirement in SUP 3.1.2 R(10) therefore applies to all insurance intermediaries except:8 • those which do not hold client money or other client assets in relation to insurance mediation activities; or 8 • those which only hold up to, but not exceeding, £30,000 of client money under a statutory trust arising under CASS 5.3.8 Insurance intermediaries which, in relation to insurance mediation activities, hold no more than that amount of client money only on a statutory trust are exempt insurance intermediaries.8 |
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Note (5) = In row (6):7 |
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(a)7 |
SUP 3.1 - SUP 3.7 applies to a managing agent in respect of its own business and in respect of the insurance business of each syndicate which it manages; and7 |
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(b)7 |
SUP 3.1, SUP 3.2 and SUP 3.8 apply to the auditors of a managing agent and the auditors of the insurance business of each syndicate which the managing agent manages.1234567 |
Table of application, notification and vetting fees
(1) Fee payer |
(2) Fee payable |
Due date |
(a) Any applicant for Part IV permission (including an incoming firm applying for top-up permission) |
In respect of a particular application, the highest of the tariffs set out in FEES 3 Annex 1 which apply to that application. |
On or before the application is made |
(b) Any Treaty firm that wishes to exercise a Treaty right to qualify for authorisation under Schedule 4 to the Act (Treaty rights) in respect of regulated activities for which it does not have an EEA right |
(1) Where no certificate has been issued under paragraph 3(4) of Schedule 4 to the Act the fee payable is, in respect of a particular exercise, set out in FEES 3 Annex 1, part 4 (2) Where a certificate in (i) has been issued no fee is payable |
On or before the notice of exercise is given |
(c) Any applicant for a certificate under article 54 of the Regulated Activities Order |
2,000 |
On or before the application is made |
(d) Applicants for an authorisation order for, or recognition of, a collective investment scheme |
FEES 3 Annex 2, part 1 |
On or before the application is made |
(f) Any person seeking an order under section 326(1) of the Act to become a designated professional body. |
10,000 |
30 days after the order is granted |
(g) Any applicant for recognition as a UK recognised body under section 287 or section 288 of the Act |
FEES 3 Annex 3, part 1 |
On or before the date the application is made |
(h) Any applicant for recognition as an overseas recognised body under section 287 or section 288 and section 292 of the Act |
FEES 3 Annex 3, part 2 |
On or before the date the application is made |
(i) An applicant for listing (under the listing rules) |
FEES 3 Annex 4, part 1 |
On or before the date the application is made |
(j) Applicant for approval as sponsor (under the listing rules) |
FEES 3 Annex 4, part 2 |
On or before the date the application is made |
(k) Issuers of tranches from debt issuance programmes and securitised derivative tranches |
FEES 3 Annex 4, part 1 |
An upfront fee is required per tranche for draw downs in the following 12 months |
(l) Under the listing rules, an issuer involved in specific events or transactions during the year where documentation is subject to a transaction vetting |
FEES 3 Annex 5, part 1 |
On or before the date that relevant documentation is first submitted to the FSA |
(m) Under the prospectus rules, an issuer or person requesting approval or vetting of the documents arising in relation to specific events or transactions that it might be involved in during the year |
FEES 3 Annex 5, part 2 |
On or before the date that relevant documentation is first submitted to the FSA |
(n) Applicants to be added to the list of designated investment exchanges |
50,000 |
On or before the date the application is made |
(o) A firm applying for guidance on the availability of a waiver or concession in connection with future rules implementing the revised Basel Capital Accord (including any amendments) |
(1) Unless (2) applies, FEES 3 Annex 6 (2) A firm submitting a second application for guidance described in column (1) within 12 months of the first application (where the fee was paid in accordance with (1)) must pay 50% of the fee applicable to it under FEES 3 Annex 6, but only in respect of that second application |
On or before the date the application is made |
(p) A firm applying for a variation of its Part IV permission |
(1) Unless (2) applies, if the business of the firm will fall within one or more activity groups specified in Part 1 of FEES 4 Annex 1 not applicable before the grant of the variation (if the variation is granted), the fee is 50% of the highest of the tariffs set out in which apply to that application. (2) If the A.12 activity group tariff applied to the firm's business before the variation and the A.13 activity group will apply after variation, no fee is payable |
On or before the date the application is made |