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Statutory Instrument 2001 No. 1335The Financial Services and Markets Act 2000 (Financial Promotion) Order 2001(The document as of February, 2008) STATUTORY INSTRUMENTS2001 No. 1335FINANCIAL SERVICES AND MARKETSThe Financial Services and Markets Act 2000 (Financial Promotion) Order 2001
Whereas this is the first Order to be made under subsections (5), (9) and (10) of section 21 of the Financial Services and Markets Act 2000 [1] and is therefore an Order to which section 429(4) of that Act applies; Whereas a draft of this Order has been approved by resolution of both Houses of Parliament; The Treasury in the exercise of the powers conferred on them by section 21(5), (9) and (10), and section 428(3) of, and paragraph 25 of Schedule 2 to, the Financial Services and Markets Act 2000 and of all other powers enabling them in that behalf hereby make the following Order: - Citation and commencement 1. - (1) This Order may be cited as the Financial Services and Markets Act 2000 (Financial Promotion) Order 2001. (2) Except as provided by paragraph (3), this Order comes into force on the day on which section 19 of the Act comes into force. (3) This Order comes into force -
(b) for the purposes of paragraphs 10 and 26 of Schedule 1 (qualifying credit) nine months after section 19 of the Act comes into force. Interpretation: general
(b) his children and step-children, his parents and step-parents, his brothers and sisters and his step-brothers and step-sisters; and (c) the spouse of any person within sub-paragraph (b);
(b) bodies whose members comprise states including the United Kingdom or another EEA State;
(b) a web site; (c) any programme forming part of a service consisting of the broadcast or transmission of television or radio programmes; (d) any teletext service, that is to say a service consisting of television transmissions consisting of a succession of visual displays (with or without accompanying sound) capable of being selected and held for separate viewing or other use;
(2) References to a person engaging in investment activity are to be construed in accordance with subsection (8) of section 21 of the Act; and for these purposes, "controlled activity" and "controlled investment" in that subsection have the meaning given in this Order.
(b) shares in respect of which information is, with the agreement or approval of any officer of the company, published for the purpose of facilitating deals in the shares indicating prices at which persons have dealt or are willing to deal in them other than persons who, at the time the information is published, are existing members of a relevant class; (c) subject to a marketing arrangement which accords to the company the facilities referred to in section 163(2)(b) of the 1985 Act or article 173(2)(b) of the 1986 Order; or (d) the subject of an offer (whether in the United Kingdom or elsewhere) in relation to which a copy of the prospectus must be delivered to the relevant registrar of companies in accordance with section 64 of the 1985 Act or article 74 of the 1986 Order or Part II of the Public Offers of Securities Regulations 1995[5]. (2) For the purpose of paragraph (1)(b), a person is to be regarded as a member of a relevant class if he was, at the relevant time -
(b) an existing employee of the company; (c) a close relative of such a member or employee; or (d) a trustee (acting in his capacity as such) of a trust, the principal beneficiary of which is a person within any of sub-paragraphs (a), (b) and (c). (3) In this Order references to shares in and debentures of an unlisted company are references to -
(b) in the case of a body corporate which is a company within the meaning of the 1986 Order, shares and debentures within the meaning of that Order; (c) in the case of any other body corporate, investments falling within paragraph 14 or 15 of Schedule 1 to this Order. Definition of controlled activities and controlled investments 4. - (1) For the purposes of section 21(9) of the Act, a controlled activity is an activity which falls within any of paragraphs 1 to 11 of Schedule 1. (2) For the purposes of section 21(10) of the Act, a controlled investment is an investment which falls within any of paragraphs 12 to 27 of Schedule 1. Interpretation: financial promotion restriction 5.In this Order, any reference to the financial promotion restriction is a reference to the restriction in section 21(1) of the Act. Interpretation: communications 6.In this Order -
(b) any reference to a communication being made to another person is a reference to a communication being addressed, whether verbally or in legible form, to a particular person or persons (for example where it is contained in a telephone call or letter); (c) any reference to a communication being directed at persons is a reference to a communication being addressed to persons generally (for example where it is contained in a television broadcast or web site); (d) "communicate" includes causing a communication to be made or directed; (e) a "recipient" of a communication is the person to whom the communication is made or, in the case of a non-real time communication which is directed at persons generally, any person who reads or hears the communication. Interpretation: real time communications
(b) the communication is made or directed by way of a system which in the normal course constitutes or creates a record of the communication which is available to the recipient to refer to at a later time; (c) the communication is made or directed by way of a system which in the normal course does not enable or require the recipient to respond immediately to it. Interpretation: solicited and unsolicited real time communications
(b) takes place in response to an express request from the recipient of the communication. (2) A real time communication is unsolicited where it is made otherwise than as described in paragraph (1).
(ii) because he agrees to standard terms that state that such visits, calls or dialogue will take place, unless he has signified clearly that, in addition to agreeing to the terms, he is willing for them to take place; (b) a communication is solicited only if it is clear from all the circumstance when the call, visit or dialogue is initiated or requested that during the course of the visit, call or dialogue communications will be made concerning the kind of controlled activities or investments to which the communications in fact made relate; (4) Where a real time communication is solicited by a recipient ("R"), it is treated as having also been solicited by any other person to whom it is made at the same time as it is made to R if that other recipient is -
(b) expected to engage in any investment activity jointly with R. Degree of prominence to be given to required indications
(b) in such manner as, depending on the means by which the communication is made or directed, is best calculated to bring the matter in question to the attention of the recipient and to allow him to consider it. Application to qualifying contracts of insurance
(b) an exempt person who is exempt in relation to effecting or carrying out contracts of insurance of the class to which the communication relates; (c) a company which has its head office in an EEA State other than the United Kingdom and which is entitled under the law of that State to carry on there insurance business of the class to which the communication relates; (d) a company which has a branch or agency in an EEA State other than the United Kingdom and is entitled under the law of that State to carry on there insurance business of the class to which the communication relates; (e) a company authorised to carry on insurance business of the class to which the communication relates in any country or territory which is listed in Schedule 2. (2) In this article, references to a class of insurance are references to the class of insurance contract described in Schedule 1 to the Regulated Activities Order into which the effecting and carrying out of the contract to which the communication relates would fall.
(b) a controlled activity falling within any of paragraphs 3 to 11 of Schedule 1, a person may rely on the application of one or more of the exemptions in Parts IV and VI. Communications to overseas recipients 12. - (1) Subject to paragraph (2), the financial promotion restriction does not apply to any communication -
(b) which is directed (whether from inside or outside the United Kingdom) only at persons outside the United Kingdom. (2) Paragraph (1) does not apply to an unsolicited real time communication unless -
(b) it is made for the purposes of a business which is carried on outside the United Kingdom and which is not carried on in the United Kingdom. (3) For the purposes of paragraph (1)(b) -
(b) if the conditions set out in paragraph (4)(c) and (d) are met, a communication directed from a place outside the United Kingdom is to be regarded as directed only at persons outside the United Kingdom; (c) in any other case where one or more of the conditions in paragraph (4)(a) to (e) are met, that fact is to be taken into account in determining whether or not a communication is to be regarded as directed only at persons outside the United Kingdom (but a communication may still be regarded as directed only at persons outside the United Kingdom even if none of the conditions in paragraph (4) is met). (4) The conditions are that -
(b) the communication is accompanied by an indication that it must not be acted upon by persons in the United Kingdom; (c) the communication is not referred to in, or directly accessible from, any other communication which is made to a person or directed at persons in the United Kingdom by or on behalf of the same person; (d) there are in place proper systems and procedures to prevent recipients in the United Kingdom (other than those to whom the communication might otherwise lawfully have been made) engaging in the investment activity to which the communication relates with the person directing the communication, a close relative of his or a member of the same group; (e) the communication is included in -
(ii) a radio or television broadcast or teletext service transmitted principally for reception outside the United Kingdom. (5) For the purpose of paragraph (1)(b), a communication may be treated as directed only at persons outside the United Kingdom even if -
(b) it is also directed, for the purposes of article 49(1)(b), at high net worth persons to whom article 49 applies (but disregarding paragraph (2)(e) of that article for this purpose) and it relates to a controlled activity to which article 49 applies. (6) Where a communication falls within paragraph (5) -
(b) the condition in paragraph (4)(b) is to be construed as requiring an indication that the communication must not be acted upon by persons in the United Kingdom or by persons who do not have professional experience in matters relating to investments or who are not high net worth persons (as the case may be). Communications from customers and potential customers
(b) in order that the customer can acquire a controlled investment from that supplier or be supplied with a controlled service by that supplier. (2) For the purposes of paragraph (1), a controlled service is a service the provision of which constitutes engaging in a controlled activity by the supplier.
(b) is made by the same person who made the first communication; (c) is made to a recipient of the first communication; (d) relates to the same controlled activity and the same controlled investment as the first communication; and (e) is made within 12 months of the recipient receiving the first communication. (3) A communication made or directed before this article comes into force is to be treated as a first communication falling within paragraph (1) if it would have fallen within that paragraph had it been made or directed after this article comes into force.
(b) an exempt person where the communication relates to a controlled activity which is also a regulated activity in relation to which he is an exempt person. (2) The requirements of this paragraph are that -
(b) A does not receive from any person other than the recipient any pecuniary reward or other advantage arising out of his making the introduction; and (c) it is clear in all the circumstances that the recipient, in his capacity as an investor, is not seeking and has not sought advice from A as to the merits of the recipient engaging in investment activity (or, if the client has sought such advice, A has declined to give it, but has recommended that the recipient seek such advice from an authorised person). Exempt persons
(b) is made or directed by an exempt person; and (c) is for the purposes of that exempt person's business of carrying on a controlled activity which is also a regulated activity in relation to which he is an exempt person. Generic promotions
(b) does not identify (directly or indirectly) any person as a person who carries on a controlled activity in relation to that investment. Mere conduits
(b) the content of the communication is wholly devised by another person; and (c) the nature of the service provided by him in relation to the communication is such that he does not select, modify or otherwise exercise control over its content prior to its transmission or receipt. (3) For the purposes of paragraph (2)(c) a person does not select, modify or otherwise exercise control over the content of a communication merely by removing or having the power to remove material -
(b) in response to a request to a body which is empowered by or under any enactment to make such a request; or (c) when otherwise required to do so by law. Investment professionals
(b) may reasonably be regarded as directed only at such recipients. (2) For the purposes of paragraph (1)(b), if all the conditions set out in paragraph (4)(a) to (c) are met in relation to the communication, it is to be regarded as directed only at investment professionals.
(b) the communication is accompanied by an indication that persons who do not have professional experience in matters relating to investments should not rely on it; (c) there are in place proper systems and procedures to prevent recipients other than investment professionals engaging in the investment activity to which the communication relates with the person directing the communication, a close relative of his or a member of the same group. (5) "Investment professionals" means -
(b) an exempt person where the communication relates to a controlled activity which is a regulated activity in relation to which the person is exempt; (c) any other person -
(ii) who it is reasonable to expect will carry on such activity for the purposes of a business carried on by him; (d) a government, local authority (whether in the United Kingdom or elsewhere) or an international organisation; (6) For the purposes of paragraph (1), a communication may be treated as made only to or directed only at investment professionals even if it is also made to or directed at other persons to whom it may lawfully be communicated.
(b) the communication is contained in a qualifying publication. (2) Paragraph (1) does not apply to a communication requiring disclosure unless -
(b) the authors are subject to proper systems and procedures which prevent the publication of communications requiring disclosure without the explanation referred to in sub-paragraph (a); or (c) the publication in which the communication appears falls within the remit of the Code of Practice issued by the Press Complaints Commission. (3) For the purposes of this article -
(b) a communication requires disclosure if an author of the communication or a close relative of his is likely to obtain a financial benefit or avoid a financial loss if people act in accordance with the invitation or inducement contained in the communication; (c) a "qualifying publication" is a publication or service of the kind mentioned in paragraph (1) or (2) of article 54 of the Regulated Activities Order and which is of the nature described in that article, and for the purposes of this article, a certificate given under article 54(3) of the Regulated Activities Order and not revoked is conclusive evidence of the matters certified. Interpretation: relevant insurance activity 21.In this Part, a "relevant insurance activity" means a controlled activity falling within paragraph 2 of Schedule 1 carried on in relation to an investment falling within paragraph 13 of that Schedule where that investment is not a qualifying contract of insurance. Deposits: non-real time communications 22. - (1) If the requirements of paragraph (2) are met, the financial promotion restriction does not apply to any non-real time communication which relates to a controlled activity falling within paragraph 1 of Schedule 1. (2) The requirements of this paragraph are that the communication is accompanied by an indication -
(b) of the country or territory in which a deposit-taker that is a body corporate is incorporated (described as such); (c) if different, of the country or territory in which the deposit-taker's principal place of business is situated (described as such); (d) whether or not the deposit-taker is regulated in respect of his deposit-taking business; (e) if the deposit-taker is so regulated, of the name of the regulator in the deposit-taker's principal place of business, or if there is more than one such regulator, the prudential regulator; (f) whether any transaction to which the communication relates would, if entered into by the recipient and the deposit-taker, fall within the jurisdiction of any dispute resolution scheme or deposit guarantee scheme and if so, identifying each such scheme; (g) the necessary capital information. (3) In this article -
(b) in relation to a deposit-taker which is not a body corporate, either the amount of the total assets less liabilities (described as such) or a statement that the amount of its total assets exceeds a particular amount (stating it) and that its total liabilities do not exceed a particular amount (stating it). Deposits: real time communications
(b) of the country or territory in which the insurer is incorporated (described as such); (c) if different, of the country or territory in which the insurer's principal place of business is situated (described as such); (d) whether or not the insurer is regulated in respect of its insurance business; (e) if the insurer is so regulated, of the name of the regulator of the insurer in its principal place of business or, if there is more than one such regulator, the name of the prudential regulator; (f) whether any transaction to which the communication relates would, if entered into by the recipient and the insurer, fall within the jurisdiction of any dispute resolution scheme or compensation scheme and if so, identifying each such scheme. (3) In this article "full name", in relation to a person, means the name under which that person carries on business and, if different, that person's corporate name.
(b) a contract that covers large risks. (2) "Large risks" means -
(b) risks falling within paragraph 14 (credit) or 15 (suretyship) of that Schedule provided that the risks relate to a business carried on by the recipient; (c) risks falling within paragraph 3 (land vehicles), 8 (fire and natural forces), 9 (damage to property), 10 (motor vehicle liability), 13 (general liability) or 16 (miscellaneous financial loss) of that Schedule provided that the risks relate to a business carried on by the recipient and that the condition specified in paragraph (3) is met in relation to that business. (3) The condition specified in this paragraph is that at least two of the three following criteria were exceeded in the most recent financial year for which information is available prior to the making of the communication -
(b) the net turnover (within the meaning given to "turnover" by section 262(1) of the 1985 Act or article 270(1) of the 1986 Order) was 12.8 million euros; (c) the number of employees (within the meaning given by section 247(6) of the 1985 Act or article 255(6) of the 1996 Order) was 250; and for a financial year which is a company's financial year but not in fact a year, the net turnover of the recipient shall be proportionately adjusted. Application of exemptions in this Part 27.Except where otherwise stated, the exemptions in this Part apply to communications which relate to -
(b) controlled activities falling within any of paragraphs 3 to 11 of Schedule 1. One off non-real time communications and solicited real time communications
(b) the identity of the product or service to which the communication relates has been determined having regard to the particular circumstances of the recipient; (c) the communication is not part of an organised marketing campaign. (4) Notwithstanding article 11, the financial promotion restriction does not apply to a one off solicited real time communication relating to the controlled activity falling within paragraph 10 of Schedule 1 (or within paragraph 11 in so far as it relates to that activity) even if the communication also relates to the controlled activity falling within paragraph 1 of that Schedule.
Overseas communicators: non-real time communications to previously overseas customers
(b) at the time the earlier business was done, the overseas communicator had on a former occasion done business with the customer, being business of the same description as the business to which the communication relates, and on that former occasion the customer was neither resident in the United Kingdom nor had a place of business there. (3) For the purposes of this article, an overseas communicator has done business with a customer if, in the course of carrying on his relevant investment activities outside the United Kingdom, he has -
(b) provided, outside the United Kingdom, a service to the customer as described in paragraph 6 of Schedule 1 (whether or not that paragraph was in force at the time the business was done); or (c) given, outside the United Kingdom, any advice to the customer as described in paragraph 7 of that Schedule (whether or not that paragraph was in force at the time the business was done). Overseas communicators: unsolicited real time communications to previously overseas customers
(b) that the protections conferred by or under the Act may not apply to any investment activity that may be engaged in as a result of the communication; and (c) whether any transaction between them resulting from the communication would fall within the jurisdiction of any dispute resolution scheme or compensation scheme or, if there is no such scheme, of that fact. (4) Where the earlier occasion referred to in paragraph (3) occurs before this article comes into force, the references in that paragraph to the protections conferred by or under the Act are to be construed as references to the protections to be conferred by or under the Act.
(b) that the protections conferred by or under the Act may not apply to any investment activity that may be engaged in as a result of the communication; and (c) whether any transaction between them resulting from the communication would fall within the jurisdiction of any dispute resolution scheme or compensation scheme or, if there is no such scheme, of that fact. (4) The requirements of this paragraph are that the recipient, after being given a proper opportunity to consider the information given to him in accordance with paragraph (3), has clearly signified that he understands the warnings referred to in paragraph (3)(a) and (b) and that he accepts that he will not benefit from the protections referred to.
(b) is communicated by and relates only to controlled investments issued by -
(ii) any local authority (in the United Kingdom or elsewhere); (iii) any international organisation; (iv) the Bank of England; (v) the European Central Bank; (vi) the central bank of any country or territory outside the United Kingdom. Industrial and provident societies
(b) is communicated by an industrial and provident society; and (c) relates only to an investment falling within paragraph 15 of Schedule 1 which is issued by the society in question. Nationals of EEA States other than United Kingdom
(b) is communicated by a national of an EEA State other than the United Kingdom in the course of any controlled activity lawfully carried on by him in that State; and (c) conforms with any rules made by the Authority under section 145 of the Act (financial promotion rules) which are relevant to a communication of that kind. Financial markets
(b) which is communicated by a relevant market; and (c) to which paragraph (2) or (3) applies. (2) This paragraph applies to a communication if -
(b) it does not identify (directly or indirectly) -
(ii) any particular person as a person through whom transactions on the market may be effected. (3) This paragraph applies to a communication if -
(b) it identifies the investment as one that may be traded or dealt in on the market. (4) "Relevant market" means a market which -
(b) is specified in, or is established under the rules of an exchange specified in, Part II, III or IV of that Schedule. Persons in the business of placing promotional material
(b) to persons in the United Kingdom who are participants in any such recognised scheme operated by the person making the communication, and which relates only to such recognised schemes as are operated by that person or to units in such schemes.
(b) is communicated by a body corporate ("A") that is not an open-ended investment company; (c) is made to or may reasonably be regarded as directed at persons entitled to bearer instruments issued by A, a parent undertaking of A or a subsidiary undertaking of A; and (d) is required or permitted by the rules of a relevant market to be communicated to holders of instruments of a class which consists of or includes the bearer instruments in question. (2) "Bearer instrument" means any of the following investments title to which is capable of being transferred by delivery -
(b) any investment falling within paragraph 17 or 18 of that Schedule which confers rights in respect of an investment falling within paragraph 14 or 15. (3) For the purpose of this article, a bearer instrument falling within paragraph 17 or 18 of Schedule 1 is treated as issued by the person ("P") who issued the investment in respect of which the bearer instrument confers rights if it is issued by -
(b) a person acting on behalf of, or pursuant to arrangements made with, P. (4) "Relevant market", in relation to instruments of any particular class, means any market on which instruments of that class can be traded or dealt in and which -
(b) is specified in, or established under the rules of an exchange specified in, Part II or III of that Schedule. Bearer instruments: promotions to existing holders
(b) is communicated by a body corporate ("A") that is not an open-ended investment company; (c) is made to or may reasonably be regarded as directed at persons entitled to bearer instruments issued by A, a parent undertaking of A or a subsidiary undertaking of A; (d) relates only to instruments of a class which consists of or includes either the bearer instruments to which the communication relates or instruments in respect of which those bearer instruments confer rights; and (e) is capable of being accepted or acted on only by persons who are entitled to instruments (whether or not bearer instruments) issued by A, a parent undertaking of A or a subsidiary undertaking of A. (2) "Bearer instruments" has the meaning given by article 41.
(b) a person acting on behalf of, or pursuant to arrangements made with, P. Members and creditors of certain bodies corporate
(b) to persons whom the person making the communication believes on reasonable grounds to be persons to whom paragraph (2) applies, and which relates only to a relevant investment which is issued or to be issued by A, or by an undertaking ("U") in the same group as A that is not an open-ended investment company.
(b) a person who is entitled to a relevant investment which is issued by A or by U; (c) a person who is entitled, whether conditionally or unconditionally, to become a member of A or U but who has not yet done so; (d) a person who is entitled, whether conditionally or unconditionally, to have transferred to him title to a relevant investment which is issued by A or U but has not yet acquired title to the investment. (3) "Relevant investment" means -
(b) an investment falling within paragraph 17 or 18 of that Schedule so far as relating to any investments within sub-paragraph (a). (4) For the purposes of this article, an investment falling within paragraph 17 or 18 of Schedule 1 is treated as issued by the person ("P") who issued the investment in respect of which the instrument confers rights if it is issued by -
(b) a person acting on behalf of, or pursuant to arrangements made with, P. Members and creditors of open-ended investment companies
(b) is communicated by an open-ended investment company; (c) is communicated to persons whom the person making or directing the communication believes on reasonable grounds to be persons to whom paragraph (2) applies; and (d) relates only to an investment falling within paragraph 15, 17 or 19 of Schedule 1 which is issued or to be issued by the open-ended investment company. (2) This paragraph applies to -
(b) a person who is entitled to an investment falling within paragraph 15, 17 or 19 of Schedule 1 which is issued by the open-ended investment company; (c) a person who is entitled, whether conditionally or unconditionally, to become a member of the open-ended investment company but who has not yet done so; (d) a person who is entitled, whether conditionally or unconditionally, to have transferred to him title to an investment falling within paragraph 15, 17 or 19 of Schedule 1 which is issued by the open-ended investment company but has not yet acquired title to the investment. (3) For the purposes of this article, an investment falling within paragraph 17 of Schedule 1 is treated as issued by the person ("P") who issued the investment in respect of which the instrument confers rights if it is issued by -
(b) a person acting on behalf of, or pursuant to arrangements made with, P. Group companies
(b) accompanied by an indication that the qualifying credit to which it relates is only available to bodies corporate. Persons in the business of disseminating information
(b) a person whilst acting in the capacity of director, officer or employee of a person falling within sub-paragraph (a) being a person whose responsibilities when acting in that capacity involve him in the business referred to in that sub-paragraph; (c) any person to whom the communication may otherwise lawfully be made. Certified high net worth individuals
(b) is made to a certified high net worth individual; (c) does not invite or induce the recipient to engage in investment activity with the person who has signed the certificate of high net worth referred to in paragraph (2)(a); and
(2) "Certified high net worth individual" means any individual -
(b) 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:
(3) For the purposes of paragraph (2)(a) a certificate of high net worth -
(b) is current if it is signed and dated within the period of twelve months ending with the day on which the communication is made; (c) must state that in the opinion of the person signing the certificate, the person to whom the certificate relates either -
(ii) held, throughout the financial year immediately preceding the date on which the certificate is signed, net assets to the value of not less than Ј250,000; (d) must be signed by the recipient's accountant or by the recipient's employer. (4) The requirements of this paragraph are that the communication is accompanied by an indication -
(b) of the requirements that must be met for a person to qualify as a certified high net worth individual; (c) that the content of the communication has not been approved by an authorised person and that such approval is, unless this exemption or any other exemption applies, required by section 21 of the Act; (d) that reliance on the communication for the purpose of engaging in any investment activity may expose the individual to a significant risk of losing all of the property invested; (e) that any person who is in any doubt about the investment to which the communication relates should consult an authorised person specialising in advising on investments of the kind in question. (5) An investment falls within this paragraph if -
(b) it is an investment falling within 15 of Schedule 1 being an instrument acknowledging the indebtedness of an unlisted company; (c) it is an investment falling within paragraphs 17 or 18 of Schedule 1 conferring entitlement or rights with respect to investments falling within sub-paragraph (a) or (b); (d) it comprises units in a collective investment scheme being a scheme which invests wholly or predominantly in investments falling within sub-paragraph (a) or (b); (e) it is an investment falling within paragraph 21 of Schedule 1 to acquire or dispose of an investment falling within sub-paragraph (a), (b) or (c); (f) it is an investment falling within paragraph 22 of Schedule 1 being rights under a contract for the sale of an investment falling within sub-paragraph (a), (b) or (c); (g) it is an investment falling within paragraph 23 of Schedule 1 being a contract relating to, or to fluctuations in the value or price of, an investment falling within sub-paragraph (a), (b) or (c), provided in each case that it is an investment under the terms of which the investor cannot incur a liability or obligation to pay or contribute more than he commits by way of investment.
(b) any rights of his under a qualifying contract of insurance; or (c) any benefits (in the form of pensions or otherwise) which are payable on the termination of his service or on his death or retirement and to which he is (or his dependents are), or may be, entitled. High net worth companies, unincorporated associations etc.
(b) may reasonably be regarded as directed only at persons to whom paragraph (2) applies. (2) This paragraph applies to -
(ii) in the case of any other body corporate, not less than Ј5 million; (b) any unincorporated association or partnership which has net assets of not less than Ј5 million; (3) For the purposes of paragraph (1)(b) -
(b) in any other case in which one or more of those conditions are met, that fact is to be taken into account in determining whether the communication is directed at persons to whom paragraph (2) applies (but a communication may still be regarded as so directed even if none of the conditions in paragraph (4) is met). (4) The conditions are that -
(b) the communication includes an indication that persons of any other description should not act upon it; (c) there are in place proper systems and procedures to prevent recipients other than persons to whom paragraph (2) applies engaging in the investment activity to which the communication relates with the person directing the communication, a close relative of his or a member of the same group. (5) "Called-up share capital" has the meaning give in the 1985 Act or in the 1986 Order.
(b) has been Ј10 million or more at any time during the year immediately preceding the date on which the communication in question was first made or directed. (7) "Net assets" has the meaning give by section 264 of the 1985 Act or the equivalent provision of the 1986 Order.
(b) 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:
(2) If the requirements of paragraph (3) are met, the financial promotion restriction does not apply to any communication which -
(b) does not invite or induce the recipient to engage in investment activity with the person who has signed the certificate referred to in paragraph (1)(a); and (c) relates only to a description of investment in respect of which that investor is certified. (3) The requirements of this paragraph are that the communication is accompanied by an indication -
(b) of the requirements that must be met for a person to qualify as a certified sophisticated investor; (c) that the content of the communication has not been approved by an authorised person and that such approval is, unless this exemption or any other exemption applies, required by section 21 of the Act; (d) that reliance on the communication for the purpose of engaging in any investment activity may expose the individual to a significant risk of losing all of the property invested or of incurring additional liability; (e) that any person who is in any doubt about the investment to which the communication relates should consult an authorised person specialising in advising on investments of the kind in question. (4) For the purposes of paragraph (1)(a), a certificate is current if it is signed and dated not more than three years before the date on which the communication is made.
(ii) high net worth persons falling within article 49(2)(a) to (d); (iii) certified sophisticated investors within the meaning of article 50; and (b) relates only to an investment under the terms of which a person cannot incur a liability or obligation to pay or contribute more than he commits by way of investment. Common interest group of a company
(b) what is done with the proceeds arising from any investment to which the communication relates. (2) If the requirements of paragraphs (3) and either (4) or (5) are met, the financial promotion restriction does not apply to any communication which -
(b) is made only to persons who are members of a common interest group of a company, or may reasonably be regarded as directed only at such persons; and (c) relates to investments falling within paragraph 14 or 15 of Schedule 1 which are issued by that company. (3) The requirements of this paragraph are that the communication is accompanied by an indication -
(b) that the directors of the company (or its promoters named in the communication) have not limited their liability with respect to the communication; and (c) that any person who is in any doubt about the investment to which the communication relates should consult an authorised person specialising in advising on investments of the kind in question. (4) The requirements of this paragraph are that the communication is accompanied by an indication -
(b) describing the means by which such information can be accessed. (5) The requirements of this paragraph are that the communication is accompanied by an indication that any person considering subscribing for the investments in question should regard any subscription as made primarily to assist the furtherance of the company's objectives (other than any purely financial objectives) and only secondarily, if at all, as an investment.
(b) in any other case in which one or more of those conditions are met, that fact shall be taken into account in determining whether the communication is directed at persons who are members of the common interest group (but a communication may still be regarded as directed only at such persons even if none of the conditions in paragraph (7) is met). (7) The conditions are that -
(b) the communication is accompanied by an indication that it must not be acted upon by persons who are not members of the common interest group; (c) there are in place proper systems and procedures to prevent recipients other than members of the common interest group engaging in the investment activity to which the communication relates with the person directing the communication, a close relative of his or a member of the same group. (8) Person are not to be regarded as having an interest of the kind described in paragraph (1) if the only reason why they would be so regarded is that -
(b) they all carry on a particular trade or profession; or (c) they are persons with whom the company has an existing business relationship, whether by being its clients, customers, contractors, suppliers or otherwise. Settlors, trustees and personal representatives
(b) a trustee of the trust, a fellow trustee or a fellow personal representative (as the case may be), if the communication is made for the purposes of the trust or estate.
(b) between a beneficiary under a trust, will or intestacy and another beneficiary under the same trust, will or intestacy, if the communication relates to the management or distribution of that trust fund or estate.
(b) is made to a recipient who has, prior to the communication being made, engaged P to provide professional services, where the controlled activity to which the communication relates is an excluded activity which would be undertaken by P for the purposes of, and incidental to, the provision by him of professional services to or at the request of the recipient.
(b) article 67 of the Regulated Activities Order. Remedy following report by Parliamentary Commissioner for Administration
(b) supplying services to such premises. (2) The financial promotion restriction does not apply to any non-real time communication or solicited real time communication if it relates to an investment falling within paragraph 14 of Schedule 1 which -
(b) is to be acquired by any person in connection with the acquisition of an interest in the premises in question. Annual accounts and directors' report
(b) is accompanied by any report which is prepared and approved by the directors of such a body corporate under -
(ii) the corresponding Northern Ireland enactment; or (iii) the law of an EEA State other than the United Kingdom which corresponds to the provisions mentioned in paragraph (i) or (ii). (2) The requirements of this paragraph are that the communication -
(b) does not advise persons to engage in any of the activities within sub-paragraph (a). (3) The requirements of this paragraph are that the communication does not contain any invitation to persons to -
(b) make use of any services provided by that body corporate (or by any named person) in the course of carrying on such activity. (4) The requirements of this paragraph are that the communication does not contain any inducement relating to an investment other than one issued by the body corporate (or another body corporate in the same group) which falls within -
(b) paragraph 17 or 18 of that Schedule, so far as relating to any investments within sub-paragraph (a). (5) The requirements of this paragraph are that the communication does not contain any reference to -
(b) the yield on such investments, unless it is also accompanied by an indication that past performance cannot be relied on as a guide to future performance.
(b) accounts produced by virtue of the corresponding Northern Ireland enactment (or of that enactment as applied by virtue of any other enactment); (c) a summary financial statement prepared under section 251 of the 1985 Act[9]; (d) accounts delivered to the registrar under Chapter II of Part XXIII of the 1985 Act[10]; (e) accounts which are produced or published by virtue of the law of an EEA State other than the United Kingdom and which correspond to accounts within any of sub-paragraphs (a) to (d). Participation in employee share schemes
(b) investments falling within paragraph 17 or 18 of that Schedule so far as relating to any investments within sub-paragraph (a); or (c) investments falling within paragraph 27 so far as relating to any investments within sub-paragraph (a) or (b). (2) "Employee share scheme", in relation to any investments issued by C, means arrangements made or to be made by C or by a person in the same group as C to enable or facilitate -
(ii) the wives, husbands, widows, widowers, or children or step children under the age of eighteen of such employees or former employees; or (b) the holding of those investments by, or for the benefit of, such persons. (3) "Relevant trustee" means a person who, in pursuance of an actual or proposed employee share scheme, holds as trustee or will hold as trustee investments issued by C.
(2) The financial promotion restriction does not apply to any non-real time communication or any solicited real time communication made by a supplier to a customer of his for the purposes of, or in connection with, the sale of goods or supply of services or a related sale or supply.
(b) investments falling within paragraph 27 of Schedule 1 so far as relating to investments within paragraph (a). Sale of body corporate
(b) either -
(ii) those conditions are not met, but the object of the transaction may nevertheless reasonably be regarded as being the acquisition of day to day control of the affairs of the body corporate. (3) The conditions mentioned in paragraph (2)(b) are that -
(b) the shares, together with any already held by the person acquiring them, consist of or include at least that percentage of such shares; and (c) in either case, the acquisition or disposal is, or is to be, between parties each of whom is a body corporate, a partnership, a single individual or a group of connected individuals. (4) "A group of connected individuals" means -
(ii) a close relative of any such director or manager; or (iii) a person acting as trustee for any person falling within paragraph (i) or (ii); and (b) in relation to a party acquiring shares in a body corporate, a single group of persons each of whom is -
(ii) a close relative of any such person; or (iii) a person acting as trustee for any person falling within paragraph (i) or (ii). (5) "Voting shares", in relation to a body corporate, means shares carrying voting rights attributable to share capital which are exercisable in all circumstances at any general meeting of that body corporate.
(b) for all the debentures of such a company (other than any debentures already held by or on behalf of the person making the offer). (3) Shares in or debentures of an unlisted company are to be regarded as being held by or on behalf of the person making the offer if the person who holds them, or on whose behalf they are held, has agreed that an offer should not be made in respect of them.
(b) relates to investments falling within paragraph 17 or 18 of Schedule 1 so far as relating to the shares in or debentures of the unlisted company which are the subject of the offer. Takeovers of relevant unlisted companies: application forms
(b) investments falling within paragraph 17 or 18 of Schedule 1 so far as relating to the shares in or debentures of the company which are the subject of the offer. Promotions required or permitted by market rules
(b) relates to an investment which falls within any of paragraphs 14 to 18 of Schedule 1 and which is permitted to be traded or dealt in on a relevant market; and (c) is required or permitted to be communicated by -
(ii) a body which regulates the market; or (iii) a body which regulates offers or issues of investments to be traded on such a market. (2) "Relevant market" means a market which -
(b) is specified in, or established under the rules of an exchange specified in, Part II or III of that Schedule. Promotions in connection with admission to certain EEA markets
(b) which a relevant EEA market requires to be communicated before an investment can be admitted to trading on that market; (c) which, if it were included in a prospectus issued in accordance with Part II of the Public Offers of Securities Regulations 1995, would be required to be communicated by those Regulations; and (d) which is not accompanied by any information other than information which is required or permitted to be published by the rules of that market. (2) In this article "relevant EEA market" means any market on which investments can be traded or dealt in and which -
(b) is specified in, or established under the rules of an exchange specified in, Part II of that Schedule. Promotions of securities already admitted to certain markets
(b) paragraph 17 or 18 of that Schedule so far as relating to any investment mentioned in sub-paragraph (a);
(b) is specified in, or established under the rules of an exchange specified in, Part II or III of that Schedule. (2) If the requirements of paragraphs (3) to (6) are met, the financial promotion restriction does not apply to any communication which is -
(b) communicated by a body corporate ("A"), other than an open-ended investment company; and (c) relates only to investments issued by A or by another body corporate in the same group, if relevant investments issued by A or by any parent undertaking of A are permitted to be traded, or dealt in, on a relevant market.
(b) does not advise persons to engage in one of the activities within sub-paragraph (a). (4) The requirements of this paragraph are that the communication is not, and is not accompanied by, an invitation to -
(b) make use of any services provided by A (or by any named person) in the course of carrying on such activity. (5) The requirements of this paragraph are that the communication is not, and is not accompanied by, an inducement relating to a relevant investment other than one issued by A (or another body corporate in the same group).
(b) the yield on such investments, unless it is also accompanied by an indication that past performance cannot be relied on as a guide to future performance.
(b) supplementary listing particulars; (c) a prospectus approved in accordance with listing rules made under section 84 or 87 of the Act; (d) a supplementary prospectus approved in accordance with listing rules made for the purposes of section 81 of the Act as applied by section 86 or 87; or (e) any other document required or permitted to be published by listing rules under Part VI of the Act. (2) In this article "listing particulars" and "listing rules" have the meaning given by Part VI of the Act.
(b) it gives other details for contacting that person; (c) it states the nature and the nominal value of the securities to which the prospectus or supplementary prospectus relates, the number offered and the price at which they are offered; (d) it states that a prospectus or supplementary prospectus is or will be available (and, if it is not yet available, when it is expected to be); (e) it gives instructions for obtaining a copy of the prospectus or supplementary prospectus. (2) In this article -
(b) references to a prospectus or supplementary prospectus are references to a prospectus or supplementary prospectus which is published in accordance with Part II of the Public Offers of Securities Regulations 1995. Approval of communication prior to Order coming into force 74. - (1) The financial promotion restriction does not apply to a communication which falls within paragraph (2) or (3). (2) A communi |