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Statutory Instrument 2005 No. 1529The Financial Services and Markets Act 2000 (Financial Promotion) Order 2005(The document as of February, 2008) STATUTORY INSTRUMENTS2005 No. 1529FINANCIAL SERVICES AND MARKETSThe Financial Services and Markets Act 2000 (Financial Promotion) Order 2005
The Treasury, in exercise of the powers conferred on them by section 21(5), (6), (9) and (10), and section 428(3) of, and paragraph 25 of Schedule 2 to, the Financial Services and Markets Act 2000[1], hereby make the following Order: Citation and commencement 1.This Order may be cited as the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 and comes into force on 1st July 2005. Interpretation: general 2.—(1) In this Order, except where the context otherwise requires—
(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 or similar system for the electronic display of information; (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; or (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. (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 orally 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; (f) "electronic commerce communication" means a communication, the making of which constitutes the provision of an information society service; (g) "incoming electronic commerce communication" means an electronic commerce communication made from an establishment in an EEA State other than the United Kingdom; (h) "outgoing electronic commerce communication" means an electronic commerce communication made from an establishment in the United Kingdom to a person in an EEA State other than the United Kingdom. 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 circumstances 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. Interpretation: outgoing electronic commerce communications
(b) any reference in article 68(1) or 71 to rules or legislation includes a reference to provisions corresponding to those rules or legislation in the law of an EEA State other than the United Kingdom; (c) any reference in article 49 to an amount in pounds sterling includes a reference to an equivalent amount in another currency. (2) For the purposes of the application of article 49 to outgoing electronic commerce communications, any reference in section 264(2) or 737 of the 1985 Act (or the equivalent provisions in the 1986 Order) to a body corporate or company includes a reference to a body corporate or company registered under the law of an EEA State other than the United Kingdom.
(b) any reference in that section to an investment exchange includes a reference to an investment exchange which is recognised as an investment exchange under the law of an EEA State other than the United Kingdom. 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 or 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.
(b) a relevant insurance activity, a person may rely on one or more of the exemptions in Parts IV and V; and, where a communication relates to any such activity and also to an activity mentioned in paragraph (1)(a) or (b), a person may rely on one or more of the exemptions in Parts IV and V in respect of the former activity and on one or more of the exemptions in Parts V and VI in respect of the latter activity. Communications to overseas recipients 12.—(1) Subject to paragraphs (2) and (7), 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 made to a person or directed at persons in the United Kingdom by the person directing the communication; (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 by the person directing it or a member of the same 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; (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; (c) it is a communication to which article 31 applies. (6) Where a communication falls within paragraph (5)(a) or (b)—
(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 except by persons who have professional experience in matters relating to investments or who are not high net worth persons (as the case may be); (c) the condition in paragraph (4)(c) will not apply where the other communication referred to in that paragraph is made to a person or directed at a person in the United Kingdom to whom paragraph (5) applies. (7) Paragraph (1) does not apply to an outgoing electronic commerce communication.
(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, or on behalf of, 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) The provisions of this article only apply in the case of a person who makes or directs a communication on behalf of another where the first communication is made by that other person.
(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. (2) The financial promotion restriction does not apply to any unsolicited real time communication made by a person ("AR") who is an appointed representative (within the meaning of section 39(2) of the Act) where—
(ii) in relation to which AR is exempt from the general prohibition by virtue of that section; and (b) the communication is one which, if it were made by P, would comply 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. 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. Communications caused to be made or directed by unauthorised persons
(b) it is a real-time communication. 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. (4) Nothing in paragraph (1) prevents the application of the financial promotion restriction in so far as it relates to the person who has caused the communication to be made or directed.
(b) the conditions mentioned in the paragraph in question, to the extent that they are applicable at the time of, or prior to, the making of the communication, are or have been met at that time. 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; and (c) in the case of a communication requiring disclosure, one of the conditions in paragraph (2) is met. (2) The conditions in this paragraph are that—
(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 qualifying publication in which the communication appears falls within the remit of—
(ii) the OFCOM Broadcasting Code; or (iii) the Producers' Guidelines issued by the British Broadcasting Corporation. (3) For the purposes of this article, a communication requires disclosure if—
(b) the communication relates to a controlled investment of a kind falling within paragraph (4); and (c) the communication identifies directly a person who issues or provides the controlled investment to which the communication relates. (4) A controlled investment falls within this paragraph if it is—
(b) an investment falling within paragraph 21 of that Schedule (options) to acquire or dispose of an investment falling within sub-paragraph (a); (c) an investment falling within paragraph 22 of that Schedule (futures) being rights under a contract for the sale of an investment falling within sub-paragraph (a); or (d) an investment falling within paragraph 23 of that Schedule (contracts for differences etc.) being rights under a contract relating to, or to fluctuations in, the value or price of an investment falling within sub-paragraph (a). (5) For the purposes of this article—
(b) 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 paragraph (3) of article 54 of that Order and not revoked is conclusive evidence of the matters certified; (c) the members of a person's family are his spouse and any children of his under the age of 18 years. Promotion broadcast by company director etc.
(ii) a controlled investment issued or provided by an authorised person in the same group as U; (b) the communication—
(ii) is displayed in writing only because it forms part of an interactive dialogue to which D is a party and in the course of which D is expected to respond immediately to questions put by a recipient of the communication; (c) the communication is not part of an organised marketing campaign; and (2) For the purposes of this article, a "qualifying service" is a service—
(b) displayed on a web site (or similar system for the electronic display of information) comprising regularly updated news and information, provided that the principal purpose of the service, taken as a whole and including any advertisements and other promotional material contained in it, is neither of the purposes described in article 54(1)(a) or (b) of the Regulated Activities Order.
(b) a communication consisting of an invitation or inducement to enter into a contract of insurance, where—
(ii) the insurance falls within the scope of any of the insurance directives; or (c) an unsolicited communication made by electronic mail. (3) In this article, "UCITS directive scheme" means an undertaking for collective investment in transferable securities which is subject to Directive 85/611/EEC of the Council of the European Communities of 20 December 1985 on the co-ordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities[5], and has been authorised in accordance with Article 4 of that Directive. 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 1986 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. One off unsolicited real time communications
(b) the communicator believes on reasonable grounds that the recipient understands the risks associated with engaging in the investment activity to which the communication relates; (c) at the time that the communication is made, the communicator believes on reasonable grounds that the recipient would expect to be contacted by him in relation to the investment activity to which the communication relates. (3) Paragraphs (2) and (3) of article 28 apply in determining whether a communication is a one off communication for the purposes of this article as they apply for the purposes of article 28.
(b) is made for the purpose of, or with a view to, introducing the recipient to a person ("N") who is—
(ii) an appointed representative, where the controlled activity to which the communication relates is also a regulated activity in respect of which he is exempt from the general prohibition, or (iii) an overseas person who carries on the controlled activity to which the communication relates. (2) The requirements of this paragraph are that the maker of the communication ("M")—
(b) before making the introduction, discloses to the recipient such of the information mentioned in paragraph (3) as applies to M. (3) That information is—
(b) details of any payment which M will receive from N, by way of fee or commission, for introducing the recipient to N; (c) an indication of any other reward or advantage received or to be received by M that arises out of his making introductions to N. (4) In this article, "overseas person" means a person who carries on controlled activities which fall within paragraph 10, 10A or 10B of Schedule 1, but who does not carry on any such activity, or offer to do so, from a permanent place of business maintained by him in the United Kingdom.
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. Overseas communicators: unsolicited real time communications to knowledgeable 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) 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, or to be 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 issued, or to be 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 purposes 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 or directing 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, or to be issued, by A or by U; (c) a person who is entitled, whether conditionally or unconditionally, to become a member of A or of 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 by 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, or on behalf of, a body corporate ("A") that is 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 A. (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, or to be issued, by A; (c) a person who is entitled, whether conditionally or unconditionally, to become a member of A 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 A 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 an individual whom the person making the communication believes on reasonable grounds to be a certified high net worth individual, and (c) relates only to one or more investments falling within paragraph (8). (2) "Certified high net worth individual" means an individual who has signed, within the period of twelve months ending with the day on which the communication is made, a statement complying with Part I of Schedule 5.
(b) a warning in accordance with paragraphs (5) and (6) (d) to (h) is sent to the recipient of the communication within two business days of the day on which the communication is made. (5) The warning must be in the following terms—
But where a warning is sent pursuant to paragraph (4)(b), for the words "this promotion" in both places where they occur there must be substituted wording which clearly identifies the promotion which is the subject of the warning.
(b) precede any other written or pictorial matter; (c) be in a font size consistent with the text forming the remainder of the communication; (d) be indelible; (e) be legible; (f) be printed in black, bold type; (g) be surrounded by a black border which does not interfere with the text of the warning; and (h) not be hidden, obscured or interrupted by any other written or pictorial matter. (7) The requirements of this paragraph are that the communication is accompanied by an indication—
(b) of the requirements that must be met for an individual to qualify as a certified high net worth individual; and (c) that any individual 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. (8) An investment falls within this paragraph if—
(b) it is an investment falling within paragraph 15 of Schedule 1 being an investment acknowledging the indebtedness of an unlisted company; (c) it is an investment falling within paragraph 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 being an option 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 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) may reasonably be regarded as directed only at persons to whom paragraph (2) applies. (2) This paragraph applies to—
(ii) otherwise, £5 million; (b) any unincorporated association or partnership which has net assets of not less than £5 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 given in the 1985 Act or in the 1986 Order.
(b) has been £10 million or more at anytime during the year immediately preceding the date on which the communication in question was first made or directed. (7) "Net assets" has the meaning given 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:
(1A) The validity of a statement signed in accordance with paragraph (1)(b) is not affected by a defect in the wording of the statement, provided that the defect does not alter the statement's meaning.
(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.
(b) relates only to one or more investments falling within paragraph (8). (4) The requirements of this paragraph are that either the communication is accompanied by the giving of a warning in accordance with paragraphs (5) and (6) or where, because of the nature of the communication this is not reasonably practicable—
(b) a warning in accordance with paragraphs (5) and (6) (d) to (h) is sent to the recipient of the communication within two business days of the day on which the communication is made. (5) The warning must be in the following terms—
But where a warning is sent pursuant to paragraph (4)(b), for the words "this promotion" in both places where they occur there must be substituted wording which clearly identifies the promotion which is the subject of the warning.
(b) precede any other written or pictorial matter; (c) be in a font size consistent with the text forming the remainder of the communication; (d) be indelible; (e) be legible; (f) be printed in black, bold type; (g) be surrounded by a black border which does not interfere with the text of the warning; and (h) not be hidden, obscured or interrupted by any other written or pictorial matter. (7) The requirements of this paragraph are that the communication is accompanied by an indication—
(b) of the requirements that must be met for an individual to qualify as a self-certified sophisticated investor; (c) that any individual 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. (8) An investment falls within this paragraph if—
(b) it is an investment falling within paragraph 15 of Schedule l being an investment acknowledging the indebtedness of an unlisted company; (c) it is an investment falling within paragraph 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 being an option 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 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.
(ii) high net worth persons falling within article 49(2)(a) to (d); (iii) certified or self-certified sophisticated investors within the meaning of article 50 or 50A; 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, or to be 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) Persons 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. Non-real time communication by members of professions
(b) limited to what is required or permitted by |