Jersey eligible investor funds07 Oct 2014
Jersey launched a new fund product aimed at "eligible investors", with the issue of the Jersey Eligible Investor Fund Guide (the "Guide") by the Jersey Financial Services Commission ("JFSC") on 22 July 2013.
A Jersey Eligible Investor Fund ("EIF") is a collective investment fund within the meaning of the Collective Investment Funds (Jersey) Law 1988 (the "CIF Law"). It is also an alternative investment fund (AIF) as defined in the Alternative Investment Funds (Jersey) Regulations 2012.
The principal benefits of this new fund product include a streamlined 72-hour authorisation process for the approval of funds that meet the criteria of an EIF and a streamlined 10-day authorisation process for the registration of new Jersey fund services business providers to the EIF. Another advantage is that any changes to an EIF are only subject to the prior approval of the JFSC where they would not meet the criteria of the Guide or would breach a condition on the CIF Certificate (as defined below) granted to the EIF. Furthermore, EIFs are not subject to any limitations on the number of persons to whom they can be marketed.
EIFs - the qualifying criteria
The EIF regime is available to funds which satisfy the requirements set out in the Guide, which are summarised below.
Structure and name
An EIF may be open-ended or closed-ended and may take any form recognised under the laws of Jersey: a company, unit trust or limited partnership. Upon the authorisation of an EIF by the JFSC, it will be issued with a certificate ("CIF Certificate") under the CIF Law and will be required to comply with the Certified Funds Codes of Practice as well as any conditions attaching to the CIF Certificate.
In order to establish the EIF as a fund company at least two appropriately experienced Jersey resident directors must be appointed to the board. Where the EIF is established as a limited partnership, the acting general partner should be a Jersey entity with at least two Jersey resident directors (again, with appropriate experience). If the EIF is established as a unit trust, the trustee should be a Jersey entity with at least two Jersey resident directors with appropriate experience. The ultimate responsibility for the management and control of the EIF lies with the board of directors of a fund company (or the general partner of a limited partnership, or a trustee or manager if a unit trust).
Any Jersey entity acting as a service provider to an EIF must be registered for the relevant class(es) of fund services business under the Financial Services (Jersey) Law 1998 and will be subject to the FSB Codes of Practice.
The name of the EIF must not be undesirable or misleading. If it indicates a particular objective, geographic region or market, this should be reflected in the investment policy and in the manner in which the EIF maintains the majority of its non-cash assets.
Investment and leverage parameters
There are no restrictions imposed upon the level of borrowing or gearing adopted by an EIF, provided that the approach is clearly disclosed in the offer document.
An EIF must appoint an auditor.
The investment manager (which term includes an investment adviser if an investment manager is not appointed) of an EIF (and, as appropriate, the principal persons of the investment manager), must be of good standing and should, in summary:
- have had no regulatory or disciplinary sanctions imposed on it by any supervisory authority or professional body in the previous five years;
- have had no convictions relating to financial services business or involving fraud or dishonesty;
- have had no convictions relating to money laundering or the combat of financial terrorism;
- be able to pay its debts as they fall due; and
- be established in an OECD member state or a jurisdiction in relation to which the JFSC has entered into a Memorandum of Understanding or equivalent on investment business and collective investment funds and be either: (i) regulated in such a member state or jurisdiction; or (ii) have among its principal persons relevant experience in promoting, managing or advising on investors' funds using similar investment strategies to those to be adopted by the EIF.
EIFs must appoint an administrator, a manager and/or (in relation to a closed-ended fund that is a unit trust), a trustee which has at least two appropriately experienced Jersey resident directors together with staff and a physical presence in Jersey. It is possible to delegate the duties of the administrator, manager or trustee in accordance with the JFSC's outsourcing policy. It is the duty of the administrator, manager or trustee, as applicable, to monitor the investment manager of the EIF and, in particular:
- to carry out general due diligence in respect of the investment manager;
- to take reasonable measures to satisfy itself that the actions of the investment manager do not breach the investment and borrowing restrictions applicable to the EIF;
- to promptly notify the entity which appointed the investment manager of any concerns; and
- to maintain sufficient records in Jersey (in electronic or documentary form) to enable it to fulfil such monitoring functions and be able to obtain any other relevant records on demand.
Custody arrangements (including prime broker and depositary)
Every EIF must make adequate arrangements for the safe custody of the property of the fund.
If the EIF is an open-ended fund, custody arrangements must be sourced from a separate custodian/trustee with staff and a physical presence in Jersey that is subject to the applicable FSB Codes of Practice. Where the EIF has an EU/EEA alternative investment fund manager ("AIFM") in accordance with the Alternative Investment Fund Managers Directive (the "Directive"), no prior clearance is required for the appointment of a depositary in the home Member State of the AIFM, where such depositary is subject to the requirements of the Directive.
If the EIF is a hedge fund, a prime broker which is part of a group with a minimum credit rating of A1/P1 or long term equivalent may be appointed instead of a Jersey-based custodian.
Only eligible investors are able to acquire units in an EIF. An "eligible investor" is any of the following:
a) a person who has agreed to pay consideration of not less than US$1 million, or the equivalent of that amount in another currency, for the subscription, purchase, exchange or acquisition of units in the EIF;
b) a person whose ordinary business or professional activity includes or could be reasonably expected to include:
(i) the acquisition, underwriting, management, holding or disposal of investments, whether as principal or agent, or
(ii) the giving of advice on investment;
c) an employee, director or shareholder of, or consultant to, a person specified in clause (b);
d) a fund service provider in relation to the fund or an associate of such a fund service provider;
e) a person who:
(i) is an employee, director or shareholder of, or consultant to, such a fund service provider or associate, and
(ii) in making the relevant subscription, purchase, exchange or acquisition would acquire units in the fund as remuneration, or reward, as such an employee, director, shareholder or consultant;
f) an individual whose property has a total market value of not less than US$10 million or the equivalent of that amount in another currency;
g) a company, partnership, limited partnership, separate limited partnership, incorporated limited partnership, limited liability partnership, trust, or unincorporated association, in relation to which one or both of the following requirements is met:
(i) its property (or its property and that of its associates) has a total market value of not less than US$10 million or the equivalent of that amount in another currency,
(ii) every shareholder of the company, every partner of the partnership, limited partnership, separate limited partnership, incorporated limited partnership or limited liability partnership, every beneficiary of the trust or every member of the association (as the case requires) would, himself or herself, be an eligible investor in relation to the fund if he or she made in relation to the fund a subscription, purchase, exchange or acquisition of units in the EIF;
h) a wholly-owned subsidiary of a company that satisfies clause (g);
i) a trustee of a trust established by a person who is specified in any of clauses (b), (c), (d), (f), (g) and (h) or is an employee, director, shareholder, or consultant, specified in clause (e)(i);
j) a trustee of a trust established for the benefit of:
(i) a person who is specified in clause (b) or (c) or is an employee, director, shareholder, or consultant, specified in clause (e)(i),
(ii) any one or more persons in any one or more of the following classes:
(1) the spouse or civil partner of a person specified in sub-clause (i),
(2) the issue of such a person,
(3) the dependants of such a person, or
(iii) a person specified in sub-clause (i) and any one or more persons in any one or more of the following classes:
(1) his or her spouse or civil partner,
(2) his or her issue,
(3) his or her dependants; or
k) a person who in making the subscription, purchase, exchange or acquisition is acting as or for a public sector body.
The JFSC believes that those involved in establishing and providing services to an EIF who wish to invest in the fund should be encouraged to do so. Accordingly, any application made to the JFSC to extend the definition of "eligible investor" in respect of any other types of "carried interest" investors is likely to be treated sympathetically.
The JFSC expects any discretionary investment manager acquiring an interest in the EIF, directly or indirectly, for or on behalf of investors who are not eligible investors to be satisfied that the investment is suitable for the underlying investors, and that the underlying investors are able to bear the economic consequences of investment in the fund, including the possibility of the loss of the entire investment.
Offer document content requirements
The overriding principle is that the offer document issued by an EIF must contain all material information which is in the knowledge of the persons responsible for issuing the offer document and which investors, and their professional advisers, would reasonably require for the purpose of making an informed judgement about the merits of participating in the EIF and the nature and levels of risk accepted by making an investment. The Guide also provides for the disclosure of certain specific information, for example:
- the structure of the EIF and details of the fund service providers to the EIF;
- details relating to the directors or proposed directors of the certificate holder of the EIF;
- risks associated with the EIF including any conflicts of interest and any risks of "contagion" between sub-funds;
- the investment objective and strategies of the EIF (including its approach to borrowing and gearing) and any investment or borrowing restrictions applicable to the EIF;
- the basis upon which dealing in the EIF is to take place and the basis upon which the value of the EIF is to be calculated; and
- the fees, charges and expenses payable from the property of the EIF.
A statement in which the directors/general partner/manager or trustee, as applicable, accept(s) responsibility for the contents of the offer document must also be included.
The offer document must contain a prominent investment warning in the form prescribed in the Guide and each investor must sign an acknowledgement that the fund is only suitable for eligible investors who understand and accept the terms of the investment warning, agree that they are eligible investors and that they accept the risks in the investment.
In order to establish an EIF, an application form, completed by the administrator, manager or trustee, as applicable, and countersigned by the directors of the fund (or general partner of a limited partnership or manager or trustee of a unit trust) must be lodged with the JFSC. A certificate signed on behalf of the directors of the fund (or general partner of a limited partnership or manager or trustee of a unit trust) certifying that the EIF's offer document complies with the content requirements set out in the Guide, the latest draft of the offer document and details of the principal persons of the investment manager, must accompany the application. Provided the application form confirms that the fund meets the criteria set out in the Guide, all necessary consents and the CIF Certificate will be issued within 72 hours of submission.