4226 NEW ZEALAND GAZETTE, No. 147 29 SEPTEMBER 2011

(j) the Company must at all times ensure that each director, employee or agent of the Company who provides advice or discretionary investment management services in relation to futures contracts:

(i) exercises the care, diligence and skill that a reasonable adviser would exercise in the same circumstances;

(ii) has the competence, knowledge and skills to provide advice or discretionary investment management services to that client, and in respect of that product;

(iii) acts in the best interests of the client;

(iv) ensures that the client has sufficient information, in a form which enables the client to understand that information, to make an informed decision;

(v) ensures that the client understands whether or not any advice given takes into account the personal circumstances of the client; and

(vi) does not act in any way, or make any omission, which would bring the financial services profession, or any part of it, into disrepute;

(k) the Company complies with all requirements of the Regulations as if it were a dealer for the purpose of those regulations;

(l) the Company maintains proper records:

(i) to record dealings in respect of futures contracts with or on behalf of the client;

(ii) to record client money, funds and property held or received in connection with dealings in futures contracts; and

(iii) which are audited or reviewed, and reported on, in accordance with the Regulations and the Financial Reporting Act 1993;

(m) the Company maintains proper accounting records, which are adequate to explain all transactions entered into by the Company and to enable the Company to prepare financial statements in accordance with generally acceptable accounting practice;

(n) the Company keeps its business records, including those referred to in clauses 3(2)(l) and (m), up to date, and in a form which enables those records to be made available for inspection by the Financial Markets Authority or the compliance reporter promptly on request;

(o) the Company’s financial statements are prepared and registered on the basis that the Company is an issuer in terms of the Financial Reporting Act 1993 and are audited at least once a year by a qualified auditor under the Financial Reporting Act 1993;

(p) the Company has an appropriate compliance manual, and a copy of which has been lodged with the Financial Markets Authority;

(q) the Company has appointed a compliance reporter and entered into agreed upon procedures engagement terms with that compliance reporter, a copy of which has been lodged with the Financial Markets Authority;

(r) the agreed upon procedures engagement terms provide for (without limitation):

(i) the client money, funds and property records in respect of futures contracts to be reviewed and reported on by the compliance reporter in accordance with the Regulations;

(ii) the review of, and reporting on, the dealing practices and systems of the Company against the practices and procedures set out in the Company’s compliance manual by the compliance reporter (including on-site inspections of the Company’s records and procedures), such review and reporting to be undertaken at least once in every six months;

(iii) a copy of the compliance reporter’s reports to be sent to the Financial Markets Authority by the compliance reporter;

(iv) the compliance reporter to give notice to the Financial Markets Authority before or immediately upon it resigning or retiring from its position as compliance reporter; and

(v) the matters related to supervision of capital adequacy set out in clause 6(2) below;

(s) the Company sends a copy of its audited financial statements to the Financial Markets Authority not more than three months after the end of each financial year;

(t) the Company at all times meets the capital adequacy requirements set out in clause 5 of this notice;

(u) the Company at all times meets the reporting requirements set out in clause 6 of this notice;

(v) the Company maintains adequate professional indemnity insurance for its business at all times; and

(w) the Company immediately notifies the Financial Markets Authority in writing of any of the following events:

(i) the insolvency of the Company or the bankruptcy of any of its directors;

(ii) if the Company, or any of its directors, is convicted of an indictable offence;

(iii) where a receiver, provisional liquidator, liquidator or a similar officer is appointed, or any resolution is passed or order made for the winding up or dissolution of the Company;

(iv) any regulatory action taken against the Company, or any of its directors or senior management, whether in New Zealand or elsewhere;

(v) if there is any material change to the nature of business activities undertaken by the Company;

(vi) if there is any change to the shareholding, or ultimate beneficial ownership, of the Company; and

(vii) if any director or member of the senior management leaves the Company or if any new director or member of senior management is appointed to the Company.

4. Further conditions relating to disclosure documents—(1) The disclosure document must include information that would enable a prudent but non-expert investor to make a decision about whether to invest in a specified futures contract of that class.

(2) The disclosure document must remain up to date and continue to comply with clause 4 at all times, and may be amended by the Company at any time for this purpose.