NEW ZEALAND GAZETTE, No. 38

28 MARCH 2013

(2) This notice comes into force on the day after the date of its publication in the New Zealand Gazette.

(3) This notice expires on the close of 31 March 2018.

2. Interpretation

(1) In this notice, unless the context otherwise requires:

Act means the Securities Markets Act 1988.

advertisement has the meaning given to it in section 2A of the Securities Act 1978, except that every reference to securities should be read as a reference to specified futures contracts, and every reference to the issuer should be read as a reference to the company.

adviser means a director, employee or agent of the company who provides, or may provide, futures adviser services to a client.

AFS Licence means an Australian financial services licence granted under the Corporations Act 2001.

ASIC means the Australian Securities and Investments Commission.

FMA means the Financial Markets Authority.

company means HiFX Limited.

Corporations Act 2001 means the Corporations Act 2001 of the Commonwealth of Australia.

futures adviser service means a service provided by or on behalf of the company in relation to a specified futures contract that would, but for section 14(1)(n) of the Financial Advisers Act 2008, constitute financial advice or a discretionary investment management service under that Act.

offence of dishonesty means:

(a) an offence described in any of sections 104, 105B, 108 to 117, and 217 to 266 of the Crimes Act 1961;

(b) an offence described in any of sections 15 to 20 of the Summary Offences Act 1981; and

(c) an offence under the laws of another jurisdiction which is equivalent to an offence referred to in paragraph (a) or (b).

personalised futures adviser service means a futures adviser service that would, but for section 14(1)(n) of the Financial Advisers Act 2008, constitute a personalised service under that Act.

product disclosure statement means a document:

(a) that describes and contains the offer of, and relates specifically to, the specified futures contracts;

(b) that is identical to a document that is:

(i) a product disclosure statement in terms of the Corporations Act 2001; and

(ii) signed by the persons (if any) who are required by law to sign that document;

(c) by means of which it is lawful under the laws of Australia to make an offer of the specified futures contracts to the public in Australia; and

(d) that is not an “offer information statement” or “profile statement” (as those terms are defined in section 9 of the Corporations Act 2001).

remuneration means any commission, fee or other benefit, whether pecuniary or non-pecuniary, and whether direct or indirect; but in the case of an adviser, does not include wages or salary which are of a fixed amount; and remunerated has a corresponding meaning.

retail client means any person who is not a wholesale client.

specified futures contract means a futures contract that is a forward foreign exchange contract, that is issued by the company.

wholesale client means any client that is:

(a) a person who controls at least $10 million; or

(b) a trustee of a trust or a funds manager, acting in that capacity, who has under that person’s control, as trustee or funds manager, net assets of at least $10 million; or

(c) a person who is authorised to carry on the business of dealing in futures contracts under the Act; or

(d) a person authorised in another jurisdiction by the competent authority of that jurisdiction to deal in futures contracts; or

(e) Her Majesty The Queen in right of New Zealand, a Crown entity named in the Crown Entities Act 2004, or a State enterprise named in the First or Second Schedule to the State-Owned Enterprises Act 1986 (each as amended from time to time); or

(f) a person who is a statutory corporation or a registered bank; or

(g) a person whose principal business is the investment of money or who, in the course of and for the purposes of their business, habitually invests money; or

(h) a person who is a related body corporate of any of the persons mentioned in (a) to (g) above; and

(2) any term or expression that is defined in the Act or the Regulations and used, but not defined, in this notice has the same meaning as in the Act or the Regulations.

3. Retail and wholesale client authorisation

(1) The company is authorised to carry on the business of dealing in specified futures contracts to which the company is, or intends to be, a party.

(2) The authorisation in this clause 3 is subject to the conditions that:

(a) the company does not enter into specified futures contracts with any person other than a person who has entered into a written agreement with the company, and then only in accordance with the terms of that agreement;

(b) the company is licensed as an Australian Financial Services Licensee under the Corporations Act 2001 and holds an AFS Licence which authorises the company to advise retail and wholesale clients on, and deal with or on behalf of retail and wholesale clients in, specified futures contracts;

(c) there is a product disclosure statement relating to the specified futures contracts at the time that the specified futures contracts are made available to New Zealand investors that are retail clients, or the company gives advice or assistance to, or induces or attempts to induce, New Zealand investors that are retail clients, in relation to the acquisition or disposal of any specified futures contract;

(d) before the company enters into a specified futures contract with a retail client, that person has received copies of the following:

(i) a product disclosure statement relating to that specified futures contract; and

(ii) every supplementary product disclosure statement relating to that specified futures contract in use at the time of the entry by the company into the specified futures contract;

(e) the company must hold client money in a segregated client funds account as if the client money were subject to the provisions of its AFS Licence, the Corporations Act 2001 and any Regulations made under the Corporations Act 2001 in relation to the protection of client money and client property;