Licensing: The trustee of a retail fund is a responsible entity and must be a public company that holds an AFSL with the appropriate authorisations.
Disclosure: Retail funds are required to issue a PDS unless an exemption applies. There is an exemption for small scale offerings.
“Small scale offerings” must:
- not breach the 20 investors ceiling test;
- not breach the $2 million ceiling test; and
- be “personal offers”.
There will be a breach of the 20 investors ceiling test (item 1 above) if the offering “results in the number of people to whom securities of the body have been issued exceeding 20 in any 12 month period”.
There will be a breach of the $2 million ceiling test (item 2 above) if the offering “results in the amount raised by the body by issuing securities exceeding $2 million in any 12 month period”.
To meet the test under the Corporations Act “personal offers” (item 3 above) the offer must:
- only be able to be accepted by the person to whom it is made; and
- be made to a person who is likely to be interested in the offer.
Registration: Retail funds are required to be registered with ASIC unless they fall within the exemption of “small scale offerings” where no PDS is required.
There are a number of documents required for registration, including:
- A constitution;
- A compliance plan;
- A compliance committee (where less than half the directors of the trustee are external).
- advise on fund establishment issues including Financial Services Regulation (FSR) implications of establishing a fund (e.g. licensing and requirement to be registered as a managed investment scheme);
- prepare or review trust deeds and constitutions;
- prepare or review Product Disclosure Statements (PDS);
- prepare investor subscription agreements; and
- prepare or review outsourcing agreements including investment management, custody and fund administration agreements.
There are a number of issues for those needing finance and those providing finance: for example, fundraising disclosure requirements, Personal Property Securities Registration (PPSR) requirements, financial assistance prohibitions, interest withholding tax and state-based stamp duties.
We have experience in assisting those needing finance and those providing finance. We can help you deal with the legal aspects of the issues, and draft and negotiate the relevant legal documentation – loan or facility note issuance, security and/or disclosure documentation.