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MUTUAL FUNDS ACT, 1996

PART II

Public Funds

8. No public fund shall carry on any business or arrange or administer its affairs in or from within the Territory unless it is registered under this Act.

9. (1) A public fund may apply to the registration. Governor for registration to carry on business in or from within the Territory.

(2) An application shall be

(a) made in the form and contain the information as set out in Schedule 1; and

(b) accompanied by

(i) a statement setting out the nature and scope of the business to be carried on by the applicant in or from within the Territory, including the name of any other country or jurisdiction where the applicant is carrying on or intends to carry on business;

(ii) the application fee set out in Part II of Schedule 2 or such other amount as may be prescribed by regulations;

(iii) the instrument by which the applicant is constituted or such other proof as may be satisfactory to the Governor that the applicant is lawfully constituted under the laws of the Territory or of any other country or jurisdiction;

(iv) the notices required under section 26; and

(v) such other documents or information as the Governor may reasonably require for the purpose of determining the application.

10. (1) The promoters of a public fund that consent to be is proposed to be formed, may apply to the registered. Governor for his consent to register such proposed public fund upon being lawfully constituted under the laws of the Territory or of any other country or jurisdiction and upon complying with the requirements of this Act.

(2) An application for consent under subsection (1) shall be

(a) in the form of a letter setting out the particulars of the proposed public fund; and

(b) accompanied by the application fee set out in Part II of Schedule 2 or such other amount as may be prescribed by regulations.

(3) The consent of the Governor shall be

(a) in such form as the Governor may direct; and

(b) valid for a period of three months from the date it is granted subject to there being no change, that the Governor considers material, in any of the particulars contained in the application for consent.

(4) The promoters of a proposed public fund may, upon the expiry of the three months period referred to in subsection (3) (b), apply for the renewal of the Governor's consent subject to

(a) supplying such documents or information as the Governor may require; and

(b) the payment of the application fee required under subsection (2) (b).

11. (1) The Governor may, in his registration or discretion, grant or refuse to grant consent.

(a) registration under section 9; or

(b) his consent under section 10.

(2) Notwithstanding subsection (1), the Governor shall refuse to grant registration or his consent, as the case may be, if he determines that it is not in the public interest that such registration or consent should be granted.

(3) Except as provided in section 32, where the Governor, in the exercise of his powers under subsection (1) (a), makes a decision refusing to grant registration, he shall not be bound to assign any reasons for his decision which shall not be subject to appeal or review in any court.

12. (1) Where the Governor grants procedure. registration pursuant to section 9 he shall direct the Registrar accordingly and the Registrar shall

(a) register the public fund in the register maintained by him for the purpose under section 6; and

(b) issue a certificate to the registered public fund as directed by the Governor showing the date of registration.

(2) Where the Governor grants his consent under section 10, the promoters of the proposed public fund shall, within the three months period referred to in section 10 (3) (b) from the date of granting such consent or the renewal thereof, deliver to the Registrar

(a) the consent of the Governor;

(b) satisfactory proof that the proposed public fund is lawfully constituted in the Territory or elsewhere;

(c) the application fee required under section 9 (2) (b) (ii); and

(d) the notices referred to in section 9 (2) (b) (iv).

(3) If the Registrar is satisfied that the proposed public fund has complied with the requirements of subsection (2), he shall register the public fund and issue to it a certificate of registration in accordance with the procedure set out in subsection (1).

(4) The Registrar shall refuse to register the proposed public fund if he determines that

(a) its registration has not received the consent of the Governor pursuant to section 10; or

(b) it has not complied with any of the requirements of subsection (2).

(5) Any person aggrieved by a decision of the Registrar under subsection (4) may appeal to the Governor whose decision shall be final.

13. (1) Every registered public fund and shall

(a) maintain adequate accounting records and prepare financial statements in respect of each financial year in accordance with generally accepted accounting principles applicable in the Territory or in any other recognised Country or Jurisdiction; and

(b) keep such accounting records and financial statements available for examination by the Registrar or any person authorised under his hand at

(i) its place of business in the Territory; or

(ii) such other place as its officers may see fit, provided that copies of such records and statements or such other documents or information as the Registrar may consider adequate are kept at its place of business in the Territory.

(2) The financial statements required under subsection (1) shall be

(a) audited by an auditor acceptable to the Registrar (in this Act called "the approved auditor") in accordance with generally accepted auditing standards applicable in the Territory or in any other recognised Country or Jurisdiction;

(b) accompanied by the report of the approved auditor thereon; and

(c) provided to or made available for examination by all investors of the registered public fund.

14. (1) No registered public fund shall in and file a or outside the Territory offer its shares to prospectus. the public unless prior to such offer it publishes in writing a prospectus signed by or on behalf of its officers who approved the contents of the prospectus or authorised its publishing, and files a copy thereof with the Registrar.

(2) Every prospectus shall

(a) provide, full, true and plain disclosure of

(i) the market price or value of any shares being offered thereby;

(ii) particulars of the business and finances of the fund offering such shares; and

(iii) all facts that significantly affect or would reasonably be expected to have a significant effect on the disclosures required in sub-paragraphs (i) and (ii);

(b) contain a summary statement of investors' rights as provided in section 16; and

(c) be accompanied by or contain reference to the availability of the financial statements for the last financial year of the fund and the auditor's report thereon if the fund has completed a financial year in operation.

(3) The Registrar shall not accept for filing a copy of a prospectus unless it is accompanied by a certificate from an attorney certifying that it complies with the requirements of subsection (2).

(4) If all or any part of the prospectus is not in the English language, the Registrar may require that an English translation of the prospectus or that part of the prospectus, verified in a manner satisfactory to him, be filed along with the prospectus.

(5) Where in a prospectus any of the disclosures required under subsection (2)

(a) ceases to be accurate, the registered public fund shall publish an amendment thereto giving accurate disclosures and provide a copy thereof to each of its investors and to the Registrar.

15. Every registered public fund, compliance. wherever it is constituted, which carries on business outside the Territory under the laws of another country or jurisdiction, shall every year, within three months of the end of its financial year, file with the Registrar a certificate of compliance from the competent authority that is responsible for the regulation and supervision of the conduct of its business in that other country or jurisdiction.

16. (1) If a registered public fund publishes a prospectus or any amendment thereto that contains misrepresentation relating to any of the disclosures required under section 14 (2) (a), a person who purchased any shares pursuant to such prospectus or amendment thereto is deemed to have relied upon the misrepresentation and shall have the rights provided in subsection (2).

(2) A person referred to in subsection (1) may elect to exercise a right of action

(a) for the rescission of the purchase, or

(b) for damages, jointly and severally against the fund and every person who, while aware of the misrepresentation, signed the prospectus or amendment thereto and consented to its publishing and filing or caused it to be signed or published and filed.

(3) For the purposes of this section, "misrepresentation" means

(a) an untrue or misleading statement of any of the disclosures required under section 14 (2) (a); or

(b) an omission to disclose any of such disclosures.

(4) No person is liable under this section if he proves that the purchaser purchased the shares offered by the prospectus or amendment thereto with knowledge of the misrepresentation.

(5) The right of action for rescission or for damages conferred by subsection (2) is in addition to and without derogation from any other right the plaintiff may have at law.

17. (1) Notwithstanding any provision of action and law to the contrary, any action pursuant to amount section 16 (2) may not be commenced after recoverable.

(a) one hundred and eighty days from the day that the plaintiff first had knowledge of the misrepresentation, or

(b) one year from the date of the purchase transaction that gave rise to the cause of action, whichever is earlier.

(2) In any action under section 16 (2), the amount recoverable shall not exceed the price at which the shares were purchased or subscribed, including any fees or other charges paid by the plaintiff.