FAQ for Guidelines on Sales Practices of Unlisted Capital Market Products

Frequently Asked Questions Cover Key Areas Relating To The Amendments To The Securities Laws

The following frequently-asked questions (FAQs) cover key areas relating to the amendments to the securities laws.

These amendments were passed by Parliament in April 2012 and came into effect on 28 December 2012. The FAQs are intended as a broad general guide to the public. Readers are advised to refer to the specific provisions of the law for more details.

New Approval Framework for Capital Market Product
1. Why was the approval framework for the issuance and offering of securities amended?
The new approval framework provides for two separate and distinct frameworks for the offering of listed and unlisted capital market products. The new framework recognises that listed and unlisted capital market products have distinct characteristics and different degree of risk and as such applies the appropriate level of regulation commensurate with the risks attached.

2. What is the difference between the current approval framework and the new approval framework?
For the listing of securities, a more transparent framework is provided whereby the types of products requiring SC’s approval are clearly listed. The new framework also provides for circumstances where the SC may reject an application.

For the unlisted capital market products framework, SC’s authorisation is required for the product itself. For example, under the new framework, authorisation will be given to a unit trust scheme as a product on its own and not to the issuance of every unit in the scheme as provided in the current framework. Moreover, under the new unlisted capital market product framework, only foreign products recognised by the SC may be offered in Malaysia.

3. What is the impact of the new approval framework on the development of our capital markets?
For offers of unlisted capital market products, the new framework will improve the efficiency of SC’s approval framework for product offering, hence stimulating businesses and activities in our capital markets. The new approval framework will also facilitate the offering of a broader array of capital market products with authorisation framework for capital market product including securities, derivatives, hybrid products etc.
Business Trust
1. What is a business trust (BT)?
A BT is a unit trust scheme under the Capital Markets and Services Act 2007. However, unlike a typical unit trust scheme, the activity of a BT is the management and operation of a business, similar to how a company manages and operates its business.

The person managing and operating a BT is a corporation called the trustee-manager (TM). The TM manages the business of the BT and is also the trustee who holds the assets of the BT on trust for the unit holders (or investors in the BT).

2. What is the difference between a registered BT and a recognized BT?
A registered BT is established in Malaysia and must comply with all the requirements under the Business Trusts Guidelines.
A recognized BT is established outside Malaysia and complies with the requirements of its home jurisdiction and those specific to recognized BTs under the Business Trusts Guidelines.
For a foreign-established BT to be recognized by the SC, the SC must be satisfied that the standard of laws and regulations in the home jurisdiction is equivalent to those in Malaysia, particularly with respect to:
Corporate governance;
Investor protection, including minority interest protection;
Disclosure standards;
Regulation of take-overs and mergers.
Notwithstanding the above, there may be differences with regards to limits and procedures to be followed between a registered BT and a recognized BT. Investors are advised to read the prospectus and the deed to know their rights as unit holders in any BT.
3. Why would an investor invest in a BT?
Typically, when a BT is structured, a provision is included in its deed for payment of regular distributions, although a quantum is usually not specified, from the residual cash flows of the BT (if any). This provision cannot be changed without amending the deed, and to do so unit holders holding not less than 75% of the voting rights in the BT who are present and voting must agree to such amendment.
4. Are the tax benefits for an investor investing in a BT similar to investment in a real estate investment trust (REIT)?
The tax benefits to investors for investing in a BT is not the same as those applicable to REITs.
5. How will a BT be taxed?
As announced by the Prime Minister in the Budget 2013, BTs will be given income tax, stamp duty and real property gains tax treatments similar to that of a company.
6. What should an investor look at prior to investing in a BT?
Similar to an assessment of an investment in a company, the investor should assess the business of the BT and determine the BT’s ability to generate revenue and profits taking into account the risks affecting the business. The BT’s ability to generate revenue is important as there is no restriction on the source of the distributions from the BT, unlike a corporation where distribution may only be made out of profits.
An investor should review the objective, policy and business direction of the BT and make comparisons with the industry and sector averages. The background, experience and expertise of the TM is important as the TM is the person responsible for making business decisions concerning the BT and also makes decisions concerning the BT that may affect investors. As the senior management of the TM usually comes from the promoters of the BT, investors should also review the background, experience and expertise of the promoters of the BT.
Investors should also determine whether the fees and expenses for the BT as set out in the deed are fair. This is because the TM is entitled to receive the entire amount disclosed in the deed, and any revision to such fees or expenses, requires unit holders holding not less than 75% of the voting rights in the BT who are present and voting to agree to the amendment to the deed.
Investors should also be familiar with the rights of unit holders in the BT before making an investment decision.
Salient information on the above will be disclosed in the prospectus, and investors are advised to read and understand the prospectus before investing. Investors are also advised to consult a professional adviser before making any investment decision.
7. How would an investor purchase units in a BT?
At present, only units of BTs that are listed on the Main Market of Bursa will be offered in Malaysia.
Applications for initial public offerings of units in a BT may be made by filling the application forms attached to the prospectus and submitting the forms to issuing houses, stockbroking companies and financial institutions.
Subsequently, trading of units would be via remisiers or brokers at stockbroking companies.
8. What rights would an investor have as a unit holder in a BT?
Unit holders of a BT would usually have the following rights:
Participate in any increase in the value of units held by the unit holder;
Receive any distribution of income from the BT (whether in the form of cash or units in the BT);
Attend and vote at a general meeting of unit holders;
Call for a general meeting of unit holders;
At a general meeting of unit holders, appoint the auditor of the BT;
At a general meeting of unit holders, appoint a replacement TM;
At a general meeting of unit holders, remove the TM; and
Right to participate in the distribution of the proceeds from a BT during the winding-up of the BT, after expenses of the winding-up and creditors of the BT have been fully-paid.
Unless otherwise provided in the deed of the BT, there is no right for investors to redeem units in the BT. As the units of the BT will be listed on the Main Market of Bursa Securities Malaysia Berhad (Bursa), unit holders may sell their units or purchase additional units on the stock exchange, just as they would do for ordinary shares of a listed corporation.

Other rights and privileges of a unit holder will be set out in the deed of the BT.

9. Who can be a TM?
A TM must be a corporation incorporated in Malaysia or elsewhere that is not an exempt company (or equivalent to an exempt company in that foreign jurisdiction).

The TM must be a corporation that is set-up solely for the purpose of managing and operating a BT.

Prior to commencing operations of the BT, a TM for a registered BT must be a holder of a Capital Markets Services Licence for the regulated activity of fund management in relation to asset management restricted to BTs. Details on licensing requirements of the TM is set out in the Licensing Handbook.

Whereas, a TM for a recognized BT must be and must ensure that its directors and major shareholders are, fit and proper persons, as set out in the Business Trusts Guidelines.

The TM must have a full-time officer that acts in the capacity of a chief executive officer. The requirements with regard to the composition of the board of directors, audit committee and internal audit function of the TM will be set out in Bursa’s Main Market Listing Requirements.

10. Are the fees charged by the TM regulated by the SC?
The fee to be charged by the TM is a commercial decision and is not regulated by the SC. As such, prospective investors must determine whether the fees to be charged by the TM is fair given the operations of the BT and services provided by the TM.

The TM usually charges a management fee, however the TM may also charge other fees like performance fee, acquisition fee and disposal fee.

Sales Practices Guidelines

1.	What is the purpose behind the Sales Practices Guidelines?

	The Guidelines on Sales Practices for Unlisted Capital Market Products (Sales Practices Guidelines) is introduced after the SC received numerous complaints on inferior sales practices by sales personnel especially by unit trust agents. Examples of complaints relating to sales practices are verbally guaranteeing large returns, non-disclosure of risks of the fund to clients and inducement to invest large amount of monies with improper and conflicting advice to clients. The Sales Practices Guidelines is introduced with a view to provide fair treatment of investors by requiring the product issuers and product distributors to have certain policies and processes to be embedded, to ensure the investors’ right and interests are protected. Moreover, the requirement to prepare a Product Highlights Sheet is to enable product comparison and responsible decision-making by the investors. Suitability Assessment is an exercise conducted by the product distributor to ensure that the recommendation provided by product distributor is made based on reasonable basis.

2.	Which capital market products will be governed under the Sales Practices Guidelines?

	These Guidelines will govern all capital market products that are not listed on a stock exchange or derivatives exchange in Malaysia, regardless of whether they are manufactured within or outside Malaysia. Examples of such products include, but are not limited to unlisted collective investment schemes, asset-backed securities, over-the-counter (OTC) derivatives and OTC structured products such as negotiable instruments of deposit with tenure of more than 5 years.

3.	What is a Product Highlights Sheet (PHS)?

	PHS is a clear, concise and effective document which highlights the salient information of an unlisted capital market product to facilitate product comparison and enable the investor to make an investment decision. The contents of a PHS includes the brief description of the product, key characteristics of a product, risks associated with product, fees and charges payable by the investors, valuation information, means of exiting investment and information as to where disputes or complaints can be referred to (i.e. SIDREC).

4.	What is the difference between the PHS and current disclosure documents/prospectus?

	The PHS only highlights the salient information of the unlisted capital market product (i.e. brief description of the product, key characteristics of a product, risks associated with product, fees and charges payable by the investors, valuation information, means of exiting investment and information as to where disputes or complaints can be referred to (i.e. SIDREC). The PHS is a concise document, where the page limit is 6 pages for conventional product and 12 pages for Islamic products. The prospectus will include all information about a product and investor may need to refer to prospectus for other information which may not be included in the PHS for greater understanding about the product that they want to invest in.

5.	What is Suitability Assessment? When does the Suitability Assessment required to be conducted? When does the Suitability Assessment not required to be conducted?

	Suitability Assessment is required to be conducted by product distributor when an investor seeks for a recommendation in a new unlisted capital market product. Suitability Assessment is not required to be conducted on: (a) accredited investor; (b) high net-worth entity that has opted out from being subjected to a suitability assessment; (c) it is an execution-only transaction when no recommendation is made; (d) an investor tops-up his investment in an existing unlisted capital market product with the same product distributor who has previously conducted a suitability assessment on the investor; or (e) a product distributor has conducted a suitability assessment on an investor and recommended to the investor a range of products that takes into account the investor’s risk profile and the investor then seeks to invest in a product which is within the range of products that has been recommended.

6.	How does an investor determine under which category he falls under?

	Schedule 1 of the Sales Practices Guidelines provide for the different categorisation of investors according to specified qualifying criteria. Investors can be divided into two main classes, namely retail investors and sophisticated investors who may comprise of high-net worth individuals, high-net worth entities and accredited investors. The application of the Guidelines will be applicable to all retail investors, high-net worth individuals and high-net worth entities who opt-in. The Guidelines does not apply to accredited investors and high-net worth entities who opt-out.

7.	Do I need to conduct a Suitability Assessment each time I execute a transaction for a client where I have done a Suitability Assessment on a holistic or portfolio basis?

	No, Suitability Assessment is not required to be conducted each time a transaction is executed for a client if Suitability Assessment has been conducted on a holistic or portfolio basis. Under paragraph 4.06(d) of the Sales Practices Guidelines, where Suitability Assessment had been conducted on an investor, and the investor had been recommended with a range of products, Suitability Assessment is not required to be conducted on an investor if the investor seeks to invest in a product which is within the range of products that have been recommended. This paragraph has to be read together with paragraph 4.07 of the Sales Practices Guidelines, where the product distributor must have in place a process which would enable the investor to acknowledge that had been no material change in the information obtained from the previous Suitability Assessment

8.	Does the requirement to provide hardcopy PHS before a client makes an investment decision apply equally to both face-to-face and non-face-to-face transactions?

	For face-to-face transactions, the product distributor must ensure that a hardcopy PHS is provided to an investor before the investor makes an investment decision. For non-face-to-face transactions, for example transactions made online, it would be sufficient to provide the investor with an electronic copy of the PHS. However, where an investor requests for a hard-copy version of the PHS, one should be provided to the investor at no extra cost. Investors must still be given a reasonable time to read and understand the PHS, as required under the Guidelines.

9.	As a product distributor, must I provide a hardcopy PHS to an existing investor who tops-up his investment in an existing unlisted capital market product?

	No, a hardcopy PHS is not required to be provided to an investor who tops-up his investment in an existing unlisted capital market product with the same product distributor, provided that there is no material change to the salient features or risks associated with the unlisted capital market product and there is no updated PHS for such unlisted capital market product.

10.	If my investment product is subject to both SC’s Sales Practices Guidelines and Bank Negara Malaysia’s Guidelines on Product Transparency and Disclosure (PTD Guidelines), do I need to prepare and lodge a Product Highlights Sheet (PHS), a Product Disclosure Sheet (PDS) or both?

	Any product that requires the authorisation of SC under the securities laws, and is not listed and traded on Bursa Malaysia is subject to the Sales Practices Guidelines. As such, the requirement for the preparation of a Product Highlights Sheet (PHS) must be complied with. In circumstances where such unlisted capital market product also falls under the scope of Bank Negara Malaysia (BNM)’s PTD Guidelines, it has been agreed between SC and BNM that product issuers/product distributors, as the case may be, should prepare a PHS in place of the product disclosure sheet. For this purpose, you should also make reference to the sample base template included in BNM’s PTD Guidelines i.e. Appendix II (E) or (F) of Schedule I, or Appendices II (G) or (H) of Schedule II, and the relevant provisions relating to these templates in section 3 of Schedule I or section 4 of Schedule II. As such, a Dual Currency Investment for example, which is a structured product and therefore requires SC’s authorisation, requires a PHS and BNM shall take such PHS to be in compliance with the requirement for a product disclosure sheet under the PTD Guidelines as long as the PHS is prepared with reference to the sample base template included in BNM’s PTD Guidelines i.e. Appendix II (E) or (F) of Schedule I or Appendices II (G) or (H) of Schedule II and the relevant provisions relating to these templates in section 3 of Schedule I or section 4 of Schedule II.

11.	Would the Sales Practices Guidelines be applicable to transactions conducted on an exchange participating in the ASEAN Exchanges initiative?

	The Sales Practices Guidelines do not apply in such transactions

12.	Would the Sales Practices Guidelines be applicable to transactions conducted pursuant to a management of a portfolio of securities or derivatives or a combination of both?

	The Sales Practices Guidelines do not apply to transactions executed as part of a service in managing a portfolio of securities or derivatives or a combination of both.

13.	Will the Sales Practices Guidelines apply to Over-the-Counter (OTC) derivatives for hedging purposes?

	The Sales Practices Guidelines will not apply to OTC derivatives for hedging purposes provided that such derivatives meet the safeguards in paragraph 1.03 of the Sales Practices Guidelines.

14.	In conducting a suitability assessment on my corporate client who is a high net-worth entity, how should I assess the corporate client’s investment knowledge?

	If the corporate client has opted out from the Suitability Assessment, there is no requirement to assess the corporate client’s investment knowledge.For a corporate client who is not a High Net-Worth Entity (and as such, considered a retail investor) or a High Net-Worth Entity who has not opted out from the suitability assessment, the product distributor may take into consideration, among others: (a) the high net worth entity’s investment experience, including experience in or exposure to the unlisted capital market product that the high net-worth entity is seeking to invest in; (b) the relevant experience or specialised technical knowledge of the relevant person(s) or committee responsible for making the investment decisions in the entity in relation to investment in general and to the unlisted capital market product in question. Product distributors should also comply with requirements under paragraphs 4.17, 4.18, 4.23 & 4.24 of the Sales Practices Guidelines. The product distributors must also ensure compliance with record-keeping requirements

15.	Is Appendix B of the Sales Practices Guidelines a template that should be followed in conducting Suitability Assessment?

	Appendix B of the Sales Practices Guidelines merely serves as a guide for product distributors in conducting the Suitability Assessment. The product distributor should come up with a form to gather sufficient information as to enable them to carry out a meaningful assessment and form a reasonable basis in making recommendation to their investors. However, product distributors are encouraged to follow the guide closely and make the necessary adjustments according to the types of unlisted capital market products being offered.

16.	Which transitional provisions should I refer to in relation to unlisted capital market products?

	The SC has published an FAQ on Effective Date and Compliance with the Sales Practices Guidelines Approved Prior to the Effective Date. Hence, paragraphs 3.26 to 3.29 of the Sales Practices Guidelines on Transitional Provisions are replaced with this FAQ.

17.	Is the Suitability Assessment required to be conducted on an investor who tops-up his investment with the same product distributor?

	No, under paragraph 4.06 (c) of the Sales Practices Guidelines, the Suitability Assessment is not required to be conducted on an investor who tops-up his investment in an existing unlisted capital market products with the same product distributor, who has previously conducted a Suitability Assessment or any other similar assessment like Know-Your-Client checks or any other investment risk assessment or mechanisms to determine the investor’s risk profile. Paragraph 4.06(c) has to be read together with paragraph 4.07 of the Sales Practices Guidelines,that where the product distributor must have in place a process which would enable the investor to acknowledge that had been no material change in the information obtained from the previous Suitability Assessment.

18.	Is the Suitability Assessment required to be conducted on an investor if his circumstances fall under paragraphs 4.06(c) and 4.06(d) of the Sales Practices Guidelines?

	Under paragraphs 4.06(c) and (d), Suitability Assessment is not required to be conducted on an investor in circumstances explained under paragraphs 4.06(c) or (d) provided that the product distributor has in place a process that would enable the investor to acknowledge that there has been no material change in the information obtained from the Suitability Assessment. Hence, paragraphs 4.06 (c) and 4.06 (d) of the Sales Practices Guidelines must be read together with paragraph 4.07 of the Sales Practices Guidelines.

Capital Market Compensation Fund (CMC)

1.	What is the role of the CMC?
	The CMC provides an avenue for individual investors to make a claim in the event a CMSL holder fails to pay amounts owing to its investors. When a CMSL holder is unable or is likely to be unable to pay its debts due to fraud, defalcation or mis-selling which leads to insolvency, the CMC has the power to step in to work towards compensating individual investors’ investments.

2.	Which CMSL holders are subject to the requirements of the CMC?

	Only the following CMSL holders and their activities will be subject to the requirements and safeguards provided to the individual investor by the CMC: Participating organisations in relation to their investments on the stock exchange i.e. Bursa Malaysia Securities and recognised stock exchange pursuant to the rules of Bursa Malaysia Securities Berhad (“Bursa”); Trading participants in relation to their investments on the derivatives exchange i.e. Bursa Malaysia Derivatives (“Bursa Derivatives”) and on a specified exchange as provided for in Section 105 of the CMSA; Fund management companies, including PRS providers; and Unit trust management companies which are licensed for dealing in securities restricted to unit trust.

3.	Who is eligible to claim from the Fund?

	A person who is an individual investor can make a claim from the Fund, provided he or she is a client of a Participating Organisation or a Trading Participant who invested in an exchange-traded product. The Fund also covers individual investors of a fund management company, a unit trust management company and a PRS provider. The details on the amount that an individual investor may claim from the Fund and the accompanying procedures will be made available in due course.

4.	What is an “event of default”?

	An event of default is where the CMSL holder is unable or is likely to be unable to meet financial claims arising out of fraud, defalcation or mis-selling which leads to insolvency. The CMC will declare an event of default with the prior consent of the SC, after which, it will compensate eligible investors within the specified time.

Guidelines on Private Debt Securitiesand Guidelines on Sukuk

Why have revisions been made to the Guidelines on Private Debt Securities and Guidelines on Sukuk (collectively “the Guidelines”)?

The Guidelines have been revised to:

reflect the consequential amendments to the CMSA 2012 in relation to the new approval/authorisation/recognition regime; and

facilitate the offering of retail bonds/sukuk under Phase 2 of the retail bonds and sukuk framework

Who can issue bonds and sukuk to retail investors under Phase 2?

Under Phase 1, the eligible issuers are the Malaysian Government and any company whose issuances are guaranteed by the Malaysian Government.

Under Phase 2, the eligible issuers now also include the following issuers:

A public company listed on Bursa Malaysia Securities Berhad;
A financial institution licensed under the Banking and Financial Institutions Act 1989 or Islamic Banking Act 1983;
Cagamas Berhad; and
An unlisted public company whose bond and sukuk issuance is guaranteed by Danajamin Nasional Berhad, Credit Guarantee and Investment Facility or any of the eligible issuers above.

Further information about the retail bonds and sukuk framework is available here

What are the major changes that have been made in the Guidelines?

The major revisions made to the Guidelines are:

Incorporation of consequential amendments to the CMSA 2012 which now includes the authorisation and recognition regime for unlisted capital market products.

Inclusion of new requirements for an issuance, offering or invitation to subscribe or purchase retail private debt securities (“PDS”)/sukuk.

In addition, the Guidelines have been revamped and redrafted to enhance clarity. The Guidelines are now organised into four parts:

Part A – General;
Part B – Requirements for an issuance, offering or invitation to subscribe or purchase PDS/sukuk;
Part C – Approval for an issuance, offering or invitation to subscribe or purchase PDS/sukuk; and
Part D – Requirements for an issuance, offering or invitation to subscribe or purchase retail PDS/sukuk.

Would an issuer be required to comply with the Guidelines if they are issuing structured products?

No, an issuer of structured products would be required to comply with the Guidelines on the Offering of Structured Products.

When will the Guidelines come into effect?

The Guidelines come into force on 28 December 2012 and replace the Private Debt Securities Guidelines and Islamic Securities Guidelines (Sukuk Guidelines) issued on 12 July 2011 (“previous Guidelines”).

However, a grace period from 28 December 2012 to 7 January 2013 (both dates inclusive) shall be given, whereby any application submitted to the SC which is in compliance with the requirements of the previous Guidelines shall be deemed to be in compliance with the requirements under the new Guidelines for the purpose of seeking an approval/authorisation/recognition, as the case may be, under the CMSA.

Do the exemptions given for issuers of foreign currency-denominated PDS/sukuk under the previous Guidelines still apply?

Yes, the exemptions for issuers of foreign currency-denominated PDS/sukuk under the previous Guidelines still apply. The exemptions have now been incorporated within the respective chapters of the Guidelines, as follows:

		Relevant paragraph/chapter
No.	Exemption	Guidelines on Private Debt Securities	Guidelines on Sukuk
1.	Rating requirements	Para 4.11	Para 9.11
2.	Disclosures with regard to early redemption and call option	Para 11.09	Para 16.09
3.	Revision to principal terms and conditions	Para 12.09	Para 17.16
4.	Appointment of Shariah adviser		Para 5.04
5.	Naming of ringgit-denominated sukuk		Chap 4
6.	Conformity with Shariah rulings, principles and concepts for ringgit-denominated sukuk		Chap 6
7.	Shariah rulings applicable to all types of ringgit-denominated sukuk		Chap 7
8.	Shariah rulings applicable to specific types of ringgit-denominated sukuk		Chap 8

How long will it take for a proposed retail PDS/sukuk issuance to be approved?

Approval for a proposed retail PDS/sukuk issuance together with the registration of the prospectus will take up to 40 business days.

What is meant by “any other document or information” that may be requested by SC prior to submission, set out in paragraph 14.06 of the Guidelines on Private Debt Securities and paragraph 19.06 of the Guidelines on Sukuk?

Any other documents or information may include rating reports and due diligence reports, among others.

Can an issuer appoint an underwriter to underwrite an issuance of PDS/sukuk?

Underwriting will continue to be decided by the issuer.

10.

Under the eligible criteria for retail PDS/sukuk, what is meant by “ranked at least equally with amounts owing to unsecured and unsubordinated creditors”?

This means that only senior unsecured PDS/sukuk or senior secured PDS/sukuk are eligible to be issued to retail investors.

11.

Can perpetual PDS/sukuk be offered to retail investors?

Perpetual PDS/sukuk are not allowed to be offered to retail investors.

Guidelines on Real Estate Investment Trusts

1.	The amended Guidelines on Real Estate Investment Trusts (REIT Guidelines) require an annual general meeting to be held within 4 months from the financial year end of a real estate investment trust (REIT). Given that the effective date of the amended REIT Guidelines is 28 December 2012, will there be any “grace” period for existing REITs to comply with the said requirement?

	The SC notes that existing REITs with financial years ending 31 December may not be able to immediately operationalise the requirement to call for an AGM for their upcoming financial year ending 31 December 2012. As such, these REITs are allowed to present its financial statements at their first AGM at a date that is not more than 6 months from 31 December 2012, respectively i.e. the first AGM for existing REITs with financial years ending 31 December 2012 must be held by 30 June 2013.