Federal Register of Legislation - Australian Government

Primary content

No. 1 of 2001 Directions/Other as made
This instrument sets out policies and practices to be followed by the Industry Research and Development Board in developing and administering the PSF program. These policies and practices are designed to provide a basis for awarding licences and the ongoing oversight of licensed funds under the PSF program. For the purposes of this direction and in implementing the PSF program, the Board may enter into such documents as it thinks fit.
Administered by: Industry, Innovation and Science
Exempt from sunsetting by the Legislation (Exemptions and Other Matters) Regulation 2015 s11 item 03
Registered 11 Mar 2009
Gazetted 05 Sep 2001

 

Commonwealth of Australia

Industry Research and Development Act 1986

Policies and practices of the IR & D Board in relation to the Pre-Seed Fund (PSF) Program

Direction No. 1 of 2001

I, NICHOLAS HUGH MINCHIN, Minister for Industry, Science and Resources of the Commonwealth of Australia, acting under subsection 20(1) of the Industry Research and Development Act 1986, give the following direction to the Industry Research and Development Board.

Dated                       28/08/2001.                                                             

NICHOLAS HUGH MINCHIN

Minister for Industry, Science and Resources

PART 1—PRELIMINARY

Citation

1.                  This direction may be cited as the Pre-Seed Fund (PSF) Program, Policies and Practices Direction No. 1 of 2001.

Commencement

2.                  This direction commences on the day on which particulars of the direction are signed and dated.

[NOTE: For the publication of the particulars, see s. 20 (3) of the Act.]

Interpretation

3.                  In this direction:

“Act” means the Industry Research and Development Act 1986.

“associate” will have the meaning determined by the Board.  Without limiting the Board’s discretion, examples of associates may include directors and employees and their relatives, and related companies and trusts.

“AusIndustry” means AusIndustry, a business unit of the Department of Industry, Science and Resources, and its successors.

“Board” means the Industry Research and Development Board.

“Board may” is permissive and not mandatory.

“Commonwealth program capital” means amounts invested in or provided to a licensed fund by the Commonwealth or its nominee under the PSF  program.

“committed capital” means amounts the Commonwealth or another person agrees to invest in or provide to a licensed fund, conditionally or unconditionally, and “total committed capital” means the aggregate of those amounts.

“document” means a deed, agreement, instrument or other document of any nature.

“drawndown capital” means committed capital that has been invested in or provided to a licensed fund.

“economic interest”, in respect of:

(a)           an eligible company includes;

(i)            new shares in that eligible company;

(ii)           new equity convertible notes in that eligible company;

(iii)          any other form of investment (except new equity convertible notes) the terms of which do not require the eligible company (or any other person) to pay any interest or amount in the nature of interest before the expiry of the term of the investment unless there is a default; and

(b)           an eligible project, includes proprietary rights in the intellectual property used and created in the course of all or any part of the R & D activities conducted during the eligible project.

“eligible company”  means a company which satisfies the criteria developed under part 5 of this direction.

“eligible institution” means an institution that is incorporated in Australia and is:

(a)                   an institution of higher education specified in section 4(1) of the Higher Education Funding Act 1988 or Bond University; or

(b)                  the Commonwealth Scientific and Industrial Research Organisation (CSIRO);

(c)                   the Defence Science Technology Organisation (DSTO);

(d)                  the Australian Institute of Marine Science (AIMS);

(e)                   the Australian Nuclear Science Technology Organisation (ANSTO); or

(f)            any other institution which the Board considers to be a Commonwealth public sector research agency having regard to the following criteria:

(i)                 it is at least 50 per cent owned by the Commonwealth;

(ii)                it is primarily carrying out R&D activities; and 

(iii)              it is:

(A)         providing services, or making facilities available, in relation to science or technology; or

(B)          training, or assisting in the training of, persons in the field of scientific or technological research; or

(C)          collecting, interpreting or publishing information relating to science or technology.

“eligible investment” means an economic interest in an eligible company or an eligible project.

“eligible project” means a project which satisfies the criteria developed under part 5 of this direction.

“fund” includes a trust or other investment structure approved by the Board.

“government sourced capital” means amounts invested in or provided to a licensed fund by:

(a)                any person, (other than an eligible institution) who in the opinion of the Board is funded directly or indirectly by the Commonwealth, a State or Territory; or

(b)               any person (other than an eligible institution) whom the Board considers is directly or indirectly in receipt of funding from a source or sources which is itself or which are themselves funded directly or indirectly by the Commonwealth, a State or Territory (or any combination of them) to such an extent that it is, in the opinion of the Board, appropriate to treat any amount invested in or provided to the fund by that person as government sourced capital.

“include” “includes” and “including” are not to be interpreted as words of limitation.

“institution” means a body corporate that is incorporated for a public purpose by:

(a)           an act of the Commonwealth; or

(b)           regulations under an act of the Commonwealth.

“ineligible institution” means:

(a)                 a co-operative research centre as defined in the Co-operative Research Centres Program Guidelines;

(b)                 an institution controlled, or more than 50 per cent owned, by a state or territory government;

(c)                 a non-profit health and medical research centre;

(d)                 a government business enterprise; and

(e)                 any organisation which the Board considers does not meet the criteria required to qualify as an eligible institution.

“key personnel”, in relation to a fund manager, means those individuals determined by the Board to be key personnel.

"licensed fund" means a fund:

(a)               whose manager has been granted a licence in respect of the fund according to this direction;

(b)               no more than 49% of the issued voting shares in which are held legally or beneficially by eligible institutions;

(c)               no more than 49% of the directors of which represent eligible institutions; and

(d)               no more than 49% of the members of any investment or similar committee of which represent eligible institutions.

“new equity convertible note” means a note issued by an eligible company which provides:

(a)           that the amount of the loan to the eligible company that is evidenced, acknowledged or created by the note or to which the note relates:

(i)            either with or without interest (but if with interest on terms that the interest is not payable until the loan is or becomes repayable or in the case of default);

(ii)           at whatever conversion price;

(iii)          whether at the option of the holder of the note or not;

(iv)          whether in whole or in part; or

(v)           whether exclusively or otherwise,

is to be or may be:

(vi)          converted into new shares in the eligible company; or

(vii)         redeemed, repaid or satisfied by the issue of new shares in the eligible company; or

(b)           that the holder or owner of the note is to have, or may have, any right or option to have new shares in the eligible company allotted and issued to him.

“new shares” means, in respect of an eligible company, shares in the eligible company that have not previously been allotted and issued.

“non-profit enterprise” means an enterprise whose governing documents prohibit the distribution of profits and surpluses to its members or investors.

“person” includes a partnership, body corporate, trust or other structure.

“pre-seed stage” means, in respect of an eligible company or an eligible project, the pre-seed stage of its R&D activities determined having regard to the following considerations:

(a)           those R&D activities are being or have been conducted by an eligible institution;

(b)           funding is necessary for proof of concept research and or market validation through such things as prototype development, trialing, business case development, market research, administration, production and management of intellectual property;

(c)           no management team exists or the management team is beginning to form;

(d)           its R&D activities predominantly involve the transition from research to a commercially focused technology capable of informed market appraisal; and

(e)           any other matters the Board thinks fit.

“privately sourced capital” means amounts invested in or provided to a licensed fund that are not, in the opinion of the Board, government sourced capital.  For the purposes of the PSF program, capital provided by eligible institutions will be regarded as privately sourced capital.

“PSF guidelines” means the guidelines developed by the Board under part 2 of this direction.

“PSF program” means the program established by this direction and known as the Pre-seed Fund (PSF) Program.

“public sector research agency” means an organisation:

(a)           that is at least 50% owned by the Commonwealth; and

(b)           the activities of which consist primarily of the carrying out of R&D activities.

“qualifying researchers” means individuals who are:

(a)           employed by an eligible institution; or

(b)          engaged by or working in or with an eligible institution and normally resident in Australia.

“R&D activities” means research and development activities as defined in section 4(1) of the Act.

“result” means, in relation to R&D activities, a result that is capable of being exploited as contemplated by the Act.

sales revenue” means ongoing revenue from:

(a)           the sale, lease, hire or other disposal of a commercialised product; or

(b)           the sale or provision of a service. 

However, sales revenue does not include:

(c)           interest on working capital balances (provided it is not in the nature of investment income);

(d)           grant proceeds (both cash and in kind); or

(e)           revenue from research consultancy agreements, contract research, collaborative research and development arrangements and technology licence agreements.

“writing” includes email.

A reference in this direction to an act or other instrument is a reference to that act or other instrument as amended or replaced from time to time.

A reference in this direction to “PSF guidelines, licensing agreement or other contractual documents” or similar words is a reference to any one or more or all of them.

A reference in this direction to the singular includes the plural and vice versa.

Purpose

4.                  The purpose of this direction is to set out policies and practices to be followed by the Board in developing and administering the PSF program.

These policies and practices are designed to provide a basis for awarding licences and the ongoing oversight of licensed funds under the PSF program.

For the purposes of this direction and in implementing the PSF program, the Board may enter into such documents as it thinks fit.

Board to have regard to certain policy objectives

5.                  The policy objectives of the PSF program are:

(a)                to assist the commercialisation of R&D activities undertaken by universities and public sector research agencies by providing financial and managerial advice;

(b)               to encourage private sector investment in R&D activities undertaken in universities and public sector research agencies for commercialisation;

(c)                to build linkages between universities, public sector research agencies, the finance community and business for the commercialisation of R&D activities;

(d)          to build entrepreneurial and intellectual property management skills in Australian universities and public sector research agencies, and

(e)          to encourage researchers in universities and public sector research agencies to consider the commercial opportunities of their research discoveries.

The Board must have regard to those policy objectives in developing and administering the PSF program and in exercising the rights, powers and discretions conferred on it by this direction and the PSF guidelines.

PART 2—PSF GUIDELINES

6.                  The Board must develop guidelines for the operation of the PSF program (including the requirements to be imposed on licensed funds, their managers and participants) containing:

(a)                the matters contemplated by this direction; and

(b)               any other matters the Board thinks fit.

7.                  Where this direction refers to matters to be included in the PSF guidelines or any other document, those references are to be interpreted as a statement of general intent. The PSF guidelines or other documents may elaborate on, expand, define, constrain or omit terms or concepts referred to in this direction, and may contain such other provisions as the Board thinks fit.

8.                  The Board may amend the guidelines from time to time as it thinks fit, including during the currency of any licensing round and after applications have been received.  The amended PSF guidelines apply in respect of that licensing round and the applicants in it notwithstanding the date on which applications were made or received.

9.                  The Board may:

(a)                deal with the subject matter of such of the PSF guidelines within the licence agreement or other documents relating to a licensed fund as it thinks fit; and

(b)               where it considers it to be consistent with the policy objectives of the PSF program to do so, include such other provisions in the licence agreement or other documents relating to a licensed fund as it thinks fit.

PART 3—AWARD OF LICENCES FOR FUND MANAGERS

Number of licensing rounds

10.               The number of licensing rounds will be determined by the Board.  The Board must publicise the closing dates for applications for each licensing round.  The Board may at its discretion extend the closing date of any licensing round or otherwise vary, or suspend or abandon, a licensing round.

Application fees

11.               The Board may levy a fee to recover (at its discretion) part or all of the costs incurred by the Board and AusIndustry in assessing a licence application.  The Board may refuse to consider a licence application until that fee is paid.

Consideration of applications

12.               Applications received at the invitation of  the Board must be considered by the Board as soon as practicable.  However, the Board need not consider an application where the licensing round has been suspended or abandoned.  The Board may seek clarification or additional information orally or in writing from any applicant.

Award of Licences

13.               Without limiting clauses 7 and 9(b), the Board must consider applications having regard to the PSF guidelines.  The number of licences to be awarded by the Board, if any, will depend on:

(a)                the total amount of available Commonwealth program capital allocated by the Board in each licensing round;

(b)               the Board’s assessment of the suitability of applicants, having regard to the PSF guidelines, comparative merit, geographic coverage and the equity of access offered to eligible institutions;

(c)                the level of Commonwealth program capital requested by individual applicants; and

(d)               any other matters the Board thinks fit.

14.               The Board is not obliged to award a licence because an applicant satisfies the PSF guidelines or for any other reason.

Requirements concerning applicants

15.               Without limiting clauses 7, 9(b) and 16, the PSF guidelines are to include criteria by reference to which the Board will consider licence applications.  Those criteria must:

(a)                   subject to clause 38(a), stipulate the proposed ratio of Commonwealth program capital to privately sourced capital and the proposed level of management fees;;

(b)            require that the Board:

(i)             consider the proposed size of the fund and the sources of capital, with privately sourced capital  from sources other than eligible institutions, being favourably considered;

(ii)           have regard to the accessibility of the PSF program for eligible institutions throughout Australia,

(c)            require that the applicant has the demonstrated ability to access the level of privately sourced capital sought in the application;

(d)            require that the applicant has an understanding of and experience in dealing with issues relating to Australian and international technology investments, products, services and markets;

and amongst other things require that the applicant has expertise and experience in the following:

(e)            actively seeking out and investigating eligible investments, including linkages and networks with eligible institutions;

(f)             developing and implementing equity investment strategies to achieve returns from eligible investments;

(g)            the provision of mentoring services in areas such as financial management, human resources, intellectual property management and path to market;

(h)            the development and implementation of successful growth and recovery strategies for eligible companies and eligible projects;

(i)             the successful management of investment portfolios;

(j)             exiting from investments through third party transactions such as initial public offerings and trade sales;

(k)            the specific technologies which will be the investment focus of the licensed fund;

(l)             developing working relationships with technologists and senior management in eligible institutions and their advisers;

(m)           providing advice to technology-based businesses and/or commercially focused research projects;

(n)            commercialising technology investments, including those at the pre-seed stage; and

(o)            linkages or networks to second stage investment sources such as venture capitalists, for the provision of follow-on investment funds,

and has the capability to service eligible companies and eligible projects in geographic areas identified as a focus of the proposed fund.

16.               The Board may, when considering an application for a licence:

(a)                take into account experience, expertise, abilities and any other matters the Board considers relevant when assessing an applicant; and

(b)               attribute to particular categories of experience, expertise, abilities or other matters set out in the criteria or taken into account under clause 16(a), a higher level of relative importance than other such categories or matters.

17.               The Board must include in the PSF guidelines details of the information to be provided by applicants for a licence.  That information must include:

(a)                the key personnel of the proposed fund manager, including their roles, terms of employment and responsibilities;

(b)               the amount of Commonwealth program capital required;

(c)                the amount and sources of the privately sourced capital raised or proposed to be raised; and

(d)               a business plan that includes details of:

(i)                 the timing of investments;

(ii)                the level and timing of payment of annual fund management fees; and

(iii)              the scope of the services to be provided by the fund manager.

18.               Without limiting clause 8, the Board may, from time to time, include other requirements relating to applicants and applications in the PSF guidelines.

Government sourced capital

19.               Where in the opinion of the Board an amount claimed by an applicant to be privately sourced capital is, or includes an amount of, government sourced capital:

(a)            that government sourced capital may be treated as privately sourced capital for the purposes of clause 38(a) and clause 47(a); but

(b)            the investor who provided it is not entitled to earn any return on it, and it is to be disregarded for the purposes of clause 47(b).

PART 4—BASIS FOR THE LICENCE AGREEMENTS

Basis for agreements

20.               The Board must not grant a licence to an applicant under the PSF program except according to this part 4.

Licences

21.               Subject to clause 13, the Board may invite each of those applicants whom the Board considers have the highest relative merit to submit to the Board an offer to take up a PSF program licence.

22.               Any offer of a licence must:

(a)                be in writing in the form required by the Board;

(b)               demonstrate to the Board’s satisfaction that the privately sourced capital has been committed;

(c)                contain an agreement by the applicant to sign a PSF Program licence and any other documents required by the Board, and specify any conditions to which  that agreement is subject; and

(d)               comply with any other requirements notified by the Board.

23.               The Board must provide for the offer to lapse if it is not accepted according to clause 22 within 3 months after it is made.  However, the Board may extend the time for acceptance by any one or more applicants, and in doing so may impose any conditions it considers appropriate.

24.               If in any licensing round an offer of a licence is not accepted or lapses without being extended or renewed, the Board may offer a licence to the next applicant in that licensing round whom the Board considers would, if granted a licence, best achieve the objectives of the PSF program.

25.               The Board may vary the procedure set out in clauses 21 to 24 if it considers it appropriate to do so.

Pre-licence investments

26.               The Board may make provision in the PSF guidelines for the conditions that are to apply to the funding of eligible companies and eligible projects made or agreed to be made following the notification by an applicant of its acceptance of an offer of a licence, but before the execution of a licence agreement.

PART 5—ELIGIBLE COMPANIES AND ELIGIBLE PROJECTS

Eligible companies

27.               An eligible company  is a company, at the time of initial investment by a licensed fund:

(a)           which is undertaking pre-seed stage R&D activities;

(b)           which is incorporated in Australia;

(c)            which, if not controlled by some or all of the qualifying researchers actually carrying on those R & D activities within the company:

(i)           is controlled by an eligible institution or qualifying researchers; or

(ii)          utilises in its R & D activities intellectual property at least 50% of which is owned by eligible institutions or by qualifying researchers;

(d)           has no sales revenue;

(e)           which has a majority of the personnel carrying on its R & D activities (by number) and assets (by value) inside Australia;

(f)            which will use all of the licensed fund’s initial investment in Australia; and

(g)           which meets such other requirements as the Board thinks fit,

and whose purpose is at all times to commercialise the outcomes of those R&D activities and not solely or primarily research.

Eligible projects

28           An eligible project is a project which, at the time of initial investment by a licensed fund:

(a)            involves pre-seed stage R&D activities being carried out either within or derived from an eligible institution ;

(b)           has at least 50% of the  intellectual property being applied in it owned by either or both of the eligible institution in or by which it is being carried on or by qualifying researchers;

(c)            is controlled or supervised by an eligible institution and be undertaken in Australia;

(d)           has not generated any sales revenue;

(e)             has not commercialised the results of any R&D activities to the extent of selling or otherwise disposing of them in the ordinary course;

(f)              has a majority of the personnel engaged in it inside Australia;

(g)             will use all of the licensed fund’s initial investment Australia; and

(h)             meets such other  requirements as the Board thinks fit,

and which is carried on at all times for the purpose of commercialising the results of those R&D activities and not solely or primarily for research purposes.

Qualification

29           Despite clauses 27 and 28, a company will cease to be (and will be taken never to have been) an eligible company and a project will cease to be (and will be taken never to have been) an eligible project, if in the opinion of the Board the initial funding provided to it by a licensed fund was made in an amount or at a time for the primary purpose of qualifying that company as an eligible company or that project as an eligible project.

Eligible investments

30           The Board must make provision in the PSF guidelines, licence agreement or other documents relating to a licensed fund requiring that the fund invest only in eligible investments.

PART 6 - OPERATION OF LICENSED FUNDS

Excluded companies and projects

31           The Board must make provision in the PSF guidelines, licence agreement or other documents relating to a licensed fund to prohibit a licensed fund from investing in or otherwise funding overseas companies or projects or funding overseas expenditure on companies or projects unless the Board otherwise agrees. The Board must also make provision in the PSF guidelines to exclude investments in companies or projects which are carrying out R &D activities within or derived from ineligible institutions.

32           The Board must make provision in the PSF guidelines, licence agreement or other document relating to a licensed fund requiring that the fund not, without the prior approval of the Board, invest in an eligible company or an eligible project which:

(a)                involves associates of the fund manager;

(b)               involves associates of any person (other than an eligible institution) who provides over 10% of the privately sourced capital to the fund;

(c)                is controlled by a person providing privately sourced capital to the fund; or

(d)               the Board otherwise considers inappropriate.

33           The Board may make provision in the PSF guidelines, licence agreement or other documents relating to a licensed fund to exclude companies and projects from qualifying as eligible companies and eligible projects, respectively.  The Board may make those exclusions on any generally applicable basis.

Determination of eligible companies and projects

34           Investment decisions are to be made by fund managers, but they may in any particular case request the Board to determine whether an institution is an eligible institution, whether a company is an eligible company or whether a project is an eligible project and, subject to clauses 35 and 36, the Board must make that determination.

35           The Board is not limited in conditioning or qualifying a determination of whether or not an institution which is an eligible institution, a company is an eligible company  or a project is an eligible project.

36           The Board may levy fees that do not exceed the costs incurred by it and AusIndustry in making a determination under clause 34.  The Board may refuse to consider a request or to make or notify a determination under clause 34 until those fees are paid.

Control of eligible companies and projects by a licensed fund

37           The Board may make provision in the PSF guidelines, licence agreement or other contractual documents relating to a licensed fund to limit the level of control exerted by the licensed fund or its manager over the conduct of an eligible company or an eligible project.  In doing so the Board must consider:

(a)                the ability of the fund to realise a return from an investment in companies and projects at the pre-seed stage;

(b)               the ability of the fund to protect its investment in companies and projects at the pre-seed stage;

(c)                the role of the fund manager in providing advice, guidance and influence to seed companies, and those conducting projects at the pre-seed stage; and

(d)               any other matters the Board thinks fit.

Operation of licensed funds

38           The Board must include requirements to the following effect in the PSF guidelines, licence agreement or other documents relating to a licensed fund:

(a)                the ratio of Commonwealth program capital to privately sourced capital contributed to a licensed fund must not exceed 3:1;

(b)               a licensed fund must, unless the Board otherwise agrees,  be a unit trust.  Whatever structure is adopted, neither the Commonwealth nor the Board endorses or warrants, or is to be taken as endorsing or warranting, any legal financial taxation or other consequence of that structure under any Commonwealth State or Territory law, whether at the time the structure is adopted or at any later time.  The fund manager is solely responsible for satisfying itself in respect of the structure and should obtain all independent advice necessary for that purpose; 

(c)                a licensed fund must not admit as an investor, or otherwise receive moneys for investment from, a pooled development fundA fund manager cannot be a pooled development fund and the fund itself cannot be a pooled development fund;

(d)               a licensed fund must not raise monies in the form of debt, or equity with features materially consistent with debt, with the exception of leasing equipment or short term debt for the purpose of maintaining the short term liquidity of the licensed fund, without the consent of the Board;

(e)                a licensed fund must source at least 30% of its privately sourced capital from entities not associated with the fund manager.  The Board may require a licensed fund to have a diversity of persons providing the private capital;

(f)                 a licensed fund must provide funding to eligible companies and eligible projects by taking up the appropriate form of economic interest.

(g)               at least 60% of a licensed fund’s committed capital must be invested within 5 years of the granting of the PSF program licence, unless the Board agrees otherwise;

(h)               a licensed fund must not invest in or provide to an eligible company or an eligible project more than $1 million unless the Board agrees otherwise.  Co-investment by 2 or more licensed funds is permissible but the total funds invested in a single company or project may not exceed $1 million, unless the Board agrees otherwise.  The Board may develop criteria to which it will have regard in exercising its discretion, although those criteria need not be exhaustive of the relevant matters that it may consider in any particular case;

(i)                 transactions carried out by a licensed fund in relation to eligible companies and eligible projects must be carried out at arm’s length;

(j)                 a licensed fund must not give any person any benefit which, if the licensed fund was a public company and that person was a related party, would require approval of the kind contemplated by Chapter 2E of the Corporations Act;

(k)                an eligible institution or a person who has invested in or provided amounts to a licensed fund must not influence or attempt to influence the individual investment or financing decisions of the fund manager;

(l)                 a licensed fund must have an appropriate number of suitably qualified and experienced investment managers having regard to the size and type of the fund;

(m)              monies provided to an eligible company or eligible project must be applied to advance the company or project in the commercialisation of its R&D activities through such things as prototype development, trialing, business case development, market research, administration, production and management of intellectual property; and

(n)               any other requirements the Board thinks fit.

 

PART 7—TIMING OF PROVISION OF CAPITAL TO LICENSED FUNDS

Drawdown of capital

39           The Board must determine in the PSF guidelines, the licence agreement or other documents relating to a licensed fund, the process by which Commonwealth program capital will be invested in or provided to the fund.  In determining that process, the Board may:

(a)                require that Commonwealth program capital be invested or expended within a reasonable period by the fund;

(b)               where it considers it appropriate to do so, withhold Commonwealth program capital from being drawndown; and

(c)                impose any other requirements that the Board thinks fit, having regard to the policy objectives of the PSF program..

PART 8—INFORMATION TO BE PROVIDED BY LICENSED FUNDS

Reporting

40           The Board must in the PSF guidelines, licence agreement or other documents relating to a licensed fund require the fund to provide audited reports, as specified by the Board, within 60 days of the end of the fund’s year of income.  However, the Board may, in any particular case, vary that requirement.

41           The Board must in the PSF guidelines, licence agreement or other documents relating to a licensed fund reserve the right from time to time to request information from the fund manager and the fund for:

(a)                monitoring the performance of the fund, its manager and (if applicable) trustee;

(b)               assessing the financial viability of the fund, its manager and (if applicable) trustee;

(c)                auditing the activities of the fund, its manager and (if applicable) trustee;

(d)               evaluating the performance of the fund, its manager and (if applicable) trustee and the PSF program;

(e)                investigating the activities of the fund, its manager and (if applicable) trustee in terms of compliance with the licensing agreement and other documents relating to the fund; and

(f)                 any other purpose the Board thinks fit, having regard to the policy objectives of the PSF program..

Placing a licensed fund under special conditions.

42           The Board must in the PSF guidelines, licence agreement or other documents  relating to a licensed fund make provision to the effect that, where the Board is of the opinion that:

(a)                the fund or its manager is or may become insolvent or suffer what the Board considers to be a substantial loss of capital;

(b)               the fund or its manager is in breach of the PSF guidelines, any requirement imposed on it under clause 22 or any contractual or other obligation owed to a third party;

(c)                the fund or its manager has failed to achieve activity milestones contained in the licence agreement or any other document relating to the fund; or

(d)               a member of the key personnel ceases to be employed or otherwise retained by the fund in the manner stated in the manager’s application for a PSF program licence

the Board may, in consultation with the persons contributing privately sourced capital (excluding the fund’s manager and its associates), remove the fund manager or place such additional conditions on the fund manager and in respect of the fund as the Board thinks fit.

The Board may prescribe other circumstances in which the fund manager may be removed or additional conditions imposed.

43            The additional conditions referred to in clause 42 may include:

(a)                divestment of specified investments;

(b)               limitations on investments, short term debt raising or other financing instruments;

(c)                reimbursement of costs associated with correcting the circumstance; or

(d)               recruitment by the fund manager of additional staff with appropriate expertise, experience and abilities.

Conditions to apply to investors

44           The Board must in the PSF guidelines, the licence agreement or other documents relating to a licensed fund, provide for the consequences of a person who has invested in or provided amounts to the fund breaching, or causing the fund manager to breach, the PSF guidelines, licence agreement or other documents relating to the licensed fund.

Valuation

45           The Board must make provision in the PSF guidelines, licence agreement and other documents relating to a licensed fund  for policies and methodologies to ensure a consistent, transparent and realistic valuation of licensed fund assets.  Where practicable these methodologies and policies are to reflect what is, in the opinion of the Board, generally accepted practice in Australia, unless the Board otherwise determines.

Other Requirements

46            Nothing in this part 8 limits the requirements that may be imposed under clause 22.

PART 9—INCOME DISTRIBUTION AND TERM

Distribution

47           In determining the terms on which Commonwealth program capital is invested in a licensed fund, the Board must require the fund to distribute proceeds from the receipt of earnings or the realisation of investments or other financings in the following manner:

(a)                first, an amount equal to the licensed fund’s total committed capital is to be divided amongst the Commonwealth, (or its nominee) and private investors pro rata according to the amount subscribed by them, whether or not drawn down;

(b)               second, the balance of the proceeds is (subject to clause 19) to be divided in a predetermined manner by the private investors and the fund manager.

Ten Year Term

48           A licensed fund must be wound up no later than 10 years after the date Commonwealth program capital is first invested in it, with all monies distributed  according to clause 47, subject to an extension of that period to allow for the orderly and prudent disposal of the fund assets or for other reasons as the Board thinks fit.

PART 10—FEES

Fund management fees

49           The Board must make provision in the PSF guidelines, licence agreement or other documents  relating to a licensed fund for the setting of appropriate management fees.  In approving these and any other fees, the Board must have regard to:

(a)                the level of resources for fund managers that the Board considers appropriate;

(b)               the scope of the management services to be provided by fund managers and included in the management fee;

(c)                the interests of the investors, including the Commonwealth or its nominee; and

(d)               any other matters the Board thinks fit.

 

PART 11—REMOVAL OF FUND MANAGERS

50           The Board must make provision in the PSF guidelines, licence agreement or other documents relating to a licensed fund, for the removal of the fund manager in circumstances the Board considers appropriate.

PART 12—EARLY LIQUIDATION OF FUND

51           The Board must make provision in the PSF guidelines, licence agreement or other documents relating to a licensed fund for the liquidation of the assets of the fund prior to the 10 year term referred to in clause 48 in circumstances the Board considers appropriate.

PART 13—CHANGES TO INVESTORS

52           The Board must make provision in the PSF guidelines, licence agreement or other documents relating to a licensed fund for the conditions that will apply in any of the following circumstances:

(a)                the withdrawal of a person who has invested in the licensed fund or the transfer of ownership of any part of that person’s interest in the fund;

(b)               where a person (other than the Commonwealth or its nominee in respect of Commonwealth program capital) does not deliver committed capital according to their obligation to do so; and

(c)                the transfer of all or part of the  interest of the Commonwealth or its nominees in the licensed fund.

PART 14—EVALUATION

53           The Board must make provision in the PSF guidelines, licence agreement or other documents relating to a licensed fund for the manager of the licensed fund (or its trustee, if applicable) to co-operate in the evaluation of the PSF program.