Document ID: chunk:federal_register_of_legislation:F2023C00841:body:0:p5
Version: federal_register_of_legislation:F2023C00841
Segment Type: other
Provision Reference: 
Character Range: 10290–13009

presently exercisable and unconditional right to vest the products in a buyer; or

(B) the seller has a presently exercisable and unconditional right to vest the products in a buyer only because of a securities lending arrangement;
(v) both of the following are satisfied:
(A) the responsible entity of the scheme or a person who manages some or all of the scheme property has rights to be paid fees (performance fees) substantially based on the performance of that property whether or not the responsible entity or the person also has rights to be paid fees substantially based on the gross or net value of all of the scheme property;
(B) the responsible entity has made a statement in writing (whether in a Product Disclosure Statement or otherwise) to the effect that performance fees will be payable in the event the responsible entity or the person satisfies certain criteria related to the performance of the scheme property and has not withdrawn that statement.
                     For the purposes of subparagraphs (b)(i) to (v), the scheme deals in, acquires or sells a financial product, an economic interest or facility if the responsible entity of the scheme does so in relation to the scheme (whether directly or through an interposed entity) or the scheme is promoted by the responsible entity on the basis that it will do so.
              For the purposes of determining whether a registered scheme is covered by two or more subparagraphs of paragraph (b) of this definition, a scheme that deals in derivatives which, but for this provision, results in the scheme being covered by:
(a) subparagraph (iii) (the derivatives limb); and
(b) either or both of the following:
(i) subparagraph (ii) (the leverage limb);
(ii) subparagraph (iv) (the short selling limb);
              is taken not to be covered by the leverage limb or the short selling limb unless the scheme is covered by the leverage limb or the short selling limb for some other reason.
              A registered scheme is taken to be covered by two or more subparagraphs of paragraph (b) of this definition if all of the following apply:
(a) the scheme and any other entity (including, for the avoidance of doubt, a registered scheme or foreign entity) through which the scheme acquires an economic interest in financial products, taken together, would be covered by two or more of those subparagraphs;
(b) the scheme, taken alone, would not be covered by two or more of those subparagraphs;
(c) a reasonable person would conclude that the use of one or more of those other entities as a means through which the scheme acquires an economic interest in financial products is for the sole or dominant purpose of bringing about a result that