Related provisions for LR 11.1.5A

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DEPP 6.7.1GRP
Persons subject to enforcement action may be prepared to agree the amount of any financial penalty, or the length of any period of suspension or restriction,2 and other conditions which the FSA seeks to impose by way of such action. Such conditions might include, for example, the amount or mechanism for the payment of compensation to consumers. The FSA recognises the benefits of such agreements, in that they offer the potential for securing earlier redress or protection for consumers
DEPP 6.7.2GRP
In appropriate cases the FSA's approach will be to negotiate with the person concerned to agree in principle the amount of a financial penalty having regard to the FSA’s statement of policy as set out in DEPP 6.5 to DEPP 6.5D and DEPP 6.6.1 (This starting figure will take no account of the existence of the settlement discount scheme described in this section.) Such amount ("A") will then be reduced by a percentage of A according to the stage in the process at which agreement is
DEPP 6.7.3GRP

  1. (1)

    The FSA has identified four stages of an action for these purposes:

    1. (a)

      the period from commencement of an investigation until the FSA has:

      1. (i)

        a sufficient understanding of the nature and gravity of the breach to make a reasonable assessment of the appropriate penalty; and

      2. (ii)

        communicated that assessment to the person concerned and allowed a reasonable opportunity to reach agreement as to the amount of the penalty ("stage 1");

    2. (b)

      the period from the end of stage 1 until the expiry of the period for making written representations or, if sooner, the date on which the written representations are sent in response to the giving of a warning notice ("stage 2");

    3. (c)

      the period from the end of stage 2 until the giving of a decision notice ("stage 3");

    4. (d)

      the period after the end of stage 3, including proceedings before the Tribunal and any subsequent appeals ("stage 4").

  2. (2)

    The communication of the FSA's assessment of the appropriate penalty for the purposes of DEPP 6.7.3G (1)(a) need not be in a prescribed form but will include an indication of the breaches alleged by the FSA. It may include the provision of a draft warning notice.

  3. (3)

    The reductions in penalty will be as follows:

      Stage at which agreement reached

      Percentage reduction

      Stage 1

      30

      Stage 2

      20

      Stage 3

      10

      Stage 4

      0

DEPP 6.7.4GRP
(1) Any settlement agreement between the FSA and the person concerned will therefore need to include a statement as to the appropriate penalty discount in accordance with this procedure.(2) In certain circumstances the person concerned may consider that it would have been possible to reach a settlement at an earlier stage in the action, and argue that it should be entitled to a greater percentage reduction in penalty than is suggested by the table at DEPP 6.7.3G (3). It may be,
DEPP 6.7.5GRP
In cases in which the settlement discount scheme is applied, the fact of settlement and the level of the discount to the financial penalty imposed by the FSA will be set out in the final notice.
DEPP 6.7.6GRP
2The settlement discount scheme which applies to the amount of a financial penalty, described in DEPP 6.7.2 G to DEPP 6.7.5 G, also applies to the length of the period of a suspension or restriction, having regard to the FSA's statement of policy as set out in DEPP 6A.3.
REC 4.5.3GRP
The Companies Act 1989 also gives the FSA powers to supervise the taking of action under default rules. Under section 166 of the Companies Act 1989 (Powers of the FSA to give directions) (see REC 4.5.4 G), the FSA may direct a UK recognised body to take, or not to take, action under its default rules. Before exercising these powers the FSA must consult the recognised body concerned. The FSA may also exercise these powers if a relevant office-holder applies to it under section
REC 4.5.4GRP

The Companies Act 1989: section 166

The FSA may issue a "positive" direction (to take action) under section 166(2)(a) of the Companies Act 1989:

Where in any case a [UK RIE] or [UK RCH] has not taken action under itsdefault rules- if it appears to [the FSA] that it could take action, [the FSA may direct it to do so,

but under section 166(3)(a) of the Companies Act 1989:

Before giving such a direction the [FSA] shall consult the [UK RIE] or [UK RCH] in question; and [the FSA] shall not give a direction unless [the FSA] is satisfied, in the light of that consultation that failure to take action would involve undue risk to investors or other participants in the market,

The FSA may issue a "negative" direction (not to take action) under section 166(2)(b) of the Companies Act 1989:

Where in any case a [UK RIE] or [UK RCH] has not taken action under its default rules - if it appears to the [FSA] that it is proposing to take or may take action, [the FSA] may direct it not to do so.

but under section 166(3)(b) of the Companies Act 1989:

Before giving such a direction the [FSA] shall consult the [UK RIE] or [UK RCH] in question; and the [FSA] shall not give a direction unless [the FSA] is satisfied, in the light of that consultation that the taking of action would be premature or otherwise undesirable in the interests of investors or other participants in the market.

REC 4.5.5GRP
The FSA's view is that the exercise of these powers will only be justified in exceptional circumstances. The most likely case in which the FSA would consider exercising them is if there were a need to coordinate action by different UK recognised bodies because, for example: (1) the likelihood of a default may not be apparent to all UK recognised bodies; or(2) there was a need to avoid premature default action by one UK recognised body; or(3) significantly different settlement
REC 4.5.8GRP
Under section 166(7) of the Companies Act 1989, where a UK recognised body has taken action either of its own accord or in response to a direction, the FSA may direct it to do or not to do specific things subject to these being within the powers of the UK recognised body concerned under its default rules. However, the FSA cannot give such a direction unless it is satisfied that this will not impede or frustrate the proper and efficient conduct of the default proceedings.
REC 4.5.9GRP
Where, in relation to a member (or designated non-member) of a UK RIE or a member of a UK RCH:(1) a bankruptcy order; or(2) an award of sequestration of his estate; or(3) an order appointing an interim receiver of his property; or(4) an administration or winding-up order; or(5) a resolution for a voluntary winding-up; or(6) an order appointing a provisional liquidator; has been made or passed and the UK recognised body has not taken action under its default rules as a result of
REC 4.5.10GRP
The effect of an application under section 167 of the Companies Act 1989 is to require the UK recognised body concerned to take action under its default rules or to require the FSA to take action under section 166 of the Companies Act 1989 (see REC 4.5.4G).
REC 4.5.11GRP
The procedure is that the FSA must notify the UK recognised body of the application and, unless within three business days after receipt of that notice, the UK recognised body: (1) takes action under its default rules; or(2) notifies the FSA that it proposes to take action forthwith; or(3) is directed to take action by the FSA under section 166(2)(a) of the Companies Act 1989; the provisions of sections 158 to 165 of the Companies Act 1989 do not apply in relation to market contracts
LR 3.3.2RRP
The following documents must be submitted, in final form, to the FSA by midday two business days before the FSA is to consider the application:(1) a completed Application for Admission of Securities to the Official List;(2) one of:(a) the prospectus, or listing particulars, that has been approved by the FSA; or(b) a copy of the prospectus, a certificate of approval and (if applicable) a translation of the summary of the prospectus, if another EEA State is the home Member State
LR 3.3.3RRP
The1 following documents signed by a sponsor (if a sponsor is required under LR 8) or by a duly authorised officer of the applicant (if a sponsor is not required under LR 8) 1must be submitted, in final form, to the FSA before 9 a.m. on the day the FSA is to consider the 1application:1(1) a completed Shareholder Statement, in the case of an applicant that is applying for a listing of a class of 1shares4 for the first time; or [Note: see LR 8.4.3 R and LR 8.4.9 R1];414(2) a completed
LR 3.3.4RRP
If written confirmation of the number of shares 4to be allotted pursuant to a board resolution1 cannot be submitted to the FSA by the deadline set out in LR 3.3.2 R or the number of shares4to be admitted is lower than the number notified under LR 3.3.2 R,1 written confirmation of the number of shares4to be allotted or admitted must be provided to the FSA by 1the applicant or its sponsor at least one hour before the admission to listing is to become effective.14144141
LR 3.3.4ARRP
1If the FSA has considered an application for listing and the shares4the subject of the application are not all allotted and admitted following the initial allotment of the shares4(for example, under an offer for subscription), further allotments of shares4may be admitted if before 4pm on the day before admission is sought the FSA has been provided with:444(1) written confirmation of the number of shares4allotted pursuant to a board resolution; and4(2) a copy of the RIS announcement
LR 3.3.5RRP
1Written confirmation of the number of shares4that were allotted (pursuant to a board resolution allotting the shares)4 must be submitted to the FSA as soon as practicable after admission if the number is lower than the number that was announced under LR 3.2.7 G as being admitted to listing.1144
LR 3.3.7RRP
An applicant must provide to the FSA the documents set out in LR 3.3.6 R, if requested to do so.
APER 3.1.2GRP
The Code of Practice for Approved Persons in issue at the time when any particular conduct takes place may be relied on so far as it tends to establish whether or not that conduct complies with a Statement of Principle.
APER 3.1.3GRP
The significance of conduct identified in the Code of Practice for Approved Persons as tending to establish compliance with or a breach of a Statement of Principle will be assessed only after all the circumstances of a particular case have been considered. Account will be taken of the context in which a course of conduct was undertaken, including the precise circumstances of the individual case, the characteristics of the particular controlled function and the behaviour to be
APER 3.1.5GRP
In particular, in determining whether or not an approved person's conduct complies with a Statement of Principle, the FSA will take into account the extent to which an approved person has acted in a way that is stated to be in breach of a Statement of Principle.
APER 3.1.6GRP
The Code of Practice for Approved Persons (and in particular the specific examples of behaviour which may be in breach of a generic description of conduct in the code) is not exhaustive of the kind of conduct that may contravene the Statements of Principle. The purpose of the code is to help determine whether or not a person's conduct complies with a Statement of Principle. The code may be supplemented from time to time. The FSA will amend the code if there is a risk that unacceptable
APER 3.1.9GRP
UK domestic firmslisted on the London Stock Exchange are subject to the UK Corporate Governance Code4, whose internal control provisions are amplified in the publication entitled "Internal Control: Revised Guidance for Directors on the Combined Code (October 2005)" 4issued by the Financial Reporting Council4. FSA-regulated firms in this category will thus be subject to that code as well as to the requirements and standards of the regulatory system. In forming an opinion whether
PERG 9.8.1GRP
The test in section 236(3)(a) of the Act is whether the reasonable investor would expect that, were he to invest, he would be in a position to realise his investment within a period appearing to him to be reasonable. In the FSA's view, this is an objective test with the appropriate objective judgment to be applied being that of the hypothetical reasonable investor with qualities such as those mentioned in PERG 9.7.2 G (The investment condition: the 'reasonable investor').
PERG 9.8.2GRP
In the FSA's view, the 'realisation' of an investment means converting an asset into cash or money. The FSA does not consider that 'in specie' redemptions (in the sense of exchanging shares or securities of BC with other shares or securities) will generally count as realisation. Section 236(3)(a) refers to the realisation of an investment, the investment being represented by the 'value' of shares or securities held in BC. In the FSA's view, there is no realisation of value where
PERG 9.8.3GRP
The most typical means of realising BC's shares or securities will be by their being redeemed or repurchased, whether by BC or otherwise. There are, of course, other ways in which a realisation may occur. However, the FSA considers that these will often not satisfy all the elements of the definition of an open-ended investment company considered together. For example, the mere fact that shares or securities may be realised on a market will not meet the requirements of the 'satisfaction
PERG 9.8.4GRP
An investor in a body corporate may be able to realise part, but not all, of his investment. The FSA considers that the fact that partial realisations may take place at different times does not prevent the body corporate coming within the definition of an open-ended investment company. But, in any particular case, the 'expectation test' will only be met if the overall period for realising the whole of the investment can be considered to be reasonable. Apart from this, the simple
PERG 9.8.5GRP
The use of an expectation test ensures that the definition of an open-ended investment company is not limited to a situation where a holder of shares in, or securities of, a body corporate has an entitlement or an option to realise his investment. It is enough if, on the facts of any particular case, the reasonable investor would expect that he would be able to realise the investment. The following are examples of circumstances in which the FSA considers that a reasonable investor
PERG 9.8.7GRP
In the FSA's view, the fact that a person may invest in the period shortly before a redemption date would not cause a body corporate, that would not otherwise be regarded as such, to be open-ended. This is because the investment condition must be applied in relation to BC as a whole (see PERG 9.6.3 G (The investment condition (section 236(3) of the Act): general).
PERG 9.8.9GRP
As indicated in PERG 9.3.5 G (The definition), the potential for variation in the form and operation of a body corporate is considerable. So, it is only possible in general guidance to give examples of the factors that the FSA considers may affect any particular judgment. These should be read bearing in mind any specific points considered elsewhere in the guidance. Such factors include:(1) the terms of the body corporate's constitution;(2) the applicable law;(3) any public representations
REC 4.2B.1GRP
1Under section 312C of the Act, if a UK RIE wishes to make arrangements in an EEA State other than the UK to facilitate access to or use of a regulated market or multilateral trading facility operated by it, it must give the FSAwritten notice of its intention to do so. The notice must:(1) describe the arrangements; and(2) identify the EEA State in which the UK RIE intends to make them.
REC 4.2B.2GRP
The FSA must, within one month of receiving the UK RIE's notice, send a copy of it to the Host State regulator.
REC 4.2B.3GRP
The UK RIE may not make the arrangements until the FSA has sent a copy of the notice to the Host State regulator.
REC 4.2B.4GRP
The requirements that a UK RIE must give the FSA written notice and the UK RIE may not make the arrangements until the FSA has sent a copy of it to the Host State regulator do not apply to arrangements made by a UK RIE on or before 31 October 2007.
PERG 7.7.1GRP
If a certificate is granted then, until it is revoked, it is conclusive evidence that the exclusion under article 54 of the Regulated Activities Order applies. A person to whom a certificate is given should notify the FSA of any significant changes to the purpose or nature of the content of the relevant publication or service. The FSA will need to keep the content of the publication or service in question under review.
PERG 7.7.3GRP
The FSA may revoke a certificate at the request of its holder or on the FSA's own initiative if the FSA considers that it is no longer justified. If the FSA revokes a certificate on its own initiative, it would normally expect to give advance notice to the holder of the certificate together with a statement of the reasons for the proposed revocation, and give the holder of the certificate an opportunity to make representations. Where a certificate is revoked, the holder of the
PERG 7.7.4GRP
The fact of a person holding a certificate granted under article 54(3) is information which may be of relevance to other persons (including investors or potential investors). For this reason, the FSA considers it appropriate that details of certificates granted under article 54(3) should be included in a list on the public record which the FSA is required to maintain under section 347 of the Act (The record of authorised persons, etc).
PERG 7.7.5GRP
For further information contact the Perimeter Enquiries Team of the FSA (email: authorisationenquiries@fsa.gov.uk, Tel 020 7066 0082).
DEPP 2.2.1GRP
If FSA staff consider that action requiring a warning notice or first supervisory notice is appropriate, they will recommend to the relevant decision maker that the notice be given.
DEPP 2.2.2GRP
For first supervisory notices, the FSA staff will recommend whether the action should take effect immediately, on a specified date, or when the matter is no longer open to review (see DEPP 2.2.5 G).
DEPP 2.2.3GRP
The decision maker will:(1) consider whether the material on which the recommendation is based is adequate to support it; the decision maker may seek additional information about or clarification of the recommendation, which may necessitate additional work by the relevant FSA staff;(2) satisfy itself that the action recommended is appropriate in all the circumstances;(3) decide whether to give the notice and the terms of any notice given.
DEPP 2.2.4GRP
If the FSA decides to take no further action and the FSA had previously informed the person concerned that it intended to recommend action, the FSA will communicate this decision promptly to the person concerned.
DEPP 7.1.1GRP
1DEPP 7 applies when the FSA:(1) has appointed an investigator at the request of an overseas regulator, under section 169(1)(b) (Assistance to overseas regulators) of the Act; and(2) has directed, or is considering directing, the investigator, under section 169(7) of the Act, to permit a representative of the overseas regulator to attend, and take part in, any interview conducted for the purposes of the investigation.
DEPP 7.1.2GRP
In DEPP 7, a "section 169(7) interview" means any interview conducted for the purposes of an investigation under section 169(1)(b) of the Act in relation to which the FSA has given a direction under section 169(7) of the Act.
DEPP 7.1.3GRP
The purpose of DEPP 7 is to set out the FSA's statement of policy on the conduct of interviews to which a direction under section 169(7) has been given or the FSA is considering giving. The FSA is required to prepare and publish this statement of policy by section 169(9) and (11) of the Act. As required by section 169(10) of the Act, the Treasury has approved the statement of policy.
DEPP 7.1.4GRP
The FSA is keen to promote co-operation with overseas regulators. It views provision of assistance to overseas regulators as an essential part of the principles set out in section 2(3)(e) of the Act to which it must have regard in discharging its general functions.
RCB 3.6.1RRP
If an issuer or owner does not provide the notifications to the FSA required by directions made under this chapter by the date specified, then that issuer or owner must pay to the FSA an administrative fee of £250.
RCB 3.6.2GRP
The FSA's exercise of its powers under Part 1 paragraph 3 of the Schedule to the RCB Regulations (power to require information) may include requesting information on the reviews undertaken or advice given by accountants and where appropriate lawyers.
RCB 3.6.3GRP
The form and content of the notifications in this chapter are a matter for direction by the FSA which will determine any additional information and documentation required on a case-by-case basis.
RCB 3.6.5DRP
Unless otherwise stated, the issuer or the owner, as the case may be, must send the relevant forms and information to the FSA's address marked for the attention of the "Covered Bonds Team, Capital Markets Sector" by any of the following methods:(1) post; or(2) leaving it at the FSA's address and obtaining a time-stamped receipt; or(3) e-mail to rcb@fsa.gov.uk.
SUP 21.1.1GRP
1SUP 21 Annex 1 sets out a form of waiver that the FSA will be minded to give to energy market participants in the exercise of its statutory discretion under section 148 of the Act to grant a waiver of its2rules.2
SUP 21.1.2GRP
Energy market participants should bear in mind that section 148 of the Act requires that in order to give a waiver of particular rules, the FSA must be satisfied that:(1) compliance with the rules, or with the rules as unmodified, would be unduly burdensome or would not achieve the purpose for which the rules were made; and(2) the waiver would not result in undue risk to persons whose interests the rules are intended to protect.
SUP 21.1.3GRP
Accordingly, the FSA must be satisfied that the statutory criteria will be met in each case where an energy market participant applies for a waiver in the form in SUP 21 Annex 1.
SUP 21.1.4GRP
In particular, clause 4 of the form of waiver in SUP 21 Annex 1 will not ordinarily be inserted in waivers for energy market participants that will not, at the time the waiver will take effect, clearly satisfy the conditions set out in that clause. For these purposes the FSA will take into account the relative proportions of the energy market participant's assets and revenues that are referable to the various parts of its business, as well as to any other factor that the FSA considers
LR 4.3.2RRP
The FSA will approve listing particulars or supplementary listing particulars if it is satisfied that the requirements of the Act and this chapter have been complied with.
LR 4.3.3GRP
The FSA will try to notify the applicant of its decision on an application for approval of listing particulars or supplementary listing particulars within the same time limits as are specified in section 87C of the Act (consideration of application for approval) for an application for approval of a prospectus or supplementary prospectus.
LR 4.3.4RRP
An issuer must ensure that listing particulars or supplementary listing particulars are not published until they have been approved by the FSA.
LR 4.3.5RRP
An issuer must ensure that after listing particulars or supplementary listing particulars are approved by the FSA, the listing particulars or supplementary listing particulars are filed and published as if the relevant requirements in PR 3.2 and the PD Regulation applied to them.
LR 2.1.2GRP
Under the Act, the FSA may not grant an application for admission unless it is satisfied that:(1) the requirements of the listing rules are complied with; and(2) any special requirement (see LR 2.1.4 R) is complied with.
LR 2.1.3GRP
Under the Act, the FSA may also refuse an application for admission if it considers that:(1) admission of the securities would be detrimental to investors' interests; or(2) for securities already listed in another EEA State, the issuer has failed to comply with any obligations under that listing.
LR 2.1.4RRP
(1) The FSA may make the admission of securities subject to any special requirement that it considers appropriate to protect investors. [Note: article 12 CARD](2) The FSA must explicitly inform the issuer of any special requirement that it imposes. [Note: article 12 CARD]
LR 2.1.5GRP
2The FSA is not able to make the admission of securities conditional on any event. The FSA may, in particular cases, seek confirmation from an issuer before the admission of securities that the admission does not purport to be conditional on any matter.
DEPP 6.5C.1GRP
1The FSA will seek to deprive an individual of the financial benefit derived as a direct result of the market abuse (which may include the profit made or loss avoided) where it is practicable to quantify this. The FSA will ordinarily also charge interest on the benefit.
DEPP 6.5C.2GRP
(1) The FSA will determine a figure dependent on the seriousness of the market abuse and whether or not it was referable to the individual’s employment. This reflects the FSA’s view that where an individual has been put into a position where he can commit market abuse because of his employment the fine imposed should reflect this by reference to the gross amount of all benefits derived from that employment.(2) In cases where the market abuse was referable to the individual’s employment,
DEPP 6.5C.3GRP
(1) The FSA may increase or decrease the amount of the financial penalty arrived at after Step 2, but not including any amount to be disgorged as set out in Step 1, to take into account factors which aggravate or mitigate the market abuse. Any such adjustments will be made by way of a percentage adjustment to the figure determined at Step 2.(2) The following list of factors may have the effect of aggravating or mitigating the market abuse:(a) the conduct of the individual in
DEPP 6.5C.4GRP
(1) If the FSA considers the figure arrived at after Step 3 is insufficient to deter the individual who committed the market abuse, or others, from committing further or similar abuse then the FSA may increase the penalty. Circumstances where the FSA may do this include:(a) where the FSA considers the absolute value of the penalty too small in relation to the market abuse to meet its objective of credible deterrence;(b) where previous FSA action in respect of similar market abuse
DEPP 6.5C.5GRP
The FSA and the individual on whom a penalty is to be imposed may seek to agree the amount of any financial penalty and other terms. In recognition of the benefits of such agreements, DEPP 6.7 provides that the amount of the financial penalty which might otherwise have been payable will be reduced to reflect the stage at which the FSA and the individual concerned reached an agreement. The settlement discount does not apply to the disgorgement of any benefit calculated at Step
DTR 6.2.2RRP
An issuer or person that discloses regulated information must, at the same time, file that information with the FSA. [Note: article 19(1) of the TD]
DTR 6.2.9GRP
English is a language accepted by the FSA where the United Kingdom is a Home State or Host State.
SYSC 3.2.6EGRP
5The FSA, when considering whether a breach of its rules on systems and controls against money laundering has occurred, will have regard to whether a firm has followed relevant provisions in the guidance for the UK financial sector issued by the Joint Money Laundering Steering Group.
SYSC 3.2.6IRRP
5A firm must:(1) appoint an individual as MLRO, with responsibility for oversight of its compliance with the FSA'srules on systems and controls against money laundering; and(2) ensure that its MLRO has a level of authority and independence within the firm and access to resources and information sufficient to enable him to carry out that responsibility.
SYSC 3.2.6JGRP
5The job of the MLRO within a firm is to act as the focal point for all activity within the firm relating to anti-money laundering. The FSA expects that a firm'sMLRO will be based in the United Kingdom.
SYSC 3.2.10GRP
(1) Depending on the nature, scale and complexity of its business, it may be appropriate for a firm to have a separate risk assessment function responsible for assessing the risks that the firm faces and advising the governing body and senior managers on them.(2) The organisation and responsibilities of a risk assessment function should be documented. The function should be adequately resourced and staffed by an appropriate number of competent staff who are sufficiently independent
SYSC 3.2.16GRP
9(1) Depending on the nature, scale and complexity of its business, it may be appropriate for a firm to delegate much of the task of monitoring the appropriateness and effectiveness of its systems and controls to an internal audit function. An internal audit function should have clear responsibilities and reporting lines to an audit committee or appropriate senior manager, be adequately resourced and staffed by competent individuals, be independent of the day-to-day activities
SYSC 3.2.19GRP
A firm should have in place appropriate arrangements, having regard to the nature, scale and complexity of its business, to ensure that it can continue to function and meet its regulatory obligations in the event of an unforeseen interruption. These arrangements should be regularly updated and tested to ensure their effectiveness.
PERG 8.32.2GRP
Article 25(1) applies only where the arrangements bring about or would bring about the particular transaction in question. This is because of the exclusion in article 26. In the FSA's view, a person brings about or would bring about a transaction only if his involvement in the chain of events leading to the transaction is of enough importance that without that involvement it would not take place. The second limb (article 25(2)) is potentially much wider as it does not require
PERG 8.32.4GRP
The ordinary business of a publisher or broadcaster can involve him in publishing or broadcasting financial promotions (for example, advertisements) on behalf of authorised or exempt persons. Journalists who write about investments or financial services may promote the services of an authorised or exempt person. In the FSA's opinion, such persons would not normally be regarded as making arrangements under article 25(2). This is the case even if any arrangements they may have made
PERG 8.32.5GRP
The Regulated Activities Order contains an exclusion (article 27: Enabling parties to communicate) to bring a degree of certainty to this area. This applies to arrangements which might otherwise fall within article 25(2) merely because they provide the means by which one party to a transaction (or potential transaction) is able to communicate with other parties. In the FSA's view, the crucial element of the exclusion is the inclusion of the word ‘merely’. So that, where a publisher,
PERG 8.32.6GRP
For example, in the FSA's view a publisher or broadcaster would be likely to be making arrangements within the meaning of article 25(2) and be unable to make use of the exclusion in article 27 if:(1) he enters into an agreement with a provider of investment services such as a broker or product provider for the purpose of carrying their financial promotion; and(2) as part of the arrangements, the publisher or broadcaster does one or more of the following:(a) brands the investment
PERG 8.32.9GRP
Other persons who may benefit from the exclusion in article 27 include persons who provide the means for someone to route an order to another person. A person providing such order routing services would not, in the FSA's view, be merely facilitating communication (of the orders) if he provides added value. This added value could be in the form, for example, of such things as formatted screens, audit trails, checking completeness of orders or matching orders or reconciling tra
COLL 7.3.1GRP
(1) The winding up of an ICVC may be carried out under this section instead of by the court provided the ICVC is solvent and the steps required under regulation 21 the OEIC Regulations (The Authority's approval for certain changes in respect of a company) are fulfilled. This section lays down the procedures to be followed and the obligations of the ACD and any other directors of the ICVC. (2) The termination of a sub-fund under this section will be subject to the conditions set
COLL 7.3.3GRP

This table belongs to COLL 7.3.1 G (4) (Explanation of COLL 7.3)3

3

Summary of the main steps in winding up a solvent ICVC or terminating a sub-fund3 under FSA rules, assuming FSA approval.

Notes: N = Notice to be given to the FSA under regulation 21 of OEIC Regulations

E = commencement of winding up or termination

W/U = winding up

FAP = final accounting period (COLL 7.3.8 R(4))

Step number

Explanation

When

COLL rule (unless stated otherwise)

1

Commence preparation of solvency statement

N-28 days

7.3.5 (2)

2

Send audited solvency statement to the FSA with copy to depositary

By N + 21 days

7.3.5 (4) and (5)

3

Receive the FSA approval

N + one month

Regulation 21 of OEIC Regulations

4

Normal business ceases; notify unitholders3

3

E

7.3.6

5

Realise proceeds, wind up, instruct depositary accordingly

ASAP after E

7.3.7

6

Prepare final account or termination account & have account audited

On completion of W/U or termination

7.3.8

7

Send final account or termination account and auditor's report to the FSA & unitholders

Within 43months of FAP

3

7.3.8(6)

8

Request FSA to revoke relevant authorisation order

On completion of W/U

7.3.7(9)

COLL 7.3.4RRP
(1) An ICVC must not be wound up except under this section or as an unregistered company under Part V of the Insolvency Act 1986.(2) An ICVC must not be wound up under this section if there is a vacancy in the position of ACD. (3) An ICVC must not be wound up or a sub-fund terminated under this section: (a) unless and until effect may be given, under regulation 21 of the OEIC Regulations, to proposals to wind up the affairs of the ICVC or to proposals to make the alterations to
COLL 7.3.5RRP
(1) Before notice is given to the FSA under regulation 21 of the OEIC Regulations of the proposals referred to in COLL 7.3.4 R (3), the directors must make a full enquiry into the ICVC's affairs to determine whether the ICVC will be able to meet all its liabilities. (2) The ACD must then, based on the results of this enquiry, prepare a statement either: (a) confirming that the ICVC will be able to meet all its liabilities within twelve months of the date of the statement; or(b)
COLL 7.3.7RRP
(1) Paragraphs (2) to (9) of this rule apply to winding up an ICVC and termination of a sub-fund, paragraph (10) only applies to the winding up of an ICVC and paragraphs (11) to (15) only apply to the termination of a sub-fund of an ICVC.(2) The ACD must, as soon as practicable after winding up or termination has commenced, cause the scheme property to be realised and the liabilities of the ICVC or the sub-fund to be met out of the proceeds.(3) The ACD must instruct the depositary
COLL 7.3.8RRP
(1) Once the ICVC's affairs are wound up or termination of the sub-fund has been completed (including distribution or provision for distribution in accordance with COLL 7.3.7 R (5)),3 the ACD must prepare an account of the winding up or termination showing: 3(a) how it has been conducted; and(b) how the scheme property has been disposed of. (2) The account in (1) must be, if there is: (a) more than one director, approved by the board of directors and be signed on their behalf
COLL 7.3.13RRP
(1) If: (a) during the course, or as a result, of the enquiry referred to in COLL 7.3.5 R (1) (Solvency statement), the directors become of the opinion that it will not be possible to provide the confirmation referred to in (2)(a) of that rule; or(b) after winding up or termination has commenced, the ACD becomes of the opinion that the ICVC will be unable to meet all its liabilities within twelve months of the date of the statement provided under (a) of COLL 7.3.5 R (2); the directors
PERG 9.9.2GRP
In the FSA's view, this means that the reasonable investor must be satisfied that what he will get when he realises his investment is his proportionate share in the value of BC's underlying assets, less any dealing costs. In other words, that he is satisfied he will get net asset value. The investment condition focuses on the way the body corporate operates over time, and not by reference to particular issues of shares or securities (see PERG 9.6.3 G (The investment condition
PERG 9.9.3GRP
For the 'satisfaction test' to be met, there must be objectively justifiable grounds on which the reasonable investor could form a view. He must be satisfied that the value of BC's property will be the basis of a calculation used for the whole, or substantially the whole, of his investment. The FSA considers that the circumstances, or combination of circumstances, in which a reasonable investor would be in a position to form this view include:(1) where the basis of net asset valuation
PERG 9.9.4GRP
PERG 9.9.3 G (2)and PERG 9.9.3 G (3) refer to circumstances where the reasonable investor may be satisfied that he can realise his investment at net asset value because of arrangements made to ensure that the shares or securities trade at net asset value on a market. There may, for example, be cases of market dealing where the price of shares or securities will not depend on the market. An example is where BC or a third party undertakes to ensure that the market value reflects
PERG 9.9.5GRP
However, where there is a market, the FSA does not consider that the test in section 236(3)(b) would be met if the price the investor receives for his investment is wholly dependent on the market rather than specifically on net asset value. In the FSA's view, typical market pricing mechanisms introduce too many uncertainties to be able to form a basis for calculating the value of an investment (linked to net asset value) of the kind contemplated by the satisfaction test. As a
PERG 9.9.6GRP
The fact that the definition must be applied to BC as a whole (see PERG 9.6.3 G (The investment condition (section 236(3) of the Act): general)) is also relevant here. So, for example, in a take-over situation the fact that a bidder may be willing to provide an exit route for an investment at net asset value will be irrelevant within the context of the definition. This is so even if an investor invests in particular shares or securities in the knowledge or expectation or in anticipation