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COLL 6.5 Appointment and replacement of the authorised fund manager and the depositary

Application

COLL 6.5.1R

This section applies in accordance with COLL 6.5.2 R (Table of application).

COLL 6.5.2R

Table of application

This table belongs to COLL 6.5.1 R.

Rule

ICVC

ACD

Any other director of an ICVC

Depositary of an ICVC

Authorised fund manager of an AUT or ACS3

3

Depositary of an AUT or ACS3

3

6.5.1R

x

x

x

x

x

x

6.5.3R

x

x

x

x

6.5.4R

x

x

x

6.5.5R

x

x

6.5.6R

x

x

6.5.7R

x

x

6.5.8R

x

x

6.5.9R

x

x

6.5.10R

x

x

x

x

Note: "x" means "applies", but not every paragraph in every rule will necessarily apply.

COLL 6.5.2AG

4COLL 6.6A and COLL 6.6B set out additional FCA rules and guidance applicable to the authorised fund manager and depositary of a UCITS scheme in relation to the appointment and duties of the depositary.

Appointment of an ACD

COLL 6.5.3R
  1. (1)

    The directors (or director) of an ICVC must take all practicable steps to ensure the ICVC has at all times as its ACD a person who is qualified to act as ACD.

  2. (2)

    If the ICVC ceases to have any director, the depositary must exercise its powers, under the OEIC Regulations, to appoint a person to be an ACD of the ICVC.

  3. (3)

    For an ICVC that holds annual general meetings under the OEIC Regulations, the1 appointment of an ACD (other than the first ACD), under (1) or (2), must terminate at the close of the next annual general meeting following the date of the appointment or (if later) upon the expiration of 12 months from the date the appointment takes effect, unless the appointment has been approved by a resolution of the Unitholders before the close of that annual general meeting or expiration of that 12 month period (as the case may be).

    1
  4. (4)

    An ACD must not voluntarily terminate its appointment as ACD unless the termination is effective at the same time as the commencement of the appointment of a successor ACD.

  5. (5)
    1. (a)

      In the event of:

      1. (i)

        any person becoming or ceasing to be a director;

      2. (ii)

        the appointment of an ACD being terminated;

      3. (iii)

        a new ACD being appointed; or

      4. (iv)

        a corporate director (including the ACD) becoming aware of any change of its controller;

      the FCA must immediately be notified in accordance with (b).

    2. (b)

      In the case of:

      1. (i)

        (a)(i), by the ACD;

      2. (ii)

        (a)(ii), by the ACD whose appointment is being terminated;

      3. (iii)

        (a)(iii), by the new ACD; and

      4. (iv)

        (a)(iv), by the corporate director concerned.

Termination of appointment of an ACD

COLL 6.5.4R
  1. (1)

    The appointment of an ACD terminates immediately upon it ceasing to be a director.

  2. (2)

    The appointment of an ACD terminates if a notice of termination of that appointment, the terms of which have been approved by a resolution of the board of directors of the ICVC, is given to the ACD.

  3. (3)

    If there is no director other than the ACD, the appointment of the ACD terminates if a notice of termination of that appointment is given by the depositary to the ACD and to the ICVC, following any of the following events:

    1. (a)

      the calling of a meeting to consider a resolution for winding up the ACD;

    2. (b)

      an application being made to dissolve the ACD or to strike it off the Register of Companies;

    3. (c)

      the presentation of a petition for the winding up of the ACD;

    4. (d)

      the making of, or any proposals for the making of, a composition or arrangement with any one or more of the ACD's creditors;

    5. (e)

      the appointment of a receiver to the ACD (whether an administrative receiver or a receiver appointed over particular property);

    6. (f)

      anything equivalent to (a) to (e) above occurring in respect of the ACD in a jurisdiction outside the United Kingdom.

  4. (4)

    Any termination under (2) or (3) takes effect when the notice is given, or on any subsequent time for its effect stated in the notice, or, if later, the time at which the termination is permitted to take effect under regulation 21 of the OEIC Regulations (The Authority's approval for certain changes in respect of a company).

  5. (5)

    The depositary must (unless the termination takes effect at the same time as the appointment of a successor ACD) ensure that the Unitholders are informed of the termination of the appointment of an ACD.

  6. (6)

    The depositary is entitled to be reimbursed out of the scheme property for its out of pocket expenses in complying with (5).

Other directors

COLL 6.5.5R
  1. (1)

    Any directors of an ICVC other than the ACD must exercise reasonable care to ensure that the ACD undertakes the responsibilities allocated under COLL 6.6.3 R (1) (Functions of the authorised fund manager) in a competent manner and the ACD must give those directors the information and explanations they consider necessary for this purpose.

  2. (2)

    A director of an ICVC must not appoint an alternate director.

  3. (3)

    When there is no person acting as ACD, the directors of an ICVC have the functions of an ACD under COLL 6.6.3 R (1) , but this does not affect the powers of the directors under COLL 6.6.15 R (Committees and delegation).

  4. (4)

    When (3) applies, the directors must retain the services of one or more authorised persons to assist them in performing the functions referred to in COLL 6.6.3 R (1) and COLL 6.6.3 R (2) .

ICVC without a director

COLL 6.5.6R

If the ICVC ceases to have any directors, the depositary may:

  1. (1)

    retain the services of an authorised person to carry out the functions referred to in COLL 6.6.3 R (3) (a) and COLL 6.6.3 R (1) (b) ; or

  2. (2)

    manage the scheme property itself on behalf of the ICVC until a director is appointed or the winding up of the ICVC is commenced provided it is not prohibited from doing so by any law or rule.

Replacement of an authorised fund manager of an AUT or ACS

COLL 6.5.7R
  1. (1)

    The authorised fund manager3 of an AUT3 or ACS3 is subject to removal by written notice by the depositary3 upon any of the following events:

    33
    1. (a)

      the calling of a meeting to consider a resolution for winding up the authorised fund manager3;

      3
    2. (b)

      an application being made to dissolve the authorised fund manager3 or to strike it off the Register of Companies;

      3
    3. (c)

      the presentation of a petition for the winding up of the authorised fund manager3;

      3
    4. (d)

      the making of, or any proposals for the making of, a composition or arrangement with any one or more of the authorised fund manager's3 creditors;

      3
    5. (e)

      the appointment of a receiver to the authorised fund manager3 (whether an administrative receiver or a receiver appointed over particular property);

      3
    6. (f)

      anything equivalent to (a) to (e) above occurring in respect of the authorised fund manager3 in a jurisdiction outside the United Kingdom;

      3
    7. (g)

      the depositary3 forming the reasonable opinion, and stating in writing, that a change of authorised fund manager3 is desirable in the interest of Unitholders;

      33
    8. (h)

      a resolution of Unitholders being passed to remove the authorised fund manager3; or

      3
    9. (i)

      the Unitholders of three quarters in value of all of 2the units then in issue 2(excluding units held or treated as held by the authorised fund manager3 or by any associate of the authorised fund manager3) making a request in writing to the depositary3 that the authorised fund manager3 should be removed.

      23333
  2. (2)

    On receipt of a notice by the depositary3 under (1), the authorised fund manager3 of the AUT or ACS3 ceases to be the authorised fund manager3; and the depositary3 must by deed appoint another person eligible under the Act to be the authorised fund manager3 of the AUT or ACS3 upon and subject to that other entering into such deed or deeds as the depositary3 may require.

    333333
  3. (3)

    If the name of the AUT or ACS3 contains a reference to the name of the former authorised fund manager3, the former authorised fund manager3 is entitled to require the new authorised fund manager3 and the depositary3 immediately on receipt of a notice under (1) to propose a change in the name of the AUT or ACS.3

    3333

Retirement of an authorised fund manager of an AUT or ACS

COLL 6.5.8R
  1. (1)

    The authorised fund manager of an AUT or ACS3 has the right to retire in favour of another person eligible under the Act and approved in writing by the depositary3 upon:

    33
    1. (a)

      the retiring authorised fund manager3 appointing that person by deed as authorised fund manager3 in its place and assigning to that person all its rights and duties as such a authorised fund manager3; and

      333
    2. (b)

      the new authorised fund manager3 entering into such deeds as the depositary3 reasonably considers necessary or desirable to be entered into by that person in order to secure the due performance of its duties as the authorised fund manager3 of the AUT or ACS3.

      333
  2. (2)

    Upon retirement, the retiring authorised fund manager3:

    3
    1. (a)

      subject to (3), is released from all further obligations under the rules in this sourcebook and under the trust deed or contractual scheme deed3; and

    2. (b)

      may retain any consideration paid to it in connection with the change without having to account for it to any Unitholder.

  3. (3)

    Sub-paragraph (2)(a) does not affect the rights of the depositary3 or any other person in respect of any act or omission on the part of the retiring authorised fund manager3 before his retirement.

    33

Consequences of removal or retirement of an authorised fund manager of an AUT or ACS

COLL 6.5.9R
  1. (1)

    Upon the removal or retirement of the authorised fund manager3, the removed or retiring authorised fund manager of an AUT or ACS:3

    33
    1. (a)

      is entitled to be recorded in the register for those units continued to be held or treated as held by it as principal3; and

    2. (b)

      may require the depositary3 to issue to it a certificate for those units (if not previously issued).

      3
  2. (2)

    Paragraph (1) is subject to any restriction in the prospectus relating to the permitted categories of Unitholders.

    3

Retirement of the depositary

COLL 6.5.10R
  1. (1)

    The depositary of an authorised fund may not retire voluntarily except upon the appointment of a new depositary.

  2. (2)

    The depositary of an authorised fund must not retire voluntarily unless, before its retirement, it has ensured that the new depositary has been informed of any circumstance of which the retiring depositary has informed the FCA.

  3. (3)

    When the depositary of an authorised fund wishes to retire or ceases to be an authorised person, the authorised fund manager may, subject to section 251 of the Act (Alteration of schemes and changes of manager or trustee), section 261Q of the Act (Alteration of contractual schemes and changes of operator or depositary)3 or regulation 21 of the OEIC Regulations (The Authority's approval for certain changes in respect of a company) appoint another person eligible to be the depositary in its place.