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COLL 7.3 Winding up a solvent ICVC and terminating a sub-fund of an ICVC

Explanation of COLL 7.3

COLL 7.3.1GRP

  1. (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. (2)

    The termination of a sub-fund under this section will be subject to the conditions set out in regulation 21 of the OEIC Regulations. Termination can only commence once the proposed alterations to the ICVC's instrument of incorporation and prospectus have been notified to the FSA and permitted to take effect. On termination, the assets of the sub-fund will normally be realised, and the unitholders in the sub-fund will receive their respective share of the proceeds net of liabilities and the expenses of the termination.

  3. (3)

    A sub-fund or ICVC may also be terminated or wound up in connection with a scheme of arrangement. unitholders will become entitled to receive units in another regulated collective investment scheme in exchange for their units.

Special meanings for termination of a sub-fund of an ICVC

COLL 7.3.2RRP

In this section, where a sub-fund of an ICVC is being terminated, references to:

  1. (1)

    units, are references to units of the class or classes related to the sub-fund to be terminated;

  2. (2)

    a resolution, or extraordinary resolution, are references to such a resolution passed at a meeting of unitholders of units of the class or classes referred to in (1);

  3. (3)

    scheme property, are references to the scheme property allocated or attributable to the sub-fund to be terminated; and

  4. (4)

    liabilities, are references to liabilities of the ICVC allocated or attributable to the sub-fund to be terminated.

Guidance on winding up or termination

COLL 7.3.3GRP

This table belongs to COLL 7.3.3 G

Summary of the main steps in winding up a solvent ICVC or terminating a sub-fund 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; publish notices

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 2 months of FAP

7.3.8(6)

8

Request FSA to revoke relevant authorisation order

On completion of W/U

7.3.7(9)

When an ICVC is to be wound up or a sub-fund terminated

COLL 7.3.4RRP

  1. (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. (2)

    An ICVC must not be wound up under this section if there is a vacancy in the position of ACD.

  3. (3)

    An ICVC must not be wound up or a sub-fund terminated under this section:

    1. (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 the ICVC's instrument of incorporation and prospectus that will be required if a sub-fund is terminated; and

    2. (b)

      unless a statement has been prepared and sent or delivered to the FSA under COLL 7.3.5 R (Solvency statement) and received by the FSA prior to satisfaction of the condition in (a).

  4. (4)

    Subject to (3) and the subsequent provisions of this section, the appropriate steps to wind up an ICVC or terminate a sub-fund under this section must be taken:

    1. (a)

      if an extraordinary resolution to that effect is passed; or

    2. (b)

      when the period (if any) fixed for the duration of the ICVC or the sub-fund by the instrument of incorporation expires or any event occurs, for which the instrument of incorporation provides that the ICVC or the sub-fund is to be wound up; or

    3. (c)

      on the date stated in any agreement by the FSA in response to a request from the directors for the winding up of the ICVC or a request for the termination of the sub-fund.

Solvency statement

COLL 7.3.5RRP

  1. (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. (2)

    The ACD must then, based on the results of this enquiry, prepare a statement either:

    1. (a)

      confirming that the ICVC will be able to meet all its liabilities within twelve months of the date of the statement; or

    2. (b)

      stating that such confirmation cannot be given.

  3. (3)

    This solvency statement must:

    1. (a)

      relate to the ICVC's affairs at a date no more than 28 days before the date on which notice is given to the FSA;

    2. (b)

      if there is more than one director, be approved by the board of directors and signed on their behalf by the ACD; and

    3. (c)

      if it contains the confirmation under (2)(a), be signed by at least one other director or, if there is no director other than the ACD, be signed by the ACD.

  4. (4)

    A statement which contains the confirmation under (2)(a) must annex a statement signed by the auditor appointed under Schedule 5 to the OEIC Regulations (Auditors) to the effect that, in his opinion, the enquiry required by (1) has been properly made and is fairly reflected by the confirmation.

  5. (5)

    The solvency statement must be sent or delivered to the FSA and the depositary no later than 21 days after notice is given to the FSA in accordance with regulation 21 of the OEIC Regulations.

Consequences of commencement of winding up or termination

COLL 7.3.6RRP

  1. (1)

    Winding up or termination must commence once the conditions referred to in COLL 7.3.4 R (3) are both satisfied or, if later, once the events in COLL 7.3.4 R (4) have occurred.

  2. (2)

    Once winding up or termination has commenced:

    1. (a)

      COLL 6.2 (Dealing), COLL 6.3 (Valuation and pricing) and COLL 5 (Investment and borrowing powers) cease to apply to the ICVC or to the units and scheme property in the case of a sub-fund;

    2. (b)

      the ICVC must cease to issue and cancel units;

    3. (c)

      the ACD must cease to sell or redeem units or to arrange for the issue or cancellation of units;

    4. (d)

      no transfer of a unit may be registered and no other change to the register of unitholders may be made without the sanction of the directors;

    5. (e)

      where winding up an ICVC, the ICVC must cease to carry on its business, except for its beneficial winding up; and

    6. (f)

      the corporate status and corporate powers of the ICVC and (subject to the preceding provisions of this rule) the powers of the directors continue until the ICVC is dissolved.

  3. (3)

    The ACD must as soon as practicable after winding up or termination has commenced:

    1. (a)

      if the ACD has not previously notified Unitholders of the proposal to wind up the ICVC or terminate the sub-fund, give written notice of the commencement of the winding up or termination to the Unitholders; and

    2. (b)

      if winding up an ICVC that has its head office situated in Northern Ireland2, publish notice of the commencement of the winding up in the Belfast Gazette.1

      2

Manner of winding up or termination

COLL 7.3.7RRP

  1. (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. (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. (3)

    The ACD must instruct the depositary how such proceeds (until utilised to meet liabilities or make distributions to unitholders) must be held and those instructions must be prepared with a view to the prudent protection of creditors and unitholders against loss.

  4. (4)

    Where sufficient liquid funds are available after making adequate provision for the expenses of the winding up or termination and the discharge of the ICVC's or the sub-fund's remaining liabilities, the ACD may arrange for the depositary to make one or more interim distributions to the unitholders proportionately to the right of their respective units to participate in scheme property at the commencement of the winding up or termination.

  5. (5)

    On or before the date on which the final account is sent to unitholders in accordance with COLL 7.3.8 R (Final account and termination account), the ACD must arrange for the depositary to make a final distribution to the unitholders, in the same proportions as provided by (4), of the balance remaining (net of a provision for any further expenses of the ICVC or sub-fund).

  6. (6)

    Paragraphs (2) to (5) are subject to the terms of any scheme of arrangement sanctioned by an extraordinary resolution passed on or before the commencement of the winding up or termination.

  7. (7)

    Where the ICVC and one or more unitholders (other than the ACD) agree, the requirement in (2) to realise the scheme property does not apply to that part of the scheme property which is proportionate to the right to participate in scheme property of that or those unitholders

  8. (8)

    In the case of (7), the ACD must cause the ICVC to distribute that part of the scheme property in specie to that or those unitholders in proportion to their respective rights to participate, this distribution being effected after making adjustments and retaining such provision as appears to the ACD appropriate to ensure that those unitholders bear the proportion of the liabilities and the expenses of the distribution attributable to their units.

  9. (9)

    The depositary must notify the FSA once the winding up of the ICVC or the termination of a sub-fund (including compliance with COLL 7.3.8 R is complete and at the same time the ACD or the depositary must request the FSA to revoke the relevant authorisation order.

  10. (10)

    Where any sum of money stands to the account of the ICVC at the date of its dissolution, the ACD must arrange for the depositary to pay or lodge that sum within one month after that date in accordance with regulation 33(4) or (5) of the OEIC Regulations (Dissolution in other circumstances).

  11. (11)

    Where any sums (including unclaimed distributions) remain standing to the account of the scheme property following tender of payment (whether to a creditor or a Unitholder), the ACD must instruct the depositary to retain the sums ('tendered sums') in an account ('unclaimed payments account') separate from any other part of the scheme property.

  12. (12)

    The depositary must, if instructed by the ACD, make a payment out of the unclaimed payments account for the purpose of settling a claim for a tendered sum.

  13. (13)

    Any costs and reasonable expenses of the ACD for investigating a claim and any costs and expenses incurred by the depositary in making a payment out of the unclaimed payments account may be reimbursed from the payment.

  14. (14)

    The person entitled to any tendered sum is not entitled to any interest in respect of the unclaimed payments account and any interest arising in respect of the unclaimed payments account must be allocated between the continuing sub-funds of the ICVC in a manner which is fair to the Unitholders of the ICVC generally.

  15. (15)

    Amounts standing to the credit of an unclaimed payments account must be excluded from the value of the scheme property and must not be subject to any distribution under this rule, but upon a dissolution of the ICVC under regulation 33 of the OEIC Regulations, the depositary must cease to hold those amounts as part of that account and they will become subject to the provisions of (10).

Final account and termination account

COLL 7.3.8RRP

  1. (1)

    Once the ICVC's affairs are fully 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), the ACD must prepare an account of the winding up or termination showing:

    1. (a)

      how it has been conducted; and

    2. (b)

      how the scheme property has been disposed of.

  2. (2)

    The account in (1) must be, if there is:

    1. (a)

      more than one director, approved by the board of directors and be signed on their behalf by the ACD and at least one other director; or

    2. (b)

      no director other than the ACD, signed by the ACD.

  3. (3)

    Once signed, this account is the "final account" for the purposes of the winding up of an ICVC and the "termination account" for the purposes of the termination of a sub-fund.

  4. (4)

    The final account must state the date on which the ICVC's affairs were fully wound up and the date stated must be regarded as the final day of the accounting period of the ICVC then running ('final accounting period').

  5. (5)

    The ACD must ensure that the ICVC's auditor makes a report in respect of the final account or termination account, which states the auditor's opinion whether the final account or termination account has been properly prepared for the purpose of (1).

  6. (6)

    Within two months of the date of the completion of the winding up of the ICVC or termination of the sub-fund, the ACD must send a copy of the final account or termination account and the auditor's report on it to the FSA and to each person who was a unitholder (or the first named of joint unitholders) immediately before its end.

Duty to ascertain liabilities

COLL 7.3.9RRP

  1. (1)

    The ACD must use all reasonable endeavours to ensure that all the liabilities of the ICVC are discharged before the completion of the winding up or termination.

  2. (2)

    The duty in (1) relates to all liabilities of which the ACD:

    1. (a)

      is, or becomes, aware before the completion of the winding up or termination; or

    2. (b)

      would have become aware before the completion of the winding up or termination had it used all reasonable endeavours to ascertain the liabilities.

  3. (3)

    If the ACD rejects any claim against the ICVC in whole or part or against the ICVC in respect of a liability in whole or part, the ACD must immediately send to the claimant written notice of its reasons for doing so.

Reports and accounts

COLL 7.3.10RRP

  1. (1)

    The ACD need not (as would be required under COLL 4.5.13 R (Provision of short report)) send to each Unitholder a copy of any short report relating to an annual accounting period or half-yearly accounting period which began after commencement of winding up or termination, if the directors of the ICVC, after consulting the FSA, have reasonably determined that this is not required in the interest of unitholders.

  2. (2)

    Where (1) applies, a copy of the short or long report must be supplied free of charge to any unitholder upon request.

Liabilities of the ACD

COLL 7.3.11RRP

  1. (1)

    Except to the extent that the ACD can show that it has complied with COLL 7.3.9 R (Duty to ascertain liabilities), the ACD:

    1. (a)

      is personally liable to meet any liability of an ICVC, of which it is the ACD, wound up under this section (whether or not the ICVC has been dissolved); and

    2. (b)

      must keep the ICVC indemnified against any liability allocated or attributable to a sub-fund that has been terminated under these rules

    that was not discharged before the completion of the winding up or termination.

  2. (2)

    Where winding up an ICVC, if the proceeds of the realisation of the assets attributable, or allocated to a particular sub-fund of an umbrella ICVC are insufficient to meet the liabilities attributable or allocated to that sub-fund, the ACD must pay to the ICVC, for the account of that sub-fund the amount of the deficit, unless and to the extent that the ACD can show that the deficit did not arise as a result of any failure by the ACD to comply with the rules in COLL.

  3. (3)

    The liabilities of the ACD under this rule create a debt (in England and Wales in the nature of a specialty) accruing due from it on the completion of the winding up or termination and payable upon the demand of the creditor in question (including the ICVC in the circumstances described in (2)).

  4. (4)

    The obligations of the ACD under this rule do not affect any other obligation of the ACD under these rules or the general law.

Additional provisions applicable to umbrella companies

COLL 7.3.12R

  1. (1)

    Liabilities of an ICVC which is an umbrella attributable, or allocated, to a particular sub-fund must be met first out of the scheme property attributable or allocated to such sub-fund.

  2. (2)

    If the liabilities to be met out of a particular sub-fund of an umbrella ICVC are greater than the proceeds of the realisation of the scheme property attributable or allocated to that sub-fund, the deficit must be met out of the scheme property attributable or allocated to the solvent sub-funds of that umbrella ICVC in which the proceeds of realisation exceed liabilities and divided between those sub-funds in a manner that is fair to the Unitholders in those solvent sub-funds.

  3. (3)

    Paragraph (2) applies in respect of any deficit arising as a result of additional liabilities accruing to a sub-fund through the operation of (2).

  4. (4)

    In calculating the amount of liabilities for the purpose of (2), account must be taken of any payments received or to be received from the ACD under COLL 7.3.11 R (Liabilities of the ACD).

Miscellaneous

COLL 7.3.13RRP

  1. (1)

    If:

    1. (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

    2. (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 must immediately present a petition or cause the ICVC to present a petition for the winding up of the ICVC as an unregistered ICVC under Part V of the Insolvency Act 1986.

  2. (2)

    If, after the commencement of a winding up under this chapter and before notice of completion of the winding up has been sent to the FSA, there is a vacancy in the position of ACD, the directors of the ICVC must immediately present or cause the ICVC to present or, if there are no directors, the depositary must immediately present,

    a petition for the winding up of the ICVC as an unregistered ICVC under Part V of the Insolvency Act 1986.