The Undertakings for Collective Investment in Transferable Securities Regulations 2011

Application for authorisation

9.—(1) A merging UK UCITS must apply to the Authority for an order authorising a merger (an “authorisation order”).

(2) The application must be made in such manner as the Authority may direct and must be accompanied by—

(a) the common draft terms of the proposed merger duly approved by the UCITS, any other merging UCITS and the receiving UCITS;

(b) where the receiving UCITS is an EEA UCITS, an up-to-date version of the prospectus and the key investor information referred to in Article 78 of the UCITS directive for that UCITS;

(c) a statement by each of the depositaries or, in the case of an authorised unit trust scheme, the trustee, of the merging UCITS and the receiving UCITS confirming that, in accordance with rules made by the Authority or by the competent authorities of an EEA UCITS involved in the merger to implement Articles 40 and 41 of the UCITS directive, they have verified compliance of the following matters with the requirements of those rules—

(i) the identification of the type of merger and of the UCITS involved;

(ii) the planned effective date of the merger; and

(iii) the rules applicable, respectively, to the transfer of assets and the exchange of units; and

(d) the information on the proposed merger that the merging and the receiving UCITS intend to provide to their respective unit-holders.

(3) Where the proposed merger is a cross-border merger, the information referred to in paragraph (2) must be supplied to the Authority both in English, and in the official language, or one of the official languages of any EEA State in which the merging or receiving EEA UCITS is established, or in a language approved by the competent authorities in that EEA State.

(4) Where the Authority considers that the information supplied under paragraph (2) by the merging UCITS is not complete, the Authority must, within 10 working days of receiving the information, request additional information from the UCITS.

(5) Where the receiving UCITS is an EEA UCITS, the Authority must transmit copies of the information supplied under paragraph (2) to the competent authorities of the receiving EEA UCITS.

(6) The Authority must consider the potential impact of the proposed merger on unit-holders of the merging UCITS to assess whether appropriate information is being provided to unit-holders.

(7) Where the Authority considers it necessary, it may require that the information to be provided to unit-holders of the merging UCITS be clarified.

(8) The Authority must make an authorisation order under paragraph (1) if the following conditions are satisfied—

(a) the requirements set out in this regulation and regulations 10 and 11 and in rules made by the Authority to implement Articles 40 and 41 of the UCITS directive have been complied with;

(b) the merger has been approved by unit-holders of the UK UCITS in accordance with rules made by the Authority;

(c) the receiving UCITS has given the Authority, or, in the case of an EEA receiving UCITS has given the competent authorities of its home Member State, notice of its intention to market its units in another EEA State and that notification has been transmitted under Article 93 of the UCITS directive to the competent authorities of those EEA States in which the merging UCITS is able to market its units; and

(d) the Authority and the competent authorities of any other merging EEA UCITS and of the receiving EEA UCITS are satisfied with the proposed information to be provided to unit-holders, or no indication of dissatisfaction has been received from the competent authorities of the receiving UCITS under paragraph 3 of Article 39 of the UCITS directive.

(9) The Authority must determine an application for authorisation of a merger under this regulation and inform the applicant of its decision within 20 working days of the date on which the Authority received the information required under paragraph (2), or the date on which the Authority received any further information requested under paragraph (4).

(10) The Authority must inform the competent authorities of a receiving EEA UCITS of its decision.

(11) The authorisation order must specify the date on which the merger shall take effect and the dates for calculating the exchange ratio of units of the merging UCITS into units of the receiving UCITS, and, where applicable, for determining the relevant net asset value for cash payments.