SCHEDULE 12 Takeover Offers: Provisions Substituted for Sections 428, 429 and 430 of Companies Act 1985
Section 172.
Part XIIIA Takeover Offers
“Takeover offers.”
428 (1) In this Part of this Act “a takeover offer” means an offer to acquire all the shares, or all the shares of any class or classes, in a company (other than shares which at the date of the offer are already held by the offeror), being an offer on terms which are the same in relation to all the shares to which the offer relates or, where those shares include shares of different classes, in relation to all the shares of each class.
(2) In subsection (1) “shares” means shares which have been allotted on the date of the offer but a takeover offer may include among the shares to which it relates all or any shares that are subsequently allotted before a date specified in or determined in accordance with the terms of the offer.
(3) The terms offered in relation to any shares shall for the purposes of this section be treated as being the same in relation to all the shares or, as the case may be, all the shares of a class to which the offer relates notwithstanding any variation permitted by subsection (4).
(4) A variation is permitted by this subsection where—
(a) the law of a country or territory outside the United Kingdom precludes an offer of consideration in the form or any of the forms specified in the terms in question or precludes it except after compliance by the offeror with conditions with which he is unable to comply or which he regards as unduly onerous; and
(b) the variation is such that the persons to whom an offer of consideration in that form is precluded are able to receive consideration otherwise than in that form but of substantially equivalent value.
(5) The reference in subsection (1) to shares already held by the offeror includes a reference to shares which he has contracted to acquire but that shall not be construed as including shares which are the subject of a contract binding the holder to accept the offer when it is made, being a contract entered into by the holder either for no consideration and under seal or for no consideration other than a promise by the offeror to make the offer.
(6) In the application of subsection (5) to Scotland, the words “and under seal” shall be omitted.
(7) Where the terms of an offer make provision for their revision and for acceptances on the previous terms to be treated as acceptances on the revised terms, the revision shall not be regarded for the purposes of this Part of this Act as the making of a fresh offer and references in this Part of this Act to the date of the offer shall accordingly be construed as references to the date on which the original offer was made.
(8) In this Part of this Act “the offeror” means, subject to section 430D, the person making a takeover offer and “the company” means the company whose shares are the subject of the offer.
Right of offeror to buy out minority shareholders.
429 (1) If, in a case in which a takeover offer does not relate to shares of different classes, the offeror has by virtue of acceptances of the offer acquired or contracted to acquire not less than nine-tenths in value of the shares to which the offer relates he may give notice to the holder of any shares to which the offer relates which the offeror has not acquired or contracted to acquire that he desires to acquire those shares.
(2) If, in a case in which a takeover offer relates to shares of different classes, the offeror has by virtue of acceptances of the offer acquired or contracted to acquire not less than nine-tenths in value of the shares of any class to which the offer relates, he may give notice to the holder of any shares of that class which the offeror has not acquired or contracted to acquire that he desires to acquire those shares.
(3) No notice shall be given under subsection (1) or (2) unless the offeror has acquired or contracted to acquire the shares necessary to satisfy the minimum specified in that subsection before the end of the period of four months beginning with the date of the offer; and no such notice shall be given after the end of the period of two months beginning with the date on which he has acquired or contracted to acquire shares which satisfy that minimum.
(4) Any notice under this section shall be given in the prescribed manner; and when the offeror gives the first notice in relation to an offer he shall send a copy of it to the company together with a statutory declaration by him in the prescribed form stating that the conditions for the giving of the notice are satisfied.
(5) Where the offeror is a company (whether or not a company within the meaning of this Act) the statutory declaration shall be signed by a director.
(6) Any person who fails to send a copy of a notice or a statutory declaration as required by subsection (4) or makes such a declaration for the purposes of that subsection knowing it to be false or without having reasonable grounds for believing it to be true shall be liable to imprisonment or a fine, or both, and for continued failure to send the copy or declaration, to a daily default fine.
(7) If any person is charged with an offence for failing to send a copy of a notice as required by subsection (4) it is a defence for him to prove that he took reasonable steps for securing compliance with that subsection.
(8) Where during the period within which a takeover offer can be accepted the offeror acquires or contracts to acquire any of the shares to which the offer relates but otherwise than by virtue of acceptances of the offer, then, if—
(a) the value of the consideration for which they are acquired or contracted to be acquired (“the acquisition consideration") does not at that time exceed the value of the consideration specified in the terms of the offer; or
(b) those terms are subsequently revised so that when the revision is announced the value of the acquisition consideration, at the time mentioned in paragraph (a) above, no longer exceeds the value of the consideration specified in those terms,
the offeror shall be treated for the purposes of this section as having acquired or contracted to acquire those shares by virtue of acceptances of the offer; but in any other case those shares shall be treated as excluded from those to which the offer relates.
Effect of notice under s. 429.
430 (1) The following provisions shall, subject to section 430C, have effect where a notice is given in respect of any shares under section 429.
(2) The offeror shall be entitled and bound to acquire those shares on the terms of the offer.
(3) Where the terms of an offer are such as to give the holder of any shares a choice of consideration the notice shall give particulars of the choice and state—
(a) that the holder of the shares may within six weeks from the date of the notice indicate his choice by a written communication sent to the offeror at an address specified in the notice; and
(b) which consideration specified in the offer is to be taken as applying in default of his indicating a choice as aforesaid;
and the terms of the offer mentioned in subsection (2) shall be determined accordingly.
(4) Subsection (3) applies whether or not any time-limit or other conditions applicable to the choice under the terms of the offer can still be complied with; and if the consideration chosen by the holder of the shares—
(a) is not cash and the offeror is no longer able to provide it; or
(b) was to have been provided by a third party who is no longer bound or able to provide it,
the consideration shall be taken to consist of an amount of cash payable by the offeror which at the date of the notice is equivalent to the chosen consideration.
(5) At the end of six weeks from the date of the notice the offeror shall forthwith—
(a) send a copy of the notice to the company; and
(b) pay or transfer to the company the consideration for the shares to which the notice relates.
(6) If the shares to which the notice relates are registered the copy of the notice sent to the company under subsection (5)(a) shall be accompanied by an instrument of transfer executed on behalf of the shareholder by a person appointed by the offeror; and on receipt of that instrument the company shall register the offeror as the holder of those shares.
(7) If the shares to which the notice relates are transferable by the delivery of warrants or other instruments the copy of the notice sent to the company under subsection (5)(a) shall be accompanied by a statement to that effect; and the company shall on receipt of the statement issue the offeror with warrants or other instruments in respect of the shares and those already in issue in respect of the shares shall become void.
(8) Where the consideration referred to in paragraph (b) of subsection (5) consists of shares or securities to be allotted by the offeror the reference in that paragraph to the transfer of the consideration shall be construed as a reference to the allotment of the shares or securities to the company.
(9) Any sum received by a company under paragraph (b) of subsection (5) and any other consideration received under that paragraph shall be held by the company on trust for the person entitled to the shares in respect of which the sum or other consideration was received.
(10) Any sum received by a company under paragraph (b) of subsection (5), and any dividend or other sum accruing from any other consideration received by a company under that paragraph, shall be paid into a separate bank account, being an account the balance on which bears interest at an appropriate rate and can be withdrawn by such notice (if any) as is appropriate.
(11) Where after reasonable enquiry made at such intervals as are reasonable the person entitled to any consideration held on trust by virtue of subsection (9) cannot be found and twelve years have elapsed since the consideration was received or the company is wound up the consideration (together with any interest, dividend or other benefit that has accrued from it) shall be paid into court.
(12) In relation to a company registered in Scotland, subsections (13) and (14) shall apply in place of subsection (11).
(13) Where after reasonable enquiry made at such intervals as are reasonable the person entitled to any consideration held on trust by virtue of subsection (9) cannot be found and twelve years have elapsed since the consideration was received or the company is wound up—
(a) the trust shall terminate;
(b) the company or, as the case may be, the liquidator shall sell any consideration other than cash and any benefit other than cash that has accrued from the consideration; and
(c) a sum representing—
(i) the consideration so far as it is cash;
(ii) the proceeds of any sale under paragraph (b) above; and
(iii) any interest, dividend or other benefit that has accrued from the consideration,
shall be deposited in the name of the Accountant of Court in a bank account such as is referred to in subsection (10) and the receipt for the deposit shall be transmitted to the Accountant of Court.
(14) Section 58 of the Bankruptcy (Scotland) Act 1985 (so far as consistent with this Act) shall apply with any necessary modifications to sums deposited under subsection (13) as that section applies to sums deposited under section 57(1)(a) of that Act.
(15) The expenses of any such enquiry as is mentioned in subsection (11) or (13) may be defrayed out of the money or other property held on trust for the person or persons to whom the enquiry relates.
Right of minority shareholder to be bought out by offeror.
430A (1) If a takeover offer relates to all the shares in a company and at any time before the end of the period within which the offer can be accepted—
(a) the offeror has by virtue of acceptances of the offer acquired or contracted to acquire some (but not all) of the shares to which the offer relates; and
(b) those shares, with or without any other shares in the company which he has acquired or contracted to acquire, amount to not less than nine-tenths in value of all the shares in the company,
the holder of any shares to which the offer relates who has not accepted the offer may by a written communication addressed to the offeror require him to acquire those shares.
(2) If a takeover offer relates to shares of any class or classes and at any time before the end of the period within which the offer can be accepted—
(a) the offeror has by virtue of acceptances of the offer acquired or contracted to acquire some (but not all) of the shares of any class to which the offer relates; and
(b) those shares, with or without any other shares of that class which he has acquired or contracted to acquire, amount to not less than nine-tenths in value of all the shares of that class,
the holder of any shares of that class who has not accepted the offer may by a written communication addressed to the offeror require him to acquire those shares.
(3) Within one month of the time specified in subsection (1) or, as the case may be, subsection (2) the offeror shall give any shareholder who has not accepted the offer notice in the prescribed manner of the rights that are exercisable by him under that subsection; and if the notice is given before the end of the period mentioned in that subsection it shall state that the offer is still open for acceptance.
(4) A notice under subsection (3) may specify a period for the exercise of the rights conferred by this section and in that event the rights shall not be exercisable after the end of that period; but no such period shall end less than three months after the end of the period within which the offer can be accepted.
(5) Subsection (3) does not apply if the offeror has given the shareholder a notice in respect of the shares in question under section 429.
(6) If the offeror fails to comply with subsection (3) he and, if the offeror is a company, every officer of the company who is in default or to whose neglect the failure is attributable, shall be liable to a fine and, for continued contravention, to a daily default fine.
(7) If an offeror other than a company is charged with an offence for failing to comply with subsection (3) it is a defence for him to prove that he took all reasonable steps for securing compliance with that subsection.
Effect of requirement under s. 430A.
430B (1) The following provisions shall, subject to section 430C, have effect where a shareholder exercises his rights in respect of any shares under section 430A.
(2) The offeror shall be entitled and bound to acquire those shares on the terms of the offer or on such other terms as may be agreed.
(3) Where the terms of an offer are such as to give the holder of shares a choice of consideration the holder of the shares may indicate his choice when requiring the offeror to acquire them and the notice given to the holder under section 430A(3)—
(a) shall give particulars of the choice and of the rights conferred by this subsection; and
(b) may state which consideration specified in the offer is to be taken as applying in default of his indicating a choice;
and the terms of the offer mentioned in subsection (2) shall be determined accordingly.
(4) Subsection (3) applies whether or not any time-limit or other conditions applicable to the choice under the terms of the offer can still be complied with; and if the consideration chosen by the holder of the shares—
(a) is not cash and the offerer is no longer able to provide it; or
(b) was to have been provided by a third party who is no longer bound or able to provide it,
the consideration shall be taken to consist of an amount of cash payable by the offeror which at the date when the holder of the shares requires the offeror to acquire them is equivalent to the chosen consideration.
Applications to the court.
430C (1) Where a notice is given under section 429 to the holder of any shares the court may, on an application made by him within six weeks from the date on which the notice was given—
(a) order that the offeror shall not be entitled and bound to acquire the shares; or
(b) specify terms of acquisition different from those of the offer.
(2) If an application to the court under subsection (1) is pending at the end of the period mentioned in subsection (5) of section 430 that subsection shall not have effect until the application has been disposed of.
(3) Where the holder of any shares exercises his rights under section 430A the court may, on an application made by him or the offeror, order that the terms on which the offeror is entitled and bound to acquire the shares shall be such as the court thinks fit.
(4) No order for costs or expenses shall be made against a shareholder making an application under subsection (1) or (3) unless the court considers—
(a) that the application was unnecessary, improper or vexatious; or
(b) that there has been unreasonable delay in making the application or unreasonable conduct on his part in conducting the proceedings on the application.
(5) Where a takeover offer has not been accepted to the extent necessary for entitling the offeror to give notices under subsection (1) or (2) of section 429 the court may, on the application of the offeror, make an order authorising him to give notices under that subsection if satisfied—
(a) that the offeror has after reasonable enquiry been unable to trace one or more of the persons holding shares to which the offer relates;
(b) that the shares which the offeror has acquired or contracted to acquire by virtue of acceptances of the offer, together with the shares held by the person or persons mentioned in paragraph (a), amount to not less than the minimum specified in that subsection; and
(c) that the consideration offered is fair and reasonable;
but the court shall not make an order under this subsection unless it considers that it is just and equitable to do so having regard, in particular, to the number of shareholders who have been traced but who have not accepted the offer.
Joint offers.
430D (1) A takeover offer may be made by two or more persons jointly and in that event this Part of this Act has effect with the following modifications.
(2) The conditions for the exercise of the rights conferred by sections 429 and 430A shall be satisfied by the joint offerors acquiring or contracting to acquire the necessary shares jointly (as respects acquisitions by virtue of acceptances of the offer) and either jointly or separately (in other cases); and, subject to the following provisions, the rights and obligations of the offeror under those sections and sections 430 and 430B shall be respectively joint rights and joint and several obligations of the joint offerors.
(3) It shall be a sufficient compliance with any provision of those sections requiring or authorising a notice or other document to be given or sent by or to the joint offerors that it is given or sent by or to any of them; but the statutory declaration required by section 429(4) shall be made by all of them and, in the case of a joint offeror being a company, signed by a director of that company.
(4) In sections 428, 430(8) and 430E references to the offeror shall be construed as references to the joint offerors or any of them.
(5) In section 430(6) and (7) references to the offeror shall be construed as references to the joint offerors or such of them as they may determine.
(6) In sections 430(4)(a) and 430B(4)(a) references to the offeror being no longer able to provide the relevant consideration shall be construed as references to none of the joint offerors being able to do so.
(7) In section 430C references to the offeror shall be construed as references to the joint offerors except that any application under subsection (3) or (5) may be made by any of them and the reference in subsection (5)(a) to the offeror having been unable to trace one or more of the persons holding shares shall be construed as a reference to none of the offerors having been able to do so.
Associates.
430E (1) The requirement in section 428(1) that a takeover offer must extend to all the shares, or all the shares of any class or classes, in a company shall be regarded as satisfied notwithstanding that the offer does not extend to shares which associates of the offeror hold or have contracted to acquire; but, subject to subsection (2), shares which any such associate holds or has contracted to acquire, whether at the time when the offer is made or subsequently, shall be disregarded for the purposes of any reference in this Part of this Act to the shares to which a takeover offer relates.
(2) Where during the period within which a takeover offer can be accepted any associate of the offeror acquires or contracts to acquire any of the shares to which the offer relates, then, if the condition specified in subsection (8)(a) or (b) of section 429 is satisfied as respects those shares they shall be treated for the purposes of that section as shares to which the offer relates.
(3) In section 430A(1)(b) and (2)(b) the reference to shares which the offeror has acquired or contracted to acquire shall include a reference to shares which any associate of his has acquired or contracted to acquire.
(4) In this section “associate”, in relation to an offeror means—
(a) a nominee of the offeror;
(b) a holding company, subsidiary or fellow subsidiary of the offeror or a nominee of such a holding company, subsidiary or fellow subsidiary;
(c) a body corporate in which the offeror is substantially interested; or
(d) any person who is, or is a nominee of, a party to an agreement with the offeror for the acquisition of, or of an interest in, the shares which are the subject of the take-over offer, being an agreement which includes provisions imposing obligations or restrictions such as are mentioned in section 204(2)(a).
(5) For the purposes of subsection (4)(b) a company is a fellow subsidiary of another body corporate if both are subsidiaries of the same body corporate but neither is a subsidiary of the other.
(6) For the purposes of subsection (4)(c) an offeror has a substantial interest in a body corporate if—
(a) that body or its directors are accustomed to act in accordance with his directions or instructions; or
(b) he is entitled to exercise or control the exercise of one-third or more of the voting power at general meetings of that body.
(7) Subsections (5) and (6) of section 204 shall apply to subsection (4)(d) above as they apply to that section and subsections (3) and (4) of section 203 shall apply for the purposes of subsection (6) above as they apply for the purposes of subsection (2)(b) of that section.
(8) Where the offeror is an individual his associates shall also include his spouse and any minor child or step-child of his.
Convertible securities.
430F (1) For the purposes of this Part of this Act securities of a company shall be treated as shares in the company if they are convertible into or entitle the holder to subscribe for such shares; and references to the holder of shares or a shareholder shall be construed accordingly.
(2) Subsection (1) shall not be construed as requiring any securities to be treated—
(a) as shares of the same class as those into which they are convertible or for which the holder is entitled to subscribe; or
(b) as shares of the same class as other securities by reason only that the shares into which they are convertible or for which the holder is entitled to subscribe are of the same class.
Section 182.
1 In section 133(2)(a) of the Fair Trading Act 1973 after the words “the Telecommunications Act 1984" there shall be inserted the words “or Chapter XIV of Part I of the Financial Services Act 1986".
2 In section 41(1)(a) of the Restrictive Trade Practices Act 1976 after the words “the Telecommunications Act 1984" there shall be inserted the words “or Chapter XIV of Part I of the Financial Services Act 1986".
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3, 4.
5 At the end of section 19(3) of the Competition Act 1980 there shall be inserted—
(h) Chapter XIV of Part I of the Financial Services Act 1986
.
6 For subsections (1) and (2) of section 47A of the Insurance Companies Act 1982 there shall be substituted—
(1) Subject to the following provisions of this section, no information relating to the business or other affairs of any person which has been obtained under section 44(2) to (4) above shall be disclosed without the consent of the person from whom the information was obtained and, if different, the person to whom it relates.
(2) Subsection (1) above shall not preclude the disclosure of information to any person who is a competent authority for the purposes of section 449 of the Companies Act 1985.
(2A) Subsection (1) above shall not preclude the disclosure of information as mentioned in any of the paragraphs except (m) of subsection (1) of section 180 of the Financial Services Act 1986 or in subsection (3) or (4) of that section or as mentioned in section 449(1) of the Companies Act 1985.
(2B) Subsection (1) above shall not preclude the disclosure of any such information as is mentioned in section 180(5) of the Financial Services Act 1986 by any person who by virtue of that section is not precluded by section 179 of that Act from disclosing it.
7 After subsection (1) of section 437 of the Companies Act 1985 there shall be inserted—
(1A) Any persons who have been appointed under section 431 or 432 may at any time and, if the Secretary of State directs them to do so, shall inform him of any matters coming to their knowledge as a result of their investigations.
;
and subsection (2) of section 433 of that Act shall be omitted.
8 In section 446 of that Act—
(a) in subsection (3) for the words “to 436" there shall be substituted the words “to 437"; and
(b) subsection (5) shall be omitted.
9 (1) In subsection (1) of section 449 of that Act—
(a) for paragraphs (a) and (b) there shall be substituted—
(a) with a view to the institution of or otherwise for the purposes of criminal proceedings;
.
(b) for paragraph (d) there shall be substituted—
(d) for the purpose of enabling or assisting the Secretary of State to exercise any of his functions under this Act, the Insider Dealing Act, the Prevention of Fraud (Investments) Act 1958, the Insurance Companies Act 1982, the Insolvency Act 1986, the Company Directors Disqualification Act 1986 or the Financial Services Act 1986.
(dd) for the purpose of enabling or assisting the Department of Economic Development for Northern Ireland to exercise any powers conferred on it by the enactments relating to companies or insolvency or for the purpose of enabling or assisting any inspector appointed by it under the enactments relating to companies to discharge his functions
;
(c) after paragraph (e) there shall be inserted—
(f) for the purpose of enabling or assisting the Bank of England to discharge its functions under the Banking Act 1979 or any other functions,
(g) for the purpose of enabling or assisting the Deposit Protection Board to discharge its functions under that Act,
(h) for any purpose mentioned in section 180(1)(b), (e), (h), (n) or (p) of the Financial Services Act 1986,
(i) for the purpose of enabling or assisting the Industrial Assurance Commissioner or the Industrial Assurance Commissioner for Northern Ireland to discharge his functions under the enactments relating to industrial assurance,
(j) for the purpose of enabling or assisting the Insurance Brokers Registration Council to discharge its functions under the Insurance Brokers (Registration) Act 1977,
(k) for the purpose of enabling or assisting an official receiver to discharge his functions under the enactments relating to insolvency or for the purpose of enabling or assisting a body which is for the time being a recognised professional body for the purposes of section 391 of the Insolvency Act 1986 to discharge its functions as such,
(l) with a view to the institution of, or otherwise for the purposes of, any disciplinary proceedings relating to the exercise by a solicitor, auditor, accountant, valuer or actuary of his professional duties,
(m) for the purpose of enabling or assisting an authority in a country or territory outside the United Kingdom to exercise corresponding supervisory functions.
.
(2) After subsection (1) of that section there shall be inserted—
(1A) In subsection (1) above “corresponding supervisory functions” means functions corresponding to those of the Secretary of State or the competent authority under the Financial Services Act 1986 or to those of the Secretary of State under the Insurance Companies Act 1982 or to those of the Bank of England under the Banking Act 1979 or any other functions in connection with rules of law corresponding to the provisions of the Insider Dealing Act or Part VII of the Financial Services Act 1986.
(1B) Subject to subsection (1C), subsection (1) shall not preclude publication or disclosure for the purpose of enabling or assisting any public or other authority for the time being designated for the purposes of this section by the Secretary of State by an order in a statutory instrument to discharge any functions which are specified in the order.
(1C) An order under subsection (1B) designating an authority for the purpose of that subsection may—
(a) impose conditions subject to which the publication or disclosure of any information or document is permitted by that subsection; and
(b) otherwise restrict the circumstances in which that subsection permits publication or disclosure.
(1D) Subsection (1) shall not preclude the publication or disclosure of any such information as is mentioned in section 180(5) of the Financial Services Act 1986 by any person who by virtue of that section is not precluded by section 179 of that Act from disclosing it.
(3) For subsection (3) of that section (competent authorities) there shall be substituted—
(3) For the purposes of this section each of the following is a competent authority—
(a) the Secretary of State,
(b) the Department of Economic Development for Northern Ireland and any officer of that Department,
(c) an inspector appointed under this Part by the Secretary of State,
(d) the Treasury and any officer of the Treasury,
(e) the Bank of England and any officer or servant of the Bank,
(f) the Lord Advocate,
(g) the Director of Public Prosecutions, and the Director of Public Prosecutions for Northern Ireland,
(h) any designated agency or transferee body within the meaning of the Financial Services Act 1986 and any officer or servant of such an agency or body,
(i) any person appointed or authorised to exercise any powers under section 94, 106 or 177 of the Financial Services Act 1986 and any officer or servant of such a person,
(j) the body administering a scheme under section 54 of or paragraph 18 of Schedule 11 to that Act and any officer or servant of such a body,
(k) the Chief Registrar of friendly societies and the Registrar of Friendly Societies for Northern Ireland and any officer or servant of either of them,
(l) the Industrial Assurance Commissioner and the Industrial Assurance Commissioner for Northern Ireland and any officer of either of them,
(m) any constable,
(n) any procurator fiscal.
(4) A statutory instrument containing an order under subsection (1B) is subject to annulment in pursuance of a resolution of either House of Parliament.
.
10 After section 451 of that Act there shall be inserted—
Disclosure of information by Secretary of State.
451A The Secretary of State may, if he thinks fit, disclose any information obtained under this Part of this Act—
(a) to any person who is a competent authority for the purposes of section 449, or
(b) in any circumstances in which or for any purpose for which that section does not preclude the disclosure of the information to which it applies.
11 After Article 430(1) of the Companies (Northern Ireland) Order 1986 there shall be inserted—
(1A) Any persons who have been appointed under Article 424 or 425 may at any time and, if the Department directs them to do so shall, inform it of any matters coming to their knowledge as a result of their investigation.
;
and Article 426(2) of that Order shall be omitted.
12 In Article 439 of that Order—
(a) in paragraph (3) for the words “to 429" there shall be substituted the words “to 430"; and
(b) paragraph (5) shall be omitted.
13 (1) In paragraph (1) of Article 442 of that Order—
(a) for sub-paragraphs (a) and (b) there shall be substituted—
(a) with a view to the institution of or otherwise for the purposes of criminal proceedings;
;
(b) for sub-paragraph (d) there shall be substituted—
(d) for the purpose of enabling or assisting the Department to exercise any of its functions under this Order, the Insider Dealing Order or the Prevention of Fraud (Investments) Act (Northern Ireland) 1940;
(dd) for the purpose of enabling or assisting the Secretary of State to exercise any functions conferred on him by the enactments relating to companies or insolvency, the Prevention of Fraud (Investments) Act 1958, the Insurance Companies Act 1982, or the Financial Services Act 1986, or for the purpose of enabling or assisting any inspector appointed by him under the enactments relating to companies to discharge his functions
;
(c) after sub-paragraph (e) there shall be inserted—
(f) for the purposes of enabling or assisting the Bank of England to discharge its functions under the Banking Act 1979 or any other functions;
(g) for the purposes of enabling or assisting the Deposit Protection Board to discharge its functions under that Act;
(h) for any purpose mentioned in section 180(1)(b), (e), (h), (n) or (p) of the Financial Services Act 1986;
(i) for the purpose of enabling or assisting the Industrial Assurance Commissioner for Northern Ireland or the Industrial Assurance Commissioner in Great Britain to discharge his functions under the enactments relating to industrial assurance;
(j) for the purpose of enabling or assisting the Insurance Brokers Registration Council to discharge its functions under the Insurance Brokers (Registration) Act 1977;
(k) for the purpose of enabling or assisting the official assignee to discharge his functions under the enactments relating to companies or bankruptcy;
(l) with a view to the institution of, or otherwise for the purposes of, any disciplinary proceedings relating to the exercise by a solicitor, auditor, accountant, valuer or actuary of his professional duties;
(m) for the purpose of enabling or assisting an authority in a country or territory outside the United Kingdom to exercise corresponding supervisory functions.
.
(2) After paragraph (1) of that Article there shall be inserted—
(1A) In paragraph (1) “corresponding supervisory functions” means functions corresponding to those of the Secretary of State or the competent authority under the Financial Services Act 1986 or to those of the Secretary of State under the Insurance Companies Act 1982 or to those of the Bank of England under the Banking Act 1979 or any other functions in connection with rules of law corresponding to the provisions of the Insider Dealing Order or Part VII of the Financial Services Act 1986.
(1B) Subject to paragraph (1C), paragraph (1) shall not preclude publication or disclosure for the purpose of enabling or assisting any public or other authority for the time being designated for the purposes of this Article by an order made by the Department to discharge any functions which are specified in the order.
(1C) An order under paragraph (1B) designating an authority for the purpose of that paragraph may—
(a) impose conditions subject to which the publication or disclosure of any information or document is permitted by that paragraph; and
(b) otherwise restrict the circumstances in which that paragraph permits publication or disclosure.
(1D) Paragraph (1) shall not preclude the publication or disclosure of any such information as is mentioned in section 180(5) of the Financial Services Act 1986 by any person who by virtue of that section is not precluded by section 179 of that Act from disclosing it.
(3) For paragraph (3) of that Article (competent authorities) there shall be substituted—
(3) For the purposes of this Article each of the following is a competent authority—
(a) the Department and any officer of the Department,
(b) the Secretary of State,
(c) an inspector appointed under this Part by the Department,
(d) the Department of Finance and Personnel and any officer of that Department;
(e) the Treasury and any officer of the Treasury,
(f) the Bank of England and any officer or servant of the Bank,
(g) the Lord Advocate,
(h) the Director of Public Prosecutions for Northern Ireland and the Director of Public Prosecutions in England and Wales,
(i) any designated agency or transferee body within the meaning of the Financial Services Act 1986 and any officer or servant of such an agency or body,
(j) any person appointed or authorised to exercise any powers under section 94, 106 or 177 of the Financial Services Act 1986 and any officer or servant of such a person,
(k) the body administering a scheme under section 54 of or paragraph 18 of Schedule 11 to that Act and any officer or servant of such a body.
(l) the Registrar of Friendly Societies and the Chief Registrar of friendly societies in Great Britain and any officer or servant of either of them,
(m) the Industrial Assurance Commissioner for Northern Ireland and the Industrial Assurance Commissioner in Great Britain and any officer of either of them,
(n) any constable,
(o) any procurator fiscal.
(4) An order under paragraph (1B) is subject to negative resolution.
14 After Article 444 of that order there shall be inserted—
Disclosure of information by Department
444A The Department may, if it thinks fit, disclose any information obtained under this Part—
(a) to any person who is a competent authority for the purposes of Article 442, or
(b) in any circumstances in which or for any purpose for which that Article does not preclude the disclosure of the information to which it applies.
.
SCHEDULE 14 Restriction of Rehabilitation of Offenders Act 1974
Section 189.
Part I Exempted Proceedings
1 Any proceedings with respect to a decision or proposed decision of the Secretary of State or a designated agency—
(a) refusing, withdrawing or suspending an authorisation;
(b) refusing an application under section 28(5) of this Act;
(c) giving a direction under section 59 of this Act or refusing an application for consent or for the variation of a consent under that section;
(d) exercising a power under Chapter VI of Part I of this Act or refusing an application for the recission or variation of a prohibition or requirement imposed under that Chapter;
(e) refusing to make or revoking an order declaring a collective investment scheme to be an authorised unit trust scheme or a recognised scheme.
2 Any proceedings with respect to a decision or proposed decision of a recognised self-regulating organisation—
(a) refusing or suspending a person’s membership of the organisation;
(b) expelling a member of the organisation;
(c) exercising a power of the organisation for purposes corresponding to those of Chapter VI of Part I of this Act.
3 (1) Any proceedings with respect to a decision or proposed decision of a recognised professional body—
(a) refusing or suspending a person’s membership of the body;
(b) expelling a member of the body.
(2) Any proceedings with respect to a decision or proposed decision of a recognised professional body or of any other body or person having functions in respect of the enforcement of the recognised professional body’s rules relating to the carrying on of investment business—
(a) exercising a power for purposes corresponding to those of Chapter VI of Part I of this Act;
(b) refusing, suspending or withdrawing a certificate issued for the purposes of Part I of this Act.
4 Any proceedings with respect to a decision or proposed decision of the competent authority under Part IV of this Act refusing an application for listing or to discontinue or suspend the listing of any securities.
5 Any proceedings with respect to a decision or proposed decision of the Friendly Societies Commission or a transferee body, exercising a power exercisable by virtue of paragraph 23 of Schedule 11 to this Act or refusing an application for the recission or variation of a prohibition or requirement imposed in the exercise of such a power.
6 Any proceedings with respect to a decision or proposed decision of a recognised self-regulating organisation for friendly societies—
(a) refusing or suspending a society’s membership of the organisation;
(b) expelling a member of the organisation;
(c) exercising a power of the organisation for purposes corresponding to those for which powers are exercisable by the Friendly Societies Commission by virtue of paragraph 23 of Schedule 11 to this Act.
Part II Exempted Questions
Person putting question | Individual to whom question relates
1. The Secretary of State or a designated agency. | (a) An authorised person.
(b) An applicant for authorisation under section 26 of this Act.
(c) A person whose authorisation is suspended.
(d) The operator or trustee of a recognised scheme or a collective investment scheme in respect of which a notice has been given by the operator under section 87(3) or an application made under section 88 of this Act.
(e) An individual who is an associate of a person (whether or not an individual) described in paragraph (a), (b), (c) or (d) above.
2. A recognised self-regulating organisation or recognised professional body. | (a) A member of the organisation or body.
(b) An applicant for membership of the organisation or body.
(c) A person whose membership of the organisation or body is suspended.
(d) An individual who is an associate of a person (whether or not an individual) described in paragraph (a), (b) or (c) above.
3. A recognised professional body. | (a) A person certified by the body.
(b) An applicant for certification by the body.
(c) A person whose certification by the body is suspended.
(d) An individual who is an associate of a person (whether or not an individual) described in paragraph (a), (b) or (c) above.
4. A person (whether or not an individual) described in paragraph 1(a), (b), (c) or (d), paragraph 2(a), (b) or (c) or paragraph 3(a), (b) or (c) above. | An individual who is or is seeking to become an associate of the person in column 1.
5. The competent authority or any other person. | An individual from or in respect of whom information is sought in connection with an application for listing under Part IV of this Act.
Person putting question | Individual to whom question relates
6. The competent authority. | An individual who is or is seeking to become an associate of the issuer of securities listed under Part IV of this Act and from or in respect of whom information is sought which the issuer of the securities is required to furnish under listing rules.
7. The Friendly Societies Commission or a transferee body. | An individual who is an associate of a society which is authorised under section 23 of this Act.
8. A recognised self-regulating organisation for friendly societies. | An individual who is an associate of a member or an applicant for membership of the organisation or of a society whose membership of the organisation is suspended.
Part III Exempted Actions
Person taking action | Exempted action
1. The Secretary of State, a designated agency, a recognised self-regulating organisation, a recognised professional body, any other body or person mentioned in paragraph 3(2) of Part I of this Schedule or the competent authority. | Any such decision or proposed decision as is mentioned in Part I of this Schedule.
2. A person (whether or not an individual) described in paragraph 1(a), (b), (c) or (d), paragraph 2(a), (b) or (c) or paragraph 3(a), (b) or (c) of Part II of this Schedule. | Dismissing or excluding an individual from being or becoming an associate of the person in column 1.
3. The issuer of securities listed or subject to an application for listing under Part IV of this Act. | Dismissing or excluding an individual from being or becoming an associate of the issuer.
4. The Friendly Societies Commission, a transferee body or a recognised self-regulating organisation for friendly societies. | Any such decision or proposed decision as is mentioned in Part I of this Schedule.
Part IV Supplemental
1 In Part I of this Schedule “proceedings” includes any proceedings within the meaning of section 4 of the Rehabilitation of Offenders Act 1974.
2 In Parts II and III of this Schedule—
(a) references to an applicant for authorisation, membership or certification are references to an applicant who has not yet been informed of the decision on his application;
(b) references to an application for listing under Part IV of this Act are references to an application the decision on which has not yet been communicated to the applicant and which is not taken by virtue of section 144(5) of this Act to have been refused.
3 Paragraph 1(d) of Part II of this Schedule and so much of paragraph 1(e) as relates to it—
(a) apply only if the question is put to elicit information for the purpose of determining whether the operator or trustee is a fit and proper person to act as operator or trustee of the scheme in question;
(b) apply in the case of a scheme in respect of which a notice has been given under subsection (3) of section 87 only until the end of the period within which the operator may receive a notification from the Secretary of State under that subsection or, if earlier, the receipt by him of such a notification;
(c) apply in the case of a scheme in respect of which an application has been made under section 88 only until the applicant has been informed of the decision on the application.
Section 211(3).
Interim authorisation
1 (1) If before such day as is appointed for the purposes of this paragraph by an order made by the Secretary of State a person has applied—
(a) for membership of any body which on that day is a recognised self-regulating organisation; or
(b) for authorisation by the Secretary of State,
and the application has not been determined before the day on which section 3 of this Act comes into force, that person shall, subject to sub-paragraphs (2), (3) and (4) below, be treated until the determination of the application as if he had been granted an authorisation by the Secretary of State.
(2) Sub-paragraph (1) above does not apply to a person who immediately before the day on which section 3 of this Act comes into force is prohibited by the Prevention of Fraud (Investments) Act 1958 (in this Schedule referred to as “the previous Act”) from carrying on the business of dealing in securities—
(a) by reason of the refusal or revocation at any time before that day of a licence under that Act; or
(b) by reason of the revocation at any time before that day of an order declaring him to be an exempted dealer.
(3) If a person who has made any such application as is mentioned in sub-paragraph (1) above has before the day on which section 3 of this Act comes into force been served with a notice under section 6 or 16(3) of the previous Act (proposed refusal or revocation of licence or proposed revocation of exemption order) but the refusal or revocation to which the notice relates has not taken place before that day—
(a) the provisions of that Act with respect to the refusal or revocation of a licence or the revocation of an order under section 16 of that Act shall continue to apply to him until the application mentioned in sub-paragraph (1) above is determined; and
(b) that sub-paragraph shall cease to apply to him if before the determination of the application mentioned in that sub-paragraph his application for a licence under that Act is refused, his licence under that Act is revoked or the order declaring him to be an exempted dealer under that Act is revoked.
(4) Notwithstanding sub-paragraph (1) above section 102(1)(a) of this Act shall not apply to a person entitled to carry on investment business by virtue of that sub-paragraph but the Secretary of State may make available for public inspection the information with respect to the holders of principal’s licences mentioned in section 9 of the previous Act, any information in his possession by virtue of section 15(3) or (4) of that Act and the information mentioned in section 16(4) of that Act.
(5) Notwithstanding subsection (2) of section 3 of the previous Act a licence granted under that section before the day on which section 3 of this Act comes into force shall, unless revoked under section 6 of that Act, continue in force until that day.
Return of fees on pending applications
2 Any fee paid in respect of an application under section 3 of the previous Act which is pending on the day on which that Act is repealed shall be repaid to the applicant.
Deposits and undertakings
3 The repeal of section 4 of the previous Act shall not affect the operation of that section in a case where—
(a) a sum deposited in accordance with that section has become payable as provided in subsection (2) of that section before the date on which the repeal takes effect; or
(b) a sum has become payable before that date in pursuance of an undertaking given under subsection (4) of that section,
but, subject as aforesaid, any sum deposited under that section may be withdrawn by the depositor on application to the Accountant General of the Supreme Court and any undertaking given under that section shall be discharged.
Interim recognition of professional bodies
4 (1) If on an application made under section 17 of this Act it appears to the Secretary of State that any of the requirements of section 18(3) of this Act or paragraphs 2 to 6 of Schedule 3 to this Act are not satisfied he may in accordance with this paragraph make a recognition order under section 18 of this Act (“an interim recognition order") notwithstanding that all or any of those requirements are not satisfied.
(2) The Secretary of State may, subject to sub-paragraphs (3) and (4) below, make an interim recognition order if he is satisfied—
(a) that the applicant proposes to adopt rules and practices and to make arrangements which will satisfy such of the requirements mentioned in sub-paragraph (1) above as are not satisfied;
(b) that it is not practicable for those rules, practices and arrangements to be brought into effect before the date on which section 3 of this Act comes into force but that they will be brought into effect within a reasonable time thereafter; and
(c) that in the meantime the applicant will enforce its existing rules in such a way, and issue such guidance, as will in respect of investment business of any kind carried on by persons certified by it (or by virtue of paragraph 5 below treated as certified by it) afford to investors protection as nearly as may be equivalent to that provided as respects investment business of that kind by the rules and regulations under Chapter V of Part I of this Act.
(3) Where the requirements which are not satisfied consist of or include those mentioned in paragraph 2 of Schedule 3 to this Act an application for an interim recognition order shall be accompanied by—
(a) a list of the persons to whom the applicant proposes to issue certificates for the purposes of Part I of this Act; and
(b) particulars of the criteria adopted for determining the persons included in the list;
and the Secretary of State shall not make the order unless it appears to him that those criteria conform as nearly as may be to the conditions mentioned in that paragraph and that the applicant will, until the requirements of that paragraph are satisfied, have arrangements for securing that no person is certified by it (or by virtue of paragraph 5 below treated as certified by it) except in accordance with those criteria and for the effective monitoring of continued compliance by those persons with those criteria.
(4) Where the requirements which are not satisfied consist of or include that mentioned in paragraph 6 of Schedule 3 to this Act, the Secretary of State shall not make an interim recognition order unless it appears to him that the applicant will, until that requirement is satisfied, take such steps for complying with it as are reasonably practicable.
(5) An application for an interim recognition order shall be accompanied by a copy of the rules and by particulars of the practices and arrangements referred to in sub-paragraph (2)(a) above.
(6) An interim recognition order shall not be revocable but shall cease to be in force at the end of such period as is specified in it; and that period shall be such as will in the opinion of the Secretary of State allow a reasonable time for the rules, practices and arrangements mentioned in sub-paragraph (5) above to be brought into effect.
(7) The Secretary of State may on the application of the body to which an interim recognition order relates extend the period specified in it if that body satisfies him—
(a) that there are sufficient reasons why the rules, practices and arrangements mentioned in sub-paragraph (5) above cannot be brought into effect by the end of that period; and
(b) that those rules, practices and arrangements, or other rules, practices and arrangements which satisfy the requirements mentioned in sub-paragraph (2)(a) above and of which copies or particulars are furnished to the Secretary of State, will be brought into effect within a reasonable time thereafter;
but not more than one application shall be made by a body under this sub-paragraph.
(8) A recognition order under section 18 of this Act shall cease to be an interim recognition order if before it ceases to be in force—
(a) the rules, practices and arrangements of which copies or particulars were furnished to the Secretary of State under sub-paragraph (5) or (7)(b) above are brought into effect; or
(b) the Secretary of State certifies that other rules, practices and arrangements which have been brought into effect comply with the requirements mentioned in sub-paragraph (1) above.
(9) In this paragraph references to the adoption of rules or the making of arrangements include references to taking such other steps as may be necessary for bringing them into effect.
Interim authorisation by recognised professional bodies
5 (1) If at the time when an interim recognition order is made in respect of a professional body that body is unable to issue certificates for the purposes of this Act, any person who at that time is included in the list furnished by that body to the Secretary of State in accordance with paragraph 4(3)(a) above shall be treated for the purposes of this Act as a person certified by that body.
(2) If at any time while an interim recognition order is in force in respect of a professional body and before the body is able to issue certificates as mentioned in sub-paragraph (1) above the body notifies the Secretary of State that a person not included in that list satisfies the criteria of which particulars were furnished by the body in accordance with paragraph 4(3)(b) above, that person shall, on receipt of the notification by the Secretary of State, be treated for the purposes of this Act as a person certified by that body.
(3) If at any time while an interim recognition order is in force in respect of a professional body it appears to the body—
(a) that a person treated by virtue of sub-paragraph (1) or (2) above as certified by it has ceased (after the expiration of such transitional period, if any, as appears to the body to be appropriate) to satisfy the criteria mentioned in sub-paragraph (2) above; or
(b) that any such person should for any other reason cease to be treated as certified by it,
it shall forthwith give notice of that fact to the Secretary of State and the person in question shall, on receipt of that notification by the Secretary of State, cease to be treated as certified by that body.
(4) Where by virtue of this paragraph a partnership is treated as certified by a recognised professional body section 15(3) of this Act shall apply as it applies where a certificate has in fact been issued to a partnership.
(5) Where by virtue of this paragraph any persons are treated as certified by a recognised professional body the requirements of paragraph 2 of Schedule 3 to this Act so far as relating to the retention by a person of a certificate issued by that body and the requirements of paragraph 4 of that Schedule shall apply to the body as if the references to persons certified by it included references to persons treated as certified.
Power of recognised professional body to make rules required by this Act.
6 (1) Where a recognised professional body regulates the practice of a profession in the exercise of statutory powers the matters in respect of which rules can be made in the exercise of those powers shall, if they would not otherwise do so, include any matter in respect of which rules are required to be made—
(a) so that the recognition order in respect of that body can cease to be an interim recognition order; or
(b) where the recognition order was not, or has ceased to be, an interim recognition order, so that the body can continue to be a recognised professional body.
(2) Rules made by virtue of this paragraph may in particular make provision for the issue, withdrawal and suspension of certificates for the purposes of this Act and the making of charges in respect of their issue and may accordingly apply to persons who are, or are to be, certified or treated as certified by the body in question whether or not they are persons in relation to whom rules could be made apart from this paragraph.
(3) Rules made by virtue of this paragraph may make different provision for different cases.
(4) The Secretary of State may at the request of a recognised professional body by order extend, modify or exclude any statutory provision relating to the regulation of the conduct, practice, or discipline of members of that body to such extent as he thinks necessary or expedient in consequence of the provisions of this paragraph; and any order made by virtue of this sub-paragraph shall be subject to annulment in pursuance of a resolution of either House of Parliament.
Notice of commencement of business
7 In the case of a person who is carrying on investment business in the United Kingdom on the day on which section 31 of this Act comes into force, section 32 of this Act shall have effect as if it required him to give the notice referred to in that section forthwith.
Advertisements
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8
Authorised unit trust schemes
9 (1) Where an order under section 17 of the previous Act (authorisation of unit trust schemes) is in force in respect of a unit trust scheme immediately before the coming into force of Chapter VIII of Part I of this Act the scheme shall be treated as an authorised unit trust scheme under that Part and the order as an order under section 78 of this Act.
(2) In relation to any such authorised unit trust scheme the reference in section 79(1)(a) of this Act to the requirements for the making of the order shall be construed as a reference to the requirements for the making of an order under section 78, but the scheme shall not be regarded as failing to comply with those requirements by reason of the manager or trustee not being an authorised person if he is treated as such a person by virtue of paragraph 1 above.
(3) If before the day on which Chapter VIII of Part I comes into force a notice in respect of a scheme has been served under subsection (2) of section 17 of the previous Act (proposed revocation of authorisation of unit trust scheme) but the revocation has not taken place before that day, the provisions of that subsection shall continue to apply in relation to the scheme and sub-paragraph (1) above shall cease to apply to it if the authorisation is revoked under that subsection.
Recognised collective investment schemes
10 (1) If at any time before the coming into force of section 86 of this Act it appears to the Secretary of State that the law of a member State other than the United Kingdom confers rights on the managers and trustees of authorised unit trust schemes entitling them to carry on in that State on terms equivalent to those of that section—
(a) investment business which consists in operating or acting as trustee in relation to such schemes; and
(b) any investment business which is carried on by them in connection with or for the purposes of such schemes,
he may by order direct that schemes constituted in that State which satisfy such requirements as are specified in the order shall be recognised schemes for the purposes of this Act.
(2) Subsections (2) to (9) of section 86 of this Act shall have effect in relation to any scheme recognised by virtue of this paragraph; and the references in section 24 and 207(1) of this Act to a scheme recognised under section 86, and in section 76(1) of this Act to a scheme recognised under Chapter VIII of Part I of this Act, shall include references to any scheme recognised by virtue of this paragraph.
(3) In section 86(3)(a) as applied by sub-paragraph (2) above the reference to the rights conferred by any relevant Community instrument shall be construed as a reference to the rights conferred by virtue of an order made under this paragraph.
11 (1) Subsection (7) of section 88 of this Act shall not apply to a scheme which is in existence on the date on which this Act is passed if—
(a) the units under the scheme are included in the Official List of The Stock Exchange and have been so included throughout the period of five years ending on the date on which this paragraph comes into force;
(b) the law of the country or territory in which the scheme is established precludes the participants being entitled or the operator being required as mentioned in that subsection; and
(c) throughout the period of five years ending on the date on which the application is made under that section, units under the scheme have in fact been regularly redeemed as mentioned in that subsection or the operator has in fact regularly ensured that participants were able to sell their units as there mentioned.
(2) The grounds for revoking an order made under section 88 of this Act by virtue of this paragraph shall include the ground that it appears to the Secretary of State that since the making of the order units under the scheme have ceased to be regularly redeemed or the operator has ceased regularly to ensure their sale as mentioned in sub-paragraph (1)(c) above.
Delegation orders
12 (1) A delegation order may transfer a function notwithstanding that the provision conferring it has not yet come into force but no such function shall be exercisable by virtue of the order until the coming into force of that provision.
(2) Sub-paragraph (1) above applies also to a transfer order under paragraph 28(1) of Schedule 11 to this Act.
Disclosure of information
13 In determining for the purposes of section 180(6) of this Act and the enactments amended by paragraphs 3(2), 9(2) and 13(2) of Schedule 13 to this Act whether the functions of an authority in a country or territory outside the United Kingdom correspond to functions conferred by any of the provisions of this Act regard shall be had to those provisions whether or not they have already come into force.
Temporary exemptions for friendly societies
14 (1) A . . . friendly society which transacts no investment business after the date on which section 3 of this Act comes into force except for the purpose of making or carrying out relevant existing members’ contracts shall be treated for the purposes of that section as if it were an exempted person under Chapter IV of Part I of this Act.
(2) Subject to sub-paragraph (3) below, for the purposes of this paragraph “relevant existing members’ contracts”, in relation to any society, means—
(a) contracts made by the society before that date; and
(b) in the case of a small income society—
(i) during the period of three years beginning with that date, tax exempt investment agreements made by it with persons who were members of the society before that date; and
(ii) after the expiry of that period, tax exempt investment agreements made by it with such persons before the expiry of that period.
(3) Paragraph (b) of sub-paragraph (2) above shall not apply to a . . .friendly society after the expiry of the period of two years beginning with that date unless before the expiry of that period it has by special resolution (within the meaning of the Friendly Societies Act 1974 . . .) determined—
(a) to transact no further investment business except for the purpose of carrying out contracts entered into before the expiry of the said period of three years; or
(b) to take such action as is necessary to procure the transfer of its engagements to another such society or a company or the amalgamation of the society with another such society under section 82 of the said Act of 1974 . . .,
and a copy of that resolution has been registered in accordance with section 86 of the said Act of 1974 . . ..
(4) For the purpose of sub-paragraph (2) above a society is a small income society if its income in 1985 from members’ contributions did not exceed £50,000.
(5) For the purposes of sub-paragraph (2) above an investment agreement is a tax exempt investment agreement if the society by which it is made may obtain exemption from income and corporation tax on the profits from it under section 460(1) or 461(1) of the Income and Corporation Taxes Act 1988.
(6) A society to which sub-paragraph (1) or (2) above applies shall not be an authorised person for the purposes of this Act nor a regulated friendly society for the purposes of the provisions of Schedule 11 to this Act.
Dealings in course of non-investment business
15 If before the day on which section 3 of this Act comes into force a person has applied for permission under paragraph 23 of Schedule 1 to this Act and the application has not been determined before that day, that person shall, until the determination of the application and subject to his complying with such requirements as the Secretary of State may impose, be treated as if he had been granted a permission under that paragraph.
Northern Ireland
16 The foregoing provisions shall apply to Northern Ireland with the substitution for references to the previous Act or any provision of that Act of references to the Prevention of Fraud (Investments) Act (Northern Ireland) 1940 and the corresponding provision of that Act.
Section 212(2).
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1
2 In the Trustee Investments Act 1961—
(a) in section 11(3) for the words “the Prevention of Fraud (Investments) Act 1958 or the Prevention of Fraud (Investments) Act (Northern Ireland) 1940" there shall be substituted the words “the Financial Services Act 1986";
(b) for paragraph 3 of Part III of Schedule 1 there shall be substituted—
3 In any units of an authorised unit trust scheme within the meaning of the Financial Services Act 1986
;
(c) in paragraph 2(a) of Part IV of Schedule 1 for the words from “a recognised stock exchange" onwards there shall be substituted the words “a recognised investment exchange within the meaning of the Financial Services Act 1986";
(d) in the definition of “securities" in paragraph 4 of Part IV of that Schedule after the word “debentures" there shall be inserted the words “units within paragraph 3 of Part III of this Schedule".
3 In section 32 of the Clergy Pensions Measure 1961 No. 3—
(a) for paragraph (t) of subsection (1) there shall be substituted—
(t) in any units in any authorised unit trust scheme or a recognised scheme within the meaning of the Financial Services Act 1986
; and
(b) in subsection (5)(a) for the words from “a recognised stock exchange" onwards there shall be substituted the words “a recognised investment exchange within the meaning of the Financial Services Act 1986.".
4 In the Stock Transfer Act 1963—
(a) for paragraph (e) of section 1(4) there shall be substituted—
(e) units of an authorised unit trust scheme or a recognised scheme within the meaning of the Financial Services Act 1986
; and
(b) in the definition of “securities” in section 4(1) for the words from “unit trust scheme" to “scheme" there shall be substituted the words “collective investment scheme within the meaning of the Financial Services Act 1986".
5 In the Stock Transfer Act (Northern Ireland) 1963—
(a) for paragraph (e) of section 1(4) there shall be substituted—
(e) units of an authorised unit trust scheme or a recognised scheme within the meaning of the Financial Services Act 1986
; and
(b) in the definition of “securities” in section 4(1) for the words from “unit trust scheme" to “scheme" there shall be substituted the words “collective investment scheme within the meaning of the Financial Services Act 1986".
6 In section 25 of the Charities Act (Northern Ireland) 1964—
(a) subsection (16) shall be omitted; and
(b) in subsection (17) for the words “Subsections (15) and (16)" there shall be substituted the words “Subsection (15)".
7 In the Local Authorities’ Mutual Investment Trust Act 1968—
(a) in section 1(2) for the words “recognised stock exchange within the meaning of the Prevention of Fraud (Investments) Act 1958" there shall be substituted the words “recognised investment exchange within the meaning of the Financial Services Act 1986"; and
(b) in the definition of “unit trust scheme” in section 2 for the words “Prevention of Fraud (Investments) Act 1958" there shall be substituted the words “Financial Services Act 1986".
8 In the Local Government Act 1972—
(a) in section 98(1) for the words from “and" onwards there shall be substituted the words
means—
(a) investments falling within any of paragraphs 1 to 6 of Schedule 1 to the Financial Services Act 1986 or, so far as relevant to any of those paragraphs, paragraph 11 of that Schedule; or
(b) rights (whether actual or contingent) in respect of money lent to, or deposited with, any society registered under the Industrial and Provident Societies Act 1965 or any building society within the meaning of the Building Societies Act 1986.
; and
(b) for the definition of “securities” in section 146(2) there shall be substituted—
“securities” has the meaning given in section 98(1) above
.
9 For subsection (1) of section 42 of the Local Government (Scotland) Act 1973 there shall be substituted—
(1) In sections 39 and 41 of this Act “securities” means—
(a) investments falling within any of paragraphs 1 to 6 of Schedule 1 to the Financial Services Act 1986 or, so far as relevant to any of those paragraphs, paragraph 11 of that Schedule; or
(b) rights (whether actual or contingent) in respect of money lent to, or deposited with, any society registered under the Industrial and Provident Societies Act 1965 or any building society within the meaning of the Building Societies Act 1986.
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10
11 For paragraph 20 of Schedule 1 to the Scottish Development Agency Act 1975 there shall be substituted—
20 Section 57 of the Financial Services Act 1986 (restrictions on advertising) shall not apply to any investment advertisement within the meaning of that section which the Agency issue or cause to be issued in the discharge of their functions.
12 For paragraph 21 of Schedule 1 to the Welsh Development Agency Act 1975 there shall be substituted—
21 Section 57 of the Financial Services Act 1986 (restrictions on advertising) shall not apply to any investment advertisement within the meaning of that section which the Agency issue or cause to be issued in the discharge of their functions.
.
13 In section 3(5) of the Aircraft and Shipbuilding Industries Act 1977 the words “Sections 428 to 430 of the Companies Act 1985 and” shall be omitted and for the words “those sections" there shall be substituted the words “that section".
14 In paragraph 10(1)(c) of Part II of Schedule 10 to the Finance Act 1980 for the words “sections 428 to 430" there shall be substituted the words “sections 428 to 430F".
15 For the definition of “securities” in section 3(6) of the Licensing (Alcohol Education and Research) Act 1981 there shall be substituted—
“securities” means any investments falling within any of paragraphs 1 to 6 of Schedule 1 to the Financial Services Act 1986 or, so far as relevant to any of those paragraphs, paragraph 11 of that Schedule
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
16
17 In section 163 of the Companies Act 1985—
(a) for the words “a recognised stock exchange" in each place where they occur there shall be substituted the words “a recognised investment exchange";
(b) for the words “that stock exchange” in subsection (1) there shall be substituted the words “that investment exchange";
(c) in subsection (2) in paragraph (a) for the words “on that stock exchange" there shall be substituted the words “under Part IV of the Financial Services Act 1986" and in paragraph (b) for the words “that stock exchange" in both places where they occur there shall be substituted the words “that investment exchange";
(d) after subsection (3) of that section there shall be inserted—
(4) In this section “recognised investment exchange” means a recognised investment exchange other than an overseas investment exchange within the meaning of the Financial Services Act 1986.
18 In section 209(1)(c) of the Companies Act 1985 for the words “the Prevention of Fraud (Investments) Act 1958" there shall be substituted the words “the Financial Services Act 1986".
19 In section 265(4)(a) of the Companies Act 1985 for the words “recognised stock exchange" there shall be substituted the words “recognised investment exchange other than an overseas investment exchange within the meaning of the Financial Services Act 1986".
20 In section 329(1) of the Companies Act 1985 for the words “recognised stock exchange", “that stock exchange" and “the stock exchange" there shall be substituted respectively the words “recognised investment exchange other than an overseas investment exchange within the meaning of the Financial Services Act 1986", “that investment exchange" and “the investment exchange".
21 For paragraphs (a) to (c) of section 446(4) of the Companies Act 1985 there shall be substituted—
(a) to any individual who is an authorised person within the meaning of the Financial Services Act 1986;
(b) to any individual who holds a permission granted under paragraph 23 of Schedule 1 to that Act;
(c) to any officer (whether past or present) of a body corporate which is such an authorised person or holds such a permission;
(d) to any partner (whether past or present) in a partnership which is such an authorised person or holds such a permission;
(e) to any member of the governing body or officer (in either case whether past or present) of an unincorporated association which is such an authorised person or holds such a permission
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
22
23 In Schedule 4 to the Companies Act 1985—
(a) in paragraph 45 for the words “recognised stock exchange" there shall be substituted the words “recognised investment exchange other than an overseas investment exchange within the meaning of the Financial Services Act 1986"; and
(b) in paragraph 84 for the words from “on a recognised stock exchange" onwards there shall be substituted the words “on a recognised investment exchange other than an overseas investment exchange within the meaning of the Financial Services Act 1986 or on any stock exchange of repute outside Great Britain".
24 In Schedule 9 to the Companies Act 1985 in paragraphs 10(3) and 33 for the words “recognised stock exchange" there shall be substituted the words “recognised investment exchange other than an overseas investment exchange within the meaning of the Financial Services Act 1986".
25 In paragraph 11 of Schedule 13 to the Companies Act 1985 for paragraph (a) there shall be substituted—
(a) any unit trust scheme which is an authorised unit trust scheme within the meaning of the Financial Services Act 1986
.
26 In Schedule 22 to the Companies Act 1985, in the second column of the entry relating to section 185(4) for the words “stock exchange" there shall be substituted the words “clearing house or".
27 In Schedule 24 to the Companies Act 1985—
(a) in the second column of the entry relating to section 329(3) for the words “stock exchange" there shall be substituted the words “investment exchange"; and
(b) after the entry relating to section 427(5) there shall be inserted—
429(6) | Offeror failing to send copy of notice or making statutory declaration knowing it to be false, etc. | 1. On indictment. | 2 years or a fine; or both.
2. Summary. | 6 months or the statutory maximum; or both. | One-fiftieth of the statutory maximum.
430A(6) | Offeror failing to give notice of rights to minority shareholder. | 1. On indictment. | A fine. | One fiftieth of the statutory maximum.
2. Summary. | The statutory maximum.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
28
29 For paragraph (c) of section 10(1) of the Bankruptcy (Scotland) Act 1985 there shall be substituted—
(c) a petition is before a court for the winding up of the debtor under Part IV or V of the Insolvency Act 1986 or section 72 of the Financial Services Act 1986;
.
30 In section 101 of the Building Societies Act 1986—
(a) for paragraph (1)(a) there shall be substituted—
(a) offer for sale or invite subscription for any shares in or debentures of the company or allot or agree to allot any such shares or debentures with a view to their being offered for sale;
;
(b) in subsection (1) after the words “the effect of the offer" there shall be inserted the words “the invitation"; and
(c) in subsection (2) for the words “the public" there shall be substituted the words “, invite subscription for,".
31 In Article 107 of the Companies (Northern Ireland) Order 1986—
(a) in paragraph (1) after the word “conditions" there shall be inserted the words “and any conditions which apply in respect of any such payment by virtue of rules made under section 169(2) of the Financial Services Act 1986"
(b) in sub-paragraph (2)(a) for the words from “10 per cent." onwards there shall be substituted the words—
(i) any limit imposed on it by those rules or, if none is so imposed, 10 per cent. of the price at which the shares are issued; or
(ii) the amount or rate authorised by the articles, whichever is the less
.
32 In Article 173 of the Companies (Northern Ireland) Order 1986—
(a) for the words “a recognised stock exchange", in each place where they occur, there shall be substituted the words “a recognised investment exchange";
(b) for the words “that stock exchange" in paragraph (1) there shall be substituted the words “that investment exchange";
(c) in paragraph (2), in sub-paragraph (a) for the words “on that stock exchange" there shall be substituted the words “under Part IV of the Financial Services Act 1986" and in sub-paragraph (b) for the words “that stock exchange" in both places where they occur there shall be substituted the words “that investment exchange";
(d) after paragraph (3) there shall be inserted—
(4) In this Article “recognised investment exchange” means a recognised investment exchange other than an overseas investment exchange within the meaning of the Financial Services Act 1986.
33 In Article 217(1)(b) of the Companies (Northern Ireland) Order 1986 for the words “the Prevention of Fraud (Investments) Act (Northern Ireland) 1940 or of the Prevention of Fraud (Investments) Act 1958" there shall be substituted the words “the Financial Services Act 1986".
34 In Article 273(4)(a) of the Companies (Northern Ireland) Order 1986 for the words “recognised stock exchange" there shall be substituted the words “recognised investment exchange other than an overseas investment exchange within the meaning of the Financial Services Act 1986".
35 In Article 337(1) of the Companies (Northern Ireland) Order 1986 for the words “recognised stock exchange", “that stock exchange" and “the stock exchange" there shall be substituted respectively the words “recognised investment exchange", “that investment exchange" and “the investment exchange".
36 For sub-paragraphs (a) to (c) of Article 439(4) of the Companies (Northern Ireland) Order 1986 there shall be substituted—
(a) to any individual who is an authorised person within the meaning of the Financial Services Act 1986;
(b) to any individual who holds a permission granted under paragraph 23 of Schedule 1 to that Act;
(c) to an officer (whether past or present) in a body corporate which is such an authorised person or holds such a permission;
(d) to any partner (whether past or present) in a partnership which is such an authorised person or holds such a permission;
(e) to any member of the governing body or officer (in either case whether past or present) of an unincorporated association which is such an authorised person or holds such a permission
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
37
38 In Schedule 4 to the Companies (Northern Ireland) Order 1986—
(a) in paragraph 45 for the words “recognised stock exchange" there shall be substituted the words “recognised investment exchange other than an overseas investment exchange within the meaning of the Financial Services Act 1986"
(b) in paragraph 83 for the words from “on a recognised stock exchange" onwards there shall be substituted the words “on a recognised investment exchange other than an overseas investment exchange within the meaning of the Financial Services Act 1986 or on any stock exchange of repute outside Northern Ireland".
39 In Schedule 9 to the Companies (Northern Ireland) Order 1986, in paragraph 10(3) and 33 for the words “recognised stock exchange" there shall be substituted the words “recognised investment exchange other than an overseas investment exchange within the meaning of the Financial Services Act 1986."
40 In paragraph 11 of Schedule 13 to the Companies (Northern Ireland) Order 1986 for paragraph (a) there shall be substituted—
(a) any unit trust scheme which is an authorised unit trust scheme within the meaning of the Financial Services Act 1986
.
41 In Schedule 21 to the Companies (Northern Ireland) Order 1986 in the second column of the entry relating to Article 195(4) for the words “stock exchange" there shall be substituted the words “clearing house or".
42 In Schedule 23 to the Companies (Northern Ireland) Order 1986 in the second column of the entry relating to Article 337(3) for the words “stock exchange" there shall be substituted the words “investment exchange".
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
43
Section 212(3)
Part I Enactments
Chapter | Short title | Extent of repeal
4 & 5 Geo. 6. c. 9 (N.I.). | The Prevention of Fraud (Investments) Act (Northern Ireland) 1940. | The whole Act.
6 & 7 Eliz. 2. c. 45. | The Prevention of Fraud (Investments) Act 1958. | The whole Act.
8 & 9 Eliz. 2 c. 58. | The Charities Act 1960. | Section 22(10).
10 & 11 Eliz. 2. c. 23. | The South Africa Act 1962. | In Schedule 4, the entry relating to the Prevention of Fraud (Investments) Act 1958.
1964 c. 33 (N.I.). | The Charities Act (Northern Ireland) 1964. | Section 25(16).
1965 c. 2. | The Administration of Justice Act 1965. | Section 14(1)(e) and (5)(e).
In Schedule 1, the entry relating to the Prevention of Fraud (Investments) Act 1958.
1971 c. 62. | The Tribunals and Inquiries Act 1971. | In Part I of Schedule 1, the entry relating to the tribunal constituted under section 6 of the Prevention of Fraud (Investments) Act 1958.
1972 c. 71. | The Criminal Justice Act 1972. | In Schedule 5, the entry relating to the Prevention of Fraud (Investments) Act 1958.
1975 c. 24. | The House of Commons Disqualification Act 1975. | In Part II of Schedule 1 the words “The Tribunal established under the Prevention of Fraud (Investments) Act 1958".
1975 c. 68. | The Industry Act 1975. | In Schedule 1, paragraph 19.
. . . | . . . | . . .
1975 c. 70. | The Welsh Development Agency Act 1975. | In Schedule 1, paragraph 22.
1976 c. 47. | The Stock Exchange (Completion of Bargains) Act 1976. | Section 7(2).
1977 c. 3. | The Aircraft and Shipbuilding Industries Act 1977. | In section 3(5), the words “Sections 428 to 430 of the Companies Act 1985 and".
1978 c. 23. | The Judicature (Northern Ireland) Act 1978. | Section 84(3)(c).
1979 c. 37. | The Banking Act 1979. | Section 20(1) to (3).
In Schedule 1, paragraph 9.
In Schedule 6, paragraphs 4 and 5.
1982 c. 50. | The Insurance Companies Act 1982. | Section 73.
Section 79.
1982 c. 53. | The Administration of Justice Act 1982. | Section 42(8).
1984 c. 2. | The Restrictive Trade Practices (Stock Exchange) Act 1984. | The whole Act.
1985 c. 6. | The Companies Act 1985. | Part III.
Sections 81 to 83.
In section 84(1) the words from “This" onwards.
In section 85(1) the words “83 or".
Sections 86 and 87.
In section 97, subsection (2)(b) together with the word “and" immediately preceding it and subsections (3) and (4).
Section 433(2).
Section 446(5) and (6).
In section 449(1)(d), the words “the Prevention of Fraud (Investments) Act 1958".
In section 693, paragraph (a) and in paragraph (d) the words “in every such prospectus as above-mentioned and".
Section 709(2) and (3).
In section 744, the definitions of “recognised stock exchange" and “prospectus issued generally".
Schedule 3.
In Schedule 22, the entries relating to Parts III and IV.
In Schedule 24, the entries relating to sections 56(4), 61, 64(5), 70(1), 78(1), 81(2), 82(5), 86(6), 87(4) and 97(4).
1985 c. 8. | The Company Securities (Insider Dealing) Act 1985. | In section 3(1), the word “or" immediately preceding paragraph (c).
In section 13, in subsection (1), the words from “and references" onwards and subsection (2).
Section 15.
1985 c. 9. | The Companies Consolidation (Consequential Provisions) Act 1985. | Section 7.
In Schedule 2, the entries relating to the Prevention of Fraud (Investments) Act 1958, paragraph 19 of Schedule 1 to the Scottish Development Agency Act 1975, paragraph 22 of Schedule 1 to the Welsh Development Agency Act 1975, the Stock Exchange (Completion of Bargains) Act 1976, section 3(5) of the Aircraft and Shipbuilding Industries Act 1977 and section 20 of the Banking Act 1979.
1986 c. 31. | The Airports Act 1986. | Section 10.
1986 c. 44. | The Gas Act 1986. | Section 58.
1986 c. 60. | The Financial Services Act 1986. | Section 195.
Part II Instruments
Number | Title | Extent of revocation
S.I. 1977/1254 (6 N.I. 21). | The Stock Exchange (Completion of Bargains) (Northern Ireland) Order 1977. | Article 2(2).
S.I. 1986/1032 (N.I. 6). | The Companies (Northern Ireland) Order 1986. | In Article 2(1), the definitions of “prospectus issued generally" and “recognised stock exchange".
Part IV.
Articles 91 to 93.
In Article 94(1) the words from “This" onwards.
In Article 95(1) the words “93 or".
Articles 96 and 97.
In Article 107, paragraph (2)(b) together with the word “and" immediately preceding it and paragraphs (3) and (4).
Article 426(2).
Article 439(5) and (6).
In Article 442(1)(d), the words “the Prevention of Fraud (Investments) Act (Northern Ireland) 1940".
In Article 643(1), sub-paragraph (a) and in sub-paragraph (d) the words “in every such prospectus as is mentioned in sub-paragraph (a) and".
Article 658(2) and (3).
Schedule 3.
In Schedule 21, the entries relating to Parts IV and V.
In Schedule 23, the entries relating to Articles 66(4), 71, 74(5), 80(1), 88(1), 91(2), 92(5), 96(6), 97(4) and 107(4).
S.I. 1986/1035 (N.I. 9). | The Companies (Consequential Provisions) (Northern Ireland) Order 1986. | In Schedule 2, the entries relating to the Prevention of Fraud (Investments) Act (Northern Ireland) 1940 and section 20 of the Banking Act 1979.
S.I. 1984/716. | The Stock Exchange (Listing) Regulations 1984. | The whole Regulations.