Variable Capital Companies Act 2018 · 2020 Revised Edition · Part 11 · Winding Up
130A. Associate on account of sub-fund
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For the purpose of section 130(25) and this section, an umbrella VCC (B) is an associate of a person (A) on account of a sub-fund of B (B1) if —
umbrella VCC
“umbrella VCC” means a VCC the constitution of which provides that it consists of, or is to consist of, 2 or more collective investment schemes, or words to that effect;
A is in partnership with B, either in relation to B1 only or 2 or more of B’s sub-funds that include B1;
A is a spouse or relative of any individual who is in partnership with B, either in relation to B1 only or 2 or more of B’s sub-funds that include B1;
A or A’s associates is or are employed by B for the purpose of B1 only, or 2 or more of B’s sub-funds that include B1;
A is a trustee of a trust the beneficiary or one of the beneficiaries of which is B in relation to B1 only or 2 or more of B’s sub-funds that include B1, or a person to whom B is an associate on account of B1 (as defined by this section);
A is a trustee of a trust the terms of which confer a power that may be exercised for the benefit of B in relation to B1 only or 2 or more of B’s sub-funds that include B1, or a person to whom B is an associate on account of B1 (as defined by this section);
A is a corporation and —
the same person has control of A and B1;
a person has control of one of them and persons who are that person’s associates, or that person and that person’s associates, have control of the other; or
a group of 2 or more persons has control of each of them, and the groups either consist of the same persons or could be regarded as consisting of the same persons by treating (in one or more cases) a member of either group as replaced by a person of whom the member is an associate; (g)A (either alone or together with A’s associates) has control of B1; or
A is a corporation and B, either through B1 or together with a person to whom B is an associate on account of B1 (as defined by this section), has control of A.
Where B has one or more sub-funds besides B1, then, by reason of subsection (5), B is considered an associate of B on account of B1 in relation to any of those other sub-funds.
For the purpose of subsection (1)(d) and (e), where the person to whom B is an associate on account of B1 is also an umbrella VCC, then B is an associate of A on account of B1 by reason of that provision if, and only if —
the person’s sub-fund on account of which the person is an associate of B on account of B1; and
any of the person’s sub-funds in relation to which the person is the beneficiary or one of the beneficiaries, or in relation to which the trust power mentioned in that provision may be exercised for the person’s benefit, as the case may be,is the same sub-fund.
The following apply for the purpose of subsection (1)(f), (g) and (h):
a person that is not an umbrella VCC (C) has control of a corporation (D) if —
the directors of D or of another corporation which has control of D (or any of those directors) are accustomed to act in accordance with C’s directions or instructions; or
C is entitled to exercise, or control the exercise of one-third or more of the voting rights at any general meeting of D or another corporation which has control of D;
C has control of a sub-fund (E1) of an umbrella VCC (E) if —
the directors of E or of another corporation who has control of E1 (or any of those directors) are accustomed to act in accordance with C’s directions or instructions; or
C is entitled to exercise, or control the exercise of one-third or more of the total voting rights of all persons holding shares of E issued in respect of E1 at any general meeting of E, or of the voting rights at any general meeting of another corporation which has control of E1;
a person that is an umbrella VCC (F) has control of a corporation (G) if, by reason of shares of G or another corporation that has control of G that are held by F as property of one of F’s sub-funds (F1), F is entitled to exercise, or control the exercise of, one-third or more of the voting rights at any general meeting of G or that other corporation;
F has control of a sub-fund (H1) of another umbrella VCC (H) if, by reason of shares of H issued in respect of H1 or shares of another corporation that has control of H1 that are held by F as property of one of F’s sub-funds (F1), F is entitled to exercise, or control the exercise of, one-third or more of the total voting rights of all persons holding shares issued in respect of H1, at any general meeting of H or of the voting rights at a general meeting of that other corporation;
another person (I) is an associate of F only if F is an associate of I on account of F1;
where I is itself an umbrella VCC, I controls G or H1 only if —
the sub-fund through whose property I controls G or H1; and
the sub-fund of I on account of which I is an associate of F on account of FI,is the same sub-fund;
where 2 or more persons together satisfy paragraph (a)(i) or (ii), (b)(i) or (ii), (c) or (d), they are taken as having control of D, E1, G or H1, as the case may be.
For the purpose of this section —
an umbrella VCC in relation to one sub-fund is treated as a separate person from the same umbrella VCC in relation to a different sub-fund; and
whether an umbrella VCC has control of another person or sub-fund is to be determined in relation to shares it held for a single sub-fund as if the umbrella VCC has only that one sub-fund.
In subsection (1)(c), (f) and (g), “associate” (except in the expression “associate on account of a sub-fund”) has the meaning given by section 217 of the IRDA, except that —
sub-fund
“sub-fund” means a collective investment scheme that is part of an umbrella VCC;
an umbrella VCC that is a beneficiary or one of the beneficiaries of a trust, or for whose benefit a power under a trust may be exercised, is an associate of a person under section 217(7) of the IRDA only if it is an associate of the person on account of the sub-fund (within the meaning of this section) in relation to which it is such beneficiary, or in relation to which the power may be exercised for its benefit; and
subsections (4) and (5) apply for the purpose of determining whether an umbrella VCC controls a corporation under section 217(8) or (9) of the IRDA.