Written by Matt Raver
Entities and individuals taking a stake in an FCA regulated firm are faced with a multitude of tasks, from due diligence, legal and tax considerations and logistical and business decisions. Among these, it is often the case that FCA approval is required before the acquisition can be finalised, and this process should be factored into the overall timing.
The FCA process is called a change in control and is sometimes referred to as a ‘Section 178’ application (named after the relevant section of the Financial Services and Markets Act). It applies whenever a minimum holding threshold, for example 10%, applies. It also sometimes applies where control is increased through a certain threshold, for example 20%, 30% or 50%.
The process involves submitting forms and backing documentation covering various aspects. Dependent upon the status of the target firm and the acquirer, the information requirements may include:
- Background behind the change in control;
- Identity of the controller, including group structure and the demonstration of solvency and fitness and propriety;
- Information on directors/officers of a corporate controller;
- Information about the transaction including the impact on the target firm, market sensitivity and acquisition funding; and
- A business plan containing, for instance, a strategic developmental plan, due diligence report and forecasted financial statements.
The FCA has up to 60 days (excluding any interruption period) to process the application. However the time taken to process can vary – in December 2022, the FCA announced that they were experiencing processing delays including up to 4 weeks to allocate an application to a case officer. The FCA also stated that it’s important for an application to be as complete as possible to avoid further delays. Oftentimes, firms seek professional assistance with this process.
Once approval has been granted, the FCA will request that they are notified as soon as the change in control has taken place. This means that certain actions, such as signing heads of terms, can be enacted post-FCA approval.
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