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Essential Corporate News – Week ending November 6, 2015

Publication November 6, 2015


Introduction

Welcome to Essential Corporate News, our weekly news service covering the latest developments in the UK corporate world.

FCA: Policy proposals and Handbook changes to implement the Market Abuse Regulation

On November 5, 2015 the Financial Conduct Authority (FCA) published a consultation paper setting out its proposals for the changes to the FCA Handbook required to implement the Market Abuse Regulation (MAR), which will come into force on July 3, 2016. The FCA is seeking feedback on its proposals and also requests comments on the different options for implementation the regime offers.

Alternative options for implementing two specific EU MAR requirements

  • Article 17: Public disclosure of information – Article 17 requires issuers and Emission Allowance Market Participants (EAMPs) to inform the public of inside information which directly concerns that issuer or, for EAMPs, concerns emission allowances they hold. This obligation may, under certain circumstances, prejudice the legitimate interests of the issuer or EAMP. Article 17(4) therefore permits issuers and EAMPs to make a decision to delay public disclosure provided that certain conditions are met. MAR provides that where an issuer or EAMP delays disclosure of inside information, it must inform the relevant competent authority about the delay and provide a written explanation of how it met the conditions when the information is disclosed to the public. However, MAR allows issuers and EAMPs to only have to give the explanation if the competent authority requests it. HM Treasury and the FCA would prefer to require the explanation to be given only if the FCA requests it, though notification of the delay would always have to be provided. Views are sought on this approach.
  • Article 19: Managers’ transactions – Article 19 requires persons discharging managerial responsibilities (PDMRs) within an issuer or EAMP, and persons closely associated with them, to notify all transactions in specified financial instruments to the issuer or the EAMP. To ensure an appropriate balance between the level of transparency and the number of reports made to competent authorities, MAR introduces a minimum threshold below which transactions need not be notified of €5,000 within a calendar year, and the option for the threshold to be increased to €20,000 where a competent authority deems it appropriate. The FCA sees no reason to increase the threshold beyond €5,000, and is seeking views on this proposal.

Impact of implementation of MAR in the UK

The EU Market Abuse Directive (MAD) was implemented via legislation (in the Financial Services and Markets Act 2000 (FSMA) and the FCA Rules), however MAR repeals MAD and will have direct application in the UK. It is therefore necessary to make relevant changes to the UK’s existing regime to ensure that it complies with MAR. This will include deleting provisions of the FCA Handbook where MAR contains an equivalent provision. However, the FCA proposes retaining any existing guidance in the FCA Handbook that is compatible with MAR, and providing signposting to the relevant EU legislation.

The main changes proposed are as follows:

  • The FCA’s Code of Market Conduct (the CoMC) which currently provides guidance on determining whether or not behaviour amounts to market abuse is required by section 119 FSMA. Sections 118-122 FSMA (and other sections) are to be repealed but the FCA will preserve the content of the CoMC so far as legally permitted as the FCA is aware that it assists in understanding the FCA’s views and expectations about market abuse.
  • The Model Code in Annex 1 of Chapter 9 of the Listing Rules is replaced with guidance for firms to use when developing their processes to allow PDMRs to apply for clearance to deal during closed periods. This guidance sets out in a proposed new Annex 2 to Chapter 9 and there will be a new listing requirement and continuing obligation which require listed companies to have effective systems and controls in place regarding the process for PDMRs to obtain clearance to deal, either directly or indirectly, in the company’s securities.
  • The Disclosure Rules in DTRs 1 to 3 will be removed and replaced with signposts to the relevant MAR provision. They will be renamed as “Disclosure Guidance”.

The FCA has requested comments on these proposals by February 4, 2016. It notes that it will consult in the next few months on a modification to current guidance in the Disclosure Rules for delaying disclosure of inside information.

(FCA, Policy proposals and Handbook changes related to the implementation of the Market Abuse Regulation  (2014/596/EU), 05.11.15)

Sentencing Council: New health and safety, corporate manslaughter and other definitive sentencing guidelines

On November 3, 2015 the Sentencing Council published definitive guidelines and a consultation response on health and safety, corporate manslaughter, and food safety and hygiene offences, following its publication of draft sentencing guidelines in November 2014.

The guidelines specify offence ranges, being the range of sentences appropriate for each type of offence. A number of categories, reflecting varying degrees of seriousness, are specified within each offence and the offence range is split into category ranges setting out sentences appropriate for each level of seriousness. There is then an identified starting point within each category.

In relation to corporate manslaughter, the maximum penalty is an unlimited fine but the offence range is from a £180,000 fine to a £20 million fine. The first step will be to determine the seriousness of the offence. The next step is to determine the starting point and category range. This will depend on the size of the organisation, but where an organisation’s turnover exceeds £50 million, the guidelines note that it may be necessary to move outside the suggested range to achieve a proportionate sentence. Other factors will then be considered to determine whether the proposed fine should be adjusted or reduced.

The guidelines will apply to organisations and offenders sentenced on or after February 1, 2016.

(Sentencing Council, Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences: Definitive Guideline, 03.11.15)

(Sentencing Council, Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences: Response to consultation, 03.11.15)

Takeover Panel: Asia Resource Minerals plc – Statement of public criticism of certain advisers

On November 5, 2015 the Takeover Panel (Panel) issued Panel Statement 2015/15 in which it publicly criticised certain advisers involved in the acquisition by Vallar plc of interests in two Indonesian coal mining companies in 2011. Vallar was the predecessor of Bumi plc, which subsequently became known as Asia Resource Minerals plc. The advisers have been criticised for breaching a number of provisions of the Introduction to the Takeover Code in connection with the transactions which resulted in a serious breach of Rule 9.1 of the Takeover Code.

In the Panel Statement, the Panel reminds practitioners and other persons to whom the Takeover Code applies of the following points:

  • The Panel’s system of regulation relies on parties and their advisers consulting the Panel whenever they are in any doubt whatsoever as to the application of the Takeover Code.
  • The need to consult the Panel in cases of doubt is particularly acute where there are doubts as to whether parties may be acting in concert.
  • To take legal or other professional advice as to whether parties are acting in concert, or to rely on warranties or representations from those parties to the effect that they are not acting in concert, can never be an alternative to such consultation.
  • Whenever the Panel is consulted, all relevant facts must be disclosed and no relevant facts withheld.
  • While the Takeover Code applies to all types of advisers, financial advisers have a particular responsibility under Section 3(f) of the Introduction to comply with the Takeover Code and to ensure, so far as they are reasonably able, that their client and, in the case of a company, its directors, are aware of their responsibilities under the Takeover Code and will comply with them and that the Panel is consulted whenever appropriate.

(Takeover Panel, Asia Resource Minerals plc (formerly Bumi plc) - Statement of Public Criticism, 05.11.15)

ISS: 2016 Benchmark Policy consultation

Institutional Shareholder Services Inc (ISS), a US provider of proxy research and voting recommendations, is seeking comments on potential changes to certain of its voting policies in its 2015 UK & Ireland Proxy Voting Guidelines. The areas in which it proposes changes relate to “director overboarding”, auditors’ fees for smaller companies and general authorities to disapply pre-emption rights.

Director overboarding

To meet the concerns of investors that directors have sufficient time and energy to be effective representatives of shareholders’ interests, ISS has an “overboarding” policy in the UK and Ireland as well as in other markets, which includes a recommended maximum number of directorships which an individual should hold in various circumstances. The current ISS UK & Ireland Proxy Voting Guidelines include a reference to directors’ time commitments but do not refer to a recommended maximum number of board seats which directors should hold. The proposed change is to make explicit reference to a recommended maximum number of board positions and indicate that ISS may recommend a vote against directors considered overboarded. The proposed policy limits for the UK and Ireland are as follows:

  • Executive directors are not expected to hold other executive or chairmanship positions. However, they may hold up to two other non-executive directorships.
  • The board chairman is not expected to hold an executive position elsewhere, or more than one other chairmanship position. However, the chairman may hold up to three other non-executive directorships.
  • A non-executive director who does not hold executive or chairmanship positions may hold up to four other non-executive directorships.

ISS comment that in assessing outside directorship board positions, only publicly-listed companies will be counted. There will also be a stricter policy for directors who serve on the boards of complex companies, or those in highly regulated sectors, or who chair a significant number of board committees. When applying this policy, ISS will consider the nature and scope of the various appointments and the companies concerned, and whether any exceptional circumstances exist.

Auditors’ fees for smaller companies

ISS currently have a policy which considers non-audit fees to be excessive when they routinely exceed audit-related fees without adequate explanation. ISS will recommend voting against proposals relating to auditor fees when the ratio of non-audit fees to audit fees has been over 100 per cent for more than one year without adequate explanation. This policy is currently applied to widely held companies but not to smaller companies such as those listed on AIM.

ISS proposes to extend its current policy on fees for non-audit services to such smaller companies. ISS would recommend a vote against proposals authorising the board to fix the fees payable to the external auditors when the ratio of non-audit fees to audit fees has been over 100 per cent for more than one year, there is no satisfactory justification (for example, exceptional circumstances linked to a one-off transaction), and the company appears unwilling to address the situation. The chairman of the audit committee may also receive a negative voting recommendation when he or she is next standing for re-election.

General authorities to disapply pre-emption rights

ISS refer to the revised Pre-Emption Group Guidelines on the disapplication of pre-emption rights published in March 2015. In light of the revised guidelines, ISS proposes to change its UK and Ireland policy to reflect the change in acceptable practice, clarifying that a general authority to issue shares without a disapplication of pre-emption rights over up to ten per cent of the issued share capital is acceptable, provided that the extra five per cent above the first five per cent is to be used only for an acquisition or specified capital investment. The policy will also clarify that if a company receives approval for this sort of authorisation but then abuses that authority during the year (for example, by issuing shares without pre-emption rights up to ten per cent for purposes other than those set out in the revised Pre-Emption Group Guidelines) then it may receive a negative recommendation on the authority at the following AGM.

Next steps

ISS will consider comments on these proposed changes to its UK and Ireland policy as it formally makes updates to its voting policies which will have to be applied to shareholder meetings taking place on or after February 1, 2016.

(ISS, Director Overboarding (UK & Ireland), 02.11.15)

(ISS, Auditors' Fees, smaller companies (UK & Ireland), 02.11.15)

(ISS, General authorities to issue shares without preemptive rights (UK & Ireland), 02.11.15)


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