UK: Corporate Focus: Recent Updates - October 2010

EXTENSION OF THE ISSUER LIABILITY REGIME

The statutory regime governing issuer liability for periodic financial disclosures has changed with effect from 1 October 2010. The regime will in future apply to a much wider range of published information and its scope has been extended to include AIM and PLUS-quoted companies, among other issuers.

Background

Implementation of the Transparency Directive in 2006 introduced new provisions into the Financial Services and Markets Act 2000 setting out the liability of issuers whose securities are traded on a UK regulated market (or another EEA regulated market where the UK is the issuer's home member state) for certain periodic financial disclosures. An independent review subsequently concluded that there was a case for extending the issuer liability regime and the recommendations of that review are now being put into effect.

Application of the Rules

The changes mean that the rules will now also apply to issuers whose securities are traded on a multilateral trading facility (MTF) in the UK, including AIM and PLUS-quoted, and to a MTF situated or operating in another EEA state if the issuer has its registered or head office in the UK. In addition, securities traded on markets or facilities outside the EEA which are equivalent to a regulated market or MTF are also subject to the regime, if the issuer has its registered or head office in the UK. This means, for example, that a claim could be brought in respect of a UK issuer's securities admitted to trading on a US market. However, the Government has acknowledged that the legislation will only in practice have this extra-territorial reach where English law is found to be the applicable law of the forum in which the claim is brought.

The liability regime will extend to all information published via a 'recognised information service' within the meaning of the rules (RIS) and to information published by other means where its availability has been announced via a RIS. This has two important consequences. First, it is an extension of the previous rules which, as seen above, were limited to periodic financial reporting. Second, it means that information whose availability is merely referred to in an RIS communication (for example, a company's annual accounts) will be brought within the scope of the regime. The rules will apply whether or not the information is required to be published. They will also apply whether the claimant obtained the relevant information from the RIS or otherwise: the fact that publication has occurred via a RIS is sufficient.

Scope of the Regime

The regime imposes liability on issuers for misleading statements or dishonest omissions in publications, and has been extended to dishonest delay in publishing information. Issuers are required to pay compensation to anyone who acquires or (in a further extension to the former rules) continues to hold or disposes of securities, having reasonably relied on published information, and suffers loss as a result of any untrue or misleading statements in that information or the omission of any matter required to be included. However, fraud is a prerequisite to liability: a person discharging managerial responsibilities within the issuer (generally, a director) must have known, or have been reckless as to whether, the statement was untrue or misleading or, in the case of an omission, must have known that it was a dishonest concealment of a material fact. In the case of a delay in the publication of information, the publication must have been delayed dishonestly by a person discharging managerial responsibilities.

The legislation contains a 'safe harbour' from other liabilities in respect of untrue or misleading statements in, omissions from or delays in the publication of, information to which it relates. This means that, in general, liability is limited to the situations set out above and also that other persons who may bear responsibility, such as directors, are not liable to third parties (although they remain liable to the issuer itself). However, certain types of liability are carved out of the safe harbour, including civil liability: (i) arising under certain statutes; (ii) for breach of contract; and (iii) arising from a person having assumed responsibility to a particular person for a particular purpose for the accuracy or completeness of information. Liability to civil penalties and criminal liability are also preserved.

Implications for Issuers

Whilst the extension, or introduction (in the case of AIM, PLUS-quoted and other newly affected issuers), of the statutory liability regime might be considered cause for concern, consultation responses suggest that many issuers have taken the view that the codification of their liability in this area is a useful development, given the uncertainties of the common law. It is anticipated that this clarification, together with the requirement for fraud as a condition of liability, will reduce the risk of speculative litigation. Some investors have, however, been less welcoming of the changes, expressing concern that the regime may curtail their opportunities for redress.

Issuers, such as AIM companies, newly affected by the liability regime and regulated market companies for whom its scope has been extended should continue to apply caution in the preparation of information for dissemination via a RIS, being rigorous to ensure there are no untrue or misleading statements or omissions, and that publication is timely. As seen above, care should also be taken in relation to any cross-references to information available elsewhere, which will bring such material within the scope of the regime.

The amended rules have effect in relation to information first published on or after 1 October 2010.

THE UK STEWARDSHIP CODE

The role of shareholders in corporate governance has become a hot topic. The UK Stewardship Code (the Stewardship Code) published in July 2010 aims to improve the quality of corporate governance by establishing good practice and credible standards for institutional investment in UK companies listed on the main market. The intention is that active share ownership by institutions on behalf of their clients equates to better long term returns for shareholders and fosters greater accountability.

The Stewardship Code is based on the 2009 Institutional Shareholders' Committee (ISC) code that governs the responsibilities of institutional investors and is overseen by the Financial Reporting Council (FRC) at the request of the government following the Walker Report's recommendation that the existing Combined Code on Corporate Governance should be split into a Corporate Governance Code for companies and a Stewardship Code for institutional investors.

The end of September 2010 marked the deadline imposed by the FRC for companies to have reported publically a statement on their website of the extent to which they have complied with the Stewardship Code. From October the FRC will maintain a list on its website of all those companies who have complied and endorsed the code.

Comply or Explain

The Stewardship Code is based on seven principles and like the existing Combined Code on Corporate Governance the Stewardship Code will operate on a comply or explain basis. Investors will either sign up to the Stewardship Code or explain why their business precludes adherence.

Who Does the Stewardship Code Apply To?

The Stewardship Code is addressed to firms who manage assets on behalf of institutional shareholders such as asset managers, pension funds, insurance companies, investment trusts and other collective investment vehicles. The FRC also hopes to win support from foreign investors, who could use disclosures made against their national or international standards to show how they have complied with the UK Stewardship Code. UK Investors are also encouraged to apply the Stewardship Code to their overseas investments.

The Principles:

  1. Institutional investors should publicly disclose their policy on how they will discharge their stewardship responsibilities

    The policy should include how investee companies are monitored, intervention strategy, voting policy and policy on Corporate Governance Code compliance as well as how stewardship interacts with the wider investment process.
  2. Institutional investors should have a robust policy on managing conflicts of interest in relation to stewardship and this policy should be publicly disclosed

    This covers conflicts of interest which may arise, such as when voting on matters affecting a parent company or client.
  3. Institutional investors should monitor their investee companies

    Investee companies should be monitored to determine when it is necessary to enter into active dialogue with their boards and satisfy themselves that the investee's boards and committee structures are effective and independent directors provide oversight. A clear audit trail is maintained and good records of meetings and votes cast. The general meeting of a company should be attended if a major shareholding is owned.
  4. Institutional investors should establish clear guidelines on when and how they will escalate their activities as a method of protecting and enhancing shareholder value

    The circumstances should be clearly set out when an institutional investor will actively intervene.
  5. Institutional investors should be willing to act collectively with other investors where appropriate

    The Stewardship Code encourages institutional investors to collaborate where appropriate and to have a policy on collective engagement. When participating in collective engagement, institutional investors should have due regard to their policies on conflicts of interest and insider information.
  6. Institutional investors should have a clear policy on voting and disclosure of voting activity

    Institutional investors are expected to vote on their shares in a considered way, not necessarily always in support of the investee company board. Investors are expected to disclose their voting records publicly or explain why they do not.
  7. Institutional investors should report periodically on their stewardship and voting activities

    Institutional investors should report on their stewardship and voting activities to their clients or end-beneficiaries on both a qualitative and quantitative basis. Although transparency is an important aspect of the Stewardship Code, investors should however remain alert to counterproductive disclosures.

Conclusion

The FRC will closely monitor the take up of the code's stewardship responsibilities and urge UK investors to endorse the Stewardship Code.

The European Commission has published a Green Paper on corporate governance in financial institutions, with a second Green Paper on corporate governance in listed companies expected to follow in 2011. These green papers may lead to stewardship action at an EU level.

NEW FINANCIAL REGULATORY STRUCTURE IN THE UK

On 26 July 2010, HM Treasury published a consultation paper on its proposed reforms of the financial regulatory structure in the UK. The consultation paper sets out the basis for the reforms as announced by the new UK government following the general elections in May 2010.

These reforms involve abolishing the Financial Services Authority (FSA) and transferring its functions to four new regulatory bodies: Financial Policy Committee of the Bank of England (FPC), Prudential Regulation Authority (PRA), Consumer Protection and Markets Authority (CPMA) and Economic Crime Agency (ECA).

Financial Policy Committee

The FPC will be created within the Bank of England and it shall be responsible for macro-prudential regulation. Its main aim will be to identify and deal with any risks which could threaten the stability of the financial sector.

The FPC's main roles shall be:

  • monitoring the stability of the UK financial sector;
  • taking action, when necessary, in order to deal with identified risks and vulnerabilities; and
  • reporting on its operations by publishing financial stability reports.

The FPC shall also oversee the division of roles between certain regulatory bodies

Prudential Regulation Authority

The PRA shall be responsible for regulation of banks and other deposit takers, including building societies and credit unions, investment banks and broker dealers as well as insurers and friendly societies. The PRA's main objective shall be to promote stable financial system through proper regulation of financial firms. Its key roles shall be:

  • making the rules which govern the conduct of regulated activities by financial firms;
  • authorisation of firms which perform regulated activities;
  • assessing the safety and soundness of financial firms;
  • supervision, and where necessary, enforcement of compliance with the rules; and
  • approval of individuals to perform certain controlled functions.

The PRA shall be accountable to the Court of Directors of the Bank of England, the Parliament and HM Treasury.

Consumer Protection and Markets Authority

The CPMA shall be responsible for regulation of business conduct of all firms in financial services and markets, both in relation to consumers in retail markers and to participants in wholesale markets.

The CPMA's key roles shall be:

  • making rules which govern the conduct of financial firms in retail and wholesale spheres and granting permissions to carry on non-prudential regulated activities;
  • supervision, and where necessary, enforcement of compliance with conduct of business rules and the relevant prudential activity; and
  • approval of individuals to perform relevant conduct-related controlled functions for firms which are prudentially regulated by the PRA and approval of all controlled functions where the firm is solely regulated by CPMA.

The CPMA will take over the existing roles of the FSA under the Financial Ombudsman Service, oversee the Consumer Financial Education Board and the Financial Services Compensation Scheme.

Economic Crime Agency

The government will conduct a separate consultation on economic crime, involving whether to transfer the responsibility for prosecuting criminal offences involving insider dealing, market abuse and other criminal law breaches to a new Ecoomic Crime Agency.

Timeline

The consultation closes on 18 October 2010, after which the government intends to bring a Bill forward in mid-2011 and to enact the necessary primary legislation in 2012.

What Next?

There are some uncertainties which come out of this consultation, the main one being the division of responsibilities between the regulated bodies. According to the current draft of the consultation certain activities shall be regulated by the PRA whilst others by the CPMA. It is not clear which specific activities will be regulated by which body, except that the PRA shall be responsible for the regulation of the following activities: accepting deposits, effecting and carrying out insurance contracts and dealing as principal.

The Government said that it would consult on draft legislation to give necessary powers to PRA and CPMA and this consultation is planned to take place in the early 2011. Until legislation to create this new structure is enacted the FSA will continue to represent the UK in the regulatory forums.

THE DODD-FRANK ACT: THE UK PERSPECTIVE

On 21 July 2010 President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) into law. The Dodd-Frank Act represents a financial services regulatory reform in the US. It affects banks and other financial institutions with significant US operations, as well as non-US companies listed on a US stock exchange. However, it may also have an impact on non-US companies without a significant US presence or US listing, including companies in the UK. This article will look briefly into some of the ways in which UK companies may be affected by this act.

Securitisation

The Dodd-Frank Act will impact upon banks and other financial institutions' securitisation practices. It requires that banks retain an interest (generally 5%) in any securitisation they underwrite and that they disclose certain information in relation to the quality of the assets that are backing the securitisation. These changes may come to affect not just companies that are using securitisation as a funding mechanism in the US, but also those using securitisation outside of the US, as banks seek to fund the extra risk they are required to retain.

Derivatives

Under this act most derivatives that are traded privately between parties rather than on an exchange, so-called over-the-counter derivatives, will need to be cleared through a central clearing house. This requirement applies not only to derivative swaps that take place in the US, but also to those that take place outside the US that are deemed by US regulators to have a significant impact on US commerce. The introduction of a central clearing house may have an impact on UK companies that are pursuing hedging strategies by making the hedging activity more expensive and difficult to execute. In certain instances it may also be that the range of available bank counterparties will be limited to those outside the US.

Credit Rating Agencies

The Dodd-Frank Act introduces a new Office of Credit Ratings that will sit within the US Securities and Exchange Commission to oversee the credit rating agencies. It also introduces an enhanced civil liability if the agencies provide ratings without conducting adequate research or due diligence. Since the credit rating agencies operate on a worldwide basis, a more rigorous and time-consuming process to obtaining credit ratings can be expected for all issuers, whether in the US or not.

Divestments of US Banks

The Dodd-Frank Act changes the regulatory regime for US banks in several ways. One key way is the introduction of increased capital requirements for all US banks. Another way is the so-called 'Volker rule' which, subject to certain exceptions, prohibits US banks from engaging in proprietary trading and from owning or sponsoring private equity or hedge funds. While the banks have up to 12 years to divest of these activities, some may choose to do so now. The banks' divestment, particularly of their private equity holdings, may mean that UK companies with private equity shareholders may experience change in the control of their private equity investors, and with it potential change in shareholder expectations and objectives.

TEAM MOVES

The recent Tullett Prebon Plc & Others v BGC Brokers LP & Others [2010] case, concerning BGC's large poaching raid of Tullett's inter dealer broker employees, has given the wider public a glimpse into the murky waters of team moves. Whilst the press have seized upon tales of senior BGC officials losing their blackberries, and, separately, of a senior AON broker admitting to dumping his laptop into a pond, in each case so as to conceal or destroy evidence of their unlawful activity, in our experience this type of behaviour is simply par for the course.

The Facts of Tullett Case

The facts of Tullett are as follows: BGC had recruited Tullett's Chief Operating Officer, Tony Verrier. After joining BGC, Mr Verrier persuaded 13 brokers to resign from Tullett and join BGC. Many of these brokers were tied into long, fixed-term contracts and post-termination restrictive covenants, however they resigned before their contracts expired and claimed constructive unfair dismissal based on alleged misconduct by Tullett. On the basis of evidence that BGC were in fact involved in an unlawful poaching raid on their staff, Tullett obtained an injunction which kept the departing brokers on "garden leave" pending a speedy trial and restrained BGC from poaching other Tullett staff.

At trial, the High Court held that (i) BGC, Mr Verrier and one of the Tullett desk heads were guilty of inducing breaches of contract through their persuasion of other employees to act as "recruiting sergeants" tasked with encouraging more junior employees to leave Tulletts to join BGC; (ii) BGC, Mr Verrier and one of the brokers were guilty of the tort of conspiracy, as they had acted in collusion to effect the team move using unlawful means; (iii) the garden leave and restrictive covenant provisions were enforceable against the brokers; (iv) in all but one case the Court enforced injunctive relief for a period of 12 months; (v) the brokers had not been constructively dismissed by Tullett's robust attempts to persuade them to stay; and (vi) in respect of 3 employees who got cold feet about joining BGC, and who had in fact assisted Tullett to break the case open, Tullett had not induced them to breach the new employment contracts which they had signed with BGC since BGC had already repudiated those contracts as a result of its own actions.

Obligations to be Honoured

Although, team moves are currently most prevalent in the inter dealer and insurance broking sectors, the relevant law applies equally across all industries and employees may be expected to honour:

  • confidentiality clauses preventing the disclosure/misuse of confidential information (particularly information relating to clients and employees);
  • non-competition clauses that prevent employees from competing during their employment;
  • express and implied duties of good faith, loyalty, and the duty to act in the employer's best interests;
  • fiduciary duties;
  • garden leave clauses which expressly provide that the express and implied duties which apply during active employment will continue during the period of garden leave; and
  • restrictive covenants that prevent employees from providing services to a competitor; from dealing and/or soliciting clients; and soliciting employees – each for a specified period post employment.

It may be that certain torts have also been committed, including the inducement of a breach of contract (usually committed by the poaching employer) and conspiracy - as found in Tullett.

These obligations create a tangled web through which both the departing team and the poaching organisation must weave if they are to move the relevant business successfully. The question is whether the available protections are properly in place? Without carefully constructed contracts of employment that include confidentiality provisions, garden leave clauses and enforceable restrictive covenants an employer's business may be wide open for a raid.

If, however, an employer has properly drafted protections in place, it can be extremely difficult to carry out a team move lawfully. As a result, teams, and would be poachers, often conspire in secret, preferring to meet as far from the place of business as possible, communicating by mobile telephone, instant messaging or by home e-mail rather than risk leaving an electronic footprint in the workplace. Accordingly, an employer trying to defend against such a move, must often work hard to protect its proprietary interest in its confidential information, its clients and its workforce. The protective steps which an employer might take to prevent or mitigate the damage typically include:

  • investigating potential unlawful conduct, including conducting forensic IT analysis (subject to the laws on monitoring and data protection);
  • sending letters before action to the departing employees and the poacher;
  • incentivising certain team members to stay;
  • applying for injunctions to enforce express or implied contractual rights;
  • applying for orders for delivery of documents and other material belonging to the existing employer to prevent its further misuse; and
  • negotiating a commercial settlement, typically involving the departing employees offering undertakings to the existing employer, or to the court, to desist from further unlawful activities.

Conclusion

The recent spotlight cast by Tullett on team moves should serve as a reminder to employers to tighten up their contractual documents. Courts have shown in recent years that they are prepared to uphold restrictive covenants where they are reasonably drafted so as to protect a proprietary interest. Case law has also developed to place greater responsibility on employees who may be required to report approaches of would be poachers. However, notwithstanding these advances, and the recent publicity, team moves continue to take place as businesses seek to expand and individuals seek to improve their personal terms.

TAX TREATMENT OF SUMS PAID ON THE SALE OF A COMPANY

Introduction

This article considers the recent decision of the First-tier Tribunal (FTT) in Williamson Tea Holdings Ltd v HMRC [2010] UKFTT 301(TC). Whilst the facts of the case are somewhat unusual the decision highlights a point that is of general interest.

The Facts

Williamson Tea Holdings (WTH), which was a UK resident company, owned the entire issued capital of Borelli Tea Holdings Ltd (Borelli). Borelli's sole asset was a 70% stake in Williamson Tea Assam Ltd (WTA), a company that was incorporated in India and quoted on the Mumbai stock exchange. WTA operated 17 tea plantations in India.

In June 2005 WTH agreed to sell Borelli to McLeod Russel India Ltd (MRI) for L17.58 million. The price paid for the shares implied a price of Rs 145 per share for the shares in WTA. MRI also indicated that it intended to offer to purchase up to 20% of the minority holdings in WTA at the same price per share. It was explained to the Tribunal that under the Indian Takeover Regulations an offer for a minority holding could not be at less than the implied price paid in respect of the controlling shareholding. HMRC accepted that the sale of the shares in Borelli attracted Substantial Shareholding Exemption under Schedule 7AC Taxation of Chargeable Gains Act 1992 (TCGA).

MRI agreed, in the share sale agreement with WTH, to pay L3.77 million as consideration for WTH agreeing to enter into a non-competition agreement. The reason for paying L3.77 million for the non-compete covenants was that it effectively enabled MRI to make an offer to the minority shareholders at a price which was lower than the "real" price being paid to WTH. Evidence was adduced to the effect that this was an entirely acceptable practise within the Indian Takeover Regulations.

WTH submitted its corporation tax return on the basis that the shares in Borelli were sold for L21.35 million (that is, the total of the L17.58 million and L3.77 million payments). The return was amended by HMRC on the basis that the L3.77 million was a capital sum derived from the disposal of goodwill owned by WTH. The result of this was that only the L17.58 million would qualify for Substantial Shareholding Exemption with the remaining L3.77 million being chargeable to corporation tax under section 22 TCGA (Disposal where capital sums derived from assets).

The evidence showed that WTH did not retain any business interest in the territories covered by the non-compete covenants and that the sale of Borelli was part of its decision not to do business in those territories.

The Arguments

HMRC argued that the sum paid for the non-compete covenants was derived from an asset (goodwill) owned by WTH and that Kirby v Thorn EMI establishes that such a payment is taxable under section 22. HMRC also said that the parties had attributed L3.77 million to the non-compete covenants and while they were free to do this in the light of the decision in Spectros they could not subsequently adopt a more advantageous method of apportionment.

WTH contended that at most Thorn EMI decided that the onus was on a taxpayer to show that the payment was not derived from the goodwill that it owned. It did not decide that a parent company was necessarily the owner of goodwill associated with the operating business of the group companies. WTH also argued that it was clear that the L3.77 million was a premium for the acquisition of the controlling interest in WTA and was attributed to the covenants in order to avoid having to pay the same price to the minority shareholders in WTA. WTH asserted that the payment could not be for goodwill associated with carrying on business in the territories because it did not own any.

As regards Spectros WTH responded that HMRC were addressing an argument that it did not advance. It had never suggested that there should be a reconstitution of the documented contractual agreements. WTH said that it was clear from the factual basis under which the non-compete covenants had been introduced into the transaction that the consideration was not paid for goodwill, of which it had none, but for the shares in Borelli and that in consequence the deemed disposal under section 22 would be covered by the Substantial Shareholding Exemption.

Decision

The FTT held that the L3.77 million was part of the consideration paid for the sale of the shares in Borelli with the result that Substantial Shareholding Exemption was available. It decided that the covenants raised a presumption that WTH owned goodwill but that it was open to WTH to rebut this. Moreover, if goodwill did exist it was inherent in the share price and HMRC had failed to produce any evidence to show that WTH owned goodwill independent from the goodwill attaching to the operating businesses and reflected in the share price.

Conclusion

The most interesting point to emerge from the decision regards the applicability of the Spectros decision. Whilst the current decision does not go into detail it does make it clear that the structure adopted by the parties will only be effective for tax purposes if it reflects the commercial reality of the deal. The FTT decided that WTH did not own any goodwill which was not inherent in the shares that were sold with the result that the payment attributed to the covenants could not be for anything other than the shares. The parties to a transaction may have motives for describing something in a particular way but unless this can be justified by the underlying commercial reality the description may be disregarded for tax purposes.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions