UK: Financial Services and Markets Act 2000: Issues for Listed Companies

Last Updated: 16 November 2001

This note summarises three key aspects of the changes brought about by the Financial Services and Markets Act 2000 (the "Act") which will impact on listed companies. It also outlines some of the practical implications for listed companies following the Act coming into force on 1 December 2001, in particular in relation to the operation of the market abuse regime. The note is for general information only and specific legal advice should be sought in relation to any particular issues which may arise.

The three key areas are:

  • Market Abuse
  • Financial Promotion
  • Changes to the Listing Rules and UKLA Guidance

 

MARKET ABUSE

This is a summary of the new market abuse regime and focuses on its impact on listed companies. We have also prepared a more detailed briefing on the new market abuse regime generally.

Introduction

Market abuse is behaviour which relates to, or has an impact on, investments traded on a UK market and which does not meet the standard of behaviour reasonably expected of a person in that market because it involves a misuse of information, the creation of a false or misleading impression, or the distortion of the market in the investments.

Market abuse is a civil rather than a criminal offence. This means that there is a lower standard of proof and whether or not a person is guilty of market abuse is determined by the FSA rather than by a court or a jury. Market abuse gives rise to a liability to pay an unlimited penalty to the FSA, or to be censured by the FSA, and can be prohibited by the FSA by way of an injunction or can be the subject of a restitution order.

The FSA has issued a code to provide guidance as to what behaviour amounts to market abuse. This code is the FSA’s Code of Market Conduct and is set out in Chapter 1 of the Market Conduct Source Book in the FSA Handbook. The Code will be crucial in determining whether particular conduct amounts to market abuse or whether the conduct falls within one of the safe harbours created by the Code.

The new market abuse regime supplements the existing criminal offences of insider dealing and the creation of a false market; it does not replace them, and they continue as before. The only change is that the FSA now has power to prosecute for these offences as well as taking action in relation to market abuse.

What Constitutes Market Abuse?

In summary, for behaviour to constitute market abuse under the Act it must:

  • occur in relation to a "qualifying investment" on a prescribed UK market; and
  • satisfy one or more of the following conditions:

  • - involve the misuse of information;
    - be likely to give a false or misleading impression;
    - be likely to distort the market; and
  • fall below the standard expected by a regular user of the market; and
  • not fall within a safe harbour created by the FSA’s Code of Market Conduct.

The three categories of behaviour constituting market abuse, as defined in the Act are:

(a) Misuse of Relevant Non-Public Information

"the behaviour is based on information which is not generally available to those using the market but which, if available to a regular user of the market, would or would be likely to be regarded by him as relevant when deciding the terms on which transactions in investments of the kind in question should be effected".

(b) False or Misleading Impression

"the behaviour is likely to give a regular user of the market a false or misleading impression as to the supply of, or demand for, or as to the price or value of, investments of the kind in question".

(c) Distorting the Market

"a regular user of the market would, or would be likely to, regard the behaviour as behaviour which would, or would be likely to, distort the market in investments of the kind in question".

In order for behaviour to constitute market abuse, not only must it fall within one of the three categories set out above but it must also meet the regular user test. This means that it must be behaviour:

"which is likely to be regarded by a regular user of that market who is aware of the behaviour as a failure on the part of the person or persons concerned to observe the standard of behaviour reasonably expected of a person in his or their position in relation to the market".

A regular user is defined as a reasonable person who regularly deals on the market in investments of the kind in question.

The regular user test is not the same as a test relating to what is normal practice. Although normal market practices will in general not amount to market abuse, there is no safe harbour in this respect – it is open to the FSA to decide that certain normal market practices do nevertheless constitute market abuse.

The Code of Market Conduct sets out certain safe harbours from the market abuse regime. In particular, there are specific safe harbours for listed companies in relation to compliance with some of the specific provisions of the Listing Rules.

Territoriality and Scope

It is important to note that it is irrelevant where the person accused of market abuse is located or where the behaviour takes place.

All that is required is that the behaviour occurs in relation to "qualifying investments" (which includes the full range of debt and equity securities, futures and options) on a UK recognised investment exchange, which includes the London Stock Exchange and LIFFE.

A further key point is that the behaviour need only be "in relation to" the investment and need not involve the investment directly. For example, action taken in the US in relation to a company’s American Depository Shares will be caught if that company’s shares, to which the American Depository Shares relate, are traded on the London Stock Exchange.

Enforcement

Under the Act, the sanctions available to the FSA for market abuse against any person (including for this purpose a legal person such as a company or partnership as well as an individual) are:

  • A public censure
  • An unlimited fine
  • Asking the court to make a restitution order under which the court may order any amount paid to the FSA pursuant to the order to be paid out to those who have suffered a loss as a result of the market abuse
  • An injunction to prevent market abuse or a freezing order to prevent the disposal of assets.

Practical Implications for Listed Companies

Behaviour in relation to other securities or investments

When a listed company is acting in relation to another company’s securities, it will have to consider the same issues in relation to market abuse as any other person would. For example, it will have to consider whether it has any confidential information which might result in the transaction being regarded as a misuse of information or whether a particular dealing or action might lead to a false or misleading impression or a distortion of the market.

Behaviour in relation to own securities or information

In relation to the release of a listed company’s own confidential information to the market, the Code of Market Conduct imposes a more onerous set of requirements on the listed company, and a lower threshold to cross, than for other market participants. The fact that there are safe harbours for listed companies in relation to compliance with specific provisions of the Listing Rules should not give listed companies and their directors a false sense of security that their position is better than other market participants – in fact they have more stringent tests imposed on them.

Specifically, the two circumstances described in the Code in which a listed company or its directors could be guilty of market abuse in relation to information about the company’s own securities, are:

  • If a listed company releases official information through an "accepted channel" (e.g. the Regulatory News Service) and that information is false or misleading and the company or its directors have failed to take reasonable care when issuing the information, then the listed company may be guilty of market abuse by creating a false or misleading impression.
  • If a listed company discloses its own confidential information to persons other than those described in the Code of Market Conduct (which essentially corresponds with the limited range of people to which such information can be disclosed under the Listing Rules, prior to a Chapter 9 announcement) and other than for a legitimate purpose and subject to a confidentiality restriction, then the listed company could be guilty of encouraging market abuse by way of misuse of relevant information.

This second category imposes a three-fold test that companies must adhere to before disclosing confidential information. The disclosure must be to a permitted person, for a legitimate purpose and subject to a confidentiality restriction. It is not of course always appropriate or realistic to obtain a formal confidentiality undertaking, for example when a company is dealing with its advisers, but the company should nevertheless be careful to ensure that its advisers know when the information it discloses to them is confidential or subject to an embargo. When dealing with a counterparty on a transaction there should be a formal confidentiality undertaking and the Code of Market Conduct suggests that this should include a statement to the effect that the recipient should not base any behaviour in relation to any relevant investments which would amount to market abuse on the information until the information is made generally available.

It should also be noted that the test of what is "relevant information" for the purposes of determining whether there has been market abuse as a result of the misuse of that information, is different from the definition of price sensitive information in the Listing Rules. Price sensitive information for the purposes of Chapter 9 of the Listing Rules, is information which is not public knowledge and which, if made public, may lead to a substantial movement in the price of its listed securities. For the purposes of Chapter 16 of the Model Code on directors dealings (and for insider dealing purposes), price sensitive information is information which relates to particular securities, is specific or precise, has not been made public and if it were made public would be likely to have a significant effect on the price of any securities. The market abuse definition of "relevant information" requires that the information must be information which is not generally available and which is likely to be regarded by the regular user as "relevant" when deciding the terms on which transactions in the investments of the kind in question should be effected (note for this purpose, there is no "significant" or "substantial" test) and it must be information which relates to matters which the regular user would reasonably expect to be disclosed to users of the relevant market.

Breach of the Relevant Listing Rules and Market Abuse

Both types of behaviour described above would almost inevitably also be in breach of Chapter 9 of the Listing Rules in relation to the disclosure of price sensitive information. Looking at it the other way, a failure to comply with Chapter 9 of the Listing Rules, is now also going to put the company and the directors at risk of an allegation of market abuse.

For example, disclosure of price sensitive information to analysts during analysts’ meetings has always been thought of in the context of whether or not that disclosure constitutes a breach of the Chapter 9 requirement not to selectively disclose price sensitive information. Now, it could also constitute market abuse by way of disclosure of confidential information to persons not listed in the Code. Selective leaks to the press about a potential transaction could equally be caught by the market abuse regime (as misuse of information) as well as by Chapter 9.

Similarly, when companies are considering whether or not to issue a profits warning or trading statement, they should now be aware that failure to do so would not only be a breach of the Listing Rules, but also constitute market abuse by the creation of a false or misleading impression (given that, for the purposes of market abuse, "behaviour" includes inaction as well as action).

The other side of the coin is that, if a company is able to show that it has complied with its Chapter 9 obligations in relation to the release of information, then it is highly unlikely that the FSA would take action against it in relation to market abuse as regards that release of information. The new UKLA Guidance Manual (described below) contains the UKLA’s updated guidance on the dissemination of price-sensitive information (the "PSI Guide"). The PSI Guide is important for directors of listed companies in the context of the announcement of price sensitive information to the market under Chapter 9 of the Listing Rules. If a listed company acts in accordance with the guidance set out in the PSI Guide, the UKLA will proceed on the basis that the company and its directors have complied with the aspects of the Listing Rule to which the guidance relates. Compliance with the PSI Guide is therefore also important in avoiding any allegation of market abuse.

Given the new market abuse regime and the focus the FSA is likely to be placing on enforcement, listed companies should ensure that they take a prudent approach in relation to price sensitive information. For example, they should take a prudent approach in assessing whether an announcement needs to be made and ensure that the announcement is made promptly.

Listed companies will also find that their financial advisers and brokers and the analysts with whom they deal will be adopting a more cautious approach and may be changing some of their standard practices when dealing with the company because of the new regime.

Model Code on Directors’ Dealings and Purchase of Own Shares

One key aspect in relation to which no safe harbour is given is compliance with the Model Code on Directors’ Dealings. Just because a director falls within one of the exemptions in the Model Code on Directors’ Dealings, and is thus permitted to deal pursuant to the Model Code, this does not mean that the dealing cannot constitute market abuse or insider dealing. The question of whether the dealing could constitute market abuse or insider dealing must be separately considered in each case. It should not often be the case that a transaction permitted by the Model Code might be treated as a misuse of information for market abuse purposes. However, because there are a series of exemptions from the Model Code restrictions which might not be relevant to an allegation of market abuse, and because the test of what is "relevant information" for market abuse purposes is, as described above, different to the test of what is "price sensitive information" under the Model Code, it is technically possible and should be considered in each case.

Market abuse is also relevant in relation to the buyback of a listed company’s shares. Under the Listing Rules, a buyback cannot occur at a time when the Model Code on Directors’ Dealings prevents the directors from dealing in the shares themselves. Again, there is no safe harbour from market abuse for compliance with the Model Code. Therefore a purchase of a company’s own shares at a time permitted by the Model Code could still constitute market abuse under the misuse of information test and this should be considered in each case.

 

FINANCIAL PROMOTION

Introduction

The restriction on financial promotion is contained in Section 21 of the Act. This provides that a person must not, in the course of business, communicate an invitation or inducement to engage in investment activity unless he is an authorised person or the content of the communication is approved by an authorised person or an exemption to the prohibition applies.

The prohibition is the replacement for the restriction on investment advertisements in Section 57 of the Financial Services Act 1986 ("FSA 1986") and the prohibition on unsolicited calls contained in Section 56 of the FSA 1986.

The effect of the new regime is to consolidate the former different regimes for the marketing of financial services, deposits and insurance, to consolidate the previously different regimes for specific types of communication and to extend the regime to all types of communication whatever form they take.

Compliance with the regime is essential as a breach is a criminal offence and can result in an investment agreement being unenforceable.

The FSA is preparing detailed guidance on the new regime and its views on the width of the various exemptions, but this will not be available until early 2002. We will be issuing a further briefing giving practical guidance on various common scenarios, when this FSA guidance is available.

Principal Changes

The key changes from the current law and regulation in this area are:

  • The terms "investment advertisement" and "unsolicited call" are replaced with the wider concept of "communicating" an invitation or inducement to engage in investment activity. This radically extends the statutory prohibition and covers any type of communication including e-mails, telephone calls, letters and meetings and, more generally, catches all aspects of a transaction involving investments even where there is no advertisement. It means that the scope of the financial promotion restriction for unauthorised persons is much wider under the new regime.

For example, the negotiation between two parties of an investment agreement was never an issue under the investment advertisement regime but, under the new regime, that negotiation could constitute an invitation or inducement by one party to engage in investment activity (that is to dispose of or acquire shares), and a suitable exemption may need to be found. Exemptions will therefore become very important in avoiding a breach.

  • Although the new framework preserves nearly all of the previous exemptions from the investment advertisement regime, the change in the nature of the prohibition from the narrow concepts of investment advertisements and cold calling to the much wider generic concept of "communications" means that these have to be completely reconsidered in relation to any particular communication. Exemptions now have to be found for many activities which were not previously caught by a prohibition.
  • New key concepts which need to be considered each time include "real time communications" and "non-real time communications" together with "solicited" and "unsolicited" real time communications (as described below).

Exemptions

A statutory instrument, the Financial Promotion Order, creates 58 exemptions to the prohibition, each of which is complex and technical. Care needs to be taken to ensure that investment communications fall within an exemption, otherwise they will be unlawful if not issued or approved by an authorised person. The exemptions allow an unauthorised person to communicate a promotion without the approval of an authorised person.

The section 21 prohibition applies to promotions regardless of the type or means of communication. However, because of the recognition that cold calling needs to be restricted more than other types of promotion, a distinction has been created in the Financial Promotion Order between "real time" and "non-real time" communications and between "solicited" and "unsolicited" real time communications.

Certain exemptions are only available for certain types of communication and in particular many do not apply to "unsolicited real time" communications. It will often be crucial to determine whether a communication is "real time" and, if so, if it is "unsolicited" in order to decide whether an exemption applies.

The test of what is "real time" is, despite the word used, not whether the communication is instantaneous but whether it is interactive. Real time communications are defined as those which take place in the course of a personal visit, telephone conversation or other interactive dialogue. Non-real time communications are any other form of communication. The Financial Promotion Order states that communications made by letter or e-mail or contained in publications (which means newspapers/magazines, websites, radio and television broadcasts and teletext services) will be regarded as non-real time communications.

A real time communication is solicited if it is initiated by, or made at the express request of, the recipient.

It is likely to become standard practice, and is certainly advisable, for initial documentation on a transaction, such as a confidentiality undertaking or information memorandum, to include such a statement confirming an express request to receive real time communications in order to allow communications in relation to that transaction to be treated as "solicited".

An important point for listed companies is that the exemptions for communications by a company to its own members and communications by a listed company which are only an inducement (with no invitation) about its own securities, do not apply to unsolicited real time communications.

Issues Relating to Meetings

Under the previous regime, meetings would not normally involve an investment advertisement and were not cold calling and therefore did not fall within the restrictions.

However, meetings do come within the new regime as they may involve communications which are inducements, and are a particular difficulty both in terms of the real time/non-real time distinction and as regards whether a real time communication is solicited. A meeting could include non-real time communications as well as real time and could also include solicited and unsolicited real time communications, so that it may be difficult to ensure that an exemption applies throughout. It is hoped that the FSA guidance will confirm that formal presentations at meetings will be treated as non-real time and that question and answer sessions will be dealt with by treating only the questioner as receiving a "real time" answer. This would allow company meetings to be dealt with in the normal way, with very few chairman’s speeches requiring advance approval by an authorised person.

Making Telephone Calls

Telephone calls will always be real time communications. Directors of listed companies must always take care therefore, not to initiate a transaction which would involve communicating a financial promotion by way of a telephone call, unless the person called is clearly an investment professional or a high net worth company or another exemption applies, such as the sale of a body corporate. A call by a company initiating a transaction will inevitably be unsolicited. The danger is that if the transaction does not fall within an appropriate exemption which applies to unsolicited real time communications, the initiation of a transaction by way of a telephone call will be a breach of the financial promotion regime. It is safer to make the initial contact by letter or email (and ask the recipient to expressly request real time communications in his response). Although a relevant exemption still needs to be available, using a letter or email makes it more likely that one will be – and in particular it may allow the one off communications exemption to be used.

Consequence of Breach

Breach of the financial promotion prohibition is an offence punishable by a fine and/or up to two years’ imprisonment.

Where an offence is committed by a body corporate and is shown to have been committed with the consent or connivance of an officer or to be attributable to any neglect on his part, the officer as well as the body corporate may be guilty of an offence as well as the body corporate itself.

In addition, if, in consequence of an unlawful communication under section 21, a person enters as a customer into an agreement to engage in investment activity then that agreement is unenforceable against him and he is entitled to recover money or property paid or transferred and compensation for any loss sustained by him as a result of having parted with it, unless a court decides that it is just and equitable to enforce the agreement.

Seek Advice

Until companies become familiar with the regime and its operation, they will want to seek advice from their advisers in relation to anything that might constitute a financial promotion. If there is doubt over whether a document or other communication constitutes financial promotion or whether an exemption applies, the company may need to have the communication issued or approved by an authorised person, such as its financial adviser.

 

CHANGES TO THE LISTING RULES AND UKLA GUIDANCE

Amendments to Listing Rules from 1 December 2001

The Listing Rules of the UK Listing Authority will be amended with effect from 1 December 2001. Most of the changes are purely technical ones to reflect the new Act. Part VI of the Act is the Part which deals with Official Listing, to replace Part IV of the FSA 1986. It is the same in substance as the provisions it replaces, with the exception, as mentioned below, of the new penalty arrangements. This will therefore just mean that there will be new section numbers etc. to refer to when formal documents, such as listing particulars, are being prepared.

Penalties

Paragraph 1.8 of the Listing Rules gives the UKLA the power to impose an unlimited fine or publish a statement censuring an issuer where the issuer has breached the Listing Rules. Paragraph 1.9 of the Listing Rules also gives the UKLA the power to fine or censure a director who was knowingly concerned in the breach of the Listing Rules. These are the new powers given to the UKLA under the Act.

Instead of issuing a public censure or imposing a fine, the UKLA may decide to issue a private warning to alert the issuer or director to the fact that the UKLA was considering a formal disciplinary sanction. If such a private warning is issued, it will then form part of the compliance history of that issuer and director and therefore might be taken into account if a new disciplinary action is considered in the future.

Guidance Manual

The UKLA is at the same time issuing a new Guidance Manual which will be a companion volume to the Listing Rules. This covers:

  • the previously issued guidance on Continuing Obligations, amended to take into account the changes to the Listing Rules;
  • the Guidance on the Release of Price-sensitive Information (referred to above in relation to market abuse) which is known as the "PSI Guide".
  • the formal, numbered Listing Rules Guidance Notes already issued by the UKLA on specific topics;
  • the eligibility and independence criteria for sponsors;
  • the practical procedures for applying for listing, getting a circular approved, applying for guidance on interpretation of the Listing Rules and applying for a waiver (these have not previously been in written form – the UKLA is formalising its practices by putting them into the Manual);
  • the procedures to be adopted by the UKLA when using its new powers to impose a penalty for breach of the Listing Rules and the factors that the UKLA will take into account when deciding whether to take disciplinary proceedings, whether to issue a censure or impose a financial penalty and, in the latter case, guidance on factors to be taken into account in determining the level of that penalty. There are no prescribed levels. The amount will just depend on the circumstances each time.

PSI Guide

Listed companies will need to have a detailed knowledge of the new PSI Guide. It has not been radically changed from the previous version of the Guide, but it does expand and tighten up on certain issues. In particular, it gives a lot more detail with regard to a company’s relations with the press and dealing with market rumours. The Guide makes it very clear that the company should not be giving advance information to the press and that it needs to take care when dealing with rumours. Although no obligation has been included to correct rumours which are false and baseless, there are some new provisions that need to be noted. In particular, the new Guide suggests that a denial of a rumour may itself be price-sensitive and should be made through the RNS service rather than in response to a journalist’s question. Also, it suggests that where a rumour is based on fact (for example a rumour of a particular acquisition which the company is in fact negotiating) a denial could be in breach of the company’s obligations under the Listing Rules and that a "no comment" response may be the only appropriate one in these circumstances.

The PSI Guide also places much more emphasis on the need for listed companies to put in place proper procedures and training for relevant employees in relation to handling price sensitive information and dealing with the press.

The Price Sensitive Information Guide is bound to have a higher profile and be of greater concern to companies from 1 December for three reasons. Firstly, because of its enhanced status – it is no longer just best practice – compliance with it will be treated as compliance with the relevant Listing Rules; secondly because of the new penalties available to the UKLA for breach of the Chapter 9 obligations, of which the dissemination of price sensitive information is by far the most important; and thirdly, because of its importance in avoiding any allegation of market abuse in relation to a listed company’s dissemination of price sensitive information.

Companies will need to ensure that relevant employees are aware of the requirements of Chapter 9 of the Listing Rules and of the provisions in the new PSI Guide, and that they have in place proper procedures and controls to ensure that they can comply with their obligations.

Whistle Blowing and the Model Code on Directors’ Dealings

The UKLA had proposed to include in the Listing Rules two new whistle blowing requirements on the issuer to inform the UKLA of any breach of the Listing Rules and also to inform the UKLA if any director was in breach of the Model Code on Directors’ Dealings. In response to comments made during the consultation process, the UKLA has decided not to implement either of these changes. It has, however, pointed out that there are existing rules and guidance which cover these issues.

In relation to a breach by the company of the Listing Rules, the UKLA points to the statement in the Continuing Obligations Guide, now contained in the Guidance Manual, that if a listed company realises it has or may have breached its continuing obligations it should contact the UKLA to discuss the matter and seek guidance on taking steps to ensure that similar breaches are prevented. Also, Chapter 8 of the Guidance Manual, in relation to disciplinary matters, makes it clear that one of the factors that will be taken into account when deciding on the imposition of sanctions, and if so the type of sanction to be imposed, is whether the issuer and/or relevant director brought the breach to the attention of the UKLA and, if so, how quickly and effectively it did so.

In relation to the Model Code on Directors’ Dealings, the UKLA points to the fact that, under Listing Rule 16.18, companies are required to take all reasonable steps to ensure compliance with the company’s code of dealing, including appropriate monitoring of dealings by directors and enforcement action by the company in relation to breaches.

Companies should note that, although the Model Code itself is not being changed, they should review the information available about the Model Code (or their own internal code) for directors and senior employees, and review their internal procedures. Directors, relevant employees and those involved in the clearance process need to be aware that, in addition to considering the provisions of the Model Code and insider dealing before giving clearance, the individual and the company must, in each case (as described in relation to market abuse above), now consider whether or not the particular dealing would constitute market abuse.

The most important exemptions for listed companies to be aware of are:

Investment professionals – Article 19

The restriction on promotion does not apply to any communication which is made only to recipients whom the person making the communication believes on reasonable grounds to be investment professionals or which may reasonably be regarded as directed only at such recipients.

This exemption can be used, for example, for meetings by a company with analysts.

One off communications – Article 28

Under Article 28, there is an exemption for a one off communication which is either a non-real time communication or a solicited real time communication. The exemption was introduced as a result of worries expressed by respondents during the consultation on the Order that many communications made in the course of business would be caught.

The conditions which are required to be met in order for a communication to be definitely treated as a one off communication are that the communication is made only to one recipient or only to a group of recipients in the expectation that they would engage in any investment activity jointly; the identity of the product or service to which the communication relates has been determined having regard to the particular circumstances of the recipient; and the communication is not part of a coordinated promotional strategy. If only one of these conditions is met, that fact is only to be taken into account in determining whether the communication is a one off communication. Even if none of the conditions are met, the exemption could still apply if the communication can be treated as a "one off".

The exemption can only be used for unsolicited real time communications in limited circumstances – if the recipient reasonably understands the risk and is expecting a call on that matter.

This exemption is likely to be used as a "fall back" when no other exemption applies. However, it has caused much debate and concern because of the unclear nature of the concept of "one off" and how this can be applied to a transaction involving many communications.

Joint Enterprises – Article 39

Communications between participants or potential participants in a joint enterprise entered into between two or more persons for commercial purposes relating to a business or businesses carried on by them are exempt. This exemption would therefore cover joint venture arrangements.

Members and creditors of bodies corporate – Article 43

There is an exemption for a company making a communication about its own investments (or investments of a company in the same group) to its creditors, members and persons entitled to become members.

The key limitation to this exemption is that it does not apply to unsolicited real time communications.

High net worth companies and associations – Article 49

Article 49 allows any type of communication to high net worth companies and unincorporated associations or partnerships.

A high net worth company is a body corporate which has a called-up share capital or net assets of not less than £500,000 where the body corporate has more than 20 members or which is a subsidiary undertaking of a parent undertaking which has more than 20 members; or, otherwise, where the body corporate has share capital or net assets of not less than £5,000,000.

Annual Accounts and Directors Report – Article 59

The exemption for annual accounts in relation to investment advertisements used to form part of the exemption which also related to promotions by companies whose securities are admitted to trading on a recognised market. These two exemptions have now been separated. The exemption for annual report and accounts in Article 59 is, for all intents and purposes, the same as before. It applies, with certain conditions, to communications which consist of or are accompanied by a UK or EEA company’s annual accounts.

Employee share schemes – Article 60

There is an exemption for communications for the purposes of an employee share scheme which has the same scope as the equivalent exemption under the investment advertisement regime, except that it now specifically includes proposed as well as existing schemes. This applies to all forms of communication, including unsolicited real time communications.

The exemption only applies to promotions about shares or debentures or investments giving an entitlement to them. It does not cover other types of investments. So for example it does not cover health insurance or pension schemes for employees, which are now within the promotion restriction.

Sale of a body corporate – Article 62

This exemption applies to most company sale and purchase agreements where the transaction would give the buyer 50% or more of the voting shares or the object of the transaction can reasonably be regarded as being the acquisition of day to day control of the affairs of the body corporate and the parties are companies, partnerships or "connected" individuals.

The exemption is an important one because it applies to all forms of communication, including unsolicited real time communications, and therefore there is no problem with telephone calls or meetings.

Companies whose shares are or are to be admitted to trading – Articles 67 to 71

The Financial Promotion Order groups together the exemptions specifically designed for promotions by companies whose shares are traded on a recognised exchange (in the UK or elsewhere). These are set out in Articles 67 to 73. The main difficulty for listed companies is that none of these exemptions apply to unsolicited real time communications. This creates a particular difficulty for any oral statements made to investors, for example at company meetings or investor presentations, but we are hoping that the FSA will confirm that these can be treated as non-real time communications or solicited real time communications.

For UK listed companies, the two most important exemptions are:

Promotions relating to securities already admitted to a relevant market (Article 69)

This reproduces the former investment advertisement exemption for inducements by any company whose securities are admitted to trading on a stock exchange in the UK, Europe or elsewhere.

The requirements are that the communication relates only to shares, stock or debentures issued by that body corporate, or another body corporate in the same group, does not contain any offer or invitation or advice to engage in an investment activity, and does not contain any inducement relating to a relevant investment other than one issued by the company or another company in the same group.

This is the exemption that can be used when placing investor information on a corporate website, provided it is not in connection with a share offering.

Promotions included in any listing particulars, supplementary listing particulars, etc (Article 71)

This is the exemption for listing particulars, prospectuses and other documents required or permitted to be published under the Listing Rules, such as Chapter 9 announcements.

 

 

 

"© Herbert Smith 2002

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us."

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.