UK: FSA Guidance on Financial Promotion: Communications by Listed Companies

The FSA has issued its long-awaited guidance on financial promotion. This is the important last piece in the jigsaw of the complex financial promotion regime. The financial promotion restriction is a key part of the regime established by the Financial Services and Markets Act, particularly for unauthorised persons. It sets the boundaries of what can be communicated about investments without the involvement of a financial adviser. Listed companies need to be aware of how the restriction applies to both their public communications and their private transactions.

The guidance issued by the FSA will be of great assistance in interpreting and understanding some of the complexities of the financial promotion restriction. The guidance is very long – some eighty pages – and can be difficult to follow. However the good news is that the FSA has tried to be as helpful as possible in terms of interpreting the restriction in a sensible and flexible manner and also in giving practical examples of the way in which the various exemptions can apply.

The guidance also contains a short section dealing with the extent to which a company, in the course of carrying out its ordinary activities, may be treated as carrying on a regulated activity for the purposes of the FSMA.

The guidance is available on the FSA web site as part of the FSA Handbook (Appendix 1 of the Authorisation Manual). The FSA also plans to make it accessible as a stand alone document on the site in the near future.

This briefing looks at the key types of communications that may be made by listed companies which could be caught by the restriction and, in light of the FSA financial promotion guidance, when these might be problematic. Some communications will definitely not be caught by the financial promotion restriction, either because there is no invitation or inducement to engage in investment activity or because an exemption applies. Other communications will or may be caught, in which case further advice will need to be sought by the company and the communication may need to be made or approved by an authorised person.

The guidance sets out the FSA’s views on the financial promotion restriction and the scope of the exemptions. If a person acts in line with the guidance, the FSA will assume that the person has complied with the relevant requirements, and therefore would not prosecute that person for breach of the restriction or take regulatory proceedings against that person. However, the guidance does not bind the courts as regards the fact that a contract entered into in consequence of a breach of the financial promotion restriction is potentially unenforceable. The FSA just says that it will be of persuasive effect for a court when considering whether it will be just and equitable to allow such a contract to be enforced.

The guidance sets out comments on each of the elements of the definition of a financial promotion:

• communicate;
• in the course of business;
• an invitation or inducement;
• to engage in an investment activity.

In particular, there is a detailed overview of the concept of an invitation or inducement, and the types of statements that will not be treated as an invitation or inducement.

A series of examples of different types of communications and whether these cross the line is included in the guidance.

The guidance then goes on to look at some of the key concepts in the financial promotion regime, including who is treated as communicating the financial promotion and to whom, the concepts of real time and non-real time financial promotions and when a real time communication can be treated as solicited (see box below for the meaning of these terms).

There is then commentary on most of the important exemptions in the Financial Promotion Order covering the scope and practical use of those exemptions.

Finally, but importantly, there is a separate and detailed section at the end of the guidance on the application of the regime to company statements and briefings, and the exemptions that are likely to apply.

The exemptions to the financial promotion regime only need to be considered in relation to public statements by listed companies if those public statements are treated as an invitation or inducement to engage in investment activity. This will normally be because it is an invitation or inducement to buy, sell or subscribe for the company’s own shares, but could also be because the statement relates to shares in another company or another type of investment, such as a pension scheme.

The first test will always be whether or not there is in fact any financial promotion element in the communication. If there is a financial promotion, or if there is any doubt, the next step is to establish whether an exemption applies so that the communication can be made by the company without it being approved by an authorised person.

The FSA guidance says that the financial promotion test is to be applied objectively. There will only be an invitation or inducement if there is an intention to persuade or incite a person to engage in investment activity and the communication is promotional in nature.

There has always been a concern, even under the old investment advertisement regime, that any statement by a listed company about its performance or business could potentially amount to an inducement to buy or sell its shares as it may influence the buying or selling of shares in the market. The FSA guidance is helpful because it gives a clear confirmation that statements of fact about a company’s performance or activities will not of themselves be inducements to engage in investment activity, even if they may influence persons to decide to buy or sell the company’s shares. Such statements might, for example, be made in a company’s annual accounts or during a briefing of analysts.

However, the guidance says that statements about the company’s possible future performance are likely to constitute an inducement.

There will be other occasions in which a company statement or document will clearly contain an invitation or inducement, such as when a company offers new shares as part of a rights issue or makes an offer for shares in another company. Specific advice will need to be sought in these circumstances.

Listed companies are put in a special position in relation to public statements about their own shares because there is an exemption which applies specifically to them. This is the exemption in Article 69 of the Financial Promotion Order (see box below for details).

Much of the discussion below focuses on the extent to which the different types of public statements made by listed companies fall within this particular exemption.

The most important point for listed companies in relation to public statements is that nearly all of the relevant exemptions do not apply to what is known as unsolicited real time communications (see box above on the meaning of this type of communication) unless the audience falls into a specific category such as investment professionals.

This means that companies need to be particularly careful about statements it makes at meetings to ensure that the prohibition is not breached.

As explained below, some formal meetings, such as AGMs and EGMs, will not involve real time communications by the chairman because the communications take the form of a presentation, or one way flow, which can be treated as non-real time. The issue does, however, arise where there is a small group meeting of a more informal nature and the company must ensure that either:

• the recipients are of a type, such as investment professionals or journalists, who can receive any type of communication; or
• the recipients have confirmed their express request to receive financial promotions in order to make the communications solicited.

There has been considerable concern about the extent to which the financial promotion regime restricts what the chairman of the meeting, and other directors, can safely say at an AGM or EGM.

The FSA guidance makes it clear that, except in special circumstances, the meeting can be conducted in the normal way without breaching the financial promotion restriction.

The first point to make is that a lot of the statements made by the chairman of the meeting at an AGM or EGM will not be a financial promotion at all. As described above, if any statements are made about the company’s past performance or business, for example when discussing the annual report and accounts, then these will not be treated as an inducement to persons to buy or sell shares. Also, at an AGM or EGM, the fact that resolutions are proposed which shareholders are being asked to vote on will not in itself create a financial promotion. Asking a shareholder to vote is not inducing that shareholder to engage in investment activity – it is only if the communication is an inducement or invitation to buy or sell or subscribe for shares or other investments that the restriction applies.

However, there may well be certain statements that are made by the chairman, in particular in relation to the company’s future prospects, which might give to rise to a financial promotion being communicated at the meeting.

To the extent that these statements only constitute an inducement about shares in the company itself or in another company in the group, then a chairman who conducts the meeting in a normal fashion can be safe in the knowledge that an exemption will apply. In particular, reliance can be placed upon the exemption for communications to a company’s own shareholders under Article 43 and the exemption for communications by a listed company which are inducements in relation to its own shares in Article 69. Both of these exemptions do not apply to unsolicited real time communications. However, the FSA guidance makes it clear that:

• the chairman’s speech should be treated as a presentation which is non-real time; and
• when the chairman answers questions from the floor, he will either be answering the question by making a statement to the whole meeting, which again will be non-real time, or might be engaging in a specific conversation directed solely at the questioner, in which case it will be a solicited real time communication to that questioner.

The end result of this convoluted analysis is that the chairman’s speech and Q & As will safely fall within the relevant exemptions.

It is not necessary, or helpful, for a notice of meeting to include any statement confirming the shareholders’ consent to receiving financial promotions at a general meeting. The exemptions available to the company, and the treatment of the statements made by the chairman as described above, mean that this is not required. In any event, such a statement in the notice would not make any relevant communications solicited and so would not improve the position.

In relation to certain types of company general meetings, more care will be needed. This is where the meeting could include statements which are inducements about shares in another company (for example if the company is proposing a demerger or a takeover offer) because these would not fall within the Article 43 or 69 exemptions. In these circumstances, it is likely than the company will in any event have sought legal and financial advice in relation to the particular transaction and one of the matters to be discussed and cleared with the company’s adviser in relation to the transaction will be what can and cannot be said at the meeting. If necessary the chairman’s speech may need to be approved in advance by an authorised person.

Statements which a company is required by the Listing Rules to make via a Regulatory Information Service (RIS), such as the RNS, will be exempt (under Articles 67 and 71) because they are communications which are required or permitted to be made by a relevant investment exchange.

Formal documents which the company has to issue under the Listing Rules such as class 1 circulars, listing particulars and prospectuses are exempt for the same reason.

Other statements made via the RIS which are not required or expressly permitted to be made by the Listing Rules will not fall within these exemptions but the Article 69 exemption will apply instead if they only constitute an inducement in relation to the company’s shares and the other conditions for that exemption are satisfied.

Documents which are only sent to shareholders will be exempt (under Article 43) as a communication by a company to its own members. For example, a letter to shareholders including an invitation to shareholders to take up shares in a dividend reinvestment plan or to use a share dealing facility will be exempt.

The FSA guidance makes it clear that purely profile raising activities by companies will not be treated as an inducement or invitation and therefore do not raise financial promotion issues.

There is a specific exemption for financial promotions contained in, or accompanied by, a company’s annual report and accounts (Article 59). This applies provided that:

• the financial promotion is in relation to investments issued by that company or any other company in its group;
• there is no invitation or advice in relation to investments (only an inducement); and
• any reference to share prices or yields is accompanied by a statement that past performance cannot be relied on as a guide to future performance.

The FSA guidance says that it is sufficient that the annual accounts are made available to recipients at the same time as the financial promotion, for example where both are available on the same web site, as long as the financial promotion refers to the accompanying accounts.

A meeting with analysts, for example, to present the company’s results, will be completely exempt, irrespective of how the meeting is conducted, because all communications to investment professionals are exempt.

Sometimes presentations to analysts are opened up to a wider audience, such as other shareholders. If these other shareholders are to actually attend the meeting, and are not either investment professionals (under Article 19) or high net worth companies (under Article 49) then care needs to be taken that, to the extent that a financial promotion may be communicated at the meeting, they have confirmed in advance their express request to receive communications at the meeting. This is so that the general exemption for inducements by the listed company about its own shares in Article 69 can apply (as explained above, to do so the communications at the meeting must be treated as solicited). A conference call must be treated in the same way.

If the participation of other shareholders is by way of a webcast, which does not allow them to participate in the discussion, this will be treated as a non-real time communication and therefore will fall within the Article 69 exemption for inducements about the company’s own shares provided the other Article 69 conditions (as described above) are satisfied.

Finally, if a copy of the presentation materials made available at the meeting are released via a Regulatory Information Service and are posted on the company’s web site, then that will also be exempt, provided it falls within the conditions for the Article 69 exemption.

Where a financial promotion is communicated to a financial journalist, an exemption will be available whatever the type of communication (whether by way of a telephone call, meeting or e-mail) because of the complete exemption for communications to those in the business of disseminating information about investment activities (Article 47).

Most companies now wish to include as much information for investors as possible in their corporate web site, and this is encouraged by the FSA.

Since the information on the web site will be available to anyone who accesses it, the exemption that will normally need to be relied on is the Article 69 exemption for inducements in relation to the company’s own shares because this applies irrespective of who the recipient of the communication is.

This will mean a listed company needs to ensure that the information that is placed on its web site which could constitute a financial promotion does not:

• contain any invitation (rather than just an inducement) to shareholders to subscribe for or buy shares;
• contain any advice to shareholders to buy or sell shares;
• contain any inducement in relation to any investments other than those issued or to be issued by the company or another company in the group;
• contain details about past prices or yields unless there is also a statement that points out that past performance cannot be relied on as a guide to future performance.

This essentially means that financial and similar information which companies issue, such as annual reports and accounts, interim statements and copies of presentations at analysts meetings, will normally be able to be included on the web site.

It is more problematic if, for example, brokers research reports are included. These may include statements about other securities and may also contain a buy or sell recommendation which would constitute advice and therefore not fall within the exemption. In any event, we do not recommend that brokers reports are included on corporate web sites as they tend to suggest that the company endorses the brokers’ views.

References to a company’s share dealing facility or scrip dividend scheme or dividend reinvestment plan will fall within the exemption provided that there is no invitation as such on the web site for shareholders to buy/sell shares or subscribe for shares under the scheme. A reference to the existence of a share dealing facility will therefore be acceptable, as will a hyper text link to the web site of a particular organisation that provides that service.

In relation to documents linked to particular corporate transactions, specific advice should be sought before placing these on a web site. This is not just because of the financial promotion restriction but also because of other considerations, such as the need to restrict access to overseas shareholders to prevent breaching overseas securities laws.

The FSA financial promotion guidance contains a useful summary (in the part on the meaning of an inducement) of the way in which the financial promotion restriction limits a company’s communications with its employees about pensions and other benefits, such as life insurance arrangements and employee share schemes. The key points are:

• Communications which are purely intended to educate or give employees information, and which do not contain any element of persuasion or incitement to participate in a relevant scheme, do not fall within the financial promotion restriction.
• If an employer wants to circulate material prepared by an authorised person to its employees which is about pensions, life insurance or share dealing, then it can do so under cover of a letter which provides information but does not contain any inducement to act on the accompanying material. In such a situation, the covering letter itself will not need to be approved by an authorised person. However, the company must check that material that is circulated that has been prepared by the authorised person has also been formally approved by that authorised person for communication by an unauthorised person.
• In relation to communications about employee share schemes, there is a specific exemption in Article 60 of the Financial Promotion Order allowing employers to communicate with employees for the purposes of an employee share scheme, irrespective of whether or not the material does contain any invitation or inducement.
• In relation to information required by law to be provided to employees about stakeholder pension schemes, the exemption in relation to communications required or authorised by an enactment (Article 29) will apply. The FSA has also issued separate specific guidance in relation to communications by employers to employees about stakeholder pensions (this is available from the FSA web site: Helping your Employees with their Pension Options, April 2002).

It is possible for communications in relation to private transactions, such as the disposal of a subsidiary or entering into a joint venture agreement, to be caught by the restriction on financial promotion, even though under the old regime they would not have constituted an investment advertisement. This is because the subject matter of the transaction is a controlled investment and therefore any communication of an invitation or inducement to a third party to buy or sell or subscribe for that investment falls within the restriction. In each case an exemption needs to be found.

One exemption that will often be available is the exemption for the sale and purchase of a body corporate. Where this exemption applies, all communications on the transaction are exempt. The transaction must be one in which 50% or more of the voting shares are acquired or where the object of the transaction is to acquire day-to-day control of the body corporate.

Joint venture agreements, where each party carries on an existing business and, for example, a special purpose vehicle is set up to exploit a commercial project, will be exempt under the exemption for joint enterprises (Article 59).

The transaction will also be exempt if both of the parties are high net worth companies (under Article 49). A party will be a high net worth company where one company in its group has at least £500,000 of share capital or net assets and more than 20 members or alternatively, if no company in the group has more than 20 members, if there is one company with at least £5,000,000 of share capital or net assets.

Not all transactions will fall within the above categories. For example, a disposal or acquisition of a 20% stake in a company involving an individual. The exemption that is the fall back exemption to be used in these circumstances is the vaguely worded exemption for "one off" communications (Article 28).

The FSA has provided very helpful and detailed guidance on the exemption which essentially allows it to apply to private transactions where the communications are tailored to the recipients and only a small number of parties are involved. It does not matter that there may be numerous communications in relation to the same transaction – each communication can still be treated as "one off". The only problem with using this exemption is that it does not apply to unsolicited real time communications unless the recipient reasonably understands the risks involved and was expecting to be contacted. Care therefore needs to be taken that the transaction is initiated (in terms of when the first inducement or invitation takes place) by way of an e-mail, fax or letter rather than a phone call or meeting. Another route that is sometimes used in order to prevent any claim that there has been an unsolicited real time communication in relation to the transaction, is to obtain confirmation at the outset of the transaction that each party specifically requests communications from the other about the transaction. This could be, for example, by including a clause in the confidentiality undertaking to that effect, so making all subsequent communications solicited.

The complexity of the financial promotion regime means that this briefing can only provide general advice on common scenarios. If there is any doubt about a particular communication then the company should seek specific advice on it.

© Herbert Smith 2002

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