Annual Report and Accounts and Preparing for the AGM in 2003

This briefing sets out a list of issues that have arisen over the last 12 months of which you should be aware in the preparation of your annual report and accounts and in the preparations for your next AGM.

ABI Launches New Guidelines on Executive Remuneration

The Association of British Insurers (ABI) has issued new guidelines on executive remuneration. The guidelines incorporate the best practice statement on contracts and severance pay which the ABI and the NAPF published jointly earlier in December 2002, together with two new sections, on the basic principles of remuneration and on the structure of pay packages. The existing guidelines on share-based incentive schemes are also incorporated, with minor modifications reflecting market practice over the past year. Some of the guidelines will be relevant for boards and remuneration committees preparing their Directors’ Remuneration Reports.

The Guidelines can be accessed from the ABI website www.abi.org.uk.

There are 12 principles about executive remuneration, covering basic guidelines about structuring remuneration; dialogue with shareholders concerning remuneration; and what should go in the remuneration report.

The following are relevant to preparation for the AGM.

• The remuneration report should set out the principles which have been followed and describe the approach used when putting into place the different components of total remuneration.

• Remuneration committees should disclose senior executives’ remuneration by disclosing the number of executives with specified levels of remuneration on a banded basis.

• All new share based incentive schemes should be subject to approval by shareholders by means of a separate and binding resolution whether or not they are dilutive. If the rules of the share based incentive scheme, or the basis on which the scheme is approved by shareholders, permit some degree of latitude on the amounts to be granted or the performance criteria, any changes should be detailed in the remuneration report. Any substantive changes in the operation of schemes which have previously been approved should be subject to prior shareholder approval. Where there is performance-linked enhancement or matching arrangements in respect of shares awarded under deferred bonus arrangements, there should be a separate shareholder vote.

• Any proposed departure from the stated remuneration policy should be subject to prior approval by shareholders.

• Boards should review regularly the potential liabilities associated with all elements of remuneration and make appropriate disclosure to shareholders. There should be transparency on all matters relating to the remuneration of present and past directors and, where appropriate, other senior executives. Shareholders’ attention should be drawn to any special arrangements and significant changes since the previous remuneration report.

• All performance targets should be disclosed in the remuneration report. If there are commercial confidentiality concerns which prevent disclosure of specific short term targets, that is acceptable provided the basic parameters adopted in the financial year are reported on.

• There should be informative disclosure of the value accruing to pension schemes or other superannuation arrangements, which should include the costs to the company, the extent to which liabilities are funded and aggregate outstanding unfounded liabilities.

For further information, contact paul.ellerman@herbertsmith.com

Many of the questions which might be raised by shareholders may still focus on the Enron fall out. These may relate to the composition of the board and board committees, particularly the audit committee; the terms of appointment, remuneration and role of non executives; the company’s internal controls; and the extent to which the directors understand the accounts.

For a checklist of issues which need consideration, see our briefing "The aftermath of Enron – a corporate action plan" (17 May 2002).

Each year, PIRC issues guidelines to shareholders on voting. The guidelines for 2003 are expected to be published on 19 February. Last year’s guidelines, datedMarch 2002, highlighted its concerns over audit and accounting standards and suggested that the following be disclosed:

• global, not just UK, non-audit fees.

• dates of appointment of audit firm.

• the name of audit partner.

• a full explanation to be provided for any change of auditor.

• the audit committee’s terms of reference.

• Audit Committees to report annually to shareholders on their activities including frequency of meetings, attendance and issues discussed.

PIRC also launched a directors’ remuneration rating service, which aims to help investors assess the positive and negative features of any new share incentive scheme and/or remuneration report.

Source: PIRC Press Release, 2 March 2002.

The ABI and NAPF also issue guidance to shareholders on voting issues.

In April 2002, the ABI’s Investment Committee sent a letter to the chairmen of the audit committees of all FTSE-100 companies, in the wake of Enron, asking for disclosure (a "short yet informative" statement) to be made in the annual report about the audit committee’s approach to ensuring that the auditors’ objectivity and independence is maintained. The letter attached some examples of best practice.

Source: ABI letter.

In May 2002, the NAPF published guidelines on what institutional investors expect from independent non-executive directors.

The guidance looks at the qualities investors expect an independent director (ID) to possess, what does an ID need to work effectively, the right level and type of reward for an ID, how many directorships the non-executive director should hold, and training needs. Quite a lot of this is not new but there are some new recommendations. For example, the NAPF suggest that the number of days spent by each ID should be reported in the listed company’s annual report and that companies allowing their executive directors to serve as an ID elsewhere should state in their annual report whether or not the executive may retain such earnings (the NAPF recommends they should not be allowed to). They recommend that a full-time executive director should not take on more than one outside directorship, and those holding only non-executive posts would have to justify how they manage more than five (including charity boards).

The guidance also looks in detail at four specific areas: responsibilities of the audit committee, setting out typical questions that audit committees should be asking; executive directors’ remuneration, again including questions the remuneration committee should be asking as well as guidance on non-executive remuneration; corporate social responsibility and the ID’s role; and the definition of independence.

The NAPF also believes that companies should have to justify retaining any director aged 70 or over.

Two major statements about institutional shareholder activism were published in October 2002; the first by the Institutional Shareholders’ Committee (ISC) and the second by Hermes Pensions Management.

The ISC Statement of Principles

The ISC Statement of Principles is aimed at institutional shareholders and investment managers. The statement is available from the investment affairs section of the ABI website – www.abi.org.uk.

The ISC recommends that each institution should draw up a public statement setting out its policy on shareholder activism. They specify what the policy should include. Listed company boards should be aware of the instances listed by the ISC of when institutions may want to intervene.

The Statement also describes the hierarchy of actions that could be taken by institutions and agents if boards fail to respond constructively to their initial approaches, ranging from holding additional meetings with management through to putting resolutions at shareholder meetings and seeking to requisition an extraordinary general meeting. They also call for, as a fall back, an increasing use of abstentions, and possibly votes against, at AGMs and EGMS by institutions.

Hermes has had its own statement of corporate governance principles for several years. The new Hermes Principles arecompletely different. They are a detailed

statement of "what shareholders expect of public companies – and what companies should expect of their investors". There are ten principles in the Hermes document. The following two are those most relevant to AGM documentation, although it is possible that institutions may raise any of the others with companies in which they invest.

• Principle 1 – Communication

"Companies should seek an honest, open and ongoing dialogue with shareholders. They should clearly communicate the plans they are pursuing and the likely financial and wider consequences of those plans. Ideally goals, plans and progress should be discussed in the annual report and accounts."

Companies should use the annual report to say what the company believes its cost of capital is, what its competitive advantage is in its businesses, and what surplus it is generating over that cost of capital. It should not just have a description of the company’s activities and aspirations without explaining how or if they are creating shareholder value.

• Principle 2 – Measuring returns

"Companies should have appropriate measures and systems in place to ensure that they know which activities and competencies contribute most to maximising shareholder value".

Hermes emphasises the importance of the Weighted Average Cost of Capital (WACC) to corporate decision-making, but notes that very few companies state clearly in their annual report their WACC assumptions. One of the few to do so is Geest plc, and Hermes quotes approvingly from its 2001 annual report.

For further information on the ISC Principles and the Hermes Statement, ask for a copy of our briefing (November 2002).

Co-Operative Insurance Society will become the first institutional investor to publish how it has voted on company resolutions. It will publish information about its entire voting record on its website.

PIRC has published its annual review of 2002. In its press release announcing the publication, PIRC highlighted its finding that over 75% of UK Boards are dominated by directors who are not independent. Independent directors were in a majority on less than 20% of boards and 4% of companies, by PIRC’s assessment, had no independent directors on their boards.

According to research done by PIRC, about 60% of FTSE 100 companies currently have a majority of non-executive directors (not necessarily independent) on their boards. PIRC is the only one of the major corporate governance activists which believes that there should be a non-executive director majority on the board. In addition, it is considering a shift in policy to requiring this majority to consist of independent non-executive directors.

PIRC’s review can be ordered through the website (www.pirc.co.uk).

The Health & Safety Commission has issued guidance, aimed at FT-SE 350 companies, requiring disclosures on health and safety. They provide that the annual report should include appropriate health and safety information which will demonstrate to the stakeholders the company’s commitment to controlling work related risks within the business and its awareness of the need to monitor performance. Complying with these guidelines is not a statutory requirement. A copy is available on the Health and Safety Commission website (www.hse.gov.uk).

The Accounting Standards Board amended on 9 January 2003 its non-mandatory guidance (which was issued in 1993) on the content of the OFR. In this, the ASB sets out the case for a clearer explanation of performance. Following this statement is likely to mean that the information presented will be different, or shown in a different way, compared with last year.

For further information see our two briefings on this (August 2002 and December 2002).

These came into force on 1 August 2002 and introduced a new statutory disclosure and shareholder approval regime for directors’ remuneration. They require UK quoted companies to produce a directors’ remuneration report for each relevant financial year and to put a resolution on that report to shareholders at each AGM. ("Quoted companies" are those whose shares are listed on the Official List of the UKLA; or listed on another principal European stock exchange; or admitted to dealing on the New York Stock Exchange or Nasdaq).

The Regulations amended Part VII (Accounts and Audit) of the Companies Act 1985 and have added a new Schedule 7A to that Act, which sets out the detailed requirements for the form and content of the directors’ remuneration report. The new requirements apply with regard to financial years ending on or after 31 December 2002.

The information required by new Schedule 7A of the Companies Act is divided into two parts. Part 2 sets out the information which is not required to be audited, and Part 3 the information which is subject to audit. The Auditing Practices Board has published Bulletin 2002/2 which is available on its website www.apb.org.uk.

The auditors are required to report to the company’s members as to whether the "auditable part" of the remuneration report has been properly prepared in accordance with the Companies Act 1985. Companies, therefore, need to make the disclosures in a way that makes it clear which elements have been audited. The Bulletin suggests that these could be set out in a discrete section under a suitable heading, such as "audited information".

For companies who send shareholders a summary financial statement, the Companies (Summary Financial Statement) mendment Regulations 2002 provide that this must now include a summary of information from the new form of directors’ remuneration report, and the new performance graph required by the Regulations, as well as the existing summary information from the report and accounts.

The Listing Rules, and the Combined Code on Corporate Governance, already require a lot of detail about directors’ remuneration to be included in an annual remuneration report. The UKLA has no plans for any immediate changes to the Listing Rules, although it has said (in its new newsletter, List!) that it will issue a letter to the market shortly on the overlap between the Listing Rules and the new Regulations.

This means that, for the foreseeable future, listed companies will have to ensure that they comply with both regimes. As both cover the same subject matter, but word their requirements differently, those preparing remuneration reports will need to look carefully at the detail of both. There is the potential for confusion, as in several respects the two require similar, but not identical, disclosures. This is particularly the case in respect of disclosures about pensions, long term incentive schemes and pensionable remuneration.

In December 2002 the UITF withdrew UITF Abstract 10 "Disclosure of Directors’ Share Options" which is referred to in paragraph 12.43 A(c)(iii) of the Listing Rules. The new Regulations require information about individual directors’ share options that includes the disclosures recommended by the UITF in Abstract 10. The UITF has therefore concluded that Abstract 10 has served its purpose and may be withdrawn.

The provisions of the Combined Code continue to apply, so listed companies should also have regard to Schedule B to the Code on the contents of the remuneration report.

The ICSA has produced a short guidance note. This is available on its website www.icsa.org.uk (reference 021002). The guidance note sets out in bullet-point form the information that must be included in the directors’ remuneration report.

For further information, contact paul.ellerman@herbertsmith.com or rosemary.graham@herbertsmith.com.

The Institute of Chartered Secretaries & Administrators (ICSA) issued a guidance note for the chairman of the meeting on polls and proxies in June 2002. This is available on its website www.icsa.org.uk (reference 020228).

It notes that most two-way proxy forms name the "chairman of the meeting" as the default proxy, and so in practice most shareholders appoint the chairman as their proxy. However, the Companies Act 1985 does not specify the duties or obligations of the chairman either in his capacity as proxy or as regards responding to a call for a poll from shareholders. Moreover, it would be unusual to find specific clauses on the chairman’s obligations in the Articles of Association (although most articles give the chairman an unqualified power to demand a poll). Some guidance can however be gleaned from common law. In particular, the chairman of the meeting has a duty to ascertain the sense of the meeting as regards the matter before it ( Second Consolidated Trust Limited v Ceylon Amalgamated Tea & Rubber Estates Limited [1943] 2 All ER 567). So where the chairman has been appointed a proxy for members and is aware that, if a poll were called, the result might be different to that reached on a show of hands, then he has a duty to demand a poll, if he is able to do so under the Articles of Association. He must do this whether or not anyone else demands a poll and may also have a duty to join in a demand for a poll made by another member. Moreover, where a poll is correctly called for by shareholders, the chairman is obliged to comply with that request.

On the other hand, the chairman will often be aware that the outcome of a vote on a show of hands would not be any different if a poll was called. In that case, it is acceptable for him to inform anyone demanding a poll of the likely outcome, by spelling out the number of proxies instructing him to vote for or against the resolution, and the number giving him discretion, and comparing these to the number of votes represented by those in attendance. If, however, the members demanding a poll persist with their demand, and the demand is validly made, the chairman must allow the meeting to proceed to a poll. It may of course be the case that certain shareholders who appointed the chairman as their proxy are present at the meeting and intend to vote in person, thereby revoking their proxy.

The guidance note also gives some guidance on how the chairman should cast proxy votes on proposals to adjourn or to amend resolutions.

We have noticed an increase in the number of companies who announce the numbers of votes polled on resolutions at their general meetings, although we are not aware of any rule expressly requiring them to do so. However, if there is a sizeable minority of dissenting shareholders, our view is that it is advisable to announce the poll outcome, as to do otherwise could, arguably, mislead the market.

The use of "voluntary" polls by companies has also become much more common, with some companies saying that voting at their general meetings will only be by poll and not by show of hands.

Barings plc & anr v Coopers and Lybrand (a firm) & ors: [2002] EWHC 461 (Ch) –Chancery Division 20 March 2002

In the many actions consequent on the collapse of Barings, the question of the directors’ representation letters in an audit was raised. The issue was whether the auditors had a complete defence in the claim against them in respect of the audit, based on representation letters addressed to them by the finance director. The representation letters stated that:

• there had been no irregularities involving management or employees who had a significant role in the system of internal control or that could have a material effect on the financial statements,

• the company had made available all books of account and supporting documentation,

• the financial statements were free of material error,

• transactions had been properly recorded and adequately disclosed; and

• all liabilities had been disclosed and that there had been no post balance sheet events.

A number of the statements in the letters were inaccurate. The auditor’s submission was that the finance director signed the letters recklessly as to whether they were true or false, and hence fraudulently, and that this therefore was their defence. The argument was unsuccessful – but this is a useful judgement looking at the duty of care of the director signing such a statement. Directors should be alert to auditors seeking, as a result of this case, to enhance the status of these letters to transfer some of the risk burden back to the directors.

The decision in a recent Scottish case, Royal Bank of Scotland v Bannerman Johnstone Maclay (a firm), has led PricewaterhouseCoopers (PwC), to change the wording of its audit reports.

The case centres on the extent to which the auditors of a company’s financial statements owe a duty of care to third parties (i.e. parties other than the company and its existing shareholders)—in this instance a bank that was lending to the company being audited—where those third parties seek to rely on the audited financial statements for any purpose. The concern of audit firms is that the case appears to have extended the duty of care (and hence exposure to liability) of auditors to third parties beyond that outlined in previous case law.

In the ruling, the judge said that the audit firm in question could have protected itself by issuing a disclaimer of liability. Subsequently, PwC announced that all its future audit reports on UK client companies would contain the following wording:

"We do not, in giving this opinion, accept or assume any responsibility for any other purpose or to any other person to whom this report is shown or in whose hands it may come save where expressly agreed by our prior consent in writing."

PwC has been quoted as saying that it believes this wording merely restores the auditor liability situation to that which existed before the Bannerman case, so that liability to the client company and its shareholders remains unchanged.

It has been reported in the business press that the other large audit firms may follow suit with the same or similar wording. The Bannerman case is apparently being appealed; but even if the decision is overturned, it is highly likely that this type of wording will continue to be included in future audit reports.

If you are considering changing auditors, the Companies Act procedure for changing auditors must be followed. In particular, reference should be made to Sections 391- 394A of the Companies Act, covering the removal and resignation of auditors and the rights of auditors in those circumstances. Companies should particularly bear in mind that the auditors have rights to address shareholders and are obliged to make and file a statement regarding the circumstances in which they ceased to be auditors. It would also be prudent for audit committees and boards to document carefully the basis for retention or dismissal of the auditors. Auditors are also required to act in accordance within Section 1.206 of the ICAEW Members Handbook "Changes in Professional Appointment".

From 20 January 2003, companies will be able to offer shareholders who are CREST members the facility of sending back an electronic proxy via the CREST system. The ABI, NAPF and Investment Management Association have written a joint letter to the FTSE 100 companies urging them to allow shareholders to use the new system.

CRESTco has prepared a note for issuers explaining the new system, and it has also prepared model form wording for a company’s Articles of Association and wording for the notice of meeting/proxy form if issuers are allowing the CREST proxy system to be used. These are available from the CRESTco website: http://www.crestco.co.uk/home.html/ publications/model wording/electronic-proxy- voting

If a company decides to offer shareholders this facility in relation to a particular meeting, then an announcement of the meeting needs to appear on the CREST system. This will not be the equivalent of a legal notice of meeting, but is just to let the market know that the meeting is happening and that members can use the CREST system to send back their proxies. The results of meeting can also be announced via the CREST system, although this is not compulsory.

The proxies are sent back by the CREST member filling the relevant details electronically onto a form on the CREST system and sending the proxy as a CREST message via the CREST system. The electronic proxy messages are then collected by the registrar via CREST. CREST proxies can be sent by registered holders who are CREST members and by CREST sponsors sending proxies on behalf of the relevant CREST sponsored member. The CREST system also allows "voting service providers" to be appointed by a CREST member to send back proxy instructions via CREST on its behalf.

Although CRESTco have produced model wording for Articles of Association in order to make specific reference to proxies being delivered by CREST, most companies will not need to make changes in their Articles of Association in order to use the new facility. The general language in Articles relating to the receipt of proxies in electronic form should be wide enough to cater for CREST proxies as well. Companies should examine their own Articles to check whether the wording is wide enough. If a company has not made any changes to its Articles to allow for the receipt of proxies in electronic form, then the provisions allowing for electronic proxies automatically implied by virtue of Section 372(2B) of the Companies Act will be wide enough to allow the use of CREST without specific changes being made to the articles. Similarly, if a company has adopted the standard form wording used by Herbert Smith for amendments to Articles to allow for electronic proxies, then this wording will be sufficiently wide without further amendments being necessary. If the articles are not to be changed specifically to allow for CREST proxy voting then it is advisable for there to be a board resolution approving the receipt of proxies in that form, particularly as regards the acceptance of proxies from voting service providers – see the CRESTco note for further details.

To discuss this, contact carol.shutkever@herbertsmith.com.

The FSA in May 2002 issued its long-awaited guidance on financial promotion. The financial promotion restriction is a key part of the regime established by the Financial Services and Markets Act, particularly for unauthorised persons. The guidance is available on the FSA website (Appendix 1 to the Authorisation Manual in the FSA Handbook).

When FSMA came into force, there was considerable concern about the extent to which the financial promotion regime would restrict what the chairman of the meeting, and other directors, could 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. 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 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, as will normally be the case at an AGM, then a chairman who conducts the meeting in the 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 at the AGM 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, because these would not fall within the Article 43 or 69 exemptions. In these circumstances, one of the matters to be discussed and cleared with the company’s advisers in relation to the relevant transaction will be what can and cannot be said at the meeting.

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 toinvestments 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 website, as long as the financial promotion refers to the accompanying accounts.

For further information on how the financial promotion regime affects communications and announcements by listed companies including presentations to analysts, talking to journalists, corporate websites and communications to employees, please ask for our briefing "FSA Guidance on financial promotion; communication by listed companies" (July 2002).

For further information, contact carol.shutkever@herbertsmith.com.

Sharegift, the charity share donation scheme, has received more media attention and exposure in 2002 than before and may have come to the attention of shareholders. It accepts small, unwanted shareholdings as charitable donations, re-registers them and then sells when enough shares have been donated to make it worthwhile. It is attractive both to individuals who want to give shares, but also to companies as it helps to reduce the number of small holdings. It was used in December 2001 in the demerger of BT. See the website www.sharegift.org for more information.

• Treasury shares – draft regulations are not yet in force

• Higgs review on the role of non executive directors – is due to be published on 20th January

• New guidance on audit committees from the Financial Reporting Council – has not yet been published

© Herbert Smith 2003

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