Included in this issue: Delay to implementation on ban on corporate directors; MAR, preliminary announcements and closed periods; Changes to the FCA Handbook and more...
Company Law – Implementation of Small Business, Enterprise and Employment Act 2015
Delay to implementation on ban on corporate directors
One of the changes to be implemented by the Small Business, Enterprise and Employment Act 2015 (SBEEA) was a prohibition on corporate directors (although it was proposed there would be some exemptions to this ban). These provisions were due to come into force in October 2016 but we understand from the Department of Business Energy and Industrial Strategy (BEIS, formerly BIS) that implementation will be delayed. When we have further information, we will let you know.
Duty to report payment practices
BEIS has recently announced that the government would lay regulations to give effect to section 3 (Companies: duty to publish report on payment practices and performance) of the Small Business, Enterprise and Employment Act 2015 in early 2017.
BEIS has since advised that it still expects the regulations to be laid by early 2017, and that it expects the duty will come into force on 6 April 2017, applying to financial years starting on or after that date.
Implementation of the Market Abuse Regulation (MAR)
MAR, preliminary announcements and closed periods
The Financial Conduct Authority (FCA) has updated the statement it made as regards the interaction of the 30-day closed period requirement under Article 19(11) of MAR and the announcement of preliminary results in light of the European Securities and Markets Authority's (ESMA) updated MAR Q&A. The update does not substantively alter the FCA's previous view that a preliminary announcement can bring a closed period under MAR to an end to the extent that the announcement contains all inside information.
For further details, please see our CQC Update
The AIM Regulation team has also published an Inside AIM update on the same issue. In addition, AIM Regulation confirms that it does not propose to amend the AIM Rules in this regard but continues to support the use of Listing Rule 9.7A.1 (preliminary statement of annual results) by AIM companies as a benchmark in relation to the preparation of a preliminary results announcement.
ESMA final guidelines on market soundings and legitimate interests in the context of delay the disclosure of inside information
ESMA has published final guidelines clarifying the implementation of MAR in relation to the market soundings regime and on what it considers are legitimate interests which an issuer may seek to protect and which may, in turn, permit a delay in the disclosure of inside information. The FCA must now confirm whether or not it intends to comply with the guidelines.
AIM Regulation publishes MAR FAQs
AIM Regulation has also published FAQs for AIM companies and nominated advisers. The FAQs set out where to find various MAR implementing technical standards, how to notify the fact of a delayed disclosure of inside information and where to find more information.
The FAQs do not alter the substance of previous statements and guidance issued by the AIM Reg team on the implementation of MAR.
Equity Capital Markets
Changes to the FCA Handbook
The FCA has published amendments to its handbook following its most recent quarterly consultation, together with the implementing instrument. The principal changes made:
- amend the definition of a reverse takeover to ensure that issuers cannot artificially break up a transaction to avoid it being classified as such; and
- set out the prescribed reporting format for reports on payments to governments.
All changes are now in force. The new DTR 4.3.10 (filing of reports on payments to governments) applies to financial years beginning on or after 1 August 2016.
Corporate Governance
FRC report on corporate culture and the role of boards
Last year, the Financial Reporting Council (FRC) announced its plans to launch an initiative to gather practical insight into corporate culture and the role of the board in shaping and embedding a healthy culture. The FRC has now published the results of its study, exploring the relationship between corporate culture and long-term business success.
"Corporate Culture and the Role of Board" (July 2016) sets out the FRC's observations of the key elements that boards should consider to help create a culture that can deliver long-term sustainable growth. The FRC's key findings can be found in our CQC update.
Executive/Directors' Remuneration
Executive Remuneration Working Group's final report
The Executive Remuneration Working Group was established by the Investment Association to address the concern that executive remuneration has become too complex and is not fulfilling its purpose. A detailed overview of the recommendations can be found in the July edition of our Employee Incentives update.
QCA remuneration committee guide for small and mid-size quoted companies
The Quoted Companies Alliance (QCA) has published a revised Remuneration Committee Guide for Small and Mid-size Quoted Companies.
The guide contains best practice guidance aimed at assisting the remuneration committees of smaller and mid-cap quoted companies in developing a bespoke approach to remuneration which supports the implementation of company strategy and effective risk management.
The guide is a companion publication to the QCA's Corporate Governance Code for Mid-size Quoted Companies and to its Audit Committee Code.
Financial Reporting
Reporting by smaller listed and AIM quoted companies
The FRC has published an update to its discussion paper on improving reporting by smaller listed and AIM quoted companies. It provides a summary of the feedback received and the FRC's response in the key areas of reporting requirements and practices, audit practices and company governance.
Developments in Audit: An Overview 2015/16
This FRC report assesses confidence in UK audit and summarises the current "state of play" in the market as seen by the FRC and its stakeholders. The report is supplemented by a more detailed report of the FRC's audit related activities and evidence gathering.
Reminders for half-yearly and annual financial reports following the EU referendum
The FRC has also published a note on matters for directors to consider when preparing their half-yearly and annual financial reports, the aim of which is to stimulate thinking and encourage companies to enter into early dialogue with their auditors in light of the impact of the vote to leave the EU on certain key areas of disclosure.
AGMs
Investment Association revises share capital management guidelines
The Investment Association (IA) has updated its share capital management guidelines to reflect the publication of template resolutions by the Pre-Emption Group. They state that IA members are supportive of the Pre-Emption Group's approach to the issue of the disapplication of pre-emption and expect any company seeking the enhanced 10% disapplication authority to use the template resolutions.
The guidelines also state that IA members have asked the IA's research arm, the Institutional Voting Information Service, to "amber top" any company seeking a 10% disapplication authority which does not use the template resolutions as from 1 August 2016, and to "red top" any such company which does not do so from 1 January 2017.
Takeovers
The communication and distribution of information during an offer
The Takeover Panel (Panel) has published a response statement in relation to the consultation it issued in February regarding the communication and distribution of information and opinions during an offer the primary purpose of which was to ensure that the rules are clear, appropriate and reflect changes in methods of communication. The changes will take effect, including in relation to ongoing offers, and revised pages of the Code will be published, on Monday 12 September 2016. The existing requirements of the Code will continue to apply until that time and the amendments will not have retroactive effect.
The Chairman of the Panel's Code Committee has also published a new instrument correcting a minor error in Instrument 2016/1.
As a result of the changes, the Panel has amended seven Practice Statements and withdrawn one more. Amendments to the Practice Statements will come into effect from 12 September 2016.
Transparency
European Commission strengthens transparency rules to prevent tax avoidance and money laundering
Member states have committed to bring the Fourth Anti-Money Laundering Directive into force by 1 January 2017 (so earlier than the original date of July 2017). Last month, the EC announced some further proposed changes to the Directive. The UK has already introduced many of the requirements around the need to keep a central register listing ultimate beneficial ownership information via the introduction of the PSC ('persons with significant control') regime.
One of the proposals is that member states must make public certain information of the beneficial ownership of companies and other legal entities (other than those that are non profit making). The beneficial owners who have 10% ownership in certain companies that present a risk of being used for money laundering and tax evasion will be included in the registers. The threshold remains at 25% for all other companies. This 10% level goes further than our PSC regime so it remains to be seen how this, and some of the other additional requirements, will interact with our PSC register requirements.
