UK: CORPORATE BRIEFING DECEMBER 2015

Transcription

1 BRIEFING UK: CORPORATE DECEMBER 2015 PROPOSED AIM RULES CHANGES ANNUAL SLAVERY STATEMENT CHANGES TO INSOLVENCY LAW SMALL BUSINESS, ENTERPRISE AND EMPLOYMENT ACT 2015 NEW UK GAAP PENALTY CLAUSES Note from the Editor In the last issue of 2015, the main focus of our UK Corporate Briefing is on the proposed changes to the AIM Rules for Companies (AIM Rules) which will affect investing companies and companies contemplating a substantial disposal of business or assets, the recently issued guidance and confirmation of timing relating to the new annual slavery statement that large commercial organisations will be required to publish, and some recent insolvency law developments. We also briefly mention the delay in implementation of certain company law changes, the new UK GAAP financial reporting framework and the long-awaited decision of the Supreme Court handed down last month in relation to the common law rule against penalties. We welcome Nigel Taylor, new Corporate partner, to our team. In addition to a number of recent lateral hires, Nigel s appointment continues the expansion of our Corporate practice in London. His practice spans the full range of corporate transactions, particularly in the commodities, insurance and rail sectors. Nick Fothergill Corporate Group

2 2 Watson Farley & Williams Proposed AIM Rules changes Changes to the rules for investing companies and companies that undertake a fundamental change of business are in the pipeline. On 15 October 2015, the London Stock Exchange (LSE) announced that it was consulting on proposed changes to the AIM Rules which apply to investing companies and to AIM companies that undertake a fundamental change of business. The consultation closed on 12 November THE LSE HAS PROPOSED THAT THE FUNDRAISING REQUIREMENT FOR AN INVESTING COMPANY SEEKING ADMISSION TO AIM... BE INCREASED FROM 3 MILLION, IN CASH VIA AN EQUITY PLACING, TO 6 MILLION....FOLLOWING A FUNDAMENTAL DISPOSAL, AN AIM COMPANY THAT BECOMES A CASH SHELL WILL NOT AUTOMATICALLY BE DEEMED TO BE AN INVESTING COMPANY... Investing companies The LSE has proposed that the fundraising requirement for an investing company seeking admission to AIM (Admission) be increased from 3 million, in cash via an equity placing, to 6 million. This increase reflects the passage of time since the fundraising requirement was first set in As currently set out in Rule 8 of the AIM Rules, this cash fundraising must take place on, or immediately before, Admission. The LSE notes that the reference to "immediately before" in Rule 8 of the AIM Rules would usually mean on the same day as Admission. Fundamental change of business Currently, under Rule 15 of the AIM Rules, when an AIM company divests itself of all or substantially all of its trading business, activities or assets (a Fundamental Disposal) it will, upon completion of the disposal, be treated as an investing company. Pursuant to the AIM Rules, shareholder approval must have been obtained for this Fundamental Disposal and the AIM company s proposed investing policy following such disposal. The AIM company will then have 12 months to either implement its investing policy or make an acquisition or acquisitions constituting a reverse takeover under Rule 14 of the AIM Rules. If the AIM company fails to do either within the prescribed period, trading in its AIM securities will be suspended. The LSE has proposed that, following a Fundamental Disposal, an AIM company that becomes a cash shell will not automatically be deemed to be an investing company but will instead be regarded as an AIM Rule 15 cash shell. Within six months of becoming an AIM Rule 15 cash shell, the AIM company must undertake an acquisition or acquisitions constituting a reverse takeover otherwise, at the end of the six month period, trading in its AIM securities will be suspended. For the purposes of Rule 15 of the AIM Rules only, becoming an investing company pursuant to Rule 8 of the AIM Rules (including raising at least 6 million as specified in Rule 8) will be treated as a reverse takeover and the provisions of Rule 14 of the AIM Rules will apply, including the requirement to publish an admission document. The purpose of this change is to avoid companies remaining on AIM following a Fundamental Disposal with limited cash balances, which will not be sufficient to enable meaningful investment(s) or facilitate the functioning of a fair and orderly market in the company s securities. Annual slavery statement for large commercial organisations The requirement for publication of a statement has now come into force and the timing clarified. Guidance has also been published which may be useful to your organisation. Section 54 of the Modern Slavery Act 2015 (Act), which we discussed in our last Corporate Briefing, came into effect on 29 October 2015, and so commercial organisations (a body corporate or a partnership) which both (i) supply goods or

3 UK: CORPORATE BRIEFING - DECEMBER services and (ii) have an annual worldwide turnover of 36 million are required to prepare a slavery and human trafficking statement for each financial year. In this statement, the organisation must set out the steps it has taken to ensure there is no modern slavery in its own business and its supply chains, or state that it has taken no such steps. THE ORGANISATION MUST SET OUT THE STEPS IT HAS TAKEN TO ENSURE THERE IS NO MODERN SLAVERY IN ITS OWN BUSINESS AND ITS SUPPLY CHAINS, OR STATE THAT IT HAS TAKEN NO SUCH STEPS. THE HOME OFFICE EXPECTS COMPANIES TO BUILD ON AND DEVELOP THEIR SLAVERY STATEMENTS YEAR ON YEAR. The UK Home Office has now published guidance (available here) advising organisations on the content of a slavery statement. The guidance includes examples which may be useful to your organisation and links to a number of websites that may be useful resources. An organisation is free to choose how to present the information contained in its slavery statement, but the guidance provides that this statement should: be kept succinct and written in simple language (and, where relevant to the organisation s business and supply chains, in a language other than English); specify any actions taken by country, in order to help the reader understand the context of such actions; and disclose the sectors in which the organisation s business operates, and the countries from which it sources its goods or services, including high risk countries where modern forms of slavery are prevalent. The Home Office expects companies to build on and develop their slavery statements year on year. It is only those commercial organisations which satisfy the two requirements stated above and whose financial year ends on or after 31 March 2016 that are required to publish a slavery statement in respect of such financial year. Each such organisation must publish a slavery statement in respect of its whole financial year, although where that organisation has only started to take steps to tackle modern slavery since section 54 came into force, the statement may indicate that the activity undertaken covers a particular part of the financial year. The Act does not impose a deadline for an organisation to publish its slavery statement. The guidance states that the slavery statement is expected to be published as soon as reasonably practicable following the end of the organisation's financial year to ensure that the information is both relevant and up to date, and encourages publication within six months of the organisation's financial year end. Changes to insolvency law in October 2015 Companies and their directors should take note of certain recent insolvency law developments. A number of changes to UK insolvency law came into effect in October Some of the key changes relevant to companies and directors are summarised below.

4 4 Watson Farley & Williams Directors disqualification The Small Business, Enterprise and Employment Act 2015 (SBEE) extends the disqualification regime for directors from 1 October 2015 as follows: To increase the period of time for the Secretary of State or the official receiver to apply to the court for disqualification of an unfit director of an insolvent company from two to three years from the date the company became insolvent. To allow the Secretary of State to apply to the court for the disqualification of a director who has been convicted of certain overseas offences. The relevant offences are those in connection with the promotion, formation, management, liquidation or striking off of a company (or any similar procedure) or the receivership of a company s property (or any similar procedure) or a person being an administrative receiver of a company (or holding a similar position), and which correspond to an offence under UK law. The Secretary of State may accept a disqualification undertaking from a person instead of applying for or proceeding with a disqualification order. This applies only in relation to a foreign conviction occurring on or after 1 October To broaden the matters to which the court must have regard when determining whether a person should be disqualified as a director of an insolvent company. The court may now take conduct in relation to overseas companies into account and, in particular, it can take account of the director s conduct in relation to other companies or overseas companies that have become insolvent. To allow the court to make a compensation order against a person, on the application of the Secretary of State, where the conduct for which that person has been disqualified has caused loss to one or more creditors of an insolvent company of which they have at any time been a director. A compensation undertaking may be accepted instead. An application for an order must be made within two years of the date of the relevant person being disqualified....a NEW POWER FOR AN ADMINISTRATOR TO BRING AN ACTION FOR WRONGFUL OR FRAUDULENT TRADING... New power for administrators SBEE has also introduced into the Insolvency Act 1986, with effect from 1 October 2015, a new power for an administrator to bring an action for wrongful or fraudulent trading where a director (or in the case of fraudulent trading, any person) has caused the business of an insolvent company to trade wrongfully or fraudulently. The provisions mirror the provisions which already apply to liquidators. Striking off As noted in our last Corporate Briefing, the timescale for striking off a company (whether voluntarily or at the instigation of the Registrar of Companies) has been reduced with effect from 10 October 2015, as a result of shortened notice periods. The Small Business, Enterprise and Employment Act 2015 December 2015 implementation of SBEE has been delayed. Measures contained in SBEE relating to registered office address and director disputes were expected to come into force in December 2015, but implementation has now been delayed until April These provisions are now expected to come into force alongside the key requirement to keep a register of persons with significant control.

5 UK: CORPORATE BRIEFING - DECEMBER New UK GAAP are you ready? New UK GAAP applies to accounting periods commencing on or after 1 January 2015 and further changes apply from 1 January 2016, in particular, as regards small companies and micro-entities. A new financial reporting framework in the UK is effective for accounting periods beginning on or after 1 January The UK s Financial Reporting Council (FRC) has published five standards which together form the basis of the new UK regime and bring the UK regime more in line with IFRS (International Financial Reporting Standards). Revisions to the regime were issued in July 2015, the majority of which are applicable for periods commencing on or after 1 January 2016, with early adoption permitted. For small and micro entities, the Financial Reporting Standard for Smaller Entities (FRSSE) has been withdrawn with such entities having to apply a different regime for accounting periods beginning on or after 1 January Most small companies will switch to FRS 102, the main standard of the new regime. For micro-entities, a new separate standard may be used (FRS 105). THE NEW UK GAAP REGIME INCORPORATES SOME SIGNIFICANT DIFFERENCES FROM EU- IFRS AND ALSO DIFFERENCES TO THE PREVIOUS UK REGIME. The new UK GAAP regime incorporates some significant differences from EU-IFRS and also differences to the previous UK regime. In particular, there are significant changes in both the reporting structure of the primary financial statements and the language and terminology used. There are also key changes in accounting treatment. Companies will need to ensure that they are fully abreast of the changes and should liaise with their accountants to assess how the changes, including the latest changes, will potentially affect their financial statements and what they need to do to implement them. Penalty clauses Cavendish Square Holding BV v El Makdessi and ParkingEye Ltd v Beavis [2015] UKSC 67 In a much anticipated decision, the Supreme Court has clarified the rule against penalties and, in so doing, emphasised the desire of the English Courts to hold parties to the bargains that they have willingly made. IN ARRIVING AT ITS DECISIONS, THE COURT RESTATED THE COMMON LAW RULE AGAINST PENALTIES. The Supreme Court has handed down its judgment in the consolidated appeals in Cavendish v El Makdessi and ParkingEye v Beavis. In Cavendish v El Makdessi, the Supreme Court found that two clauses in a share purchase agreement which provided that the buyer was not liable to pay deferred purchase consideration if the seller breached certain restrictive covenants and could require the seller to sell his remaining shares to the buyer at a price which did not apportion any value to goodwill were enforceable and not unenforceable penalties. In ParkingEye v Beavis, the Supreme Court held that a 85 parking fine for overstaying two hours free parking was valid and also not to be regarded as an unenforceable penalty. In arriving at its decisions, the Court restated the common law rule against penalties, finding that the test for a penalty is whether the relevant clause imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of its primary obligation. The judges unanimously declined to abolish or expressly modify the scope of the rule against penalties, recognising that the rule has a useful role in protecting parties against oppressive bargains. However, the Court has provided helpful clarification and guidance on its

6 6 Watson Farley & Williams application. Further details are available in our Litigation Team s briefing on this landmark judgment. FOR MORE INFORMATION Should you like to discuss any of the matters raised in this Briefing, please speak with a member of our team below or your regular contact at Watson Farley & Williams. NICK FOTHERGILL nfothergill@wfw.com CHRISTINA HOWARD choward@wfw.com FELICITY JONES fjones@wfw.com JAN MELLMANN jmellmann@wfw.com DEARBHLA QUIGLEY dquigley@wfw.com JEREMY ROBINSON jrobinson@wfw.com RAVINDER SANDHU rsandhu@wfw.com ANDY SAVAGE andysavage@wfw.com NIGEL TAYLOR ntaylor@wfw.com MARTIN THOMAS mthomas@wfw.com MARK TOOKE mtooke@wfw.com CHARLES WALFORD Consultant, London cwalford@wfw.com Publication code number: v1 Watson Farley & Williams 2015 All references to Watson Farley & Williams, WFW and the firm in this document mean Watson Farley & Williams LLP and/or its Affiliated Entities. Any reference to a partner means a member of Watson Farley & Williams LLP, or a member or partner in an Affiliated Entity, or an employee or consultant with equivalent standing and qualification. The transactions and matters referred to in this document represent the experience of our lawyers. This publication is produced by Watson Farley & Williams. It provides a summary of the legal issues, but is not intended to give specific legal advice. The situation described may not apply to your circumstances. If you require advice or have questions or comments on its subject, please speak to your usual contact at Watson Farley & Williams. This publication constitutes attorney advertising. wfw.com