Audit Committee Consultation

Company Accounts

The International Organization of Securities Commissions (IOSCO) has published a consultation report inviting input to a possible Good Practices Report on how issuer audit committees can promote and support external audit quality.

IOSCO acknowledges the crucial role independent, high quality audits play in supporting investors’ confidence in a company’s financial report. To that end, IOSCO proposes several ways in which the audit committee can promote quality audits:

  • recommend an external auditor independently of management, with selection criteria set upfront.
  • when assessing auditors, consider the auditor’s knowledge of the business and industry, the extent of involvement of senior team members in the audit, use of other auditors, use of technical and specialist expertise, capability in different geographical locations, coverage of internal systems and controls, and how the engagement partner and team are accountable within their firm for audit quality.
  • consider the extent to which audit fees are consistent with the audit plan and a quality audit.
  • consider the extent to which audit processes are planned so an effective quality audit can be conducted within reporting deadlines; seek explanations and advice on the appropriateness of accounting treatments and estimates and, where appropriate, challenge the applied estimates and treatments.
  • review and challenge management’s accounting treatments and estimates, and where appropriate, seek independent third party advice and not seek advice from the auditor. Oversee the development of policies on auditor independence, undertake procedures to satisfy itself of that independence and require non-audit services to be subject to the committee’s prior approval.
  • establish a direct line of communication with the auditor. The communication should include concerns and risks affecting the processes which support the information in the financial report, and how those concerns and risks are being addressed by directors and management and responded to in the audit.

IOSCO also makes several proposals in relation to the composition of audit committees, the role of the committee in assessing audit quality, and audit committee reporting.

Comments should be submitted on or before 24 July 2018.

New AIM Rules

London skyline

The London Stock Exchange has published AIM Notice 50 which, amongst other things, announces the implementation of updated versions of the AIM Rules for Companies and the AIM Rules for Nominated Advisers from 30 March. Marked up versions of both are also available on the LSE’s website.

In providing feedback on the changes proposed in AIM Notice 49, the LSE has said that respondents were supportive of the proposed new obligation for an AIM company to disclose on its website details of how it complies or explains against a recognised corporate governance code chosen by the board of directors. Some respondents suggested that the code be defined. However, the LSE is of the view that it remains preferable for AIM companies to have a range of choice of corporate governance codes to suit their specific stage of development, sector and size rather than have a prescribed list of recognised codes.

In response to feedback on the proposed changes, the LSE has amended the proposed Rule 26 disclosures to require an AIM company to review its corporate governance disclosures annually, rather than maintain them up to date. The LSE has said it expects that in most cases this review will be carried out at the same time as an AIM company prepares its annual report and accounts.

From 30 March 2018, all new applicants to AIM will be required to state which corporate governance code they intend to follow. However, in order to give AIM companies and nominated advisers sufficient time to prepare for the new Rule 26 corporate governance requirements, these will take effect from 28 September 2018.

Public Register of Shareholder Dissent

At the request of the Department for Business, Energy & Industrial Strategy, the Investment Association (IA) has launched a public register of FTSE All-Share companies showing occasions where these companies have experienced substantial shareholder dissent i.e. where companies have received votes of 20% or more against any resolution or which have withdrawn a resolution before their AGM.

The purpose of the register is to identify companies who receive a high vote against or withdraw a resolution, and to understand the process used by those companies to identify and address their shareholders’ concerns. The register also publishes links to any public statements made by those companies on how they are addressing those concerns.

In the period from 1 January to 15 December 2017:

  • 22% of FTSE All-Share companies featured on the register.
  • Pay-related resolutions featured most commonly on the register (38%) followed by re-election of director resolutions (32%).
  • 31% of companies on the register published a statement explaining how they are adressing shareholder dissatisfaction.

 The register represents a substantial piece in the move towards greater transparency and accountability in corporate governance by putting companies under close scrutiny by investors, the media and the wider public in general.

Proposed New Corporate Governance Requirement for AIM Companies

Stock Exchange

The London Stock Exchange has published a feedback statement to its July 2017 discussion paper, together with a consultation on proposed changes to the AIM Rules.

Of note is the change regarding corporate governance.

The LSE is proposing to remove the option for an AIM company to state that it has not adopted a corporate governance code and instead to require AIM companies to state in their AIM Rule 26 disclosures, which recognised industry code of corporate governance it has adopted and to comply or explain against its chosen code. The LSE expects companies to provide meaningful information to investors to enable them to understand an AIM company’s approach to governance. The LSE acknowledges that there may be specific reasons why a company may choose not to comply and explaining this to investors should facilitate meaningful dialogue between investors and the company.

The LSE is not proposing to require companies to update the disclosure annually. However, the information must be kept up to date and the last date on which it was updated should be included in the disclosure. It will be the company’s responsibility to ensure that the information is kept up to date, not the nominated advisers’.

The LSE also considered feedback on the composition of the board of AIM companies. Whilst the LSE does not propose to introduce mandatory board composition requirements, it would normally expect the board to include a Chairperson, Finance Director and Non-Executive Directors.

Responses on the consultation should be sent to the LSE on or before 29 January 2018. It is anticipated that the amended AIM Rule 26 will be effective from 30 June 2018 so as to give AIM companies and their nominated advisers sufficient time to prepare for the proposed changes.

Changes to the Takeover Code

The Takeover Panel has published details of amendments to the Takeover Code, effective from 8 January.

When a firm intention to make an offer is announced, the announcement will need to include a new requirement, namely the offeror’s intention with regard to the business, employees and pension scheme(s) of the offeree company.

The notes to the new requirement expain that the offeror must state:

  1. “its intentions with regard to the future business of the offeree company, including its intentions for any research and development functions of the offeree company;
  2. its intentions with regard to the continued employment of the employees and management of the offeree company and of its subsidiaries, including any material change in the conditions of employment or in the balance of the skills and functions of the employees and management;
  3. its strategic plans for the offeree company, and their likely repercussions on employment and on the locations of the offeree company’s places of business, including on the location of the offeree company’s headquarters and headquarters functions;
  4. its intentions with regard to employer contributions into the offeree company’s pension scheme(s) (including with regard to current arrangements for the funding of any scheme deficit), the accrual of benefits for existing members, and the admission of new members;
  5. its intentions with regard to any redeployment of the fixed assets of the offeree company; and
  6. its intentions with regard to the maintenance of any existing trading facilities for the relevant securities of the offeree company.”

Equally, where the offeror has no intention of making any changes in relation to the above matters it will be required to make a statement to that effect.

Consultation on Changes to the UK Corporate Governance Code

Colleagues in Squire Patton Boggs have added an interesting post on the Compensation and Benefits Global Insights blog. It looks at the FRC’s consultation on proposed changes to the UK Corporate Governance Code, with emphasis on remuneration and benefits.

Responses to the consultation need to be in by 28 February 2018 with the final revised Code being published in early summer 2018 and coming into force for accounting periods beginning on or after 1 January 2019.

AIMing for SME Growth Market Status

The London Stock Exchange has applied to the Financial Conduct Authority for AIM to be registered as a SME Growth Market on 3 January 2018.

This new designation is being brought about by the Markets in Financial Instrument Directive (“MiFID II”) as part of the European Commissions’ capital markets plan.

As a consequence, minor amendments will need to be made to AIM Rule 26 regarding company information disclosures that are required to be freely available on its website. Essentially, the following information will need to remain on a company’s website for the longer period of 5 years:

  • annual accounts and all half-yearly, quarterly or similar reports,
  • regulatory notifications containing inside information
  • any prospectus published on or after 3 January 2018.

The 5 year requirement will not be retrospective for disclosures made prior to 3 January 2018.

The AIM Rules will also see a new definition of “SME growth market”.

ISS 2018 Proxy Voting Guidelines Updates

At the end of October we reported on the Institutional Shareholder Services’ (“ISS”) consultation on hybrid and virtual-only shareholders’ meetings. The ISS has now published its updated 2018 Proxy Voting Guidelines, effective for meetings on or after 1 February 2018.

As expected, the guidelines support hybrid shareholder meetings and reject vitual-only meetings. By way of a reminder, hybrid meetings refer to in-person, physical meetings in which shareholders are permitted to participate online. Virtual-only meetings refer to meetings where there is no physical meeting and participation is exclusively through online technology.

Other updates include the following:

Overboarding: For chairmen, a negative recommendation would first be applied towards non-executive positions held but the chair position would be targeted where the chairman is being elected as chairman for the first time or holds three or more chair positions or where the chairman holds an outside executive position.

Audit and Remuneration Committee Composition: The guidelines reiterate the UK Corporate Governance Code which requires that the audit and remuneration committees should comprise only independent directors.

Threshold Vesting Levels for Long-Term Incentive Plans: The guidance states that threshold vesting should generally be no higher than 25 percent. However, as much as 25 percent may be considered inappropriate if LTIP grants represent large multiples of salary. When analysing LTIP award vesting levels, other issues will be taken into account, such as how challenging the threshold targets are, the positioning of salaries and remuneration levels in general.

Share Issuances without Pre-emption Rights: The guidelines have been amended to specifically refer to a cash-box structure as being an abuse of the authority to disapply pre-emption rights approved at the previous AGM.

ISS Consults on Hybrid and Virtual-Only Shareholder Meetings

The Institutional Shareholder Services (“ISS”) has published a consultation document seeking views on certain of its proposed benchmark voting policies for 2018. Of relevance in the UK and Europe is the “UK/Ireland Policy and European Policy – Virtual/Hybrid Shareholder Meeting Proposals”.

As the title suggests, ISS is considering (i) “hybrid” meetings, that is where shareholders can attend a physical meeting of the company in person or elect to participate online; and (ii) “virtual-only” meetings, that is where shaeholder meetings are held entirely through online participation with no corresponding physical meeting taking place.

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