The new rule applies in relation to issuers listed on a UK recognised investment exchange (the LSE, SWX Europe Limited (formerly virt-X), AIM and PLUS Markets), including those that have a secondary listing on any of those markets. To the extent that a relevant UK issuer has announced a rights issue, anyone holding a net short position equal to, or greater than, 0.25% of the undiluted issued share capital of the issuer must disclose this to the market (via an RIS announcement) by 3:30 pm on the business day following the date on which the short position is reached or exceeded. The rule applies to all holders of relevant short positions wherever located and regardless of whether they are FSA-regulated or not.
Failure to make proper disclosure is considered by the FSA as evidence of market abuse. This could result in a fine and significant damage to reputation.
understood definition of a rights issue is appropriate in this context. On that basis, a rights issue involves an offer by an issuer to existing shareholders of new shares or other securities in proportion to their existing holdings. The offer is made by means of a letter which provides for a date when the rights will lapse unless the shareholder accepts the offer and subscribes for the shares. Subscription is in cash, nearly always at a discount to the market price. What distinguishes a rights issue from other open offers is the fact that during the period before the deadline for acceptances and payment (typically 21 days) the shareholder is able to trade the rights to subscribe for the shares on a “nil paid” basis. Without this feature, an issue will not fall within the scope of the new disclosure rule.
The FSA has confirmed that for the purposes of the rule a rights issue commences when it is formally announced by the issuer via an RIS announcement and ends when the newly-issued fully-paid shares are admitted to trading (ie. after any nil paid trading period and the last date for acceptances). This period is referred to as the “rights issue period”.
Amongst other things, the FSA has clarified the following points via a series of frequently asked questions (FAQs).
The FSA issued the new rule without following the normal (statutorily prescribed) consultation process (which includes a requirement to conduct a cost-benefit analysis and give the industry an opportunity to respond). Although there is a limited facility under Sections 121(6) and 155(7) of the Financial Services and Markets Act 2000 for the FSA not to consult on the introduction of new provisions of its Handbook, in order to introduce a new “rule” (as opposed to an evidential or guidance provision) without consultation it must consider that the delay involved in consulting would be “prejudicial to the interests of consumers”. The potential prejudice, in this context, that would justify reliance on this provision is not immediately apparent.
In any event, the FSA did not state the precise statutory powers purportedly relied on to avoid the consultation requirement, which in itself potentially renders the new provisions void. Indeed, the FSA’s ability to make a “rule” within its Code of Market Conduct (the part of the FSA Handbook in which the new rule appears) is questionable. This all raises the question as to whether the FSA has acted ultra vires in making the new rule (and, therefore, the possibility that the new rule is susceptible to legal challenge).
The FSA’s failure to consult has produced a disclosure rule of questionable validity, the implementation and interpretation of which has been difficult, and which may not achieve its desired result.
When initially published, the open-ended nature of the rule begged more questions than it answered. This necessitated clarification from the FSA via the FAQs, which were produced late in the day (in some cases after the rule had come into force). While helpful, the FAQs reveal an interpretation of theunderlying rule by the FSA which, in some respects, is creative (to say the least). Further confusion was created by the FSA appearing to reverse its previously stated position on a couple of occasions. The effort needed to get to grips with the requirements ate into an already short period for market participants to make the necessary preparations.
An interesting post script is that, on the day that the initial disclosures were made (23 June), the price of HBOS’s shares dipped below the rights issue price. The FSA seems not to have considered the potential for others to follow the example of well-respected investors known to have taken significant short positions in an issuer. This might have come to light during the course of a proper consultation.