Does a doc fall within FP/Ads regimes?

Question 1

Registration doc - FP for purposes of s. 21?

Answer 1

As long as it only contains the minimum disclosure requirements of Annex 1, then FCA policy statement provides it isn’t FP

Question 2

Registration doc - FP authorised by FCA? S. 21(2)

Answer 2

N/A - doesn’t need to be authorized

Question 3

Registration doc - FP falls under any exemptions for s. 21?

Answer 3

N/A doesn’t need to fall under any exemptions

Question 4

Registration doc - advertisement under PRR Appendix 1, Relevant definitions?

Answer 4

As long as it only contains the minimum disclosure requirements of Annex 1 and does not relate to specific offer to public/admission to trading or aim specifically to promote to potential subscription or acquisition of shares, then FCA policy statement provides it isn’t advertisement. A standalone registration document would not contain any details of a specific offer or admission. Therefore, should not constitute advertisement for purposes of PRR 3.3

Question 5

Pathfinder - FP for purposes of s. 21?

Answer 5

Yes – it is inviting or inducing to engage in investment activity

Question 6

Pathfinder - FP authorised by FCA? S. 21(2)

Answer 6

Not made or approved by authorized person. Although sometimes referred to as a “pathfinder prospectus”, a Pathfinder is only a draft document, with blanks left for number of securities and offer price, and it will not be approved as a prospectus by the FCA.

Question 7

Pathfinder - FP falls under any exemptions for s. 21?

Answer 7

Pathfinder will only be sent to institutional investors, who could be categorised as investment professionals under article 19 FPO or high net worth companies under article 49 FPO (or possibly sophisticated investors under article 50 FPO).

Question 8

Pathfinder - advertisement under PRR Appendix 1, Relevant definitions?

Answer 8

UKLA Technical Note states that a Pathfinder would fall within the advertising regime and so it would need to comply with the requirements of PRR 3.3. As a Pathfinder is a draft of the prospectus, it will obviously comply with the consistency requirements, but it will need to comply with the requirements for the inclusion of a number of disclaimers – which in practice will be set out in a full cover sheet at the start of the Pathfinder, thus also differentiating it in format from the final prospectus.

Question 9

Prospectus - FP for purposes of s. 21?

Answer 9

Yes, invitation/inducement to engage in investment activity

Question 10

Prospectus - FP authorised by FCA? S. 21(2)

Answer 10

Yes – approved by FCA

Question 11

Prospectus - FP falls under any exemptions for s. 21?

Answer 11

Could it fall under any exemptions anyway? Yes, Art 70(1)(c): financial promotion restriction does not apply to any nonreal time communication which is included in a prospectus. This is because it is presumed that the requirement for FCA approval will offer sufficient protection to investors.

Don’t think you need to know this though as don’t need to rely on exemption

Question 12

Prospectus - advertisement under PRR Appendix 1, Relevant definitions?

Answer 12

PRR 3.3 would not be applicable to any prospectus that has been approved by the FCA (see the UKLA Technical Note).
N.B. would be expected to cite UKLA

Question 13

Roadshow - FP for purposes of s. 21?

Answer 13

Oral presentations = communications, and they are inducing/inviting to engage in investment activity.

Question 14

Roadshow - FP authorised by FCA? S. 21(2)

Answer 14

No

Question 15

Roadshow - FP falls under any exemptions for s. 21?

Answer 15

If it was roadshow where only institutional investors could attend, so same exemptions 19, 49, 50. So would need to investigate what the roadshow audience was, if could narrow that only institutional investors get access to docs, then exempt

Question 16

Roadshow - advertisement under PRR Appendix 1, Relevant definitions?

Answer 16

Presentations are referred to in the UKLA Technical Note as an example of an advertisement and would therefore need to comply with PRR 3.3. The UKLA Technical Note confirms that the PRR 3.3 provisions must be complied with independently in relation to each type of advertisement. Therefore, the requirements must be complied with separately in relation to both the oral presentations and any written materials handed out, such as copies of slides

Question 17

Website - FP for purposes of s. 21?

Answer 17

Yes, Publications on the internet are treated in the same way as documents published in newspapers or posted to recipients and, as such, fall within the definition of a non-real time communication contained in articles 6 and 7 FPO

Question 18

Website - FP authorised by FCA? S. 21(2)

Answer 18

No

Question 19

Website - FP falls under any exemptions for s. 21?

Answer 19

If it is possible to restrict the communication to specified parties who can fall within an exemption under the FPO (e.g. investment professionals under article 19 FPO or high net worth companies under article 49 FPO) the communication may be exempt. It may, for example, be possible to restrict access to the website through the use of passwords. More realistically, a lesser level of protection could be offered by including a disclaimer and confirmation which the viewers must “click through” to access the relevant part of the website, confirming, for example, that they are not located in a jurisdiction into which the offer is not being extended. (It is less likely that this would be extended to sophisticated investors under article 50 FPO, as there are additional requirements that would have to be satisfied, relating to the need for the sophisticated investor to have a current certificate from an authorised person and to have signed a form of self-certification within 12 months prior to the communication in question).

Question 20

Website - advertisement under PRR Appendix 1, Relevant definitions?

Answer 20

PRR 3.3 would apply to the website. The required disclaimers would therefore be needed in any relevant communication included on the website, and the content requirements would also need consideration.