AUTH App 1.14 Other financial promotions

The exemptions in Part VI apply to different types of financial promotion, and the exemption available may be based on a number of facts. These may be the identity of the maker of the financial promotion, the identity of the recipient of the financial promotion, the subject matter of the financial promotion or the nature of the financial promotion itself. Some of these exemptions apply to non-real time financial promotions, others to solicited real time financial promotions and others to unsolicited real time financial promotion. Many of the exemptions apply to more than one category of financial promotion. AUTH App 1.36.7 contains a table showing which types of financial promotion are covered by each individual exemption.

AUTH App 1.14.3 G to AUTH App 1.14.42 G describe some of the more significant exemptions contained in Part VI. See the Financial Promotions Order for full details of all the exemptions in Part VI.

Article 28 exempts financial promotions, other than unsolicited real time financial promotions, which are one-off in nature. Whether or not any particular financial promotion is one-off in nature will depend upon the individual circumstances in which it is made. Article 28(3) sets out conditions which, if all are met, are conclusive. Otherwise they are indicative. Even if none are met the exemption may still apply. This makes it clear that the overriding issue is whether the financial promotion is, in fact, a one-off. The conditions are that:

1. (1)

   the financial promotion is made only to one recipient or to a group of recipients in the expectation that they would engage in investment activity jointly;

2. (2)

   the product or service involved has been determined having regard to the circumstances of the recipient or recipients; and

3. (3)

   the financial promotion is not part of an organised marketing campaign.

The FSA considers the effect of each of the conditions in AUTH App 1.14.3 G (1) to AUTH App 1.14.3 G (3) to be as follows.

1. (1)

   The first condition requires the financial promotion to be made, so ruling out any financial promotions which are directed at persons. The effect of article 6(b) and (e) of the Financial Promotion Order is that a communication is made to a person when it is addressed to him and that person to whom the financial promotion is addressed is its recipient. This means that when one person addresses a financial promotion to another person, it will not be regarded as having been made to anyone else. So, in the case of a real time financial promotion, it is not made to any other person who may be present. And in the case of a non-real time financial promotion, it is not made to any other person who may read or hear it. If the financial promotion is addressed to more than one person they must be proposing to engage in investment activity jointly (see AUTH App 1.14.6 G).

2. (2)

   The second condition requires the financial promotion to apply to the personal circumstances of the recipient so not benefiting a financial promotion which take no account of the personal circumstances of the recipient or recipients.

3. (3)

   The third condition requires that the financial promotion must not be part of an organised marketing campaign. There is no definition of an organised marketing campaign but, in the FSA's view, it is appropriate to consider each of the words and their effect in this context:

   1. (a)

      'organised' suggests that the campaign is planned in advance and not something done on the spur of the moment;

   2. (b)

      'marketing' suggests an element of public promotion so as not to apply to anything of a personal or very limited nature even if it is promotional; and

   3. (c)

      'campaign' suggests that the financial promotion must be part of an overall plan having a common objective.

In the FSA's opinion, the indicators referred to in AUTH App 1.14.4 G suggest that there are two essential elements of a one-off financial promotion. These are that it is tailored to the circumstances of the recipient and that it is individual in nature (in that it is not simply a personalised letter sent out as part of a general mailshot). Apart from this there is no need for the communication to be an isolated instance. For example, the fact that there may be a considerable number of communications made during negotiations for a transaction will not prevent each communication from being one-off. The FSA is of the view that none of the three conditions carries significantly more weight than the others. Each financial promotion must be assessed against the conditions on its merits. The FSA regards the following to be financial promotions which will meet the conclusive conditions provided, in each case, that the financial promotion is tailored to the personal circumstances of and addressed to the recipient.

1. (1)

   Individual personal written communications or one to one conversations.

2. (2)

   A response printed in a publication or website or given during a broadcast in response to an enquiry from a reader, viewer or listener.

3. (3)

   A response given to a person who asks a question at a presentation or meeting.

4. (4)

   A response to a question raised by another person using an internet chatroom or bulletin board.

In the FSA's view, a group of recipients who may be engaging in investment activity jointly could include:

1. (1)

   a married couple;

2. (2)

   two or more persons who will invest jointly in a product (for example, a cohabiting couple who are not married or members of a family);

3. (3)

   the directors of a company or partners in a firm;

4. (4)

   members of a group of companies;

5. (5)

   the participants in a joint commercial enterprise;

6. (6)

   the members of an investment club; and

7. (7)

   the managers or prospective managers of a company who are involved in a management buy-out or buy-in.

A financial promotion may fail to satisfy all of the indicators referred to in AUTH App 1.14.4 G because it is addressed to more than one recipient and they are not persons who will engage in investment activity jointly. In the FSA's view, such a financial promotion is capable of being one-off where the persons are to enter into the same transaction and the promotion is tailored to their individual circumstances. This may typically happen during negotiations for the sale of a company or the raising of corporate finance where a small number of parties are involved.

The fact that a financial promotion may be made following an organised marketing campaign does not mean that it must automatically be regarded as part of the campaign or that it cannot be one-off. For example, after a person has responded to a general promotion, an investment manager may make financial promotions to him and tailor them to his individual objectives. Such subsequent financial promotions can be one-off. Similarly, a person who provides corporate finance services may use an organised marketing campaign to find a potential investor or investee company. Any subsequent financial promotions made during negotiations for the deal may be one-off even though they may represent a series of communications to the same recipient. On the other hand, the situation is slightly different where an organised marketing campaign involves the sale of an investment product such as a life policy. There will be fewer instances where subsequent financial promotions to individual recipients will be capable of being one-off. For example, any financial promotion which has the basic elements of selling the product is likely to be part of an organised marketing campaign and will not be a one-off.

In the FSA's view, a person such as an investment manager or adviser is not conducting an organised marketing campaign purely because he regularly provides a particular client with financial promotions as part of his service. Neither is such a person conducting an organised marketing campaign purely because he may have several clients whose personal circumstances and objectives may suggest that a particular investment opportunity may attract them. If he considers the individual circumstances and objectives of each client before determining that the opportunity would be suitable for that client the financial promotions should be capable of being one-off.

In the FSA's view, a person will not be making one-off financial promotions simply by sending out a series of letters to a number of customers or potential customers where a few details are changed (such as the name and address) but the bulk of the letter is standard. Such letters would be likely to be part of an organised marketing campaign.

Article 28A was added by article 2 of the Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) Order 2001 (SI 2001/2633). It exempts one-off unsolicited real time financial promotions provided that the person making the financial promotion believes on reasonable grounds:

1. (1)

   that the recipient understands the risks associated with engaging in the investment activity to which the financial promotion relates; and

2. (2)

   (at the time the communication is made) that the recipient would expect to be contacted by him about the investment activity to which the financial promotion relates.

In the FSA's view, the article 28A exemption should provide scope for persons such as professional advisers to make unsolicited real time financial promotions in various situations. For example, when approaching persons with whom their clients are proposing to do business or those persons? professional advisers. The exemption will not apply where the financial promotions are part of an organised marketing campaign (see AUTH App 1.14.4 G (G)(3)). So, in cases where a professional adviser is to contact a number of persons on a matter which involves each of them it will be necessary for him to consider whether the approaches would be part of an organised marketing campaign. For example, where they are significant shareholders in a company for which an offer has been made. In the FSA's opinion, provided the professional adviser considers the circumstances of each recipient and tailors the financial promotions to them it should be possible for the financial promotions to be regarded as one-off. Ultimately, however, the matter depends on the precise circumstances in which the financial promotions are made.

Whether or not it would be reasonable to believe that any person understands the risks associated with the investment activity covered in a financial promotion or would expect to be contacted about it must be judged on the particular circumstances. In the FSA's opinion, the exemption requires that the recipient has the required understanding of risk at the time the promotion is made to him. However, it would be reasonable to believe that a person understands the risk involved if:

1. (1)

   he is understood to be a professional in relation to the investment activity to which the financial promotion relates;

2. (2)

   he is advised about the risks by a person who is professionally qualified to give such advice; or

3. (3)

   he has a position in a company which it is reasonable to suppose would require him to have such an understanding (such as a person who is in charge of a company's treasury function).

In the FSA's opinion, a person such as the managing director or finance director of a company that is seeking venture capital may reasonably be regarded as expecting to be contacted by or on behalf of a potential investor.

There are a number of exemptions in the Financial Promotion Order relating to financial promotions sent into the United Kingdom by an overseas communicator who does not carry on certain controlled activities in the United Kingdom. These exemptions apply in addition to any other exemptions which may apply to any particular financial promotion by an overseas communicator.

Article 30 exempts any solicited real time financial promotion made by an overseas communicator in the course of or for the purposes of certain controlled activities which he carries on outside the United Kingdom. This enables an overseas communicator, for example, to respond to an unprompted telephone enquiry made by a person in the United Kingdom or an enquiry which follows a financial promotion made by the overseas communicator and which was approved by an authorised person.

In order to make an unsolicited real time financial promotion, an overseas communicator must rely on either article 32 or article 33. Article 32 provides an exemption for unsolicited real time financial promotions made by an overseas communicator to persons who were previously overseas and were a customer of his then. This is subject to certain conditions, including that, in broad terms, the customer would reasonably expect to be contacted about the subject matter of the financial promotion. Article 33 is similar to a sophisticated investor exemption and applies where the overseas communicator has reasonable grounds to believe that the recipient is knowledgeable enough to understand the risks associated with the controlled activity to which the financial promotion relates. It is also necessary for the recipient to have been informed that he will not gain the protections under the Act in respect of the activity or of the making of unsolicited real time financial promotions, and whether he will lose the benefit of dispute resolution and compensation schemes. The recipient must also have signified clearly that he accepts the position after having been given a proper opportunity to consider the information. There is no definition of a proper opportunity for this purpose. In the FSA's opinion it is likely to require the recipient to have a reasonable time to reflect on the matter and, if appropriate, seek other advice. What is a reasonable time, will depend upon the circumstances of the recipient, but, in the FSA's opinion, it is unlikely that a time of less than 24 hours will be enough.

Article 31 exempts non-real time financial promotions made to previously overseas customers and subject to certain conditions. Again, to satisfy this exemption, the communicator must be based overseas and must be communicating with a person who was previously a customer of his while that person was overseas.

This exemption allows a person in another EEA State who lawfully carries on a controlled activity in that State to promote into the United Kingdom. The terms of the exemption are that the promotion must comply with the financial promotion rules in COB 3. Care should be taken as any failure to satisfy any of the relevant requirements of COB 3 may mean that this exemption is not satisfied and that the financial promotion may breach section 21 if it has not been approved and no other exemption applies to it. The FSA recommends that anyone seeking to rely on this exemption either seeks professional advice or contacts the FSA before communicating the financial promotion. This exemption does not apply to unsolicited real time financial promotions.

Article 39 of the Financial Promotion Order exempts a financial promotion that:

1. (1)

   is communicated by one participator or potential participator in a joint enterprise to another; and

2. (2)

   is in connection with or for the purposes of that enterprise.

A joint enterprise means, in general terms, arrangements entered into by two or more persons for commercial purposes related to a business that they carry on. The business must not involve a controlled activity. The term 'participant' includes other members of a group of which a participant is a member.

In the FSA's opinion;

1. (1)

   it will not matter that a person enters into arrangements for investment or other purposes provided that he also enters them into for commercial purposes; and

2. (2)

   each participant must be carrying on the business in question in their own right.

This means that the sponsors or promoters of a company who arrange for private investors to become shareholders will not be setting up a joint enterprise simply because the company may intend to carry on a relevant business which is not a controlled activity. Examples of a joint enterprise include a special purpose company owned by the participants and set up to operate a commercial project or to hold property of some kind. The participants in joint enterprises of this kind would typically be businesses which are to undertake work on the project or property development and investment companies.

This exemption disapplies the restriction in section 21 of the Act from non-real time financial promotions or solicited real time financial promotions which are made to a certified high net worth individual and relate to certain investments. These investments must be either;

1. (1)

   shares in or debentures of an unlisted company; or

2. (2)

   warrants, certificates representing certain securities, options, futures or contracts for differences relating to shares in or debentures of an unlisted company; or

3. (3)

   collective investment schemes investing predominantly in shares in or debentures of an unlisted company.

There is an additional requirement that the recipient must have no contingent liability so that the maximum he may lose is the amount he invests. The term 'unlisted company' is defined in article 3 of the Financial Promotion Order. This exemption is expected to be of help to unlisted companies seeking venture capital.

To be certified as a high net worth individual, the individual concerned must have earned at least £100,000 or have held net assets to the value of more than £250,000 throughout the financial year before the date of the certificate. Where the financial promotion is an outgoing electronic commerce communication, the earnings or net assets may be of an equivalent amount in another currency. To be current, the certificate must be signed and dated by the individual's accountant or employer within twelve months of the date on which the communication is made. The financial promotion must not invite the recipient to engage in investment activity with the person who has signed the certificate. There is, however, nothing to prevent an accountant signing a certificate for an individual for whom he may be providing investment services of any kind. This is provided he does not seek to use the article 48 exemption to make financial promotions to the individual. The exemption can be used by associates or group members of the person who signs the certificate. 1

In addition, the financial promotion must contain certain information and the recipient must have previously (within the last 12 months) signed a statement in the terms in article 48(2)(b) of the Financial Promotion Order.

A person seeking to make a financial promotion to another person may wish to make enquiries of that person to establish whether he is certified. Unless another exemption applies or the financial promotion is approved by an authorised person, such enquiries will not be possible if the enquiry communication is an inducement or invitation to engage in investment activity. In the FSA's view, a communication which is merely an enquiry seeking to establish that a person holds a current certificate will not itself be an inducement or invitation. Once it has been established that the person qualifies as a certified high net worth individual financial promotions about the controlled investments in AUTH App 1.14.21 G may then be sent to him under article 48. AUTH App 1.4.27 G offers further guidance on this.

This exemption works on a different basis to that for high net worth individuals. There is no requirement for a certificate or statement to be signed. Instead, the person making the promotion must believe on reasonable grounds that the recipients are high net worth companies, unincorporated associations or trusts or be reasonably regarded as directing the financial promotion only at such persons. A high net worth company, unincorporated association or trust is a person who satisfies the conditions in article 49(2)(a) to (e) which, for the most part, involve the amount of assets held.

Article 49(4) gives the list of conditions which, if all are met, is proof that the financial promotion is directed at relevant persons. It is not necessary for all or any of the conditions to be met for a financial promotion to be regarded as directed at relevant persons. Ultimately the matter will be one of fact to be determined by taking account of the circumstances in which the financial promotion is made. In the FSA's opinion, it is not necessary for a financial promotion, to comply with the condition in article 49(4)(a) that there be an indication of the types of person to whom it is directed, to refer in detail to the terms of article 49(2). It will be enough that it is clear that the financial promotion is directed at persons to whom article 49 applies. Persons using article 49 will need, however, to consider the extent to which recipients of the financial promotion are likely to understand the indication. An appropriate approach may often be to refer to the financial promotion being 'directed at high net worth companies, unincorporated associations etc for the purposes of article 49' or similar.

To be a sophisticated investor, the recipient of a financial promotion must have a current certificate from an authorised person stating that he has enough knowledge to be able to understand the risks associated with the description of investment to which the financial promotion relates. Where the financial promotion is an outgoing electronic commerce communication, the certificate may be signed by a person who is entitled, under the law of an EEA State other than the United Kingdom, to carry on regulated activities in that EEA State. The FSA considers that a 'description of investment' relates to a category of investments with similar characteristics. Examples are given below. 1

1. (1)

   The shares in a private company are not the same 'description of investment' as shares in a plc as there will usually be certain significant distinctions. For instance, there will often be restrictions on the transfer of shares in a private company.

2. (2)

   Shares traded on a market or exchange will be a different 'description of investment' to unlisted shares.

3. (3)

   Shares which have similar characteristics will be of the same 'description of investment' irrespective of whether they are shares of companies in the same market or geographical sector.

The recipient must also have signed a statement in the terms in article 50(1)(b). The financial promotion must not invite or induce the recipient to engage in investment activity with the person who has signed the certificate. But it may invite or induce the recipient to engage in investment activity with an associate or group member of that person.

The exemption also requires that certain warnings are given to the potential investor. In this respect, article 50(3)(d) provides that the financial promotion must state that there is a significant risk of losing all monies invested or of incurring additional liability. In the FSA's view, these are alternative statements and whichever is the relevant statement should be included. If there is no risk of incurring additional liability the statement may simply say that there is a risk of losing the sum invested. This is a mandatory requirement, although the exemption under article 50 may be used to promote investments for which either statement would be inappropriate or potentially confusing (for instance if it is used to offer gilts). The FSA cannot fetter its discretion to decide individual cases on their merits. However, where a person seeks to rely on the article 50 exemption for a financial promotion which would otherwise satisfy the terms of article 50 but which omits the statement required under article 50(3)(d), on the grounds that it would be misleading to include it, the FSA would, generally, take no further action.

This exemption allows a non-real time or solicited real time financial promotion to be made to an association with a particular membership. Membership of this association must be reasonably believed to be wholly or predominantly certified high net worth individuals, high net worth companies or unincorporated associations or trusts, or sophisticated investors. The financial promotion must not relate to an investment under the terms of which a person can incur additional liability of more than his original investment. In each case, whether the membership of an association is predominantly made up of high net worth individuals, high net worth companies or unincorporated associations or trusts, or sophisticated investors will be a question of fact. The exemption may be expected to be likely to apply, for example, to financial promotions to business angel networks. In the FSA's view, the exemption allows for financial promotions to be made to the members of the association. It is not restricted to financial promotions made to the operator or secretariat of the association.

Article 52 concerns non-real time and solicited real time financial promotions about offers of shares or debentures of a company. The offers must be made only to or be reasonably regarded as only directed at certain persons. These persons must belong to an identified group of persons who, when the financial promotion is made, might reasonably be regarded as having an existing and common interest with each other and the company.

The exemption is subject to certain conditions. In broad terms, these are that the financial promotion must be accompanied by an indication:

1. (1)

   that the directors or promoters of the company have taken all reasonable care to ensure that the financial promotion is true and not misleading;

2. (2)

   that the directors or promoters have not limited their liability;

3. (3)

   that any person who is in doubt about the investment should consult an authorised person; and

4. (4)

   that:

   1. (a)

      the directors or promoters of the company have taken all reasonable care to ensure that potential investors have access to relevant information about the company; or

   2. (b)

      any person considering investing in the company should regard his subscription as helping the company to meet its non-financial objectives and only secondarily, if at all, as an investment.

Where the financial promotion is an outgoing electronic commerce communication, the reference in (3) to an authorised person includes a person who is entitled, under the law of an EEA State other than the United Kingdom, to carry on regulated activities in that EEA State.1

In line with other exemptions, article 52 contains indicators which, if all are met, mean that the financial promotion is directed at relevant persons.

Example of situations where article 52 is likely to apply include offers made by:

1. (1)

   a club or association which is considering incorporation to its members;

2. (2)

   a private school to the parents of its pupils; and

3. (3)

   a company to its existing members or creditors (where the exemption in article 43 might also be expected to apply).

However, persons are not to be regarded as having a common interest with each other and a company simply because:

1. (1)

   they would have such an interest if they became its members or creditors;

2. (2)

   they all carry on a particular trade or profession; or

3. (3)

   they have an existing business relationship with the company whether by being it clients, customers, contractors, suppliers or otherwise.

The exemption in article 62 of the Financial Promotion Order applies to any financial promotion communicated by or on behalf of a body corporate, a partnership, an individual or a group of connected individuals. The financial promotion must relate to a transaction which is one to acquire or dispose of shares in a body corporate and either:

1. (1)

   it is the case that:

   1. (a)

      the shares, in addition, where appropriate, to any shares already held by the buyer, amount to 50% or more of the voting shares in the body corporate; and

   2. (b)

      the party or parties who act as seller is a body corporate, a partnership, a single individual or a group of connected individuals and the party or parties who act as buyer is also one or other of these (but not necessarily the same type as the seller); or

2. (2)

   where the conditions in (1) are not met, but the object of the transaction may reasonably be regarded as being the acquisition of day to day control of the affairs of the body corporate.

A group of connected individuals is defined in article 62(4) of the Financial Promotion Order as being a group of persons each of whom is (for sellers) or is to be (for buyers):

1. (1)

   a director or manager of the body corporate;

2. (2)

   a close relative of such a person; or

3. (3)

   a person acting as trustee for a person as referred to in (1) or (2)

In the FSA's view, a main aim of the exemption (see AUTH App 1.14.35 G (1)) is to remove from the scope of section 21 a financial promotion concerning the sale of a corporate business by a person who, either alone or with others, controls the business to another person who, either alone or with others, proposes to control the business.

In any case where the conditions referred to in AUTH App 1.14.35 G (1) are not met, it will be necessary to consider the circumstances in which the transaction is to take place in order to determine whether its objective is the acquisition of day to day control (see AUTH App 1.14.35 G (2)). In situations where the 50% holding of voting shares test is not met it is still possible that the objective of a transaction could be the acquisition of day to day control. For instance, because the remaining shareholders represent a large number of small shareholders who it is reasonable to suppose will not regularly act in concert.

Where the nature of the parties test (see AUTH App 1.14.35 G (1)(b)) is not met and the purpose for which the person who is the buyer holds or proposes to hold the voting shares is considered, it may still be the case that the objective of the transaction is the acquisition of day to day control. This may typically be because there are two or more parties involved as buyer and they do not collectively represent a group of connected individuals as defined. For example, this may happen where the shares are to be held by one of the following persons who intends to acquire control either alone or with others:

1. (1)

   a person (of either sex) with whom a person who is to be a manager or director cohabits;

2. (2)

   a venture capital company which proposes to invest in the company and which is to provide a representative to act as a manager or director of the company; or

3. (3)

   a private company used as a vehicle to hold shares by a person who is to be a manager or director of the company (or his close relative).

In the FSA's opinion, provided that the purpose of the transaction is for the buyer to acquire the necessary control, it is irrelevant who is the seller. The exemption specifically applies to financial promotions which are communicated on behalf of the parties or potential parties to the transaction. The FSA is aware that the Treasury has received comments about the scope of article 62. These are being considered but no decision has been taken on whether to propose any change. If the Treasury were minded to propose any change it would expect to consult publicly first.

Several exemptions, including article 43 of the Financial Promotion Order (Members and creditors of certain bodies corporate), apply only in relation to relevant investments being shares or debentures in the body corporate or a member of its group, or warrants or certificates representing certain securities relating to such shares or debentures. In the FSA's view, an exchangeable debt security which is partly a debenture and partly an option is a relevant investment for these purposes.

The exemptions for bearer instruments (articles 41 and 42 of the Financial Promotion Order) relate to financial promotions made to or directed at persons entitled to bearer instruments. For clarity, the FSA takes the view that persons who hold bearer instruments through a clearing system such as Euroclear or Clearstream are persons entitled to those instruments for the purposes of articles 41 and 42.