re RE: Share buy back15 Apr 2016 15:15
With more and more listed companies operating
extensive share buy-back programmes, many are
starting to take advantage of a relatively little
known provision of the Listing Rules which
enables them to continue to buy back shares
during close periods. This update looks at how
these buy-backs are done and highlights the key
issues for the listed company.
Background
Paragraph 9.2.7R of the Listing Rules (LRs) provides that a
listed company may not deal in its own shares at a time
when, under the provisions of the Model Code, a director
would be prohibited from dealing. For most listed
companies, this means each of the two months preceding
the announcement of their preliminary and interim
accounts. This prohibition is repeated in LR 12.2.1R.
Effectively, this means that companies cannot do share buybacks
during those four months, except by the methods
mentioned below.
LR 12.2.1R, however, permits companies to make purchases of
their own shares during a close period where a buy-back
programme is managed independently of the company. The
relevant exemption is in LR 12.2.1(2), which applies if "the
company has in place a buy-back programme managed by an
independent third party which makes its trading decisions in
relation to the company's securities independently of, and
uninfluenced by, the company". Many listed companies have
either been unaware of or unwilling to use this exemption,
although this is starting to change (see below).
Trends
So far, broadly two methods of effecting independent
programmes have been used.
The first, which has been relatively little used (examples are
Vodafone and Next), has seen the use of complex
derivatives programmes written by the company's financial
adviser as a hedge against the repurchases undertaken. The
aim of this has been to lower the average repurchase cost
as well as permitting buy-backs during close periods.
Because of the nature of these arrangements, specific
shareholder authority is needed. Although a number of
these schemes have been marketed, they have so far been
little used; it remains to be seen if they will take off.
The second (more common and far simpler) method is
merely to give the company's broker an authority, prior to
the start of a close period, to continue buying shares during
the close period. The purchases will be effected pursuant to
the annual buy-back authority passed at most companies'
AGMs in the usual way and therefore no new authority will
generally be needed.
The downside of these independent programmes, however,
is that - by their very nature - companies do not have
control over them. Finance directors need to be happy,
therefore, with the authority they invest in their broker
before entering into one of these programmes.
Issues
The documentation involved in the second method is
relatively simple, the main one being an agreement
between the company and its broker, confirming the
broker's authority. The key issues