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The Legal 500 Country Comparative Guides Authors Contributing Firm Skadden, Arps, Slate, Meagher & Flom The Legal 500 Country Comparative Guides Authors Scott C. Hopkins Partner United Kingdom: Corporate [email protected] Governance Craig Kelly Associate This country-specific Q&A provides an overview to corporate governance laws and regulations that may [email protected] occur in United Kingdom. For a full list of jurisdictional Q&As visit here Patrick Tsitsaros Associate [email protected] 1. What is the typical organizational structure of a company and does the structure typically differ if the company is public or private? Most commercial companies in the UK adopt one of two forms: a private limited company or a public limited company. Each type of company has a share capital, which is held by shareholders. If a company intends to offer its shares or issue debt to the public, it will generally need to be a public limited company. Public limited companies are also subject to more stringent and detailed requirements under the Companies Act 2006 than private limited companies (for example, certain additional rules in relation to minimum issued share capital, dividends, the timing and content of annual accounts, and the number of directors). Public limited companies are eligible to be listed on the London Stock Exchange whereas private limited companies are not. The applicable regulations will depend on the particular category of listing but will generally include the Financial Conduct Authority’s Listing Rules, Prospectus Regulation Rules, Disclosure Guidance and Transparency Rules and the European Union’s Market Abuse Regulation (the “MAR”). Foreign listings may also impose requirements. If the company is the subject of a takeover bid, the UK Takeover Code imposes limitations on how directors may act and impinge on the duties that directors owe. 2. Who are the key corporate actors (e.g., the governing body, management, shareholders and other key constituencies) and what are their primary roles? How are responsibilities divided between the governing body and management? The key corporate actors for UK companies are the shareholders, the board of directors and management. Although shareholders automatically have control over certain matters specified in the Companies Act 2006, the company’s constitution or other applicable legislation, rules or regulations (for example, changes to the company’s constitution or share capital), day-to-day management of the company is delegated by the shareholders to the board. A company’s board may comprise executive and non-executive directors. The executive directors are typically the most important management individuals within the company (usually the Chief Executive Officer and the Chief Financial Officer). The board will often delegate authority to manage the day-to-day business of the company to the executive directors and the management team, but will reserve certain key matters that require specific board approval. The company normally also appoints non-executive directors to constructively challenge the board and the executive directors in managing the company as agreed in their terms of appointment or service agreements. If the company applies the UK Corporate Governance Code, the non-executive directors should satisfy certain independence criteria (see question 7). 3. What are the sources of corporate governance requirements? The Companies Act 2006 is the primary source of legislation governing all UK companies. All listed companies must also comply with the Listing Rules, Disclosure Guidance and Transparency Rules and the MAR to a certain extent, depending on the applicable category of listing. In addition, premium-listed companies are subject to the UK Corporate Governance Code (as updated in July 2018) on a “comply or explain” basis and must include a statement in their annual report setting out the company’s reasons for non-compliance. Many standard- listed companies also choose to voluntarily apply the UK Corporate Governance Code on the same basis as a matter of good governance. 4. What is the purpose of a company? The core or underlying purpose of an English company is the generation of profit for the equitable distribution to shareholders. Over the past 150 years, the statement of a company’s purpose or objects within its constitutional documents has gradually eroded such that now many companies do not have a specific purpose specified other than to engage in general commercial activities. On the basis that public trust in companies has eroded alongside purpose, the 2018 UK Corporate Governance Code introduced a principle that the board “should establish a company’s purpose, values and strategy, and satisfy itself that these and its culture are aligned”. The company structure is often tax efficient for both the business and shareholders and provides shareholders with limited liability with respect to the acts or omissions of the company (including its debts). 5. Is the typical governing body a single board or comprised of more than one board? UK companies typically have one single board, comprising a mix of executive and non- executive directors. The board may delegate some of its powers to individual directors, members of management or committees set up for specific purposes. 6. How are members of the governing body appointed and removed from service? Both the board of directors and shareholders have the power to appoint and remove directors under the Companies Act 2006 and under a typical company’s constitution. Directors of premium-listed companies may be appointed by the board of directors in the usual course, but their appointment is typically approved by shareholders at the company’s next annual general meeting and re-approved on an annual basis thereafter. 7. Who typically serves on the governing body and are there requirements that govern board composition or impose qualifications for directors regarding independence, diversity, tenure or succession? The boards of many smaller private companies comprise executive directors only. The boards of larger private and public companies typically comprise a mix of executive and non- executive directors. Under the UK Corporate Governance Code, at least half of the board (excluding the chairperson) should comprise independent non-executive directors and companies should identify those directors they consider to be independent in their annual report. If the company has established a nomination committee (see question 9), this committee will have responsibility for appointing new directors, arranging succession planning for existing directors and implementing the company’s diversity policy. If a formal workforce advisory panel is not in place, the board should include one director appointed by the workforce and one non-executive director should be designated as responsible for workforce engagement. The UK Corporate Governance Code sets out a list of non-exhaustive criteria that may impair (or appear to impair) a non-executive director’s independence, including whether a director: is or has been an employee of the company within the last five years; has, or had within the last three years, a material business relationship with the company (either directly or indirectly); has received or receives additional remuneration from the company apart from a director’s fee, or participates in the company’s share option or pension schemes; has close family ties with any of the company’s directors, advisers or senior employees; represents a significant shareholder; has served on the board for more than nine years; or holds cross-directorships or has significant links with other directors through other companies. The UK Corporate Governance Code also states that there should be a formal and rigorous annual evaluation of the performance of the board, its committees, the chairperson and individual directors. In FTSE 350 companies, this type of evaluation should happen at least every three years. The chairperson should consider arranging external board evaluation and should act on the results of any evaluation by recognising the strengths and addressing any weaknesses of the board. Each director is encouraged to engage with the process and take appropriate action where required. Boardroom diversity continues to be a major issue in UK corporate governance and, although almost all of the FTSE 100 companies now have a clear policy on boardroom diversity, there remains a perceived failure to improve both ethnic and gender diversity on boards of large public UK companies. FTSE 100 companies remain on track to hit their 2020 target of one- third female board representation, but the FTSE 250 continue to lag behind with only 27.5% in mid-2019. 8. What are the common approaches to the leadership of the governing body? The chairperson’s primary role is to lead the board and ensure that the board is effective in its task of setting and implementing the company’s direction and strategy. The chairperson is also responsible for ensuring that each of the directors receives timely, accurate and clear information and for acting as the key liaison between the board and the company’s shareholders. The UK Corporate Governance Code recommends that the chairperson should be independent on appointment (see question 7), that the Chief Executive Officer should not also be the chairperson and that the Chief Executive Officer should not go on to become the chairperson. However, as the UK Corporate Governance Code is adhered to on a “comply or explain” basis, a very small number of companies
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