ASIC RG 264 — ASIC Regulatory Guide – RG 264 Sell-side research

Page 1 REGULATORY GUIDE 264 Sell-side research December 2017 About this guide This guide is for Australian financial services (AFS) licensees who are involved in providing research. It supplements our guidance in Regulatory Guide 79 Research report providers: Improving the quality of investment research (RG 79). This guide focuses on managing conflicts of interest and inside information when providing sell-side research. Page 2 REGULATORY GUIDE 264: Sell-side research © Australian Securities and Investments Commission December 2017 Page 2 About ASIC regulatory documents In administering legislation ASIC issues the following types of regulatory documents. Consultation papers: seek feedback from stakeholders on matters ASIC is considering, such as proposed relief or proposed regulatory guidance. Regulatory guides: give guidance to regulated entities by:  explaining when and how ASIC will exercise specific powers under legislation (primarily the Corporations Act)  explaining how ASIC interprets the law  describing the principles underlying ASIC’s approach  giving practical guidance (e.g. describing the steps of a process such as applying for a licence or giving practical examples of how regulated entities may decide to meet their obligations). Information sheets: provide concise guidance on a specific process or compliance issue or an overview of detailed guidance. Reports: describe ASIC compliance or relief activity or the results of a research project. Document history This guide was issued in December 2017 and is based on legislation and regulations as at the date of issue. Disclaimer This guide does not constitute legal advice. We encourage you to seek your own professional advice to find out how the Corporations Act and other applicable laws apply to you, as it is your responsibility to determine your obligations. Examples in this guide are purely for illustration; they are not exhaustive and are not intended to impose or imply particular rules or requirements. Page 3 REGULATORY GUIDE 264: Sell-side research © Australian Securities and Investments Commission December 2017 Page 3 Contents A Overview .................................................................................................4 The role of research .................................................................................4 Relevant law ............................................................................................5 Background to our guidance ....................................................................7 Purpose and scope of this guide .............................................................7 B Sell-side research ..................................................................................9 What is a research report? ......................................................................9 What is sell-side research?....................................................................10 C Research analysts and information management ...........................11 Background ............................................................................................11 What is inside information?....................................................................12 Identification of inside information .........................................................12 Management of inside information ........................................................13 Prospective information .........................................................................17 Non-deal meetings .................................................................................18 D Managing research conflicts during the capital raising process ...20 Background ............................................................................................20 Research and capital raisings................................................................21 Pre-solicitation .......................................................................................22 Transaction pitching ...............................................................................24 Post-appointment ...................................................................................26 Discretionary fees ..................................................................................35 E Structure and funding of research .....................................................36 Background ............................................................................................36 Structure of research .............................................................................36 Decision-making on coverage ...............................................................37 Disclosure of interests ...........................................................................37 Research funding ...................................................................................38 Input into research analyst remuneration ..............................................39 Key terms .....................................................................................................40 Related information .....................................................................................42 Page 4 REGULATORY GUIDE 264: Sell-side research © Australian Securities and Investments Commission December 2017 Page 4 A Overview Key points Research helps investors to make investment decisions. The quality of research can affect the advice received and investment decisions. A licensee who provides research must comply with a number of regulatory obligations. This guide focuses on the licensee’s obligations to: • control and manage inside information: see Section C; • manage conflicts during the capital raising process, including avoiding, controlling and disclosing these conflicts: see Section D; and • manage research teams, including budgeting, research analyst remuneration and coverage decisions: see Section E. The role of research RG 264.1 The timely and accurate flow of information about issuers, securities and other financial products is vital to the fair, efficient and transparent operation of financial markets. The integrity of research directly affects the integrity of our financial markets and investor confidence. RG 264.2 Research helps investors to make decisions about investments: see RG 79. It is important to the integrity of financial markets, and to the quality of financial advice provided to investors, that research is unbiased and reflects the professional judgement and expertise of the research analyst. RG 264.3 In the course of their work, research analysts regularly interact with and obtain information from companies. There is a risk that the information may be inside information. Poor practices in handling inside information can threaten market integrity and risk contravention of the Corporations Act 2001 (Corporations Act). Note: Inside information is defined in s1042A of the Corporations Act and means information: (a) that is not generally available; and (b) if the information were generally available, a reasonable person would expect it to have a material effect on the price or value of particular financial products. RG 264.4 Conflicts of interest may arise when the interests of a licensee’s corporate advisory clients conflict with the interests of the licensee’s investing clients (including potential clients). Page 5 REGULATORY GUIDE 264: Sell-side research © Australian Securities and Investments Commission December 2017 Page 5 RG 264.5 Conflicts can also arise between the interests of a licensee’s clients (e.g. corporate advisory and investing clients) and the business interests of the licensee or the personal interests of the licensee’s directors, employees and agents. RG 264.6 The more financial services that a licensee is involved in the greater the challenges in appropriately managing inside information and conflicts of interest. RG 264.7 Conflicts can be exacerbated by a licensee’s business model, business practices, physical layout, remuneration structure, and shareholdings in companies held by the licensee or its staff. RG 264.8 Conflicts may be actual, apparent or potential. Where conflicts are not adequately managed, they have the potential to undermine efficiency and confidence in financial markets and pose a threat to investor protection. RG 264.9 Licensees operate under a range of structures. These may include conducting multiple financial services within a single entity under a single licence; or providing financial services via a number of entities as part of a wider group of related parties or related bodies corporate which may not have an AFS licence or are licensed in another jurisdiction. Some licensees also authorise other unrelated entities to provide financial services under their licence(s) or work together on an ongoing basis with unrelated entities under a common brand. For convenience in this guide, a reference to ‘licensee’ refers to all of these types of organisations. RG 264.10 A conflict can be generated for a licensee member in one of these types of organisations through the business relations, activities or interests of another member, or shareholder or authorised representative of another member of the organisation. Similarly, the obligations to properly manage inside information will extend to all members or individuals within an organisation who come into its possession. RG 264.11 Licensees remain responsible for ensuring that all services provided under their licence satisfy regulatory requirements. Relevant law RG 264.12 Under the Corporations Act, AFS licensees involved in providing research for the purposes of this guide must comply with the general licensing obligations set out in s912A. This includes the obligation to: (a) do all things necessary to ensure that their financial services are provided efficiently, honestly and fairly (s912A(1)(a)); (b) have in place adequate arrangements to manage conflicts of interest that may arise wholly, or partially, from activities undertaken by the Page 6 REGULATORY GUIDE 264: Sell-side research © Australian Securities and Investments Commission December 2017 Page 6 licensee or a representative of the licensee in the provision of financial services as part of the financial services business of the licensee or the representative (conflicts management obligation) (s912A(1)(aa)); (c) comply with financial services laws and take reasonable steps to ensure their representatives do likewise (s912A(1)(c) and (ca)); (d) have available adequate resources (including financial, technological and human resources) to provide the financial services covered by the licence and to carry out supervisory arrangements (s912A(1)(d)); and (e) maintain the competence, and ensure its representatives are competent and are adequately trained, to provide the financial services (s912A(1)(e) and (f)). RG 264.13 The conflicts management obligation and Regulatory Guide 181 Licensing: Managing conflicts of interest (RG 181) apply to all licensees, including those who provide research. What a licensee needs to do to comply with its obligations varies according to the nature, scale and complexity of its financial services business. RG 264.14 There is also a range of prohibitions applying to all providers of financial services in or into Australia whether or not they possess a financial services licence, are authorised representatives of a licensee or enjoy the benefit of licence exemption. These prohibitions relate to market misconduct and other prohibited conduct including: (a) market manipulation (s1041A and s1041B); (b) making false or misleading statements (s1041E); (c) dishonest conduct (s1041G); (d) inducing a person to deal by knowingly or recklessly making or publishing a misleading, false or deceptive statement, promise or forecast, or by dishonestly concealing material facts (s1041F(1)(a) and (b)); (e) misleading or deceptive conduct (s1041H) (civil liability only); and (f) insider trading (s1043A). Note: There are a number of statutory exceptions to the insider trader provisions that may be relevant in the context of sell-side research. These include where effective ‘Chinese’ wall arrangements are in place and underwriter communications regarding the issuing company while an underwriting agreement is in place. RG 264.15 The Australian Securities and Investments Commission Act 2001 (ASIC Act) also includes the following prohibitions in relation to financial services: (a) misleading or deceptive conduct (s12DA); (b) false or misleading representations (s12DB); and (c) conduct likely to mislead the public about the nature or quality of a financial service (s12DF). Page 7 REGULATORY GUIDE 264: Sell-side research © Australian Securities and Investments Commission December 2017 Page 7 Background to our guidance RG 264.16 We have previously released guidance that sets out our expectations of how licensees who provide research should manage conflicts of interest. Note: See RG 79, RG 181 and Report 393 Handling of confidential information: Briefings and unannounced corporate transactions (REP 393). RG 264.17 In August 2016, we released Report 486 Sell-side research and corporate advisory: Confidential information and conflicts (REP 486). REP 486 sets out our key observations from our review of how inside information and conflicts are managed in the context of sell-side (or broker) research and corporate advisory activities. Note: Corporate advisory activities include the provision of capital raising and advisory services to companies. These activities are generally undertaken by investment banking, corporate finance, or equity or debt capital market teams within an organisation. Corporate advisory helps companies to raise capital (debt and equity) and undertake corporate transactions (such as mergers and acquisitions and takeovers). RG 264.18 We found that some licensees did not have appropriate arrangements to manage situations where staff, including research analysts, come into possession of inside information. This includes inadequate use or supervision of restricted trading lists and information barriers (traditionally known as ‘Chinese’ walls). This can result in inside information being managed inappropriately, including by being passed to the sales desks or to preferred clients. RG 264.19 We also identified inconsistent practices indicating a lack of research independence and the absence of an appropriate separation of research and corporate advisory activities. In some cases, the structure of the licensee contributed to this through, for example, inadequate physical and technological separation of research analysts from other business units within or across licensees, remuneration models and reporting lines. Note: The term ‘technological’ includes information technology, file servers, email, chat and instant messaging, and electronic order pads. Purpose and scope of this guide RG 264.20 Existing guidance in RG 79 and RG 181 addresses many of the inconsistent practices we identified. However, the existing guidance only briefly deals with the specific circumstances that can give rise to conflicts in the provision by licensees of both corporate advisory and research. In addition, the existing guidance does not detail the appropriate handling of inside information. Page 8 REGULATORY GUIDE 264: Sell-side research © Australian Securities and Investments Commission December 2017 Page 8 RG 264.21 Our review showed that licensees involved in providing research would benefit from detailed guidance on managing conflicts of interest and inside information. While our guidance in RG 79 sets out a framework that applies to a range of research issues, including the proper management of conflicts, this guidance supplements RG 79 in its application to sell-side research. In the case of any inconsistency between RG 79 and this regulatory guide, this guidance will prevail. RG 264.22 A key focus of this guide is on how conflicts of interest are managed and, where necessary, avoided so as to ensure research has credibility and integrity and can reasonably be relied on directly or indirectly by investors. This guide applies to licensees who are involved in providing sell-side research. Section D also applies to licensees who prepare sell-side research and who are involved in capital raising transactions. RG 264.23 This guide should be read together with relevant sections of the Corporations Act and other related ASIC guidance including: (a) RG 79; (b) Regulatory Guide 104 Licensing: Meeting the general obligations (RG 104); (c) Regulatory Guide 105 Licensing: Organisational competence (RG 105); (d) Regulatory Guide 111 Content of expert reports (RG 111); (e) Regulatory Guide 112 Independence of experts (RG 112); and (f) RG 181. Page 9 REGULATORY GUIDE 264: Sell-side research © Australian Securities and Investments Commission December 2017 Page 9 B Sell-side research Key point Sell-side research is general financial advice prepared and distributed by a licensee to its clients (or potential clients) to help them make investment decisions about financial products. What is a research report? RG 264.24 For the purpose of this guide a research report is defined as general advice that: (a) is in writing, audio, video or other electronic format; (b) includes an express or implicit opinion or recommendation about named or readily identifiable financial products or classes of financial products; and (c) is intended to be, or could reasonably be regarded as being intended to be, distributed (whether directly or indirectly) to clients or potential clients. RG 264.25 It does not include any of the following: (a) personal advice; (b) general advice that is provided only to an individual or small number of related clients (e.g. a family); (c) general advice that is provided only to related bodies corporate of the licensee; (d) a restatement of a listed company announcement; and (e) advice that is merely a restatement, summary or extract of another research report that has already been distributed (whether by the licensee or another person), provided it is clear that: (i) the advice is a restatement, summary or extract of another report; (ii) readers are directed to who prepared the original research and, if available, how readers may obtain it. RG 264.26 See RG 79, Table 1 for examples of research reports. Page 10 REGULATORY GUIDE 264: Sell-side research © Australian Securities and Investments Commission December 2017 Page 10 What is sell-side research? RG 264.27 For the purpose of this guide sell-side research is a research report prepared by a licensee to help its clients (or potential clients) make investment decisions, and includes: (a) research prepared by a licensee in relation to a capital raising transaction (usually an ‘initial public offering’ or ‘IPO’) released before an issuing company’s securities are listed; (b) research prepared by a licensee released in relation to a listed company undertaking a recent transaction (e.g. an IPO or placement). The licensee may or may not have been involved in the transaction; (c) periodic research (typically following an event such as a release of results, an acquisition or divestment or a material change to the company or its business); (d) desk notes, emails and flash notes that: (i) contain a price target or valuation about named or readily identifiable financial products or classes of financial products; and (ii) are not commentary which references the most recent research (as set out in RG 264.27(a), RG 264.27(b) or RG 264.27(c)) that has been broadly distributed by the licensee or another person in relation to the financial product(s) referred to in the desk note, email or flash note; (e) economic or fixed income research which includes an express or implicit opinion or recommendation about named or readily identifiable financial products or classes of financial products. Note: For the purposes of Sections C, D and E of this guide, references to ‘research’ and ‘sell-side research’ are interchangeable. Page 11 REGULATORY GUIDE 264: Sell-side research © Australian Securities and Investments Commission December 2017 Page 11 C Research analysts and information management Key points Research analysts regularly receive information from a range of sources including companies, third parties and other areas of the licensee. Licensees should ensure they have controls in place to identify and manage inside information. Poor practices in handling inside information can threaten market integrity, undermine investor confidence in markets and increase the risk of contraventions of financial services law. Robust compliance and control functions are a key element to ensure that inside information and conflicts of interest are managed appropriately. Background RG 264.28 Research analysts regularly receive information from a range of sources. They need to assess whether this information is inside information. If the information is inside information, the research analyst needs to manage it appropriately so it is not passed on to clients or other parts of the licensee’s business (such as sales). Note: Inside information may be received by other parts of a licensee in the course of their activities (e.g. sales and trading, management and corporate advisory) which, if not managed appropriately, can create a risk that inside information is passed on. RG 264.29 Information is communicated by research analysts by a range of means including sell-side research, internal chat messages, emails or in person (e.g. at internal sales meetings). RG 264.30 There may be a competitive advantage for research analysts to use or release information quickly. The speed at which this occurs increases the risk that insufficient care is taken to determine whether or not the information is inside information. RG 264.31 Listed entities, regardless of their size, must take responsibility for managing inside information. Poor practices in this area can lead to contraventions of the continuous disclosure obligations in the Corporations Act. In addition, it may have serious implications for any transaction the entity may be considering or on its reputation. RG 264.32 Licensees should also have robust compliance and control functions to ensure that inside information and conflicts of interest are managed appropriately. Page 12 REGULATORY GUIDE 264: Sell-side research © Australian Securities and Investments Commission December 2017 Page 12 What is inside information? RG 264.33 Inside information is defined in s1042A of the Corporations Act and means information: (a) that is not generally available; and (b) if the information were generally available, a reasonable person would expect it to have a material effect on the price or value of particular financial products. Examples 1. Financial or production information that has not been made generally available (e.g. sales and profitability, how the business is tracking against market expectations, or production targets). 2. Significant events affecting a company that have not been made generally available (e.g. key personnel changes, legal action or loss of a major customer). 3. Information about a capital raising, takeover or merger and acquisition transactions that have not been made generally available. RG 264.34 Section 1042A applies to the following financial products: securities; derivatives; interests in a managed investment scheme; government debentures, stocks or bonds; superannuation products unless otherwise prescribed; and any other financial products able to be traded on a financial market. RG 264.35 Licensees should consider the nature of the financial product and the dynamics of the markets in which the financial product trades in assessing the materiality of information that is not generally available. For example, information that may be material to the price of listed equity securities issued by an entity may be less material to the price of any bonds it has issued. RG 264.36 Ensuring that inside information is managed appropriately will reduce the risk that a contravention of financial services law may occur. Identification of inside information RG 264.37 It is essential that research analysts have a clear understanding of what constitutes inside information as this is fundamental to its identification. Research analysts frequently communicate with companies and may have to make the initial decision on whether information is inside information. Page 13 REGULATORY GUIDE 264: Sell-side research © Australian Securities and Investments Commission December 2017 Page 13 Examples 1. A company advises a research analyst about production targets or costs that have not been disclosed to the market by the company. 2. A research analyst attends a site visit of a company’s operation. During the visit, the research analyst: speaks to staff and obtains information that suggests the company will not achieve its earning or production forecasts; or observes that the state of key pieces of equipment or operating conditions would adversely affect the company’s ability to operate as expected. This information has not been disclosed to the market by the company. 3. A company advises a research analyst about profit margins or business performance that has not been disclosed to the market by the company. 4. When meeting with a research analyst, a listed company mentions that it is considering a capital raising or a significant acquisition that has not been disclosed to the market. RG 264.38 Licensees should ensure that their staff have the requisite skills and experience to assess the nature of the information they receive to determine whether it is or contains inside information. Licensees should provide training and guidance to their staff about what constitutes inside information. This should include induction and continuing training on the licensee’s rules, policies and procedures concerning inside information as well as relevant obligations. RG 264.39 Licensees should ensure that staff, including research analysts, have a process to verify whether information received has been made generally available. This could include: (a) checking the market announcement platforms; (b) checking company websites; and (c) where appropriate, asking the company to identify where the information has been publicly disclosed. Management of inside information RG 264.40 Where inside information has been identified, we expect licensees to have suitable controls in place to manage it. These include policies and procedures, supported by training; internal monitoring and review processes; and robust compliance and control functions. Note: Listed entities also need to take appropriate steps to manage inside information. Disclosure by listed entities must comply with the laws on continuous disclosure and insider trading: see REP 393. Page 14 REGULATORY GUIDE 264: Sell-side research © Australian Securities and Investments Commission December 2017 Page 14 Policies and procedures RG 264.41 Licensees should maintain specific policies and procedures in relation to inside information. These policies and procedures should: (a) define inside information; (b) explain how to identify whether information is inside information; (c) describe what to do if information that is or may be inside information is received; and (d) set out the internal escalation paths to manage situations where inside information has been received. RG 264.42 These policies and procedures should be made available to all staff and reinforced with regular training. Licensees may find it useful to include practical examples and scenarios in the training materials. Wall-crossing practices RG 264.43 A range of interactions occur between research analysts, listed companies and other parts of a licensee. Examples include: (a) a listed company providing a general update on its business to a licensee (which could follow the release of results); (b) a licensee’s research analysts providing a sector update to the licensee’s sales or corporate advisory teams; (c) research analysts undertaking site inspections of a company’s operations; and (d) electronic communication, including emails and internal chat messages between the licensee’s sales, corporate advisory and research staff. RG 264.44 Care should be taken to ensure that inside information is not discussed in these situations. If research analysts become aware of inside information they should follow the licensee’s wall-crossing procedure. RG 264.45 Information barriers provide a mechanism for staff that have received or are provided with inside information to be brought over to the private (or non- public) side of the business to appropriately manage conflicts of interest and potential contraventions of the Corporations Act. Licensees should have robust physical and electronic information barriers between a licensee’s research team and staff performing corporate advisory or sales functions: see RG 79.120, Table 4; RG 79.125–RG 79.128. RG 264.46 Any wall-crossed staff should be subject to the same trading restrictions imposed on staff on the private side of the licensee’s business for the relevant financial products. These controls minimise the risk that inside information is inappropriately passed to others or acted on. Page 15 REGULATORY GUIDE 264: Sell-side research © Australian Securities and Investments Commission December 2017 Page 15 RG 264.47 Permanent information barriers may not be warranted in the case of fixed income research but licensees should consider, on a case-by-case basis, isolating research analysts working on reports which could materially affect prices of bonds or other financial products. In addition, equity sales should not have access to draft fixed income research relating to listed entities. RG 264.48 Licensees should implement, maintain and monitor wall-crossing procedures. The procedure should include a written acknowledgement by the research analyst that they have been wall-crossed and have read, understood and will comply with any restrictions imposed on them. The research analyst should be provided with guidance about what they can and cannot do during the period in which they are wall-crossed and should be formally notified in writing when the wall-crossing period ends (i.e. when the information has been made generally available). RG 264.49 The wall-crossing procedure should be managed by compliance or another control function which should be notified whenever a research analyst or any other employee obtains or is provided with inside information. Note: ‘Compliance or another control function’ refers to review and oversight by those not directly conflicted by the business activities undertaken by the licensee. Research analyst declaration RG 264.50 Before the publication and release of research, the research analyst(s) who prepared the report should provide a declaration to the licensee’s compliance or another control function that: (a) to the best of the research analyst’s knowledge, they are not in receipt of inside information and the research does not contain inside information; and (b) no other part of the licensee has made any attempt to influence the research. Monitoring and reviewing material changes to research RG 264.51 Where research is initiated or there is a change in recommendation, opinion or a material change to a price target in research, licensees should have an appropriate review process in place. This process should minimise the risk that inside information is included in or has influenced the research, and ensure there are reasonable grounds for the inclusion of any prospective information, and any conflicts of interest have been managed appropriately. Note: Licensees will need to determine whether a change in price target is material taking into account a range of factors that may include the size and stage of development of the company, recent volatility in the market, sector or company share price, and the level of liquidity in the company’s shares. Page 16 REGULATORY GUIDE 264: Sell-side research © Australian Securities and Investments Commission December 2017 Page 16 RG 264.52 The review should be undertaken by a supervisory analyst, a senior research team member or by compliance or another control function with appropriate knowledge and experience. RG 264.53 The review should consider the statements made in the research and whether they are based on generally available information. This may involve questioning the research analyst about the reason for the change of opinion and the source of information supporting the change (e.g. any recent discussion between the research analyst and the company). This is also likely to include asking the research analyst to demonstrate how the information in the research, or on which opinions or recommendations in the research are based, is generally available (e.g. contained in an ASX announcement or on the company’s website). RG 264.54 Licensees will need to ensure that sufficient time and resources are allowed for the review, taking into account the length and complexity of the research and the nature of any changes in the research. Where relevant, compliance or another control function should conduct periodic reviews to ensure supervisory analysts are not being pressured to approve new research or material changes to previously published research opinions without adequate time. Research analyst models RG 264.55 Licensees may receive requests to gain access to financial models maintained or prepared by research analysts (research analyst models). These requests may be internal (e.g. from corporate advisory) or external (e.g. investor or corporate clients). RG 264.56 Information relating to unpublished research data, research analyst models and draft research should not be made available or provided to any person who is not part of the research team other than as set out in RG 264.58– RG 264.59 and guidelines D5(e) and D6(e) below. This includes other parts of the licensee (e.g. sales and corporate advisory) and external parties (e.g. clients): see RG 79.128. RG 264.57 Depending on who makes the request and what information is requested, there is a risk that the research analyst may be tipped off about a potential transaction which may constitute inside information. For example, if the licensee’s corporate advisory team requests research analyst models for two companies this may alert the research analyst about a potential merger. In addition, if a research analyst model contains information that is not generally available to the public (e.g. notes or updates to forecasts and valuations), the research analyst model itself may also constitute inside information. Page 17 REGULATORY GUIDE 264: Sell-side research © Australian Securities and Investments Commission December 2017 Page 17 RG 264.58 To reduce these risks, licensees should have a process to deal with requests from the non-public side of the licensee’s business for research analyst models that underpin published research. This may include: (a) ensuring that requests for research analyst models are managed by compliance or another control function; (b) asking for research analyst models for a number of companies to minimise the risk of the research analyst becoming aware of the purpose for the request; (c) not revealing to the research analyst that a request has been made or the identity of the person or entity that has made a request; (d) ensuring that any research analyst models provided are consistent with the valuation, price target and recommendation in published research; and (e) redacting any valuation information in research analyst models that is not consistent with the licensee’s published research or generally available to the public (e.g. comments or notes). RG 264.59 If a licensee receives an external request or an internal request from staff on the public side of the licensee’s business for research analyst models, RG 264.58(d) and RG 264.58(e) apply. Prospective information RG 264.60 Companies and research analysts require reasonable grounds if they wish to disclose prospective information to the market. This applies to prospective financial information and prospective information about the company’s business or assets. In some industries, these disclosures are guided by the relevant industry codes (e.g. JORC for mining companies). Note: The JORC Code sets out minimum standards for Public Reporting of Exploration Results, Mineral Resources and Ore Reserves. RG 264.61 If a listed company does not have reasonable grounds they cannot disclose prospective information. For example, in these circumstances a resources company will be unable to disclose certain prospective information relating to production targets or prospective financial information based on those production targets. RG 264.62 In some instances a listed company may provide this prospective information to a research analyst. Research analysts should exercise caution in situations where a listed company discloses prospective information to them that has not been disclosed to the market. All staff, including research analysts, will need to assess whether any prospective information provided to them by a listed company is inside information. If the information Page 18 REGULATORY GUIDE 264: Sell-side research © Australian Securities and Investments Commission December 2017 Page 18 provided to them is inside information it should not be disclosed by the research analyst who should follow the licensee’s internal protocols for the management of inside information. RG 264.63 In addition, if the company does not have reasonable grounds to disclose prospective information to the market it is unlikely a research analyst with less insight into the company’s business will have reasonable grounds to disclose that information. Research opinions which do not have a reasonable basis or are not the result of the exercise of care and skill may be misleading and deceptive. Also refer to RG 79.40–RG 79.41, RG 79.89–RG.79.93, Regulatory Guide 170 Prospective financial information (RG 170), Information Sheet 214 Mining and resources: Forward-looking statements (INFO 214) and ASX mining reporting – frequently asked questions, questions 24 and 30. Non-deal meetings RG 264.64 A licensee’s research and corporate advisory staff may meet with companies for a variety of reasons independent of the company undertaking a capital raising transaction. This may include: (a) for an unlisted company, meeting with a licensee’s corporate advisory and/or research team to have a general discussion about the company, its operations, growth plans or capital requirements. The company may also seek feedback on its strategic options which may include raising capital, a restructure, a trade sale or a strategic acquisition; (b) for a listed company, providing an opportunity for the company to raise its awareness with a licensee’s corporate advisory and/or research teams; providing an update on the company, its operations or its strategic plans; and allowing the company to assess the licensee’s interest in their company and capability. If the licensee does not currently publish research on the company, it provides an opportunity for the licensee to see if it has interest in initiating research coverage. RG 264.65 Even if the company does not discuss a specific transaction with the licensee, if the licensee identifies a potential opportunity to be mandated on a transaction they may present their credentials to the company or discuss the potential opportunity. During the course of the meeting, the company may also discuss information relating to a potential transaction. RG 264.66 These meetings create a risk that inside information is discussed. If staff on the public side of the licensee (such as research analysts) are present, this can create potential conflicts of interest or a risk that inside information is handled inappropriately. For example, if an unlisted company reveals that it is discussing a potential sale to a listed company this may be inside information about the listed company or other listed companies. Page 19 REGULATORY GUIDE 264: Sell-side research © Australian Securities and Investments Commission December 2017 Page 19 Guidelines for non-deal meetings C1 (a) Representatives from a licensee’s corporate advisory and research teams may attend non-deal discussions. (b) Licensees should not commit to provide research coverage on the company. (c) If research analysts are present they should not discuss their views on valuation information relating to the company when the company is present. (d) If the discussion involves inside information or a potential capital raising transaction, staff from the public side of the licensee should leave the meeting unless they are wall-crossed and follow the licensee’s internal protocols for the management of inside information: see RG 264.43–RG 264.48. Compliance and control functions RG 264.67 Robust compliance and control functions are a key element to ensure that inside information and conflicts of interest are managed appropriately. RG 264.68 Licensees should implement governance and control frameworks that avoid placing unacceptable levels of reliance on staff integrity: see RG 79.119. Compliance or another control function should be aware of and monitor or undertake periodic reviews to determine the effectiveness of the licensee’s arrangements: see RG 104.24 and RG 104.28. The level and type of monitoring that is appropriate will depend on the nature, size and complexity of the licensee. RG 264.69 Examples of the type of monitoring that compliance or another control function could undertake include: (a) attending meetings where both research analysts and corporate advisory are present on a periodic basis, such as internal meetings to discuss companies or industry sectors and company briefings; and (b) undertaking regular reviews of communications between research analysts and other parts of the licensee and companies. This may include electronic communications, physical notes and, where available, recordings (e.g. licensees may also wish to review communications between research analysts, sales and corporate advisory in real-time, using keyword ‘hits’ to signal items requiring further review). Page 20 REGULATORY GUIDE 264: Sell-side research © Australian Securities and Investments Commission December 2017 Page 20 D Managing research conflicts during the capital raising process Key points The objectivity and independence of research analysts may be compromised in the process of a capital raising transaction. This can result in poorer outcomes for investors and potentially mislead the market. Conflicts, whether actual, apparent or potential, can reduce the quality, integrity and reliability of research. While some conflicts of interest can be managed, some conflicts should be avoided entirely. Background RG 264.70 Financial markets play a critical role in the Australian economy, enabling a company to raise capital from investors and facilitating the pricing and allocation of risk. To operate effectively, markets need to be fair and efficient, and investors must have trust and confidence in their operation. RG 264.71 A company can raise equity capital through a range of methods. These include initial offers (e.g. IPOs) and secondary or follow-on offers (including placements, rights issues, share purchase plans and dividend reinvestment plans). Companies may also access the debt capital markets by, for example, issuing corporate bonds. The scope for research to play a role in different types of capital raisings varies. The following guidance should be considered in light of the different types of capital raisings. There are other corporate transactions that do not involve a capital raising but may raise similar issues in identifying and handling inside information and managing conflicts of interest. Licensees should consider the relevance of this guide to such transactions. RG 264.72 Research, or the promise of research, should not be used to secure corporate advisory mandates. If conflicts inherent in a licensee providing both research and corporate advisory services cannot be managed they should be avoided by either not providing the corporate advisory service or not preparing or distributing research while a corporate advisory mandate is on foot: see RG 79.93; RG 79.120, Table 4; RG 79.123; RG 79.130–RG 79.133. Page 21 REGULATORY GUIDE 264: Sell-side research © Australian Securities and Investments Commission December 2017 Page 21 Research and capital raisings RG 264.73 Research facilitates orderly and efficient capital markets by providing information to investors to help them make investment decisions. It is important to the integrity of financial markets that research is unbiased and reflects the professional judgement and expertise of the research analyst. RG 264.74 Research should be based on verifiable facts and objective analysis, and not on the interests of the licensee, the research analyst, the issuing company or others. A statement of opinion by a person in their professional capacity involves an implied assertion that it is the result of the exercise of due care and skill, has a reasonable basis, and can be relied upon: see RG 79.41. RG 264.75 Research that is not based on reasonable grounds may be dishonest, misleading or deceptive or result in false or misleading representations: s1041E, 1041H and 1041G of the Corporations Act and s12DA and 12DB of the ASIC Act. See RG 79.89–RG 79.91. Research which purports to be the independent view of an analyst but is not may also amount to misleading conduct under s12DF of the ASIC Act. Examples 1. Revenue forecasts or projections that do not have a reasonable basis, rely on overly optimistic assumptions or are not verified or benchmarked against a range of sources. 2. Incorrect application of valuation methodologies, such as not applying the appropriate forecast earnings multiple to forecast earnings (i.e. mismatching the reporting periods). 3. Inappropriate selection of comparable listed companies or industry sector(s) when selecting earnings multiples. For example, selecting large, profitable companies that trade on high valuation multiples and applying them when valuing a start-up business. RG 264.76 A licensee’s corporate advisory function seeks to secure capital raising mandates from companies to help them access the capital markets. There are a number of stages in a typical capital raising mandate where research may be involved. Page 22 REGULATORY GUIDE 264: Sell-side research © Australian Securities and Investments Commission December 2017 Page 22 Table 1: Key stages of a capital raising mandate Stage Description 1. Pre-solicitation • When a licensee becomes aware of, or approaches a company in relation to, a potential capital raising transaction 2. Transaction pitching • Preparing and submitting a proposal to seek a mandate 3. Post-appointment • Due diligence and preparing selling documentation • For IPOs, preparing and distributing investor education reports RG 264.77 This section sets out our expectations on the interactions between a licensee’s research and corporate advisory teams with issuing companies in relation to capital raising transactions. RG 264.78 For listed companies, the guidance in D2(a) and D4(a) on interactions between a licensee’s research analyst and the company does not apply where: (a) information about the capital raising is not generally available; and (b) the research analyst is unaware of a potential capital raising transaction. Pre-solicitation RG 264.79 Licensees become aware of potential capital raising transactions through a range of means. These may include receiving a request for a proposal or being contacted directly by a company or its adviser. A licensee may also make an unsolicited approach to a company seeking a capital raising mandate. Pre-solicitation begins once the licensee becomes aware of, or approaches a company about, a potential capital raising transaction. RG 264.80 Before a licensee decides to submit a proposal for a mandate to the issuing company, the licensee would typically undergo an internal process to determine whether it should submit a proposal. RG 264.81 Each licensee will have its own internal processes for determining what level of pre-solicitation activities it undertakes before deciding to submit a proposal for a capital raising transaction. For example, the process may involve meeting with the company, internal due diligence inquiries and discussions or, subject to appropriate controls, input from the licensee’s research team. Refer to guidelines D1 and D2 below. Page 23 REGULATORY GUIDE 264: Sell-side research © Australian Securities and Investments Commission December 2017 Page 23 RG 264.82 Many licensees consider a research analyst’s input on a company or potential transaction particularly valuable. Research analysts are often sector specialists and are well placed to help with the pre-solicitation process. Research analysts can comment on a range of factors. These may include the market’s likely interest in and appetite for the company; an assessment of the company’s operations; its board and management; the company’s likely listed peer group (i.e. listed entities that the research analyst believes are suitable valuation benchmarks for the company); and comment on risks to the company or the sector it operates in. RG 264.83 Research analysts may be asked to provide their views or opinion on a company or transaction as part of the licensee’s pre-solicitation process in deciding to pitch on a transaction. This feedback can include a discussion of valuation information subject to the controls set out in guideline D1 below. RG 264.84 Licensees will need to determine whether it is appropriate to obtain input from a research analyst during pre-solicitation. If this results in the research analyst obtaining inside information about a listed company (e.g. a competitor, supplier or customer of the issuing company) the research analyst should follow the licensee’s internal procedure for handling inside information, including wall-crossing and not producing research or providing commentary on the listed company until the information is generally available to the market. Additional care should be taken when involving research analysts in transactions that relate to listed companies (unless they are wall-crossed) as the likelihood of obtaining inside information is increased. Guidelines for research analyst interactions with corporate advisory during pre-solicitation D1 (a) For listed companies, discussions between corporate advisory and the research analyst about any potential capital raising transaction or valuation information should only occur if the research analyst has been wall-crossed. (b) Corporate advisory should not place pressure on the research analyst or otherwise seek to influence the research. (c) If the research analyst obtains inside information during the pre- solicitation period they should follow the licensee’s internal protocols for the management of inside information: see Section C. (d) Compliance or another control function should be aware of and monitor, or undertake periodic reviews to determine, the effectiveness of the licensee’s arrangements. RG 264.85 If research analysts meet with an issuing company or its advisers during pre- solicitation there is a risk that the research analyst may be asked to comment on valuation information. Issuing companies may consider the research analyst’s views on valuation information in making a decision about which Page 24 REGULATORY GUIDE 264: Sell-side research © Australian Securities and Investments Commission December 2017 Page 24 licensee to mandate and they may seek to influence the research analyst’s approach to valuation. This can place pressure on the research analyst and affect their independence. Guidelines for research analyst interactions with the issuing company during pre-solicitation D2 (a) Research analysts and the issuing company may interact if a research analyst is aware of a potential capital raising transaction, provided the licensee has not made a decision to pitch for the capital raising transaction; or seven days before a pitch presentation to the issuing company, whichever is the earlier. (b) If a research analyst obtains inside information during the pre- solicitation process, they should follow their licensee’s internal protocols for the management of inside information: see Section C. (c) Research analysts should not volunteer valuation information on the issuing company to the company. Licensees should advise the issuing company in writing that they or their advisers should not ask the research analysts for their views on valuation information, or express or pass on any views on valuation information to the research analyst in their interactions. (d) Compliance or another control function should be aware of and monitor, or undertake periodic reviews to determine, the effectiveness of the licensee’s arrangements. RG 264.86 The pre-solicitation stage ends once a licensee decides to pitch for a capital raising transaction or seven days before a pitch presentation to the issuing company or its advisers, whichever is earlier. Transaction pitching RG 264.87 When a licensee decides to seek a mandate for a capital raising transaction, a pitch is prepared. Pitches can occur in a number of forms, including a formal presentation in response to a request for proposal (RFP), an unsolicited presentation or meeting with the company, the provision of a mandate letter (with or without a presentation) or a phone call. We refer to this stage of the transaction as ‘pitching’. The pitching stage commences once the licensee has decided to pitch for the transaction or seven days before a pitch presentation to the issuing company, whichever is earlier. RG 264.88 Where a research analyst provides input to corporate advisory in preparing for a pitch there is a risk to the objectivity and independence of research. This can occur if corporate advisory: (a) seeks to influence research analysts to commit to or produce research that is favourable to the issuing company; Page 25 REGULATORY GUIDE 264: Sell-side research © Australian Securities and Investments Commission December 2017 Page 25 (b) represents to an issuing company that their research analyst endorses valuation information contained in a pitch document or advises the issuing company that the corporate advisory value reflects the research analyst’s model or views. Guidelines for research analyst interactions with corporate advisory during pitching D3 (a) Research analysts should not communicate with or discuss the issuing company or the potential transaction with the licensee’s corporate advisory team during the pitching stage unless the research analyst has been wall-crossed and does not produce research in relation to the issuing company or transaction until the transaction has been completed. (b) Corporate advisory and research analysts should not be made aware of each other’s opinions on valuation information or research analyst models once the pitching phase begins. (c) Corporate advisory should not place pressure on research analysts or seek to influence research analysts to initiate research coverage or to amend their valuation or price target assessments on issuing companies. (d) Corporate advisory should not represent to issuing companies or their advisers that their research team or research analysts were involved in the preparation of or endorse the pitch valuation. (e) Corporate advisory staff should not represent to issuing companies that favourable research coverage will be provided on the issuing company in an attempt to secure a mandate: see RG 79.86, Table 3. (f) A licensee may explain its policy in relation to the commencement of research coverage but should not commit to research coverage of an issuing company (whether expressly or impliedly). (g) Any pitch document should contain a brief explanation of the licensee’s policy on the independence of its research and information on how a copy of the relevant sections of those policies can be accessed. (h) Corporate advisory mandates should not include any commitment or inducement to provide research. (i) If a research analyst obtains inside information during the pitching process, they should follow their licensee’s internal protocols for the management of inside information: refer to Section C. (j) Compliance or another control function should be aware of and monitor, or undertake periodic reviews to determine, the effectiveness of the licensee’s arrangements. Page 26 REGULATORY GUIDE 264: Sell-side research © Australian Securities and Investments Commission December 2017 Page 26 RG 264.89 If a research analyst meets with an issuing company or its advisers during pitching there is a risk to the objectivity or independence of the research analyst. For instance, the issuing company may ask a research analyst to comment on valuation information about the company or its peers which the issuing company may then take into account in deciding to award a role in a capital raising transaction. Guidelines for research analyst interactions with the issuing company during pitching D4 (a) During the pitching stage, a licensee’s research analysts should not communicate with or meet the issuing company or its advisers unless the research analyst has been wall-crossed and does not produce research in relation to the issuing company or transaction until the transaction has been completed. (b) If research analysts obtain inside information during the pitching process they should follow their licensee’s internal protocols for the management of inside information: see Section C. (c) Compliance or another control function should be aware of and monitor, or undertake periodic reviews to determine, the effectiveness of the licensee’s arrangements. RG 264.90 The pitching stage ends once a licensee has been advised that the issuing company has selected a licensee to manage a capital raising transaction or it is clear the transaction will not proceed. Post-appointment RG 264.91 Once an issuing company has selected a licensee or licensees for a capital raising transaction the licensee starts preparing for the transaction. Sometimes work may start before a formal mandate letter is signed. Activities during this period may include preparing the offering documentation (e.g. disclosure document and investor presentations), due diligence inquiries, site visits, preparing and conducting marketing and investor roadshows, preparing the investor education report (IER), settling the selling syndicate, providing advice to the company on pricing and valuation, launching the deal, seeking bids from investors, recording bids received, allocating shares to potential investors and settlement of the transaction. We refer to this as the ‘post-appointment’ period. RG 264.92 The role of research analysts in the post-appointment period may include preparing the IER and assisting with the marketing of this research to potential investors. Market practice sometimes involves research analysts participating in the due diligence process, attending site visits and presenting their views of the company to their licensee’s internal committees as part of their approval process (e.g. investment or underwriting committees). Page 27 REGULATORY GUIDE 264: Sell-side research © Australian Securities and Investments Commission December 2017 Page 27 RG 264.93 Research analysts can provide input to internal underwriting approval processes to determine whether a licensee will underwrite a potential transaction (commonly referred to as the underwriting or