Phorm, EPIC PHRM, listed on AIM. Declaration of significant Shareholders

Keith Mallen (Ataliwyd y cyfrif) made this Rhyddid Gwybodaeth request to The Financial Services Authority

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

Roedd y cais yn llwyddiannus.

Keith Mallen (Ataliwyd y cyfrif)

Dear Sir or Madam,

As I understand things companies listed on the LSE or AIM are required to publish notice when the level of shares held by any singular entity crosses given limits. For example 3% or 5%.

As a Delaware/Overseas registered company and according to their AIM Rule 26 Compliance Information on their website.

http://investors.phorm.com/aimrule26.php

http://investors.phorm.com/aimrule26.php...

"Significant shareholders - notification

As an overseas company, Phorm is not a DTR company for the purpose of the AIM Rules and, accordingly, shareholders are not legally bound to notify their interests in accordance with the provisions of the Disclosure and Transparency Rules. However, Phorm strongly encourages shareholders to notify Phorm if their shareholding exceeds 3% of the company’s issued share capital (a “Significant Shareholding”) and to further notify Phorm of any changes to a Significant Shareholding which increase or decrease such holding through any single percentage."

And the company has and is prepared to publish such information according to AIM Rule 26 on their website.

http://investors.phorm.com/aimrule26.php...

"Securities in issue, significant shareholders and percentage ‘not in public hands’

The details of the number of securities in issue, the number of securities held as treasury shares and, insofar as the Company is aware, the percentage of securities that is not in public hands together with, insofar as the Company is aware, the identity and percentage holdings of significant shareholders, are as follows:

As of 20 June 2009, the Company’s issued share capital comprises 17,195,196 common shares with a nominal value of $0.001 each (“Ordinary Shares”), each share having equal voting rights, none of which are held in treasury. Accordingly, the total number of common shares with voting rights is 17,195,196.

As of 20 June 2009, so far as the Company is aware, the following shareholdings hold 3% or more of the common share capital of the Company:

Kent Ertugrul 15.1%
Blackrock Investment Management 13.2%
Gestrust SA 6.3%
Meditor Capital Management 4.6%
Calyon 3.9%
Goldman Sachs Managed Funds 3.7%
Charles Stanley 3.6%
Majedie Investments: 3.1%
Insight Investments: 3.1%

In accordance with the AIM Rules, in so far as the Company is aware, the percentage of the Company's issued share capital that is ‘not in public hands’ is 15.1%."

The page at

http://investors.phorm.com/aimrule26.php

Is headed

"AIM Rule 26 Compliance Information

The following information is disclosed in accordance with Rule 26 of the AIM Rules. This page last updated July 2008."

Whilst, obviously, the page is maintained and updated with supposedly current information.

"As of 20 June 2009, so far as the Company is aware, the following shareholdings hold 3% or more of the common share capital of the Company:"

Indicating a certain lack of consistency.

Recently share trading in Phorm has been quite active. By my estimates, not to be trusted, something in the region of 10%-15% of the common shares have been traded and I might have expected such a volume would have had some impact on the levels held by significant shareholders.

This is since 6 July 2009, after Phorms last update of 20 June 2009 above, when BT announced their intentions regarding Phorms system.

Phorm indicates a willingness, although they are not legally required to do so, to operate, or otherwise ask others to operate, within the rules prescribed by AIM rule 26.

My concern is that the actual reporting being undertaken by the company is not being carried out on the basis of 'good faith' but rather it is being done according to an interpretation of the applicable rules and the opportunity to give misleading information.

Either they should comply fully with the AIM 26 rules and publish or otherwise announce changes in significant shareholdings in a timely manner as required or use their exemption as an 'Overseas Company' and publish no details.

Anything else would appear to be obfuscation.

Whilst I realise I might be misusing the system available for FOI requests in order to bring this subject to your attention I believe the points I have raised are valid and would request that you look into this matter.

Otherwise and Therefore My FOI request is

Please provide a list of significant shareholders in Phorm as required by AIM 26 rules.

I may periodically make this request again until you have clarified the situation with Phorms use, abuse or manipulation of 'rules' as they see fit.

Yours faithfully,

Keith Mallen

Freedom of Information,

Our ref: FOI1383

Dear Mr Mallen

Thank you for your request for information under the Freedom of
Information Act 2000 (the Act), for a "list of significant shareholders in
Phorm as required by AIM 26 rules".

Your request was received on 30 July 2009 and will be processed in
accordance with the Act.

There may be a fee payable for the information you have requested. If
that is the case, you will be informed of the likely charges before we
proceed. The fee must be paid before the information is released.

If you have any queries please contact us.

Yours sincerely

Information Access Team

Financial Services Authority

dangos adrannau a ddyfynnir

This communication and any attachments contains information which is
confidential and may be subject to legal privilege. It is for intended
recipients only. If you are not the intended recipient you must not copy,
distribute, publish, rely on or otherwise use it without our consent. Some
of our communications may contain confidential information which it could
be a criminal offence for you to disclose or use without authority. If you
have received this email in error please notify [email address]
immediately and delete the email from your computer.

The FSA reserves the right to monitor all email communications for
compliance with legal, regulatory and professional standards.

This email is not intended to nor should it be taken to create any legal
relations or contractual relationships. This email has originated from

The Financial Services Authority (FSA)

25 The North Colonnade,

Canary Wharf,

London

E14 5HS

United Kingdom

Registered as a Limited Company in England and Wales No.1920623.

Registered Office as above

Switchboard: 020 7066 1000

Web Site: http://www.fsa.gov.uk

*****************************************************************

Keith Mallen (Ataliwyd y cyfrif)

Dear Freedom of Information,

Your ref: FOI1383

Yo Thanks but seriously if you want to waste my space then say so.

As far as I need to be concerned, Read the message again. Phorm is prepared to report for advantage under AIM26

I would assume that if Phorm wanted to hold an AGM then they would have to write invite messages to their shareholders and will know who holds what.

Is this not the way things work?

I'm sure it is quite simple unless it is AIM and you need to explain something else.

Tah

Keith

Freedom of Information,

Our Ref: FOI1383

Dear Mr Mallen

Freedom of Information: Right to know request

Thank you for your request under the Freedom of Information Act 2000 (the
Act), for the following information :

`Please provide a list of significant shareholders in Phorm as required by
AIM 26 rules.'

Following a search of our paper and electronic records I am writing to
tell you that we do not hold the information you are seeking. I would
however make the following comments to provide context to this.

The FSA's major shareholdings disclosure regime is, by its very nature,
designed to make public information relating to those major shareholdings,
including increases and decreases in holdings. Where this disclosure
regime applies, a list of major shareholders is considered to be publicly
available information. More information on the overall policy intention of
this regime can be found on the FSA's website in the following
publications:

[1]http://www.fsa.gov.uk/pubs/cp/cp06_04.pdf (Chapter 3)

[2]http://www.fsa.gov.uk/pubs/ukla/list14_a... (Section 3)

Further, the detailed requirements under the FSA's major shareholdings
disclosure regime can be found at:

http://fsahandbook.info/FSA/html/handboo...

As you are may be aware, Phorm Inc is a US incorporated and AIM quoted
company. We bring to your attention the following text from our List! 14
Newsletter of April 2007:

3.6 UK issuers on prescribed markets. Issuers and shareholders of UK
public companies traded on a prescribed market such as AIM or PLUS must
comply with DTR5. Non-UK issuers on these markets are not required to
comply with DTR5.

You will therefore see that the FSA's rules in this area do not apply to
Phorm Inc or investors in Phorm. Further, you advise that the information
you seek is in respect of AIM Rule 26. AIM is a market owned and regulated
by the London Stock Exchange (LSE). Queries regarding the interpretation
of or compliance with the AIM Rules can be directed to the AIM Regulation
team, whose contact details are attached below:

[3]http://www.londonstockexchange.com/compa...

If you have any queries please contact me.

Yours sincerely

K. Edwards

Information Access Team

dangos adrannau a ddyfynnir

This communication and any attachments contains information which is
confidential and may be subject to legal privilege. It is for intended
recipients only. If you are not the intended recipient you must not copy,
distribute, publish, rely on or otherwise use it without our consent. Some
of our communications may contain confidential information which it could
be a criminal offence for you to disclose or use without authority. If you
have received this email in error please notify [email address]
immediately and delete the email from your computer.

The FSA reserves the right to monitor all email communications for
compliance with legal, regulatory and professional standards.

This email is not intended to nor should it be taken to create any legal
relations or contractual relationships. This email has originated from

The Financial Services Authority (FSA)

25 The North Colonnade,

Canary Wharf,

London

E14 5HS

United Kingdom

Registered as a Limited Company in England and Wales No.1920623.

Registered Office as above

Switchboard: 020 7066 1000

Web Site: http://www.fsa.gov.uk

*****************************************************************

References

Visible links
1. http://www.fsa.gov.uk/pubs/cp/cp06_04.pdf
2. http://www.fsa.gov.uk/pubs/ukla/list14_a...
3. http://www.londonstockexchange.com/compa...

Freedom of Information,

Our Ref: FOI1387

Dear Mr Mallen

Freedom of Information: Right to know request

Thank you for your request under the Freedom of Information Act 2000 (the
Act), for the following information in relation to an AIM-quoted company's
use of Regulatory Information Services (RIS):

1. `Please provide details of the checks and measures you have in place
to ensure that such abuse of the available reporting systems is
prevented.

2. Please provide details of information provided to listed companies
which explains use of the reporting systems available.

3. Please provide details of penalties that may be applied should a
company choose to abuse such systems.'

In relation to point 1of your request, a specific obligation within the
FSA rules exists to prevent a listed company (companies admitted to the
Official List - distinct from AIM-quoted companies) from combining, in a
manner likely to be misleading, a RIS announcement with the marketing of
its activities. Information pertaining to this obligation can be found in
the Disclosure and Transparency Rules 1.3.5. A link that section of the
FSA's Handbook is attached below:

[1]http://fsahandbook.info/FSA/html/handboo...).

From your email of 1 August 2009, we note that you are aware that there
are AIM rules that apply to the AIM-quoted companies' use of Regulatory
Information Services. You may also see from the London Stock Exchange's
(LSE) website that AIM is a market regulated by them (rather than the FSA,
though some FSA rules apply to the AIM market). The FSA nonetheless
supervises the London Stock Exchange as a Recognised Body within the terms
of the Recognised Bodies Regime, details of which are on the FSA's website
at the following we address:

[2]http://fsahandbook.info/FSA/html/handboo....

The LSE's AIM Regulation team oversees compliance with the AIM rules. The
contact details of AIM Regulation team can be found at:

[3]http://www.londonstockexchange.com/compa...

Whilst the FSA may engage with the AIM Regulation Team and the LSE if it
has reason to believe that AIM/LSE are not overseeing compliance with the
AIM rules, it is for the AIM Regulation team to consider AIM companies'
compliance with their rules. However, should the FSA have reason to
believe that a failing had occurred at an RIS that led to the incorrect
classification of a market announcement, we may review this situation with
the RIS concerned.

In regard to point 2, each Regulatory Information Service is approved by
the FSA and is required to comply with the obligations contained in a
document titled 'Criteria for Regulated Information Services' which can be
found at the following link.

[4]http://www.fsa.gov.uk/pubs/ukla/ris.pdf

Additional information about the RIS regime can be found at:

[5]http://www.fsa.gov.uk/Pages/Doing/UKLA/r...

In relation to points 3 of your request, should the FSA believe that its
own regulations have been breached, (for instance, market abuse had
occurred) in contravention of the Code of Market Conduct
([6]http://fsahandbook.info/FSA/html/handboo...) or a false or
misleading statement had been made by a company in contravention of s397
of FSMA, a range of penalties may be applied by FSA. These could include a
public censure, an unlimited fine or criminal sanction. The penalties
available to us are set out in the FSA handbook which I have attached
below:

[7]http://fsahandbook.info/FSA/html/handboo...

However, if an AIM company has not complied with an AIM rules then it is
for AIM Regulation to consider any appropriate penalty.

We do note however, in respect of your concern that on 3 June 2009, Phorm
Inc, an AIM-quoted company may have used `RNS', a Regulatory Information
Service to announce information of a marketing nature that you feel should
have been announced by another means - `RNS Reach' - when the relevant
announcement is viewed by the LSE's website displays this announcement as
being made under an `RNS Reach' headline:
[8]http://www.londonstockexchange.com/excha....
It is possible that the www.iii.co.uk website that you appear to have been
viewing this announcement has not displayed this distinction.

If you have any queries please contact me.

Yours sincerely

K. Edwards

Information Access Team

dangos adrannau a ddyfynnir

This communication and any attachments contains information which is
confidential and may be subject to legal privilege. It is for intended
recipients only. If you are not the intended recipient you must not copy,
distribute, publish, rely on or otherwise use it without our consent. Some
of our communications may contain confidential information which it could
be a criminal offence for you to disclose or use without authority. If you
have received this email in error please notify [email address]
immediately and delete the email from your computer.

The FSA reserves the right to monitor all email communications for
compliance with legal, regulatory and professional standards.

This email is not intended to nor should it be taken to create any legal
relations or contractual relationships. This email has originated from

The Financial Services Authority (FSA)

25 The North Colonnade,

Canary Wharf,

London

E14 5HS

United Kingdom

Registered as a Limited Company in England and Wales No.1920623.

Registered Office as above

Switchboard: 020 7066 1000

Web Site: http://www.fsa.gov.uk

*****************************************************************

References

Visible links
1. http://fsahandbook.info/FSA/html/handboo...
2. http://fsahandbook.info/FSA/html/handboo...
3. http://www.londonstockexchange.com/compa...
4. http://www.fsa.gov.uk/pubs/ukla/ris.pdf
5. http://www.fsa.gov.uk/Pages/Doing/UKLA/r...
6. http://fsahandbook.info/FSA/html/handboo...
7. http://fsahandbook.info/FSA/html/handboo...
8. http://www.londonstockexchange.com/excha...

Keith Mallen (Ataliwyd y cyfrif)

Dear K Edwards

Sounds like it is Pub time and you have answered both of my FOI requests to the FSA, assuming I haven't got a dangler elsewhere, within one of the requests.

As you might know, and I almost admitted as much, these were not strictly FOI requests but rather something questioning your procedures.

I will have to read harder.

Otherwise thanks for the information and enjoy the weekend.

Cheers

Keith Mallen

Gadawodd J Donahue anodiad ()

Does the Exemption to DTR5 also apply to "Phorm UK Inc" which is a UK Registered Company "subsidiary of Phorm Inc", which Phorm Inc conveniently use when they wish to "imply" that they are a UK Company?

Gadawodd Keith Mallen (Ataliwyd y cyfrif) anodiad ()

Thanks J Don. I may have been smurfed.

I'll have a few more beers and babble a 'proper' reply in the expectation of more smurf.

In this case I was arguing on the basis of implied acceptance by Phorm of the reporting regulations for their own advantage.

Keith

Keith Mallen (Ataliwyd y cyfrif)

Dear K. Edwards

Since I am in a suitably bad mood and you chose to dross off two of my requests by replying for both on this particular one...

"As you are may be aware, Phorm Inc is a US incorporated and AIM quoted company. We bring to your attention the following text from our List! 14
Newsletter of April 2007:

3.6 UK issuers on prescribed markets. Issuers and shareholders of UK public companies traded on a prescribed market such as AIM or PLUS must comply with DTR5. Non-UK issuers on these markets are not required to comply with DTR5.

You will therefore see that the FSA's rules in this area do not apply to Phorm Inc or investors in Phorm.

Further, you advise that the information you seek is in respect of AIM Rule 26. AIM is a market owned
and regulated by the London Stock Exchange (LSE).

Queries regarding the interpretation of or compliance with the AIM Rules can be directed to the AIM Regulation team, whose contact details are attached below:

http://www.londonstockexchange.com/compa...

Please do not refer me to one of the companies you are supposed to regulate so I can go through the same lack of dialog. Try to do your job properly and refer the query to them yourself for an appropriate response.

I will assume that,

"We bring to your attention the following text from our List! 14 Newsletter of April 2007:"

Means that this is Your! responsibility.

I will refer you back to my previous question...

http://www.whatdotheyknow.com/request/ph...

As far as I need be concerned either they report according to Your! rules or they do not. Otherwise, by admission, you are giving them 'carte blanche' to lie.

I and many others might, foolishly, assume that the FSA engenders a certain level of confidence in investments on the stock market either as a direct result of your oversight or as a result of your oversight of those you claim to regulate.

"You will therefore see that the FSA's rules in this area do not apply to Phorm Inc or investors in Phorm."

That statement and your reply just destroyed your credibility, not that you had much in the first place.

FOI Request

Here you go, tin of worms, care to try and put the lid back on it again?

Yours ever so sincerely,

Keith Mallen

Keith Mallen (Ataliwyd y cyfrif)

Dear K Edwards

Since I have got myself in a bad mood again..

"We do note however, in respect of your concern that on 3 June 2009, Phorm Inc, an AIM-quoted company may have used 'RNS', a Regulatory Information Service to announce information of a marketing nature that you feel should have been announced by another means - 'RNS Reach' - when the relevant announcement is viewed by the LSE's website displays this announcement as being made under an 'RNS Reach' headline: http://www.londonstockexchange.com/excha...
news/market-news-detail.html?announcementId=10050637.

It is possible that the www.iii.co.uk website that you appear to have been viewing this announcement has not displayed this distinction."

I actually spent a bit of time and put that one together to get to the proper RNS-Reach statement.

Thank you for that and my apologies for being a bit of a blunderbuss. I might get there eventually. However...

http://www.iii.co.uk/about/

"Interactive Investor Trading Limited, trading as "Interactive Investor", is authorised and regulated by the Financial Services Authority."

Oh really. So why are they reporting RNS-Reach as RNS

Yours faithfully,

Keith Mallen