Proposed changes to the AIM Rules effective early 2007

Role of Nominated Adviser to be amplified; AIM companies to publish information on websites

Under London Stock Exchange proposals announced on 2 October, from early next year a dedicated rulebook for Nominated Advisers (Nomads) will set out in more detail a Nomad’s responsibilities towards its client company and the Exchange both at the time of admission to AIM and on a continuing basis. The responsibilities will be framed as general principles supported by non-exhaustive lists of specific tasks that a Nomad should “usually” perform in relation to matters such as assessing the suitability of a company for admission to AIM; due diligence on an applicant and its directors; preparation of the admission document; review of announcements; monitoring of trading; and changes to the board.

Although the new rulebook is intended to codify, rather than change, existing good market practice, Nomads will probably need to make various amendments to their agreements with client companies and to their procedures and compliance manuals.

No substantive changes will be made, however, to the existing Nomad eligibility criteria. In particular, the number and type of transactions that a firm must achieve in order to be eligible to be considered for nominated adviser status will remain the same.

New rules for AIM companies will require them to put on their websites their admission document, all financial results and circulars to shareholders, all announcements made to the market over the last 12 months, and other information about the company’s business and any restrictions on transferring shares. Issuers will be given six months from when the new rules become effective to establish a website (or new section of an existing website) with appropriate precautions to secure the content and, where necessary, to restrict access to certain documents.

The proposed changes, which follow a strategic review by the Exchange of the operation of AIM and its regulatory structure, are designed to meet criticisms from investors that the Nomad regime is insufficiently robust, and that the quality of companies being admitted to AIM has declined over the last few years. Consultation on the proposals closes on 1 December and the new rules are likely to come into effect in “early 2007”.

New rulebook for Nomads

At present, any firm that wishes to act as a Nomad must satisfy the eligibility conditions and discharge certain ongoing responsibilities in accordance with the Exchange’s ‘Nominated Adviser Eligibility Criteria’. Rule 39 of the AIM Rules sets out various specific functions that a Nomad must perform, including:

• confirming to the Exchange in writing that the directors of a prospective AIM company have received sufficient guidance on their responsibilities and that the Nomad is satisfied that the company is “appropriate” to be admitted to AIM;
• advising the directors of an AIM company on compliance with the AIM rules;
• submitting a nominated adviser’s declaration in respect of any client company whenever such company is required to produce an admission document;
• provide the Exchange with any other information, in such form and within such time limits as the Exchange may reasonably require;
• reviewing regularly its client company’s actual trading performance and financial condition against any profit forecast, estimate or projection included in the admission document or otherwise made public on behalf of the AIM company in order to help determine whether an announcement should be made; and
• acting with due skill and care at all times.

Updating and clarification of existing rules applicable to Nomads

Proposed key changes to the obligations of a Nomad are highlighted below.

The level of skill and care expected of a Nomad

Schedule 3 of the Nomad rulebook will set out in more detail a Nomad’s responsibilities towards its client company and the Exchange both at the time of admission to AIM and on a continuing basis. These responsibilities are framed as general principles supported in each case by a non-exhaustive list of specific tasks that a Nomad should “usually” perform in relation to matters such as due diligence on an applicant and its directors; preparation of the admission document; AIM Rule compliance; review of announcements; monitoring of trading; and changes to the board.

In assessing whether a Nomad has discharged its duty to act with due skill and care, the Exchange will assess the conduct or judgement of the Nomad against the obligations set out in the Nomad rulebook (in particular the responsibilities specified in Schedule 3), the AIM Rules themselves, and “general market practice and opinion”. In other words, where the Nomad rulebook itself or the AIM Rules are not wholly clear, the Exchange will apply an objective test set by reference to what is reasonably expected by the market. During the course of compliance visits, the Exchange will use the principles and specific tasks detailed in Schedule 3 as the basis for assessing the standard of work performed by a Nomad.

As well as those matters currently set out in Rule 39 of the AIM Rules, the following responsibilities will in particular be specified:

• Suitability for admission to AIM: “In assessing the appropriateness of an applicant and its securities for AIM, a nominated adviser should achieve a sound understanding of the applicant and its business.” To do so, it should usually:
  • ensure it has, or has appropriate access to, appropriate experience in the applicant’s sector, using in-house specialists or external experts where necessary;
  • consider the applicant’s sector, proposition, business plan or similar, historical financial information and other corporate information;
  • consider any issues relating to its country of incorporation and operation;
  • undertake a visit of the applicant’s material site(s) of operation and meet the directors and key managers and, if necessary, any other material stakeholders.
• Board and individual directors: The Nomad should investigate and consider the suitability of each director and proposed director of the applicant, and the efficacy of the board as a whole. In so doing, it should usually:
  • issue and review directors’ questionnaires and review directors’ CVs, and test the information revealed, for example by conducting third party checks, press searches and Companies House checks, and taking up references. Where appropriate, the same procedures should be followed for key managers and consultants who are disclosed in the admission document;
  • consider undertaking such investigations in relation to substantial shareholders at admission, especially where there is uncertainty as to their identity or where they are not established institutions, in particular to ascertain the existence of shadow or de facto directors;
  • consider each director’s suitability and experience in relation to their (proposed) company role, and whether the board of directors as a whole will be able to provide governance appropriate to the company’s type, size and expected profile;
  • follow similar procedures where a director joins or leaves the board.
• Due diligence: The Nomad should “oversee the due diligence process, satisfying itself that it is appropriate to the applicant and transaction and that any material issues arising are dealt with or otherwise do not affect the appropriateness of the applicant for AIM.” In so doing, it should usually:
  • satisfy itself that appropriate financial and legal due diligence is undertaken by an appropriate professional firm;
  • ensure that proper reviews are carried out in relation to the company’s working capital and financial reporting and control systems (usually including reports and statements by accountants to the applicant);
  • consider whether commercial, specialist (e.g. intellectual property) and/or technical due diligence is required and satisfy itself that it is undertaken where required;
  • consider all due diligence and other reports, and ensure that all material issues identified are dealt with.
• Admission document: The Nomad should “oversee and be actively involved in the preparation of the admission document, satisfying itself that it has been prepared in compliance with the AIM Rules and that the statements and information included in it have been made after due and careful enquiry.” It should usually:
  • lead the drafting of those sections of the admission document that relate to the business of the applicant (usually the Key Information and Part 1 sections) and the risk factors, ensuring that they take account of matters raised by due diligence;
  • be satisfied that the financial and additional information sections have been appropriately prepared;
  • liaise with the AIM Regulation team if it needs to clarify the interpretation of any rule or to seek a derogation.
• Nomad review of announcements: The Nomad should “undertake a prior review of relevant [announcements] made by an AIM company with a view to ensuring AIM Rule compliance.” In so doing, it should usually:
  • review in advance all announcements to be made by a client company to ensure compliance with the AIM Rules. However, the review process should not be allowed to delay the making of an announcement that is price-sensitive. Advance review may not be necessary where the Nomad reasonably believes that the company’s directors are sufficiently aware of their obligations under the AIM Rules;
  • ensure that the Nomad’s name and a contact name are included on all announcements that it reviews, other than routine ones.
• Monitoring of trading in client company shares: The Nomad should “monitor (or have in place procedures with third parties for monitoring) the trading activity in securities of an AIM company for which it acts, especially when there is unpublished price-sensitive information in relation to the AIM company.” In so doing, the Nomad should usually:
  • use suitable alerts or other triggers to alert it to substantial price or trading movements. This can be satisfied via the broker;
  • if there is a substantial movement, contact the client company to ascertain whether an announcement or other action is required;
  • consider whether the press should be monitored for evidence of a leak.

Problems with a client company

The new rulebook will make clear that it is imperative that a Nomad contacts the Exchange immediately if it has concerns about the appropriateness of an AIM company post-admission.

Nomads will also have a duty to advise the Exchange if they become aware that a client company has or may have breached the AIM Rules. This is similar to the obligation on sponsors of Official List companies to disclose to the FSA “any material information relating to… a listed company of which it has knowledge which addresses non-compliance with the listing rules or disclosure rules” (LR 8.3.5 (1)). When that Listing Rule was introduced on 1 July 2005, sponsors were concerned that they could find themselves in a position where their obligations to the FSA conflicted with those to their listed company clients, but in practice the rule does not seem to have caused significant difficulties.

Another new rule will give the Exchange power to direct the actions of Nomads in exceptional circumstances in order to preserve the orderliness or reputation of AIM. This proposed rule mirrors that contained in the Exchange's secondary market trading rules and is said to be “reserved only for the most serious situations”.

Nomad annual returns

Nominated advisers will have to submit an Annual Return to the Exchange giving details of the “relevant transactions” they have completed in the period and the “qualified executives” they employ. The Exchange will review this information as part of its risk assessment of nominated advisers both during the compliance visits it undertakes and when it assesses whether a Nomad continues to be eligible.

The Exchange expects that the first of these returns will be issued by early 2007 in respect of the calendar year 2006.

Nomad record-keeping and compliance

Existing rules requiring Nomads to retain for at least three years sufficient records to provide an audit trail of key advice given to client companies will be beefed up. In particular, records will need to be kept of all key discussions held with, and key decisions made in respect of, each client company, including “the basis for advice given and key decisions taken, such as internal considerations and any actions taken prior to the advice being given.” When performing a formal review of a Nomad, the Exchange will look for clear evidence that at least the matters set out in Schedule Three have been considered and appropriate actions taken or, if the Nomad has concluded that a particular action is not required, clear evidence of such a conclusion and the reason for it.

The Exchange states that it will be extending its programme of Nomad compliance visits during the course of 2007. As part of these visits the Exchange will seek to verify that Nomads have incorporated all the new rules into their operating procedures.

AIM companies

The following are the key changes that will affect AIM companies.

Website disclosure

In order to ensure that investors can access a minimum level of information about each AIM company at all times, the Exchange proposes to require each AIM company to maintain a website on which key company information will have to be disclosed and kept up to date. Existing and new AIM companies will have six months to comply with this new rule, starting from the date the new rules come into effect.

Information to be kept on the website includes:

• a description of the company’s business;
• the names of its directors and brief biographical details on each, as would normally be included in an admission document;
• a description of the responsibilities of the members of the board of directors and details of any sub-committees of the board of directors and their responsibilities;
• the issuer’s country of incorporation and main country of operation;
• details of any other exchanges or trading platforms on which the company has applied or agreed to have its AIM securities admitted or traded;
• insofar as the issuer is aware, the percentage of AIM securities that are “not in public hands” and the identity and holdings of significant shareholders. Under a new definition, shares will not be in public hands where (amongst other things) they are held by directors, substantial shareholders and their associates; trustees of an employee share scheme or pension scheme established for the benefit of any of the company’s directors or employees; or any party which has entered into a lock-up agreement.

Under the draft rules, the issuer will have to update details of the percentage not in public hands, and of significant shareholders, at least every 6 months. It does not appear to be the Exchange’s intention to require issuers to send out section 212 notices at six-monthly intervals, but it would be preferable if the draft rules were amended to make this clear;

• where the company is not incorporated in the UK, a statement that the rights of shareholders may be different from the rights of shareholders in a UK incorporated company;
• details of any restrictions on the transfer of the AIM securities. Such restrictions are most likely to be those imposed in order to comply with the safe harbour provisions of Regulation S, which require the company to put in place arrangements to prevent US investors from purchasing shares during the “distribution compliance period”, which is usually between one and two years from closing of an issue. However, they could also include restrictions in the company’s articles of association that are designed to prevent more than a certain percentage of the company’s shares being held by investors in a particular country;
• the issuer’s most recent annual report and all half-yearly or similar reports published since the last annual report;
• all announcements to the market made by the company in the past 12 months;
• any prospectus, admission document, circular or similar shareholder publication published within the past 12 months; and
• details of the company’s Nomad and other key advisers.

In some cases, it will be possible simply to direct users to those sections of the issuer’s admission document where such information can be found.

The same information will also have to be included in a prospective AIM company’s pre-admission announcement.

Where an admission document or prospectus is published on the issuer’s website, it may be necessary to include electronic mechanisms to prevent the document being accessed by investors who are domiciled in certain overseas jurisdictions such as the US, Canada, Australia and Japan.

Ongoing disclosure of directors’ convictions etc

At present, an admission document must contain details for each director of any unspent convictions in relation to indictable offences; any bankruptcy or IVA; any companies which have gone insolvent where that person was a director at the time or within the previous 12 months; any public criticism of the director made by a regulatory authority; and any disqualification order against him.

Under the new rules, where any such information changes after admission, details will have to be announced to the market.

Reverse takeovers

New guidance notes to Rule 14 will make clear that the Exchange expects an issuer that is involved in negotiations that may lead to a reverse takeover to keep the fact of those negotiations confidential until such time as it can announce that a binding agreement has been concluded. Wherever possible, that announcement should be accompanied by publication of an admission document. If for any reason this is not possible, the issuer’s Nomad should seek the advice of the Exchange at the earliest opportunity.

Additional wording on the front of admission documents

In addition to the current standard wording on the front of an admission document that “AIM is a market designed primarily for emerging or smaller companies to which a higher investment risk tends to be attached than to larger or more established companies...”, the following wording will have to be included:

“In accordance with the AIM Rules for Companies and AIM Rules for Nominated Advisers (together the “AIM Rules”), [name of nominated adviser] is obliged to use all due skill and care in performing its role as nominated adviser to [name of applicant] pursuant to the AIM Rules for Companies and has confirmed to the London Stock Exchange that:

(a) it has satisfied itself that the directors have received advice and guidance as to the nature of their responsibilities and obligations to ensure compliance by [name of applicant] with the AIM Rules for Companies, and

(b) having made due and careful enquiry (i) all relevant requirements of the AIM Rules for Companies have been complied with (including in relation to the preparation of this Admission Document) and (ii) [name of nominated adviser] is satisfied that the [name of applicant] and its AIM securities are appropriate to be admitted to AIM.”

Disciplinary procedures

The Exchange proposes to make certain changes to the AIM Disciplinary Procedures and Appeals Handbook to include:

• an explanation of the factors considered when assessing whether or not to pursue disciplinary action;
• introducing the concept of a ‘warning notice’. Such notices will be issued to an AIM company or a Nomad when the Exchange, upon conclusion of an investigation, believes that a breach of the AIM rules has occurred but the offence does not justify a fine, censure or more serious sanction. A warning notice will form part of the compliance record of the AIM company or Nomad and will be taken into account in the event that any further AIM Rule breaches occur; and
• an increase to the cap on fines which can be levied by the AIM Executive Panel on an AIM company and/or its Nomad, from £25,000 per breach to £50,000 per breach.

Further information

AIM Notice 24, summarising the key changes, can be found here.

The proposed new rulebook for Nomads can be found here.

A marked-up version of the AIM Rules, showing the proposed changes, can be found here.

A marked-up version of the AIM Disciplinary Procedures and Appeals Handbook, showing the proposed changes, can be found here.