Canada: Continuing Obligations Of A Company Listed On AIM – London´s Alternative Market

A company that has been admitted to AIM - a market operated by the London Stock Exchange - must comply with the AIM Rules for Companies (‘AIM Rules’). The responsibility for such compliance lies with the company and its directors (Rule 29). The admission requirements and the continuing obligations of an AIM company set out in the AIM Rules are explained below.

In order to apply for admission to AIM, a company must:

• Appoint and retain a nominated adviser (the ‘Nomad’) at all times (Rules 1 and 32). The London Stock Exchange (‘LSE’) maintains a register of firms approved for this purpose. Under Rule 37, the nominated adviser is required to, among other things, confirm to the LSE that the directors of the company have received satisfactory advice and guidance as to compliance with the AIM Rules, both in relation to the listing process and thereafter and that the applicant and its securities are appropriate to be admitted. In addition, the nominated adviser must be available at all times to advise and guide the directors of the AIM company for which it acts on an ongoing basis about their compliance obligations under the AIM Rules. If an AIM company ceases to have a nominated adviser, the LSE will suspend trading in the company’s AIM securities.
• Appoint and retain a broker at all times (Rule 33). The broker may be the same firm as the nominated adviser and must be a member of the LSE.
• Have no restrictions on the free transferability of the securities that the company is seeking to admit to AIM (‘AIM Securities’). The AIM Securities must also have been unconditionally allotted and must be eligible for electronic settlement (Rules 30, 31 and 34). All securities within a class of AIM Securities must be admitted (Rule 31).
• Prepare an admission document (Rule 3). The admission document must include prescribed information on the company and its activities, including financial information and any projections, and details of its directors (Schedule 2 to the AIM Rules). The admission document must be made available free of charge for at least a month after admission to allow all prospective investors to make an informed decision on whether to invest in the company’s securities.
• Ensure that where the company’s business has not been independent and earning revenue for at least two years, the company’s ‘related parties’ (i.e. generally, directors of the company or any group company and the ‘substantial shareholders’, defined below) and ‘applicable employees’ (i.e. generally, employees of the company or any group company who have a 0.5% interest in the AIM Securities as at the date of admission, agree not to dispose of any interest in the company’s securities for one year from the date of admission of the securities (Rule 7). A ‘substantial shareholder’ is any person who holds any legal or beneficial interest directly or indirectly in ten per cent. or more of any class of AIM security or ten per cent. or more of the voting rights of the company.
• Comply with any special condition imposed by the LSE (Rule 8).

There are no minimum requirements in the AIM Rules as regards a company size, trading record or number of shares in public hands. Suitability for AIM admission is a matter for the opinion of the Nomad. The admission document is not reviewed or vetted by the LSE or any UK regulatory authority. This is the role of the nominated adviser. If the admission to AIM is made in conjunction with an offer of the company’s securities to the public for the purposes of the Public Offers of Securities Regulations 1995, SI1995/1537 (‘Regulations’), the admission document will constitute a prospectus under the Regulations and must be filed with the UK Registrar of Companies. In those circumstances, the provisions in the Regulations relating to responsibility for prospectuses and compensation for misleading prospectuses will apply. Statutory provisions in the Financial Services and Markets Act 2000 (‘FSMA’) relating to misleading statements and practices (section 397 of the FSMA) and other common law obligations may also apply in any event.

Admission documents under the AIM Rules must in any event comply with the content requirements of the Regulations. Pursuant to the Regulations, an admission document/prospectus required to contain all such information as investors would reasonably require, and reasonably expect to find there, for the purpose of making an informed assessment of the assets and liabilities, financial position, profits and losses, and prospects of the issuer of the securities and the rights attaching to those securities. This additional information is that which is within the knowledge of any person responsible for the admission document/prospectus or which it would be reasonable for him to obtain by making enquiries. In determining the nature of this information, regard is to be had to the nature of the securities and of the issuer of the securities.

A further admission document only will be required to be prepared by an AIM (Rule 24) Company when:

• it is required to issue a prospectus under the Regulations for a further issue of AIM Securities;
• it seeks admission for a new class of securities;
• it undertakes a ‘reverse takeover’ under Rule 13 (see below).

Applicants to AIM who already have securities listed on an AIM Designated Market (including ASE, Deutsche Bourse, Euronet, JSE, NAXDAW, NYSE, Stockholmborsen, Swiss Exchange, TSX) do not need to prepare an admission document but may rely on their published audited accounts, if prepared in accordance with UK or US GAAP or IAS, and other public information. Those accounts (together with audited interim accounts if they are more than 9 months old) and all other information as would be required for an admission document just need to be made available on a website available to the public.

Once a company has been admitted to AIM, it will be required to comply with continuing obligations under the AIM Rules. Any information required to be disclosed under the AIM Rules must be delivered to a Regulatory Information Service or ‘RIS’ by the AIM company no later than it is published elsewhere. A RIS is a service approved by the LSE for the distribution to the public of AIM announcements and the AIM company must retain a RIS (Rule 9). The AIM company must take reasonable care that any information it notifies is not misleading, false or deceptive and does not omit anything likely to affect the import of such information (Rule 9).

• Disclosure of Price-Sensitive Information

An AIM company must notify the RIS without delay of any new developments which are not public knowledge concerning a change in its financial condition, its sphere of activity, the performance of its business or its expectation of its performance, which, if made public, would be likely to lead to a substantial movement in the price of its AIM securities (Rule 10).

• Disclosure of Substantive Transactions

Save in the case of a reverse takeover, no prior shareholder approval is required by the AIM Rules before corporate transactions may be effected. Disclosure is, however, required. An AIM company must notify the RIS without delay as soon as the terms of any ‘substantial transaction’ are agreed. A ‘substantial transaction’ is one that exceeds ten per cent. in any of the ‘class tests’ specified in the AIM Rules (Rule 11).

Gross assets the subject of the transaction x 100%
Gross assets of the AIM company

For these purposes the "Gross assets of the AIM company" means the total of its fixed assets plus total current assets. These figures should be taken from the most recent of the following:

• the most recently notified consolidated balance sheet; or
• where an admission document has been produced for the purposes of admission following a reverse takeover, any pro forma net asset statement published in the admission document may be used, provided it is derived from information taken from the last published audited consolidated accounts and that any adjustments to this information are clearly shown and explained; or
• in a case where transactions are aggregated pursuant to rule 14 of the AIM Rules¹, the most recently notified consolidated balance sheet (as at a date prior to the earliest aggregated transaction).

The "Gross assets the subject of the transaction" means:

• in the cases of an acquisition in an undertaking which will result in consolidation of the undertaking’s net assets in the accounts of the AIM company, or a disposal of an interest in an undertaking which will result in the undertaking’s net assets no longer being consolidated in the accounts of the AIM company, the assets the subject of the transaction means the value of 100% of the undertaking’s assets, irrespective of what interest is acquired or disposed.
• in the case of an acquisition or disposal which is not a material acquisition/disposal, the assets the subject of the transaction means:

– for an acquisition, the consideration plus any liabilities assumed; and

– for a disposal, the book value of the assets attributed to that interest in the AIM company's last audited accounts.

• in the case of an acquisition of assets other than an interest in an undertaking, the assets the subject of the transaction means the book value of those assets.

Profits attributable to the assets the subject of the transaction x 100%
Profits of the AIM company

For these purposes "Profits of the AIM company" means profits before taxation and extraordinary items as stated in the following:

• the last published annual consolidated accounts;
• the last notified preliminary statement of annual results; or
• in a case where transactions are aggregated pursuant to rule 14 of theAIM Rules, the last such accounts or statement prior to the earliest transaction.

In a case of an acquisition or disposal of an interest in an undertaking where accounting consolidation applies, the "profits attributable to the assets the subject of the transaction" means 100% of the profits of the undertaking irrespective of what interest is acquired or disposed.

Turnover attributable to the assets the subject of the transaction x 100%
Turnover of the AIM company

For these purposes the "Turnover of the AIM company" means the turnover figure as stated in the following:

• the last published annual consolidated accounts;
• the last notified preliminary statement of annual results; or
• in a case where transactions are aggregated pursuant to rule 14 of the AIM Rules, the last such accounts or statement prior to the earliest transaction.

In a case of an acquisition or disposal of an interest in an undertaking where accounting consolidation applies, the "turnover attributable to the assets the subject of the transaction" means 100% of the turnover of the undertaking irrespective of what interest is acquired or disposed.

Consideration x 100%
Aggregate market value of all the ordinary shares of the AIM company

For these purposes "Consideration" means the amount paid to the vendors, but the LSE may require the inclusion of further amounts.

• Where all or part of the consideration is in the form of securities to be listed, or traded on AIM, the consideration attributable to those securities means the aggregate market value of those securities.
• If deferred consideration is, or may be, payable or receivable by the AIM company in the future, the consideration means the maximum total consideration payable or receivable under the agreement.

Aggregate market value of all the ordinary shares of the AIM company" means the value of its enfranchised securities on the day prior to the notification of the transaction.

Gross capital of the company or business being acquired x 100%
Gross capital of the AIM company

For these purposes "Gross capital of the company or business being acquired" means the aggregate of:

• the consideration;
• if a company, any of its shares and debt securities which are not being acquired;
• all other liabilities (other than current liabilities), including for this purpose minority interests and
• deferred taxation; and
• any excess of current liabilities over current assets.

"Gross capital of the AIM company" means the aggregate of:

• the aggregate market value of its securities;
• all other liabilities (other than current liabilities), including minority interest and deferred taxation;
• and
• any excess of current liabilities over current assets .

The figures to be used must be the aggregate market value of the enfranchised securities on the day prior to the notification of the transaction.

In circumstances where these tests produce anomalous results or where the tests are inappropriate to the sphere of activity of the AIM company, the LSE may (except in the case of a transaction with a related party), disregard the calculation and substitute other relevant indicators of size, including industry specific tests. Only the LSE can decide to disregard one or more of the class tests, or substitute another test.

If a transaction falls within the definition of a ‘substantial transaction’, the AIM company must provide the LSE with the information specified in Schedule 4 to the AIM Rules including, among other things:

• particulars of the transaction, including the name of any company or business, where relevant;
• a description of the business carried on by, or using, the assets which are the subject of the transaction; and
• any other information necessary to enable investors to evaluate the effect of the transaction upon the AIM company.
• Disclosure of related party transactions (Rule 12):

This rule applies to any transaction whatsoever with a ‘related party’ which exceeds five per cent. in any of the ‘class tests’ specified above. An AIM company must notify the RIS without delay as soon as the terms of a transaction with a related party are agreed disclosing the following:

• the information specified in Schedule 4 to the AIM Rules (set out above);
• the name of the related party concerned and the nature and extent of their interest in the transaction;
• and
• a statement that with the exception of any director who is involved in the transaction as a related party, the AIM company’s directors consider, having consulted with its nominated adviser, that the terms of the transaction are fair and reasonable insofar as the holders of its AIM Securities are concerned.
• Shareholder approval of reverse takeovers (Rule 13):

A reverse takeover is an acquisition or acquisitions in a twelve month period that for an AIM company would:

• exceed 100 per cent. in any of the ‘class tests’ set out above;
• result in a fundamental change in its business, board or voting control; or
• in the case of an investing company, depart substantially from the investment strategy stated in its admission document.

Any agreement that would affect a reverse takeover must be:

• conditional on the consent of the holders of its AIM Securities being given in general meeting;
• notified to the RIS without delay disclosing the information specified in Schedule 4 to the AIM Rules (some of which are set out above) and insofar as it is with a related party, the additional information stated above under ‘Related party transactions’; and
• accompanied by the publication of an admission document in respect of the proposed enlarged entity and convening the general meeting.

Where shareholder approval is given for the reverse takeover, trading in the AIM securities of the AIM company will be cancelled. If the enlarged entity seeks admission, it must make an application in the same manner as any other applicant applying for admission of its securities for the first time.

• Other Disclosures

An AIM company must notify the RIS without delay of the following:

• Any ‘deals’ by directors including, insofar as available, the information specified in Schedule 5 to the AIM Rules. A ‘deal’ includes, among other things, any change whatsoever to the holding of the company’s AIM Securities in which the holder is a director or part of a director’s family including any sale or purchase, or any agreement for the sale or purchase of such securities and off-market deals. Schedule 5 to the AIM Rules sets out the information which should, if available, be provided to the RIS, which includes the identity of the director concerned, the price, amount and class of the AIM Securities concerned and the nature of the transaction;
• Any changes to the holding of a significant shareholder (i.e. a three per cent. holder) that increases or decreases such holding through a single percentage;
• The resignation, dismissal or appointment of any director;
• Any change in its accounting reference date or registered office address;
• Any material change between its actual trading performance or financial condition and any profit forecast, estimate or projection included in its admission document or otherwise made public on its behalf;
• Any decision to make any payment in respect of its AIM Securities;
• The reason for the issue or cancellation of any AIM Securities; and
• The resignation, dismissal or appointment of its nominated adviser or broker.

An AIM company must prepare a half-yearly report in respect of the six month period from the end of the financial period for which financial information has been disclosed in its admission document and at least every subsequent six months thereafter (apart from the final period of six months preceding its accounting reference date for its annual audited accounts). All such reports must be notified to the RIS without delay and in any event not later than three months after the end of the relevant period.

Annual accounts (Rule 17): An AIM company must publish annual audited accounts prepared in accordance with United Kingdom or United States generally accepted accounting practice or International Accounting Standards. These accounts must be sent to the holders of its AIM Securities without delay and in any event not later than six months after the end of the financial period to which they relate. These accounts must disclose any transaction with a ‘related party’, whether or not previously disclosed under the AIM Rules, where any of the ‘class tests’ (set out above) exceed 0.25 per cent. and must specify the identity of the related party and the consideration for the transaction.

Any document provided by an AIM company to the holders of its AIM Securities must be made available to the public at the same time for at least one month, free of charge, at an address notified to the RIS. The LSE must also be provided with copies of all such documents.

• Corporate Action Timetables (Rules 22 and 23):

An AIM company must inform the LSE in advance of any notification made to the RIS of the timetable for any proposed action affecting eh rights of the existing holders of its AIM Securities. Any amendments to the timetable, including amendment to the publication details of a notification, must be immediately disclosed to the LSE.

• Close Periods (Rule 19):

An AIM company must ensure that its directors and applicable employees do not deal in any of its AIM securities during a close period. In addition, the purchase or early redemption by an AIM company of its AIM securities or sale of any AIM securities held as treasury shares must not be made during a close period, i.e. 2 months prior to annual or half-yearly results or 1 month in the case of quarterly reporting together with any period when in the possession of unpublished price sensitive information. This rule will not apply, however, where such individuals have entered into a binding commitment prior to the AIM company being in such a close period where it was not reasonably foreseeable at the time such commitment was made that a close period was likely and provided that the commitment was notified at the time it was made. The LSE may permit a director or applicable employee of an AIM company to sell its AIM securities during a close period to alleviate severe personal hardship.

Rule 20 of the AIM Rules allows the LSE to require an AIM company to provide it with such information in such form and within such limit as it considers appropriate. The LSE may also require the AIM company to publish such information. If the LSE considers that a company has contravened the AIM Rules, it may fine or censure such company, publish the fact that it has been fined or censured and/or cancel the admission of its AIM securities (Rule 40). In taking these steps, the LSE will follow the procedures set out in the Disciplinary Procedures and Appeals Handbook. Any decision of the LSE in relation to the AIM rules can be appealed.