Under MAR, AIM companies will be required to disclose inside information to the market as soon as possible, with delay only permitted in limited circumstances. Although this is similar to the general disclosure requirement which currently applies to AIM companies under AIM Rule 11 it is not identical and there are some significant additional requirements that apply under MAR.
Notwithstanding this overlap, AIM Rule 11 is being retained, with AIM companies being subject to both regimes. In this context, Inside AIM notes that the fact that an AIM company may have received legal advice that is has complied with MAR will not be a defence to a breach of the AIM Rules.2 In relation to delaying disclosure, AIM Regulation has indicated (in AIM Notice 45) that in parallel with considering whether delay is permitted under MAR, AIM companies must also consider whether it is permitted under the AIM Rules.
AIM Regulation recognises that this approach means that AIM companies will be subject to the remit of both AIM Regulation and the FCA and notes that it intends to work closely with the FCA to co-ordinate their approach and minimise duplication of activities.3 It has also indicated that it will keep the operation of AIM Rule 11 under close review.
Two of the most significant differences for AIM companies under MAR relate to situations where a decision has been taken to delay the disclosure of inside information – these are:
- Detailed record keeping requirements that will apply where disclosure is delayed – including (amongst other things) the time and date when the decision to delay was made, the persons responsible for deciding to delay and for ongoing monitoring of the delay and evidence of the fulfilment of the conditions permitting delay. In this context, companies should consider whether it might be appropriate (if they do not already do so) for the board to delegate responsibility for decisions regarding inside information and disclosure to a committee – whether this is appropriate will depend on a number of factors including the size and composition of the board and the nature of the company’s operations.
- A requirement to notify the FCA, at the time the relevant information is disclosed to the market, that disclosure was delayed. In addition, if requested by the FCA, the company will have to provide a written explanation of how the conditions permitting delay were satisfied.
AIM companies will also need to comply with the MAR requirements around the format and content of notification of information to the market, including a requirement to post inside information that has been publicly disclosed on their website for a period of at least five years.