Newsletter: “The role of the NomAd on the new AIM Italia market”
A summary of the obligations and responsibilities of NomAd’s on the new AIM Italia market managed and operated by Borsa Italiana, under the Nominated Advisers Rules (NomAd Rules) and the Companies Rules.
AIM Italia – Obligations and responsibilities of NomAd’s
AIM Italia falls into the category of so called multilateral trading facilities pursuant to the MIFID Directive, and thus is not a “regulated market”; as a consequence, listing transactions and issuers listed on AIM Italia are not subject to the same control exercised by CONSOB on regulated markets.
In such legal framework, Borsa Italiana has attributed a fundamental role to the so called Nominated Adviser, or “NomAd“, which is the party responsible vis-à-vis Borsa Italiana for: (i) assessing the appropriateness of an applicant for AIM Italia; and (ii) advising and guiding an issuer in complying with the Companies Rules, both upon its admission and on an ongoing basis.
Premised on such responsibilities is the NomAd’s task to submit to Borsa Italiana the so called “Nominated Adviser’s Declaration”, in which the NomAd declares that the admission application and admission document comply with all applicable requirements under the Companies Rules and the NomAd Rules, that the issuer and its securities are appropriate for admission on AIM Italia and that the directors of the applicant are informed of the obligations under the Companies Rules.
In general, the NomAd must be always available for the issuer, which must seek advice from the NomAd whenever in doubt with respect to the interpretation of the Companies Rules. An issuer admitted on AIM Italia must have a NomAd at all times, or it would be suspended from trading or even cancelled.
Actual obligations
In order to fulfil its main responsibilities, a NomAd must:
– have full knowledge understanding of the issuer and its business, and maintain regular contacts with it;
– investigate the suitability of each director and consider the efficacy of the board as a whole;
– oversee the due diligence process prior to admission and be actively involved in the preparation of the admission document;
– verify that the issuer has in place procedures in order to comply with the Companies Rules and that the issuer understands its obligations under such rules;
– review in advance all relevant notifications to be made by the issuer and monitor the trading in its securities.
NomAd certification
Borsa Italiana certifies a party as a NomAd and includes it on the specific register it holds. The applicant must, inter alia:
– be a professional association or a corporation (i.e., individuals are not eligible);
– have at least two years experience in providing corporate finance advice, and have sufficient staff, including senior employees with adequate experience in public offerings;
– have adequate procedures in order to comply with the NomAd Rules.
Independence and conflicts
A NomAd must be independent from the issuer it acts for. Unless specific safeguards exist, which are deemed appropriate by Borsa Italiana, a NomAd may neither act as auditing firm, nor hold a participation in the issuer higher than 3%.
No partner, director, employee of a NomAd, or other individual related thereto, may hold the position of director of an issuer for which that NomAd acts. Furthermore, a NomAd must not be conflicted vis-à-vis the issuer it acts for.
In particular, the NomAd must neither act for different parties involved in an extraordinary transaction regarding the issuer, nor deal in the securities (or related financial products) of the issuer during a “close period”.
The Companies Rules expressly provide that, in order to evaluate its independence, the NomAd should also consider the size and nature of its credit exposure to the issuer, thus implicitly allowing a lender bank to act as NomAd for its own client/debtor. It has to be noted that the NomAd Rules do not prohibit a firm from acting simultaneously as both underwriter/placing agent and NomAd for an issuer.
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This newsletter only contains a general description and is not and should not be considered or relied on as legal advice. Should you wish further information concerning the topics addressed herein please contact Gianluigi Pugliese in our Rome office (+39 06 474831, g.pugliese@unlaw.it).
