The Disciplinary Committee at NASDAQ OMX Stockholm AB (the “Exchange”) has found that Ortivus AB (“Ortivus”) has contravened the NASDAQ OMX Rulebook for Issuers (the “Rulebook”) regarding disclosure rules and has therefore ordered Ortivus to pay a fine equal to twice the company’s annual fee to the Exchange.
The case concerns items 3.1.1 and 3.1.2 in the NASDAQ OMX Rulebook.
On June 10, 2013, Ortivus distributed a brief press release in which it stated that the company had won a major European procurement process and had received an award decision. The Exchange has pointed out that the press release in question did not contain information regarding material terms and conditions associated with the award decision and that the information was not sufficiently detailed to enable an assessment of the information’s significance to the company, to its financial results or to the price of the company’s securities.
Ortivus has, among other things, contended that the company is bound by confidentiality regarding the transaction in question. However, the information rules contained in the Rulebook are not optional and thus a listed company cannot circumvent application of the rules by entering into a confidentiality agreement with a counterparty.
The Disciplinary Committee has made the assessment that, despite the difficulties faced by the company concerning its obligation to disclose information, the initial press release could have been formulated in a much more informative manner. The Disciplinary Committee is of the opinion that the information contained in the press release stating that the transaction was of significant value with a major positive effect on Ortivus’ business could easily be construed as meaning that the transaction had already been finalized. According to information obtained from the company, the fact that it had been selected as supplier did not mean that the counterparty had undertaken to enter an agreement with the company. In addition, the award decision could have been appealed, as is customary.
Accordingly, the company’s disclosures cannot be considered to comply with the Rulebook. With reference in particular to the information in the press release stating that the transaction was of significant value with a major positive effect on Ortivus’ business, the disclosures must be considered misleading.
The Disciplinary Committee orders Ortivus to pay a fine corresponding to twice the company’s annual fee to the Exchange.