I get as frustrated as the next person sometimes with the lack of official channel news flow but I always go back to the following to clear my head as to the exemptions that are allowed by the ASX exactly for these sorts of situations with companies eg NDAs.
These are just my personal thoughts and interpretations and shouldn't be relied on by anyone else. The source info is there for anyone to review themselves and interpret as they feel.
Below is an excerpt of the Continuous Disclosure Rule and link to the abridged version I took it from, noting that there are still requirements on a company, if it is using the carve out, to monitor if any information starts to appear in public channels in which case the exemption(s) may come into question.
Read that section 3/4 way through the below paste and now I know why they maybe do actually read what we post....not out of interest....maybe cause they have to watch the 1000 eyes just in case
The key underlying points for me personally re the recurring argument of if a contract has been signed for example and whether it needs to be disclosed, essentially could fall under item 1 & 5.
Remembering that::
An NDA creates the legal framework to protect ideas and information from being stolen or shared with competitors or third parties. Breaking an NDA agreement triggers a host of legal ramifications, including lawsuits, financial penalties, and even criminal charges. NDAs offer a level of protection to your business so that even accidental breaches are covered.
There are three essential functions of an NDA:
- Identifying protected information: By drawing a line between what information is confidential and what can be shared, NDAs classify information. This allows parties to work freely within the boundaries created by the confidentiality agreement.
- Protecting sensitive information: Signing an NDA creates a legal obligation to keep sensitive information confidential. Any leak of that information is a breach of contract.
- Protecting patent rights: Because public disclosure of a pending invention can sometimes void patent rights, an NDA can protect an inventor as they develop their new product or concept.
So, does breaching a NDA breach a law?.....is the NDA part of a trade secret?
Abridged Disclosure rules:
HERE
13.1 Listing Rule 3.1A.1 - the categories of information excluded
The first requirement for Listing Rule 3.1A to apply is that the information must fall within one of the categories
mentioned below:
- it would be a breach of a law to disclose the information;
- the information concerns an incomplete proposal or negotiation
- the information comprises matters of supposition or is insufficiently definite to warrant disclosure;
- the information is generated for the internal management purposes of the entity; or
- the information is a trade secret.
More detailed guidance on each of these categories can be found in Guidance Note 8 Continuous Disclosure:
Listing Rules 3.1 – 3.1B.
13.2 Listing Rule 3.1A.2 - the requirement for information to be confidential
The second requirement for Listing Rule 3.1A to apply has two components: (1) the information must be
confidential; and (2) ASX has not formed the view that the information has ceased to be confidential.
The word “confidential” in Listing Rule 3.1A.2 means “secret”. Thus, information will be confidential for the purposes
of that rule if:
- it is known to only a limited number of people;
- the people who know the information understand that it is to be treated in confidence and only to be used
- for permitted purposes; and
- those people abide by that understanding.
Whether information has the quality of being confidential is a question of fact, not one of the intention or desire of
the listed entity. Accordingly, even though an entity may consider information to be confidential and its disclosure
to be a breach of confidence, if it is in fact disclosed by those who know it, then it is no longer a secret and it ceases
to be confidential information for the purposes of this rule.
It is therefore incumbent on a listed entity which wishes to rely on the carve-out from disclosure in Listing Rule 3.1A
to ensure that it has in place suitable and effective arrangements to preserve confidentiality. Guidance on the steps
that can be taken in this regard can be found in the joint publication by the Governance Institute of Australia and
the Australasian Investor Relations Association entitled Handling confidential, price-sensitive information:
Principles of good practice.
Even with strong confidentiality safeguards, it is important to recognise that the more people who know information,
the greater the risk that it will cease to be confidential. So, for example, if a party proposing to acquire a business
wants, as part of its due diligence, to make enquiries of employees, customers or suppliers, or a party proposing to
undertake an issue of securities wants to take soundings from brokers and potential investors, it and the other
parties involved in the transaction need to be prepared for the chance that information about the transaction will
not be kept in confidence.
An entity which is relying on Listing Rule 3.1A not to disclose information about a market sensitive transaction it is
negotiating should as a matter of course be monitoring, either itself or through its advisers:
- the market price of its securities and of the securities of any other listed entity involved in the transaction;
- major national and local newspapers;
- if it or its advisers have access to them, major news wire services such as Reuters and Bloomberg;
- any investor blogs, chat-sites or other social media it is aware of that regularly post comments about the
- entity; and
- enquiries from analysts or journalists,
for signs that information about the transaction may no longer be confidential and have a draft letter to ASX
requesting a trading halt and a draft announcement about the negotiations ready to send to ASX to cater for that
eventuality. The closer the transaction gets to being concluded, the higher the risk of leaks and the more diligent
that monitoring should be.
In relation to the second component of Listing Rule 3.1A.2, ASX may form the view that information about a matter
involving a listed entity has ceased to be confidential if there is:
- a reasonably specific and reasonably accurate media or analyst report about the matter;
- a reasonably specific and reasonably accurate rumour known to be circulating the market about the matter;
- or
- a sudden and significant movement in the market price or traded volumes of the entity’s securities that
- cannot be explained by other events or circumstances.
Each of these is an indication that the matter is no longer confidential and therefore Listing Rule 3.1A.2 no longer
applies.
