The shares of Empire AB (“Empire” or “the Company”) are traded on the First North trading platform of NASDAQ OMX Stockholm AB (“the Stock Exchange”) in the Premier segment. In conjunction with the application for listing of the shares, Empire signed a pledge to comply with the Stock Exchange’s prevailing First North Premier Rulebook (“the Rulebook”).
On November 28, 2011, the Board of Directors of Empire convened an Extraordinary Meeting of Shareholders for December 13, 2011. An advertisement of the official notification was published in Svenska Dagbladet and in Post- och Inrikes Tidningar. The official notification included motions for resolutions on the implementation of three non-cash share issues. This was to entail an increase in the number of class B shares outstanding by 771,046 shares, corresponding to dilution of nearly 8 percent of the Company’s share capital. On January 23, 2012, Empire published a press release from the Extraordinary Meeting that was held on December 13, 2011. The press release noted that documents had been presented in accordance with Chapter 13, Sections 6-8 of the Swedish Companies Act and that the Meeting had resolved to issue new class B shares in exchange for contribution in kind pursuant to the Board’s motions. The press release concerned contained no reference to the Company’s website or Certified Adviser.
On March 20, 2012, the Company published the official notification of its Annual General Meeting in Post- och Inrikes Tidningar and through an advertisement in Svenska Dagbladet. Empire’s notification was not published in the market through a press release until 10:17 a.m. on the same date. The notification included a motion to authorize the Board to resolve on a share issue entailing dilution by 2,000,000 shares – corresponding to 19 percent of the Company’s share capital.
Due to the actions above, the Stock Exchange sent a letter on February 6, 2012 containing questions to the Company’s Certified Advisor, Remium Nordic AB, to which the Company responded on March 4, 2012.
In view of the Company’s response, the Stock Exchange issued a statement of reprimand on May 9, 2012. The Company responded in writing to the statement of reprimand on May 24, 2012.
Empire acknowledged the circumstances that the Stock Exchange had formally put forth to the Company. In summary, the Company forwarded the following explanation of its shortcomings:
While the official notification of the Extraordinary Meeting of Shareholders that was held on December 13, 2012 was published on Empire’s website, it was unfortunately not published through Empires distribution service for price-sensitive information. This was due to a purely administrative error during a period when the workload was onerous in conjunction with the sale of the Company’s largest operation. Similarly, the press release from the Extraordinary Meeting of Shareholders was also published late due to an oversight resulting from the aforementioned situation. In addition, the press release lacked certain information that can also be traced back to the aforementioned situation. However, Empire is of the opinion that the Company acted quickly after realizing that the minutes had not been distributed in time.
Concerning the publication of the official notification of the Annual General Meeting, the Company claimed that the nature of this oversight was partly different from the other matters. While the other matters pertained to incorrect administration, oversights and substandard procedures, this one was due in part to an assessment of the nature of the information. Empire has received exactly the same authorization for a number of years, meaning that the resolution carried on from the preceding year’s authorization. The Company does not believe that the authorization to issue shares could be considered to constitute price-sensitive information, since this has been a standard item on the agenda for many years. The Company has reviewed and addressed the shortcomings in its procedures, which has included appointing an investment relations company, Wildeco, to support the Company in its distribution of information moving forward.
The Stock Exchange’s assessment
The Rulebook includes a special section of information rules pertaining to companies listed on First North Premier – Appendix L. These information rules match the corresponding rules for the Stock Exchange’s principal market. Rule 3.3 of Appendix L stipulates that official notification of a General Meeting of Shareholders must be published. The instructional text related to this rule stipulates that at a General Meeting of Shareholders motions for resolution that are of a price-sensitive nature must be published as soon as possible, even if the motion will subsequently be included in the official notification of the General Meeting of Shareholders. Notifications containing price-sensitive information must not be published later than the date on which the official notification is sent to, for example, a newspaper for publication. Regardless of whether or not the official notification contains price-sensitive information, it must, as a rule, be published at the same time as it is sent to, for example, a newspaper. The official notification, however, must always be published the night before it is published in the newspaper and prior to it being made available on the company’s website.
Rule 3.4 of Appendix L stipulates that the company must publish motions and resolutions resulting in a change in the company’s share capital or number of shares or other share-based securities, unless the motion or resolution is insignificant. The preconditions and terms and conditions for such an issuance must be published, as must the result of the issuance.
The aforementioned indicates a direct and clear obligation to publish the official notification of a General Meeting of Shareholders. The Stock Exchange has concluded that Empire did not issue official notification of the Extraordinary Meeting of Shareholders on December 13, 2011, in accordance with rule 3.3 of Appendix L. Furthermore, the Company did not publish the Board’s motion for a non-cash issue in accordance with rule 3.4 of Appendix L. Since the total dilution corresponded to slightly more than 8 percent of the Company’s share capital, the Stock Exchange is of the opinion that the scope of the dilution could generally be expected to impact the price of the Company’s share and thus constituted price-sensitive information.
The Stock Exchange also noted that the official notification of the 2012 Annual General Meeting was not published in accordance with rule 3.3 of Appendix L. The notification included a motion to authorize the Board to resolve on a share issue resulting in dilution by 2,000,000 shares – corresponding to 19 percent of the Company’s share capital.
Such information must be published in the same way that the Company publishes all other price-sensitive information, i.e. through a press release, pursuant to rule 1.5 of Appendix L. Publication through Svenska Dagbladet and Post- och Inrikes Tidningar alone and via the Company’s website does not constitute publication under the Rulebook. Since the official notification of the Extraordinary Meeting that was held on December 13, 2011 included motions for resolutions that were of a price-sensitive nature, the Stock Exchange is of the opinion that it is particularly serious that the notification was not published at the same time as it was sent to newspapers for publication.
Press release from the Meeting
Rule 3.3 of Appendix L requires the company to publish resolutions made by a General Meeting of Shareholders, unless the resolution is of minor significance. The instructional text related to rule 3.3 stipulates that after the Meeting the company must always issue a press release containing information on resolutions made at the Meeting. This applies even if the resolution corresponds to previously published motions
Rule 1.3 of Appendix L stipulates that information must be published as soon as possible barring mitigating circumstances. The information must be published so that it becomes available to the public in a prompt and nondiscriminatory fashion.
The press release must include details concerning the time and date of publication and information regarding the website, pursuant to rule 1.5 of Appendix L. Furthermore, the name of the company’s Certified Adviser must be listed pursuant to rule 4.2 (b) (i) of the Rulebook.
Empire’s press release from the Extraordinary Meeting that was held on December 13, 2011 was not published until January 23, 2012 through a press release to the market. Accordingly, the Stock Exchange’s opinion is that the information was not published on time. The press release from the Meeting should have been published when the Meeting ended on December 13, 2011 or, if the Meeting was concluded after the Stock Exchange had closed, before the Stock Exchange opened on December 14, 2011. The press release from the Meeting did not include details concerning time and date, website or information about the Company’s Certified Adviser.
Accordingly, Empire is in breach of rules 1.3, 1.5 and 3.3 of Appendix L, as well as rule 4.2 (b) (i) of the Rulebook.
The conclusions of the Stock Exchange
The Stock Exchange believes that the Company, through shortcomings in the procedures for distributing information to the Stock Exchange and the market, is in breach of rules 1.3, 1.5 and 3.3 of Appendix L, as well as rule 4.2 (b) (i) of the Rulebook.
Pursuant to Section 7.3 and Supplement B of the Rulebook, the Stock Exchange may submit breaches of the Rulebook to the Stock Exchange’s Disciplinary Committee for review and a decision concerning a possible fine. If the breach of the Rulebook is of a less serious nature or is excusable, the Stock Exchange may also issue a warning. Since in all material respects the actions in question resulted from administrative errors on the part of the Company and were not intentional acts aimed at withholding information from the market, the Stock Exchange, following its overall assessment, believes that issuing a warning to Empire is sufficient in this matter.
The Stock Exchange issues a warning to Empire.
The matter is thus concluded as far as the Stock Exchange is concerned.
The shares in Orasolv AB (“Orasolv” or the “Company”) are traded on the First North trading platform of NASDAQ OMX Stockholm AB (the “Exchange”). In conjunction with the application for listing of the shares, Orasolv signed a pledge to comply with the Exchange’s prevailing First North Rulebook, (“Rulebook”).
On February 29, 2012, Orasolv published a press release with information about the record date, and the date for distribution of shares in Orasolv’s wholly owned subsidiary Orasolv Products AB (name changed to Rubicon Life Science AB (“Rubicon”)). The spin out decision was resolved at an extraordinary general meeting held on February 27, 2012 (the “EGM”). The press release regarding resolutions passed at the EGM, which was published on the same day, stated that the EGM had authorized the Board of Directors to decide the record date for the spin out.
The Exchange noted that the press release, which was published on February 29, 2012 at 12.10 p.m., stated that the Board of Directors of Orasolv, at a meeting on February 27, 2012, resolved that the record date for distribution should be on March 1, 2012. This essentially meant that any acquisition of the Company’s shares on February 28, as well as during the morning of February 29, was made without the right to participate in the spin out and investors lacked the opportunity to consider the effects of the spin out. According to information provided to the Exchange, the Company’s certified advisor was not informed in advance of the company action.
As a result of the above action, the Exchange sent a letter with questions to the Company on March 21, 2012, the letter was responded to on April 11, 2012.
Response from the Company
The Company has confirmed and further regrets that information regarding the record date was not published on the same day as the resolution by the Board of Directors. In consequence thereof, the Company has taken actions to ensure that the mistake is not repeated
Assessment by the Exchange
According to the information memorandum prepared in connection with the new share issue, which Rubicon carried out prior to the listing on Aktietorget, Rubicon was valued at just over SEK 12 million prior to the issue (pre-money). Orasolv was valued at SEK 32 million on February 27, 2012 (the day of the spin out decision). Although the spin out of Rubicon did not result in any clear and immediate correction of the share price, the Exchange believes that the price decline that has occurred in the shares of the Company since February 23, 2012, was materially due to the spin out. The value at which Rubicon’s shares were traded on Aktietorget and the information provided in the abovementioned information memorandum strengthens this conclusion.
It is the opinion of the Exchange that, by not disclosing information regarding the record date in adequate time (at the latest February 28, 2012 before the opening of the Exchange), the Company breached Chapter 4.1(a) of the Rulebook. Therefore, acquisitions of the Company’s shares on February 28, as well as during the morning of February 29, were made without the right to participate in the spin out of Rubicon. Consequently, investors did not have the opportunity during this period to evaluate this corporate action and did not have sufficient information to correctly form an opinion of the price of the Company’s shares.
According to the Exchange, based on the fact that the company action was to be considered price-sensitive, the Company should have informed its certified advisor about the forthcoming spin out according to Chapter 4.13(a) of the Rulebook.
Conclusions by the Exchange
It is the opinion of the Exchange that the Company has violated Chapters 4.1(a) and 4.13(a) of the Rulebook. Pursuant to Section 7.3 and Supplement B of the Rulebook, the Exchange may submit breaches of the Rulebook to the Exchange’s Disciplinary Committee for further review and a possible issuance of a fine. If the breach of the Rulebook is of a less serious nature or is deemed excusable, the Exchange may also issue a warning. Considering that in all material respects the matter in question was the consequence of a human error and not an intentional act carried out to withhold information from the market, the Exchange, following its overall assessment, has resolved that issuing a warning to Orasolv is sufficient in this matter.
The Exchange issues a warning to Orasolv.
Consequently, the matter is closed as far as the Exchange is concerned.