Ann: ASX Query Letters re ISX suspension & termination by Visa, page-84

1. Extract from Clayton Utz Report cited at 9 of 11.... The language is muted and with legal caution. Read literally, it mostly poses ISX opinion rather than evidence and may contain an indication that CU weren't fully informed of Visa comms with ISX.

   
   

   ISX was withholding, based on legal advice, the potential termination (not the suspension itself) from the market in reliance on ASX Listing Rule 3.1A; and ...

Materiality of the suspension

In all the circumstances, we have formed the view that a decision as to whether the suspension of the Visa arrangement was of itself material required the ISX Board to make a judgement call, having regard to a range of circumstances at that time (as noted above at section (i) to (v)).

A conservative approach, given the surrounding circumstances, would have been to disclose the fact of the suspension in the context of ISX confirming its views that the Visa arrangement was no longer considered strategically material (together with any other disclosures considered appropriate at that time).

However, based on the information available to us, we are unable to conclude that the decision taken by ISX to not announce the Visa suspension at the time of the initial suspension constituted a breach of its continuous disclosure obligations.

Disclosure of the suspension

As noted above, ISX announced the fact of the suspension in its Appendix 4C on 29 April 2020 on the basis that it had formed the view that the suspension subsequently became material (as it could lead to a material event, being termination of the Visa arrangement).

We consider that the disclosure in the Appendix 4C in these circumstances was deficient. In particular, if the fact of the suspension was announced on the basis that ISX considered it to be

1. potentially material information, the announcement did not fully disclose potentially material information. In particular, we consider that the disclosure should have included the following:

   1. (i) additional information regarding the potential impact of the suspension; and

   2. (ii) if the suspension was considered to be material at the time of announcement, a statement that ISX would continue to update the market in relation to material developments in respect of the ongoing discussions with Visa, or in respect of alternative arrangements that could be made by ISX.’