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8.4 Aware letters
When ASX has concerns about whether a listed entity has disclosed market sensitive information at the time it should have under Listing Rule 3.1, it will typically issue an “aware letter” to the entity.
The purpose of an aware letter is to enable ASX to be satisfied that the entity is in compliance with its continuous disclosure obligations under the Listing Rules.225 The entity must respond to an aware letter by the time specified by ASX in the letter.
Aware letters tend to follow a standard format. Generally, they will identify the information in question and the relevant date it was announced and ask:
1. Does the entity consider the information to be information that a reasonable person would expect to have a material effect on the price or value of its securities?
2. If the answer to question 1 is “no”, please advise the basis for that view.
3. If the answer to question 1 is “yes”, when did the entity first became aware of the information?
4. If the answer to question 1 is “yes” and the entity first became aware of the information before the relevant date, did the entity make any announcement prior to the relevant date which disclosed the information? If so, please provide details. If not, please explain why this information was not released to the market at an earlier time, commenting specifically on when you believe the entity was obliged to release the information under Listing Rules 3.1 and Listing Rule 3.1A and what steps the entity took to ensure that the information was released promptly and without delay.
5. Please confirm that the entity is in compliance with the Listing Rules and, in particular, Listing Rule 3.1.
Once the entity’s response has been received and reviewed by a listings adviser, both the aware letter and the response will usually be published on the ASX Market Announcement Platform together, so that the market is aware that ASX has made enquiries of the entity about the timeliness of its disclosure and of the entity’s response to those enquiries.
8.5 Complaints or allegations of non-compliance
If ASX receives a complaint or allegation from a third party asserting that a listed entity has failed to disclose particular information that should have been disclosed under Listing Rule 3.1, ASX will usually make enquiries of the entity as to the accuracy and materiality of the information. If, as a result of those enquiries, ASX forms the view that the information is accurate, market sensitive and not within the carve-outs from disclosure in Listing Rule 3.1A, ASX will ask the entity to make an announcement about the matter under Listing Rule 3.1. If the information should have been disclosed earlier, ASX may also issue an aware letter (see above) and/or refer the matter to ASIC (see below).
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