ASIC has restricted Holista CollTech Limited (Holista CollTech) from eligibility to issue a reduced-content prospectus, and to use exemptions for reduced disclosure in fundraising documents until 17 October 2021 (reduced disclosure).
ASIC’s decision was based on Holista CollTech’s failure to disclose to the market that:
- on or about 29 June 2020, Holista was aware of updated expected revenue from the sale of Natshield of $0.5 million, having announced expected revenue from orders of Natshield of $3.8 million on 9 April 2020 (the Updated Expected Sales Revenue). The Updated Expected Sales Revenue was announced on 9 July 2020; and
- testing of the efficacy of Path-Away was being undertaken on a surrogate of COVID-19, being the feline coronavirus, and not COVID-19 itself, as it had informed the market.
ASIC considers the privilege for a company to use reduced disclosure to be dependant on its compliance with its continuous disclosure obligations under the corporations legislation. ASIC found that Holista CollTech’s continuous disclosure breaches occurred at a time when the market was affected by the ongoing uncertainty of the global pandemic, and that the impact of those breaches was compounded due to several other statements being made during the same period that were later retracted by the company.
ASIC’s investigation into Holista CollTech’s conduct is ongoing.
Holista CollTech has the right to appeal to the Administrative Appeals Tribunal for a review of ASIC’s decision.
On 16 March 2020, Holista CollTech released an ASX announcement stating, “Tests will determine Path-Away’s efficacy as a sanitiser against COVID-19, the coronavirus that has infected over 146,000 and killed at least 5,400 people globally as at 13 March 2020”. Holista CollTech failed to disclose in this announcement that tests would be determined against the feline coronavirus, being a surrogate of COVID-19, and not COVID-19 itself.
On 9 April 2020, Holista CollTech released an ASX announcement titled “Holista’s U.S distributor increases orders of Natshield amounting to A$3.8M”. In this announcement, Holista CollTech stated that it “expects to record revenue of A$3.8 million from combined total orders of 424,558 bottles of Natshield received in the United States of America to date from Health Therapies.”
On 9 July 2020, in an ASX announcement titled “Update on sales and distribution agreements for Natshield sanitiser”, Holista CollTech announced revised revenue of $0.5 million for the sale of Natshield, showing that it missed its expected earnings of A$3.8 million by approximately 87%. Following the release of the 9 July announcement, Holista CollTech’s share price decreased by 34.29%. ASIC determined that the 9 July update should have been announced to the market by Holista CollTech on or about 29 June 2020.
Under section 713 of the Corporations Act 2001 (Cth) (the Act), a listed company can offer securities using a reduced content prospectus containing information relating only to the particular offer itself. Section 708A of the Act outlines the circumstances in which a company does not need to provide any disclosure for the sale offer of its securities. ASIC has the power to prevent a company from relying on the reduced disclosure rules under both of these sections if the company breaches its continuous disclosure or financial reporting obligations.