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23 November, 2016
The Singapore Exchange (SGX) issued a public reprimand to Swiber Holdings Limited (Swiber), an oilfield services firm, on 31 October 2016 (Regulatory Announcement) for failing to provide a balanced and fair project announcement to the market. SGX was of the view that Swiber had presented more favourable possibilities as certain, or as more probable than was actually the case. SGX also noted that the relevant market announcement by Swiber had failed to disclose certain material conditions which were pre-requisites to the completion of the project.
The reprimand follows a series of coupon payment defaults by Swiber since its judicial management application in July 2016, which was approved by the High Court on 6 October 2016.
Background
On 15 December 2014, Swiber made an announcement on the SGX entitled "Swiber Breaks Into the West African Market with US$710 Million Field Development Award" (Project Announcement).
In the Project Announcement, Swiber stated that it had been in negotiations with a Houston-based oil and gas company (the Client) to provide engineering, procurement, construction, installation and commissioning services for an offshore field development project (Project). Swiber stated that work was to commence in early 2015, with a completion date of mid-2017.
Swiber did not update the market about the Project until 8 July 2016 when it announced that due to weaknesses in the oil and gas sector since the latter half of 2014, the Project had not progressed in accordance with the original schedule. Swiber also stated that it had not received any revenue in relation to the Project.
The letter of intent (LOI) signed with the Client by Swiber’s subsidiary, Swiber Offshore Construction Pte Ltd (SOC), stated (amongst other things) that:
- the contract was yet to be formalised;
- the contract price of US$710 million was an indicative price to be reviewed on finalisation of the field development plan; and
- payment for the various stages of work was to be mutually agreed under the contract.
Swiber represented to the SGX that its directors were and remained of the view that SOC had entered into a binding contract with the Client by way of the LOI, and therefore that it was presented in the Project Announcement that a US$710 million award had been secured.
Swiber also stated to the SGX that the appraisal well drilling stage was a necessary pre-requisite to the completion of one of the phases of the Project. Due to the persistent weakness in the oil and gas sector, the Client delayed completion of the appraisal well drilling, and the parties did not progress to formalising the contract document.
Swiber also represented to SGX that it had first become aware of the possibility of a significant delay only on 1 July 2016.
Breach of Listing Rule 703
In the Regulatory Announcement, SGX reprimanded Swiber for breaching Listing Rule 703, read with paragraph 25 of Appendix 7.1 to the Listing Rules.
Listing Rule 703(1) states that “an issuer must announce any information known to the issuer concerning it or any of its subsidiaries or associated companies which:
- is necessary to avoid the establishment of a false market in the issuer's securities; or
- would be likely to materially affect the price or value of its securities”.
Paragraph 25(c) of Appendix 7.1 to the Listing Rules further states that an announcement should be balanced and fair. It should avoid:
- omission of important unfavourable facts;
- presentation of favourable possibilities as certain, or as more probable than is actually the case;
- presentation of projections without sufficient qualification or without sufficient factual basis;
- negative statements phrased to create a positive implication; and
- use of promotional jargon calculated to excite rather than to inform.
SGX stated in the Regulatory Announcement that the Project Announcement was not balanced and fair as Swiber had presented favourable possibilities as certain, or as more probable than was actually the case. In this regard, the Project Announcement had failed to disclose the material conditions that were prerequisites to the progress of the Project and recognition of revenue by Swiber.
Further, SGX noted that the Project Announcement did not disclose that, based on the LOI, the Project was subject to the formalisation of a contract in due course. SGX was also of the view that the amount of US$170 million was only an estimate, which was subject to future review.
Consequently, SGX was of the view that the Project Announcement had failed to provide investors with adequate information to enable them to have a proper understanding of the impact on Swiber of a major project award.
Further issues for Swiber
Separately, SGX stated in the Regulatory Announcement that it was still considering whether Swiber might be in breach of the Listing Rules regarding its failure to disclose the delay in the progress of the appraisal well drilling. In this regard, SGX stated that Swiber would have been subject to the new disciplinary framework which has been effective since 7 October 2015 had such failure to disclose occurred after that date.
SGX also stated that it had referred the case to the relevant authorities.
Conclusion
Given that investors place significant reliance on market announcements, companies should ensure that such announcements disclose sufficient information for an investor to have a proper understanding of the impact of the relevant event. In this regard, companies should be careful in the drafting of announcements to ensure that they do not present favourable possibilities as certainties, or omit important pre-requisites to a project which is being completed. Any material project updates should also be released promptly to the market.
For further information, please contact:
Siddhartha Sivaramakrishnan, Partner, Herbert Smith Freehills
siddhartha.sivaramakrishnan@hsf.com
