@Mr.Lumin, Skip can't move beyond 19.9%. Skip Capital acquired the 19.9% interest before it was revealed that the scheme contravened the
Northern Australia Infrastructure Facility Act 2016.
I have continued pursuing my Report of Misconduct with ASIC and my suggestion to the Takeover Panel's Chief Executive, Mr Allan Bulman that Unacceptable Circumstances exist and those circumstances warrant the involvement of the Panel.
My letter and some further comments follow:-
CORRUPT CONDUCT - ASIC, NAIF AND THE TAKEOVERS PANEL?
I have sent the letter below, via email, to officials employed by the Commonwealth of Australia; Mr Peter Witham, Acting Senior Executive Leader, Misconduct and Breach Reporting, Intelligence and International, Australian Securities and Investments Commission, Mr Chris Collins, Chief Legal Officer, Northern Australia Infrastructure Facility, and Mr Allan Bulman, Chief Executive, Takeovers Panel.
The question has been posed; is it corrupt conduct for their respective organizations to take actions intended to avoid appropriate actions concerning my Report of Misconduct to ASIC?
“Gentlemen
I have had cause, because of HotCopper posts, to review the Skip Capital takeover proposal for Genex Power Ltd. It began with a non-binding bid of 23 cents per share on 23 July 2022.
On 17 August 2022 a revised non-binding indicative bid of 25 cents was received by Genex. In an ASX Announcement dated 23 September Genex stated that " the Consortium has completed its due diligence and obtained committed funding for the Proposed Scheme (as defined below), and that a scheme implementation agreement to give effect to the Proposed Scheme is expected to be entered into shortly."
In the Chairman's address to Shareholders, dated 30 November 2022, the issue of the egress of water into the MAT, (Main Access Tunnel), was raised and the following was stated:- "The Consortium are continuing to do work and engage constructively with Genex and its advisers at this time, however the Consortium has not provided the Genex Board with a binding or final proposal in respect of the Proposed Scheme."
It was not until 23 December that Genex Advised that discussions with Skip had concluded.
My purpose in bringing the above to your attention is that Genex Power Ltd were engaged with the Skip Consortium from before well 23 July to after 30 November 2022 During all this time the Northern Australia Infrastructure Facility, (NAIF), had to be aware of the discussions yet neither it, (the lender of the $610 million concessional loan from NAIF) or the recipient of the loan, Genex Power Ltd, saw fit the address the relevant part of the Act through which the loan was made. See:-
Part 3—Investment Mandate
9 Investment Mandate
Limit on Investment Mandate
(4)The Investment Mandate must not direct, or have the effect of directing, the Facility to provide financial assistance:
(a)for the development of particular infrastructure; or
(b)in relation to a particular person
On 19 August I emailed Simon Kidston and on 22 August I emailed Craig Doyle and James Harding concerning the takeover and the $610 million loan. Simon Kidston, the apparent leading protagonist within Genex for the takeover, ignored my email and Messrs Doyle and Harding, it seems, merely continued to "work constructively" with Skip until at least 30 November, 2022. Perhaps by that date the work was directed towards extricating both parties from the Kidston/Skip Capital "deal". The takeover bid should not have seen the light of day and would not have, if NAIF had diligently performed its duties? Like seeking an opinion from the Solicitor-General, as far back as July 2022.
Given what happened before, with Skip Capital Consortium takeover bid, I have given you the link to the National Anti-Corruption Commission site in which corrupt conduct is discussed:-
https://www.nacc.gov.au/reporting-and-investigating-corruption/what-corrupt-conduct
Is it acceptable for a public official in NAIF to not reveal pertinent information about the $610 million loan and for ASIC to not demand that information to enable it to competently assess the Report of Misconduct? Is it acceptable for ASIC to try to avoid making an application concerning unconscionable circumstances to the Takeovers Panel?
Now the situation is that three Commonwealth Public servants, as defined by the National Anti-Corruption Commission Act 2022, are confronted with the task of dealing with the Report of Misconduct to the Australian Securities and Investment Commission, (ASIC). Central to the Report of Misconduct is the $610 million taxpayer funded concessional loan. I say central because the Kidston/Craven/Seshimo Genex Power Ltd Board withheld crucial information about the loan and its financial impact on the headmast Kidston Storage Pumped Hydro project; K2H. K2H was scheduled to begin operation this financial year. Now, without explanation, it is the first quarter of 2025?
It is clear that the strategic withholding of information about the NAIF loan and other matters, particularly the Boulderscome Battery, had a negative effect on the Genex share price, the VWAP figures used in the offer document and the offer price from Mr Seshimo's employer, Electric Power Development Co,. Ltd, (J - Power).
There has not been an explanation from the Genex financial adviser, Goldman Sachs for the minimal increase over the Skip Capital offer price of 25 cents, despite all the physical and financial work performed and de-risking of K2H during the intervening year and a half. Goldman Sachs stood idly by through the Skip Capital bid and has apparently justified acceptance of the 27.5 bid from J - Power. Despite this it seems Genex intends appointing Goldman Sachs as "Independent Expert"?
I am waiting for responses from Mr Collins, (Government Lawyer of the Year, at the 2024 Lawyers Weekly Counsel Summit and Awards), and Mr Bulman.
For whatever it is worth I point out that this matter has drawn attention from many on the HotCopper site.
I look forward to your early response, bearing in mind, the clock is ticking on the TID.
Yours sincerely
HLP”
Messrs Witham, Collins and Bulman have not acknowledged receipt of the above letter to them.
Perhaps that indicates that they have at least decided to establish a dialogue between their respective Commonwealth agencies to consider the various matters raised by my Report of Misconduct? They may have decided to jointly ignore the above letter?
I don’t believe ASIC, NAIF and the Takeovers Panel can seriously consider the question of UNACCEPTABLE CIRCUMSTANCES without inter-agency discussions. I suggest that such discussions should include the Attorney-General's Department.
The Skip Capital “deal” was. more than likely. ultimately resolved with input from the Solicitor-General and his Department
I am still waiting for letters of response from Mr Collins and Bulman to previous letters.
