AKP (ASX) Ann: Response to ASX Query Letter

Originally posted by BobF: ↑

Before others are start to tell me off for telling them what they (foolishly IMO) do not want to hear, I think this is an encouraging announcement.

Note first that this is not the Preliminary AR announcement we are still expecting for today. That should come shortly.

1. I have read and reread the ASX RFI and I am encouraged that the ASX is very much asking very pointed questions that I, amongst many others here, would like to hear answers to. At least it shows that ASX go out of their way to do what they are supposed to be doing: namely exercising close scrutiny of the companies whose stocks trade on its board. And they read what those companies say very closely. They are all excellent questions. And they are both incisive and well constructed and well to the point.

2. The answers are also, IMO, very good answers. They address the questions and deal with them in detail and in depth. That is more than I can say that the company has done in the past. Previously many questions from shareholders and ASX have not been addressed with such good answers. These go to the heart of the issues at stake and indicate candidly and clearly what the significance of the issues addressed are, what they imply, and why they may not be as fulsome as I might prefer. I note that they are signed by Shawn van Boheeman. I like this level of response, which has reached a new high in clarity.

3. That is about the style of the answering. When I look at the content of the answers I think this is also very realistic and clear. As soon as one gets given answers that address questions that are in themselves hard to express, especially when one does not know how to ask for whatever information it is that one feels is being downplayed or concealed, because one does not know what one does not know to ask about, I start to nod my head as I begin to appreciate the reasonableness of what is actually being said (complex sentence I'm sorry). Once I understand the complexities that are being dealt with I am happy to allow myself to be reassured by complex answers.

4. What is revealed is exactly what I expected would be the case. AP has a client/supplier relationship with EM. EM has a client/supplier relationship with the 3 separate FAB's. In all cases there is confidentiality between those parties that we should not expect to get passed on to us as holders. The 3 FAB's for instance would ordinarily be competitors, so they will not disclose in-house technical details that will be commercially sensitive to them both. That is understandable and would happen anywhere. All the info that has been provided to us from the 3 FABs to EM to AP that alludes to such details are possibly more than we would normally be given, not less. That is reasonable. It is because of the continual years long delays that we are so concerned and so interested. This is a case of the boy cried wolf scenario in reverse. AP has been crying 'imminent' for so long that nobody now believes them. So when it does suddenly arrive everyone will be taken by surprise, and AP will say "but didn't we tell you it was imminent this time?"

5. All I can say is read through the explanations a couple of times and think about what is being asked and what each answer is saying. I concluded that the scheduled time is likely to be closer than many on HC are suggesting. I have no idea what the forthcoming announcement will contain, but while there may still be some delays that is what they are: delays. Not cancelations or still births. The Fat Lady is clearing her FABulous throat.

DYOR, GLTALTH!

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4. - Listing Rule 12.5, which states:“An entity's structure and operations must be appropriate for a listed entity.”

Section 4.22 of Guidance Note 8, which states:“An entity must comply with its disclosure obligations under Listing Rule 3.1 and section 674, even where it is party to a confidentiality or non-disclosure agreement that might otherwise require it to keep information confidential.
Generally speaking, any entity entering into a confidentiality or non-disclosure agreement should insist upon an express carve-out for the disclosure of information that is required by law or under the rules of a stock exchange so as not to create a conflict with its disclosure obligations under section 674 and Listing Rule 3.1. However, even if such an express carve-out is not included, it is highly likely that one will be implied in any event, on the basis that a commercial contract cannot require a party to act in a manner contrary to the general law.

It should be noted that the ASX Listing Rules are contractually binding on, and are enforceable against, an entity under both the Corporations Act and the general law. A party to a confidentiality or non- disclosure agreement who seeks to enforce it against an entity in an attempt to prevent the entity from disclosing information it is required to disclose under Listing Rule 3.1 may have difficulty doing so, since that would interfere with the contractual relations between the entity and ASX. It should also consider its potential liability under section 674(2A) and 1317HA (as someone who has procured, and therefore been “involved in”, a breach of section 674(2) by the entity) should it succeed in that endeavour.”