I thought a good exercise would now be to consider this from each party's point of view, considering whether they're lying or telling the truth.
From SP1's point of view - telling the truth:- ASX have wronged us. We've sued them.
- Discovery came out, and we found some absolute gold! JK is doing cartwheels telling us how amazing this find is.
- The court case is almost here. We have the cash to pay the security costs (between the cash and the note, we had enough. Even if we had to take a loan for it, a litigation backer would jump on board if we had decent chances of success).
- We consider that we have an 80% chance of victory in a court case (they're never 100%) based on the treasure trove. Realistically, victory looks like $100m, plus we'd likely get back the $4m in legals we'd already spent. Bonus.
- ASX are caught. They approach us to settle. They offer us... walk away and take your own costs?
Conclusion: 80% chance at $100m, plus costs, and that's the offer? You would not under any circumstances accept it.
From SP1's point of view, if they're lying:- ASX suspend us with minimal notice
- The CEO needs to keep shareholders onside, prevent them from turning on him. Then he needs a plan to get to keep his money and job.
- First step - deny, deny deny.
- Second step - Create an enemy. Act the victim, therefore ASX is in the wrong. Sue the ASX.
- ASIC investigate and then sue us. This isn't great, and since in this example we're guilty, they'll probably find something so...
- Keep the shareholders onside for their votes. ASX bad, ASIC now also bad - create a conspiracy. Court docs have turned over a meeting between ASIC and ASX. Realistically, that will be normal, but we can take short snippets like "spitballing" and use it as a marketing gimmick. Proof of conspiracy.
- CEO wants to keep his money. CEO will lose his money if ASIC have jurisdiction. Solution - leave ASIC's jurisdiction. Could move to a major financial hub like London, but nah, their regulators are on the ball too. Cyprus is pretty lax, and are unlikely to work with the Australian regulators. Done. Let's move there. Shareholders are on-side, so the vote goes through.
- Case against ASX is now pointless. We don't want to be listed, and we're unlikely to win, given the circumstances. Delay, delay. We don't want to hit court.
- AGM is coming up, and courts want security costs. We don't want to pay that. Wait for the AGM, get the CEO a few more years comfort, and then talk to ASX about a settlement. Walk away from it.
- Cost - legal fees. Gain - directors get to keep their (in this version) ill-gotten gain.
This fits the events.
ASX's view - ASX are in the wrong:- Directors view a threat, or dislike someone. Someone slept with someone's sister. Whatever. We don't like ISX.
- Talk to ASIC. For some reason, they don't like them either. Awesome. Let's have a meeting, with about half a dozen people present, including people taking notes, and start a conspiracy to take this small company down. That's how you do a conspiracy, isn't it? Mid level managers have that sort of power?
- Company sues us.
- ASIC sues them to help us.
- Company flees to foreign shores, demerges out most of the business. They could've stayed and beat us, but instead they split up the company and move offshore. Better for us.
- Now the only real issue is this court case. We've spun something, but it's fiction, and they got loads of good stuff in discovery. They'll probably win. They're asking for $500m, but you never get that. Still, we'll be out of pocket by $100m.
- Try to bleed them dry. No, wait, they still have a loan with the big company. They have the cash. Still, let's ask for security for costs and make them make deposits.
- OK, we're really concerned, the case is approaching. Let's just settle. We'll propose to close up for... nothing.
The ASX actions never made sense to me as a conspiracy, and I think that if they were actually concerned, they would've tried to settle earlier and for more.
ASX actions, and they're just doing their jobs- Some irregularities about a small-cap have popped up
- We've chatted with ASIC, and they have noticed some things too. They aren't in a formal investigation, but they're at the "enquiries" stage.
- We have a meeting with ASIC (this happens occasionally) to share info, and we're concerned about the CEO getting wind of the investigation and selling out and running. It's agreed that suspending the shares would be the best way to go. This is a reasonable meeting, so of course people are taking notes. No issue there. We have a discussion about what can and can't be revealed at this stage, and who takes the lead. We agree to take the lead, and look at suspension options while these investigations carry on.
- A few days later, we've collated some info, found some disclosure issues, and we suspend. This is a small company, it's pretty common for there to be disclosure issues. We have a few concerns, including ongoing governance.
- We ask for info, collect evidence. Multiple questions, multiple occasions, multiple lines of enquiry. We probably check in with ASIC further.
- Company complies, then gets annoyed and stops talking.
- We publish our statement of reasons for the suspension (company tries to prevent this going public, but lose), and give them a plan to get relisted again. They can fix up their issues, we get an escrow on the shares so that ASIC can finish their stuff, and everything looks fine.
- Company sues us. We aren't terribly concerned, but still gotta go through it.
- ASIC finishes investigation and sues company. No issue here.
- Company flees overseas. Now has a shell listed here. But the court case continues.
- You keep in fairly constant dialogue with the company about settlements. You'll probably get back your lawyers fees if you win, but you won't get back wages, and this is dragging on. You aren't keen to pay them for just doing your job. Eventually, it's discussed dropping it and each bearing costs. This works for you - quit wasting time, no more fees, and there's always a risk of losing - if you're missing one page of documentation, it could be a bad verdict. Settle.
This also fits with the events.
Everyone's actions so far fit one set of circumstances.
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