The efforts to have ASIC address the Report of Misconduct continue.
The following seeks to have ASIC and the Takeovers Panel reach agreement on how and when they will determine the date on which unacceptable circumstances concerning the takeover effectively arose.
While it is ASIC that can lodge an Application with the Takeovers Panel, ASIC has determined it with not communicate. This is one of the ASIC's standard and in most instances understandable strategies for deterrence of complaints. Nonetheless it has been pointed out to ASIC that there are aspects of this takeover which are UNIQUE; that uniqueness concerns the secretive $610 million concessional loan from NAIF. Given the ASIC approach the following letter is addressed primarily to the Chief Executive of the Takeovers Panel, Mr Allan Bulman.
Mr Allan Bulman
Chief Executive
Takeovers Panel
Mr Peter Witham
ASIC
Mr Lachlan Morley
ASX
Dear Sirs
I refer to my earlier correspondence with all three of you about the J - Power takeover of Genex Power Ltd; particularly as it relates to the Report of Misconduct, (CAS-150437-J4FC3).
It has become apparent from our communications that there is a need to establish an agreed timeline of events. I say this because of Section 657C (3) (a) of the Corporations Act 2001.
That part of the Act says:-
(3) An application for a declaration under section 657A can be made only within:
(a) 2 months after the circumstances have occurred;
It needs to be made clear how long ASIC has to lodge an application, (unacceptable circumstances), with the Takeovers Panel.
The ASX was advised on three occasions, 10, 11 and 16 April, of concerns about disconcerting aspects of the takeover. Mr Morley, can you explain why there has not been any acknowledgement of that correspondence? That said, what is more important, will you advise the date the ASX recognizes as the time it received the letters of concern about the non-disclosure of important, price sensitive, information by the Genex Power Ltd board?.
We can all agree that there was an ASX Announcement about the undated Transaction Implementation Deed on 12 April, 2024.
The Report of Misconduct, (CAS-150437-J4FC30), was acknowledged by Mr Witham on 24 April but the registration date of the Report of Misconduct was not stated. It would be useful, Mr Witham, if you could state the date of registration?
As I said to you, Mr Bulman, on 7 May, it seems possible ASIC will avoid undertaking a meaningful assessment of the Report of Misconduct and resist making an application to the Takeovers Panel under Section 657C (2) © of the Corporations Act 2001. As an alternative strategy, to avoid its statutory obligations, ASIC may use a tactic of delay and allow the 2 month period to expire so it can claim that as an excuse for not making an application to the Takeovers Panel. I note the Takeovers Panel can authorize a longer period than 2 months.
Agreement needs to be reached between ASIC and the Takeovers Panel as to when the circumstances occurred.
What seems reasonable is that the date of the announcement of the Transaction Implementation Deed, (TID), ought to serve as the date when the circumstances occurred. That is the date when the consequences of information about the secret $610 million taxpayer funded concessional loan from NAIF, the Boulderscome Battery and other matters not being revealed to Genex Power Ltd shareholders became impactful in terms of the VWAP figures used and price offered in the takeover.
As I just said, agreement needs to be reached between ASIC and the Takeovers Panel, as to when those two Commonwealth of Australia entities determine the events highlighted in the Report of Misconduct occurred.
I look forward to learning the date agreed upon?
I have posted this letter on the HotCopper site given that there have been 14K hits on the thread titled; TAKEOVERS PANEL and the INDEPENDENT EXPERT REPORT.
Yours sincerely
HLP
Mr Thomas Emerson
Office of Senator David Pocock
Mr Chris Collins
NAIF
Mr John Williamson -Noble
Gilbert and Tobin
Mr Geread Dooley
Minter Ellison
