FIRB, ASIC, (Takeovers Panel), and NAIF - the crucial issue; the “SECRET” loan.
The FIRB, ASIC and NAIF all have issues to address concerning the taxpayer funded $610 million concessional loan to Genex Power Ltd. A loan, the details of which remain unknown to Genex Power Ltd shareholders but not to J - Power and those on the Genex board, (including Mr Kenechi Seshimo), promoting the takeover “bid”
For Genex shareholders those issues, initially highlighted in the Report of Misconduct to ASIC, centered upon the share price manipulation associated with the “SECRET” loan AND the K2H project. Seemingly, all three Commonwealth Government entities, are yet to properly address issues raised. ASIC has, without comment, granted a time extension for the takeover.
The two ministers responsible for the Northern Australia Infrastructure Facility Act 2016, the Hon Madeleine King and the Hon Katy Gallagher, can hardly claim they have not been briefed on the situation; especially with respect to the pivotal issue, the “SECRET” loan from NAIF.
In the face of the deadly silence by ASIC I have emailed the Chair and Non- Executive of the Foreign Investment Review Board; Mr Bruce Miller OA:-
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May 29, 2024, 10:20 AM (2 days ago) |
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Mr Bruce Miller AO
Chair and Non-Executive Member
Dear Mr Miller
I have attached to this email a copy of a letter I sent yesterday to Mr Peter Witham, Acting Senior Executive Leader, Misconduct and Breach Reporting, ASIC, Brisbane.
As you can read in the attachment I lodged a Report of Misconduct with ASIC concerning matters leading up to the Transaction Implementation Deed, announced via an ASX Announcement on 12 April, 2024.
My concern was with what I saw as MARKET MANIPULATION by the Genex Power Ltd board. The manipulation was, in my view, integrally associated with non-disclosure of details of the $610 million concessional loan from NAIF to Genex Power Ltd. I believe the market manipulation resulted in an unfair and unreasonable offer being made to the Genex Power Ltd shareholders.
FIRB officers can readily research the bigger picture, such as the non-disclosure of information about the Bouldersome Battery and the highly questionable involvement of Goldman Sachs.
I was always aware of the broader issues of foreign ownership; particularly the potential foreign ownership of the NAIF loan. A loan I have come to describe as the "SECRET" NAIF loan.
That is not a matter I have concerned myself with until it became clear that NAIF itself had not developed a legal and policy position over the possible change of ownership of its loan.
This has become a complex matter and now involves Ministers King and Gallagher, the ministers responsible for the Northern Australia Infrastructure Facility Act 2016.
I trust you and your fellow FIRB Members will be mindful of the overall circumstances surrounding this takeover?
I have copied this email to Mr Witham and the Chief Legal Officer for NAIF, Mr Chris Collins.
Yours sincerely
HLP
Mr Peter Witham
Acting Senior Executive Leader
Misconduct and Breach Reporting
ASIC, Brisbane.
Report of Misconduct
CAS - 150437 - J4F7C3 (Registration Date yet to be provided).
The essence of my Report of Misconduct concerns MARKET MANIPULATION of the Genex Power Ltd share price.
On the board of Genex Power Lid board is an employee of J - Power, (Electric Power Development Co,. Ltd), (Mr Kenechi Seshimo). The Genex board, (including Mr Seshimo), did not comply with continuous disclosure requirements over a crucial period leading up to the takeover “bid” from J - Power.
The Genex board failed to disclose financial information about the likely impact of the commissioning of the Kidston Storage Pumped Hydro, (K2H), project on Genex Power Ltd. My contention is that a consequence of the failure to disclose this and other information, (the Boulderscome Battery), was that the VWAP used by the bidder to justify the offer price of 27.5 cents was significantly less than the fair and reasonable value of Genex Power Ltd shares.
The conflicts of interest within the board and the failure to disclose pivotal informationI gave rise to my Report of Misconduct and my argument that the takeover proposal warranted the involvement of the Takeovers Panel.
The crucial withholding of information from the market in general and Genex shareholders in particular centers around the $610 taxpayer funded concessional loan from the Northern Australia Infrastructure Facility, (NAIF). I have, for obvious reasons, described this loan as the “SECRET” loan.
Given the responsibilities of the Minister for Northern Australia and the Minister for Finance for the Northern Australia Infrastructure Facility Act 2016 I have informed them of my Report of Misconduct AND pointed out to them and Departmental Officers that the Report of Misconduct arose from the compromised Genex Power Ltd board not providing climacteric financial information, vital components of which would require revealing details of the “SECRET” loan.
In raising the above with the ministers I have caused the question of the future ownership of the “SECRET” concessional loan from NAIF, should the takeover succeed. Despite it being nearly three months since the takeover was first raised in an ASX Announcement, dated 4 March 2022, NAIF’s Chief Legal Officer is unable to clarify the Facility’s legal and policy position with respect to the “SECRET” loan.
Given the handling by NAIF of the Kidston/Skip Capital Consortium takeover “bid” in 2022 you can appreciate my concerns about the ongoing lack of transparency about the “SECRET” loan?.
You still have not provided the date on which my Report of Misconduct, (CAS - 150437 - J4F7C3), was registered. No reference date yet ASIC has provided the parties to the Transaction Implementation Deed, (TID), with an extension of time?
I am of course well aware of the ASIC tactic of saying “we will not contact you unless” but the takeover has caused very serious issues to be raised with ASIC, NAIF and Ministers King and Gallagher, whose duties include responsibility for the Northern Australia Infrastructure Facility Act 2016.
Is it ASIC’s intention to turn the proverbial “blind eye” to the multitude of issues raised by the opportunistic takeover offer from J - Power for Genex Power Ltd? Some issues directly concern ASIC, others involve NAIF and the two responsible Ministers and some involve all three aforementioned parties.
I have copied this email to Mr Allan Bulman, (Chief Executive of the Takeovers Panel), Mr Chris Collins, (Chief Legal Officer with NAIF), Ms Casey Greentree, (Assistant Secretary, Office of Northern Australia) and Ms Louise Sasaki, (Louise Sasaki Assistant Secretary, Infrastructure, Communications and Agriculture, Department of Finance).
I have also posted it to HotCopper.
Yours sincerely
HLP
28 May 2024
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May 30, 2024, 10:42 AM (22 hours ago) |
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to Casey, Louise, Allan, Bruce, Peter, Chris |
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Dear Sirs
I refer to the email I sent yesterday.
You are well aware the transaction between Genex Power Ltd and Electric Power Development Co,. Ltd requires the approval of the Foreign Investments Review Board.
You are also aware of the Report of Misconduct lodged with ASIC,, primarily concerning the manipulation of the Genex Power Ltd share price leading up to the NBIO, announced on 4 March. Manipulation justifying the involvement of the Takeovers Panel?
As well you are aware of the seemingly unresolved issue of the possible change in the beneficiary of the taxpayer funded $610 million "SECRET" concessional loan from NAIF.
These and associated issues would, presumably, have been brought to the attention of the two responsible ministers with detailed briefs from the Departmental officer, (Ms Casey Greentree and Ms Louise Sasaki)?
Given ASIC is facilitating an extension of time for the TID, (https://research.nabtrade.com.au/uploadhandler/z15907c0azbbd063f2176e42da8045305fe19ecea0.pdf), it seems well past time for ASIC, NAIF and the FIRB to become transparent about this Genex/J- Power takeover transaction?
You have had ample time to discuss these matters; it seems time for others to be alerted to the utter lack of transparency, seemingly fostered by ASIC.
Yours sincerely
HLP
