Open Letter to Mr Neil Biddle
Dear Neil,
In my capacity as a Shareholder of TNG Limited, I have some important questions regarding your appointment as Chair, announced on Friday.
I refer to the company’sASX announcementauthorised by the TNG Board by Mr Burton. This makes reference to Resolution 5 to be voted on at the upcoming General Meeting on 20 September.
Resolution 5 states “That, pursuant to section 203D(1) of the Corporations Act 2001 (Cth), any person appointed as a director of the Company on and from 18 July 2022 until the commencement of the general meeting at which this resolution is passed be removed as director of the Company with effect from the end of the general meeting of the Company at which this resolution is passed”.
The TNG Board states:
This resolution (being Resolution 5 described in the Notice) purports to apply to the appointment of Mr Biddle even though Mr Biddle was appointed after the Notice was despatched and when voting is already underway.
The Company’s position is that, if Resolution 5 is passed, the Company (or an interested person such as Mr Biddle) may seek to challenge the validity of Resolution 5 insofar as it relates to Mr Biddle.
The Company notes that Mr Biddle will be up for election by Shareholders at the Company’s Annual General Meeting in November in accordance with the usual provisions of the Company’s constitution.
The Board continues to recommend, for the reasons set out in the Notice, that Shareholders vote AGAINST all resolutions at the upcoming GM, including Resolution 5 which purports to apply to Mr Biddle.
My questions are:
Do you stand by the above statements in your capacity as Chair?
If so, can you please explain why Resolution 5 does not apply to you, being a Director appointed on and from 18 July 2022 yet before the General Meeting?
Noting the corrosive effects of Board stacking, can you please explain why the Notice being despatched, or voting having commenced, would be in any way relevant to the validity of Resolution 5?
Given the company has already acknowledged that Resolution 5 applies to Ms Henson, being a Director appointed on 29 July 2022, how it does not apply to you?
Can you please explain the basis on which you would be an “interested person” in challenging the validity of Resolution 5 and not Ms Henson?
Can you please explain how it is that you will be up for election at the Annual General Meeting if all Resolutions are passed at the General Meeting, including the resolution for your removal?
My position is that:
Resolution 5 applies to yourself, as well as Ms Henson;
The company’s statement that it "may seek to challenge" assumes that the company has a basis to challenge Resolution 5. There is no such basis;
The company’s statement is inaccurate and misleading, and may lead Shareholders into error;
The statement is significant given the company's recommendation to Shareholders to vote against the resolutions and the company's encouragement to Shareholders to vote and "change their vote" contained in the ASX announcement;
Any such legal challenge impugns the important statutory rights of the company’s Shareholders. Shareholders have a right under S203D of the Corporations Act to propose a resolution to remove a Director from office;
As Chairman of TNG you have an obligation to correct the company’s inaccurate and misleading statements in the public domain.
I remind you of the following general duties owed as a Director of the company:
To act in good faith in the best interests of the company;
To exercise powers and discharge duties for a proper purpose;
To act with reasonable care and diligence;
To avoid conflicts of interest;
To not improperly use company information or your position to gain an advantage for yourself or someone else or to cause detriment to the company.
I ask that you assign the utmost urgency to answering the questions raised, and in a manner that corrects the public record.
Kindest,
Grant Wilson
