This is a service specifically targeted at the needs of busy non-executive Directors.  We aim to give you a “heads up” on the things that matter for NEDs in the week ahead – all in two minutes or less.

In this edition, we consider proposed enhancements to the ASX Listing Rules, the Takeovers Panel’s decision relating to the affairs of Bullseye Mining Limited, and applications the Panel has received in respect of Wollongong Coal Limited and Virtus Health Limited.  In Over the Horizon, we consider the road ahead to the 2022 Federal election.

There will be no Boardroom Brief next week following the Easter holidays, however, stay tuned for our next edition on 26 April.

GOVERNANCE & REGULATION

Proposed enhancements to ASX Listing Rules.  On 5 April 2022, ASX released a consultation paper detailing proposed enhancements to the ASX Listing Rules which seek to ensure the ASX market “continues to serve the interests of both investors and issuers”.  The proposed amendments relate to, amongst other things, (1) the issuance of securities by listed entities via share purchase plan and pro-rata issues (imposing pro-rata scale-back requirements in order to meet the relevant exceptions to Listing Rule 7.1) and via material placements (seeking views on proposed further disclosure requirements); (2) the financial reporting framework for listed entities; (3) the admission of an entity to the official list and quotation of its securities; (4) transactions by listed entities with persons in a position of influence (including amendments to the termination benefit restrictions which would allow benefits to be provided in a change of control context with shareholder approval in certain circumstances); and (5) the lodgement of documents by listed entities with ASX for release to the market.  Stakeholders are invited to provide feedback on the amendments, with submissions open until 27 May 2022.  Subject to receiving the required approvals, it is envisaged that the final amendments will be released in Q3 of 2022 to take effect on 1 December 2022.  See ASX’s consultation paper and G+T's article ‘ASX consults on listing rule updates that will impact IPOs and secondary raisings’.

LEGAL

Takeovers Panel makes declaration of unacceptable circumstances relating to director intention statements.  In a previous edition of Boardroom Brief, we considered an application made by Hongkong Xinhe International Investment Company Limited (Xinhe) in respect of the affairs of Bullseye Mining Limited (Bullseye).  Bullseye is the subject of an off-market takeover bid by Emerald Resources (Emerald) and a separate off-market takeover bid by Au Xingao Investment Pty Ltd (Xingao).  The Panel has now made a declaration of unacceptable circumstances.  The Panel’s decision centred on issues relating to (1) Emerald’s pre-bid stake and related disclosure; and (2) the Bullseye directors’ intention statements, which did not comply with Panel guidance and were the subject of a warranty in the bid documentation that the directors intend to accept within 7 days of the Emerald bid opening – a clear limiting effect on the ability for a competing proposal to be made.  See reasons for decision.

Takeovers Panel receives application in relation to the affairs of Wollongong Coal Limited.  The Panel has received an application in relation to the affairs of Wollongong Coal Limited (Wollongong).  Wollongong is an unlisted public company, of which 90% of shares are held by Jindal Steel & Power (Mauritius) Limited (Jindal).  On 17 December 2021, Jindal commenced a compulsory acquisition process for the remaining 10% of Wollongong shares and an independent expert’s report was provided – this report is the subject of the application.  On 17 January 2022, the Panel in Wollongong Coal Limited 02, declined to conduct proceedings on acceptance of an undertaking from the independent expert that it would prepare a supplementary or replacement report which addressed criteria set by the Panel.  On 21 March 2022, Jindal served a new compulsory acquisition notice accompanied by a revised independent expert report.  It is now alleged that the revised report does not comply with the undertakings by the expert to the Panel, including further shortcomings in determining “fair market value” and lacking technical details relating to Wollongong’s mineral assets.  See media release.

Takeovers Panel receives further application in relation to Virtus Health Limited.  The Panel has received a further application relating to the affairs of Virtus Health Limited (Virtus) – this time  from CapVest Partners LLP (CapVest).  Virtus is the subject of competing control proposals from both CapVest and BGH Capital Pty Ltd (BGH) – with Virtus announcing this morning that the Board has determined that the latest offer received from CapVest is superior to the BGH bid.  On 6 April 2022 BGH, who holds 19.99% of Virtus, released on ASX its bidder’s statement containing offers conditional only on the matters listed in s 652C of the Corporations Act.  CapVest submits to the Panel that BGH’s bidder’s statement does not meet the requirements of Market Integrity Rules as they relate to disclosure of the impact of on-market purchases on bid pricing.  CapVest is seeking orders restraining BGH’s broker from acquiring Virtus shares on-market at a price higher than the bid price until BGH has announced the price it proposes to acquire the shares at.  On Monday morning, the Panel made interim orders to this effect.  See the Panel’s media releases with respect to the application and the interim orders.

OVER THE HORIZON

Locked and loaded for a federal election.  With the High Court on Friday refusing leave to appeal the Court of Appeal’s decision regarding the challenge to the NSW preselection process, the way was cleared for the Prime Minister to call a federal election on 21 May 2022.  The campaign will be run against a volatile global business environment, with the world fighting potential new COVID-19 variants, the continuing Russia and Ukraine conflict, disruptions to global supply chains and the threat of rising inflation and interest rates. While relatively lackluster to date, the pace of election debate seems likely to increase as alternative policy positions on a range of issues come into sharper focus including (1) measures to address the rising cost of living; (2) the road to recovery from the nation’s A$1tr COVID-19 debt; (3) tangible policies to meet the 2050 net zero targets; and (4) debate around the future of aged care and disability spending in Australia (both of which are arguably on an unsustainable path).  Early polls suggest an ALP victory, but as we know one week, let alone six, is a long time in politics.