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 ASIC’s guidance on Jobkeeper obligations and encouraging review of whistleblower policies. We also consider applications to the Takeovers Panel in relation to off-market takeover bids for Gascoyne Resources Limited and PM Capital Asian Opportunities Fund and a declaration of unacceptable circumstances in relation to the affairs of AusNet. Finally, in this week’s edition of Over the Horizon, we consider avoiding the “greenwash” in the rapidly growing Australian Sustainability Linked Loan (SLL) market.

GOVERNANCE & REGULATION

ASIC guidance on Jobkeeper disclosure obligations. Last week, ASIC issued guidance to assist listed entities in complying with the Jobkeeper payment disclosure obligations that commenced on 14 September 2021. See a previous edition of Boardroom Brief for further details on the notice requirements, which Directors should consider as part of their continuous disclosure obligations, at least for the next year. ASIC has also issued Information Sheet 263 containing a list of frequently asked questions on a listed entity’s obligation to disclose information about Jobkeeper payments, and how information should be disclosed. ASIC’s guidance importantly flags that if Directors become aware of a JobKeeper notice being incorrect or no longer current, a new notice must be provided to ASX within 60 days of becoming aware of that fact. See ASIC’s notice.

ASIC encourages review of whistleblowing policies. On 13 October 2021, ASIC wrote a letter to CEOs of public companies, large proprietary companies and trustees of registerable superannuation entitles urging them to review their whistleblower policies to ensure legal compliance. As many should be aware, each of these types of companies were required to have compliant whistleblower policies in place by 1 January 2020. However, ASIC has noted that this is still not the case. ASIC outlines common issues and defects identified in a sample of whistleblower policies which it has reviewed. Issues include not clearly articulating how, and to whom, a person can make a disclosure, and accurately describing the legal rights and remedies whistleblowers can rely on if they make a qualifying disclosure. The letter serves as a reminder to all Directors to ensure your company’s policies are up to date and compliant, and to consider the compliance of your entity’s whistleblower policy as a regular agenda item. For further guidance, see G+T’s guide to ensuring your whistleblower policy is compliant here.

LEGAL

Takeovers Panel receives application concerning an off-market takeover bid of Gascoyne Resources. The Takeovers Panel has received an application from Westgold Resources Limited in relation to Westgold’s off-market takeover bid for the shares in Gasgoyne Resources Limited (Offer).The Offer follows Gascoyne’s announcement to ASX in June 2021 that it intended to merge with Firefly Resources Limited by way of a scheme of arrangement (Scheme). Gascoyne and Firefly have entered into a binding Scheme Implementation Deed which contains mutual exclusivity provisions, including a ‘no talk’ restriction subject to a ‘fiduciary out’. On 13 October 2021, Gascoyne announced its recommendation to Gascoyne shareholders to reject the Offer on the basis that it “undervalues Gascoyne shares” and “does not represent a superior alternative” to the Scheme. Westgold seeks final orders to amend the Scheme Implementation Deed to include a termination right in the event of a “superior proposal” and interim orders to adjourn, defer or postpone the Scheme meeting. The application is made on the basis that the ‘fiduciary out’ is “ultimately illusory” and does not present an opportunity for the Gascoyne Board to support a superior offer to the Scheme. In particular, Westgold submits that Gascoyne has “no express contractual ability of its own volition” to terminate the Scheme and would instead need to argue that there is some implied right of termination in circumstances that such termination is in accordance with the Gascoyne Directors’ fiduciary obligations. The decision provided by the Panel will provide useful insight on the sufficiency of a ‘fiduciary out’ as a mechanism to terminate a Scheme, or whether a more direct link between the Directors’ fiduciary obligations and right to terminate is required. See Takeover Panel’s media release.

Declaration of unacceptable circumstances in relation to the affairs of AusNet. The Takeovers Panel has made a declaration of unacceptable circumstances and final orders in relation to an application made by APA in relation to the affairs of AusNet. See a previous edition of Boardroom Brief for details on the application. In short, APA submitted that the confidentiality deed and exclusivity arrangements between Brookfield (a bidder for AusNet shares) and AusNet prevented AusNet from responding to APA’s competing bid and hindered the control of AusNet occurring in an efficient, competitive and informed market. The Panel had regard to the lock-up devices and considered the exclusivity arrangements and confidentiality deed, taken together, have an anticompetitive effect. The Panel made orders that the no talk restrictions in the confidentiality deed will be of no force and effect unless the deed is amended to include a ‘fiduciary out’ clause and that AusNet must disclose the material terms of the confidentiality deed as affected by the Panel’s orders. The Panel’s reasons for this decision will be published in due course. See the Takeovers Panel’s media release.

Takeovers Panel receives application in relation to the affairs of PM Capital Asian Opportunities Fund Ltd. The Takeovers Panel has received an application from WAM Capital Limited (WAM) concerning WAM’s off-market takeover bid of PM Capital Asian Opportunities Fund (PAF). PM Capital Limited is the investment manager (PM Manager) of PAF and PM Capital Global Opportunities Fund Ltd (PGF). PGF proposes to acquire all of PAF’s shares by way of scheme of arrangement. The Scheme Implementation Deed entered into by parties to effect this contains a break fee of $500,000. WAM subsequently announced its intention to make an off-market takeover bid for PAF. Since WAM’s announcement, PGF and PM Manager have provided a range of change of substantial holding notices in PAF, slowly increasing their voting power. WAM submits, amongst other things, that there is a lack of disclosure surrounding the notices which hinders WAM’s bid from taking place in an efficient, competitive and informed market and that the break fee creates unequal opportunity for PGF to participate in WAM’s bid. WAM seeks interim orders preventing PGF and PM Manager from acquiring additional interests in PAF, to correct their substantial holding disclosure and seeks final orders to remove the break fee. The Panel has not yet decided whether to conduct proceedings. See the Takeovers Panel’s media release.

OVER THE HORIZON

Sustainability Linked Loans and avoiding the “greenwash”. Sustainability Linked Loans (SLL) refer to any type of loan instruments and/or contingent facilities which incentivise the borrower to achieve predetermined sustainability performance targets, as measured by agreed key performance indicators. These SLLs are becoming more and more common as lenders are expected to meet their own sustainability criteria in deciding who they lend money to. A recent article published by G+T highlights SLLs being called into question – on the one hand - for not being sufficiently ambitious or impactful in the minds of other market observers – and on the other – by running the risk of greenwashing. Particular attention needs to be drawn to avoiding the accusations of “greenwashing” on what are exciting new SLL transactions. When negotiating (or in fact, considering in the first place whether to enter into) these SLLs, Directors must give careful thought as to what the key performance indicators might look like, and how these accord with the entity’s broader messaging, goals and progress already communicated to the market.