Forum Topics PLS PLS ASX Announcements

Pinned straw:

Added 3 months ago

PLS announced a "Disclosure of equity derivative positions".

From the announcement:

Pilbara Minerals is releasing this letter to ensure full transparency, however has no reason to believe that the information, of itself, is materially price sensitive and is not aware of any additional information of relevance.

The announcement details a number of call and put options entered into by Ganfeng Lithium, a Chinese lithium producer.

I assume this doesn't really mean much, otherwise it would be marked price sensitive, but I'm still curious to understand more about why it's been released at all.

I understand the overall structure - Ganfeng have limited their downside and upside within a certain price range - and while the overall position is large, at 105 million shares, it's still under 5%.

Further from the announcement:

Guidance Note 20: Equity Derivatives (GN20) issued by the Australian Takeovers Panel... provides that the non-disclosure of equity derivative positions, including short equity derivative positions that offset long positions, may give rise to unacceptable circumstances.

I'm guessing "unacceptable circumstances" actually means something to those in the know? One thought I had was that this could flag some price volatility around the strike price of the options? If any members have experience or thoughts I'd be interested to hear your take.

Bear77
Added 3 months ago

https://takeovers.gov.au/guidance-notes/gn4#:~:text=If the Panel makes a,unacceptable circumstances had not occurred.

The Takeovers Panel (TOV) can make a declaration of unacceptable circumstances, which is usually as a result of a situation where a company has failed to fully comply with their continuous disclosure obligations under Listing Rules 3.1 and 3.1A which is there to provide some assurance that the market can operate in a fully informed manner rather than some participants having an unfair advantage over others.

The definition of continuous disclosure is: Once an entity is or becomes aware of any information concerning it that a reasonable person would expect to have a material effect on the price or value of the entity’s securities, the entity must immediately tell ASX that information. 

Source: https://www.asx.com.au/content/dam/asx/about/compliance/abridged-cd-guide.pdf

Further information: https://takeovers.gov.au/guidance-notes/gn4#:~:text=If the Panel makes a,unacceptable circumstances had not occurred.

Background

  1. This guidance note has been prepared to assist market participants understand the Panel's approach to remedies generally. The examples are illustrative only and nothing in the note binds the Panel in a particular case.
  2. If the Panel makes a declaration of unacceptable circumstances,1 it may make orders:
  3. to protect rights or interests affected by the unacceptable circumstances or
  4. to ensure (as far as possible) that a bid proceeds as if the unacceptable circumstances had not occurred.2
  5. The Panel may not make an order directing a person to comply with a requirement of Chapter 6, 6A, 6B or 6C.
  6. The Panel may make interim orders.3 These can be to the same effect as final orders, can operate for up to 2 months and do not require a declaration of unacceptable circumstances to be made first.
  7. The Panel does not seek to punish when deciding on a remedy. But the remedy may adversely affect a person, provided it is not unfairly prejudicial.4 In addition, a declaration, orders or other statement (eg, reasons) may expressly or impliedly involve a reprimand of a party or adviser.


So while the TOV is generally required to make asssesments on takeovers and the ownership structures, i.e. true owners of shares and their alignment or agreements to act together as a voting block, of both listed businesses and the entities attempting to takeover those businesses, or who simply have a substantial holding in those businesses, there have been instances where complaints have been made to the TOV over derivatives because they can have the effect of making true ownership rather opaque.

If all such matters are disclosed (as this has been disclosed in this case) then the TOV can NOT make a declaration of unacceptable circumstances at a future date because of a complaint in relation to a takeover attempt of Pilbara by Ganfeng or any consortium that includes Ganfeng.

However it pays to note @Ipsum that an actual takeover attempt does not have to be made before the TOV can become involved as a result of a complaint. Anybody can complain to the TOV about ownership arrangements not being clear and fully disclosed - at any time, and the TOV can make orders to remedy that - including directing ASIC to sell some of the company's shares to unrelated parties.

I know of one example where the TOV found that the true owners of a gold mining company (Tribune Resources, TBR.asx) was not being fully disclosed including because of cross-shareholdings between TBR and its sister-company Rand Mining (RND) and the holding companies that were "Subs" of both and the tangled web of who actually owned and/or controlled those holding companies. The Panel made a declaration of unacceptable circumstances and ordered ASIC to sell Rand's shares in Tribune to an unrelated party - which ended up being Jake Klein's Evolution Mining (EVN), the third largest gold producer in Australia at the time.

That was interesting because at that particular time the only gold producing asset of both Tribune and Rand was an interest in the East Kundana Joint Venture (EKJV) which was majority owned and operated by Northern Star (NST), Australia's second largest gold producer at that time, and NST ended up selling their share of the EKJV to EVN, and EVN have rolled those assets and some other assets into what they now call their Mungari gold production centre; I mentioned yesterday in a straw that NRW (NWH) had won a significant contract for mining services and construction at Mungari.

See here:

Tribune Resources Limited - Orders [29-Oct-2018]

https://evolutionmining.com.au/storage/2021/07/2237858_Acquisition-to-Elevate-Mungari-to-Cornerstone-Asset.pdf [22-July-2021]

https://evolutionmining.com.au/wp-content/uploads/2023/09/Mungari-fact-sheet-FY23.pdf [FY23]

So in that case, the fact that the panel found that Anton Billis owned and controlled more of Tribune (TBR) than had been disclosed up until that date - i.e. had a controlling interest in Tribune and that controlling interest was opaque, resulted in shares being forcibly sold by ASIC under orders from the Australian Government's Takeovers Panel (TOV) after the TOV had investigated the matter and made a declaration of unacceptable circumstances.

I profited from following that one closely because I knew that the vast majority of both TBR's and RND's assets were gold bullion stored in the Perth Mint that was listed on their books at cost, not at market value, and therefore made them look like they were both worth a LOT less than what they actually were worth if you valued that gold at market prices. After the TOV made that declaration of unacceptable circumstances but before they handed down their orders, the Board of Tribune and the Board of Rand both resolved to sell a significant portion of their gold bullion, pre-pay a bunch of tax, and to both declare large special fully-franked dividends to their shareholders with an immediate ex-dividend date; they then both subsequently moved the payment date for those special dividends forward and basically paid both special div's immediately.

One could be forgiven for thinking that looked like the current majority shareholders of the company were trying to get a fair chunk of cash out of the business BEFORE they were forced to divest a bunch of shares. The disgruntled shareholder(s) who had made the original complaint to the TOV had done so on the basis that the ownership structure was not properly disclosed and allowed the majority owners to accumulate all of that gold in the Perth Mint instead of distributing their true profits to their shareholders in the form of dividends, so obviously those disgruntled shareholders did NOT complain about those large special dividends, and they went through, and I got both of them.

Point being - the TOV can make orders that ASIC are bound to follow, and they can have a meaningful impact on the Substantial Holders of companies, including reducing their ownership, so companies will now often disclose these derivative details purely so that they can not be accused of withholding relevant information if and when there is a complaint made later to the TOV. Those complaints are USUALLY made when a company is in play (a takeover offer or two have been made) but not always, sometimes it can just be about who the majority controllers of the listed business are, which was the case with Tribune (TBR), who had not received any takeovers before the TOV got involved.

Interestingly, AFTER the panel had made the declaration of unacceptable circumstances, NST did NOT make a takeover for both RND and TBR, but DID offer to buy TBR's and RND's respective shares in the EKJV off them, an offer that was soundly rejected by both companies' Boards (after one day's deliberation) as being far too low and opportunistic (Duhh!!).

But yeah, short version is that companies tend to disclose anything that has in past cases been used by the TOV as fodder for a declaration of unacceptable circumstances, because they want to avoid the TOV orders that come after such a declaration.

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Ipsum
Added 3 months ago

Thank you @Bear77 - that's a fantastic response. Appreciate you taking the time, and sharing your story!

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