TP02/031
The Panel advises that it has published its reasons for declining an application from Focus Technologies Ltd under section 657C of the Corporations Act requesting a declaration of unacceptable circumstances in relation to a parcel of 10 million options to subscribe for shares in Focus.
The Panel decided, on the facts and circumstances of this particular case, there was no urgent basis for intervention by the Panel. The relevant facts are that:
- the options are not currently exercisable;
- they are unlikely to be exercisable in the foreseeable future;
- they could be exercised in a number of ways which would not breach the Corporations Act; and
- no evidence was presented that Mr Wayne Bos intends to rely on the shareholder resolutions of 10 July 2001.
The application related to a parcel of 10 million options issued by Focus to Tomorrow Corporation Pty Ltd, which was, at the time, a wholly owned subsidiary of Tomorrow Limited. The options represent up to 26.7% of the issued capital of Focus. The options were originally approved by Focus shareholders as a part of a package of proposals put to Focus shareholders for a proposed project with Tomorrow Limited. The other components of that package have not proceeded for various reasons.
Tomorrow Corporation is now controlled by Mr Bos, who has ceased to be associated with Tomorrow Limited.
Focus sought cancellation of the options, but Tomorrow Corporation declined.
Focus is currently suspended from trading on ASX.
After it initially indicated its reluctance to make a declaration, the Panel provided Focus with a further period in which to establish that the risk of unacceptable circumstances was real and current. Focus has not provided further evidence that that is the case.
The sitting Panel on this application is Chris Photakis (sitting President), Teresa Handicott, Marie McDonald.
Nigel Morris
Director
Takeovers Panel
Ph: +61 3 9655 3501
nigel.morris@takeovers.gov.au
