Hello Squire - I have been back reading through this and IMO I think there is a dual situation here in that according to ASX listing rule 11.2 TAM BOD were required to include "subject to shareholder approval" now in oridnary contarct law you would need to show an "intention to be bound" now from my reading MLX are able to show the TAM board indeed had an "intention to be bound" and I notice that plenty go on a tangent in regard the shareholder approval and they miss your point entirely. The problem is though that we are only talking about 2 parties to this "intention to be bound" and that is the TAM BOD & Metal X but this is where the duality comes in and is a legal requirement from the ASX in listing 11.2 and fleshed out more in 12.3 in regard the "third parties" or plain old shareholders..
So IMO you are both right in saying there was an intention and agreement in regard the HOA with MLX IMO and wrong in that the agreement can not extinguish the shareholders rights as enshrined in the ASX..
IMO I think if this case goes further that a lot of attention will be paid to it because in a legal sense this could overturn the shareholder protections enshrined in listing rule 11.2 if MLX are successful and are able to claim damages which will directly affect TAM shareholders.
So IMO the argument really is was there an agreement with conditions etc and the answer is yes and was the intention to be bound? and the answer is yes BUT with each yes must also be attached with YES (subject to shareholder approval) - I'm of the opinion that this will revolve around listing rule 11.2 in the nuts and bolts.. It may well change the whole shareholder position not just in TAM but in all ASX listed companies and I would be very surprised to see shareholders hung out to dry in this matter...
It also strikes me that given the discussions which must have been ongoing between MLX & TAM why didn't MLX lift their offer by a few million and be done with it? - they would only need to have matched NST's offer - not even beat it because they were already in discussions well advanced...
...smells personal to me and I see reported in the Western Australian this month that MLX's main shareholder wants out with possible reference/connection to this matter.. IMOO
