TCL likely to lose shareholder’s battle

Trinidad Cement Limited (TCL) has been in a battle with some local shareholders who want representation on the company’s board of directors. This group of minority shareholders requested that the annual general meeting (AGM), which should have been held on Friday, July 12, 2013, to be put off pending a court hearing as to whether a resolution to nominate them should be put on the agenda for consideration.

The request by the minority shareholders to seek to nominate directors and have their names included as such on the notice calling the annual general meeting is reasonable, but that would have to be done ahead of the notice period, which is usually 21 days ahead of the meeting. Information from the Guardian suggest that the company was formally informed of the request well ahead of the deadline date and the shareholders seem well within their right to prevent the AGM from going ahead. In all probability, the minority shareholders will win their initial battle with the company but it’s left to be seen if they will succeed at the AGM which now seems likely to be held in 2014 instead.

TCL latest advisory | TCL has just advised that, further to its Notice to Shareholders and Employees dated October 22, 2013 in relation to TCL v. Wilnet Holdings Limited & Ors., the injunction, which restricted TCL from holding its 2012 Annual Meeting, was upheld by the Court of Appeal on November 20, 2013. The Case Management Conference for the substantive matter was held on December 2, 2013 and has been put to January 20, 2014 for directions.

Prior to this latest release, Trinidad Cement stated in a June release to the T&T Stock Exchange that “On 14th June, 2013 TCL received a Shareholders’ Proposal from a group of eleven shareholders holding 5.68% of TCL, and includes Wilnet Holdings Limited, Stephen Espinet, MASA Investments Limited, Brimont Limited, Kamal Ali, Alescon Readymix Limited, Bourne Investment Inc., Tatil Life Assurance Limited, Nicholas Development Limited, Helen Bhagwansingh and Issa Nicholas Holdings.”

The matter went to court and was put off for hearing to Friday, 4th October, 2013 in spite of various representations made to the court for a speedier hearing of the matter by both sides.

TCL stated that “Based on facts that have come to light in this matter including the statements and admissions made by Wilfred Espinet in his affidavit filed in Court, and having regard to the circumstances surrounding the involvement of Republic Bank, Ian De Souza and Wilfred Espinet in the orchestration of the Shareholders’ Proposal, TCL has lodged the following:

A complaint to the Central Bank, requesting that De Souza be disqualified from the status of being a fit and proper person to be concerned with the management of a financial institution, under the Financial Institutions Act, 2008; and
A complaint to the SEC against Republic Bank, Ian De Souza and Wilfred Espinet pursuant to Section 92 (b) of the Securities Act, 2012;
A request that the SEC undertake an investigation pursuant to Section 150 of the Securities Act into whether or not Messrs. De Souza and Espinet have contravened the insider trading provisions contained in Sections 100 to 101 of the Securities Act.”

There is no indication that any action have been taken against the persons mentioned above. The TCL board has been opposed to adding directors to the existing ones.

What happened | From information gleaned from the Guardian Newspaper, “According to their fix date claim form, which was obtained by the T&T Guardian, the group is challenging a decision by TCL directors to refuse to attach the group’s proposal and statement to the management proxy circular which accompanied the notice of the annual meeting. The proposal and statement related to the group’s proposed nomination of five directors to TCL’s board that were submitted on June 14. In the lawsuit, the group is seeking a declaration, which would render the board’s June 24 decision unlawful, null, void and of no effect. Before filing the lawsuit, it wrote to the board members on June 20, asking them to reconsider their decision. The group informed the board it was the perogative of the shareholders to decide and vote on the composition of the board. “Our nominees would have to be elected at the annual meeting by the shareholders and they are not automatic of the directors, who may wish to put themselves up for re-election and therefore the suggestion with respect to proportionality of board representation and contest for directorships seems misplaced,” the group said.

Included in the lawsuit, is a 12-page affidavit, sworn by Espinet, in which he detailed the dealings between the two parties which led to the legal action being filed. Espinet said he became concerned over TCL’s financial position after the company failed to declare a dividend between 2008 and 2012. “As a result of my concerns and the fact that I held investment in TCL as a shareholder, I had conversations with a number of people about the state of affairs at TCL,” Espinet said. He said the group joined together this year in an attempt to nominate five experienced persons to the board to replace five current board members whose terms were due to expire at the meeting. Espinet said after the meeting was first announced on May 18, the group submitted its proposal to TCL’s corporate secretary on June 14. He claimed that ten days later, TCL’s chairman Andy Bhajan communicated with the group and informed them of the board’s decision to refuse its proposal”.

Trinidad Cement Limited (TCL) is a IC Insider Buy Rated stock