Well done ShareSoc and all the minority shareholders who are battling away for their rights at Lees Foods (LEE). The company has just announced a very significant change to the process of trying to do an MBO of the company via a scheme of arrangement (SoA) without providing satisfactory financial information to shareholders.Firstly ShareSoc sent out a Press Release on Friday and the story was picked up by the Scottish newspapers. Lees is based in Scotland.http://www.sharesoc.org/ShareSoc_Press022_Lees%20Foods.pdf The offer of 230p was only at a very small premium to the previous closing price when itwas first revealed. Bearing in mind that the insiders involved in the take-over bid may not be able to vote on the offer, it may be possible to frustrate the bid.Shareholders in Lees Foods should contact ShareSoc to co-ordinate action on this issue or go to this web site to register your interest and express your opinion:www.freesharedata.com/lees-foodsThere are other peculiar aspects of this matter. There is, for example, a suggestion that the year-end accounts are being delayed, with only 2011 interim accounts beingreferenced in the offer document.Is this yet another example of the poor corporate governance demonstrated by many AIM companies? (ENDS)It should be noted that SPECIFIC reference was given to the delayed year end accounts and insufficient financial information for shareholders to make a decision. Incredibly the auditors have claimed £17000 NOT for undertaking the audit of these accounts BUT for preparing a letter to confirm the profit estimate.Minority shareholders have joined ShareSoc and demanded the annual results which were due this month. The scheme of arrangement should not proceed without the results.SUCCESS !An hour ago the company has announced...http://www.investegate.co.uk/Article.aspx?id=201205011122284...Notice of Preliminary Results and Proposed Adjournment of Court Meeting and General MeetingThe Company expects to announce its Preliminary Results for the year ended 31 December 2011 (the "Preliminary Results") on Tuesday, 8 May 2012 which will be sent to shareholders in hard copy following their announcement. Furthermore, the Company announces its intention to seek an adjournment of the Court Meeting and the General Meeting due to be held on 15 May 2012, in order to give shareholders sufficient time to consider the Preliminary Results prior to voting at these Meetings.Now we just have the matter of continuing our battle against this extremely lowball offer and defeating the SoA. Make no mistake ShareSoc will do everything possible to support the minority shareholders as they feel that there are a number of issues that have been raised here that will demand further investigation not just to satisfy LEE shareholders but also protect investors in other listed companies large and small. I am extremely pleased and proud that ShareSoc has made a difference in this case and will continue to help and support investors and individual shareholders. Please do join and help support ShareSoc. Associate membership is free and donations are always welcome. The directors given thousands of hours of their time for free and it is a non profit organisation.www.sharesoc.orgThey can and will support members in any reasonable shareholder campaign and a Press Release can be issued to very positive as we have seen. April was a record recruitment month for ShareSoc which shows that the organisation is not only growing steadily but also very important to investors. Please support ShareSoc. David
Well done David - you were the prime mover here and it is really gratifying to see that the pressure that you instigated has made them change course.
It is somewhat shocking that this deal has probably been planned for months, was announced just two weeks ago and then only when extreme pressure is applied by shareholders and a lobby group via the press the directors actually admit that results can be released to the market within seven days !If providing this 'true and fair' up to date financial information had been paramount in the minds of the directors ie. the MBO team then surely they would have waited a week in the first place and provided everything necessary for shareholders to make their decision !?The costs of this delay and the adjournment which will now create unnecessary costs for their shareholders in changing their plans at short notice could have easily been avoided. This whole affair deserves highlighting and the Nomads, advisors and directors will need to be very careful now as I suspect this will be another matter that shareholders can raise to their favour if the Scheme of Arrangement case ever goes before the judge. Well done indeed to ShareSoc.KM
SUCCESS !An hour ago the company has announced...http://www.investegate.co.uk/Article.aspx?id=201205011122284...Notice of Preliminary Results and Proposed Adjournment of Court Meeting and General MeetingThe Company expects to announce its Preliminary Results for the year ended 31 December 2011 (the "Preliminary Results") on Tuesday, 8 May 2012 which will be sent to shareholders in hard copy following their announcement. Furthermore, the Company announces its intention to seek an adjournment of the Court Meeting and the General Meeting due to be held on 15 May 2012, in order to give shareholders sufficient time to consider the Preliminary Results prior to voting at these Meetings.I don't want to pour too much cold water on this, but it's important to realise that this is just a victory in a minor skirmish, not the end of the campaign. The RNS continues:"The Court Meeting and General Meeting will still take place on 15 May 2012 but the chairman of these meetings will seek the approval of shareholders entitled to attend and vote at the respective meetings to adjourn the meetings until 10.00 a.m and 10.15 a.m. respectively on 22 May 2012 at the same venue, being the offices of Burness LLP, 50 Lothian Road, Edinburgh EH3 9WJ (the "Adjourned Meetings"). Assuming the Meetings are adjourned, the Company will on 15 May 2012 announce revised latest times and dates for receipt of BLUE and WHITE Forms of Proxy for the Adjourned Meetings and a revised Voting Record Time.Notwithstanding these proposed adjournments, the Company still expects that, subject to the requisite approvals being obtained at the Adjourned Meetings and the sanction of the Court, the Scheme will be implemented on 12 June 2012."In other words, they're delaying the meetings by just 7 days, and apart from that delay, they still expect their scheme of arrangement to go through as originally planned.I also wonder just what happens if the chairman of the meetings seeks approval from shareholders at the meetings to adjourn them, but doesn't get it... That's probably a somewhat academic bit of wondering, because I suspect the Court would not sanction a scheme that had been passed after an announced adjournment had been blocked - but that's only a suspicion...Gengulphus
KM et alWell said, I couldn't agree more. The no results prior to a decision having to be made to a miraculous appearance of results(which will be picked over in the MINUTEST detail) within a week is almost incredible.The whole thing has been diabolically badly handled from a shareholder's perspective. Project Dracula could barely have been better named by the company. A clear example of taking the Michael here.I wonder if they expected all this to go through with the minimum of fuss whilst they disappeared into the sunset with their bags of swag swinging jauntily behind them?An absolute disgrace so far and, frankly, the type of thing that gives smaller AIM companies a bad name and means that a lot of people avoid them for precisely those sort of reasons.A huge vote of thanks to Carmensfella in particular and many others from behind the scenes that are working hard to frustrate this misadventure. Still a long way to go but hopefully the cracks are starting to appear....Entrust
Congratulations to Share Soc.However they may have more work to do.If I were Lees I would use the week's grace till the announcement to ensure that the Accounts contained all the provisions and reserves they can think of and the auditors can approve.So maybe the figures will not be good as expected? Change of course but heading in the same direction?GAN
This is inspiring stuff and I think I for one would like some practical advice on how to ensure I am down as the shareholder for shares I hold in my trading/nominee/ISA account.What is the proper way to do this? DAK? I hope there are others reading this who will also take this up based on advice received.That way, when opportunities arise I will be able to cast my vote to do the right thing..Best,B&W
Good points raised by many Fools on this thread and other one re valuation of Lees.I offer another view regarding the results. Is it possible that the shareholder action and website replies (http://www.freesharedata.com/lees-foods) are suggesting that the vote is going to go completely against the MBO and their derisory offer so they have had to rethink their strategy.To make a higher offer to shareholders will require additional funding even though half of their borrowings are just bridging finance (due to the strong cash position of the company) Is it possible that to guarantee additional funding lenders will need to see final audited accounts for 2011 and the advisors have stated that those accounts need to be made public if being made available to lenders ? Otherwise they seem to be completing the audit very quickly if it were just for the benefit of shareholders.Do shareholders expect a dividend announcement with the results as would be standard practice ? The offer document would need reprinting if that were the case but once results are released it will draw attention to the surplus cash and lack of a dividend if not mentioned in the announcement. The Takeover Panel must be watching every move here very carefully. They have much more teeth than most regulators and with ShareSoc and the Press reporting on each announcement to the wider public I do not think the directors will have taken this decision lightly. This will not be the easy blood letting that the Project Dracula team expected and instead the teeth are digging into their necks ! Directors in small AIM companies in particular that may have considered Project Dracula for themselves will be rethinking and watching this comedy of errors instead. Investors are backing LEES shareholders in their stance.
Do shareholders expect a dividend announcement with the results as would be standard practice ? The offer document would need reprinting if that were the case but once results are released it will draw attention to the surplus cash and lack of a dividend if not mentioned in the announcement.Very good point, ukdt.Barring a shock in the cashflow statement, I see no reason that a dividend of at least 7.5p would have not been paid (were it not for the MBO). Last year's 7.5p dividend was paid in June. That means that the proposed offer is really only worth 222.5p, net of the dividend that would otherwise have been paid. Moreover, as I pointed out in a previous post, the record of growing cash indicates that the company could easily have paid a higher dividend, but of course that would have been against directors' interests, if an MBO was contemplated. According to Stockopedia (http://www.stockopedia.co.uk/share-prices/lees-foods-LON:LEE... ), free cashflow per share for each of the years 2007-2010 was: 28.9p, 10.6p, 35.7p and 39.5p.Regards,Mark
Thank you for all the emails and texts showing support from so many investors who are not directly involved in LEE but clearly see this as a test case for protecting shareholders from lowball MBO bids and Scheme of Arrangement 'fast track' delistings.There are now further issues being raised and two shareholders have made valid points which I felt required clarification from the advisors. I have also added a few further thoughts as follows....Q) What happens if a shareholder has already posted their proxy or confirmed acceptance via their nominee and then sees the results on 8th May and realises that the company is doing so exceptionally well that they should not have given their acceptance of a £2.30 bid ?A) Apparently a second proxy form can be submitted that would cancel the first and shareholder should contact their nominee holder immediately if wishing to change their vote.Q) Will the recommendation by Shore Capital be reviewed when THEY see the final results ?A) Shore have advised me that any new financial information has to be reviewed under the Takeover Code and their recommendation can indeed change or additional qualifications be made.Q) Will the annual dividend be paid to shareholders as announced every year with the final results ? (Last year payment of 7.5p went ex dividend on 3rd June)A) This will be a very interesting decision for the directors and MBO team to decide on. If they do not pay one then it will be obvious their intention was to save this payment and the MBO is really a reduced offer by the amount of the potential dividend which would have been at least 8p and could have been much more due to the HMRC windfall. If they do pay it and even a significant increase then that could tempt shareholders to accept the overall package. I am not sure if the Takeover Panel would see that dividend (which is rightly due to shareholders for the company performance in 2011) as an increased bid requiring further documentation and consideration though !Q) Will the 2011 results attract more attention to the company and the lowball MBO bid hence potential for a competing bid from an external party ?A) It is not possible to know who is already looking at LEE but the price in the market for the shares is higher than the bid price of £2.30 which suggests there should be a higher offer. Bidders will want to see up to date audited information so these results are important. And Finally....The company results are to December 2011 and we are now in May 2012. Will there be an outlook statement and is there even one allowed without further costs being incurred as any statement might be deemed to be a profit forecast and need further auditor confirmation under takeover rules ?This is an interesting situation and I doubt that the directors or advisors thought that shareholders would care about their investments in quite the way we have done. All credit to shareholders and ShareSoc....The Fat Lady probably ate too many Lees snowballs and teacakes but it is never over till she sings... as they say !!David
Thanks for that David, much appreciated.If I may re-direct a little?A) Apparently a second proxy form can be submitted that would cancel the first and shareholder should contact their nominee holder immediately if wishing to change their voteDoes that mean, conversely, that the votes for the earlier meeting already cast automatically count for new meeting date IF you don't want to change them? Or do they have to be re-submitted regardless?Re the dividend. I wonder if they might suggest a(minimum) 8p+ dividend, plus a special dividend of the tax refund on top of the offer price as a sweetner to get investors onside? Still woefully inadequate but I just can't see how they have any chance of swaying anyone if they simply publish the accounts and say vote for it regardless.I think they will be doing all they can, within the rules, of course!!, to dampen expectations going forward so perhaps no outlook, or a fairly jaundiced looking one IF they can?Was there any comment made on the seeking approval for an adjournment issue and whether there was any possibility that it might not be granted?I trust that Shore, and hopefully the auditors, are aware that these results will be scrutinised MOST carefully when they appear ;-)Many thanks again for your input on this one.CheersEntrust
Many thanks for your work so far on this David - you've really made a big difference. I think most of the points to do with the results have been brought up, so I'm just thinking a little about what happens after the results. It is important to remember that we haven't yet had an improvement in the terms of the bid, so we'll need to keep working on this until they propose a sensible price. The last thing we want is to fail to get a reasonable bid (I still think that price is >300p). There is also a possibility that if the scheme is blocked or rejected in court, then there could be no improvement in the bid and the offer is dropped. If this is the case, then we'll need to work extensively to get a couple of non-executive directors on the board to protect shareholder interests going forward. Of course, we'll cross this bridge when/if we get to it, but it is worth bearing in mind that there is still a lot that needs to be done here post results.
Apologies....but to answer my own question.....Does that mean, conversely, that the votes for the earlier meeting already cast automatically count for new meeting date IF you don't want to change them? Or do they have to be re-submitted regardless?I've just spoken to Shore Capital and they have given me a categoric assurance that any votes already cast will be accepted and counted but if anyone wants to change their vote after seeing the results they will be provided with new proxy papers allowing them to do so.As a matter of interest the man dealing with the issue at Shore is Patrick Castle and his number is 02074687923. It would be really useful, to help them guage the levels of unhappiness here, if any holders gave him a quick call and politely pointed out that they are not happy with the level of the offer, the way it has been handled and Shore's recommendation in the first place. It might also be a good idea, if you are of a mind to do so, to mention that you hope that Shore will look VERY carefully at the results and ask themselves if they still feel that it is a fair offer that can still be recommended upon reflection. As many holders getting in touch as possible would perhaps help to get the message through to them that there is a groundswell of opposition to this derisory offer.CheersEntrust
I see the original offer RNS contains the paragraph:"The Lees Directors, Clive Miquel, David Simson, Albert Croll, Nadia Millar and Klaus Perch-Nielsen are not considered to be independent in relation to the Acquisition as they are all Randotte Directors and, subject to completion of the Exchange Agreements, will be shareholders in Randotte. Accordingly, there is presently no Lees Director who is independent of Randotte. The decision to recommend that Scheme Shareholders vote in favour of the Scheme at the Court Meeting and that eligible Lees Shareholders vote in favour of the Resolutions to be proposed at the General Meeting has therefore been made solely by Shore Capital who is acting as independent financial adviser to the Board."I appreciate ShareSoc is primarily looking to protect LEE shareholders but I do wonder how Shore Capital ever let itself be put in a position to recommend such a derisory offer. Is there any independent regulation of NOMADS or can they just get away with (what I see as) completely inappropriate behaviour?Cheers, Martin
I appreciate ShareSoc is primarily looking to protect LEE shareholders but I do wonder how Shore Capital ever let itself be put in a position to recommend such a derisory offer. Is there any independent regulation of NOMADS or can they just get away with (what I see as) completely inappropriate behaviour?Shanklin100,I raised this issue on the other valuation thread where I stated;6. Nobody is representing shareholders so Shore Capital the Nomad/broker give a recommendation to accept for which they will receive a very significant success fee that is a multiple of normal fees and costs of their work.The directors have appointed Shore Capital to be brokers and Nomads to the company on behalf of the shareholders. In this situation the broker is getting a large success fee and yet supposed to be independent enough to make a decision on recommending the offer to shareholders (I have just fallen over with laughter as that is a complete joke!) Conflicts of interest. Would you instruct a solicitor to act for you buying a property who is receiving a success fee from the vendor ?? The whole board is involved in the MBO and the independent chairman died. Who then is acting as chairperson for the two meetings and being given the proxy votes for the general meeting and relaying the shareholder concerns before the judge at the court meeting ?This whole case needs putting before the LSE or appropriate regulators and the system needs to be changed. Shore Capital are taking the blood money and that is why it was named Project Dracula IMO. Shareholders in any companies where Shore are the Nomads or brokers should review their situation. KM
KMWell put.Cheers, Martin
KMWhilst not disagreeing with the overall direction of your heartfelt protest, there probably needs to be a little balance thrown into the equation.The directors have appointed Shore Capital to be brokers and Nomads to the company on behalf of the shareholders. In this situation the broker is getting a large success fee and yet supposed to be independent enough to make a decision on recommending the offer to shareholders (I have just fallen over with laughter as that is a complete joke!) Conflicts of interest. Would you instruct a solicitor to act for you buying a property who is receiving a success fee from the vendor ?? Unless someone knows otherwise, I would have thought that it is highly unlikely that Shore Capital is getting any sort of contingent fee for its role as independent adviser to LEE - I am not an expert, but I thought that it was expressly prohibited in the Takeover Code for the independent adviser to be paid on the basis of the offer succeeding, or failing for that matter? I would certainly be appalled if that were not the case, as independence is clearly jeopardised if you are motivated to influence an outcome in one particular direction.In theory, Shore is a logical choice as independent adviser in the sense that they know and understand the company. However, I would absolutely share your concern that in practice it is the directors that they know rather than the company - or rather the independent shareholders in the company on whose behalf ShareSoc has gone into bat.As to how Shore could possibly justify recommending an offer which those shareholders not involved in the offer find derisory, I suspect that they will have done enough to cover their a*$!&s in terms of looking at the share price history, the offer premium to the pre-announcement share price and comparative sector bids.Does any of this make what is happening less of an abuse of minority shareholders? Not really. But I would let the buck rest principally with the directors rather than trying to pin the blame on the adviser.I have no position, but I sincerely wish ShareSoc luck with their campaign and hope that it attracts notice in regulatory circles. Unfortunately I suspect that even if the minority shareholders are successful it could end up being a pyrrhic victory as much of LEE's cash pile seems likely to be absorbed in the costs of the process.
Unless someone knows otherwise, I would have thought that it is highly unlikely that Shore Capital is getting any sort of contingent fee for its role as independent adviser to LEE - I am not an expert, but I thought that it was expressly prohibited in the Takeover Code for the independent adviser to be paid on the basis of the offer succeeding, or failing for that matter? I would certainly be appalled if that were not the case, as independence is clearly jeopardised if you are motivated to influence an outcome in one particular direction. (timpernel)timpernel,On the other thread a food company M&A expert gave us the benefit of his knowledge on the subject which was pretty damaging to Shore Capital if true. Foodstrategy stated;'However some of the fees will be contingent upon "success" where "success" is defined as a transaction happening. For Shore Capital, they will probably only earn fees if the transaction is concluded - which begs the question, how can they recommend an offer when they are so motivated to conclude a transaction at any price.'AND' So given Shore Capital have recommended an offer that is in their interests rather than the shareholders, it raises a couple of questions:1. Why risk holding a stock where Shore Capital is the house broker?2. What role does the UKLA play in ensuring that Shore is a fit and proper house, able to make a recommendation? 'http://boards.fool.co.uk/the-fees-are-very-high-from-an-inve...Is it reasonable for shareholders in Lees Foods to demand a sight of the contract terms entered into between Lees and Shore Capital so that we can establish exactly what they will earn from this deal and whether it is indeed dependent on 'success'?I would also be asking for proof that Shore Capital earned any fee whatsoever by doing a proper valuation of the business. All this looking at the share chart rubbish and average price over the past six months is certainly not valuing the offer and deciding whether it is a fair premium !
Advisory fees are normally contingent upon a transaction "succeeding".I have sat on the Board of a number of public companies running M&A and it is common for defence advisors to only get paid if the business is sold. In fact, more than common, I have never seen it work in any other way. So the whole concept of defence is in reality an attempt to get the company sold. There can be mechanisms in place to make sure the fee goes up with the take-out price - but that is not always the case.So what is the mechanism by which the share price is maximised on exit?Well the Independent Directors are very important here - the Boards I have sat on, the NED take their responsibilities extremely seriously. I have often seen high bids rejected because the NED's are sceptical that full value has been achieved. In the case of Lees, we have no NED's!So Shore is the weak link in the chain.I for one am questioning whether to continue to hold shares where they are the company broker. Afterall, if they recommend this, won't they sell me down the river elsewhere?So who knows what companies Shore is house broker at?
So who knows what companies Shore is house broker at?Hemscott has the following as client list:Abbey Protection PLC (J)AI Claims Solutions PLCAlbany Investment Trust PLCAmerisur Resources PLC (J)Aminex PLC (J)Argo Real Estate Opportunities Fund Ltd (J)Armor Designs IncBaobab Resources PLCBATM Advanced Communications Ltd (J)Beale PLCBegbies Traynor Group PLC (J)Bisichi Mining PLCClontarf Energy PLC (J)Conroy Gold and Natural Resources PLCCranswick PLC (J)Empyrean Energy PLCFairpoint Group PLCFrenkel Topping Group PLCGalileo Resources PLC (J)Great Western Mining Corporation PLCHeavitree Brewery PLCHotel Corporation (The) PLCInspired Energy PLCJubilee Platinum PLC (J)Judges Scientific PLCLees Foods PLCLeni Gas & Oil PLC (J)Lighthouse Group PLCMaven Income and Growth VCT 2 PLCMaven Income and Growth VCT 3 PLCMaven Income and Growth VCT 4 PLCMaven Income and Growth VCT PLCMercury Recycling Group PLCNamakwa Diamonds LtdNew World Oil & Gas PLCOpSec Security Group PLCOrchid Developments Group LtdPilat Media Global PLCProduce Investments PLC (J)Puma High Income VCT PLCPUMA VCT V PLCRandall & Quilter Investment Holdings PLC (J)Real Good Food Company (The) PLCSacOil Holdings Ltd (J)Serviced Office Group PLCSolo Oil PLC (J)Sovereign Mines of Africa PLC (J)St Peter Port Capital LtdStyles & Wood Group PLCTangiers Petroleum Ltd (J)Telford Homes PLCVSA Capital Group PLC (J)West Pioneer Properties LtdWynnstay Group PLC (J)XXI Century Investments Public LtdZoltav Resources Inc (J)http://www.hemscott.com/advisers/stockbrokers/full-list-quot...Another way of finding out which companies employ a given advisor/broker/PR firm is to do a keyword search on investegate:http://www.investegate.co.uk/Index.aspx?searchtype=1&wor...I don't hold any of those companies but if you do you can always contact those companies and express your concern with their choice of broker - companies will be aware that reputation has value and who you do business with affects your reputation.
I have sat on the Board of a number of public companies running M&A and it is common for defence advisors to only get paid if the business is sold. In fact, more than common, I have never seen it work in any other way.Well I bow to your experience then, but as far as I can see that flies directly in the face of the Takeover Code - and indeed I went back to check whether my hazy memory of the code was accurate and found the following relevent sections:3.1 BOARD OF THE OFFEREE COMPANYThe board of the offeree company must obtain competent independentadvice on any offer and the substance of such advice must be madeknown to its shareholders.NOTES ON RULE 3.11. Management buy-outs and offers by controllersThe requirement for competent independent advice is of particularimportance in cases where the offer is a management buy-out or similartransaction or is being made by the existing controller or group of controllers.In such cases, it is particularly important that the independence of theadviser is beyond question. Furthermore, the responsibility borne by theadviser is considerable and, for this reason, the board of the offeree companyor potential offeree company should appoint an independent adviser as soonas possible after it becomes aware of the possibility that an offer may bemade.3.3 DISQUALIFIED ADVISERSThe Panel will not regard as an appropriate person to give independentadvice a person who is in the same group as the financial or otherprofessional adviser (including a corporate broker) to an offeror or whohas a significant interest in or financial connection with either anofferor or the offeree company of such a kind as to create a conflict ofinterest (see also Appendix 3).NOTES ON RULE 3.31. Independence of adviserThe Rule requires the offeree company's adviser to have a sufficient degreeof independence from the offeror to ensure that the advice given is properlyobjective. Accordingly, in certain circumstances it may not be appropriate fora person who has had a recent advisory relationship with an offeror to giveadvice to the offeree company. In such cases the Panel should be consulted.The views of the board of the offeree company will be an important factor.NOTES ON RULE 3.3 continued3. Success feesCertain fee arrangements between an adviser and an offeree company maycreate a conflict of interest which would disqualify the adviser from beingregarded as an appropriate person to give independent advice to the offereecompany. For example, a fee which becomes payable to an offeree companyadviser only in the event of failure of an offer will normally create such aconflict of interest. In cases of doubt the Panel should be consulted.I can't understand where the wriggle room is for independent advisers to justify any form of contingent fee arrangement given what is stated explicitly in the Code and the notes to it. If somehow this has become generally accepted practice in spite of the Code, then I think that there has been a major loss of the shareholder protection that is the underlying objective of the Code. If I were a LEE shareholder I would definitely ask to view the engagement terms with Shore Capital and if they are remunerated based on the success of the transaction I would query this with the Takeover Panel.
thanks timpernel,3.3 DISQUALIFIED ADVISERSThe Panel will not regard as an appropriate person to give independent advice a person who is in the same group as the financial or other professional adviser (including a corporate broker) to an offeror or who has a significant interest in or financial connection with either an offeror or the offeree company of such a kind as to create a conflict of interest (see also Appendix 3).NOTES ON RULE 3.31. Independence of adviserThe Rule requires the offeree company's adviser to have a sufficient degree of independence from the offeror to ensure that the advice given is properly objective. Accordingly, in certain circumstances it may not be appropriate for a person who has had a recent advisory relationship with an offeror to give advice to the offeree company. In such cases the Panel should be consulted.As Shore Capital are both nominated advisor and stockbroker to Lees Food (offeree) and have a close long-standing advisory relationship with the offerors (the entire Board of directors of Lees Food!) then Shore should SURELY be disqualified from appointment as Independent Advisor ??
If I were a LEE shareholder I would definitely ask to view the engagement terms with Shore Capital and if they are remunerated based on the success of the transaction I would query this with the Takeover Panel. Are LEE shareholders entitled to see this document ? It seems to be a crucial document and hopefully cannot now be amended or changed in view of the scrutiny here.I would have expected that if the Takeover Panel were doing their job in a case like this where the Nomad and adviser are one and the same and have been given the task of providing independence in this MBO for the independent shareholders then they would have been ALL OVER that engagement document like a rash !!In this situation a specialist M&A adviser in the food sector should have been engaged to provide a certified fair valuation and the MBO offer should not have been allowed to fall below that valuation by a margin of more than say 5% to allow for the fact that they were significant holders.It is also interesting to note that on Danger Simpsons list of Shore clients it includes Real Good Food (RGD) who have a significant following on these boards. They are a food (sugar and ingredients) company and probably a supplier to Lees Foods so will know the company well. Did Shore confidentially consult with their client to establish if the offer was reasonable or indeed whether RGD would be interested as a third party bidder ? If shareholders in LEES are to achieve a fair price then Shore are critical in this situation. They have instead given a very weak recommendation and there is no written evidence that they consulted any external parties. This MBO is becoming a farce.
Are LEE shareholders entitled to see this document ? It seems to be a crucial document and hopefully cannot now be amended or changed in view of the scrutiny here.I can't see why they wouldn't be, unless the directors feel that they have something to hide. Foodstrategy, who clearly has experience and expertise in this area, indicates that it is the norm for the independent adviser to be paid on a wholly or partially contingent basis and frankly I find this shocking as it seems to fly in the face of both the spirit and the letter of the Takeover Code. If this is the case, somebody should definitely be complaining about it.In this situation a specialist M&A adviser in the food sector should have been engaged to provide a certified fair valuation and the MBO offer should not have been allowed to fall below that valuation by a margin of more than say 5% to allow for the fact that they were significant holders.I understand what you are saying, but I think that you are probably overestimating the science behind share valuation. I have some limited experience in this area, and my experience has been that valuation is far more art than science and if you employ two different professional firms to give you a share valuation, you could end up with two wildly different valuations, both well-supported by facts regarding sector PE ratios, EBITDA multiples, comparable deals etc. Indeed, I suspect if you gave the same firm two different briefs (one supporting a high valuation and one a low), you would also get two equally well-reasoned valuations but with significantly different prices. When Carmensfella kicked the LEE debate off with his invitation to value the business based on limited fundamentals, the range of valuations on this board was extensive, most falling in the £3.50 to £5.00 bracket from memory. However, there were a few posts that pointed out that the £2.30 offer was somewhat higher than the pre-offer share price and a significant premium over what the company had traded at in the preceding 12 months (sorry, not gone back to check who pointed this out, nor the facts regarding the level of the premium) - and I am sure that it is this kind of argument that Shore Capital will use in justifying acceptance of what the majority (myself included) regard as an unacceptably low offer.To be absolutely honest, I have fairly low expectations of advisers in these situations, irrespective of the basis on which they are remunerated - they tend to give those that have appointed them (not necessarily those to whom they should be responsible) the answers that they require, provided that they can cover their a$%&s to ensure that their professional liability is secure. As has already been observed, what is somewhat unusual in this situation is that the entire BoD is involved with the Offeror, with nobody representing the minority shareholders - I think that a good, independent non-exec Chairman would have done something along the lines that you suggest in terms of canvassing competing offers.I would imagine that ShareSoc may already have raised concerns with the Takeover Panel - or at least drawn their attention to the press reports. I sincerely hope that the Panel takes action.
Q) Will the annual dividend be paid to shareholders as announced every year with the final results ? (Last year payment of 7.5p went ex dividend on 3rd June)A) This will be a very interesting decision for the directors and MBO team to decide on. If they do not pay one then it will be obvious their intention was to save this payment and the MBO is really a reduced offer by the amount of the potential dividend which would have been at least 8p and could have been much more due to the HMRC windfall. If they do pay it and even a significant increase then that could tempt shareholders to accept the overall package. I am not sure if the Takeover Panel would see that dividend (which is rightly due to shareholders for the company performance in 2011) as an increased bid requiring further documentation and consideration though !From the offer announcement ( http://www.investegate.co.uk/Article.aspx?id=201204100700209... ):"The Lees Shares will be acquired by Randotte free from all liens, charges, encumbrances, rights of pre-emption and any other third party rights of any nature whatsoever and together with all rights attaching thereto including the right to receive in full all dividends and other distributions declared, paid or made on or after 10 April 2012."So as the offer stands, if Lees does declare a dividend and the scheme goes through, Randotte is entitled to that dividend and the current shareholder isn't. Hence there would be no point in Lees declaring the dividend, other than possibly as an "if the scheme doesn't go through, it's dividends as usual" reassurance to shareholders. I rather doubt that the Lees directors particularly want to reassure shareholders on that point, and if they did, it would probably be cheaper all around for them to instead announce now their firm intention that if the scheme fails, they will then declare a dividend of such-and-such an amount.Net result: I don't see shareholders getting a final dividend for the company's 2011 financial year unless either the scheme is voted down / otherwise defeated, or the scheme is amended.Gengulphus