Business

‘There can be only one’

Dispute continues between access CEO and board

By Shamille Scott Business reporter scotts@jamaicaobserver.com

Thursday, April 17, 2014    

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Marcus James says there can be only be one chief executive officer of Access Financial Services.

He contends that company's Articles of Incorporation make no provision for the appointment of two CEOs or a co-CEO.

This is on the heels of a disclosure made by the Jamaica Stock Exchange (JSE) on Tuesday evening about a board resolution on Monday to remove all powers of management from James.

"Those powers will now vest in, and be exercised by, Mr Alexander Johnson, who was appointed, by resolution, to act as chief executive officer of the Company, along with Mr James, until further notice," said the notification on the JSE.

The resolutions were passed pursuant to an order granted by Justice Sykes on April 11, 2014, which varied a previous order of the court, where James previously obtained an injunction from the Supreme Court preventing three of the company's directors from removing him as CEO.

Access Financial directors Christopher Berry, Gary Peart and Brian Goldson, as well a Mayberry West Indies Limited, are named as defendants in James's claim filed with the court on April 3.

An unsigned formal order from the Supreme Court on Friday, which has been obtained by the Caribbean Business Report, said that the defendants are permitted in their capacity of directors at Access Financial Services to use powers granted to them under Article 112 of the Articles of Association to pass resolutions and make decisions under the article.

But the order also said that "such resolutions and decisions are not to remove the claimant as CEO of Access Financial Services and neither to vary, alter or modify the claimant's salary or emoluments."

Some of the judge's orders are absent from the defendants' draft to the JSE, according to James' attorney, Georgia Gibson Henlin, in a letter dated April 15, 2014, and addressed to Wentworth Graham, chief regulatory officer at the JSE.

The letter said Monday's appointment by the board is in breach of an order, which restrains the removal of James as CEO or the appointment of anyone else as CEO and which was made by Justice Sykes last Friday .

"Until the matter is heard and determined on April 23 in the High Court, or on other dates the court may set, the defendants are not to pass any resolutions or make any decisions to remove the CEO," added the court order.

James and the directors of Access have been embroiled in a dispute surrounding certain actions.

In a letter to James, the board set out the following charges against him: failure to address critical issues on a timely basis, failure to present the board a timely and cogent analysis of the factors that caused the unexpected downturn of the fourth quarter (2013) results, together with a plan for addressing the factors that caused it; failure to obtain approval from the board for capital expenditure; breach of fiduciary duty; and failure to obtain board approval prior to negotiating loan agreements.

But James contends the charges aren't ratified by the board,

"I have been reliably informed by my attorneys that the directors asked questions in keeping with good corporate governance they could have, if they saw fit, ratify any actions they now allege to be a breach," James said in his third affidavit, filed on April 14.

He said the defendants have not given an opportunity to explain by asking questions but have levied charges; he seeks relief from the Court.

"In that respect, if which is not admitted I am found to have acted negligently or in breach of duty, I would have done so honestly," he said.

Johnson, who was appointed on Monday, previousy held the post of business development manager.

Founded by James, Access began operating in 2000 and now has 15 outlets islandwide. It is the leading microfinance company in Jamaica. Mayberry acquired a 49 per cent minority stake in Access in 2006 for $38 million.

Access became the first company to list on the JSE Junior Market in 2009.

For the 12 months ended December 31, 2013, Access posted $270 million in net profit, up from $238 million in the corresponding period in the prior year. Interest income from loans increased by 28 per cent or $759.7 million during the year ended December 31, 2013, from $595.3 million in the prior year.

The principal shareholders in Access are James and Mayberry West Indies, a 100 per cent-owned subsidiary of Mayberry Investments Limited.

The market value of Mayberry's investment in Access has grown to $1.3 billion to date, according to the company's financial statements. Mayberry has been the lead broker for 14 companies out of the 22 Junior Stock Exchange listings and has raised $2 billion in capital since it's inception. Last year, Mayberry listed three junior market companies and raised $300 million.

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