Business

Move to oust Access CEO

Major court battle looming

BY SHAMILLE SCOTT Business reporter scotts@jamaicaobserver.vom

Friday, April 11, 2014    

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MARCUS James, head of micro-lending outfit Access Financial Services, has 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. The injunction is in place until an April 23 hearing in the High Court.

James said in his affidavit that he received a letter from the directors requiring him to answer charges with a view to remove him as CEO.

James is also trying to prevent the defendants from "disposing of, transferring, dealing with, or voting the shares or the majority shares of Access Financial Services" which is not in accordance with the terms of a Standstill Agreement.

But the directors say the Standstill Agreement is not enforceable, and that they have acted within their duties to the company.

"Even if the Standstill Agreement is enforceable, without having been executed, the claimant has a service agreement which is subsequent to the date on which the claimant says the Standstill Agreement came into effect," Goldson said in an affidavit in support of an application to dismiss James's application.

The service agreement sets out the circumstances in which the company can terminate James's service for misconduct, so the disciplinary proceedings are in keeping with those provisions, Goldson added.

James is also asking the court for a stay on any disciplinary proceedings against him pending the outcome of the arbitration hearing under the Standstill Agreement, September 29, 2009. The arbitration proceedings relate to the move to have James ousted as CEO.

Meanwhile, it appears that an attempt had been made to prevent the matter going public.

Last month, Peart sent a letter to Marlene Street-Forrest, general manager of the Jamaica Stock Exchange (JSE), outlining that the information on the disciplinary proceedings concerning James would be damaging if disclosed to the market.

"The non-executive directors were unhappy with certain of the CEO's actions and wrote to him requiring him to answer charges relating to his duties as CEO. His response was to issue proceedings against the said directors personally, and against Mayberry West Indies, alleging a long-standing dispute over dividend policy, and other commercial matters including alleged breech of an agreement with him regarding proportionate shareholding," according to Peart's letter.

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.

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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