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I have referred to Nigel Hamer in a number of threads as being an unelected Board member.
Nigel Hamer wrote to me and explained that:-
1. he had been an elected board member between 2001 and 2007. 2. Since then the Trust Board had asked him to serve as Trust Secretary. 3, he doesn't have a have a vote on any discussions made by the Trust Board. 4. he prepares the Agenda, but, doesn't control what is dealt with at BM's, the Chairman does that, he merely takes the Minutes and advises on certain matters, but, it is the Board who make the decisions at Meetings, he records them.
I also understand from a post by ECB that the Trust Secretary is elected by the Trust Board each year. Hence I should not have referred to him as being Unelected.
I therefore promised Nigel that I would write an apology to him on PlanetSwans - hence my APOLOGY to him here.
I also wrote to him to say how much I admire people who give up their free time to serve the community - through organisations such as the Swansea City Supporters Trust.
In Nigel's case he has done this between 2001 and 2018 - which is considerable service.
Challenge ------------- In my response to Nigel I did challenge him on:-
A. Term Limits for Trust Board Members ----------------------------------------------------- In my view there should be term-limits for being non-Profit Board Members - for the following reasons:-
Amending the bylaws to include term limits lets a board reestablish itself every few years. A lot of good can come from that. Knowing that their time on the board is limited, board members may be inclined to stay intensely focused on their role during the time they serve the board. Having term limits offers boards the time to evaluate the type of talent the board needs for a well-rounded, efficient board and to make well-thought out plans for recruitment. Having turnover on the board brings a fresh crop of volunteers, new ideas, and hopefully some new fundraising ideas and expanded networks.
Term limits also give boards the chance to let go of board members whose attendance or participation is poor. Establishing term limits and staggering terms assures a revolving door of new board members. It’s a protocol that preserves the balance between old and new directors. The balance makes it easier for new board members to have their voices heard. When boards decide to incorporate term limits, it’s best to stagger terms so that the entire board is not up for re-election at the same time.
Even though most non-profit boards have term limits, there are benefits for organizations with regard to keeping a strong cadre of tenured board members.
Term Limits-Cons
If the workings of the board are moving along well without term limits, it may not make sense to rock the boat by incorporating them. When the best decision is to move forward without term limits, non-profit boards are wise to be aware of the pitfalls of keeping board members on the board long-term. New board members who claim a spot on a board of long-timers may be hesitant to bring their ideas forth for fear of them not being well-received. Seasoned board members may fear that new members will slow down the momentum that they worked hard to achieve. Over relying on a small niche of people who seem to have all or most of the power can stagnate and stall an organization’s progress. When long-serving board members are unproductive, it can be difficult to relieve them of their duties, even for the good of the organization. Supporters of not having term limits support their perspective by stating that using the nomination and evaluation processes are sufficient to relieve unproductive board members from their terms when necessary.
Rather than add term limits or embarrass a long-standing board member with a demotion, there are a couple of alternatives to opening up some new board seats. Long-term board members may appreciate the opportunity to serve on the advisory board. Another alternative is to require a break after two to three terms. The board should make clear that a mandatory break in between terms is more than an elongated vacation. It should be a time to evaluate the makeup of the board and the best interests of the organization.
A couple of other issues may signal a step down from the board. Ethical issues, such as legal or other high profile problems that may reflect poorly on the organization, are a valid reason for a change in board membership. Non-profits are also trending towards asking a board member to step down if the member has a status change, moving out of the organization’s field."
I should also add that if at any time, a Board member of a Non-Profit Board were conducting anything untoward - in my view it is more likely that things would be uncovered, if Term Limits are in place in contrast to indefinite periods of office.
My view therefore is - that the Term Limits of Trust Board Members should be a maximum of 6 years. I am not against Trust Board members - serving again in future - but there then should be mandatory breaks - with no involvement.
This 6 year Term limit in my view should also apply to the Trust Board Secretary.
Conflcits of Interest -------------------------- I also made a post about the "Bermuda Triangle of Keith Harris - Steve Hamer and Nigel Hamer.” Nigel also asked me to explain this.
I explained the wider context to my post was the following:-
On social media there have been the following potential conflicts of interests discussions:-
1. Leigh Dineen, ex Chairman of Trust Board, went on to buy 5% of the club’s shares. 2. Huw Cooze - ex Supporters Director of Trust Board owned a company which had related party transactions with the club. 3. Huw Cooze - ex Supporters Director of Trust Board (from social media) appeared to be paid directly by the club, for his services as Trust Supporters Director, in contrast to the club paying the Trust and then the Trust reimbursing Huw Cooze for any expenses incurred in the carrying out of his duties. 4. Huw Cooze went on holiday with Brain Katzen, one of the selling shareholders.
The above, if true, indicates that ex-Trust Board members have had very close relationships with the Club and in my view it is for debate - whether they passed the potential conflicts of interest ‘sniff’ test.
I also understood from Social media that Nigel’s brother Steve Hamer has a connection to Keith Harris, a person who brokered the deal i.e. the Selling Shareholders sale of shares to the Yanks.
I therefore stated to Nigel I was not comfortable, from a potential conflicts of interest perspective, that he may discuss the Trust’s position with his brother - for him to then relay Trust’s position on to Keith Harris.
For the avoidance of any doubt - I don’t think Nigel would do this for any personal advantage - it just could be during a family discussion. The thing is if Nigel is party to all of the Trust’s debates and decisions - I am not comfortable that he continues as Trust Secretary, from a potential conflicts of interest perspective.
I explained to Nigel that my 'Bermuda Triangle’ comment refers to the black hole/opaque region of the world - where ships and aircraft have gone missing.
On reflection I don’t thnk it was the best analogy, I was trying to get across the ‘opaqueness' of the historic potential conflicts of interest, which certain of the ex-Trust Board members have had with the club and the potential conflicts of interest that I feel Nigel is now in - with respect to his relationship with his brother and then his connection with Keith Harris.
In Summary ---------------- It was poor form of me to keep referring to Nigel Hamer as being an Unelected Board member given the considerable years of service he has given to the Trust and that he has been elected each year by the Trust Board to be Trust Secretary.
My 'Bermuda Triangle' analogy wasn't the best to describe opaqueness re Potential Conflicts of Interest between Trust Board Members and the Club.
I am uncomfortable that Nigel who I assume as Trust Secretary is party to deal discussions with the Yanks - is related to Steve Hamer who is connected to Keith Harris, who apparently brokered the deal between the Selling Shareholders and the Yanks. I do not think that Nigel would ever share any information to his brother Steve for personal advantage.
Ny previous posts had nothing to do with Nigel’s personal competence or ability to do the role - more my feelings that the Trust hasn't historically got it right about Term Limits for Trust Board members and managing carefully the potential for conflicts of interest between Trust Board Members and the Club.
What is a reasonable level of Management Fees that the club should pay to Steve and Jason?
Bearing in mind:-
(1) Huw Jenkins appears to be on a minimum of £500,000 per annum (2) Chris Pearlman is on a package of (????) (3) 100% of Management Fees are paid to Steve and Jason whereas if a dividend is declared 21% goes to the Trust.
What is the quantum of Management Fees that have been paid/to be paid to Steve and Jason:
(i) for taking over the club? (ii) from the date of acquisition 21st July 2016 to today 21st April 2017? (iii) that will be paid over next 12 to 36 months?
'If Trump cares so much about Syrian babies, why is he not condemning the rebels who slaughtered children? Dozens of children were killed in Syria this weekend but where is the US president’s lament on how ‘beautiful’ they are, let alone action? Where are the denunciations by the EU and the UK? The West must react with equal outrage when it is Shias that are the victims of terrorism. Or do we just not care?'
Are the UK arm sales to Saudi Arabia worth this much?
The head of MI6 calling for more surveillance last week and I assume for a greater. Usher. However who is he protecting us against 'Al Qaeda again?
Palmyra has fallen again to ISIS. How did they manage to move columns of trucks, armaments and men across the desert. Where were the UK planes? Remember the parliamentary debate where Cameron won Commons motion to start bombing in Syria?
.....ex shareholders to rescind the original deal - on the basis they have been sold a 'pup'. They want their money back. All speculation and rumour but people can understand where this has all come from. I don't know whether this means they will apply to abrogate the acquisition of their shares from multimillionaires Jenkins, Dineen and Morgan etc.
Going to be some difficult conversations ahead when Jenkins meets the Yanks when over for Man U game.
Probably mean Jenkins et al and the Yanks will now have to all their lawyers present - when meeting each other.
Think of a scenario where ex shareholders have to give all their money back to Yanks, relegation and reputations (their family name) tarnished for the rest of their lives. Maybe they will reflect and think were the extra millions worth it?
Apologies in advance - I have copied my post from another thread to create a new thread as think it is worth discussing. Sorry if bores people. I am also not a legal expert so if case law has developed which means following is out of date - please comment:-
The test as to what amounts to unfair prejudice is objective. It is not necessary for the petitioning shareholder to show that anybody acted in bad faith or with the intention of causing prejudice. The courts will regard the prejudice as unfair if a hypothetical reasonable bystander would believe it to be unfair.
Fairness is judged in the context of a commercial relationship, the contractual terms of which are, in the main, set out in the Articles of Association of the company and in any shareholders agreement. The starting point is therefore to ask whether the conduct of which the shareholder complains is in accordance with the Articles and the powers which the shareholders have entrusted to the board. In a Law Commission report it was said that "The best protection for a shareholder is appropriate protection in the articles themselves". Therefore, if the conduct is in accordance with the Articles, to which the shareholder has agreed, it will be more difficult to succeed with an unfair prejudice petition.
Even if the conduct is not in accordance with the Articles, it does not necessarily render the conduct unfair, as trivial or technical infringements of the Articles may not give rise to a remedy under s.994.
The Rights/Interests of the Shareholder must have been Prejudiced
The conduct must be unfairly prejudicial to the Petitioner's interests in his capacity as a member of the Company (i.e. as a shareholder), but the Court takes a broad view of what might be regarded as his interests as a member of the Company.
The word "unfairly" enables the Court to consider wider equitable considerations and recognises that the members have rights and expectations which are not necessarily included in the Articles of Association. For example, a member's interest may arise out of an agreement that some or all members should participate in the management of the Company. A member's interest is not, therefore, limited to his strict legal rights, but can extend to legitimate expectations arising from the nature of the Company and agreements and understandings between the parties. A common example of this is the corporate "quasi-partnership", in which members may have expectations of participating in the management and profits of the Company, which arise from the understandings on which the Company was formed and which may be unfair for other members to ignore.
Apart from in the case of "quasi-partnerships", it is more difficult to establish legitimate expectations beyond the member's strict legal rights. If such expectations exist, a Petitioner must in general show some abuse by the directors of their powers, or an infringement of the member's strict legal rights under the Company's constitution or the Company's legislation.
Types of unfairly Prejudicial Conduct
"Unfair prejudice is a flexible concept, and incapable of exhaustive definition. The categories of conduct which may amount to unfairly prejudicial conduct are not closed. However, common examples of what may constitute unfairly prejudicial conduct are:
exclusion from management in circumstances where there is a (legitimate) expectation of participation; the diversion of business to another company in which the majority shareholder holds an interest; the awarding by the majority shareholder to himself of excessive financial benefits; and abuses of power and breaches of the Articles of Association. For example, the passing of a special resolution to alter the Company's Articles may be unfairly prejudicial conduct if such alterations would affect the Petitioner's legitimate expectation that he would participate in the management of the Company. Also, repeated failures to hold AGMs; delaying accounts, and depriving the members of their right to know the state of the Company's affairs may all be unfairly prejudicial to a member's interests.The conduct of the Petitioner is relevant, as the conduct complained of may be found to be prejudicial but not "unfair". The Petitioner's conduct may also affect the relief granted by the Court."
Presumably the Trust being excluded from appointment of COO (I.e. Management) would be an example of unfair prejudice.
Chances of success
'In general terms, the Courts have, over recent years, restricted the extent to which relief is given for unfair prejudice. The Petitioner must therefore normally prove an actual breach of terms that have been agreed as to how the Company will be run, or show that such terms were being used in a way which offends equitable considerations.'
However that shouldn't. be too difficult to prove in regards of Huw Jenkins instructing his lawyers to contact the Trust 2 days before the sale - to negotiate away the original shareholders agreement.
Remedies are very interesting..............
'Section 996 of the Companies Act 2006(2) lists particular types of orders which may be made by the Court if it decides that there has been unfair prejudice, although the Court retains a general discretion under Section 996(1) to make any order it thinks fit. The powers listed in 996(2) provide that the Court can:
regulate the conduct of the Company's affairs in the future; require the Company to refrain from doing or continuing an act complained of, or to do an act which the Petitioner has complained that it has omitted to do; authorise civil proceedings to be brought in the name and on behalf of the Company by such person/s and on such terms as the Court may direct; require the Company not to make any, or any specified, alterations in its articles without the leave of the court; and provide for the purchase of the shares of any members of the Company by other members or by the Company itself and, in the case of the purchase by the Company itself, the reduction of the Company's capital accordingly.'
So very interesting you can change the articles back!!!! That would set the cat amongst the pigeons. The Yanks business model will depend on being at some time to leverage the assets of the club. If they can't change the articles going to sue the ex shareholders under the warranty to recoup value lost. Especially if in good faith Huw Jenkins told them there was no original shareholders agreement.
The other nice one is to regulate the company's affairs. They are really going to like that one. Will depend for me that one on having a totally indepedent Director - with no perceived baggage.
My preferred remedy is the other one where court decides an outright purchase of the shares. (Not everyone's I know). Really fear for Huw Jenkins, Martin Morgan and Leigh Dineen if court does decide in Trusts favour that Trust has been unfairly prejudiced - their reputations would be in tatters with whole fan base and throughout Swansea and Wales.
I am fearful of a perfect storm for them - relegation and courts deciding they have been unfairly prejudicial against the Trust. God help them (and I am an atheist).
Massimo Cellino has a terrible reputation for continually changing his managers. Huw Jenkins starting to run him close.
Who has had ultimate responsibility for:-
1. Managerial Recruitment
2. Player Recruitment
Isn't the solution if club is not happy with Guidolin's managerial performance to move him into Director of Football role? He is renowned for his international contacts and is perceived as a good guy?
The Yanks must be currently analysing how much money it will take to buy out Jenkins contract compared to Guidolin's. They must be thinking can we really allow Jenkins to choose yet another manager?
Why don't they use the QE to build Swansea tidal barrage and create some lasting infrastructure and renewable energy - instead of driving down Apple's cost of borrowing?
What rate of return do we think that the Americsns Kaplan and Levein are targeting to make from our club?
If for example they have invested £68m for say 68% and they were targeting a 15% per annum return for say 3 years - this would equate to circa £30m.
They therefore either:-
(1) have to flip their stake by selling it for £98m (£68m + £30m) (You would think their shares have increased in value given they now have a substantial controlling stake just left with a small Minority shareholder).
Or
(2) take out £30m of cash out of the club through dividends
Or
(3) Combination of (1) and (2)
The trouble is as we are such a small club (with respect to our overall fan base) for us to remain competitive - we can't afford any money to be going out of the club - especially in regards of (2) above.
For New Yanks to have made their bid - wouldn't they have undertaken Financial Due Diligence.
The thing is if Trust, Martin Morgan and say Brian Katzen did not know anything about this - who would have had voting control - then did Financial Director release confidential internal financial information - without Board/Shareholder approval?
Would then this lead to all sorts of legal actions between Shareholder Group who didn't know about this takeover bid Until yesterday - against those that want to sell and who on the face of it have released financial information without consent to the new Yanks?
Are new Yanks holding confidential information about the club - without consent and should therefore return it immediately?
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