A judge has ordered Rangers chairman Dave King to make an £11 million offer to the club’s remaining shareholders.
Lord Bannatyne ruled on Friday that the ‘Gers boss needs to offer investors 20 pence per share for the share capital not already controlled by him and three other businessmen.
The decision comes as a consequence of an action brought to the Court of Session in Edinburgh earlier this year by the Panel on Takeovers and Mergers.
The financial watchdog took King to court because it believed Mr King didn’t comply with the terms of the 2006 Companies Act.
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The legislation dictates that entrepreneurs who hold a 30 per cent stake in businesses are compelled to make an offer to investors to buy remaining shares
The Panel on Takeovers and Mergers believed that Mr King hadn’t complied with the Companies Act in this regard.
Investigators acting for the panel concluded that Mr King acted in concert with the so called Three Bears - businessmen George Letham, George Taylor and Douglas Park - to acquire the shares.
The quartet acquired more than 30 per cent of voting rights in Rangers in late 2014.
The money to buy the shares came from offshore trusts which were in the name of Mr King’s family.
Lawyers acting for King said he didn’t have the money needed to buy back shares at 20 pence per voting right.
Mr King’s legal team also argued that the shares were acquired by cash from his family’s trusts. The businessman claimed he didn’t have direct control over these trusts.
He said that a company registered in the British Virgin Islands had control over some of the shares.
His lawyers also argued that their client didn’t have the money to make the £11 million offer. His lawyers said Mr King was “penniless”.
On Friday, in a written judgement issued at the Court of Session, judge Lord Bannatyne said he agreed with the submissions made to him by James McNeill QC, the advocate who acted for the panel.
Concluding that King had to make the £11 million offer, Lord Bannatyne wrote that he was convinced that the entrepreneur had control over his family trusts and therefore had the cash to make the offer.
He wrote : “Having regard to all of the relevant circumstances, in exercise of my discretion, i grant the order sought.”
In proceedings which were heard in October this year, the court heard how financial investigators concluded that Mr King was in control of the shares.
Mr McNeill told Lord Bannatyne that on December 31 2014, the “three bears” purchased 16.23 per cent of shares in Rangers.
The lawyer then told the court that Mr King contacted financial services firm Cantor Fitzgerald and instructed that 14.73 per cent so the shares in Rangers be purchased.
The court heard that the money used to buy the shares came from Mr King’s family trust.
The shares were held by a company called New Oasis Management Limited which was registered in the British Virgin Islands.
Financial investigators concluded that Mr King was in control of the NOML shares.
Mr McNeill said King and the three bears acted “in concert” with each other. He said that evidence of this came from an email that had been sent from Mr Letham to Mr King.
The court heard that financial watchdogs had obtained a copy of this communication.
In the email, Mr Letham wrote: “Dave just a reminder that after we buy Lacey today, we will hold 19.7 per cent. We really only want to buy Artemis 10 per cent if it (sic) the intention to stay under 30 per cent otherwise we will have to make a mandatory offer.”
Mr McNeill told the court that this showed Mr King was aware that he would have to make an offer for the remaining shares.
He also said the financial investigators established that Mr King was in charge of the NOML shares during 2015.
The court heard that Mr King was in charge of the NOML shares when he was able to remove members of the Rangers board in January 2015.
The court heard that Mr King was also in charge of the NOML shares during an extraordinary general meeting at the club in March 2015.
Mr McNeill said that NOML hadn’t responded to requests from financial investigators to explain the nature of its business. He’s also said that Mr King hadn’t provided any information about the business to financial investigators.
Mr McNeill argued that this entitled the court to conclude that Mr King was in control of the 30 per cent shareholding stake in Rangers and that he had to make an offer to buy the remaining shares.
The court heard that in October 2017, the Rangers share price was worth 27 pence and Mr King would be expected to make an offer at 20 pence.
Shareholders didn’t have to accept the 20 pence share offer.
Mr King’s advocate Lord Davidson of Glen Clova QC told the court that the money used to purchase the shares came from on shore and off shore trusts.
He said that these trusts were in the name of Mr King’s family and that he personally didn’t have any control over how the cash could be spent.
Lord Davidson said: “Mr King is penniless.”
Mr McNeill argued that Mr King did have control over the trusts.
He said: “He is in de facto control of the fund. Mr King has used a trust structure which allows him to plead to having a lack of funds to avoid his obligations.
“There is clear evidence available to the court that when it suited Mr King the trust finds were available to avoid his obligations.”
Lord Bannatyne wrote that he agreed with Mr McNeill’s submissions.
He wrote: “As Mr McNeill pointed out, on two occasions the Trusts have been willing to provide money for the purchase of Rangers shares when he wished them to do so.
“Now suddenly when the respondent does not wish to comply with the terms of rule nine, the Trusts no longer are willing to provide any money. This tends, as Mr McNeill, submitted to show actual de facto control over the trusts by the respondent rather than the opposite.
“I believe that Mr McNeill is correct in his submission that the respondent has de facto control over the trusts.
“I do not accept on the information before me that the because the respondent’s assets have been placed within these trusts, he has no de facto control over these trusts and therefore is impecunious and cannot therefore make an order as required by rule nine.”
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