18 June 2024
Letter to Shareholders of Aseana Properties Limited (code: ASPL)
We refer to the announcement by Aseana Properties Limited (the “Company”) dated 3 June 2024 (the “3 June 2024 Announcement”) regarding the Requisitioned General Meeting (“RGM”) scheduled for 3 July 2024. As shareholders, we have requisitioned this meeting with a specific purpose: to advocate for the appointment of two new qualified directors to the Company’s Board. Urgent intervention is necessary to inject better corporate governance. We extend an invitation to all shareholders to join us in advocating for change in order to prevent the Company from collapsing.
Board Failures
We have observed significant shortcomings within the Company’s Board and at the Company. Most notably, their repeated failure to complete the purported sale of the Sandakan Assets within the deadlines they themselves announced has raised serious concerns.
We firmly believe that injecting fresh perspectives and expertise into the Board is essential for better corporate governance. The proposed directors can provide the necessary oversight of the business and especially the divestment process. We owe it to our investors to try to protect the value of our investment in Aseana Properties Limited, which coincidentally Mr. Nicholas Paris (the current Chairman of the Company) was responsible for when he was an employee of our UK office from September 2014 to September 2022 when he was responsible for our investments in listed closed end funds.
We believe the Company is currently on a trajectory to bankruptcy where shareholders will probably receive no or little value on their equity. As shareholders, we cannot stand idly by while the value of our equity erodes. We invite other Shareholders to support our efforts to change the Board.
Shareholders may have reservations about the two candidates that we are proposing given the Board’s biased narrative which we address below. We believe the Board’s strong opposition to our efforts to appoint new Directors to the Board are self-serving and based on their desire to protect their own positions and resist independent scrutiny. The Board’s claim that appointing two new directors will likely trigger a catastrophe lacks any credible basis. We suggest that the Directors may be trying to proactively deflect blame for the potential pending bankruptcy of the Company caused by their own failures. In fact, the current Board’s extreme opposition to any improvement in corporate governance and Board oversight requested by us suggests that the famous quote in Shakespeare’s Hamlet might be appropriate: "The lady doth protest too much, methinks.”
Historical Context – a failed sale of Sandakan Assets and failure to inform the market in a timely manner
On 30 June 2023, the Company announced the sale of the Sandakan Assets for MYR165 million, to be received in two equal tranches due on or before 30 July 2023 and on or before 30 September 2023, respectively. On 1 November 2023, the Company belatedly announced the sale had not completed on schedule, but was still on-going.
We point out that the failure to receive either payment was a material event and the Company should have immediately informed the market of the failure to receive the first tranche on 30 July 2023. Instead the Company delayed announcing this material event until 1 November 2023, a full three months after failure to receive the first tranche on 30 July 2023, and a month after failure to receive the second tranche on 30 September 2023. A clear failure of effective governance and we believe a breach of the UK Market Abuse Regulation (“UK MAR”).
We requested a call with the Company and had a call with many of the Directors and some of the management team on 10 November 2023, which raised more concerns and questions, the most important of which were (and still are):
a) how did the purported contract to sell the Sandakan Assets operate and why had no deposit been obtained from the purported buyer of the Sandakan Assets, which is customary in real estate transactions and acts as deterrent to breach of contract?
b) why is the Divestment Team not trying to sell any other asset including the RuMa Hotel rather than first trying to sell only the Sandakan Assets, which apparently is the Company’s approach?
c) did the Company/Board have a real plan for deleveraging the business and avoiding defaulting on the Company’s debts especially since the Sandakan Assets had Medium Term Notes (“MTN”) maturing on 8 December 2023 and there are cross-default clauses for the debt at the RuMa Hotel and Residence and the Company provided corporate guarantees for these debts?
On 13 November 2023 we wrote to the Board to i) clarify our understanding of what they had told us on the 10 November 2023 call and ii) to express our serious concerns about the divestment process (including the lack of a deposit for the purported sale of the Sandakan Assets) and iii) to ask additional questions.
Failure to avoid defaulting on MTNs due 8 December 2023
Since then, we have grown more concerned as the Company has continued to fail to deliver on its commitments by the announced dates. It quickly became evident the Board needed new directors to bring fresh eyes, and a “Plan B” in case the Company’s subsidiary defaulted on the MTNs coming due on 8 December 2023. To that end, I contacted various parties in Malaysia, such as the local restructuring teams at several major accounting firms/restructuring firms and local real estate experts, who could potentially act as directors and/or financial advisors to the Company. I passed various names to the Chairman, Mr. Paris, in late November and December 2023.
We became more alarmed when the Company’s Sandakan Assets did default on their MTNs on 8 December 2023 and then even more so when the Company failed to resolve its MTN default at the end of the 30 day “grace” period on 8 January 2024, resulting in the “guarantor banks” stepping in to honour their guarantee of the MTNs and payoff the MTN holders.
We had several unsatisfactory calls/email exchanges with the Chairman and/or Directors of the Company where we were essentially told that everything was alright and the purported sale of the Sandakan Assets would successfully settle. We concluded that the Board was in denial and needed a radical shake up. We accelerated our search for potential candidates to join the Board. We also continued to looking for advisers in Malaysia who could potentially help advise the Company or to step in and workout the problems of the Company if necessary. I visited Kuala Lumpur in both February and March 2024 and conducted field research on the Company and met potential directors and advisers for the Company.
The Company announced on 8 April 2024 a “Supplemental Agreement” with the same purported buyer of the Sandakan Assets
We did, as the 3 June 2024 Announcement states, formally write to the Board on 2 April 2024 requesting various changes to the Board and gave the Board until the 5:00pm UK time on 8 April 2024 to respond. Shortly before that deadline, the Company announced on 8 April 2024 via RNS, the news service of the London Stock Exchange, that it had signed a “Supplemental Agreement” on 6 April 2024 to resurrect the sale of the Sandakan Assets with the same buyer who had already failed to settle the transaction previously announced on 30 June 2023. The Company’s official announcement stated this time the buyer would make a payment of about MYR61 million on or before 6 May 2024 and the balance of approximately MYR104 million within 45 days thereafter. According to this announcement, the purported buyer again did not make any deposit (even though it had already failed to complete on the earlier transaction).
We had a call with Directors Mr. Paris and Mr. Thomas Holland on 22 April 2024. Among other things, they assured us the first tranche of MYR61 million of the revised Sandakan Assets transaction would settle on time on 6 May 2024, and therefore it would be unnecessary to make any changes to the Board. They strongly requested, based on this upcoming payment, that we not requisition a general meeting of Shareholders to change the Board.
We note that the Company announced on 7 May 2024 that the transaction was still on-going, thereby confirming that no payment had been received. In other words, there had been a default on the payment due on 6 May 2024. At least this time the Company appeared to appreciate its basic obligations under UK MAR to make timely, if not complete disclosure.
The Company’s 2023 Audited Accounts, which had been released on 30 April 2024, contained some very interesting language from the Auditor. The section “Key audit matters” on page 19 did not use reassuring language to confirm that the purported sale of the Sandakan Assets under the “Supplemental Agreement” is supported by a strong legally binding agreement; rather, the Auditor’s description of the purported sale and purchase agreement for the Sandakan Assets was fairly weak and made it seem like the “interested party” (notably – not described as “the buyer”) merely indicated an “intention” to complete the transaction. In addition, the Auditor stated the “intention” is to complete the transaction within 75 days from the signing of the Supplemental Agreement (i.e., 6 April 2024), which is contrary to the deadline of 6 May 2024 for the first payment stipulated in the Company’s official announcement on 8 April 2024 of the Supplemental Agreement.
We could only assume, therefore, that the Auditor, having reviewed the relevant documents, could not confirm or verify that a strong legally binding agreement (with normal terms for real estate transactions such as a requirement for a deposit) for the purported sale of the Sandakan Assets was in place, otherwise we believe the Auditor would have used stronger language. Alternatively, there could be some kind of a formal agreement but it is very weak and very one-sided in favour of the buyer, such as no requirement for a deposit and perhaps no recourse against the buyer if the buyer walks away.
We would further point out that if the original “Sale Purchase Agreement” announced on 30 June 2023 was legally binding and strong, why didn’t the Company sue the buyer after it defaulted on the two installment payments due by 30 June 2023 and by 30 September 2023, respectively? Perhaps the Auditor’s statement that “the timeline of which was not adhered to thus rendering the agreement null and void” reveals the real weakness of this supposed agreement. What normal legally binding sale and purchase agreement is rendered null and void when the buyer does not adhere to the agreed timeline? The relevant sections of the 2023 Audited Accounts are:
“We reviewed the signed Sale Purchase Agreement (and subsequent Supplemental Agreement) stating the potential buyer's interest in purchasing Sandakan assets. Further, we assessed the buyer's credentials using publicly available information...”
“Consolidated Statement of Comprehensive Income. A Sales Purchase Agreement was signed on 30 June 2023 by an interested party, the timeline of which was not adhered to thus rendering the agreement null and void. A Supplemental Agreement was signed on 6 April 2024 with the intention to complete the sales transaction within 75 days from the signing of the Supplemental Agreement (Note 35). As at the date of this audit report, the sales transaction is ongoing and no deposit nor form of payment has been made.”
In early May 2024, based on the failure to complete the purported sale to date, we told the Chairman, Mr. Paris, that we did not believe there is a strong legally binding agreement in place to sell the Sandakan Assets. Mr. Paris assured us that there was a legally binding agreement in place. We told the Chairman and other members of the Board that unless the Company could prove to us that there was a legally binding sale and purchase agreement for the purported sale of the Sandakan Assets, we were strongly minded to proceed with requisitioning the RGM to change the Board’s composition. We told Mr. Paris that the Company could prove to us that there was a legally binding transaction to sell the Sandakan Assets by letting us review a copy of the purported sale and purchase agreement with the name of the buyer redacted. Mr. Paris replied in writing that the Company would not share the redacted agreement with us even if we signed an NDA. Mr. Paris offered no other alternative to prove that a legally binding agreement to sell the Sandakan Assets existed, such as by having a law firm review and confirm the basic terms of the agreement. Therefore, we remain convinced that there is no strong legally binding commitment in place for the sale of the Sandakan Assets (at least to the purported buyer as announced in the various Company announcements).
No choice but to requisition a general meeting to add new directors to the Board
We would like to remind the existing Directors and Shareholders that our current requisition only seeks to appoint new Directors and leaves in place Ms. Helen Wong Siu Ming (the “Divestment Director”) who has primary responsibility for the Divestment Plan. We do not want to disrupt any chance of successfully selling the Sandakan Assets or other assets, even though we are now highly skeptical that they will succeed, based on the failure so far to settle the Sandakan Assets transaction or to sell other major assets.
We would also point out that we deliberately waited until 13 May 2024 to formally requisition, allowing plenty of time for the payment purportedly due on 6 May 2024 to settle. Indeed, as of today’s date (18 June 2024), there has still been no payment received!!
The Company, in its 3 June 2024 Announcement, says the following about our requisition: “The Board considers that the Resolutions, if passed, present a significant risk to the future prospects of the Company.” It has been the Board and Management’s failure to divest assets (including the Sandakan Assets) and deleverage the business that poses an immediate threat to Company. There simply will not be any “future prospects” of the Company, if the Company goes bankrupt.
The 3 June 2024 Announcement tries to refute LIM’s claim that there has been a failure of corporate governance and the divestment by saying the following:
(In a letter dated 2 April 2024), “LIM complained about the failure to complete the sale of the Company's assets in Sandakan, repay the debt owed to the three banks who acted as guarantors (the "Bank Guarantors") of the Medium Term Notes and raised a number of other allegations. In particular, the Board strongly rejects the Requisitioning Shareholders' allegation of poor corporate governance and any perceived failure of the Board in the pursuit of the Divestment Policy adopted by the Company.”
We believe the record stands for itself:
i. The Company did not settle the original purported sale of the Sandakan Assets announced on 30 June 2023.
ii. There was unacceptable delay in making announcements connected with failure to meet the original deadlines for receipt of the amounts due under the first Sandakan Assets sale agreement.
iii. The Company then announced on 8 April 2024 that on 6 April 2024 it had signed a Supplemental Agreement to sell the Sandakan Assets with a payment of about MYR61 million payable on or before 6 May 2024 and the balance of MYR104 million due 45 days thereafter.
iv. The payment due on 6 May 2024 (or any payment) has yet to be received as of today, now almost 40 days late.
v. The Company has made various announcements which we (and our lawyers) believe are misleading, overly optimistic, not timely, not transparent, inaccurate and/or which ignore other relevant material information. The Company appears not to fully appreciate the disclosure obligations under UK MAR.
Overall, we believe the Company has generally failed to keep Shareholders and the stock market properly informed through timely and transparent disclosure of pertinent information as required under UK MAR and the Listing Rules; and that there have been and continue to be governance failures.
Objection to our proposed two Directors
Regarding Dato Kok Cheong THONG as a potential Director
We find the whole issue around Mr. Thong a farce and probably an excuse for not changing the Board or having proper Board oversight of the Company and especially the Divestment Process. Before and after we requisitioned, we asked the Directors a few times to provide material evidence of the unsuitability of Mr. Thong to join the Board. They have failed to provide anything that we consider that would disqualify him and essentially made the same points that they make in the 3 June 2024 Announcement, which for the reasons given below do not in our opinion appear credible.
The fact that he would participate in the de-merger initially announced in May 2020 is hardly a negative reflection on Mr. Thong, especially when Mr. Paris (as Chairman) and Ms. Wong were among the independent directors at that time unanimously recommending on 30 July 2020 the de-merger to the Shareholders. In fact, we understand that the then Board initiated the de-merger idea and asked Mr. Thong if he would participate on the terms proposed before it was announced by the Company.
We note the Board’s claim that Mr. Thong supported the Lai Family's proposal in August 2022 to remove Ms. Wong as a Director but Mr. Thong has assured us that he was not involved with the requisition and how he voted is not indicative of collusion but rather reflects the exercise of his votes as he thought appropriate which is entirely within his rights as a shareholder. We do not believe that he should be disqualified and/or will not be an independent director going forward if he joins the Board simply because he voted the same way as the Lai Family or that he will collude with the Lai Family to the detriment of other Shareholders. With our lawyers, we conducted our own investigation into this matter.
The 3 June 2024 Announcement also essentially seems to claim that because Mr. Thong holds 11,959,608 Shares representing approximately 7.48 per cent of the voting rights of the Company, he is not qualified to be an Independent Director. The current Board’s logic seems to be that no Shareholder, especially Shareholders owning more than 5%, should be Directors, or that they will only accept new directors who qualify on their assertion of what qualifies as “Independent” and/or that only people like the current Directors who have no equity ownership should be Directors. Obviously this is an absurd position to take and raises very serious issues about alignment of interest including for the current Board. Many directors, especially executive directors, of listed companies own shares and indeed are often encouraged to participate in incentive schemes which reward them in equity. The fact that Mr. Thong owns shares in the Company should incentivise him to maximize the value of the shares of the Company, which will benefit all Shareholders. If the Board insists on labelling him as non-independent then so be it but we would welcome a full examination of the independence of all current Directors designated as such.
The current Board has consistently rebuffed any potential change to the Board and has made no effort to come up with suitable new directors to join the Board. Even if they did, given the level of ‘group think’ on display, we question whether any candidates the current Board identifies will offer challenge and oversight, which is key to effective governance. The fact is that Mr. Thong has extensive experience in commercial real estate in Malaysia including resolving distressed real estate in Malaysia, and that is directly relevant to resolving the remaining assets of the Company. You would think they would welcome him joining the Board rather than resist it.
Prior to February 2024, I do not believe I had ever interacted with Mr. Thong. I first met him in Kuala Lumpur in February 2024. I initially wanted to meet him because he is a major shareholder and I wanted to understand his perspective on the Company. As I became convinced that Aseana’s Board needed urgent change, I increasingly came to the view that he might be suitable. I also met him two more times on subsequent trips to Malaysia before deciding to propose him as a Director. I had our lawyers interview both him and Ms. Clare Muhiudeen and both filled out detailed questionnaires prepared by our lawyers in the form customarily used by a London listed company to assess their suitability to be directors. I also ran a background check on both of them using reputable external agency. I could find no information that in my opinion disqualified either Mr. Thong or Ms. Muhiudeen from being a Director. In fact, the more I interacted with Mr. Thong and learned more about his experience, the more I understood the value of his very relevant experience in resolving problem real estate in Malaysia, as well as managing and investing in real estate in Malaysia in general.
Regarding Clare MUHIUDEEN as a potential Director
The Board’s claim appears to be that her expertise in human resources, compensative and incentive schemes is irrelevant, and therefore she should not join the Board. We believe her background is highly relevant because the Board and the Company’s compensation and incentives need to be completely reviewed and potentially revised to ensure that all compensation arrangements are fair, in the interest of Shareholders, properly documented and transparent.
We note that the Divestment Director (Ms. Wong) “received additional remuneration of US$300,000 (2022: US$300,000) in relation to her service in the Company's asset divestment program” in addition to her annual director’s fee of US$77,000 currently. We understand recently from Mr. Paris that this consulting fee has been increased to now US$350,000 a year. In addition, she is entitled to receive a commission of 1.1% of the gross proceeds less any agent commissions from sales of assets. These are indeed serious and probably excessive compensation arrangements, especially when the Board claims they are short of liquidity and the Company has failed to complete the purported sale of the Sandakan Assets, which urgently need an objective review. There is also a question of alignment given Ms. Wong’s entire compensation appears to be in cash rather than in Company equity. We also note that the Company and its subsidiaries have approximately 244 employees in Malaysia. Retaining and incentivizing such employees must therefore be a key function of the Board.
We further note the statement in the 2023 Audited Accounts that the “Nomination and Remunerations Committee” is responsible for , among other things, “setting the remuneration for all Directors albeit since all Directors are non-executive, the principles of the Code in respect of executive directors' remuneration are not applicable and as such there is no policy for executive compensation.” The “Code” refers to The UK Corporate Governance Code. First of all, we seriously question whether all Directors, especially the Divestment Director (Ms. Wong), can objectively be regarded as non-executive. Certainly the divestment function must be an executive function. Given Ms. Wong’s compensation arrangements and role as Divestment Director, it is a peculiar interpretation of the Code to label her as non-executive and thus avoid the usual oversight or apply a policy.
In addition, as the 2023 Audited Accounts state “In January 2020, the CEO resigned, a de-merger exercise was proposed and as a result, the consulting/secondment agreement was terminated with effect from 31 May 2020. Since then, ASEANA became a self-managed company. The Board consists solely of non-executive directors of which Nicholas Paris is the non-executive Chairman.” The Company’s 2020 Audited Accounts say: “Following the resignation of the Chief Executive Officer on 17 January 2020, all of his responsibilities were assumed by the Chairman and the Board.” Therefore, certainly the Chairman and probably other Directors must also be de facto executives of the Company since they are performing various executive responsibilities that they assumed from the resigning CEO. Whether these individuals and other Directors are executive or non-executive is certainly something that a human resources expert such as Ms. Muhiudeen can ascertain. In addition, all such compensation should be reviewed by a compensation/remuneration expert which Ms. Muhiudeen indeed is.
We also point out that Ms. Muhiudeen is from Malaysia and has extensive business experience in Asia including Malaysia, which should generally benefit the Board.
Threat by the Board to Resign
The 3 June2024 Announcement essentially threatens that the entire Board and key members of the management team are likely to resign “if either or both of the Proposed Directors were to be appointed.” Furthermore, “In addition, the Company's status as a listed company may be prejudiced should the Board conclude that the Company no longer has adequate procedures, systems and controls to enable it to comply with its obligations under the Listing Rules. Grant Thornton UK LLP, the Company's financial adviser has indicated that it will resign from its role in the event of changes to the composition of the Board and/or if the Company no longer satisfies the requirements to comply with its Listing Rule obligations.”
First, we hardly see why adding one or both proposed directors would be so catastrophic for the Board since the current Directors would still constitute a majority of the Board. We believe this is simply a “scorched earth” attempt to scare some Shareholders to support the Board’s refusal to change. We question whether this approach fulfills the fiduciary obligations of the Directors. Any responsible director would conduct an orderly handover in the event of resignation. Should such resignations eventuate, we consider that other suitable directors could be found and/or suitable advisers could compensate for such resignations. As we already pointed out, this approach by the current Board could simply be an attempt, in addition to trying to sway Shareholders to vote the way the Board desires, to proactively blame others since the Company may be about to collapse anyway under the current Board’s watch.
The 3 June 2024 Announcement essentially claims, alleges, insinuates and infers that our requisition and the addition of one or both of our two candidates to the Board will ultimately lead to collapse of the Company (because it will trigger all the Directors and key staff to resign) and imperil the sale of the Sandakan Assets. We strongly refute such a ridiculous statement. If the Company has entered into a legally binding contract with the buyer of the Sandakan Assets, then a change in the composition of the Board would not, unless the agreement is quite peculiar, be affected.
We believe that Shareholders have to intervene to ensure the Company does not collapse, even though it may of course collapse anyway because of the dire condition the Company may already be in. While we would like the purported sale of the Sandakan Assets to go through, which is why we have never proposed or requisitioned to remove the Divestment Director, Ms. Wong, we simply believe that there is much more downside and risk in not adding new directors to bring new oversight and improve governance.
Threat (represented by the Company) that Grant Thornton LLP is likely to resign
We are also mystified by the suggestion that Grant Thornton LLP is likely to resign. Why would the addition of two new high quality directors or even the resignation of some existing directors result in their resignation, unless some misrepresentation has been made by the Board regarding our bona fide objectives to improve (not diminish) corporate governance? Nothing in our requisition is designed to diminish governance or adherence to the Listing Rules applicable to a company with a Standard Listing. In any event, our understanding is that unlike a company on AIM where resignation of a Nominated Advisor results in a suspension; or a company with a Premium Listing which must have a Sponsor, a company with a Standard Listing is not required to have a financial adviser ‘on permanent retainer’. If for some unexplained reason Grant Thornton does resign then we believe there are other financial advisers who can be appointed. But to be clear, we support the Company having a London based financial adviser to assist in advising on the Listing Rules and have no issue with Grant Thornton.
The Company has not yet announced (as of the time of publishing this letter) that they have received a deposit or a payment (in full or in part) for the purported sale of the Sandakan Assets. How can the Board have any credibility on anything after all these delays and failures to perform? We therefore ask that you support our efforts to add two qualified individuals to the Board.
Yours sincerely,
George W. Long, Director
For an on behalf of the LIM Asia Multi-Strategy Fund Inc and the LIM Asia Special Situations Master Fund, which collectively hold 26,144,192 shares of the Company.
18 June 2024
Contacts:
LIM Advisors Limited
Phone number: +852-2533-0900
Email: bettergovernanceforaseana@limadvisors.com