Acheron Portfolio Corporation

Transcription

1 ACHERON PORTFOLIO CORPORATION (Luxembourg) S.A. Société Anonyme Registered office: 37 rue d Anvers L-1130 Luxembourg R.C.S. LUXEMBOURG B (hereafter the Company or APC) Luxembourg, 19 May 2017 Dear Shareholder, SUPPLEMENTAL NOTICE OF MEETING At the request of a shareholder of the Company representing at least five per cent (5%) of the subscribed share capital of the Company (namely, AHMOSE S.A. a Luxembourg company with registered office at 1, rue de Steinfort, L-8371 Hobscheid, registered under number B with the Luxembourg trade and companies register) in accordance with art. 4(1) of the law of 24 May 2011 regarding the exercise of certain shareholders rights at general meetings of listed companies, the following items shall be added to the agenda of the annual general meeting of shareholders of the Company to be held on 6 June 2017, at 10:00 am at the registered office of the Company and convened on 6 May 2017 (the Meeting ): 1. Reduction of management fees rate to 0.5% applied on B Shares paid to Acheron Capital Ltd as shares A and B are in run-off stage. Total costs charged by external providers (including Acheron Capital Ltd the manager for $1,878,645 and the Servicers for $2,499,988) amount to $5,974,167 (Note 14, page 61 of the Board of Directors Annual Report) as the NAV of all the issued shares amounts to approximately $ 125,6m. These costs represent 4.75% of the NAV. 2. Issuance of a detailed presentation of all legal costs and all service providers (including Litai Assets) costs of the Company for the 2016 financial year. Asking an external audit on all the fees paid to external providers in order to engage an efficiency cost reduction plan. 3. Issuance of a detailed presentation about the premiums to be paid. Assuming there are no deaths, what is (i) the total yearly premium to be paid each year for the next ten years with respect to class B shares and (ii) the total yearly premium to be paid each year for the next five years with respect to the ten most substantial policies. 4. Issuance of a detailed presentation explaining all existing past, present or future relationships between the members of the Board of directors of the Company, whether it is of capitalistic, lineage, or any other nature whatsoever, and the servicer Litai Assets LLC. 1

2 Ahmose S.A., a Luxembourg company, being a holder of more than 5% of Acheron Portfolio Corporation (Luxembourg) s share capital based on documents provided by it, requested APC to insert additional items to the agenda of the upcoming annual general meeting of Acheron Portfolio Corporation (APC). Material questions remain as to the ability of the board of directors of Amhose S.A. to validly represent that company since pursuant to a judgment of the Luxembourg district court dated 7 December 2016 which the Board of directors of APC (the Board ) has been made aware of, the current composition of the board of Ahmose S.A. was invalidated and, as far as the Board knows, Ahmose S.A. itself did not appeal that decision. However, the Board of APC believes it is best to proceed with Ahmose S.A. s request and putting it to the attention of the APC shareholders, reserving all rights in what may constitute an abuse of process. It is to be noted that the additional agenda items proposed by Ahmose S.A. are similar to the ones put forward at the 2016 annual general meeting of APC by the Furstenberg companies. All motions proposed last year by the Furstenberg companies were rejected by an overwhelming majority of APC shareholders. As last year, specific acts of management (acte de gestion), which are the sole responsibility of the Board of APC, are submitted to the annual general meeting of APC while they should not technically be put to a shareholder vote because the acts fall solely under the powers and authority of the Board. Such a vote will thus be inherently of advisory nature and will not result in any legal consequences for APC in relation to the relevant subject matters. In this context it is important to know that Ahmose S.A. and its main shareholders, Mr Bataillon and Furstenberg, have been recently held liable by the Luxembourg district court for abusive and vexatious proceedings against the Company s contractors. As to the level of costs borne by APC, it is true that APC has a uniquely large portfolio of policies, generating material administration costs. The prices paid by APC for the management of its trusts or the administration of its policies are however at or below market price. Further, the figures put forward by Ahmose S.A. are misleading. Class B total costs, in which it is invested, are 3.5% of the NAV. Finally, the financial statements of APC have been audited by a reputable audit firm, Grant Thornton Lux Audit, which ended up validating all the accounts prepared by the Board, including any expenses paid to contractors, without any qualifying opinion. 2

3 Comments of the Company s board of directors The Company s Board of directors wishes to comment as follows on the above matters: 1. Reduction of management fees rate to 0.5% applied on B Shares paid to Acheron Capital Ltd. The Board of directors notes that: - the level of management fees paid by the Company is in its opinion appropriate for the services received from the Company s investment manager; - the decision to negotiate and agree a certain level of management fees with the Company s investment manager is a management decision which legally falls within the competence of the Board of directors, not of the Company s general meeting of shareholders; - an instruction of the general meeting of shareholders in respect of such matter shall further not bind the Board of directors as a matter of applicable law; - the investment management agreement signed between the Trusts referred to in the notes to the financial statements and Acheron Capital Ltd is, to the knowledge of the Board of directors, not capable of being amended without the consent of such company as a matter of applicable law. For such reasons, a decision of the general meeting of shareholders on the above matter shall remain without effect, irrespective of the outcome of the vote. The Board of directors therefore recommends shareholders to vote against the proposed resolution. 2. Presentation of costs and external audit on all the fees paid to external providers. The Board of directors notes that: - the Company s costs are disclosed to shareholders in the annual report in accordance with the Company s legal obligations; - Such costs are in its opinion appropriate for the services received by the Company and there is no valid reason that the Company incurs additional audit costs beyond the fees of the Company s independent auditor; - the decision to engage an auditor with respect level of costs incurred by the Company is a management decision which legally falls within the competence of the Board of directors, not of the Company s general meeting of shareholders; - an instruction of the general meeting of shareholders in respect of such matter shall further not bind the Board of directors as a matter of applicable law. For such reasons, a decision of the general meeting of shareholders on the above matter shall remain without effect, irrespective of the outcome of the vote. The Board of directors therefore recommends shareholders to vote against the proposed resolution. 3. Presentation about the premiums to be paid by the Company. The Board of directors notes that: - the Company s premiums are disclosed to shareholders in the annual report in accordance with the Company s legal obligations; 3

4 - an instruction of the general meeting of shareholders in respect of such matter shall further not bind the Board of directors as a matter of applicable law. For such reasons, a decision of the general meeting of shareholders on the above matter shall remain without effect, irrespective of the outcome of the vote. The Board of directors therefore recommends shareholders to vote against the proposed resolution. 4. Presentation about the relationship(s) between the members of the Board of the Company and Litai Assets LLC. The Board of directors notes that: - the Company s Board members have no relationship of financial nature with Litai Assets LLC; - All related parties transactions have been disclosed in the financial statements in accordance with IFRS 24; - an instruction of the general meeting of shareholders in respect of such matter shall further not bind the Board of directors as a matter of applicable law. For such reasons, a decision of the general meeting of shareholders on the above matter shall remain without effect, irrespective of the outcome of the vote. The Board of directors therefore recommends shareholders to vote against the proposed resolution. Total Voting Rights The share capital of the Company is on the date hereof represented by A shares with a par value of USD 0.01 each, B shares with a par value of USD 0.01 each, D shares with a par value of USD 0.01 each, E shares with a par value of USD 0.01 each, CA shares with a par value of USD 0.01 each, CB shares with a par value of USD 0.01 each, CD shares with a par value of USD 0.01 each, and CE shares with a par value of USD 0.01 each. The authorized share capital of the Company including the issued capital of the Company is set at USD 500,000,000. The class CA shares, class CB shares, class CD shares, class CE shares, class A shares, B shares, D shares and E Shares all carry voting rights in general meetings on an unrestricted one share one vote basis. Right to participate to the Meeting Any shareholder who holds one or more shares of the Company shall be admitted to the Meeting and may vote in person or by appointing in writing another person, who needs not be a shareholder, as its proxy. Any shareholder and/or proxyholder participating in the Meeting shall carry a valid proof of identity. Record date Further to the notice dated 5 may 2017,we remind shareholders holding shares through fungible securities accounts (custodian banks) wishing to exercise their right to vote at the Meeting shall request 4

5 from their custodian banks a certificate evidencing their holding of such shares and certifying the number of shares recorded in the relevant account as at 14 (fourteen) days at midnight prior to the date of the Meeting (the Record Date). Procedures for attending and voting at the Meeting a) Shareholders wishing to attend the Meeting in person: Any shareholder holding shares through fungible securities accounts (custodian banks) wishing to attend the Meeting in person must not later than 3 (three) business days prior to the Meeting, deliver by fax (+352/ ) with the original to follow by mail to the attention of Yves Mertz at the registered office of the Company located at 37 rue d Anvers, L-1130 Luxembourg, a certificate issued by the financial institution or professional depositary (custodian bank) holding such shares, evidencing its holding of such shares and certifying the number of shares recorded in the relevant account as of the Record Date. and Any shareholder must in addition to the above, no later than 3 (three) business days prior to the Meeting (i) have their custodian bank send SWIFT attending instruction to Clearstream / Euroclear and (ii) have a copy of said SWIFT instruction sent by their custodian bank to Banque Internationale à Luxembourg, Luxembourg (SWIFT code: BILLLULL), along with the attendance confirmation sent to Banque Internationale à Luxembourg to the attention of Biagio Grasso, by fax (+352/ ) or (biagio.grasso@bil.com). Certificates issued by financial institutions or professional depositaries (custodian banks) certifying the number of shares recorded in the relevant account as of a date other than the Record Date will not be accepted and such shareholders will not be admitted to the Meeting. The shareholders may use only attendance confirmations provided by the Company. Shareholders who already provided an attendance confirmation further to the convening notice dated 5 May 2017 do not need to provide a new attendance confirmation in order to attend the Meeting. b) Shareholders wishing to vote through proxy: Any shareholder holding shares through fungible securities accounts (custodian banks) wishing to vote through proxy at the Meeting must not later than 3 (three) business days prior to the Meeting, deliver by fax (+352/ ) with the original to follow by mail to the attention of Yves Mertz at the registered office of the Company located at 37 rue d Anvers, L-1130 Luxembourg, a certificate issued by the financial institution or professional depositary (custodian bank) holding such shares, evidencing its holding of such shares and certifying the number of shares recorded in the relevant account as of the Record Date. and 5

6 Any shareholder must no later than 3 (three) business days prior to the Meeting (i) have their custodian bank send SWIFT instruction to Clearstream / Euroclear and (ii) have a copy of said SWIFT instruction sent by their custodian bank to Banque Internationale à Luxembourg, Luxembourg (SWIFT code: BILLLULL), along with the proxy sent to Banque Internationale à Luxembourg to the attention of Biagio Grasso, by fax (+352/ ) or (biagio.grasso@bil.com) and to the Company to the attention of Yves Mertz, by fax (+352/ ) with the original to follow by mail to the attention of Yves Mertz at the registered office of the Company located at 37 rue d Anvers, L-1130 Luxembourg. Certificates issued by financial institutions or professional depositaries (custodian banks) certifying the number of shares recorded in the relevant account as of a date other than the Record Date will not be accepted and such shareholders will not be admitted to the Meeting. The shareholders may use only the form of proxy provided by the Company. Shareholders not attending the Meeting and who intend to mandate a proxy holder must submit the proxy attached to the first convening notice dated 5 May 2017 AND the attached proxy (dealing with additional agenda items). Shareholders who already provided the proxy attached to the first convening notice dated 5 May 2017 and who wish to vote on the additional agenda must no later than 3 (three) business days prior to the Meeting (i) have their custodian bank send SWIFT instruction to Clearstream / Euroclear and (ii) have a copy of said SWIFT instruction sent by their custodian bank to Banque Internationale à Luxembourg, Luxembourg (SWIFT code: BILLLULL), along with the proxy sent to Banque Internationale à Luxembourg to the attention of Biagio Grasso, by fax (+352/ ) or (biagio.grasso@bil.com) and to the Company to the attention of Yves Mertz, by fax (+352/ ) with the original to follow by mail to the attention of Yves Mertz at the registered office of the Company located at 37 rue d Anvers, L-1130 Luxembourg. c) Any holder of registered shares having been duly registered in the shareholder s register of the Company is allowed to attend the Meeting upon presentation of a valid document evidencing its identity d) In the event of shares owned by a corporation or any other legal entity, individuals representing such entity who wish to attend the Meeting in person and vote at the Meeting on behalf of such entity, must present evidence of their authority to attend, and vote at, the Meeting by means of a proper document (such as a general or special power-of-attorney) issued by the relevant entity. A copy of such power of attorney or other proper document must be filed with the Company not later than 3 (three) business days prior to the Meeting, at the Company s registered office in Luxembourg. The original documentation evidencing the authority to attend, and vote at, the Meeting, or a notarized and legalized copy thereof, must be presented at the Meeting. e) Pursuant to the Company s articles of association, resolutions at the Annual Meeting will be passed by a simple majority of the votes cast, irrespective of the number of shares present or represented. 6

7 Copies of the convening notice, proxy and attendance confirmation, draft resolutions as well as the Company s 2016 annual Report and the Company s annual accounts as at 31 December 2016, together with the Board of directors and the independent auditors reports thereon are available on our website at or at the free disposal of the shareholders at registered office of the Company. The Company may be contacted as follows for any query in relation to the Meeting: Per mail: 37 rue d Anvers, L-1130 Luxembourg Per fax: Per contact@acheronportfolio.lu For and on behalf of the Board of directors of the Company Director Director 19 May 2017 Luxembourg 7

8 ATTENDANCE CONFIRMATION The undersigned, In case of a natural person Name: Professional address: Date of birth: In case of a corporation or other legal entity Corporate denomination: Corporate seat: Place of registration: Registration number: Authorized representative: Being the holder of A Shares (LU ) Being the holder of B Shares (LU ) Being the holder of D Shares Being the holder of E Shares Being the holder of CA Shares Being the holder of CB Shares Being the holder of CD Shares Being the holder of CE Shares of ACHERON PORTFOLIO CORPORATION (LUXEMBOURG) S.A., a société anonyme organised and existing under the laws of Luxembourg having its registered office at, 37 rue d Anvers, L-1130 Luxembourg, registered with the Luxembourg Trade and Companies Register under the number B (the Company), Hereby confirms that (please check box where relevant): he/she will attend the annual general meeting of the shareholders of the Company to be held on 6 June 2017 at 10 a.m. CET (the Meeting); 1

9 The undersigned declares that: In case it holds shares through fungible securities accounts (custodian banks): - he/she has, not later than 3 (three) business days prior to the Meeting, delivered by fax (+352/ ) with the original following by mail to the attention of Yves Mertz at the registered office of the Company located at 37 rue d Anvers, L-1130 Luxembourg, a certificate issued by the financial institution or professional depositary (custodian bank) holding such shares, evidencing its holding of such shares and certifying the number of shares recorded in the relevant account 14 days prior to the Meeting; and - he/she has, not later than 3 (three) business days prior to the Meeting, (i) had his/her custodian bank send SWIFT attending instruction to Clearstream / Euroclear and (ii) had a copy of said SWIFT attending instruction sent by his/her custodian bank to Banque Internationale à Luxembourg, Luxembourg (SWIFT code: BILLLULL), along with the present attendance confirmation sent to Banque Internationale à Luxembourg to the attention of Biagio Grasso, by fax (+352/ ) or (biagio.grasso@bil.com). In case of registered shares: - He/she has been duly registered in the shareholder s register of the Company and will present a valid document evidencing its identity. In case of shares owned by a corporation or any other legal entity: - a copy of the evidence of his/her authority to attend and vote at, the Meeting by means of a proper document (such as a general or special power-of-attorney) issued by the relevant entity has been filed with the Company not later than 3 (three) business days prior to the Meeting, at the Company s registered office in Luxembourg; and - He/she will present at the Meeting the original documentation evidencing his/her authority to attend, and vote at, the Meeting, or a notarized and legalized copy thereof. Signature By: Title: Date: 2

10 MEETING ADDITIONAL PROXY The undersigned, In case of a natural person Name: Professional address: Date of birth: In case of a corporation or other legal entity Corporate denomination: Corporate seat: Place of registration: Registration number: Authorized representative: Being the holder of A Shares (LU ) Being the holder of B Shares (LU ) Being the holder of D Shares Being the holder of E Shares Being the holder of CA Shares Being the holder of CB Shares Being the holder of CD Shares Being the holder of CE Shares of ACHERON PORTFOLIO CORPORATION (LUXEMBOURG) S.A., a société anonyme organised and existing under the laws of Luxembourg having its registered office at, 37 rue d Anvers, L-1130 Luxembourg, registered with the Luxembourg Trade and Companies Register under the number B (the Company), Hereby appoints with full power of substitution (please check box where relevant) : Mr. Yves Mertz, having his professional address at 37 rue d Anvers, L-1130 Luxembourg, or Mr/Mrs..., having his/her professional address at... (The Proxyholder), in order to represent the undersigned at the annual general meeting of the shareholders to be held at the registered office of the Company on 6 June 2017, at 10:00 a.m. CET and in its name and on its behalf to act and vote on the following agenda : 3

11 ADDITIONAL AGENDA ITEMS 1. Reduction of management fees rate to 0.5% applied on B Shares paid to Acheron Capital Ltd as shares A and B are in run-off stage. Total costs charged by external providers (including Acheron Capital Ltd the manager for $1,878,645 and the Servicers for $2,499,988) amount to $5,974,167 (Note 14, page 61 of the Board of Directors Annual Report) as the NAV of all the issued shares amounts to approximately $ 125,6m. These costs represent 4.75% of the NAV. 2. Issuance of a detailed presentation of all legal costs and all service providers (including Litai Assets) costs of the Company for the 2016 financial year. Asking an external audit on all the fees paid to external providers in order to engage an efficiency cost reduction plan. 3. Issuance of a detailed presentation about the premiums to be paid. Assuming there are no deaths, what is (i) the total yearly premium to be paid each year for the next ten years with respect to class B shares and (ii) the total yearly premium to be paid each year for the next five years with respect to the ten most substantial policies. 4. Issuance of a detailed presentation explaining all existing past, present or future relationships between the members of the Board of directors of the Company, whether it is of capitalistic, lineage, or any other nature whatsoever, and the servicer Litai Assets LLC. Additional resolutions 1 Reduction of management fees rate to 0.5% applied on B Shares paid to Acheron Capital Ltd. The Proxyholder is hereby instructed to vote in favour of abstain from voting vote against the above mentioned resolution of the Agenda (*). 2 External audit on all the fees paid to external providers. The Proxyholder is hereby instructed to vote in favour of abstain from voting vote against the above mentioned resolution of the Agenda (*). 4

12 3 Presentation about the premiums to be paid by the Company. The Proxyholder is hereby instructed to vote in favour of abstain from voting vote against the above mentioned resolution of the Agenda (*). 4 Presentation about the relationship(s) between the members of the Board of the Company and Litai Assets LLC. The Proxyholder is hereby instructed to vote in favour of abstain from voting vote against the above mentioned resolution of the Agenda (*). (*) Please check off as appropriate. A proxy without indication of instruction to the Proxyholder will be deemed to be nil and will not be taken into account. The proxyholder is furthermore authorized to make any statement, cast all votes, sign all minutes of meetings and other documents, do everything which is lawful, necessary or simply useful in view of the accomplishment and fulfillment of the present proxy, and to proceed, in accordance with the requirements of the Luxembourg law, to any registration with the Luxembourg Trade and Companies Register and to any publication in the Mémorial C, Recueil des Sociétés et Associations, while the undersigned promises to ratify all said actions taken by the proxyholder whenever requested. This proxy shall be governed by Luxembourg law. Any dispute arising from the interpretation, validity or performance of this proxy or any of its terms and provisions shall be submitted to the courts of Luxembourg-City, Grand Duchy of Luxembourg. The present proxy will remain in force if the above-mentioned general meeting, for any reason whatsoever, is to be adjourned or postponed Given and signed in, on. The undersigned, By: Title: 5