GC Trader - I have no axe to grind with you but there were some 'unusual' arrangements put in place that led to XEL being liquidated by a BVI insolvency practitioner after an application was made to the HIgh Court in BVI (XEL - ie the quoted vehicle was registered in the BVI) by the bondholders for it to be wound up.
The Bentley licence was held by Xcite Energy Resources (XER) - a UK registered company - to which the loans secured on the licence were made.
Shareholders were not told the full story about a guarantee given by XEL to the bondholders to pay to the lender the amount of any loans and interest unpaid by its subsidiary when the loans fell due for repayment. It was not possible (I tried) to examine this guarantee agreement because the BVI doesn't appear to have the equivalent of UK Companies House, at which key documents must be filed and available for inspection by interested parties.
The bondholders never served XER with a formal demand for repayment because it was clear they wanted to gain ownership of Bentley in a 'tax wrapper'. Tax losses automatically forfeit on a company's liquidation. IMO there would have been a much better chance of a UK licensed insolvency practitioner, whose conduct would have been subject to scrutiny by all kinds of people, selling Bentley on terms that, after repayment of the outstanding loans, left something to distribute to the parent and thence to shareholders. As it was, the whole liquidation process was notable for its total lack of transparency - no real surprise as the bondholders got to appoint the liquidator and no were accommodating when it came to agreeing fee levels.
In the end, the bondholders agreed to buy XER from the BVI liquidator for $1, in return for the bondholders forgiveness of the debt. Shareholders were told there were no better offers made (ie no-one had bid as much as the loan outstanding). There was no way of confirming this as far as I could tell.
So it isn't as simple as you present, GCT. I asked a senior lawyer who majors in insolvency for his view on the BHs winding up XEL under a residual guarantee, when no demand had been served on the debtor. There were some technical reasons he put forward around Bentley clearly being the only asset owned by the group and whether the legal niceties had been adhered to or not wasn't really the point, the main thing he pointed out was that it would cost a fortune in lawyers and barristers fees to find out a BVI's opinion on the matter (in court) and the results of such an action were totally unpredictable because BVI judges know which side their bread is buttered and always follow the money.
XEL's directors must have given their blessing to all this. They might have said: 'stuff off - we're asking for an administrative receiver to be appointed in the UK and you can trump that by petitioning a UK court for a UK liquidator to be appointed. Pay XEL for the tax losses and give us 10% of the action going forward and you can have XER, along with Bentley and your debt. It (or something like it) would have been worth a try.
But they didn't. A number of XEL's senior people, including that expert fund raiser Andrew Fairclough went with XER (now called Whalsea Energy.
Is all this smelly enough or have I missed something. The OGA were imo unprincipled cowards, who told a version of the truth only people from a different planet would have understood.
Realistically. Rupert Coles' conceit, matched only by his rank incompetence and greed (in the latter he was not alone), combined with a catastrophic and lasting fall in the oil price sunk XEL in the end. That said, the whole company should have been de-risked by a big fund-raise when the price was around £4 on the back of false promises about the next reserves upgrade. But Smith, Cole and Kew were more interested in trousering £4 each from sales of their free shares to see them ok in the event of failure. Shareholders should have run a mile but hindsight is a
Xcite/Whalsay posted their 2017 results to companies house on Monday. Theres a bit of background on what happened leading up to Xcites reemergence as Whalsay and more details of their current funding.
Also details of just how much money the employees managed to get out of the company. Rupert got an £80k or so payoff for resigning.
lest we forget...
The Duty of Care
Each publicly traded companys Board of Directors has a duty of care to its shareholders. That means that in making business decisions the Board must exercise reasonable care in the decisions that it makes for the company. Reasonable care has two elements. First, the Board must be acting in good faith for the benefit of the company. They must believe that the actions they are taking are in the companys best interest. Second, they must believe that the actions are in the best interest of the company based on a reasonable investigation of the options available. In other words, they must carefully consider the available options within the time and financial constraints presented before they make a decision or take a particular action on behalf of the company.
The Duty of Loyalty
In addition to the duty of care, the Board of Directors owes a duty of loyalty to company shareholders. That means that the Board of Directors must be loyal to the company and its shareholders and act in their best interest. The Board and its individual members may not act in their own best interest or engage in self-dealing while making decisions or taking actions on behalf of the company. The duty of loyalty is sometimes known as the business judgment rule because the Board is required to make its judgments in the best interest of the business.
Shareholders must remember, however, that even if the Board of Directors strictly adheres to both of its fiduciary duties of care and loyalty, business decisions may still be made that hurt that company. That is because many business decisions are inherently risky. The courts recognize this risk and do not engage in the business of second guessing business decisions that were carefully made in what was honestly believed to be the companys best interest. That said Boards of Directors are in unique positions of trust. They must, therefore, carefully exercise their duties of care and loyalty in their furtherance of their business goals. Then the shareholders, the Board members and the business will be protected
I still find it interesting purely in the sense of working out (for my own satisfaction) just how many wrong turns Xcite made and whether they were all merely hapless decisions by a man hopelessly out of his depth and unable to understand his own limitations.
The experience has helped me with investments post Xcite. You certainly take a long hard look at the CEO and his CV - just hoping it hasn't been gilded/doctored.
It's also been an education in just how low some of these AIM co's will stoop and just what kind of financial partners they will get into bed with just to keep the plates spinning whilst they squirrel it away.
There is some real rubbish out there but no need at all for any of us to invest in it
''noting that the matters surrounding Xcites liquidation remain contentious''
contentious... says who...?
here's a simple and undeniable fact...
Xcite borrowed (a lot of) money they couldn't repay on or before the agreed due date...
now pray tell me (from a legal perspective of 'wrongdoing and/or skulduggery' - as appears to be the shareholders course of action) what is so 'contentious' about that...?
I'll tell ya... NONE...!!!
ergo... the only heated, controversial and argumentative debate (befitting of 'contentious' behaviour) going on is amongst a core group of vexed shareholders who simply cannot accept their losses and move on...
oh and BTW... most of the disgruntled shareholders that appear to be still calling for legal or ministerial action, didn't bankroll the company or provide funds towards development and production... they merely bought shares on the open market in the hope the SP would rise so they could sell those shares again at a profit and as we all know in the end, they couldn't and it didn't...
as the old saying goes...
some you win and some you lose...
folks need to get over it and go and get their life back...
Thanks to Beltron on LSE- Bought this across simply because the more you read it the odder it looks.
We have considered your request under the Freedom of Information Act 2000 (FOIA) and, where relevant, the Environmental Information Regulations 2004 (EIRs).
Following a search of the Oil and Gas Authorities (OGA£s) records, we have found no record of a meeting taking place on 16 September 2016, involving the OGA and Xcite.
However, on the 8th September 2016, a meeting between the OGA, Xcite and third parties took place.
On 24 May 2017 the OGA received and responded (on 27 July) to a request for the notes of the meeting on 8 September 2016. In its response to that request, the note
Readout of meeting between OGA, DIT, Redacted and Xcite: Thursday 8 September 2016
£Redacted is a Redacted firm that was established in the Redacted. They currently invest in Redacted in Redacted and Redacted; they have investment in Redacted in the UK; and they own the Redacted associated with the Redacted in Redacted. There is no debt or fees associated with their investment and their business model is to work with high quality firms. As there is no debt, there is no default risk. They look to work with an investment grade company for the coupon and for Xcite they have selected Redacted to manage this. They explained that they provide prefunding to try to mitigate any call on the guarantor. They seek to have a fast and efficient process to enable completion.£
4. While no meeting was held on 8 September 2016 between the £OGA, Xcite Energy LTD's (XEL) Board of Directors and XEL's proposed project guarantor£, we can confirm that a meeting between Xcite, the Department for International Trade (DIT), a company whose details are being withheld (further details as to the reasons this information is being withheld is set out below), and the OGA took place on 8 September 2016 at the OGA£s London office. A copy of the note from that meeting is attached to this response at Annex 1 (the Note).
5. Some of the information contained in the Note has been redacted. While the OGA tries to be as transparent as possible, and our general approach is to disclose as much information as we are able, there are at times reasons and circumstances in which the OGA cannot disclose information requested.
6. The OGA considers that the redacted information from the Note is exempt from disclosure pursuant to Sections 36(2), 41(1), 43(2) FOIA and Regulations 12(5)(d) and (e) EIR. A detailed explanation of the reliance on each of the exemptions is set out below.
Section 36(2) £ Prejudice to the effective conduct of public affairs 7. The OGA£s qualified person considers that disclosure of the redacted information (a) would likely inhibit the free and frank exchange of views for the purposes of deliberation (Section 36(2)(b)(ii) FOIA) and/or (b) would otherwise prejudice or would be likely to otherwise prejudice the effective conduct of public affairs (Section 36(2)(c) FOIA). 8. The meeting of 8 September 2016 was intended as a way for those attending to have a safe space to have discussions related to the funding of projects.
9. One of the functions of the OGA, as the regulator of the oil and gas industry in the UK, is to facilitate and take part in discussions on a range of matters (which may, from time to time include discussions on sensitive matters such as the topic of the meeting) in order to achieve outcomes in the best interests of the UK Continental Shelf and Industry.
10. It is necessary and appropriate for those discussions to be conducted in a safe space so that the best decisions can be reached without fear of subsequent disclosure or external interference.
11. In the discharge of such statutory functions, companies in the oil and gas industry and other stakeholders (e.g. UK and International governments) provide the OGA with wide ranging and often commercially and politically sensitive information. The OGA has no statut
22. As mentioned, the said meeting was held to discuss the possibility of the Company investing in Xcite�s Bentley field. The OGA considers that should the fact that such an investment was considered, this could damage the reputation of the Company.
23. In addition, disclosure of the Company�s identity may weaken its position in a competitive environment by releasing market sensitive information, information which would be useful to its competitors and which could be used by its competitors to undermine investor confidence in the Company.
How does it potentially damage a company's reputation if they consider an investment? It doesn't unless something happened like a rejection of their suitability by some one at the meeting?
Bearing in mind Rupert Cole's previous ideas of who would make a good bedfellow I'm wondering just who he rocked up with?
Just saw this post on UKOG BB posted by hopetown....
Sunday Times reported that shareholders have turned against small oil companies that seem to be run for the benefit of executives. The piece makes for astonishing reading. Advisory firm Hannon Westwood noted that 55 companies in Londons oil and gas industry had no reserves on their books as of last year. In other words, they neither produce oil nor plan to. They simply exist. And write cheques, said the publication. It quoted an unnamed pension fund manager as saying that there is a casual disregard for shareholders in the oil industry. Oil companies make up 15% of the FTSE All-Share index, noted the report. However, an unnerving proportion of the 130 or so listed explorers and producers could be classified as what critics call lifestyleR17; companies. In other words, groups of mates who managed to raise enough cash to pay themselves well, but not much more. The newspaper went as far as to say: Chief executives taking home big wads of cash while investors get nothing is endemic in Londons oil and gas industry. Of the examples that abound, the report highlighted one case study: San Leon Energy. Its chairman, 55-year-old former stockbroker Oisin Fanning took home a whopping £3.2m (about R59m) over four years. The company, on the other hand, has racked up almost double that figure in losses, with its share price plunging nearly 90%. The trend highlights that shareholders have no control over the use of the money they invest in an oil or exploration company, pointed out Ian Norbury, of Hannon Westwood. The San Leon board has reportedly agreed to change Fannings pay so that he receives 80% of it in cash rather than shares. Still, I wouldnt be in a hurry to invest my hard-earned foreign currency allowance in the next oil company that lists in London. Id also think twice about a FTSE All-Share tracker, given the heavy dose of these companies in that index. A culture of greed seems pretty entrenched among oil company managers, putting other sectors in the shade.
Food for thought ??
I would be interested to know which brokers you are aware of that settled the Xcite shorts so early.
I am with Core Spreads and they appear to be disinterested in closing the position.
This also does not inspire confidence with this Company regarding another short that went bust, I had a £10K short position on Carillion with a 25% margin, they have now demanded the full 100% margin be paid, so, bearing in mind I won the bet, I have had to pay them around another £7K and the Lord only knows when they will be paying out on that one.
I would be interested to know, from anyone in a similar position with other spread betting firms, if they are treated in the same way.
Just received a letter this more from my share holding company, a bank, informing me, "Whilst the liquidation is still in progress, we've amended the price of the stock to zero, this is to ensure that it is reflected accurately, (note the word!!!) within the market"
Just shows how "accurately", they are up to date!!!
I havent posted on here for a while but there has been a development which you may find of interest.
Some of you will know I have been hosting an xcite action group [email protected]
I have recently approached a company who may be interested in looking into the actions of the various parties to this debacle. They are a professional outfit and from my initial conversation already have a grasp of the issues involved. These people can dig in places we cant.
There will be a requirement for funds, which some of those who have written to me seem happy to put forward. I hope to have some idea of initial costs soon.
I will be writing to all of those who have been in touch with me at the outlook address some time next week. I will be away for a few days but will be back on Tuesday.
In Sept. 2016 I shorted XEL at around 3p (having already lost around 30K going long, before some folk start throwing bricks) the spread betting firm is still refusing to settle, although the administrators stated months ago that there would nothing for shareholders, blaming whoever they laid the business off to.
I am just wondering if any other share gambler has been paid up or not for their short.
When it was good they couldn't have been more open and friendly. I believe that somewhere along they way as they realised they couldn't pull it off and maintain control they shelved their morals and decided to just get as much out of the company in other ways before the wheels came off completely.
What they lost by not being able to sell the rest of the shares (it surely would have been a massive red flag to shareholders) you can gain back in large salaries, pensions and perks. The initial sale secured them for the rest of their lives the rest was a bonus. In hindsight I expect that they wished they could have sold more but I think that even that sale was a sign to the very astute.
As they did so the RNS's became evermore tricky to interpret as they hid behind semantics.
If they could have pulled that last massive dilution off I think they would have - heck with AIM there's always the consolidation to do down the road. It hides the bodies and you can always sweeten it for yourself by just issuing a load of options.
As directors of a failed company I would say that it gave them all a very good living and retirement. You could say that they fulfilled their duty to the company itself by keeping it going for longer than it would have. I certainly think the two years of full dance cards, "the rig" and partners could have been dispensed with let alone all the OGA guff.
The only benefit of Xcite existing to those that didn't trade the backside off it has been the learning curve - it might have made some a lot more canny. I also now know to trust my instincts and that I can tell when someone from the company isn't being entirely honest even over the phone............you know who you are!
Writing was firmly on the wall for XEL once Steven Kew resigned in July 2016
But also in December 2010 when Richard Smith, Rupert Cole, Stephen Kew divested (part) shareholdings in XER (as I remember it) to tax efficient Company(s) in the BVI.
On December 24th 2010, an RNS stated that Directors Rupert Cole (Finance Director), Richard Smith (Chief Exec.) and Stephen Kew (Head of Exploration) had sold 1,101,666 shares each with a total value of £12.79 million. In hindsight this was a clear signal to sell off. In the directors defence they retained 80% of their ...
This piece by Contrarian Investor in April 2011 brings back the best of XEL achievements...
Guess we'll just have to register with an Institutional Investor for a share in any future Whalsay/Bentley fundraising....
My "shares" are with HSBC Invest direct. They have informed me that the shares cannot be removed until HM tax person says so!!!
However as I have transferred all other stocks out to another bank, they will not make any charge on the account. Therefore in the proverbial "limbo".
Appleby the law firm have offices in the British Virgin Islands
Would be interesting to find any mention in the paradise papers
Regarding Whalsay Energy Ltd /Excite Energy Resources Ltd/Bentley field etc.
Based on Mr Warwicks statements and considering they have had access to all XEL data and papers, does it prove that when Cole et al were touting to shareholders that all that was required was finance and that OGA were happy with the technical side of things? They were lying to those shareholders?
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