Related Party Transactions | 9 Months Ended |
Dec. 31, 2013 |
Related Party Transactions | ' |
NOTE 6 — RELATED PARTY TRANSACTIONS |
From time to time, Emerson engages in business transactions with its controlling shareholder, The Grande Holdings Limited (In Liquidation) (“Grande”), a Bermuda Corporation, and one or more of Grande’s direct and indirect subsidiaries. Set forth below is a summary of such transactions. |
Controlling Shareholder |
Grande has, together with S&T International Distribution Limited (“S&T”), a subsidiary of Grande, and Grande N.A.K.S. Ltd., a subsidiary of Grande (together with Grande, the “Reporting Persons”), filed, on October 15, 2013, a Schedule 13D/A with the Securities and Exchange Commission (“SEC”) stating that, as of the filing date, the Reporting Persons had the shared power to vote and direct the disposition of 15,243,283 shares, or approximately 56.2%, of the outstanding common stock of Emerson. As the Reporting Persons, and by extension Grande (as their ultimate parent) have control of a majority of the outstanding shares of common stock of Emerson, Emerson is a Controlled company, as defined in Section 801(a) of the NYSE MKT Rules. |
On May 31, 2011, upon application of a major creditor, the High Court of Hong Kong appointed Fok Hei Yu (who is also known by the anglicized name Vincent Fok), a current director and Chairman of the Board of the Company, and Roderick John Sutton, both of FTI Consulting (Hong Kong) Limited (“FTI”), as Joint and Several Provisional Liquidators over Grande. Accordingly, as of May 31, 2011, the directors of Grande no longer have the ability to exercise control over Grande or the power to direct the voting and disposition of the 15,243,283 shares beneficially owned by Grande. Instead, Mr. Fok and Mr. Sutton, as Provisional Liquidators over Grande, currently have such power. In addition, on March 20, 2013, the Provisional Liquidators provided to Emerson a written statement that they are obligated to liquidate the 15,243,283 shares in the Company beneficially owned by Grande. The Company can make no assurances regarding whether or to what extent such shares will be liquidated or retained by Grande, the timing, prices or amounts of any sales of shares or the impact, if any, on the Company, its other shareholders or the trading price of its common stock of any actual or anticipated dispositions of shares by the Provisional Liquidators. However, the plans of the Provisional Liquidators to sell the shares beneficially owned by Grande may be changing, based on information in a public announcement recently made by the Provisional Liquidators for and on behalf of Grande on February 12, 2014. That public announcement included the following information relevant to Emerson: |
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| 1 | Grande has been in discussions with different investors to pursue a restructuring plan and resumption of trading in Grande’s shares on The Stock Exchange of Hong Kong (the “HKSE”). |
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| 2 | The Provisional Liquidators received on November 12, 2013 a restructuring proposal from a creditor of Grande, which proposal was revised pursuant to comments from the Provisional Liquidators on December 2, 2013. |
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| 3 | On December 20, 2013, the Provisional Liquidators submitted the revised proposal from that creditor to the HKSE for resumption of the trading of Grande’s shares on the HKSE. |
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| 4 | The proposal submitted to the HKSE provides that the operations of Emerson would be retained by the Grande Group. |
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| 5 | Under the proposal, creditors of Grande would settle their claims against Grande in exchange for 90% of the total newly-outstanding share capital in Grande. |
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| 6 | Christopher Ho is the sole executive director of Grande. |
According to the public announcement, the restructuring plan will require approvals, consents and sanctions of the HKSE, courts in Hong Kong and Bermuda, and the creditors and shareholders of Grande. It is not possible at this time to predict whether this or any other proposal to restructure Grande will be pursued and receive all necessary approvals, nor can there be any assurances regarding the timing, terms or effects of any restructuring proposal that does receive approval. However, as long as the Provisional Liquidators are pursuing this or another restructuring plan that could result in Grande retaining beneficial ownership of the 15,243,283 shares of Emerson common stock, the Provisional Liquidators may not be actively seeking to liquidate those shares, as had been stated in Emerson’s prior Form 10-Q reports. If the restructuring of Grande is completed in accordance with the pending proposal described by the Provisional Liquidators in the public announcement, it is expected that the 15,243,283 shares of Emerson common stock held of record by Grande’s subsidiary, S&T, would remain with S&T and that Grande would once again have the power to direct the voting and disposition of this 56.2% controlling interest in Emerson common stock. The sole executive director on the Board of Grande currently is Mr. Christopher Ho, who was the Chairman of the Board of Emerson until November 7, 2013. Emerson cannot predict nor provide any assurances regarding the possible effects on the Company, its shareholders, the trading price of its common stock or any other consequences that could result if the pending restructuring proposal is approved and Grande comes out of liquidation and again has the power to control Emerson. |
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Related Party Transactions |
Rented Office Space in Hong Kong |
Transactions with Brighton Marketing Limited, a subsidiary of Grande |
Until May 2013, at which time these charges ceased, the Company was billed for service charges from Brighton Marketing Limited, a subsidiary of Grande, in connection with the Company’s rented office space in Hong Kong. These charges totaled approximately $1,000 for the three month period ended December 31, 2012. For the nine month periods ended December 31, 2013 and December 31, 2012, these charges totaled approximately $1,000 and $4,000, respectively. Emerson owed Brighton Marketing Limited nil at both December 31, 2013 and December 31, 2012 pertaining to these charges. |
Transactions with The Grande Properties Management Limited, a related party to Christopher Ho, the former Chairman of the Board of Directors of the Company |
The Company is charged for service charges from The Grande Properties Management Limited, a related party to Christopher Ho, the former Chairman of the Board of Directors of the Company, in connection with the Company’s rented office space in Hong Kong. Mr. Ho did not stand for re-election to serve as a director of the Company at the Company’s 2013 Annual Meeting of Stockholders held on November 7, 2013. Accordingly, Mr. Ho is no longer a director of the Company or a related party to the Company after November 7, 2013, and, consequently, such service charges from The Grande Properties Management Limited, are not considered Related Party Transactions after November 7, 2013. |
These charges totaled approximately $3,000 for the period October 1, 2013 through November 7, 2013, and approximately $11,000 for the three month period ended December 31, 2012. These charges totaled approximately $11,000 for the period April 1, 2013 through November 7, 2013, and approximately $31,000 for the nine month period ended December 31, 2012. The Company owed nil to The Grande Properties Management Limited related to these charges at both November 7, 2013 and December 31, 2012. |
Transactions with Lafe Strategic Services Limited, a related party to Christopher Ho, the former Chairman of the Board of Directors of the Company |
Beginning July 3, 2012, the Company entered into a rental agreement with Lafe Strategic Services Limited (“Lafe”), which is a related party to Mr. Ho, whereby the Company was leasing out excess space within its rented office space in Hong Kong to Lafe. The rental agreement was on a month-by-month basis, cancellable by either the Company or Lafe on one month’s written notice. The agreement was cancelled by Lafe effective April 1, 2013 at which time Lafe owed Emerson nil in rental payable from the arrangement. Emerson returned the approximately $6,000 to Lafe in July 2013 that Emerson had been holding as a security deposit in accordance with the terms of the agreement. During the three months ended March 31, 2013, the Company earned rental income of approximately $9,000 from this arrangement, and during the three and nine month periods ended December 31, 2012, the Company earned rental income of approximately $9,000 and $18,000, respectively, from this arrangement. |
Consulting Services Provided to Emerson by one of its Former Directors |
Until such agreement was cancelled by the Company effective November 7, 2013, Mr. Eduard Will, a former director of Emerson, was paid consulting fees by the Company for work performed by Mr. Will related to strategy for the Kayne Litigation as more fully described in Note 8 – “Legal Proceedings – Kayne Litigation” and merger and acquisition research. Mr. Will was not re-elected to serve as a director of the Company at the Company’s 2013 Annual Meeting of Stockholders held on November 7, 2013. Accordingly, Mr. Will is no longer a director of the Company or a related party to the Company after November 7, 2013. |
During the period October 1, 2013 through November 7, 2013, Emerson paid consulting fees of approximately $10,000 to Mr. Will related to strategy for the Kayne Litigation as more fully described in Note 8 – “Legal Proceedings – Kayne Litigation” and merger and acquisition research. In addition, during the same period, Emerson paid a travel advance of approximately $6,000 to Mr. Will, related to this consulting work and his service as a director of Emerson, which travel was completed during November 2013. |
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During the period April 1, 2013 through November 7, 2013, Emerson paid consulting fees of approximately $68,000 to Mr. Will for work performed by Mr. Will related to strategy for the Kayne Litigation as more fully described in Note 8 – “Legal Proceedings – Kayne Litigation” and merger and acquisition research. In addition, during the period April 1, 2013 through November 7, 2013, Emerson paid expense reimbursements and advances, in the aggregate, of approximately $6,000 to Mr. Will, related to this consulting work and his service as a director of Emerson. |
During the three months ended December 31, 2012, Emerson paid consulting fees of approximately $29,000 to Mr. Will related to strategy for the Kayne Litigation as more fully described in Note 8 – “Legal Proceedings – Kayne Litigation” and merger and acquisition research. In addition, during the three months ended December 31, 2012, Emerson paid expense reimbursements and advances, in the aggregate, of approximately $13,000 to Mr. Will, related to this consulting work and his service as a director of Emerson. |
During the nine months ended December 31, 2012, Emerson paid consulting fees of approximately $81,000 to Mr. Will for work performed by Mr. Will related to strategy for the Kayne Litigation as more fully described in Note 8 – “Legal Proceedings – Kayne Litigation”, merger and acquisition research, as well as work related to the strategy for a shareholder derivative lawsuit that the Company settled in January 2011. In addition, during the nine months ended December 31, 2012, Emerson paid expense reimbursements and advances, in the aggregate, of approximately $23,000, to Mr. Will, related to this consulting work and his service as a director of Emerson. |
At both November 7, 2013 and December 31, 2012, the Company owed Mr. Will nil related to these activities. |
Dividend-Related Issues with S&T |
On March 2, 2010, the Board declared an extraordinary dividend of $1.10 per common share, which was paid on March 24, 2010. In connection with the Company’s determination as to the taxability of the dividend, the Board relied upon information and research provided to it by the Company’s tax advisors and, in reliance on the “stock-for-debt” exception in the Internal Revenue Code Sections 108(e)(8) and (e)(10), concluded that 4.9% of such dividend paid was taxable to the recipients. |
In August 2012, the Company received a Form 886-A from the IRS which challenges the Company’s conclusions and determines that the Company does not qualify for the above-referenced exception. Accordingly, the IRS has concluded that 100% of the dividend paid was taxable to the recipients. The Company is defending its position and calculations and is contesting the position asserted by the IRS. The Company prepared and, on October 25, 2012, delivered its rebuttal to the IRS contesting the IRS determination. There can be no assurance that the Company will be successful in defending its position. |
In the event that the Company is not successful in establishing with the IRS that the Company’s calculations were correct, then the shareholders who received the dividend likely will be subject to and liable for an assessment of additional taxes due. Moreover, the Company may be contingently liable for taxes due by certain of its shareholders resulting from the dividend paid by the Company. |
Initially, the Company withheld from the dividend paid to foreign shareholders an amount equal to the tax liability associated with such dividend. On April 7, 2010, upon a request made to the Company by its foreign controlling shareholder, S&T, the Company entered into an agreement with S&T (the “Agreement”), whereby the Company returned to S&T on April 7, 2010 that portion of the funds withheld for taxes from the dividend paid on March 24, 2010 to S&T, which the Company believes is not subject to U.S. tax based on the Company’s good-faith estimate of its accumulated earnings and profits. The Agreement includes provisions pursuant to which S&T agreed to indemnify the Company for any liability imposed on it as a result of the Company’s agreement not to withhold such funds for S&T’s possible tax liability and a pledge of stock as collateral. The Company continues to assert that such dividend is largely not subject to U.S. tax based on the Company’s good-faith estimate of its accumulated earnings and profits. In addition, the Company also continues to assert that this transaction results in an off-balance sheet arrangement and a possible contingent tax liability of the Company, which, if recognized, would be offset in part by the calling by the Company on S&T of the indemnification provisions of the Agreement. |
Per the terms of the Agreement, Emerson invoiced S&T in June 2010 approximately $42,000 for reimbursement of legal fees incurred by Emerson with regard to the Agreement and approximately $33,000 as a transaction fee for having entered into the Agreement. In January 2011, Emerson agreed, upon the request of S&T, to waive approximately $5,000 of the legal charges that had been invoiced to S&T in June 2010. S&T paid the full amount owed to Emerson of approximately $70,000 in February 2011. |
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In February 2011, upon the request of S&T to the Company, the Company and S&T agreed that the collateral pledged as a part of the Agreement would no longer be required and such collateral was returned by the Company to S&T in March 2011 and the Agreement was amended and restated to remove the collateral requirement but retain the indemnification provisions. The Agreement, as amended (the “Amended Agreement”), remains in effect as of today. In the event that (i) the Company is not successful in establishing with the IRS that the Company’s calculations were correct and (ii) S&T is unable or unwilling to pay the additional taxes due or indemnify the Company under the terms of the Amended Agreement, the Company may be liable to pay such additional taxes which, together with penalties and interest, are currently estimated by the Company to be approximately $4.5 million as of December 31, 2013. Any such liability, should it be required to be recognized by the Company, would likely have a material adverse effect on the Company’s results of operations in the period recognized. S&T is a subsidiary of The Grande Holdings Limited, which is currently in liquidation (as described above in this Note 6 under “Controlling Shareholder”). Therefore, the ability of the Company to enforce its rights to indemnification under the Amended Agreement and to collect from S&T any additional taxes, interest and penalties due may be severely impaired. |
Other |
The Company charges Vigers Appraisal & Consulting Ltd. (“Vigers”), a related party of Christopher Ho, the former Chairman of the Board of Directors of the Company, for usage of telephone and data lines maintained by Emerson. Mr. Ho did not stand for re-election to serve as a director of the Company at the Company’s 2013 Annual Meeting of Stockholders held on November 7, 2013. Accordingly, Mr. Ho is no longer a director of the Company or a related party to the Company after November 7, 2013, and, consequently, such service charges from the Company to Vigers are not considered Related Party Transactions after November 7, 2013. |
These charges totaled approximately $1,000 for the period October 1, 2013 through November 7, 2013, and approximately $1,000 for the three month period ended December 31, 2012. These charges totaled approximately $3,000 for the period April 1, 2013 through November 7, 2013, and approximately $3,000 for the nine month period ended December 31, 2012. Vigers owed the Company nil related to these charges at both November 7, 2013 and December 31, 2012. |
Vigers’ usage of telephone and data lines maintained by Emerson ceased effective on January 1, 2014. |