SEBI has said that any transfer of shares even within the promoter group of a company would be considered as an equity sale, when it comes to promoters getting a preferential treatment for allotment of fresh shares or warrants
New Delhi: Capital market regulator, Securities and Exchange Board of India (SEBI) has said that any transfer of shares even within the promoter group of a company would be considered as an equity sale, when it comes to promoters getting a preferential treatment for allotment of fresh shares or warrants, reports PTI.
Accordingly, the promoters of a listed company would not be eligible for preferential allotment of shares or warrants, if there has been any inter-se transfer of shares among the promoter group firms in last six months, SEBI said.
The regulations bar any entity from being allotted shares on preferential basis, if it has sold the shares of the same company in last six months.
SEBI has made its stance clear in this regard in an informal guidance sought by pharma company Strides Arcolab.
Strides Arcolab was seeking to issue convertible warrants to its promoter group. However, the promoter group entities of the company had executed certain 'inter-se transfer of shares', although the same did not lead to any change in its total promoter holding.
The company had sought SEBI's guidance on whether the inter-se transfer would be considered as 'sale', as per the SEBI's Issue of Capital and Disclosure Requirements (ICDR) regulations, which make the promoters ineligible to subscribe to preferential allotment within six months.
SEBI in its reply has told the company that all the promoters and promoter group entities become ineligible for allotment of shares on preferential basis, if any person belonging to promoters or the promoter group has sold shares during the last six months.
SEBI further said that the relevant regulations do not "differentiate between inter-se transfers made to entities within promoter group and sales made to others."
"Hence, the term 'any person who has sold any equity shares of the issuer' shall also include any person who has made inter-se transfers within the promoter group.
"Thus, as per the extant regulations, if there is any inter-se transfer among the promoter group entities in the preceding six months, then all the persons/entities forming part of 'promoter(s) and promoter group' shall become ineligible for allotment of specified securities on preferential basis," SEBI noted.
“Thanks to the government’s attitude towards the whole episode, there appears to be a huge cover-up underway when by right the two captains of Enrica Lexie along with the six armed mercenaries and the watch-keeping officer, who happened to be an Indian national chief officer, should have been hauled away for obstructing justice and attempting to flee the scene of a crime as well as destroying evidence. Shame on us as a country for watching on while the colonials strike again”
If I have said this before, I need to say it again—as an ex-seafarer, it is totally impossible for me to understand how the master and crew of a huge ship riding high in ballast assumed that a small fishing boat passing astern operating at half their speed was a threat of any sort. After that, to shoot at them like hunting for target practice. And then to abandon human beings in the middle of the ocean after shooting at them is worse than criminal. Even navies of countries at war pick up the injured and wounded from enemy ships. We ourselves have been trained not to even think of leaving stowaways or “boat people” at sea, and this is our DNA.
The St. Antony/Enrica Lexie episode is pure arrogance on the part of the two Italian captains on board this ship, the six mercenaries and 22 other crew members, a total of 30, and at least the 19 Indians onboard could have raised a protest. Instead, thanks to the government’s attitude towards the whole episode, there appears to be a huge cover-up underway when by rights the two captains of Enrica Lexie along with the six armed mercenaries and the watch-keeping officer, who happened to be an Indian national chief officer, should have been hauled away for obstructing justice and attempting to flee the scene of a crime as well as destroying evidence. Shame on us as a country for watching on while the colonials strike again. And again.
# The St Antony is not by any long shot anything like a pirate craft. It has its name painted in huge letters on both sides. The maximum speed it can do is about 8 knots, half that of the ship in question. Fishing signals are displayed; Kerala boats are amongst the better marked ones in the Arabian Sea as any seafarer can vouch for. Waiting for a huge ship to go past and then proceeding from astern is not by any chance a piracy practice. And most of all, even assuming the Enrica Lexie did not wish to take evasive action, the chances of anybody boarding such a huge ship in ballast riding high, are next to impossible. Readers will see photos of the gangway and its angle and the relative size of people on deck to get an idea. Even climbing up
the gangway of a ship of this size in ballast is strenuous—here there was no gangway out at that time, just smooth shipside.
# There are unexplained lags in the timeline as they emerge, as gathered from different sources, all of which cannot be revealed. But the wonders of modern communications... all times IST on Wednesday 15 February 2012, and this is what probably happened, as one connects the dots:
1500-1600: Radar plots of fishing vessel closing in and crossing from port bow. Vessel variously between 9 and 14 miles from the Indian coast. At this juncture itself, the Enrica Lexie could have raised an alarm as per BMP3 or BMP4, sought Indian Coast Guard help, and altered course to port, towards the sea, well away from the threat if any.
Instead, she flashed lights—what was the St. Antony supposed to do? She was heading home. (Why the Enrica Lexie was so close to the coast itself is yet to be explained properly, but the standard reason—mobile phone—applies) Watches were doubled and an alert sounded onboard. It is at this juncture itself that Enrica Lexie should have sent out a piracy alert. It did not. And it should have started video-taping the complete episode.
1600-1615: Fishing vessel stops for the ship. Is plotted to pass safely astern. It is a known practice worldwide that fishermen will pass close to the wake of a ship to catch more fish from the deep excited by the churn which come up to the surface. Guards on stand-by displaying weapons. Fishermen wave at ship. Again a standard practice globally. Please understand this—the fishermen are looking up, into the setting sun, the mercenaries and sailors have a better field of vision, looking down on the fishing boat. The guards using sniper weapons shoot at the boats and the fishermen on board. It appears that there was a video recording of this whole episode on Enrica Lexie by crew on the poop deck, and this video has not yet surfaced.
1615-1815: Enrica Lexie does what is known as “shoot and scoot”, to place as much distance between itself and the Indian coast. The engine log shows that it places maximum power on the main engine. It is during this period of time that she apparently gets instructions from her offices in Monaco and Mumbai to change destination from Fujairah (UAE) to Port Suez/Port Said (Egypt). The mercantile marine authorities in Mumbai and Kochi are aware of this episode by about 1715 hrs, but do nothing about it, since one report has it that all the fishermen suspected to be pirates have been killed. It is only when the St Antony survivors get within mobile phone range that the word is passed from the fishing boat to the police, and thence to the Coast Guard and then to the Indian Navy.
1815 hrs: by now, the Enrico Lexie learns that it is being tracked, buzz is up on the marine communication channels, and sends out a belated report at about 1820 hours to the authorities in Europe on the alleged piracy attack. Meanwhile, the Coast Guard aircraft is now overhead, and there is enough cross traffic on the radio about Indian Navy coming closer. There is some panic with the Indian deck officers, who know that they will have to come home to face the music, some day.
As a result, Enrico Lexie turns around towards Kochi, but not because the Italians wanted to. One totally unconfirmed report has it that some of the crew and engineers threatened the Italians that they would stop the engines—it is not difficult to believe this.
# All weapons onboard should have been accounted for, placed in customs bond, and then deposited for the duration of the vessel’s stay or during investigations in the relevant armouries ashore. It seems that has not been done as yet. Why this has not been done as yet is not known, and changes the complete disposition, as the ship is no longer governed by freedom of the seas or rights of innocent passage.
With arms and armed men on board, this ship is an aggressor, and the days of gunboat diplomacy on the Malabar Coast are long gone. Whether the crew surrenders or not, the arms on board need to be handed over, and like yesterday.
# There happen to be 19 Indian seafarers on board, serving on Indian CDCs, passports, certificates and documents, including articles of agreement, under contracts signed through Indian companies responsible to the Directorate General (DG) of Shipping and shipping master. One of them, or more, was on watch when this incident happened. They are all witnesses. They can and should have been given a simple order by the shipping master in Mumbai and Kochi by now to prepare to disembark and offer themselves to Indian laws and procedures. This has not been done—instead, it appears that the company, Scorpio Ship Management of Mumbai, had instructed them to not say anything at the risk of their jobs and certificates. There is a veiled threat from the DG Shipping out on this, also, it seems.
# And finally, it is an old and known procedure—ships which are in territorial waters and do not co-operate can have their sea-suctions, outlets and valves blocked from outside. This will ensure generator shut-down in minutes, as there will be no more cooling water, and then the ship will be ‘dead’ for all electrical and engineering purposes. Within hours, batteries will run out, food will go bad, fresh water will not reach the taps, and there will be a total surrender. This is the logical and practical way to handle un-cooperative ships, as is done worldwide, even the threat is enough. An un-cooperative alien has no rights, period.
# Compare this with the way people travelling to other so-called ‘developed’ countries are treated before they enter through immigration. They are most certainly not provided consular or legal access while their official position in the country is that of un-entered aliens. In this case, it appears as though on one side the Italians don’t want to recognise Indian law but on the other, they want the protection of Indian law.
One is certainly not advocating the criminalisation of seafarers. Nor is one talking about quid-pro-quo—though there are enough episodes where Indian seafarers have been thrown into jail and as a simple matter of fact I can produce a good friend and colleague who has spent months in a dank, damp and cold Italian jail for no fault of his other than the fact that he was master on a ship which was arrested by the Italian authorities because another ship of his company had defaulted in the past. (And when he came back, his career was ruined, as was his mental, emotional and physical life, plus the Indian maritime and other authorities treated him like a criminal. Welcome to the real world.)
All I am saying is that once the ship was officially entered in Indian waters, what was needed was for a sub-inspector of police accompanied by the typical usual boarding team of customs and immigration inspectors, to take the ship and crew on board in their charge and if required, custody. Failure of co-operation from the ship, next step, with the help of the marine department of the port authority, black-out the ship by the methods mentioned above and wait for the captain to come to his knees, and add the obstruction of justice to the charges. Last resort—use force. Frankly, ‘they’ would have beaten the s___ out of us, if it had been an Indian or other developing country ship which had behaved like this, and ‘they’ know it.
Instead, what we appear to have is an escalation of the issue to levels unprecedented, with the seniors in the ministries and even the Prime Minister’s Office (PMO) taking charge. The question of consular or legal access, to the best of my knowledge, takes place once the person is in custody. Here that is not the case.
Despite all the above, fact also remains that errors of judgement due to fear or any other reason, will and have occurred in this case. Another of this company’s ships, the Savina Caylynm was released from pirate custody after over 10 months, and it must have been playing on the minds of all onboard, that's also accepted.
But, why shoot and scoot, and then try to destroy evidence? There, something very interesting emerges—apparently, the chain of command between the master/captain and the armed mercenaries was not established on this ship and clearly and set out. Typically, it is the duty officer and the captain who will decide when issues are to be escalated to armed interventions, and only then will the guards proceed—that is in theory.
In reality, and I have enough feedback on this subject, the guards on board, because they are physically tough and have weapons, take the upper hand and aggravate the situation. Add to that the racially charged situation on this ship as has been hinted at, the lack of effective single command due to having two captains onboard, and the attitude that India is a country where anything including human life has a small price—and you have a terrible tragedy. In addition, when the armed mercenaries are from a military, then their chain of command is to their own seniors, and with them, the orders are simple—shoot to kill.
Solutions will emerge from this episode, sure, but messages also have to be sent out. There is no way this should be submerged in diplomatic niceties, economic pressure or loose talk about ‘compensation’. This is beyond all that. If we want to send the right message out to the world, then a sub-inspector of police needs to go on board and take charge of Enrico Lexie, and then let due process of law begin.
Once that is done, we can talk about the changes needed, and improvements desired. Otherwise, for every such murder on our coasts by foreign ships and their armed guards, let us be resigned to a situation where the colonials ensure that we ask the PMO to intervene, in something that a sub-inspector should have done.
Somewhere in the rest of the world, they are laughing their sides out at this economic superpower. And it is not just the family of the two fishermen who weep in India.
And somewhere else, the owners of the ship are probably realising that their best interests lie in getting the ship out and free, as soon as possible, while the crew takes the can. That, also, is reality, as we shall soon see the crew of Enrica Lexie head for the long arm of the law.
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(Veeresh Malik started and sold a couple of companies, is now back to his first love—writing. He is also involved actively in helping small and midsize family-run businesses re-invent themselves. Mr Malik had a career in the Merchant Navy which he left in 1983, qualifications in ship-broking and chartering, a love for travel, and an active participation in print and electronic media as an alternate core competency, all these and more.)
The great thing about the state-controlled lenders is that they do what they are told. In this case they have been told not to try and collect the loans, just roll them over. If there is no panic and no one actually tries to collect the loans, then there is no reason to believe that their value has declined
All financial crises occur for one reason: Too much debt. We are seeing the endless drama with this issue in regard to Greece. Investors and banks lent Greece a lot of money based on the assumption that it was Germany. This assumption is rather silly in retrospect, but the result is that Greece, not being Germany, can’t pay its creditors back the full amount that it owes. This causes a problem.
In the US we experienced a similar issue. Lenders lent money to home owners based on the assumption that house prices would go one way—up. Worse through the magic of modern finance, the debts multiplied beyond either reason or even sanity and then were sold, not just in the US, but around the world. In retrospect this also turned out to be a bad idea.
Still the issue was not the form of the loans. Whether the debts were sovereign, as in the case of Greece, or collateralized debt obligations (CDOs), as in the case of US mortgages, in the end they made little difference. They are both debts. The point was that an awful lot of lot of money was lent to debtors who could not pay the money back.
What is really interesting about financial crises though is not the cause; it is the trigger. The problems of Greece were not a secret. Perhaps the extent of the problem was, but the issue itself did not become obvious until the world went into recession and creditors decided that they wanted their money back. The same is true with the US housing mess.
The savage lending that led to the bubble could have gone on much longer than it did. If the creditors had never started to doubt the safety of their investments the lending would have certainly continued. If the creditors just assumed that everything was fine and did not try to collect, not much would have happened. Panics start when everyone tries to be the first out the door.
Now let us consider China. The Chinese government required its state-owned banks to flood the country with loans, in excess of $4 trillion since the beginning of 2009. Most of these loans went to either state-owned companies or local governments. It was not only the banks that lent the money. The provinces and cities also created scads of finance vehicles to get around the lending limits. This lending binge was encouraged by the central government in Beijing to the extent that the loans were considered almost a patriotic duty, until now.
It should hardly surprise anyone that many of these loans went bad. When this amount of money goes out the door, much of it will end up in the wrong place. This is especially true of China where loans are made for political and not financial considerations.
But investors need not worry. This particular pile of toxic lending waste will not melt down. Why? Simple, the creditors are not rushing to the door. The great thing about the state-controlled lenders is that they do what they are told. In this case they have been told not to try and collect the loans, just roll them over. If there is no panic and no one actually tries to collect the loans, then there is no reason to believe that their value has declined.
Is this a problem? Many commentators dismiss it. After all unlike Greece, Europe or the US, the Chinese economy is rapidly growing at a projected 8%, so it can easily absorb these bad debts. But one wonders that if the Chinese economy were not flooded with cheap loans whether it would be growing as fast.
It has also been suggested that the problem is nothing more than a flawed national financial system that needs to be reformed. If the provinces and cities could have issued bonds rather than borrowing from banks, all would be well. The problem is now being resolved because a handful of cities are being allowed to issue bonds.
Exactly why bonds would be better than bank loans is not exactly clear, at least to me. It seems both are debts and both can go bad. But bad loans are not the problem. According to a Chinese investment banker, calling in the loans would be the “surest route to trouble”
But of course this entire assumption is just as absurd as the assumption that Greece is Germany or that housing prices won’t go down. No matter the form, a bad debt is a bad debt. It is money that could have been used more efficiently elsewhere. It prevents further stimulus and stymies growth. So maybe the Chinese have avoided a crash, but don’t expect growth either. Over time quick dramatic pain might have been the better option.
(William Gamble is president of Emerging Market Strategies. An international lawyer and economist, he developed his theories beginning with his first hand experience and business dealings in the Russia starting in 1993. Mr Gamble holds two graduate law degrees. He was educated at Institute D'Etudes Politique, Trinity College, University of Miami School of Law, and University of Virginia Darden Graduate School of Business Administration. He was a member of the bar in three states, over four different federal courts and has spoken four languages. Mr Gamble can be contacted at [email protected] or [email protected])