Please per­mit me to state from the on­set, I have the great­est re­spect and ad­mi­ra­tion for the hard-work­ing and dili­gent staff of the T&T Se­cu­ri­ties Ex­change Com­mis­sion (SEC). How­ev­er, I al­so faith­ful­ly sub­scribe to the wis­dom of the old max­im "jus­tice de­layed is jus­tice de­nied."

An­oth­er week has passed since I raised the is­sue of the trig­ger­ing of the Se­cu­ri­ties In­dus­try Take-over By-Laws, 2005 (Take-over By-Laws) by Mex­i­can ce­ment gi­ant, Ce­mex hav­ing in­creased its share­hold­ing in Trinidad Ce­ment Lim­it­ed (TCL) from 20 per cent to 39.5 per cent via an ex­clu­sive sub­scrip­tion agree­ment that was ap­proved by the TCL's board of di­rec­tors on­ly and not sub­ject­ed to share­hold­er ap­proval.

I must con­fess that I am some­what dis­ap­point­ed by this un­ex­plained de­lay since the SEC should have al­ready con­sid­ered and sought the nec­es­sary le­gal ad­vice on this mat­ter when the "ex­clu­sive sub­scrip­tion agree­ment" for TCL shares was sub­mit­ted to them for reg­u­la­to­ry ap­proval.

It is in­deed in­ter­est­ing to say the least that the on­ly "of­fi­cial" re­sponse forth­com­ing thus far is an ar­ti­cle in the News­day quot­ing "anony­mous ex­perts" and Mr Pe­ter Clarke, chair­man of the T&T Stock Ex­change (TTSE), who re­port­ed­ly agrees with the anony­mous ex­perts that "Ce­mex does not have any oblig­a­tion to make a takeover bid for TCL be­cause the shares it bought in the Rights Is­sue were 'new shares.'" But Mr Clarke has­tens to add "whether a takeover bid was re­quired was an is­sue for the SEC and not the stock ex­change to de­ter­mine."

The above begs the ques­tion: Was Mr Clarke rep­re­sent­ing the of­fi­cial po­si­tion of the TTSE or his own per­son­al view? In­ter­est­ing­ly, nowhere in the ar­ti­cle is Mr Clarke re­port­ed to have point­ed to the rel­e­vant sec­tion(s) of the Se­cu­ri­ties Act No 17 of 2012, the Take-over By-Laws or any oth­er le­gal au­thor­i­ty to sup­port or lend cre­dence to his as­ser­tion. I am there­fore forced to con­clude that it must be the lat­ter. In any event the bot­tom-line is both Mr Clarke and I agree that this is a mat­ter that falls sole­ly with­in the re­mit of the SEC and not the TTSE.

It is note­wor­thy that since the pub­li­ca­tion of my ini­tial let­ter to the ed­i­tor, sev­er­al promi­nent, se­nior in­dus­try prac­ti­tion­ers have been in touch with me and in­di­cat­ed their sup­port for the po­si­tion I have tak­en in this mat­ter. In fact, I am aware that one such per­son has al­so raised a for­mal query with the SEC in an of­fi­cial ca­pac­i­ty and is await­ing the SEC's re­sponse be­fore en­gag­ing in any pub­lic dis­course be­cause, in his words, "this is a fun­da­men­tal is­sue which goes at the core of the de­vel­op­ment of our cap­i­tal mar­kets in T&T."

Yet an­oth­er well-known se­nior in­dus­try prac­ti­tion­er has al­so di­rect­ly ap­proached the SEC and asked them to point him to the sec­tion of the Takeover By-Laws that will clar­i­fy the mat­ter. How­ev­er, he in­di­cat­ed to me "their re­sponse was less than sat­is­fac­to­ry."

He has al­so told the SEC that de­pend­ing on their de­ci­sion "mi­nor­i­ty share­hold­ers may wish to take le­gal ac­tion in­clud­ing ju­di­cial re­view."

Ac­cord­ing­ly, the stage has now been set and the lines drawn, the on­ly ques­tion is: How long will the SEC take be­fore break­ing its deaf­en­ing si­lence? To use a fa­mil­iar ten­nis anal­o­gy: "The ball is now in the SEC's court," but they need be very care­ful not to make any un­forced er­rors. For the unini­ti­at­ed, "an un­forced er­ror" is when dur­ing a ten­nis match a play­er los­es a point by mak­ing a mis­take in a sit­u­a­tion where he/she should be in full con­trol.

Pe­ter Per­me­ll

Mi­nor­i­ty Share­hold­er Rights Ad­vo­cate