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Capital Market Probe: NASS Urged To Investigate Starcomms Plc

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The House of Representative Committee on the Capital Market Probe has been alerted on the need to urgently investigate the Starcomms Plc's private placement which has led to the eventual collapse of the market. has learnt that the Hon. Ibrahim El-Sudi led Committee, which is expected to receive presentations this week, has been saddled with unveiling the circumstances that led to the collapse of the market.

A member of the Nigerian Stock Exchange and Capital Market Operator licensed by the Securities Exchange Commission (SEC) revealed to that unethically packaged transactions and lack of appropriate regulatory supervision contributed to the capital market fold-up.

The Managing Director of MorganCapital Securities Limited, Mr. Ayoleke Adu, in a memo dated May 11, 2012 and addressed to the Chairman of the Committee, Hon. Ibrahim El-Sudi, also alleged questionable conversion of Money in a Trust account by Chapel Hill and IBTC.

The memo titled, 'STARCOMMS PLC - Private placement. The 'grand-mother' of all questionable acts committed on Nigerians by the Issuer, the Issuing Houses (Chapel Hill Advisory Partners Limited and Stanbic IBTC Bank Plc) and other parties related to the transaction', called on the National Assembly to ensure a reversal of the present misfortune suffered by the market.

'One major area that I have seen that led to the collapse of the market has been unethically packaged transactions which lacked appropriate regulatory supervision; transactions where the advisory parties misled members of the investing public to purchase shares at bogus prices which are unsustainable on the floor of the stock exchange.

'Based on the foregoing, may I invite this Committee to investigate the Starcomms Private Placement, which will bring out numerous unethical and unbelievable things that happened in the Capital market; that eventually resulted in the collapse of the market?

'Starcomms sold its Private Placement at a price of N13; and these shares now trade at 50k per share, which is the lowest technical value it could trade (otherwise it could have been trading at near 2k per share!). This is a phenomenal loss in value of nearly 100% in just a few months!'

Facts of the Starcomms transaction, according to Ayoleke Adu's memo include 'issuance of a Private Placement on June 3rd 2008 and the raising of about N64bn (N22.94bn which was sold and taken out by the foreign investors -ACTIS & ECP, while Starcomms retained the balance N41.05bn for its operations).'

  He further revealed that the SEC had approved Placement Memorandum dated 27th May, 2008 where both Actis and ECP maintained directors on the board of Starcomms throughout the Private Placement Period, adding that the Issuing Houses were Chapel Hill Advisory Partners Limited ('Chapel Hill') and Stanbic IBTC Bank Plc ('IBTC') as well as three receiving banks - First City Monument Bank Plc ('FCMB') with Starcomms Collection Account No. 0011080405409001, Stanbic IBTC Bank Plc ('IBTC') - Account Number 7200067098 and Fidelity Bank Plc ('Fidelity').

  'The Registrar was First Registrar Nigeria Limited (First Registrar).

'The SEC cleared a basis of allotment that showed that ONLY 43 Investors participated in the Private Placement.

'Though a private placement that should have been strictly circulated to pre-indentified Investors, invitation letters were sent to numerous individuals via blind-copied emails, and Investor fora were held in cities across Nigeria.

'Hundreds of Nigerian Investors paid monies into the offer Proceeds accounts [statutory requirement is that ONLY 50 should have been offered or allowed to pay into these accounts see SEC Rule 90(i)], yet only 43 Investors got allotted. Most surprisingly, MOST of the Investors that deposited money into the offer proceeds accounts but who were NOT among the 43 Investors who were on the SEC-cleared allotment list, did NOT get their monies refunded to them as Statutorily required. However, their monies were illegally converted and they were thereafter issued share certificates through very questionable procedures that did not involve a share transfer form (another statutorily requirement for transfer of shares). This suggests that the several billions of naira collected from innocent Nigerians might have been converted for the purpose of the bogus Private Placement, even though the owners of the monies are not on the list of 43 persons approved by SEC.

'The Issuing Houses deliberately created and encouraged the use of Investment Vehicles to aggregate many subscribers and thus tried to circumvent the rule that a private placement should not be offered to more than 50 people. However, the use of Investment Vehicles and subsequent assignment of shares in a Private Placement had been anticipated as a fraudulent practice by the framers of the ISA, and the ISA has made such a practice to mean the underlying transaction was a PUBLIC offer, even if it was called a private placement (see ISA section 69 - 1c); and ALL requirements of a PUBLIC offer must thus be met otherwise the subscribers to such a scam may rescind their decisions and ask for a reimbursement at anytime they so choose but before the winding-up of the Parties involved in the act. Please see ISA Section 67 (3 & 4). Being a Private Placement, the Issuing Houses were not allowed by law to make an offer to the public. But this is exactly what they did!!!

'As a Private Placement, the offer MUST NOT be offered to more than 50people (please see SEC Rule 90 (i)) and the sale MUST NOT be disseminated through the media, or any other means of mass communication (please see ISA section 69). Contrary to their SEC approval, the ISA and the SEC Rules & regulations guiding a Private Placement, the Parties jointly and severally caused the offer to be disseminated and sold to members of the Public in contradiction to ISA Section 67. See Section 69 (1a-d) for definition of 'invitation to the public'. The Parties also caused the Receiving Banks to receive money from members of the Public.

'In spite of the purported transaction being called a Private Placement, the invitation to participate was widely disseminated by blind-copied emails (the Private Placement was so much circulated as a public offer that even a staff of Chapel Hill referred to the offer as an Initial Public Offer in an email dated 26/03/2008) and by word of mouth at the open Investor Fora organised by the Parties.'

The fact finding committee were urged to 'kindly ask each of the parties to tell this honourable House the dates, cities and venues where they held these Investor Fora and the number of people that were present at each fora; the presenters at the fora and the documents (especially, the self-styled pilot-fishing document) that were presented at the fora. They should also present the list of people that they invited to the fora and the list of people that actually attended.

'This question will enable the House to see clearly that dissemination was made to more than 50people, as would be further revealed by the number of people that deposited money into the offer proceeds accounts.

'The House would also see in the 'Pilot Fishing Presentation' which the MD and CFO of Starcomms presented at various Fora at about March, 2008 that they stated clearly that they were planning to raise money via an Initial PUBLIC Offer (not via Private Placement) and were sensitising and enticing the PUBLIC to participate in the IPO. Their Issuing Houses (Chapel Hill and IBTC) were clearly stated as parties to the intended IPO on the transaction summary page; while the utilisation of the proceeds of the proposed IPO was clearly stated on page 31.

'The Parties by themselves and various other people sent out copies of the Investor Letter and Form of Commitment to thousands of people (members of the public) even before the PPM was approved by the SEC. The said Investor Letter and Form of Commitment (addressed to Starcomms) were available for any member of the public as they were deliberately made in electronic formats that could be printed and utilized freely.) Neither the said Investor Letter nor Form of Commitment was numbered or capable of an audit or tracking. The letter was deliberately without a named addressee so as to enable it be utilized by any member of the public.

'The proposed private placement had not been approved by the Securities and Exchange Commission at the time the letter was issued and used. The shares being offered belonged to a public company and any such letter to prospective investors must receive prior approval of the Securities and Exchange Commission to be legal as stated in ISA section 68 (1).

'Kindly ask the SEC whether it is legal for the parties to have sent out the Investor letters, without prior approval of the SEC as stated in the ISA Section 68 (1) above; and if SEC was aware of such Invitation Letters? {Revelation} When it is seen that monies were collected from persons not on the final list approved by SEC, this question will enable the House to see that monies were taken illegally from the public, even without SEC's knowledge and without legal approval!

'The said letter was issued and utilized in breach of the Investment and Securities Act 2007. The Investor Letter issued by the Parties states that subsequent to the Offer, application will be made to list ALL THE ISSUED SHARES of Starcomms on the Nigerian Stock Exchange. This statement is a direct affirmation that they were issuing a PUBLIC offer rather than a Private Placement because this is the explicit definition of the ISA. Kindly see ISA section 69 (1d) to confirm this.

'Invitations to make an Offer were widely disseminated by Chapel Hill wherein the public was invited to participate via Investment Vehicles nominated by the Chapel Hill. {Question} Kindly ask Chapel Hill and IBTC whether each of them created Investment vehicles or are aware of Investment vehicles or schemes that were used to aggregate subscriptions from many investors. If Chapel Hill says it did not create Investment Vehicles, ask their officials how much of their own monies did they use in funding the subscription under the 2 names of: Chapel Hill Advisory Partners Limited and Chapel Hill Denham Asset Management Limited. If they agreed that they formed Investment vehicles, then kindly ask them: how many 'investors' they got into the Investment Vehicle and how these 'Investors' were converted and how/when their monies were received. {Revelation} The use of Investment Vehicles and thereafter assigning the shares, is a direct contravention of the ISA and the ISA stipulates clearly that any such use of an Investment Vehicle makes an offer a Public Offer, whether you called it a Private Placement or Not. And once an offer is a Public offer, the ISA further stipulates that ALL the requirements of ISA sections 71 shall be fulfilled; and these were not fulfilled by the Parties.

  'The Parties gladly received deposits into the Offer Proceeds accounts, from people who they never even addressed any letters to, without ever considering how the person(s) obtained the details of the transaction.

'No prior approval was obtained from the SEC to make the offer public or to obtain an application or deposit of money from members of the public while the receiving banks received deposits from members of the public even as early as 2nd May, 2011 when they had NOT received SEC's approval.

'Mr. Chairman Sir, kindly ask the SEC and the Receiving banks (who are capital market operators themselves) whether it is legal for them to have received monies from members of the Public for a transaction that is yet to be approved by the SEC. Ask the Receiving Banks the names of the Offer proceeds account; when the accounts were opened by their banks; the signatory to the accounts; when they first received monies into the accounts; and the number of people and amount of money that had received into the account as at 27th May, 2008 when the SEC approved the PPM but when the offer had not opened? Ask the banks if they are aware, as capital market operators, that they ought not to open or operate an offer proceeds account prior to SEC's approval of the underlying transaction and the related documents?

'Their answers to these questions would reveal a deliberate and orchestrated plan to defraud the unsuspecting members of the public. The House would also realise that the purported private placement transaction had not received statutory and regulatory approvals at the time deposits were received from members of the public in contravention of the Investment and Securities Act 2007. Finally, it will be clear that even though there was ONLY an approval to for a Private Placement (which would have involved only an offer to 50 maximum), there was a clear intention to offer the shares to the public in contravention of the law.

'Contrary to their SEC approval, the ISA and the SEC rules & regulations guiding a Private Placement, the Parties jointly and severally caused over hundreds of Nigerians to make deposits into the offer proceeds accounts; yet got ONLY 43people to be cleared by the SEC. However, most of the people that were not on the SEC allotment list but who made deposit into the offer proceeds account (a TRUST a/c regulated by ISA section 41) were not refunded their monies as stipulated by the ISA and SEC rules. Please note that SEC by letter dated 19/06/2008 directed the issuing Houses (Chapel Hill and IBTC) to refund monies collected from prospective investors that were not allotted shares back to them not later than 26/06/2008; most if not all of these monies were not returned!

'Over 350people paid money into the FCMB's Starcomms Offer proceeds accounts between May 3rd and May 16th, 2008. Also several people paid money into the offer proceeds accounts with the other 2 receiving banks. {Question} Mr. Chairman Sir, kindly ask each of the Receiving Banks to provide the FULL and AUTHETIC LIST of ALL depositors into the offer proceeds account as from the date the accounts were opened. Also ask each of the banks the number of depositors.

'Ask the Issuing Houses (Chapel Hill and IBTC) to provide the FULL AND AUTHENTIC LIST of persons from whom deposits were taken and persons allotted shares through the purported private placement. Also ask the SEC to provide a copy of the persons allotted shares, and let's see if they were just 43 people.

'Ask the Issuing Houses (Chapel Hill and IBTC) if they made any refunds to all those depositors who were not on the SEC clearance of allotment. Ask them if they did not make these refunds, where the monies of the depositors are? Is it with Starcomms or with the Receiving banks or the Issuing Houses or where? If they ever say it is with Starcomms or any of the Parties, ask them on whose authority did the monies get to Starcomms or any of the parties? {Revelation}

'Their answers to these questions will lead to the clear evidence of ILLEGAL and QUESTIONABLE CONDUCT of conversion of monies, contrary to the ISA and SEC Rules & Regulations. As per the ISA, SEC Rules and Practice, nobody can touch monies in an offer proceeds account EXCEPT it is for payment to the ISSUER (based on the SEC approved allotment) or refund to un-allotted prospective investors.

'Kindly ask SEC if they ever got the statements of the Offer Proceeds accounts prior or even after they had cleared the Allotment? Ask them to produce these statements, as you might find out that what SEC got was even different from what the Banks submitted or what I submitted as evidence from the Offer proceeds from FCMB (Starcomms Collection Account No. 0011080405409001).

'Mr. Chairman and dear members of this honourable House, you fully know the implications of financial organisations (especially banks) doctoring information; so kindly scrutinise these statements very well. Also ask 3rd party banks from where unsuspecting depositors made RTGs transfers into the Offer proceeds accounts to provide evidence of the bank account into which their transfer instructions were issued to be transferred to. On the list that I have submitted to you as exhibit 1, you will see numerous bank RTGs for transfers by unsuspecting depositors, so you may call those 3rd party banks to provide the requisite transfer instructions, which I am sure will corroborate the fact that transfers were, indeed, made into the offer proceeds accounts.

'Ask SEC if they saw the list of the depositors in the Offer proceeds accounts, whether they have asked that the unallotted investors should have their deposits refunded to them and whether the Issuing Houses have confirmed to them that these unallotted prospective investors got their monies refunded to them? Even if SEC claims they did not see the list of depositors in the offer accounts prior to clearance of the allotment (which indeed would be a grand failure of regulatory supervision), kindly ask them if they were given copies of the offer proceeds account when the offer closed, as statutorily required under SEC Rule number 185; and if they detected any anomalies and the actions they have taken to correct and ensure the Investors are refunded their monies. The mere fact that over 50people deposited money into the Offer Proceeds a/c should have put SEC on notice not to approve the basis of allotment, because, indeed, a Private Placement, as per the ISA, SHALL not be offered to more than 50 people.'

Revealing how money was conversion of in a trust account by Chapel Hill and IBTC, the memo stated that 'Starcomms Collection Account No. 0011080405409001 at FCMB' is a trust account whose operation is strictly regulated by the Investment and Securities Act 2007 and the SEC Rules.

'As Joint Issuing Houses, both Chapel Hill and IBTC, are joint trustees of all funds in the said account for the purpose of the Starcomms Private Placement transaction.

'On or about 05/05/2008, Chapel Hill transferred the sum of N16 billion from that trust account to its private account kept with Access Bank Plc. The transaction was an RTGS transfer with transaction ID DC6573.

'Access Bank Plc was not a Receiving Bank to the Private Placement and the sum of N16 billion is far in excess of any legitimate income of Chapel Hill in the Private Placement transaction. {Question} It would be nice to know the actions that both Access bank and indeed FCMB (the appointed Receiving bank to Starcomms Private Placement) took to inform the CBN and other anti-money laundering agencies in respect of this huge withdrawal from a Trust a/c to a personal a/c. If these reports were made to the CBN and the anti-money laundering agencies as required, it would be nice to know the action(s) these agencies took thereafter.

'The Issuing Houses are NOT allowed to touch any money in the Offer proceeds account until SEC clearance of the basis of allotment. Even when this is obtained, movements from that Trust account MUST only be to pay the Issuer (for value of the allotted shares) and refund to unsuccessful subscribers (for unallotted shares); and nothing else. {Question} please ask SEC to confirm this assertion whether it is right or wrong, and how they enforced or failed to enforce it in this case. Now that they have heard, what will SEC do? Are they not statutorily compelled by the ISA section 41 (1), (2), (3), (4) and (5) to ask the Issuing Houses that made the illegal deductions to refund the monies and in addition prosecute them for criminal offences?

On the illegal issuance of Share Certificates by the Directors & Company Secretary of Starcomms, the memo disclosed that 'The Parties conspired to cover their illegal acts by causing the issuance of share certificates to hundreds of Nigerians on or about the 9th day of July 2008 through a sham scheme packaged as a Private Placement Transfer (P/P Transfer), which is not known to the law and regulations guiding such transactions.

'Share Certificates ought to be issued to ONLY the 43 people that are on the allotment list cleared by the SEC.

'MOST if not ALL of the people that were issued this self-styled 'P/P Transfer' Share certificates, NEVER signed/executed any share transfer instrument with anybody to warrant the issuance of share certificates in their names. In order for the transfer to be legitimate, the root of ownership must be traced to one of the 43 shareholders approved by SEC, or how else would one be authorised to hold shares of Starcomms if the person is not one of the 43 shareholders and whose shares cannot be traced to one of the 43 approved shareholders? Though a share certificate is a prima facie evidence of share ownership, but it becomes null and void in the absence of an underlying contract nor a transfer form duly signed by both the transferor and the transferee and their respective witnesses as stipulated in CAMA.

  The aggrieved stockbroker noted that 'It would be nice to ask the Registrar to Starcomms Plc (First Registrars) if they got duly executed transfer forms for these 'P/P Transfer 2008' Share certificates. If their answer is negative; then the Committee should please ask them, under which authority did they issue the 'P/P Transfer certificates 2008'

'The responses to these questions will reveal the grand-conspiracy in the entire sham and the role of each Parties thereto. It would also be interesting to find out why a Director and Company Secretary of Starcomms Plc signed share certificates for persons who did not participate in the Private Placement transaction.

'It would also be nice for the Registrar to tell this Honourable House the entities whose shares they transferred. By the time the House knows each of these entities, you would then be able to ask them whether they were paid and how they collected money for the shares they sold to these Nigerians that were scammed. It would be nice to also know the kind of contracts (if any) that they entered with each of these 'scammed' Nigerians.

'Kindly ask First Registrar to produce the details of all Starcomms share certificates issued by First Registrars Nigeria Limited prior to the listing of Starcomms on the floor of the Nigerian Stock Exchange in July 2008.

  'The huge number that would be thrown open by First Registrar will reconfirm to the House the number of unsuspecting Nigerians that were scammed; and in particular, how the Parties tried to use Investment Vehicles to circumvent the maximum of 50-people rule of a Private Placement. However, we thank God for the wisdom he reposed in the people that drafted the ISA, as ALL remedies due to these kinds of market infraction have been stipulated, which include the refund of monies back to the Scammed investors, and the mandatory requirement of SEC to move for the conviction of the perpetrators. Following this through is the ONLY way that the scammed investors can begin to have confidence back in the capital market.

'I know the above facts to be true because invested over N300,000,000 (three hundred million naira only) in the bogus private placement. When I sued for a refund of my money, it was now revealed that I was not on the list of 43 persons approved by SEC for the Private Placement transaction. How then did money move from the transaction action which is a trust account?

'SEC ought to have known by now there is litigation against Chapel Hill & IBTC in suit no: FHC/L/CS/902/11 upon reviewing the Quarterly Reports of these companies filed with SEC.

'My Prayers are that the House should investigate the Starcomms Private Placement transaction as I verily believe that it was used to scam Nigerians of billions of Naira.

  'That the House should pass a resolution mandating the SEC to compel the Issuing Houses to refund all the monies (including interests at commercial rates from the 26th June, 2008 until the date of execution of this House Resolution) collected into the offer proceeds accounts, from prospective investors that were not on the list of 43 allottees cleared by the SEC. The SEC should further, commence criminal prosecution of the entities involved. ISA section 41 (1), (2), (3), (4) and (5) empowers and indeed compels SEC to make these orders', Mr. Ayoleke Adu revealed in his memo to the ad-hoc committee on the Capital Market Probe   of the House of Representative.