INSIDER TRADING AND ITS REGULATION IN INDIA
INSIDER TRADING AND ITS REGULATION IN INDIA
Insider Trading implies buying, selling and dealing in shares and securities of a listed company by insiders such as directors, designated officers of management team, employees of the company or any other connected persons such as auditors, consultants, lawyers, analysts who possess material inside information which is not available to general investors.
INSIDER TRADING REGULATIONS AND SEBI
For regulating the insider trading the SEBI (Prohibition of Insider Trading) Regulations, 1992 has been passed. This Regulation contains 15 regulations and 3 schedules with 4 Forms portraying 2 model codes of conduct for prevention of insider trading in listed companies. The main aim of insider trading regulation is to prevent misuse of any un-published price sensitive information by the insiders viz. the directors, officers, auditors, lawyers, bankers’ etc. and to stop taking unfair advantage by the aforementioned persons over other common investors of securities of a listed company. Insider information is one which is likely to have impact on the company’s shares and other securities in the market and trading based on such information is unfair and also legally and economically undesirable.
Meaning of Insiders
The term ‘insider’ is defined in Regulation 2(e) SEBI (Prohibition of Insider Trading) Regulations, 1992, as
(i). any person who is or was connected with the company or is deemed to have been connected with the company and who is reasonably expected to have access to unpublished price sensitive information in respect of securities of the company; (or)
(ii). has received or has had access to such unpublished price sensitive information.
“Connected person” means any person who-
(i). is a director of a company, as defined in section 2(13) of the Companies Act, 1956 or is deemed to be a director of that company by virtue of section 307(10) of that Act or
(ii). is an officer of a company as defined in section 2(30) of the Companies Act, 1956 including Auditor of the company or
(iii). An employee of the company who holds a position involving a professional or business relationship between himself and the company whether temporary or permanent and who may reasonably be expected to have an access to unpublished price sensitive information in relation to that company; or
A person is deemed to be inter-connected person if such person
(i). is a company under the same management or group or any subsidiary company thereof;
(ii). is an intermediary such as Investment Company, Trustee Company, Asset Management Company or is an employee or director thereof or an official of a stock exchange or of clearing house or corporation;
(iii). is a merchant banker, STA, Registrar to an issue, debenture trustee, or member of the Board of trustee of mutual fund or of the Asset Management Company; (iv) is a member of Board of Directors or an employee of a public financial institution;
(iv).is an official or an employee of Self regulatory Organization;
(v). is a relative of any of the aforementioned persons;
(vi).is a banker of the company;
(vii). relatives of the connected person or (ix) is a concern, firm, trust, HUF, or AOP, wherein the aforementioned person has more than 10% of the holding or interest.
Price Sensitive Information
Price Sensitive Information means any information, which relates directly or indirectly to a listed company and which if published, is likely to materially affect the price of securities of such company. Regulation 2(ha) defines ‘price sensitive information’ as any information which relates directly or indirectly to a company and which if published is likely to materially affect the price of securities of a company. The information relating to
· periodical financial results of the company;
· intended declaration of dividend – interim and final;
· issue of any class of securities; buy back of securities;
· any major expansion plans or execution of new projects;
· amalgamation, mergers or takeovers;
· disposal of whole or substantial part of undertaking or
· Any significant change in policies plans or operations of the company are considered as price sensitive information.
ü Regulation 3 prohibits the insiders of listed companies either on his own behalf or on behalf of any other person, on dealing, communicating or counselling matters relating to insider trading. Similarly Regulation 3A prohibits a company from dealing in securities of another company or associate of that other company, while in possession of price sensitive information. Regulation 4.1 requires that all directors, officers and designated employees and their dependents – as defined by the company shall execute their order in respect of securities of the company within 7 days after the approval of pre-clearance is given. If he does not clear within one week, he must pre-clear the transaction again. Regulation 4.2 was fully substituted in lieu of earlier provision. It mandates all directors, officers, designated employees who buy or sell any number of shares of the company shall not enter into an opposite transaction i.e. sell or buy any number of shares during the next 6 months following prior transaction. They should not take position in derivative transactions in the share of the company at any time. In the case of IPO, the aforementioned persons shall have to hold their investments for a minimum period of 30 days. The period of 30 days must be reckoned from the date of actual allotment.
ü Regulation 13 of SEBI Insider Trading Regulation, speaks about initial and continual disclosures of holdings or interest of Director or officer and substantial shareholders in a listed company. It casts duty on directors or officers holding specified percentage of shareholding in a listed company to disclose their holdings to the company and the company in turn intimate to the stock exchange of those disclosed information.
ü Regulation 13(1) postulates that every person holding more than 5% shares/voting rights in any listed company shall disclose to the Company in Form – A the number of shares or voting rights held by such person on becoming such holder within 2 working days* of the receipt of intimation of allotment of shares or the acquisition of shares or voting rights as the case may be.
ü Regulation 13 (6) mandates the Company to inform the stock exchanges where the shares of the company are listed, the information as received under initial disclosure and/or continual disclosure, within 2 working days* of receipt of the information from the aforementioned persons.
POWERS OF SEBI IN CASE OF VIOLATIONS
Regulation 14 was substituted by the amendments made on 19- November-2008. Apart from initiating actions under Regulation 11, SEBI is empowered to invoke powers enshrined in Securities and Exchange Board of India Act,1992 in sections – 11- general powers of SEBI to protect the interests of investors in securities and to promote the development of and to regulate securities market, 11B – SEBI’s power to issue directions to market intermediaries, 11D – power to pass orders requiring a person who violated or is likely to violate the provisions of the Act to cease or desist from committing or causing such violation and SEBI may award penalty and imprisonment to a violator of the regulations. A violator shall be punishable with imprisonment for a term which may extend to 10 years or with fine which may extend to Rs.25 Crores or with both.