An excellent new commenter (at the Shkreli review property) asked a series of very important questions this morning. I repeat his in blue, immediately below -- followed by my answers.
I am very confident of these answers under US federal law [but if anyone reading this plans to rely on the below, to fork over real cash or euros or Bitcoin, to buy these Swiss shares, you should obtain an opinion of a lawyer very well-qualified in both the US and Switzerland.] It is a bedrock principle of US law, that no Swiss court could spirit Martin out of jail -- and to Basel or Geneva, or any non-extradition country (and his November 2022 release terms will prohibit his traveling without prior written BoP approval -- certainly not outside the US).
So, one really doesn't need a Swiss opinion to say that Martin is. . . all done, here.
In any event, here are the questions, and my answers:
. . .Does he still own shares of Phoenixus / Vyera? Does he still have voting rights?
The company is incorporated in Switzerland, can it bypass US rulings including his lifetime ban?. . . .
We cannot be certain whether the receiver in the Koestler judgment recovery matter has sold all, none or some of those shares.
The ruling by Judge Cote clearly prohibits his voting those shares, and assuming they aren’t all sold by the Koestler recovery team, Martin only has 180 days to sell the rest of them.
Regardless of any provision of Swiss law, Martin is a US citizen, subject to US court forfeiture orders. And he's an incarcerated felon, so his flexibility here is almost nil.
So, unless existing Phoenixus AG shareholders act together to buy the shares, someone “new” to them will hold ~37 per cent of the voting power very soon.
The Swiss company might argue that it may hire anyone it pleases, but the rub is the US Bureau of Prisons has control of Martin. It can extend his stay at FCI Allenwood if the Swiss company tries to hire him.
And so, Martin has a powerful incentive, personally — not to run afoul of Judge Cote’s order.
The Swiss law cannot dictate what US courts do with an incarcerated US citizen, or his property.
As we've mused here before, I suppose the Swiss could refuse to recognize the transfer of the shares, to anyone not approved by the other Swiss company holders, but even then. . . it cannot be Martin or anyone acting for him. [But then an ADR-like device, a "Swiss-DR" arrangement -- could be employed by the buyer, relying on US court orders authorizing the same. So again, the purchaser could exercise influence, without the Swiss law granting him, her or it full shareholders' certificated shares.]
That said, Martin is self-destructive enough that he might try to violate the court orders, in some secret Swiss-DR way, with an ally. That would be exceedingly... stupid.
Why? Because. . . like Mike Milken of 40 years ago, it could get him perhaps another five years in the can.
I hope he’s not that stupid. But unless he is, his time trying to influence Vyera or Phoenixus or Regnum or SevenScore or CytoDyn is at an end, since each of them derives more than 10 per cent of its revenues via US sales and research activities in the life sciences.
Great questions!
नमस्ते
No comments:
Post a Comment