Professional Documents
Culture Documents
• What are the procedures for the registration of securities (see Sec. 12,
SRC)?
1. filing of the following with the SEC:
a. sworn registration statement (standard pro forma form)
SIGNATORIES TO A REGISTRATION STATEMENT (see sec. 12.4)
-the same persons who will be held liable if there is something wrong with
the registration statement.
i. Chief Executive Officer
ii. Chief Operating Officer
iii. Chief Financial Officer
iv. Accounting Manager/Comptroller
v. Corporate Secretary
vi. Expert Opinion (signature is not mandatory)
• How long will the SEC issue an Order either approving or denying the
application? (see sec. 12.6)
--within 45 days from the filing of the registration statement.
--TAKE NOTE! It is only upon the issuance of the Order by the SEC approving
registration registration statement does the issuer be allowed to sell the securities or
offer them for sale. So any sale made prior to the effectivity of the registration
statement is considered NULL and VOID.
(b) The registration statement is on its face incomplete or inaccurate in any material
respect or includes any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; or
(c) The issuer, any officer, director or controlling person of the issuer, or person
performing similar functions, or any underwriter has been convicted, by a competent
judicial or administrative body, upon plea of guilty, or otherwise, of an offense
involving moral turpitude and/or fraud or is enjoined or restrained by the Commission
or other competent judicial or administrative body for violations of securities,
commodities, and other related laws.
--TAKE NOTE! Judicial or administrative body here includes decisions of a FOREIGN
COURT.
15.2. The refusal to furnish information required by the Commission may be a ground
for the issuance of an order of suspension pursuant to Subsection 15.1. Upon the
issuance of any such order and notification to the issuer, underwriter, dealer or broker
known as participating in such offering, no further offer or sale of any such security
shall be made until the same is lifted or set aside by the Commission. Otherwise, such
sale shall be void.
14.2. An amendment filed prior to the effective date of the registration statement
shall recommence the forty-five (45) day period within which the Commission shall
act on a registration statement. An amendment filed after the effective date of the
registration statement shall become effective only upon such date as determined by
the Commission.
14.3. If any change occurs in the facts set forth in a registration statement, the issuer
shall file an amendment thereto setting forth the change.
14.4. If, at any time, the Commission finds that a registration statement contains any
false statement or omits to state any fact required to be stated therein or necessary
to make the statements therein not misleading, the Commission may conduct an
examination, and, after due notice and hearing, issue an Order suspending the
effectivity of the registration statement. If the statement is duly amended, the
suspension order may be lifted.
14.5. In making such examination the Commission or any officer or officers
designated by it may administer oaths and affirmations and shall have access to, and
may demand the production of, any books, records or documents relevant to the
examination. Failure of the issuer, underwriter, or any other person to cooperate, or
his obstruction or refusal to undergo an examination, shall be a ground for the
issuance of a suspension order.
PRE-NEED PLANS
• Examples:
--insurance; educational plan; memorial plan
• How is it done?
--example you want to acquire only 70% since the tender offer rule requires that
you have to make your offer to all stockholders, so you have to buy from all the
stockholders on a pro rata basis.
--example: 20 (shares of the minority) / 100 (total shares) x 70% (shares to be
acquired)
--so the effect is that, even if you hold a minority share, you are given the
opportunity to sell.
--what if all the minority SH will sell, are you compelled to buy all? No. Again you
do it in a pro rata basis.
--NOTE: what the law requires is only to give the minority stockholders the
opportunity to sell. If they would not, there is no problem with that.
• Transactions exempt from the tender offer rule. (see the IRR)
1. Tender Offer rule will not apply to any purchase from the UNISSUED SHARES.
REASON: a. the law grants the SH the pre-emptive right
b. the existing Stockholders are not selling their shares, only the
unissued shares.
GR: tender offer rule not applicable in the purchase of unissued shares.
EXC: acquisition will not result to 50% or more ownership.
Case:
CEMCO HOLDINGS vs. National Life
FACTS:
UCC
(Public Corporation)
-CEMCO acquired BPI and APP shares in UCHD thereby increasing its ownership in UCHD
to 51%.
-Phil. National life Insurance (minority) was aggrieved. It claimed that no tender offer was
made when CEMCO acquired the shares of BPI and APP in UCHD.
-CEMCO on the other hand alleged that it is not required to tender offer because it did
not acquire the shares of UCC (a public corporation) but that of UCHD (a non public corp.
RULING:
Yes.
Mandatory coverage of the tender offer rule does not only apply to direct acquisition of
stocks but also to indirect acquisition of stocks. RATIONALE: although CEMCO acquired
less than 35% of UCHD, it is covered because after the acquisition CEMCO’s ownership in
UCC increased to more than 51%.
• REQUIREMENTS
1. must be in writing
2. signed by the stockholder or his duly authorized representative.
3. submitted/filed before the scheduled meeting.
4. valid only for the particular meeting. Provided that it is effective for a period not
longer than 5 years.
5. If the broker or dealer acquires 10% of the shares by proxy, he shall submit a
report identifying the beneficial owner within ten (10) days after such
acquisition, for its own account or customer, to the issuer of the security, to the
Exchange where the security is traded and to the Commission.
6. Broker can give a proxy provided that there is authorization from the customer.
• When is it applicable?
--applicable only to public companies.
2. change of ownership- file a statement with the SEC within 10 days after the
close of each calendar month thereafter.
NOTE: known as WASH SALE- you create an appearance of active trading but the
truth is there is no transfer of ownership. Or basically the buyer and the seller are just
the same persons who connived to buy and sell the shares for purposes of making it
appear that there is active trading.
MARKING THE CLOSE- at the start of the day the stock is inactive but towards
the close of the market it becomes active.
PURPOSE: to make it appear that the stock ended good. Thus,
making it appear that the stock is good and increase its price the
following day.
HYPE AND DUMP- you constantly buy securities at a higher price and after
establishing a very high price, you dump the securities by selling it at a profit. [You
create the hype by creating an artificial inflation or increase in price and then sell it
at a profit.]
BOILER ROOM OPERATIONS- used to describe the situation where there are
several salesmen in a room doing pressure sales talk to lure investors in the
securities being offered.
NOTE: all manipulate the stock prices.
(c) To circulate or disseminate information that the price of any security listed in an
Exchange will or is likely to rise or fall because of manipulative market operations of
any one or more persons conducted for the purpose of raising or depressing the price
of the security for the purpose of inducing the purchase or sale of such security.
(d) To make false or misleading statement with respect to any material fact, which he
knew or had reasonable ground to believe was so false or misleading, for the purpose
of inducing the purchase or sale of any security listed or traded in an Exchange.
(e) To effect, either alone or others, any series of transactions for the purchase and/or
sale of any security traded in an Exchange for the purpose of pegging, fixing or
stabilizing the price of such security, unless otherwise allowed by this Code or by
rules of the Commission.
2. Option Trading
• What is Option Trading ? (Sec. 25)
--you give an option either to sell or to buy.
• Important terms
a. Put- option to sell
b. Call- option to buy
c. Straddle- option to buy or sell
NOTE: brokers are not allowed to engage in option trading.
SEC. 25. Regulation of Option Trading. – No member of an Exchange shall, directly or indirectly
endorse or guarantee the performance of any put, call, straddle, option or privilege in relation to
any security registered on a securities exchange.
The terms “put”, “call”, “straddle”, “option”, or “privilege” shall not include any registered
warrant, right or convertible security.
RATIONALE: to avoid the danger that the person to whom the option is given may
abuse the option by acquiring or exercising the option involving large number of
shares for a certain period. When the person whom the option was given will not
exercise the option, it will in a way manipulate the market because the seller cannot
sell it to another within the agreed period.
EXC: registered warrants (right to exercise the warrant within a certain period) and
convertible securities (right to convert the securities within a certain period).
3. Fraudulent Transactions
• Fraudulent Transactions (Sec. 26)
SEC. 26. Fraudulent Transactions. - It shall be unlawful for any person, directly or indirectly, in
connection with the purchase or sale of any securities to:
26.1. Employ any device, scheme, or artifice to defraud;
26.2. Obtain money or property by means of any untrue statement of a material fact of any
omission to state a material fact necessary in order to make the statements made, in the light of
the circumstances under which they were made, not misleading; or
26.3. Engage in any act, transaction, practice or course of business which operates or would
operate as a fraud or deceit upon any person.
4. Inside Trading
• What is insider trading? (Sec. 27)
--it is insider trading when you either buy or sell securities while you are in
possession of a material information and that information is not yet made known
to the public.
--You call that MATERIAL NON PUBLIC INFORMATION.
--it is disallowed because you are taking undue advantage of the information when
you buy and sell the shares.
• Who is an insider?
a. director, officer or a person controlling or under common control of the issuer
(like a subsidiary or holding company)
b. persons who by reason of their relationship or former relationship have access
to any material or significant information not made known to the public.
c. Government employees that have access to some material information not
known to the public (e.g. SEC, BFAD, IPO)
d. Persons who knew of a material information from an insider.
(a) It has not been generally disclosed to the public and would likely affect the market
price of the security after being disseminated to the public and the lapse of a
reasonable time for the market to absorb the information; or
--PRESUMPTION UNDER THE SRC: if you buy and sell the shares after you acquire the
information but before the same is released to the public, it is presumed to be an
insider trading.
In a BOD meeting on Oct. 5, 2010 where only A and C attended they made a
disclosure that they already have a perfected mining claim on a particular area. On
Nov. 5, 2010 A and C sold their shares. On Dec. 5, 2010 when he came back to the
Philippines he also sold his share. Is A, B and C, liable for inside trading?
In Sept 1, 2010 when A, B and C bought the shares, is there insider trading?
--none because they are not in possession of any material non public
information.
In Nov. 5, 2010 when A and C sold their shares, is there insider trading?
--yes, applying the presumption. They already possess the material un public
information.
NOTE: insider trading could applies not only when you sell your shares to earn profit
but also when you sell your shares because you know that the company is going down
because you are taking undue advantage of an information that is not known to the
public.
SEC. 48. Margin Requirements. - 48.1. For the purpose of preventing the excessive
use of credit for the purchase or carrying of securities, the Commission, in accordance
with the credit and monetary policies that may be promulgated from time to time by
the Monetary Board of the Bangko Sentral ng Pilipinas, shall prescribe rules and
regulations with respect to the amount of credit that may be extended on any
security. For the extension of credit, such rules and regulations shall be based upon
the following standard:
(a) Sixty-five per centum (65%) of the current market price of the security; or
(b) One hundred per centum (100%) of the lowest market price of the security during
the preceding thirty-six (36) calendar months, but not more than seventy-five per
centum (75%) of the current market price.
However, the Monetary Board may increase or decrease the above percentages, in
order to achieve the objectives of the Government with due regard for promotion of
the economy and prevention of the use of excessive credit.
Such rules and regulations may make appropriate provision with respect to the
carrying of undermargined accounts for limited periods and under specified
conditions; the withdrawal of funds or securities; the transfer of accounts from one
lender to another; special or different margin requirements for delayed deliveries,
short sales, arbitrage transactions, and securities to which letter (b) of the second
paragraph of this subsection does not apply; the bases and the methods to be used in
calculating loans, and margins and market prices; and similar administrative
adjustments and details.
Case:
ABACUS SECURITY vs. AMPIL
FACTS:
-Abacus is engaged in the business of buying and selling of stocks on credit.
-it extended credit to Ampil.
-Ampil failed to pay some of the transactions, but despite Ampil’s failure to pay,
Abacus still extended credit and allowed Ampil to trade.
-Ampil’s defense: Abacus can only extend credit if there is a collateral. It is absent
here, thus, no collection can be had.
ISSUE:
RULING:
Ampil is liable for the first transaction. The pari delicto rule applied only to the
subsequent transactions. They are in pari delicto because
Abacus was guilty of violating the SRC for extending credit despite Ampil’s failure to
pay the previous obligations. The explanation given by the court why it continued
extending loan despite failure of payment is that he will lose nothing. Ampil is also
equally guilty because he violated the SRC provision on margin trading.
Nothing follows.
ADSUM