DDS in relation to Corporation Code’s capital provisions

By Dan Bernard S. Sabilala, ACCRA Law Offices
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The Philippine Stock Exchange (PSE) issued on 2 December 2016 the Rules on Dollar Denominated Securities (DDS rules) which govern the listing, trading and settlement of US dollar denominated Securities (DDS) to be listed and traded in the PSE. The DDS rules were earlier approved by the Securities and Exchange Commission (SEC), on 10 November 2016.

The introduction of DDS aims to provide issuers and investors with more instruments to meet their specific requirements. It can provide issuers with the US dollar (USD) denominated funding requirements and the opportunity to raise capital at the PSE without incurring any foreign exchange risks. In the same manner, the product can also reduce the foreign currency risk exposure of foreign investors who trade on PSE-listed securities. In addition, DDS offer local investors an alternative investment option for their USD currency holdings.

Dan Bernard S. Sabilala Associate ACCRA Law Offices
Dan Bernard S. Sabilala
Associate
ACCRA Law Offices

The DDS rules must apply only to existing listed companies that will issue DDS. To be eligible, an issuer must be in good standing with the PSE. An issuer is deemed to be in good standing if, at the time of submission of its listing application, it does not have any outstanding penalties or other liabilities to the PSE, is not the subject of any order or suspension from trading or any involuntary delisting proceedings, and is not the subject of any pending case, investigation or similar proceeding by the PSE for violation of any applicable laws, rules, regulations or orders. The above-mentioned criteria are illustrative only and the PSE may take into consideration any other material factors, events, circumstances and other related matters that negatively impact the issuer.

DDS listings through initial public offering must be subject to other rules, regulations and guidelines as may be prescribed by the PSE and approved by the SEC and other regulatory agencies. The general procedures for the listing of equity securities must apply in processing listing applications for DDS.

In light of the introduction of DDS, does this mean that an eligible issuer who is a domestic corporation may now issue shares with a par value in USD?

In an opinion by the SEC dated 6 November 1995, the SEC stated that an analysis of the provisions of the Corporation Code relating to corporate capitalization reveals that the required “payment of capital stock” and “amount of authorized capital stock” are covered by different provisions. Section 62 of the Corporation Code allows a corporation to receive subscription payment for its capital stock not only in “cash”, but in the form of “property”. While “foreign currency” may not qualify as actual cash, it would still qualify as property payment under the above-mentioned provision of the Corporation Code. Therefore, there is no legal impediment for a corporation to validly accept “foreign currency” as a consideration for stock subscriptions.

However, the above policy should not be construed to automatically mean that the capital stock or capitalization of a corporation can be denominated in foreign currency. The pertinent provisions of the Corporation Code are sections 14 and 15, which explicitly require that the amount of the authorized capital stock of a corporation must be denominated in the lawful currency of the Philippines, which is represented in pesos.

Accordingly, while payment to subscriptions to capital stock in the form of “foreign currency” is allowable under existing law and SEC policy, the shares of stocks of domestic corporations cannot be denominated in terms of any currency other than in Philippine pesos.

The SEC in a subsequent opinion, dated 8 July 2003, stated that the provisions of the Corporation Code that require shares to be issued by a company and that must be expressed in the legal currency of the Philippines are mere formal rules and do not apply with pedantic rigor.

In fact, these provisions allow for exemptions from the requirements when so prescribed by the Corporation Code and by special laws. In that case, the SEC interposed no objection to the issuance by a Philippine bank of USD denominated preferred shares of stock subject to the approval of the Monetary Board on the basis of the provision of the General Banking Law.

Based on these factors, the introduction of DDS will only allow equity shares of a domestic corporation to be quoted, traded and settled in USD, but the par value of the shares must remain to be in Philippine pesos. The introduction of DDS only pertains to the requirement by the Corporation Code on the “payment of capital stock” and not on the “amount of authorized capital stock”.

DAN BERNARD S. SABILALA is an associate in the corporate and special projects department at ACCRA Law Offices

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