Holcim and the full disclosure rule
Credit to Author: EMETERIO SD. PEREZ| Date: Tue, 30 Apr 2019 16:17:25 +0000
Holcim Philippines Inc. posted on April 29, 2019 its definitive information statement (DIS) on the website of the Philippine Stock Exchange (PSE). The company’s DIS, which was to be sent on April 30, 2019 to stockholders, contains a 10-point agenda including the “approval and ratification of all acts, contacts, investments and resolutions of the board, committees and management since the last annual stockholders’ meeting.”
The phrase should not absolve Holcim of its responsibility to the public, especially those who maybe among its stockholders.
Seasia Nectar Port Services Inc., which has a pending suit against Holcim, may not have listed its common shares on the Philippine Stock Exchange. However, as a listed stock, Holcim should have informed its public stockholders how it would deal with the suit. It should also explain to them what its “notice of arbitration” was all about.
Seasia has succeeded in seeking from the Regional Trial Court of Mariveles, Bataan a “preliminary attachment over Holcim’s properties in the amount of P1,877,787,789”, which Holcim tried but failed to lift.
Holcim even has its own lawyers to fight the garnishment. In a letter dated Feb. 19, 2019, Gatmaytan Yap Patacsil Gutierrez & Protacio even asked the Metropolitan Bank and Trust Co. to lift the garnishment which Holcim said should be lifted because it has “obtained a favorable decision in its application for the appointment of emergency arbitrator filed with the Philippine Dispute Resolution Center.”
Metrobank responds
Metrobank, however, wrote back saying “the bank is acting only as a garnishee and is obliged to comply with lawful orders of the court or any garnishing authority, which included but is not limited to notices for the garnishment of funds in the possession of the garnishee….”
“In said letter, we were made to understand that Holcim Philippines Inc. (HPI) was able to obtain a favorable decision in its application for appointment of emergency arbitrator filed with the Philippine Dispute Resolution Center, Inc. (PDRCI), docketed as PDRCI Case No. 95-2018. The said decision purportedly revoked the order dated Nov. 22, 2018 and the writ of attachment/garnishment issued as a consequence thereof accordingly lifted,” Metrobank wrote.
The bank stood firm on its decision. It said: “In view thereof, we regret to inform you that we cannot accede to your request to lift the Notice of Garnishment on the funds of HPI. Since the Bank is a mere nominal party, non-compliance on its part may merit automatic sanction or contempt unless we receive a corresponding order in the form of a restraining order or injunction relief.”
By the way, if Holcim did deposit to cover such a huge amount, it should have posted this on PSE website and should also have informed the SEC about the money.
The poser here is: Did Holcim source P1.878 billion from its retained earnings which, as of Sept. 30, 2018, amounted to P6.804 billion?
Due Diligencer’s take
The SEC has to protect the interest of the investing public, which is its mandated task. As a regulatory agency, it is their only recourse against those which have either their entire outstanding common shares or only some of them listed on PSE.
The interest of the public stockholders is at stake here. It is not the PSE, which happens to be listed, that anyone outside the majority has to run to for succor. It is only the SEC which can dispense justice should it run after violators of the agency’s full disclosure rule.
On the other hand, it is the responsibility of the public investors to know their right, which is much different from that of the majority, which happens to be the owners of the family business or businesses.
If this is so, how can the SEC go after family-owned and controlled businesses for violating the market’s full disclosure rule?
Sometimes, Due Diligencer is perceived to favor more the public than listed companies. This may be true because it is the public that make family businesses traded on PSE.
Without the public, the very rich families would be enriching the coffers of the Bureau of Internal Revenue by paying more taxes. If they are only being used to get these businesses’ shares listed on PSE, so be it.
What these family-owned businesses must do to impress more the public investors is for them to abide by the full disclosure rule.
How about fully disclosing what takes place inside the boardrooms? Just asking.
edperez@gmail.com
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