Exhibit 2(b)
The following description sets forth certain material terms and provisions of the securities of PLDT Inc. (“PLDT”, the “Company,” “we,” “us,” and “our”) that are registered under Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). This description also summarizes relevant provisions of Philippine law. The following summary does not purport to be complete and is subject to, and is qualified in its entirety by reference to, the applicable provisions of Philippine law and our Amended Articles of Incorporation (as amended on June 14, 2016 and approved by the Philippine Securities and Exchange Commission on July 29, 2016, the “Amended Articles of Incorporation”) and Amended By-Laws (as amended on August 30, 2016 and approved by the Philippine Securities and Exchange Commission on November 14, 2016, the “Amended By-Laws”), copies of which are incorporated by reference as exhibits to the Annual Report on 20-F of which this Exhibit is a part. We encourage you to read our Amended Articles of Incorporation and Amended By-Laws and the applicable provisions of Philippine law for additional information. Capitalized terms used and not otherwise defined in this Exhibit shall have the respective meanings ascribed to them in the Annual Report on 20-F of which this Exhibit is a part.
Description of rights of each class of securities registered under Section 12 of the Securities Exchange Act of 1934
ADSs each representing one share of PLDT’s common capital stock are listed and traded on the NYSE and, our common shares are registered under Section 12(b) of the Exchange Act. This exhibit contains a description of the rights of (i) holders of shares of our common capital stock and (ii) ADS holders. Shares of our common capital stock underlying the ADSs are held by JP Morgan Chase Bank, as depositary, and holders of ADSs will not be treated as holders of the shares of our common capital stock.
Preemptive Rights (Item 9.A.3 of Form 20-F)
Under Section 38 of the Revised Corporation Code of the Philippines (the “Corporation Code”) all stockholders of a stock corporation shall enjoy preemptive right to subscribe to all issues of shares of any class unless such right is denied in the articles of incorporation. Section 38 reads:
“All stockholders of a stock corporation shall enjoy preemptive right to subscribe to all issues or disposition of shares of any class, in proportion to their respective shareholdings, unless such right is denied by the articles of incorporation or an amendment thereto: Provided, That such preemptive right shall not extend to shares issued in compliance with laws requiring stock offerings or minimum stock ownership by the public; or to shares issued in good faith with the approval of the stockholders representing two-thirds (2/3) of the outstanding capital stock, in exchange for property needed for corporate purposes or in payment of a previously contracted debt.” (Underline supplied)
In relation to Section 38 of the Corporation Code, Sub-Paragraph 4 of Paragraph B of the Seventh Article of the Articles of Incorporation of PLDT provides the limitation on the exercise of preemptive right by our common stockholders. Sub-Paragraph 4 reads:
“The ownership of shares of Common Capital Stock shall not entitle the owner thereof to any right (other than such right, if any, as the Board of Directors in its discretion may from time to time grant) to subscribe for or to purchase or to have offered to him for subscription or purchase (a) any issue of shares of any class of preferred stock of the corporation, (b) any issue of up to 12,198,462 shares of common capital stock, for cash, to NTT Communications Corporation (or a subsidiary thereof) as a strategic investor in the Corporation, and (c) any issue of up to 1,289,745 shares of common capital stock pursuant to the Executive Stock Option Plan which was approved by the Board of Directors on April 27, 1999.” (Underline Supplied)
Type and Class of Securities (Item 9.A.5 of Form 20-F)
Our common capital stock has only one class. The number of shares of common capital stock that had been issued as of the last day of the fiscal year ended December 31, 2019 is provided on the cover of the annual report on Form 20-
F filed on April 23, 2020. Shares of our common capital stock are issued in registered form and are issued when registered in our register of members.
The shares of Common Capital Stock of PLDT are registered shares, and each share carries a par value amount of five Pesos (Php5.00). (Reference: First Paragraph of the Seventh Article of the Articles of Incorporation of PLDT)
Transfer of shares
Stock certificates shall be issued in the manner prescribed by law to each stockholder, showing the number of shares to which he is entitled; and said certificates, and the shares named therein shall be transferable only upon the books of the corporation by the shareholder named in the certificate, or his duly authorized attorney or representative. (Reference: Section 3, Article IV of the By-Laws of PLDT)
Restrictions on transfer of shares
Certain restrictions on the transfer of PLDT common shares are set forth in the third paragraph of the Seventh Article of the Articles of Incorporation, which is quoted below:
The Board of Directors of PLDT shall have full power and authority to authorize (whether by adoption of amendments to the By-laws of said corporation or of resolutions, the promulgation of rules or regulations or otherwise) the taking by the said corporation of all such action, and said corporation shall have full power and authority to take all such action, as the Board of Directors may deem necessary or appropriate to insure compliance by said corporation with any applicable provision of the Constitution of the Philippines or any other applicable law, treaty, rule or regulation relating to the ownership of securities of said corporation by citizens of the Philippines, aliens or other persons or group of persons which action may include but shall not be required to include or be limited to (i) postponing for such period of time as shall be approved by the Board of Directors; or prohibiting, the recordation on the books of said corporation of any proposed transfer of any securities; (ii) purchasing outstanding securities of said corporation in the open market, in private transactions or otherwise at such price or prices as shall be approved by the Board of Directors (iii) issuing and/or selling for such consideration as shall be approved by the Board of Directors (a) authorized but unissued securities of said corporation which have not been otherwise reserved or set aside for issuance or (b) authorized and previously issued securities of said corporation which have not been reacquired by, and deposited in the treasury of said corporation; (iv) identifying and/or classifying by means of legend or otherwise certificates representing any securities of said corporation as “domestic” or foreign”, or utilizing such other designation or legend as shall be approved by the Board of Directors; (v) maintaining separate transfer records for securities of said corporation held by citizens of the Philippines, aliens of such other persons or group of persons as shall be approved by the Board of Directors; (vi) requiring, as a condition to the recordation on the books of said corporation of any issuance or transfer or any of its securities, information satisfactory to the Board of Directors regarding the citizenship or residence of the person to whom it is proposed to issue or transfer its securities. (Underline Supplied)
Limitations or Qualifications (Item 9.A.6 of Form 20-F)
The rights of holders of shares of our common capital stock are limited by the rights of our preferred capital stock in ways described below.
Under Paragraph 6 of Section 6 of the Corporation Code, holders of preferred shares issued may be given preference in the distribution dividends and in the distribution of corporate assets in case of liquidation over holders of shares of common stock.
Distribution/payment to holders of PLDT’s shares of common stock due to voluntary/involuntary liquidation, dissolution distribution of assets or winding up
Holders of shares of PLDT’s common capital stock shall receive any distribution or payment by reason or on account of voluntary or involuntary liquidation, dissolution distribution of assets or winding up of PLDT, only after
the holders of shares of PLDT’s preferred capital stock have received out of the net assets of PLDT of the amount fixed by the resolution or resolutions of the Board of Directors on account of the aforementioned events, including all dividends (whether or not earned) accrued or in arears. (Reference: Sub-Paragraph B Paragraph 4 of the Seventh Article of the Articles of Incorporation of PLDT)
The amount that the holders of shares of our preferred capital stock will receive on account of the aforementioned events shall not be more than (i) 110% of the par value of their shares plus (ii) accrued and unpaid dividends, nor less than (i) the par value of the shares plus (ii) accrued and unpaid dividends. (Reference: Sub-Paragraph A.1.(e) of the Seventh Article of the Articles of Incorporation of PLDT)
Distribution of cash dividends to holders of our shares of common stock
Holders of shares of our common capital stock shall receive dividends (when, as and if declared by the Board of Directors), other than dividends payable in common capital stock, only after the holders of shares of our preferred capital stock shall have received their cash dividends for the same dividend period. (Reference: Sub-Paragraph 3, Paragraph A of the Seventh Articles of the Articles of Incorporation of PLDT)
Other Rights (Item 9.A.7 of Form 20-F)
Not applicable.
Rights of the Shares (Item 10.B.3 of Form 20-F)
The following describes material features of the shares of our common capital stock. In this section, unless the context otherwise requires, “shares” means shares of our common capital stock and “shareholders” means holders of shares of our common capital stock.
General
Shares of our common capital stock were first listed on the then Makati Stock Exchange on November 10, 1965. The latest listing of additional shares of our common capital stock was approved by the PSE on November 9, 2011, and issued on October 25, 2011.
Dividends
Shareholders are entitled to receive dividends as may be declared from time to time by our board of directors. Such entitlement is subject to the full payment of preferential dividends on our preferred capital stock. The Board of Directors may declare cash dividends by at least a majority of the quorum. Dividends may be distributed out of the unrestricted retained earnings of the Company. For purposes of determining the shareholders entitled to cash dividend, the record date should not be less than 10 trading days from the date of declaration. There is no time limit in claiming entitlement to cash dividend. Unclaimed cash dividends may be claimed at any time by shareholders through the Company’s transfer agent. For more information, please refer to the Company’s dividend policy at http://www.pldt.com/investor-relations/shareholder-information/dividend-info.
Voting rights
Shareholders have the right to vote for the election of directors and any and all matters voted upon by holders of our capital stock. Each shareholder has one vote in respect of each share of common capital stock held by him. A holder of shares of common stock may vote such number of shares recorded in his name on the stock and transfer books of the Company as of the record date as determined by the Board of Directors in accordance with relevant Philippine laws, for as many persons as there are directors to be elected or he may cumulate said shares and give one candidate as many votes as the number of directors to be elected multiplied by the number of his shares shall equal, or he may distribute them on the same principle among as many candidates as he shall see fit. Our directors are not elected at staggered intervals.
Rights to share in our profits
Except to dividend, when and as declared by the Board of Directors, shareholders do not have any other rights to share in our profits. (Reference: Seventh Article of the Articles of Incorporation of PLDT)
Rights to share in any surplus in the event of liquidation
In the event of voluntary or involuntary liquidation, dissolution, distribution of assets or winding up, shareholders are entitled to all the remaining assets of whatever kind available for distribution to shareholders ratably in proportion to the number of shares of the common capital stock held by them, after the distribution in full of the preferential amounts to be distributed to the holders of shares of preferred capital stock.
(i) Corporate dissolution
Section 139 of Corporation Code provides that, upon dissolution, we shall remain as a body corporate for three years after the effective date of dissolution. This is for the purpose of prosecuting and defending suits by or against us and enabling us to settle and close our affairs, dispose of and convey our property, and distribute our assets, but not for the purpose of continuing our business. During such three years, we are authorized and empowered to convey all of our property to trustees for the benefit of our stockholders, among other people. We may distribute assets to our stockholders after payment of all our debts and liabilities.
(ii) Voluntary dissolution where no creditors are affected
Section 134 of the Corporation Code provides that, if our dissolution does not prejudice the rights of any creditor having a claim against us, the dissolution may be affected by majority vote of the Board of Directors, and by a resolution adopted by the affirmative vote of our stockholders owning at least majority of the outstanding capital stock of a meeting to be held upon the call of the directors. Thereafter, the Board of Directors may by resolution determine when and how to distribute surplus assets of the Company, if any.
(iii) Voluntary dissolution where creditors are affected
Section 135 of the Corporation Code provides that where our dissolution may prejudice the rights of any creditor, a verified petition for dissolution shall be filed with the Philippines Securities and Exchange Commission (the “Commission”), verifying, amongst other things, that our dissolution was resolved upon by the affirmative vote of our stockholders representing at least two-thirds of the outstanding capital stock at a meeting of its stockholders called for that purpose. After the expiry of the period for objecting the petition, as fixed by the Commission, the Commission shall proceed to hear the petition and try any issue raised in the objections filed. If no such objection is sufficient, and the material allegations of the petition are true, it shall render judgment dissolving us and directing such disposition of its assets as justice requires.
(iv) Involuntary dissolution
Section 138 of the Corporation Code provides that we may be dissolved by the Commission motu propio or upon filing of a verified complaint by any interested party. If the ground for our dissolution is any of those specified under Item (e) of Section 138 where there is a finding by final judgment that PLDT (i) was created for the purpose of committing, concealing or aiding the commission of securities violations, smuggling, tax evasion, money laundering, or graft and corrupt practices; (ii) committed or aided in the commission of securities violations, smuggling, tax evasion, money laundering, or graft and corrupt practices, and its stockholders knew; or (iii) repeatedly and knowingly tolerated the commission of graft and corrupt practices or other fraudulent or illegal acts by its directors, trustees, officers, or employees, our assets, after payment of our liabilities, shall upon petition of the Commission be forfeited in favor of the Philippine national government. However, such forfeiture shall be without prejudice to, among other things, the rights of innocent stockholders and employees for services rendered. For involuntary dissolution on grounds other than that provided under Item (e) of Section 138, the liquidation or winding up of the affairs of the corporation may be undertaken by the corporation, through its board of directors.
Shares of PLDT’s common capital stock are not subject to any redemption provision.
Sinking fund provisions
Shares of PLDT Common Capital Stock are not subject to any sinking fund provision.
Liability to further capital calls by us
Shares of PLDT Common Capital Stock are not liable to answer calls for further capital.
Provision discriminating against any existing or prospective holder of common capital stock as a result of such shareholder owning a substantial number of shares
None.
Requirements for Amendments of Articles of Incorporation (Item 10.B.4 of Form 20-F)
The rights of holders of shares of our common stock may be altered or changed by the Board of Directors and the stockholders by amending the articles of incorporation pursuant to Section 15 of the Corporation Code. Section 15 provides that amendment to any provision in our Articles of Incorporation needs to be approved by (i) a majority of the Board of Directors and (ii) the vote or written assent of the stockholders representing at least two-third of the outstanding capital stock. Amendments to our Articles of Incorporation shall be indicated by underscoring the change or changes made, and a copy thereof duly certified under oath by our corporate secretary and a majority of our directors, with a statement that the amendments have been duly approved by the required vote of the stockholders shall be submitted to the Commission. The amendments shall take effect upon their approval by the Commission or from the date of filing with the Commission if not acted upon within six months from the date of filing for a cause not attributable to us.
Since the amendment would have the effect of changing the rights of the holders of shares of our common stock, any such holder has the right to dissent and demand payment of the fair value of his shares pursuant to Section 80 of the Corporation Code.
Limitations on the Rights to Own Our Shares (Item 10.B.6 of Form 20-F)
Except as to the foreign ownership limitation imposed upon the Company under Article XII, Section 11 of the Constitution of the Republic of the Philippines, whereby Filipino ownership of the Company should be at least 60 per centum of both the total outstanding shares of stock entitled to vote in the election of directors, and the total number of outstanding shares of stock, whether or not entitled to vote in the election of directors, and thus, foreign ownership should be limited to only 40 per centum of both the total outstanding voting stock, and total outstanding capital stock, our foreign and Filipino holders of common stock have the same rights, including as to voting, cash dividends.
With respect to the holders of ADRs, their voting rights can be found in the following links:
https://www.sec.gov/Archives/edgar/data/78150/000119380509001362/e605616_424b3-pldt.htm
Provisions Affecting Any Change of Control (Item 10.B.7 of Form 20-F)
There is no provision in our Amended Articles of Incorporation and Amended By-Laws that would have an effect of delaying, deferring or preventing a change in control of the Company.
Ownership Threshold (Item 10.B.8 of Form 20-F)
There is no provision in our Amended Articles of Incorporation and Amended By-Laws governing ownership threshold above which a shareholder must disclose.
Differences Between the Law of Different Jurisdictions (Item 10.B.9 of Form 20-F)
| Delaware | Philippines |
Number of Directors | Under Delaware law, a corporation must have at least one director and the number of directors shall be fixed by or in the manner provided in the bylaws, unless specified in the certificate of incorporation.
| The Corporation Code provides that for a stock corporation, the highest number of directors is 15. |
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Removal of Directors | Under Delaware law, directors may be removed from office, with or without cause, by a majority shareholder vote, except (a) in the case of a corporation whose board is classified, shareholders may effect such removal only for cause, unless otherwise provided in the certificate of incorporation, and (b) in the case of a corporation having cumulative voting, if less than the entire board is to be removed, no director may be removed without cause if the votes cast against his or her removal would be sufficient to elect him or her if then cumulatively voted at an election of the entire board of directors, or, if there are classes of directors, at an election of the class of directors of which he or she is a part.
| The Corporation Code provides that any director or trustee of a corporation may be removed from office by a vote of the stockholders holding or representing at least two-thirds (2/3) of the outstanding capital stock, or in a nonstock corporation, by a vote of at least two-thirds (2/3) of the members entitled to vote. Provided that such removal shall take place either at a regular meeting of the corporation or at a special meeting called for the purpose, and in either case, after previous notice to stockholders or members of the corporation of the intention to propose such removal at the meeting.
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Vacancies on the Board of Directors | Under Delaware law, vacancies and newly created directorships may be filled by a majority of the directors then in office (even though less than a quorum) or by a sole remaining director unless otherwise provided in the certificate of incorporation or bylaws of the corporation. | The Corporation Code provides that any vacancy occurring in the board of directors or trustees other than by removal or by expiration of term, may be filled by the vote of at least a majority of the remaining directors or trustees, if still constituting a quorum; otherwise, said vacancies must be filled by the stockholders or members in a regular or special meeting called for that purpose. |
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Annual General Meeting | Under Delaware law, the annual meeting of shareholders shall be held at such place, on such date and at such time as may be designated from time to time by the board of directors or as provided in the certificate of incorporation or by the bylaws.
| The Corporation Code provides that regular meetings of stockholders or members shall be held annually on a date fixed in the bylaws, or if not so fixed, on any date after April 15 of every year. |
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General Meeting | Under Delaware law, special meetings of the shareholders may be called by the board of directors or by such person or persons as may be authorized by the certificate of incorporation or by the bylaws. | The Corporation Code provides that special meetings of stockholders or members shall be held at any time deemed necessary or as provided in the by-laws.
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Notice of General Meetings | Under Delaware law, written notice of any meeting of the shareholders must be given to each shareholder entitled to vote at the meeting not less than ten nor more than 60 days before the date of the meeting, and shall specify the place, date, hour and purpose or purposes of the meeting.
| The Corporation Code provides that written notice shall be sent at least twenty-one (21) days prior to the annual general meeting, or as provided in in the by-laws, law or regulation. On the other hand, written notice shall be sent at least one week prior to the special meeting, or as provided in the bylaws, law or regulation
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Quorum | The certificate of incorporation or bylaws may specify the number of shares, the holders of which shall be present or represented by proxy at any meeting in order to constitute a quorum, but in no event shall a quorum consist of less than 1/3 of the shares entitled to vote at the meeting. In the absence of such specification in the certificate of incorporation or bylaws, a majority of the shares entitled to vote, present in person or represented by proxy, shall constitute a quorum at a meeting of shareholders.
| The Corporation Code provides that a quorum shall consist of stockholders representing a majority of the outstanding capital stock or a majority of the members in case of non-stock corporation, unless otherwise provided in the Corporation Code, or in the bylaws.
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Proxy | Under Delaware law, at any meeting of shareholders, a shareholder may designate another person to act for such shareholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period.
| The Corporation Code provides that stockholders and members may vote in person or by proxy in all meetings of stockholders or members. A proxy given by a stockholder shall be valid and effective only for the particular annual meeting and any adjournments or postponements thereof, except if the stockholder shall have indicated in the proxy form that it is valid and effective for use in other meetings of stockholders of the corporation. However, in no case shall any proxy given by a stockholder be valid and effective for a period longer than five years.
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Issue of New Shares | Under Delaware law, if the company’s certificate of incorporation so provides, the directors have the power to authorize additional stock. The directors may authorize capital stock to be issued for consideration consisting of cash, any tangible or intangible property or any benefit to the company or any combination thereof.
| The Corporation Code provides that no corporation shall increase or decrease its capital stock or incur, create or increase any bonded indebtedness unless approved by a majority vote of the board of directors and by two-thirds (2/3) of the outstanding capital stock at a stockholder’s meeting called for the purpose.
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Pre-emptive Rights | Under Delaware law, unless otherwise provided in a corporation’s certificate of incorporation, a stockholder does not, by operation of law, possess pre-emptive rights to subscribe to additional issuances of the corporation’s stock.
| The Corporation Code provides that all stockholders of a stock corporation shall enjoy pre-emptive right to subscribe to all issues or disposition of shares of any class, in proportion to their respective shareholdings, unless such right is denied by the articles of incorporation. |
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Changes in Our Capital (Item 10.B.10 of Form 20-F)
Our Amended Articles of Incorporation and Amended By-Laws do not contain condition on changes in the capital which is more stringent than is required by Philippine law.
Description of Debt Securities, Warrants and Rights and Other Securities (Items 12.A, 12.B and 12.C of Form 20-F)
American Depositary Shares (Items 12.D.1 and 12.D.2 of Form 20-F)
On October 19, 1994, our ADR facility was established, pursuant to which Citibank, N.A., as the depositary, issued ADRs evidencing ADSs with each ADS representing one share in our common capital stock with a par value of Php5.00 per share. Effective February 10, 2003, PLDT appointed JP Morgan Chase Bank as successor depositary of PLDT’s ADR facility. The address of JP Morgan Chase Bank’s principal executive office is 4 New York Plaza, 13th Floor, New York, New York 10004. The deposit agreement dated October 14, 1994, as amended on February 10, 2002, can be located at: https://www.sec.gov/Archives/edgar/data/78150/000119380509001362/e605616_424b3-pldt.htm.