organzatons. It s aso the most mportant n economc deveopment. INTRODUCTION Soe propretorshp - One man form of busness entty, personay answers a abtes, but en|oys a the profts wth the excuson of others - Lmted sharehoders responsbty - Pad subscrpton n fu, you are no onger abe Partnershp - Based on mutua trust and confdence |ont venture - one tme groupng of persons whether they be natura or |urdca - does not enta contnuty because after the undertakng s competed t s aready the end - partcuar partnershp and |ont venture woud be smar, but there s aready a decson of the Supreme Court decarng them as dfferent - when they do not regster, t does not exst - Foregn corporatons enters nto an agreement wth a domestc corporaton, t must be regstered. Generay they do not need to be regstered. Corporatons - They may enter nto |ont venture, but generay they cannot enter nto a partnershp, but there are exceptons aowed by the SEC: the 3 exceptons must go hand n hand 1. The artces of ncorporaton expressy authorzed the corporaton to enter nto contracts of partnershp; 2. The agreement or artces of partnershp must provde that a the partners w manage the partnershp; and 3. The artces of partnershp must stpuate that a the partners are and sha be |onty and severay abe for a obgatons of the partnershp. DEFINITION AND ATTRIBUTES 4 attrbutes of a corporaton 1. Artfca beng 2. Created by operaton of aw 3. Rght of successon 4. Powers, attrbutes and propertes expressy authorzed by aw or ncdent to ts exstence. Doctrne of mted capacty - Ony such powers as are expressy granted to t by aw and by ts artces of ncorporaton ncudng others whch are ncdenta to such conferred powers, those reasonaby necessary to accompsh ts purpose and those whch may be ncdenta to ts exstence - Can do thngs as the aw asks or aows t to do - If t does anythng beyond, t sha be consdered as ULTRA VIRES Genera rue: Mora damages cannot be granted to corporatons Excepton: Fpnas Broadcastng Network Inc. vs. Ago Med - In cases of sander, be and other forms of defamaton (shoud not quafy because the code does not quafy whether natura or |urdca) Art. 2219 of the cv code: Art. 2219. Mora damages may be recovered n the foowng and anaogous cases: (1) A crmna offense resutng n physca n|ures; (2) Ouas-dects causng physca n|ures; (3) Seducton, abducton, rape, or other ascvous acts; (4) Adutery or concubnage; (5) Iega or arbtrary detenton or arrest; (6) Iega search; (7) Lbe, sander or any other form of defamaton; (8) Macous prosecuton; (9) Acts mentoned n Artce 309; (10) Acts and actons referred to n Artces 21, 26, 27, 28, 29, 30, 32, 34, and 35. The parents of the femae seduced, abducted, raped, or abused, referred to n No. 3 of ths artce, may aso recover mora damages. The spouse, descendants, ascendants, and brothers and ssters may brng the acton mentoned n No. 9 of ths artce, n the order named. Advantages (SEE LADIA BOOK) - No. 2 may aso be a dsadvantage - No. 5 may aso be a dsadvantage A corporaton s a person, therefore protected by the due process cause and equa protecton cause of the Consttuton CLASSIFICATION OF CORPORATIONS Secton 3 Stock and non-stock - Importance of knowng, determnng what provsons of the code or the aw may be appcabe Section 3. Casses of corporatons. - Corporatons formed or organzed under ths Code may be stock or non-stock corporatons. Corporatons whch have capta stock dvded nto shares and are authorzed to dstrbute to the hoders of such shares dvdends or aotments of the surpus profts on the bass of the shares hed are stock corporatons. A other corporatons are non-stock corporatons. (3a) Non-stock- tte 10 Stock- secton 51 Stockhoders must generay cast ther votes n the meetng; secton 4 governed prmary by the aw creatng them Section 4. Corporatons created by speca aws or charters. - Corporatons created by speca aws or charters sha be governed prmary by the provsons of the speca aw or charter creatng them or appcabe to them, suppemented by the provsons of ths Code, nsofar as they are appcabe. (n) Secton 3 - The two requstes must aways concur 1. That they have a capta stock dvded nto shares; and, 2. That they are authorzed to dstrbute dvdends or aotments as surpus profts to ts stockhoders on the bass of the shares hed by each of them. Secton 4 - Created by a speca aw, they have ther own character - They are not mmune from sut uness provded by the aw of ther creaton - Prmary governed by the aw creatng them - Ther subsdares are entrey dfferent or ndependent from that of the other Cose corporaton - There s no exempton t s absoute Pubc corporaton - Potca or governmenta purposes - Those formed or organzed for the government or a porton of the State or any of ts potca subdvson and whch have for ther purpose the genera good and wefare Prvate Corporaton - Immedate beneft, am or advantage of prvate ndvduas - Those formed for some prvate purpose, beneft, am or end - Dstncton: pubc for governmenta purpose Corporaton Soe - Exempton to the rue because t s composed ony of one person - An ncorporator may aso be a |urdca person Cose corporaton - There s excusvty of shares of stock - Secton 96-105 - Restrctons to transfer shares - Ony those ndcated can own shares - Artce must provde that there w be no pubc offerng Open corporaton - openy admt nvestors - exampe: stock exchange Domestc/ Foregn Test - Incorporaton test - If ncorporated under the aws of the Phppnes t s a domestc corporaton ME Gray vs. CA - Parent or Hodng/ subsdares and affates - Affates- no ma|orty vote SMC 12% CBP HERSHEY CBP 12% 12% Affate s sub|ect to common contro by the 12 % owners De |ure - cannot be attached by the state even n a quo warranto proceedng De facto - exsts by vrtue of coorabe compance - Attached drecty ony by the state n a quo warranto proceedng Corporaton by estoppe - So defectvey formed, but st consdered corporaton, but ony n reaton to those who cannot deny ther exstence secton 20 and 21 FORMATION AND ORGANIATION
Purpose cause - Defnng the scope of authorty of the corporate enterprse pr undertakng. Both confrmed and mted
4 mtatons of purpose cause
1. Lawfu 2. Specfc or stated concsey 3. More than one, the prmary and secondary must be specfed 4. Lawfuy combned - Provson that states, cannot be ssued ess than par, excepton s treasury shares because t can be ssued ess than par A corporaton commences ony upon ssuance of the certfcate, pror thereto t has no beng and cannot transact busness. Promoters cannot act for a pro|ected corporaton Metro Mana - pad up capta requrement s 10 M Non- stock- mere menton of the operatng capta Menton the authorzed capta Restrctons - Mandatory n cose - Not mandatory n ordnary Non-stock - If vaue s not more than 100,000 A corporaton cannot use any other name uness t has been amended Secton 19 - If confusngy smar t w not be aowed to be regstered - Verfcaton sp from the records offcer Section 1!. Commencement of corporate exstence. - A prvate corporaton formed or organzed under ths Code commences to have corporate exstence and |urdca personaty and s deemed ncorporated from the date the Securtes and Exchange Commsson ssues a certfcate of ncorporaton under ts offca sea; and thereupon the ncorporators, stockhoders/members and ther successors sha consttute a body potc and corporate under the name stated n the artces of ncorporaton for the perod of tme mentoned theren, uness sad perod s extended or the corporaton s sooner dssoved n accordance wth aw. (n) - Words corporaton or nc. ether n fu or abbrevated form must be ncuded Section 1". Corporate name. - No corporate name may be aowed by the Securtes and Exchange Commsson f the proposed name s dentca or deceptvey or confusngy smar to that of any exstng corporaton or to any other name aready protected by aw or s patenty deceptve, confusng or contrary to exstng aws. When a change n the corporate name s approved, the Commsson sha ssue an amended certfcate of ncorporaton under the amended name. (n) Doctrne of secondary meanng - A word or phrase orgnay ncapabe of excusve appropraton |usuay generc| wth reference to an artce n the market, because of geographcay or otherwse descrptve, mght nevertheess have been used so ong and so excusvey by one producer wth reference to hs artce that, n that trade and to that branch of the purchasng pubc, the word or phrase has become to mean that the artce was hs product. Secton 18 - Lyceum of the Phppnes case, the addtona geographca name does not make t confusngy smar - actua confuson s not necessary - Phps case "t s enough that there s probabe confuson" 2 requstes must be proven - that the companant corporaton acqured a pror rght over the use of such corporate name - dentca, deceptvey or confusngy, patenty deceptve prncpa offce - statement of prncpa offce s requred - cty and muncpaty not ony provnce must be specfed - prncpa offce NOT operatons offce - necessary because t w estabsh the resdence of corporatons - venue of actons for or aganst the corporatons - venue of meetngs - secton 51 meetngs may ony be wthn the boundares of the cty where the prncpa offce - non-stock may be hed anywhere n the Phppnes, f provded n ts by-aws - where summons may be served - regstraton of chatte mortgage must be regstered n the regster of deeds where the prncpa offce s ocated Caveca Rado System vs. Anton - acton not upon a wrtten contract - cty where the defendant resdes term of exstence - corporate term requred - determnng what pont n tme the |urdca personaty w cease to exst - enter nto contract ony when t has |urdca personaty - once t ceases to exst, t no onger has personaty - exst for another 3 years ony for purposes of qudaton - Dssouton- t s automatc When shoud extenson be made? - Genera rue: Not earer than 5 years - Excepton: uness there are |ustfabe reasons May t be extended after expraton? - Ahambra cgar vs. SEC once t ceases to exst t has no vested potc, exst ony for a perod of 3 years ony for qudaton and for that purpose ony Artce 5 How many ncorporators shoud there be? - 5-15 May a corporaton be an ncorporator? - Genera rue: ony natura persons - Excepton: cooperatves and corporaton prmary organzed to hod equtes n rura banks How about mnors? - NO, because they must be of ega age May a corporaton organzed by ncorporators consstng soey of foregners - Yes, there s no natonaty requrement ony resdence, as ong as ma|orty are resdents of the Ph Defne ncorporators <sec.5> - Those person mentoned n the artces as orgnay formng the corporaton and who are sgnatores of the artces of ncorporaton. - Must be sgnatores to be ncorporators Section #. Corporators and ncorporators, stockhoders and members. - Corporators are those who compose a corporaton, whether as stockhoders or as members. Incorporators are those stockhoders or members mentoned n the artces of ncorporaton as orgnay formng and composng the corporaton and who are sgnatores thereof. Corporators n a stock corporaton are caed stockhoders or sharehoders. Corporators n a non-stock corporaton are caed members. (4a) Defne corporators <sec.5> - A persons who compose the corporaton at any gven tme and need not be among those who execute the artces of ncorporaton at the start of ts formaton and organzaton. - Orgnay or subsequenty - Secton 5 provdes: Corporators n a stock corporaton are caed stockhoders or sharehoders. Corporators n a non-stock corporaton are caed members. (4a) May a corporaton be a corporator? - YES. There s nothng to prevent a corporaton from beng a stockhoder Incorporator must subscrbe to 1 share There are those that are excusvey reserved to Fpnos An ncorporator maybe a corporator as ong as he s a stockhoder secton 6 Section $. Cassfcaton of shares. - The shares of stock of stock corporatons may be dvded nto casses or seres of shares, or both, any of whch casses or seres of shares may have such rghts, prveges or restrctons as may be stated n the artces of ncorporaton: Provded, That no share may be deprved of votng rghts except those cassfed and ssued as "preferred" or "redeemabe" shares, uness otherwse provded n ths Code: Provded, further, That there sha aways be a cass or seres of shares whch have compete votng rghts. Any or a of the shares or seres of shares may have a par vaue or have no par vaue as may be provded for n the artces of ncorporaton: Provded, however, That banks, trust companes, nsurance companes, pubc uttes, and budng and oan assocatons sha not be permtted to ssue no-par vaue shares of stock. Preferred shares of stock ssued by any corporaton may be gven preference n the dstrbuton of the assets of the corporaton n case of qudaton and n the dstrbuton of dvdends, or such other preferences as may be stated n the artces of ncorporaton whch are not voatve of the provsons of ths Code: Provded, That preferred shares of stock may be ssued ony wth a stated par vaue. The board of drectors, where authorzed n the artces of ncorporaton, may fx the terms and condtons of preferred shares of stock or any seres thereof: Provded, That such terms and condtons sha be effectve upon the fng of a certfcate thereof wth the Securtes and Exchange Commsson. Shares of capta stock ssued wthout par vaue sha be deemed fuy pad and non-assessabe and the hoder of such shares sha not be abe to the corporaton or to ts credtors n respect thereto: Provded; That shares wthout par vaue may not be ssued for a consderaton ess than the vaue of fve (P5.00) pesos per share: Provded, further, That the entre consderaton receved by the corporaton for ts no-par vaue shares sha be treated as capta and sha not be avaabe for dstrbuton as dvdends. A corporaton may, furthermore, cassfy ts shares for the purpose of nsurng compance wth consttutona or ega requrements. Except as otherwse provded n the artces of ncorporaton and stated n the certfcate of stock, each share sha be equa n a respects to every other share. Where the artces of ncorporaton provde for non-votng shares n the cases aowed by ths Code, the hoders of such shares sha nevertheess be entted to vote on the foowng matters: 1. Amendment of the artces of ncorporaton; 2. Adopton and amendment of by-aws; 3. Sae, ease, exchange, mortgage, pedge or other dsposton of a or substantay a of the corporate property; 4. Incurrng, creatng or ncreasng bonded ndebtedness; 5. Increase or decrease of capta stock; 6. Merger or consodaton of the corporaton wth another corporaton or other corporatons; 7. Investment of corporate funds n another corporaton or busness n accordance wth ths Code; and 8. Dssouton of the corporaton. Except as provded n the mmedatey precedng paragraph, the vote necessary to approve a partcuar corporate act as provded n ths Code sha be deemed to refer ony to stocks wth votng rghts. (5a) How many drectors shoud there be? - Genera rue: Not ess than 5 not more than 15 - Exceptons: 1. Educatona corporatons regstered as non stock corporaton whose number of trustees, though not ess than fve and not more than |15| shoud be dvsbe by fve |5|, meanng they must have ether fve, ten, or ffteen trustees and no other; 2. In cose corporatons where a the stockhoders are consdered as members of the board of drectors thereby effectvey aowng twenty members n the board. 3. The by-aws of a corporaton may provde for addtona quafcatons and dsquafcatons of ts members of the board of drectors or trustees. However t may not do away wth the mnmum dsquafcatons ay down by the Code. Ouafcatons of the governng board - Requres mere resdency <sec. 23> Section 23. The board of drectors or trustees. - Uness otherwse provded n ths Code, the corporate powers of a corporatons formed under ths Code sha be exercsed, a busness conducted and a property of such corporatons controed and hed by the board of drectors or trustees to be eected from among the hoders of stocks, or where there s no stock, from among the members of the corporaton, who sha hod offce for one (1) year unt ther successors are eected and quafed. (28a) Every drector must own at east one (1) share of the capta stock of the corporaton of whch he s a drector, whch share sha stand n hs name on the books of the corporaton. Any drector who ceases to be the owner of at east one (1) share of the capta stock of the corporaton of whch he s a drector sha thereby cease to be a drector. Trustees of non-stock corporatons must be members thereof. A ma|orty of the drectors or trustees of a corporatons organzed under ths Code must be resdents of the Phppnes. May a domestc corporaton have a governng board consstng soey of foregners? - YES, secton 23 ma|orty of them must be resdents of the Phppnes, no natonaty requrement Ant-dummy act <sec.2-A> - If the busness undertakng or actvty s ony partay natonazed, aens can be eected as such drectors, |uness the aw provdes otherwse| but ther number sha ony be n proporton to ther equty or partcpaton n the capta stock of the corporaton. Dsquafcatons <sec.27> - The dsquafcatons provded for s absoute and may not be done away wth. Corporate by-aws may, however, provde for addtona quafcatons and dsquafcatons. Section 2%. Dsquafcaton of drectors, trustees or offcers. - No person convcted by fna |udgment of an offense punshabe by mprsonment for a perod exceedng sx (6) years, or a voaton of ths Code commtted wthn fve (5) years pror to the date of hs eecton or appontment, sha quafy as a drector, trustee or offcer of any corporaton. (n) Secton 27 and 23 mnmum dsquafcatons and quafcatons Lee vs. CA - By aws may provde for addtona Govt vs. E hogar Fpno, Gokongwe vs. SMC Capta structure Foundaton- mnmum pad-up capta 3M Authorzed capta 1 M No. of shares 1M shares par vaue 1.00 Amount of shares subscrbed 50 K A 50 K B C 250K D E PAID UP =62,500 Corporaton cannot exceed more than 1 M t s the maxmum amount t cannot ssue more uness amended Maxmum shares t can ssue s 1M shares uness amended How much shares shoud be subscrbed? - Must be at east 25% of the authorzed capta stock Pad- up must be at east 25%-mnmum Secton 30 - Tota subscrpton compance wth mnmum 25% tota - Any combnaton woud compy wth the mnmum requred by secton 30 Section 3&. Compensaton of drectors. - In the absence of any provson n the by-aws fxng ther compensaton, the drectors sha not receve any compensaton, as such drectors, except for reasonabe per dems: Provded, however, That any such compensaton other than per dems may be granted to drectors by the vote of the stockhoders representng at east a ma|orty of the outstandng capta stock at a reguar or speca stockhoders' meetng. In no case sha the tota yeary compensaton of drectors, as such drectors, exceed ten (10%) percent of the net ncome before ncome tax of the corporaton durng the precedng year. (n) Mnmum for a domestc corporaton? - In no case sha the pad- up capta be ess than 5k Is there a mnmum authorzed capta mposed by the code? - If there s mnmum pad-up ogcay there shoud aso be a mnmum capta =5000 Mnmum pad-up capta for a fnancng company metro mana 10 M f ocated n MM Shares of stock Purpose of cassfcaton - To specfy and defne the rghts and prveges of the stockhoders; - For reguaton and contro of the ssuance of sae of corporate securtes for the protecton of purchasers and stockhoders. - As a management contro devce. - To compy wth statutory requrements partcuary those whch provde for certan mtatons on foregn ownershp and shares ke overseas empoyment agences requrng to own at east 75% of the shares of stock thereof. - To better nsure return on nvestment whch can be affected through the ssuance of redeemabe shares or preferred shares, .e., grantng the hoders thereof, preference as to dvdends and/or dstrbuton of assets n case of qudaton; and, - For fexbty n prce, partcuary, no par shares may be ssued or sod from tme to tme at dfferent prce dependng on the net worth of the company snce they do not purport to represent an actua of fxed vaue. Secton 6 - Each sha be equa n a respects to every other share Preferred shares - Specfc preference - Dvdends or durng qudaton No par - Can se t wth the network of the corporaton Dstncton between the subscrbed and outstandng stocks? - Secton 137 Section 13%. Outstandng capta stock defned. - The term "outstandng capta stock", as used n ths Code, means the tota shares of stock ssued under bndng subscrpton agreements to subscrbers or stockhoders, whether or not fuy or partay pad, except treasury shares. (n) - Votng and dvdend rghts, t refers to the outstandng capta stocks - Ony outstandng stocks are aowed to vote and receve dvdends - Actuay the same Treasury shares - are aso subscrbed shares - whe they reman n the treasury, no votng and dvdend rghts - may be ressued by the corporaton - once ressued they become outstandng stocks agan common shares - carry the rght to vote preferred shares - grants the hoder preference - preference as to dvdends - preference as to dstrbuton of the remanng assets upon dssouton or both - YOU MUST STATE THE PREFERENCE BECAUSE IF NOT THEY ARE PRESUMED TO BE EOUAL - It may ncude such other preferences not nconsstent wth the Code. Ths s so because Secton 6 of the sad aw aows a stock corporaton to ssue preferred shares sub|ect ony to the mtatons mposed theren whch are: a. They can be ssued ony wth sated par vaue; and, b. The preferences must be stated n the artces of ncorporaton and n the certfcate of stock, otherwse, each share sha be, n a respect, equa to every other share. Partcpatng - Must be stated because the presumpton s that t s partcpatng Cumuatve - Irrespectve of whether or not they where earned Preferred - May be dened - Uness dened they are st entted What f hnd -decare kaht na may dvdends rghts for the prevous years? May they be dened dvdend rghts because they are non hoders of non- cumuatve? NOTE: YOU CANNOT COMPEL THE CORPORATION TO DECLARE DIVIDENDS UNLESS IT EXCEEDS 100 % PAID UP CAPITAL SEC. 43 Section 43. Power to decare dvdends. - The board of drectors of a stock corporaton may decare dvdends out of the unrestrcted retaned earnngs whch sha be payabe n cash, n property, or n stock to a stockhoders on the bass of outstandng stock hed by them: Provded, That any cash dvdends due on denquent stock sha frst be apped to the unpad baance on the subscrpton pus costs and expenses, whe stock dvdends sha be wthhed from the denquent stockhoder unt hs unpad subscrpton s fuy pad: Provded, further, That no stock dvdend sha be ssued wthout the approva of stockhoders representng not ess than two-thrds (2/3) of the outstandng capta stock at a reguar or speca meetng duy caed for the purpose. (16a) Stock corporatons are prohbted from retanng surpus profts n excess of one hundred (100%) percent of ther pad-n capta stock, except: (1) when |ustfed by defnte corporate expanson pro|ects or programs approved by the board of drectors; or (2) when the corporaton s prohbted under any oan agreement wth any fnanca nsttuton or credtor, whether oca or foregn, from decarng dvdends wthout ts/hs consent, and such consent has not yet been secured; or (3) when t can be ceary shown that such retenton s necessary under speca crcumstances obtanng n the corporaton, such as when there s need for speca reserve for probabe contngences. (n) - It depends because there are three types of non-cumuatve preferred shares - Dscretonary dvdend type - Mandatory f earned - Earned cumuatve or dvdend credt type Compare cumuatve share from non- cumuatve, earned cumuatve or dvdend credt type - Cumuatve share -whether or not earned - Non-cumuatve earned cumuatve or dvdend credt type- ony f earned Par - stated par vaue; sha not be ssued ess than par No par - wthout stated par vaue - once fuy pad no onger abe Corporatons cannot use ts captas n decarng dvdends; not a can ssue no par vaue secton 6 Votng - entted to vote at any moton brought up n wrtng Non-votng - not entted to vote What types of shares may be dened of the rght to vote? - Preferred and redeemabe shares Is t correct to state that common shares can never be dened the rght to vote? - Ony preferred and redeemabe shares are dened uness provded n ths code - PWEDENG MA-DENY YUNG COMMON SHARES, KASI YUNG FOUNDERS SHARES MERON SILANG EXCLUSIVE RIGHTS NA SILA LANG ANG MERON, SO PWEDE SILANG BUMOTO WITH REGARDS TO SOMETHING NA HINDI NA SAKOP NG COMMON SHARE RIGHTS - Exampe: founders shares- may be gven certan rghts and prveges - Even common shares may be dened the rght to vote of founders shares ssued <sec.7> Section %. Founders' shares. - Founders' shares cassfed as such n the artces of ncorporaton may be gven certan rghts and prveges not en|oyed by the owners of other stocks, provded that where the excusve rght to vote and be voted for n the eecton of drectors s granted, t must be for a mted perod not to exceed fve (5) years sub|ect to the approva of the Securtes and Exchange Commsson. The fve-year perod sha commence from the date of the aforesad approva by the Securtes and Exchange Commsson. (n) Do you ncude non-votng shares n passng a vad corporate act? - Even non-votng shares are entted to vote under secton 6 Redeemabe shares - Dscretonary/optona - Obgatory or mandatory Generay a corporaton can reacqure ts own shares f t has unrestrcted retaned earnngs Excepton: redeemabe shares may be reacqured rrespectve of retaned earnngs Treasury shares - They are treasury whe n the treasury account of the corporaton May they be ressued by the corporaton? - YES If they are ressued w they be dened the rght to vote? - Once ressued they sha become outstandng stocks agan and purchasers sha be entted to a the rghts and prveges as the other hoders have Secton 57 treasury shares have no votng and dvdend rghts. Why not? Section #%. Votng rght for treasury shares. - Treasury shares sha have no votng rght as ong as such shares reman n the Treasury. (n) - Answer: commssoner vs. mannng page 62 frst par. "Athough authortes may dffer on the exact ega and accountng status of so-caed treasury shares, they are more or ess n agreement that treasury shares are stocks ssued and fuy pad for and reacqured by the corporaton ether by purchase, donaton, forfeture or other means. Treasury shares are therefore ssued shares but beng n the treasury they do not have the status of outstandng shares. Consequenty, athough a treasury share, not havng been retred by the corporaton re-acqurng t, may be re-ssued or sod agan, such shares, as ong as t s hed by the corporaton as a treasury share, partcpates nether n dvdends, because dvdends cannot be decared by the corporaton to tsef, nor n meetngs of the corporaton as votng stock, for otherwse equa dstrbuton of votng powers among stockhoders w be effectvey ost and the drectors w be abe to perpetrate ther contro of the corporaton, though t st represents a pad for nterest n the property of the corporaton. The foregong essenta features of a treasury stocks are ackng n the questoned shares. In ths case, and under the terms of the trust agreement, the shares of stock of Reese partcpated n dvdends whch the trustee receved and the sad shares were voted upon by the trustee n a corporaton meetngs. They were not, therefore, treasury shares." When the aw speaks of outstandng rghts t does not ncude treasury shares Treasury shares may be ressued - They are actuay assets of the corporaton - Once re-ssued they become outstandng stocks agan - The corporaton may cance them; n effect there w be a reducton n the outstandng capta stocks - The code does not requre ordnary corporatons to provde for restrctons, but t does not kewse prohbt restrctons - Exampe: rght of frst refusa - The restrcton must be contaned n the artces of ncorporaton - If provded n by-aws but not n the artces of ncorporaton then t w not be bndng - Restrctons and preferences are mandatory requred n cose corporatons - If t does not provde restrctons t s not a cose corporaton - Specfed persons- cose corporatons - If not one of those specfed you are not ncuded because there s excusvty n cose corporatons - Shoud aso be n the by-aws not ony n the artces of ncorporaton No transfer cause Executon cause Acknowedgment Treasurer affdavt part of the artces of ncorporaton Secton 23-27 mnmum quafcatons, but there may be addtona Grounds for dsapprova - Ony substanta and not strct s requred May the SEC refuse or re|ect regstraton? - <Secton 17> Section 1%. Grounds when artces of ncorporaton or amendment may be re|ected or dsapproved. - The Securtes and Exchange Commsson may re|ect the artces of ncorporaton or dsapprove any amendment thereto f the same s not n compance wth the requrements of ths Code: Provded, That the Commsson sha gve the ncorporators a reasonabe tme wthn whch to correct or modfy the ob|ectonabe portons of the artces or amendment. The foowng are grounds for such re|ecton or dsapprova: 1. That the artces of ncorporaton or any amendment thereto s not substantay n accordance wth the form prescrbed heren; 2. That the purpose or purposes of the corporaton are patenty unconsttutona, ega, mmora, or contrary to government rues and reguatons; 3. That the Treasurer's Affdavt concernng the amount of capta stock subscrbed and/or pad s fase; 4. That the percentage of ownershp of the capta stock to be owned by ctzens of the Phppnes has not been comped wth as requred by exstng aws or the Consttuton. No artces of ncorporaton or amendment to artces of ncorporaton of banks, bankng and quas- bankng nsttutons, budng and oan assocatons, trust companes and other fnanca ntermedares, nsurance companes, pubc uttes, educatona nsttutons, and other corporatons governed by speca aws sha be accepted or approved by the Commsson uness accompaned by a favorabe recommendaton of the approprate government agency to the effect that such artces or amendment s n accordance wth aw. (n) - But the grounds n secton 17 are not excusve When w the corporaton commence to exst? - Secton 19 Section 1!. Commencement of corporate exstence. - A prvate corporaton formed or organzed under ths Code commences to have corporate exstence and |urdca personaty and s deemed ncorporated from the date the Securtes and Exchange Commsson ssues a certfcate of ncorporaton under ts offca sea; and thereupon the ncorporators, stockhoders/members and ther successors sha consttute a body potc and corporate under the name stated n the artces of ncorporaton for the perod of tme mentoned theren, uness sad perod s extended or the corporaton s sooner dssoved n accordance wth aw. (n) A corporaton de |ure can come nto exstence ony upon the ssuance of the certfcate of regstraton by the SEC? TRUE OR FALSE? - TRUE - EXCEPTION: CORPORATION SOLE <sec. 112> Section 112. Submsson of the artces of ncorporaton. - The artces of ncorporaton must be verfed, before fng, by affdavt or affrmaton of the chef archbshop, bshop, prest, mnster, rabb or presdng eder, as the case may be, and accompaned by a copy of the commsson, certfcate of eecton or etter of appontment of such chef archbshop, bshop, prest, mnster, rabb or presdng eder, duy certfed to be correct by any notary pubc. From and after the fng wth the Securtes and Exchange Commsson of the sad artces of ncorporaton, verfed by affdavt or affrmaton, and accompaned by the documents mentoned n the precedng paragraph, such chef archbshop, bshop, prest, mnster, rabb or presdng eder sha become a corporaton soe and a temporates, estate and propertes of the regous denomnaton, sect or church theretofore admnstered or managed by hm as such chef archbshop, bshop, prest, mnster, rabb or presdng eder sha be hed n trust by hm as a corporaton soe, for the use, purpose, behaf and soe beneft of hs regous denomnaton, sect or church, ncudng hosptas, schoos, coeges, orphan asyums, parsonages and cemeteres thereof. (n) - CORPORATION SOLE- upon fng of the verfed artces of ncorporaton, once fed t s vested wth a |udca capacty Genera rue secton 19 - Vested wth |udca capacty upon ssuance of the certfcate by the SEC o However t s not accurate accordng to atty. Lada because there are those that can ssue for exampe cooperatves- BUREAU OF COOPERATI'ES whch regster, home nsurance guaranty corporaton- (OME OWNERS Cagayan Fshng vs. Sandka - Corporatons are created by aw - Commence to exst upon ssuance by the CONCERNED government corporaton or agency - Pror there to t has no beng - The transfer of the property was not vad, t kewse dd not have the rght to transfer De |ure - Strct or substanta compance De facto - 4 requstes must go hand n hand take out anyone of them there can be no de facto corporaton 1. There s a vad statute under whch the corporaton coud have been created as a de |ure corporaton. 2. An attempt, n good fath, to form a corporaton accordng to the requrements of aw, whch goes far enough to amount to a "coorabe compance" wth the aw; 3. A user of corporate powers, the transacton of busness n some way as f t were a corporaton; and, 4. Good fath n camng to be and dong busness as a corporaton. Are the rghts and obgatons between offcers and drectors of a de |ure and de facto the same? - YES. Governed by the same aw, rues and reguatons Ony mportant n determnng, s for the purpose of appyng the rues wth regards to the drect and coatera attack The exstence of a de |ure cannot be questoned even by the State, ether drecty or ndrecty Exstence of a de facto can be questoned ony by the State drecty n a quo warranto proceedng ony Muncpaty of Maabang vs. Bento - What s the mssng nk so as to consder t a de facto? A aw, because the executve order s uncondtona - An uncondtona act affords no rghts, creates no offce - Lega contempaton t was never passed at a - It can therefore be questoned by any person If the certfcate of regstraton has not been ssued, may a corporaton de facto exst? - NO! - Number 4 requrement, good fath n camng to be and dong busness as a corporaton Ha vs. Pcco - Mssng nk s good fath - The certfcate was not yet ssued by the SEC, the members knew and therefore they were not actng n good fath, therefore anybody can queston ts exstence Corporaton by estoppe - So defectvey formed so that they are not to be consdered a de |ure or de facto - Genera partners- abe even beyond hs promse even hs persona propertes are prone to attachment Lozano vs. Deos Santos - Founded on prncpe of equty - Exercse corporate powers - Enters wth busness wth 3 rd partes - When there s no 3 rd persons nvoved and the probem arses between there members, therefore they themseves know that there s no corporaton by estoppe Abert vs. Unversty - 1965 case, no secton 21 yet - Apped where the rues governng agency - A person purportng n behaf of a non exstng corporaton - Secton 21, you arrve at the same decson Chang Ka Sek vs. CA - SC based ts decson from the provson of the educaton act - It cannot mmune tsef by vrtue of ts non compance wth the aw Assumng there was no aw? - YES, t may st be sued as a schoo for the past 32 years the schoo represented tsef as possessed of |urdca personaty Genera rue: a 3 rd party transactng wth a non exstent corporaton sha be estopped to deny Asa bankng vs. standard products - Genera rue: absence of fraud a person who has deat wth a non ncorporated corporaton sha be stopped to deny from actons n whch t had benefted - Exemptons: when there s fraud the genera rue sha not appy Savaterra vs. Gartos - As a genera rue a person who has contracted t a corporaton ackng personaty - Doctrne s not appcabe where fraud takes part n the transacton Another exempton Internatona express trave and tours vs. CA - No fraud n ths case - How come Kahn was made abe? - Doctrne of ncorporaton - Appes ony f that person s tryng to escape from a contract where he s benefted - In ths case pettoner s not tryng to escape abty, but rather the one camng from the contract Woud ths appy to foregn corporaton? - YES, t may appy - Georg Grot|ahn vs. Isnam A foregn corporaton cannot gan access to our courts uness they attan a cense to engage n busness n the Phppnes but appyng corporaton by estoppes, the court aowed Muncpaty of Maabang case - No aw, hence may be questoned by any person - An unconsttutona act s not a aw, t confers no rghts, t mposes no dutes, t affords no protectons, t crates o offce, t s n ega contempaton, as noperatve as though t had never been passes Ha vs. Pcco - No good fath Corporaton by estoppe - Admsson, conduct or agreement - W not appy among members themseves there must be a 3 rd party - Cannot escape when benefted - Genera rue: you dea wth a corporaton, as to estop t - Exceptons: 1. frauduenty msrepresents the thrd person may fe an acton drecty to those members, 2. 3 rd party w not be estopped f he s not tryng to escape abty 2 possbe remedes - Chang ka sek case - Abert case What woud be the effect f the corporaton faed to commence transacton? - Automatc Operated but becomes subsequenty noperatve for 5 years ony a ground for suspenson, proper notce and hearng Commencement - Exampe reaty company CORPORATE C(ARTER AND ITS AMENDMENTS What do you understand by the word charter? Is t the same as artces of ncorporaton? - Corporate charter s broader Franchse - Prmary power granted by the state to be and act as a corporaton - Secondary franchse s the rght or prvege that the corporaton may exercse You cannot ssue nvestment contracts wthout a secondary franchse, kaangan prmary muna hnd pwede mauna secondary kas sa secton 19 t does not exst unt ssued wth a certfcate of regstraton or ncorporaton Corporate entty - Corporaton exst separatey and ndependenty from the stockhoders - Stockhoders cannot brng an acton, to brng back the propertes of a corporaton - Corporaton has no nterest n the ndvdua propertes of ts members Suo ng Bayan vs. Araneta - Corporaton cannot brng an acton for the recovery of the propertes of ts members Caram vs. CA - Stockhoders cannot be hed abe for the egtmate obgatons of the corporaton, they exst separatey and ndependenty from one another Cruz vs. Dasay - Fna |udgment aganst a corporaton cannot be enforced aganst stockhoders Rustan Pup vs. CA - Corporaton exst separatey and ndependenty - Corporaton are |urdca enttes, they exst ony n ega contempaton, can act ony through ts authorzed representatves Sorano vs. CA - They are not personay abe - They where sgned for and n behaf of the corporaton Paay nc. vs. Cave - Labtes ncurred by the corporaton cannot be enforced aganst stockhoders, etc., even f stockhoders, etc. happens to own a substanta nterest n the corporaton, mere ownershp does not dsregard the corporate entty theory Corporate entty for ega or egtmate purposes ony Two or more corporatons, one of them w be treated as a mere ater-ego You cannot perce the ve of corporate fcton when there are no facts attendant n the case Corporate Entty Theory - The corporaton s possessed wth a personaty separate and dstnct from the ndvdua stockhoders or members and s not affected by the persona rghts, obgatons or transactons of the atter Instrumentaty rue - Where one corporaton s so organzed and controed and ts affars are conducted so that t s, n fact, a mere nstrumentaty or ad|unct of the other, the fcton of the corporate entty of the "nstrumentaty" may be dsregarded - Courts are concerned wth reaty and not form - Mere ownershp of a or substantay a of the shares of stock of a corporaton s not, n tsef, nsuffcent ground for dsregardng the separate corporate personaty. And for the separate personaty of the corporaton to be dsregarded, the wrong dong must be ceary and convncngy estabshed - Fraud must be proven by cear and convncngy evdence amountng to more than preponderance. It cannot be |ustfed by specuaton and can never be presumed. And ony f t sought to hod the stockhoders abe drecty for corporate debt Paaco vs. Fey - Percng the ve of corporate fcton - Fey trans and the other corporaton s one and the same Marve bdg. vs. Davd - There must be facts before the court w be |ustfed n percng the ve of corporate fcton - Corporaton was a mere extenson of the personaty of the person Yutvo and sons vs. Court of Tax Appeas - What where the facts or crcumstances arrved by the court here? - Subscrbed capta where a advanced by Yutvo, the board where the same as Yutvo Commssoner of Interna Revenue vs. Norton and Harrson - Court apped the genera rue - Mere substanta ownershp does not mean that t has a same corporate entty La Campana Coffee Factory, Inc. vs. KKM - Two corporatons managed by the same famy, workers were made nterchangeaby Emo Cano vs. CIR - Sued n there offca capacty - Reverse of Sorano vs. CA (sgned n ther offca capacty) Tesco vs. WCC - The two corporatons where ocated n the same offce Caparos vs. CIR - Same as NAFLU and A.C. Ransom Concept buders vs. NLRC - Instrumentaty rue. What s the nstrumentaty rue? "where one corporaton s so organzed and controed and ts affars are conducted so that t s, n fact, a mere nstrumentaty or ad|unct of the other, the fcton of the corporate entty of the "nstrumentaty" may be dsregarded." - Has no separate mnd of ts own. What s the degree of contro? 1. Contro, not mere ma|orty or compete stock contro, but compete domnaton, not ony of fnances but of pocy and busness practce n respect to the transacton attacked so that the corporate entty as to ths transacton had at the tme no separate mnd, w or exstence of ts own. 2. Such contro must have been used by the defendant to commt fraud or wrong, to perpetuate the voaton of a statutory or other postve ega duty or dshonest and un|ust act n contraventon of pantffs ega rghts; and, 3. The aforesad contro and breach of duty must proxmatey cause the n|ury or un|ust oss companed of. - The absence of one of the eements prevents "percng the corporate ve." In appyng the "nstrumentaty" or "ater ego" doctrne, the courts are concerned wth reaty and not form, wth how the corporaton operated and the ndvdua defendants reatonshp to that operaton. There must facts and crcumstances before warrant percng the ve of corporate fcton The contro necessary does not mean stock ownershp MCConne vs. CA - were ocated n the same foor - "whe the mere ownershp of a or neary a of the capta stock of a corporaton does not necessary mean that t s a mere busness condut of the stockhoder, that concuson s ampy |ustfed where t s shown, as n the case before us, that the operatons of the corporaton were so merged wth the stockhoders as to be practcay ndstngushabe from them. To hod the atter abe for the corporatons obgatons s not to gnore the corporatons separate entty, but merey to appe the estabshed prncpe that such entty cannot be nvoked or used for purposes that coud not have been ntended by the aw that created that separate personaty." Tan boon bee vs. |arenco - Why woud a drug company need a prntng machne - The property must be n pursuance of a company busness Cease vs. CA - Ater-ego or the extenson of the person of forest ware does the court perced the ve of corporate fcton - As to not deprve the hoders of ther successona rghts - Mere ownershp of a or substantay a s not a |ustfcaton of percng the ve of corporate fcton Fraud must be proven by cear and convncng evdence cannot presume or specuate, there must be facts and crcumstances Fraud must be cear and convncng evdence more than preponderance Remo |r. vs. IAC - The resouton was not entered to defraud anyone De Rosaro vs. Natona Labor Commsson - The wrongdong must be ceary estabshed - There must be facts to support - Payment of cams cannot thus be presumed Indoph Texte M vs. CALICA - How do you dstngush ths rung to La Campana, havng the same ssues: - La campana, one payro, empoyees were made nterchangeabe. Acryc had ts own standards PNB vs. Rtratto Group - Contro test - Not mere ma|orty but rather compete - Twn ace was ony a subsequent nterested party - Assets and machneres Amendment of the artces of ncorporaton - Express power granted to a corporaton Secton 16 - Apprasa rght - Secton 81 to ob|ect on certan acts and transactons Section "1. Instances of apprasa rght. - Any stockhoder of a corporaton sha have the rght to dssent and demand payment of the far vaue of hs shares n the foowng nstances: 1. In case any amendment to the artces of ncorporaton has the effect of changng or restrctng the rghts of any stockhoder or cass of shares, or of authorzng preferences n any respect superor to those of outstandng shares of any cass, or of extendng or shortenng the term of corporate exstence; 2. In case of sae, ease, exchange, transfer, mortgage, pedge or other dsposton of a or substantay a of the corporate property and assets as provded n the Code; and 3. In case of merger or consodaton. (n) - Rght granted ony n specfed nstances Are non-votng shares ncuded n amendng the artces of ncorporaton 1 100/s XYZ-----ABC 2 100/s To 10 100/s =1M/S what woud be the 2/3? Secton 6 ast paragraph Votng shares are excuded except the foregong nstances 1 1 2 2 3 3 4 4 5 5 6 6 1 & 2=absent 1&2=absent but gave ther wrtten assent 3 & 4= ob|ected 3&4=ob|ected 5 & 6= approved the amendment 5&6=approved Woud there be a vad amendment Speca amendments 37 & 38 shortenng that woud resut to dssouton requre pror approva by the SEC Section 3%. Power to extend or shorten corporate term. - A prvate corporaton may extend or shorten ts term as stated n the artces of ncorporaton when approved by a ma|orty vote of the board of drectors or trustees and ratfed at a meetng by the stockhoders representng at east two-thrds (2/3) of the outstandng capta stock or by at east two-thrds (2/3) of the members n case of non-stock corporatons. Wrtten notce of the proposed acton and of the tme and pace of the meetng sha be addressed to each stockhoder or member at hs pace of resdence as shown on the books of the corporaton and deposted to the addressee n the post offce wth postage prepad, or served personay: Provded, That n case of extenson of corporate term, any dssentng stockhoder may exercse hs apprasa rght under the condtons provded n ths code. (n) Section 3". Power to ncrease or decrease capta stock; ncur, create or ncrease bonded ndebtedness. - No corporaton sha ncrease or decrease ts capta stock or ncur, create or ncrease any bonded ndebtedness uness approved by a ma|orty vote of the board of drectors and, at a stockhoder's meetng duy caed for the purpose, two-thrds (2/3) of the outstandng capta stock sha favor the ncrease or dmnuton of the capta stock, or the ncurrng, creatng or ncreasng of any bonded ndebtedness. Wrtten notce of the proposed ncrease or dmnuton of the capta stock or of the ncurrng, creatng, or ncreasng of any bonded ndebtedness and of the tme and pace of the stockhoder's meetng at whch the proposed ncrease or dmnuton of the capta stock or the ncurrng or ncreasng of any bonded ndebtedness s to be consdered, must be addressed to each stockhoder at hs pace of resdence as shown on the books of the corporaton and deposted to the addressee n the post offce wth postage prepad, or served personay. A certfcate n dupcate must be sgned by a ma|orty of the drectors of the corporaton and countersgned by the charman and the secretary of the stockhoders' meetng, settng forth: (1) That the requrements of ths secton have been comped wth; (2) The amount of the ncrease or dmnuton of the capta stock; (3) If an ncrease of the capta stock, the amount of capta stock or number of shares of no-par stock thereof actuay subscrbed, the names, natonates and resdences of the persons subscrbng, the amount of capta stock or number of no-par stock subscrbed by each, and the amount pad by each on hs subscrpton n cash or property, or the amount of capta stock or number of shares of no-par stock aotted to each stock- hoder f such ncrease s for the purpose of makng effectve stock dvdend therefor authorzed; (4) Any bonded ndebtedness to be ncurred, created or ncreased; (5) The actua ndebtedness of the corporaton on the day of the meetng; (6) The amount of stock represented at the meetng; and (7) The vote authorzng the ncrease or dmnuton of the capta stock, or the ncurrng, creatng or ncreasng of any bonded ndebtedness. Any ncrease or decrease n the capta stock or the ncurrng, creatng or ncreasng of any bonded ndebtedness sha requre pror approva of the Securtes and Exchange Commsson. One of the dupcate certfcates sha be kept on fe n the offce of the corporaton and the other sha be fed wth the Securtes and Exchange Commsson and attached to the orgna artces of ncorporaton. From and after approva by the Securtes and Exchange Commsson and the ssuance by the Commsson of ts certfcate of fng, the capta stock sha stand ncreased or decreased and the ncurrng, creatng or ncreasng of any bonded ndebtedness authorzed, as the certfcate of fng may decare: Provded, That the Securtes and Exchange Commsson sha not accept for fng any certfcate of ncrease of capta stock uness accompaned by the sworn statement of the treasurer of the corporaton awfuy hodng offce at the tme of the fng of the certfcate, showng that at east twenty-fve (25%) percent of such ncreased capta stock has been subscrbed and that at east twenty-fve (25%) percent of the amount subscrbed has been pad ether n actua cash to the corporaton or that there has been transferred to the corporaton property the vauaton of whch s equa to twenty-fve (25%) percent of the subscrpton: Provded, further, That no decrease of the capta stock sha be approved by the Commsson f ts effect sha pre|udce the rghts of corporate credtors. Non-stock corporatons may ncur or create bonded ndebtedness, or ncrease the same, wth the approva by a ma|orty vote of the board of trustees and of at east two-thrds (2/3) of the members n a meetng duy caed for the purpose. Bonds ssued by a corporaton sha be regstered wth the Securtes and Exchange Commsson, whch sha have the authorty to determne the suffcency of the terms thereof. (17a) The vote must be cast at the meetng caed for that purpose Wrtten assent woud not suffce When do amendments become vad and effectve? - Ony upon the approva of the SEC TRUE OR FALSE? - FALSE because t can be vad upon the date of fng f not acted upon wthn 6 months wthout faut attrbutabe to the corporaton Why s t retroactve? What provson may be amended, atered or repeaed Can you change name, address for exampe she marred or changed address? - NO. you cannot change that Fat accomp, are beyond the powers or authorty of the corporaton to change, ater or modfy. These woud ncude the foowng: - Names of the ncorporators and - The ncorporatng drectors or trustees, - The name of the treasurer orgnay or frst eected by the subscrbers or members to act as such unt hs successor has been duy eected and quafed, - The number of shares and amount orgnay subscrbed and pad out of the orgna authorzed capta stock of the corporaton, - The date and pace of executon of the artces of ncorporaton, - The sgnatores and acknowedgment thereof. - A other provsons or matters stated or contaned n the artces are sub|ect to amendment. Founders or sgnatores hnd pwede patan Names, natonates- you cannot Capta- rght granted by aw to a corporaton Pad up capta- NO Restrcton and transfer of shares n ordnary stock corporatons - You can, but cose corporaton cannot - Secton 96, otherwse t w not be a cose corporaton Section !$. Defnton and appcabty of Tte. - A cose corporaton, wthn the meanng of ths Code, s one whose artces of ncorporaton provde that: (1) A the corporaton's ssued stock of a casses, excusve of treasury shares, sha be hed of record by not more than a specfed number of persons, not exceedng twenty (20); (2) a the ssued stock of a casses sha be sub|ect to one or more specfed restrctons on transfer permtted by ths Tte; and (3) The corporaton sha not st n any stock exchange or make any pubc offerng of any of ts stock of any cass. Notwthstandng the foregong, a corporaton sha not be deemed a cose corporaton when at east two-thrds (2/3) of ts votng stock or votng rghts s owned or controed by another corporaton whch s not a cose corporaton wthn the meanng of ths Code. Any corporaton may be ncorporated as a cose corporaton, except mnng or o companes, stock exchanges, banks, nsurance companes, pubc uttes, educatona nsttutons and corporatons decared to be vested wth pubc nterest n accordance wth the provsons of ths Code. The provsons of ths Tte sha prmary govern cose corporatons: Provded, That the provsons of other Ttes of ths Code sha appy suppetory except nsofar as ths Tte otherwse provdes. Transfer cause, executor cause, acknowedgment, treasury affdavt-NO Phppne Frst Insurance case - Mere change n the name of a corporaton or by merey compyng wth the aw s genera amendment - It does not change ts personaty. It s the same person n a dfferent name. the charter s the same Amendment of a corporate term - Extendng the same can never be made 7 years pror? TRUE or FALSE - FALSE. It can be f there are |ustfabe reasons for earer extenson as may be determned by the SEC Can you extend the corporate term f t has aready expred? - Once the term expres wthout an amendment havng happen t ceases to exst as a body potc. It s dssoved automatcay on the day t expres. Ahambra cgar and PNB case Instances when the SEC aowed extenson whose term has aready expred - A of them nvoved are nsttutons of earnng, t was the case n order to avod confuson that woud arse ater on. BOARD OF DIRECTORS)TRUSTEES Secton 23 Section 23. The board of drectors or trustees. - Uness otherwse provded n ths Code, the corporate powers of a corporatons formed under ths Code sha be exercsed, a busness conducted and a property of such corporatons controed and hed by the board of drectors or trustees to be eected from among the hoders of stocks, or where there s no stock, from among the members of the corporaton, who sha hod offce for one (1) year unt ther successors are eected and quafed. (28a) Every drector must own at east one (1) share of the capta stock of the corporaton of whch he s a drector, whch share sha stand n hs name on the books of the corporaton. Any drector who ceases to be the owner of at east one (1) share of the capta stock of the corporaton of whch he s a drector sha thereby cease to be a drector. Trustees of non-stock corporatons must be members thereof. A ma|orty of the drectors or trustees of a corporatons organzed under ths Code must be resdents of the Phppnes. - Controed by the board of drectors - Authorty are however restrcted to the day to day - Stockhoders may have a the proft but w turn over the management to the governng board - But uness the aw provdes the power may be deegated Genera rue - Corporatons must st and act as a body - W be bound by corporate offcers f they acted wthn the 5 cassfcaton page 150 Ramrez vs. Orentast co. - What was the poston of Fernandez n ths case? TREASURER - Why dd the court rue that actons of Fernandez bound the corporaton when he s not even a board of drector? "f a man s found actng for a corporaton wth the externa ndca of authorty, any person not havng notce of want of authorty, may usuay rey upon those appearances; and f t be found that the drectors had permtted the agent to exercse that authorty and thereby hed hm out as a person competent to bnd the corporaton, or had acquesced n a contract and retaned the beneft supposed to have been conferred by t, the corporaton w be bound, notwthstandng the actua authorty may never have been granted." - Contracts must be made by the drector and not the stockhoders - Actons of the stockhoders n such matters s ony advsory and not n any way bndng n the corporaton Barreto vs. La prevsora Fpna - Everythng emanates from the board of drectors - Stockhoders acton s merey advsory except ther approva or vote s necessary to prove a vad corporate act Ouafcatons: - No ctzenshp requrement, at east ma|orty must be resdents - Can have a governng board consstng soey of foregners - But we have to take nto consderaton party natonazed ndustres and other aws whch prohbts or mts foregn ownershp - Ant-dummy act - Utzaton deveopment of natura resources 60% must be owned by Fpno ctzens, therefore they ony own 40%---10 members they can ony have 4 seats, but not entrey correct because the aw may provde otherwse; educatona nsttutons restrcted to Fpnos, but there are exceptons when created by regous and chartabe nsttutons. - By-aws may provde addtona quafcatons and dsquafcatons - To quafy as a drector he must own at east 1 share Shoud the stockhoder be the equtabe or benefca owner n order to quafy as a drector? - NO, t s not necessary, as ong as you are sted n the books as owner of one share Lee vs. CA - As ong as you are sted n the books as owner of one share - Under the od aw he must be the benefca owner and ega owner thereof but n the new aw t s not requred as ong as t stands n hs name he s quafes 1 A-100t/S B (own n the trust of X) s B quafed to be a drector? 2 3-10 2- transferrng there votng rghts n favor of VT Other rghts w accrue n favor of them, but not the votng rghts votng rghts must be recorder n the books of the corporaton that t s transferred PNB-IFL- whoy owned subsdary of PNB PNB w assgn to PNB-IFL nomna shares and PNB-IFL now w be abe to be nomnated Gen. Rue: - Term of one year who w serve as such unt there successors are eected and quafed Excepton: - Non-stock corporaton can serve for a term of 3 years - Educatona non-stock- term of the governng board can be 5 years May ths term exceed one year? - Yes, they may serve n a hod over capacty unt ther successors have been duy eected and quafed Detectve and protectve bureau vs. Corbe - In the by-aws, managng drector must be eected from among themseves - Must be duy eected and quafed How are the drectors eected? 1-100T/S 2-100T/S 3-100T/S to 10=1M/S Do you ncude the vote of 1 & 2 to have a quorum to have a vad meetng? - NO, quorum requrements s 401,000 Ouorum requrement s 501k Hoders of non-votng shares are ony entted to vote n ast par. Of secton 6 1-200k 2-200k 3-200k 4-100k 5-100k 6-100k 7-50k 8-40k 9-5k 10-5k =1MS 1&2 s absent, 3&4 ayaw tumakbo and hnd nagvote 6- 10, tumakbo and nnomnate na yung sar na and cast a ther shares on themseves Who wns? Or who gets eected? - No vote requrement, the one who gets the most number of votes gets eected, secton24. What s cumuatve votng? - Process of mutpyng the number of shares to the number of drector to be eected - Matter of rght granted to stockhoders n a stock corporaton 1 to 5 has 200k/s and members of the same famy- ma|orty 800k they have 4M votes they are guaranteed 4 seats 6 to 10 are not reated- 1 seat 1M votes Cumuatve to aow the mnorty to have a rghtfu representaton n the board Is t aowed n a non-stock corporaton? - Not generay avaabe - Secton 89 uness the artces or by-aws aow cumuatve votng Section "!. Rght to vote. - The rght of the members of any cass or casses to vote may be mted, broadened or dened to the extent specfed n the artces of ncorporaton or the by-aws. Uness so mted, broadened or dened, each member, regardess of cass, sha be entted to one vote. Uness otherwse provded n the artces of ncorporaton or the by-aws, a member may vote by proxy n accordance wth the provsons of ths Code. (n) Votng by ma or other smar means by members of non-stock corporatons may be authorzed by the by-aws of non-stock corporatons wth the approva of, and under such condtons whch may be prescrbed by, the Securtes and Exchange Commsson. Other corporate offcers other than the governng board secton 25 Section 2#. Corporate offcers, quorum. - Immedatey after ther eecton, the drectors of a corporaton must formay organze by the eecton of a presdent, who sha be a drector, a treasurer who may or may not be a drector, a secretary who sha be a resdent and ctzen of the Phppnes, and such other offcers as may be provded for n the by-aws. Any two (2) or more postons may be hed concurrenty by the same person, except that no one sha act as presdent and secretary or as presdent and treasurer at the same tme. The drectors or trustees and offcers to be eected sha perform the dutes en|oned on them by aw and the by-aws of the corporaton. Uness the artces of ncorporaton or the by-aws provde for a greater ma|orty, a ma|orty of the number of drectors or trustees as fxed n the artces of ncorporaton sha consttute a quorum for the transacton of corporate busness, and every decson of at east a ma|orty of the drectors or trustees present at a meetng at whch there s a quorum sha be vad as a corporate act, except for the eecton of offcers whch sha requre the vote of a ma|orty of a the members of the board. Drectors or trustees cannot attend or vote by proxy at board meetngs. (33a) Is the presdent requred to be a stockhoder. YES The charman may be another person The presdent may aso be another person Prohbted s presdent to be secretary or treasurer at the same tme Board of drector must st and act as a body to arrve at a corporate act What woud consttute a quorum f 5 then 3 must be present May the vote of 2 members past a 5 man governng board pass a vad corporate act? - YES. Votng requrement s ma|orty of drectors present at whch there where a quorum 1 1 and 2 present=vad votng requrement 2 1 and 2 voted yes 3 3 voted no 4 5 Is t absoute? - NO, except n the eecton because t requres the ma|orty of a the members of the board - If by-aws or artces provde a hgher votng requrement Artfca bengs must act through ts members and act as a body to have a vad corporate act Excepton: - Deegaton - Expressy conferred - Where the offcer or agent s cothed wth actua or apparent authorty - Otherwse t w not bnd the corporaton Yao ka sn tradng case "aready asked n the bar" - Ony bnd the corporaton to the extent of authorty confned to hm or vrtue of customs, usage and pocy - Must pass frst the controer and counse What f the notce requrement s not comped wth? Lopez reaty vs. Fotencha - Notce requrement must be comped wth hence t shoud have been wth force and effect, but accordng to the SC, t may be ratfed expressy f there s a subsequent meetng caed for that purpose - Impedy through acts - Asuncon was aware of the corporatons obgaton - There was mped ratfcaton or she was estopped Pua casm vs. Neumark and Co. - Consdered 3 crcumstanced - Check whch was the proceed of the oan whch was endorsed and depost n the corporate account - Neumark as presdent and aso stockhoder Yu chuck vs. Kong L Po - Genera manager usuay has the power to hre but the SC sad the contract must be reasonabe - The contract here s so onerous that t woud throw the corporaton nto nsovency Francsco vs. GSIS - GSIS cannot evade the bndng effect of the teegram - Ony 15 months ater that the corporaton sad there was a mstake - The sence couped wth the uncondtona acceptance of the other subsequent remttances s bndng to the corporaton Board of qudators vs. Kaaw "Setted |ursprudence has t that where smar acts have been approved by the drectors as a matter of genera practce, custom and pocy, the genera manager may bnd the company wthout forma authorzaton of the board of drectors. In varyng anguage, exstence of such authorty s estabshed, by proof of the course of busness, the usages and practces of the company and by the knowedge whch the board of drectors has, or must be presumed to have, of acts and dongs of ts subordnates n and about the affars of the corporaton. So aso, "xx authorty to act for and bnd a corporaton may be presumed from acts of recognton n other nstances where the power was n fact exercsed." "xx Thus, when, n the usua course of busness of a corporaton, an offcer has been aowed n hs offca capacty to manage ts affars, hs authorty to represent the corporaton may be mped from the manner n whch he has been permtted by the drectors to manage ts busness." In the case at bar, the practce of the corporaton has been to aow ts genera manager to negotate and execute contracts n ts copra tradng actvtes for and n NACOCOs behaf wthout pror board approva. If the by-aws were to be teray foowed, the board shoud gve ts stamp of pror approva on a corporate contracts. But that Board tsef, by ts acts and through acquescence, practcay ad asde the by-aw requrement of pror approva. - Kaaw sgned aone and sad contracts were submtted to the board of drectors after ts consummaton and not before Buenaseda vs. Bowen - Express ratfcaton s made through a forma board acton - Imped ratfcaton s through: sence or acquescence, acceptance benefts and asty recognton or adopton An unauthorzed act may nevertheess be bndng ether by express or mped by estoppes By vrtue of sence the board had mpedy accepted the act By recognton or adopton By vrtue of payment of obgatons arsng therefore- Lopez reaty May drectors or trustees be dsquafed to act as such? - YES, crme, etc. dsquafcatons n book - Possess or dspossess any of the quafcatons or dsquafcatons , cease to hod at east one share May drectors be ousted from offce? - At east 2/3 of members representng outstandng capta stock. Agan notce requrement must be comped wth 1-200 1-5 same famy 2-200 3-200 4-100 5-100 eectng 6-100 6 to 10 not reated 7-50 8-40 9-5 10-5 outstandng drector Meetngs caed by the presdent or the secretary ordered by the presdent It depends f the remova s wthout cause they cannot do so because remova wthout cause sha not deprve the mnorty stockhoders or members of the rght of representatve If wth cause they can even f t w pre|udce the rghts of the mnorty, provded of course addtona requrements by-aws and artces of ncorporaton Who w f up the vacancy created due to the ouster of a member of the board of drectors <secton 29> Section 2!. Vacances n the offce of drector or trustee. - Any vacancy occurrng n the board of drectors or trustees other than by remova by the stockhoders or members or by expraton of term, may be fed by the vote of at east a ma|orty of the remanng drectors or trustees, f st consttutng a quorum; otherwse, sad vacances must be fed by the stockhoders n a reguar or speca meetng caed for that purpose. A drector or trustee so eected to f a vacancy sha be eected ony or the unexpred term of hs predecessor n offce. Any drectorshp or trusteeshp to be fed by reason of an ncrease n the number of drectors or trustees sha be fed ony by an eecton at a reguar or at a speca meetng of stockhoders or members duy caed for the purpose, or n the same meetng authorzng the ncrease of drectors or trustees f so stated n the notce of the meetng. (n) Other than by remova or expraton of term they do not have the power When w the vacances be fed up? Is notce requred, to f up vacances due to remova? What f the vacancy s due to an ncrease, can t be fed up n the same meetng where n the number s ncreased? Eecton due to remova-n the same meetng notce s not requred Eecton due to ncrease n number- t must be so stated n the meetng Secton 30 Section 3&. Compensaton of drectors. - In the absence of any provson n the by-aws fxng ther compensaton, the drectors sha not receve any compensaton, as such drectors, except for reasonabe per dems: Provded, however, That any such compensaton other than per dems may be granted to drectors by the vote of the stockhoders representng at east a ma|orty of the outstandng capta stock at a reguar or speca stockhoders' meetng. In no case sha the tota yeary compensaton of drectors, as such drectors, exceed ten (10%) percent of the net ncome before ncome tax of the corporaton durng the precedng year. (n) - Generay not entted to receve compensaton because they render t gratutousy - Uness the by-aws aows - Stockhoders may aso grant pursuant to a ma|orty vote - Must not exceed net ncome of 10% tax of the precedng year - Actng n speca capacty - In, sum drectors may receve compensaton when 1. there s a provson n the by-aws to that effect 2. When the stockhoders, by a ma|orty vote of the outstandng capta stock grant the same; and, 3. If the drector renders extra-ordnary or unsua servce Centra cooperatve exchange vs. Tbe - By-aws may aow, stockhoders may aso aow such What do you understand by the phrase "as such drectors" Western nsttute vs. Saas - Compensaton was granted wthout by-aws authorty - Prohbton s not a sweepng rue - Members of the board may receve when they receve n a speca capacty - Mere act of the board w suffce Is the 10% ceng appcabe to other offcers? - NO. the phrase "as such drector" was used twce <Secton 30> - The SC rued that the 10% ceng w not kewse appy f they acted n a capacty other than "as such drectors" Government vs. E Hogar - |udca nterventon s not proper - The approprates remedy s to those who can make or unmake the by-aws Labty of corporate offcers - Obgatons ncurred by those actng for and n behaf of the corporatons are not theres BUT there are exceptons even f they are actng for and n behaf of the corporaton Tramat vs. CA - Genera rue was apped n the case - Ong acted as offcers and acted wthn the scope of hs authorty - Court ad down 4 nstances when even f actng wthn the scope of hs authorty he s hed sodary abe 1. He assents (a) to a patenty unawfu act of the corporaton, or (b) for bad fath, or gross neggence n drectng ts affars, or (c) for confct of nterest, resutng n damages to the corporaton, ts stockhoders or other persons; 2. He consents to the ssuance of watered stocks or who, havng knowedge thereof, does not forthwth fe wth the corporate secretary hs wrtten ob|ecton thereto; 3. He agrees to hod hmsef personay and sodary abe wth the corporaton; 4. He s made, by a specfc provson of aw, to personay answer for hs corporate acton. - Watered stocks- ssued, fuy pad up when n fact they have not been fuy pad or promsed as such Lamado vs. CA - The corporate entty theory cannot be used as a defense to escape abty n voaton of B.P. 22 - Where the check s drawn by a corporaton the persons who sgned the check sha be abe. Uchco vs. NLRC - Labor case corporate drectors and offcers are sodary abe wth the corporaton for the termnaton of empoyment of corporate empoyee done wth mace and bad fath 3 fod duty of drectors - obedent - dgent - oya Busness |udgment rue - Ouestons of pocy and management are eft soey to the honest decson of the board of drectors and the courts are wthout authorty to substtute ts |udgment as aganst the former. The drectors are the busness managers of the corporaton and as ong as they act n good fath, ts actuatons are not sub|ect to |udca revew. Montebano vs. Bacood Murca Mng - questons of pocy and management are eft soey to the board of drectors - BOD, busness manager of the corporaton and as ong as they act n good fath, ts actuatons are not sub|ect to |udca revew - They are not nsurer of the property of the company, they were guarantors that the enterprse undertaken by the corporaton sha be successfu Montebano vs. Bacood Murca Mng Co. - Drectors are not abe due to mprudence or honest error of |udgment - Duty of oyaty of corporate drectors - 31,32,33,34 - 31,32,33- specfc nstances when corporate offcers may voate oyaty - 32,33 sef-deang and nterockng drector Corporate opportunty doctrne - It paces a drector of a corporaton n the poston of a fducary and prohbts hm form sezng a busness opportunty and/or deveopng t at the expense and wth the factes of the corporaton. He cannot approprate to hmsef a busness opportunty whch n farness shoud beong to the corporaton. Last paragraph of secton 31 and the provson of secton 34 make reference to recovery of "forbdden profts" Dstncton between secton 31 and 34 reatve to the ratfcaton by the stockhoders - The second paragraph of secton 31 whch makes a drector abe to account for profts f he attempts to acqure or acqures any nterest adverse to the corporaton n respect to any matter reposed n hm n confdence as to whch equty mposes a dsabty upon hm to dea n hs own behaf s not sub|ect to ratfcaton by the stockhoders. Whereas, n secton 34 f a drector acqures for hmsef a busness opportunty whch shoud beong to the corporaton, he s bound to account for such profts uness hs act s ratfed by the stockhoders ownng ore representng at east 2/3 of the outstandng capta stock. - If reposed n hm n confdence, not sub|ect to ratfcaton - If the acquston s merey that of a busness opportunty whch has not been reposed n hm n confdence, the same may be sub|ect to ratfcaton by the stockhoders. Drector x co. A-REALTY B Z owns property and s gong abroad never to Return, he wants to se for 25M the far market vaue s 30M D E E goes to Z and offers to pay the property for 26 M and ater he ses t for 30M makng 4M proft, one of the stockhoders earned and compans that he shoud submt the profts. E sad that he w move for ratfcaton of hs actuaton. Can t be ratfed? - It can be ratfed he merey acqured a busness ownng to the corporaton - It woud be dfferent f t was entrusted n hs confdence Another scenaro: (*+ A not *tten+e+ t,e -eetin. he woud not have known of the sae t s then a matter reposed n hm n confdence A corporaton cannot reaqure ts share f t has no restrcted unretaned earnngs Strong vs. Rapde - What duty dd he voate? - He voated hs duty of oyaty - The aw woud be mpotent f the sae were not nvadated Sef-deang drector and nterockng drector What s a sef-deang drector? - Drector of a corporaton deang or transactng busness wth hs corporaton Are the contracts and deang of a sef0deang drector vad? Genera rue: vodabe May the contracts of a sef-deang drector be vad per se. - YES. If a the 4 condtons are present they w be vad per se 1. That the presence of such drector or trustee n the board meetng n whch the contract was approved was not necessary to consttute a quorum for such meetng; 2. That the vote of such drector or trustee was not necessary for the approva of the contract; 3. That the contract s far and reasonabe under the crcumstances; and 4. That n case of an offcer, the contract has been prevousy authorzed by the board of drectors. When do they become vodabe? - When any of the two requstes are absent t s vodabe, but sub|ect to ratfcaton by 2/3 of the outstandng capta stock or 2/3 of the member Requstes for ratfcaton (sub|ect to ratfcaton by the stockhoders hodng or representng at east 2/3 of the outstandng capta stock or 2/3 of the members.) - t must be at a meetng caed for the purpose - fu dscosure of the adverse nterest of the drector concerned must be made - the contract s far and reasonabe under the crcumstances Probem f sef-deang drector nvoved owns a or substantay a of the shares of stock of the corporaton thereby makng t easy possbe to have the contract ratfed - ast sentence of secton 32 shoud be made to appy by determnng the reasonabeness and farness of the contract Section 32. Deangs of drectors, trustees or offcers wth the corporaton. - A contract of the corporaton wth one or more of ts drectors or trustees or offcers s vodabe, at the opton of such corporaton, uness a the foowng condtons are present: 1. That the presence of such drector or trustee n the board meetng n whch the contract was approved was not necessary to consttute a quorum for such meetng; 2. That the vote of such drector or trustee was not necessary for the approva of the contract; 3. That the contract s far and reasonabe under the crcumstances; and 4. That n case of an offcer, the contract has been prevousy authorzed by the board of drectors. Where any of the frst two condtons set forth n the precedng paragraph s absent, n the case of a contract wth a drector or trustee, such contract may be ratfed by the vote of the stockhoders representng at east two-thrds (2/3) of the outstandng capta stock or of at east two-thrds (2/3) of the members n a meetng caed for the purpose: Provded, That fu dscosure of the adverse nterest of the drectors or trustees nvoved s made at such meetng: Provded, however, That the contract s far and reasonabe under the crcumstances. (n) Prme whte cement vs. IAC - a drector of a corporaton owes a poston n trust - n case of confct between hmsef and that of the corporaton, he cannot sacrfce the nterest of the corporaton to hs own advantage - as a drector he shoud have acted n a manner as not to unduy pre|udce the corporaton - he cannot be aowed to enrch hmsef May corporate drectors purchase the corporate property? Mead vs. Mccuogh - nterockng drector- a drector of one corporaton who deas and transacts busness wth another corporaton who s hmsef a drector A- drector of X company aso a drector of Y corporaton B- C- D- E- Both companes enter nto a contract and A sts, s the contract vad? - Yes on the ground of fraud or f t s unfar - May be sub|ect to the provson of secton 32 - Secton 32 contract may become vodabe, hence t may aso be ratfed X Co. Y Co. A owe 20% A owe 20% Is t generay vad or vodabe? VALID 25% 25% VALID 15% 25% VOIDABLE SUB|ECT TO secton 32 More than 20 substanta BOD msmanages corporate offcers. Who may fe a sut? - Genera rue: BOD whch can nsttute a case because t has a the powers. To aow stockhoders to fe woud voate the doctrne of corporate entty and may resut to mutpcty of suts - Stockhoders cannot therefore generay fe a case EXCEPT of course n a DERIVATIVE SUIT Dervatve sut - An acton based on n|ury to the corporaton-to enforce a corporate rght- wheren the corporaton tsef s |oned as a necessary party, and recovery s n favor of and for the corporaton. - Remedy granted by aw to stockhoders to nsttute a case to remedy a wrong done drecty to the corporaton and ndrecty to the stockhoders, f the board refuses to do so. Otherwse f not they woud be eft wthout any recourse Avaabe suts ndvdua or persona - Wrong done aganst hs person as a stockhoder Cass sut - Fed by a stockhoder n representaton of other stockhoders - A wrong or redress done, a dervatve sut n nature Intra-corporate remedes - Demand to the BOD to nsttute such acton - Negated by the BOD - The one who nsttuted must be a stockhoder at the date when the act was done, must have been a stockhoder by that tme Demand w not be requred f the ma|orty of the BOD are the ones guty of the wrong charged The corporaton must be made a party n the case whatever sde w not matter because under Phppne aw ms|onder s not a ground for dsmssa Non-|onder s a ground for dsmssa Any beneft shoud nure to the corporaton Stockhoder brngng the acton s entted to rembursement such as attorneys fee ONLY IF the case s SUCCESSFUL to avod harassment sut to ther management Pascua vs. Orozco - By vrtue of the fact that he s a stockhoder, may mantan a dervatve sut - Depend on how, when and what reason - Seekng for the years 1898 a the way 1907 - Ony became a stockhoder n 1903 - He can sue ony n 1903 forward because he must be a stockhoder - The rght of acton s persona n nature. He became a stockhoder ony n 1902 Dervatve sut - By a stockhoder to address a wrong done aganst the corporaton and the stockhoder ndrecty - Essenta requste must have been a stockhoder from the tme the act companed of took pace - Cannot nsttute an acton from the years he was st not a stockhoder Everett vs. Asa Bankng - Stockhoders cannot ordnary commence sut n equty and such s n the hands of ts BOD however there are exceptons when the BOD w not sue snce they are themseves prncpas to the fraud. Repubc vs. Cuaderno - The facts consttute suffcent cause of acton - It s not the corporate nterest to shed one from crmna prosecuton whch s persona nterest - Perez s not sung n hs behaf, but n behaf of the corporaton Western nsttute vs. Saas - Assumng t was fed n the proper forum woud there argument that t s a dervatve sut prosper? NO. t s peope of the Phppnes vs. ndvdua drector, t must be stated n the compant that t s beng nsttuted as a dervatve sut and for and n behaf of the corporaton - Grantng arguendo, that ths s a dervatve sut, the same s st outrghty dsmssbe for havng been wrongfuy fed n the reguar court devod of any |ursdcton to entertan the compant. The case shoud have been fed wth the SEC whch exercses orgna and excusve |ursdcton over dervatve suts, they beng ntra-corporate dsputes, per Secton 5 (b) of P.D. 902-A San Mgue vs. Khan - Was a demand made? NO - It s not necessary because he ob|ected n the board meetng, but st t was adopted therefore t was useess Chase vs. Buencamno - Argument that he shoud be n estoppes snce he fed n the U.S. - Assumng the case prospered n the U.S. woud not estoppes appy as aganst hm? NO for estoppes to step n t must be a case by the corporaton Reyes vs. tan - Corporate drector are guty of breach of trust - A stockhoder may nsttute an acton to remedy a wrong done - Fraud n the conduct of corporate affars Gamboa vs. Vctorano - Is dervatve sut approprate n ths case - They are not vndcatory damage done to the corporaton, but rather they where vndcatng damage aganst hm - Voaton of ther rghts as ndvduas, hence dervatve sut s not the remedy Evangesta vs. Santos - Dervatve sut s not proper - Cam s not for the beneft of the corporaton, but rather hs ndvdua beneft From the cases above cted, these are the requrements and the procedures that must be foowed n order that a dervatve sut may prosper 1. That the party brngng the sut shoud be a stockhoder as of the tme the act or transacton companed of took pace, or whose shares have evoved upon hm snce by operaton of aw. Ths rue, however, does not appy f such act or transacton contnues and s n|urous to the stockhoder or affect hm specfcay n some other way. The number of hs hares s mmatera snce he s not sung n hs own behaf or for the protecton or vndcaton of hs own rght, or the redress of a wrong done aganst hm, ndvduay, but n behaf and for the beneft of the corporaton. 2. He has tred to exhaust ntra-corporate remedes, he has made a demand on the board of drectors for the approprate reef but the atter had faed or refused to heed hs pea. Demand, however, s not requred f the company s under the compete contro of the drectors who are the very ones to be sued (or where t becomes obvous that a demand upon them woud have been fute and useess) snce the aw does not requre a tgant to perform useess acts; 3. The stockhoder brngng the sut must aege n hs compant that he s sung on a dervatve cause of acton on behaf of the corporaton and a other stockhoders smary stuated, otherwse, the case s dsmssbe. Ths s because the cause of acton actuay devoves on the corporaton and not to a partcuar stockhoder. 4. The corporaton shoud be made a party, ether as party-pantff or defendant, n order to make the courts |udgment bndng upon t, and thus, bar future tgaton of the same ssues. On what sde the corporaton appears oses mportance when t s consdered that t ay wthn the power of the court to drect the makng of amendment of the peadng, by addng or droppng partes, as may be requred n the nterest of |ustce. Ms|onder of partes s not a ground to dsmss acton; and, 5. Any beneft or damages recovered sha pertan to the corporaton. Ths s so because n a nstances, dervatve sut s nsttuted for and n behaf of the corporaton and not for the protecton or vndcaton of a rght or rghts of a partcuar stockhoder, otherwse, the aggreved stockhoder shoud nsttute, nstead, an ndvdua or persona sut to vndcate hs persona or ndvdua rght. Or, for that matter, representatve or cass sut for a other stockhoders whose rghts are smary stuated, n|ured or voated, personay or ndvduay. Executve commttee - Not aowed under the OLD aw How may executve commttee created and consttuted? - Secton 35 Section 3#. Executve commttee. - The by- aws of a corporaton may create an executve commttee, composed of not ess than three members of the board, to be apponted by the board. Sad commttee may act, by ma|orty vote of a ts members, on such specfc matters wthn the competence of the board, as may be deegated to t n the by-aws or on a ma|orty vote of the board, except wth respect to: (1) approva of any acton for whch sharehoders' approva s aso requred; (2) the fng of vacances n the board; (3) the amendment or repea of by-aws or the adopton of new by-aws; (4) the amendment or repea of any resouton of the board whch by ts express terms s not so amendabe or repeaabe; and (5) a dstrbuton of cash dvdends to the sharehoders. - Sad commttee may act and bnd the corporaton by the ma|orty vote of a ts members except wth respect to those matters provded for n sec. 35 these are: 1. Approva of any acton for whch sharehoders approva s aso requred 2. The fng of vacances n the board; 3. Amendment or repea of by-aws or the adopton of new by-aws; 4. Amendment or repea of any resouton of the board whch by ts express terms s not so amenabe or repeaabe; and, 5. Dstrbuton of cash dvdends to the sharehoders. May the board aone create an executve commttee wthout any authorty provded for the by- aws? - NO board of drectors must st and act as a body to have a vad transacton May a non-member of the board of drectors be a member of the executve commttee? - NO, a of them must be members of the board of drectors - BOD cannot act by proxy t woud be abdcaton of powers Purpose causes necessary because t confers and aso mts the actua authorty of the corporaton CORPORATE POWERS AND AUT(ORIT/ Corporate authorty may be cassfed nto three casses namey: 1. Those expressy granted or authorzed by aw ncusve of the corporate charter or artces of ncorporaton; 2. Those mpedy granted as are essenta or reasonaby necessary to the carryng out of the express powers; 3. Those that are ncdenta to ts exstence. Secton 36 to 45- POWER GRANTED BY LAW Section 3$. Corporate powers and capacty. - Every corporaton ncorporated under ths Code has the power and capacty: 1. To sue and be sued n ts corporate name; 2. Of successon by ts corporate name for the perod of tme stated n the artces of ncorporaton and the certfcate of ncorporaton; 3. To adopt and use a corporate sea; 4. To amend ts artces of ncorporaton n accordance wth the provsons of ths Code; 5. To adopt by-aws, not contrary to aw, moras, or pubc pocy, and to amend or repea the same n accordance wth ths Code; 6. In case of stock corporatons, to ssue or se stocks to subscrbers and to se stocks to subscrbers and to se treasury stocks n accordance wth the provsons of ths Code; and to admt members to the corporaton f t be a non-stock corporaton; 7. To purchase, receve, take or grant, hod, convey, se, ease, pedge, mortgage and otherwse dea wth such rea and persona property, ncudng securtes and bonds of other corporatons, as the transacton of the awfu busness of the corporaton may reasonaby and necessary requre, sub|ect to the mtatons prescrbed by aw and the Consttuton; 8. To enter nto merger or consodaton wth other corporatons as provded n ths Code; 9. To make reasonabe donatons, ncudng those for the pubc wefare or for hospta, chartabe, cutura, scentfc, cvc, or smar purposes: Provded, That no corporaton, domestc or foregn, sha gve donatons n ad of any potca party or canddate or for purposes of partsan potca actvty; 10. To estabsh penson, retrement, and other pans for the beneft of ts drectors, trustees, offcers and empoyees; and 11. To exercse such other powers as may be essenta or necessary to carry out ts purpose or purposes as stated n the artces of ncorporaton. (13a) Section 3%. Power to extend or shorten corporate term. - A prvate corporaton may extend or shorten ts term as stated n the artces of ncorporaton when approved by a ma|orty vote of the board of drectors or trustees and ratfed at a meetng by the stockhoders representng at east two-thrds (2/3) of the outstandng capta stock or by at east two-thrds (2/3) of the members n case of non-stock corporatons. Wrtten notce of the proposed acton and of the tme and pace of the meetng sha be addressed to each stockhoder or member at hs pace of resdence as shown on the books of the corporaton and deposted to the addressee n the post offce wth postage prepad, or served personay: Provded, That n case of extenson of corporate term, any dssentng stockhoder may exercse hs apprasa rght under the condtons provded n ths code. (n) Section 3". Power to ncrease or decrease capta stock; ncur, create or ncrease bonded ndebtedness. - No corporaton sha ncrease or decrease ts capta stock or ncur, create or ncrease any bonded ndebtedness uness approved by a ma|orty vote of the board of drectors and, at a stockhoder's meetng duy caed for the purpose, two-thrds (2/3) of the outstandng capta stock sha favor the ncrease or dmnuton of the capta stock, or the ncurrng, creatng or ncreasng of any bonded ndebtedness. Wrtten notce of the proposed ncrease or dmnuton of the capta stock or of the ncurrng, creatng, or ncreasng of any bonded ndebtedness and of the tme and pace of the stockhoder's meetng at whch the proposed ncrease or dmnuton of the capta stock or the ncurrng or ncreasng of any bonded ndebtedness s to be consdered, must be addressed to each stockhoder at hs pace of resdence as shown on the books of the corporaton and deposted to the addressee n the post offce wth postage prepad, or served personay. A certfcate n dupcate must be sgned by a ma|orty of the drectors of the corporaton and countersgned by the charman and the secretary of the stockhoders' meetng, settng forth: (1) That the requrements of ths secton have been comped wth; (2) The amount of the ncrease or dmnuton of the capta stock; (3) If an ncrease of the capta stock, the amount of capta stock or number of shares of no-par stock thereof actuay subscrbed, the names, natonates and resdences of the persons subscrbng, the amount of capta stock or number of no-par stock subscrbed by each, and the amount pad by each on hs subscrpton n cash or property, or the amount of capta stock or number of shares of no-par stock aotted to each stock- hoder f such ncrease s for the purpose of makng effectve stock dvdend therefor authorzed; (4) Any bonded ndebtedness to be ncurred, created or ncreased; (5) The actua ndebtedness of the corporaton on the day of the meetng; (6) The amount of stock represented at the meetng; and (7) The vote authorzng the ncrease or dmnuton of the capta stock, or the ncurrng, creatng or ncreasng of any bonded ndebtedness. Any ncrease or decrease n the capta stock or the ncurrng, creatng or ncreasng of any bonded ndebtedness sha requre pror approva of the Securtes and Exchange Commsson. One of the dupcate certfcates sha be kept on fe n the offce of the corporaton and the other sha be fed wth the Securtes and Exchange Commsson and attached to the orgna artces of ncorporaton. From and after approva by the Securtes and Exchange Commsson and the ssuance by the Commsson of ts certfcate of fng, the capta stock sha stand ncreased or decreased and the ncurrng, creatng or ncreasng of any bonded ndebtedness authorzed, as the certfcate of fng may decare: Provded, That the Securtes and Exchange Commsson sha not accept for fng any certfcate of ncrease of capta stock uness accompaned by the sworn statement of the treasurer of the corporaton awfuy hodng offce at the tme of the fng of the certfcate, showng that at east twenty-fve (25%) percent of such ncreased capta stock has been subscrbed and that at east twenty-fve (25%) percent of the amount subscrbed has been pad ether n actua cash to the corporaton or that there has been transferred to the corporaton property the vauaton of whch s equa to twenty-fve (25%) percent of the subscrpton: Provded, further, That no decrease of the capta stock sha be approved by the Commsson f ts effect sha pre|udce the rghts of corporate credtors. Non-stock corporatons may ncur or create bonded ndebtedness, or ncrease the same, wth the approva by a ma|orty vote of the board of trustees and of at east two-thrds (2/3) of the members n a meetng duy caed for the purpose. Bonds ssued by a corporaton sha be regstered wth the Securtes and Exchange Commsson, whch sha have the authorty to determne the suffcency of the terms thereof. (17a) Section 3!. Power to deny pre-emptve rght. - A stockhoders of a stock corporaton sha en|oy pre- emptve rght to subscrbe to a ssues or dsposton of shares of any cass, n proporton to ther respectve sharehodngs, uness such rght s dened by the artces of ncorporaton or an amendment thereto: Provded, That such pre-emptve rght sha not extend to shares to be ssued n compance wth aws requrng stock offerngs or mnmum stock ownershp by the pubc; or to shares to be ssued n good fath wth the approva of the stockhoders representng two-thrds (2/3) of the outstandng capta stock, n exchange for property needed for corporate purposes or n payment of a prevousy contracted debt. Section 4&. Sae or other dsposton of assets. - Sub|ect to the provsons of exstng aws on ega combnatons and monopoes, a corporaton may, by a ma|orty vote of ts board of drectors or trustees, se, ease, exchange, mortgage, pedge or otherwse dspose of a or substantay a of ts property and assets, ncudng ts goodw, upon such terms and condtons and for such consderaton, whch may be money, stocks, bonds or other nstruments for the payment of money or other property or consderaton, as ts board of drectors or trustees may deem expedent, when authorzed by the vote of the stockhoders representng at east two-thrds (2/3) of the outstandng capta stock, or n case of non-stock corporaton, by the vote of at east to two-thrds (2/3) of the members, n a stockhoder's or member's meetng duy caed for the purpose. Wrtten notce of the proposed acton and of the tme and pace of the meetng sha be addressed to each stockhoder or member at hs pace of resdence as shown on the books of the corporaton and deposted to the addressee n the post offce wth postage prepad, or served personay: Provded, That any dssentng stockhoder may exercse hs apprasa rght under the condtons provded n ths Code. A sae or other dsposton sha be deemed to cover substantay a the corporate property and assets f thereby the corporaton woud be rendered ncapabe of contnung the busness or accompshng the purpose for whch t was ncorporated. After such authorzaton or approva by the stockhoders or members, the board of drectors or trustees may, nevertheess, n ts dscreton, abandon such sae, ease, exchange, mortgage, pedge or other dsposton of property and assets, sub|ect to the rghts of thrd partes under any contract reatng thereto, wthout further acton or approva by the stockhoders or members. Nothng n ths secton s ntended to restrct the power of any corporaton, wthout the authorzaton by the stockhoders or members, to se, ease, exchange, mortgage, pedge or otherwse dspose of any of ts property and assets f the same s necessary n the usua and reguar course of busness of sad corporaton or f the proceeds of the sae or other dsposton of such property and assets be approprated for the conduct of ts remanng busness. In non-stock corporatons where there are no members wth votng rghts, the vote of at east a ma|orty of the trustees n offce w be suffcent authorzaton for the corporaton to enter nto any transacton authorzed by ths secton. Section 41. Power to acqure own shares. - A stock corporaton sha have the power to purchase or acqure ts own shares for a egtmate corporate purpose or purposes, ncudng but not mted to the foowng cases: Provded, That the corporaton has unrestrcted retaned earnngs n ts books to cover the shares to be purchased or acqured: 1. To emnate fractona shares arsng out of stock dvdends; 2. To coect or compromse an ndebtedness to the corporaton, arsng out of unpad subscrpton, n a denquency sae, and to purchase denquent shares sod durng sad sae; and 3. To pay dssentng or wthdrawng stockhoders entted to payment for ther shares under the provsons of ths Code. (a) Section 42. Power to nvest corporate funds n another corporaton or busness or for any other purpose. - Sub|ect to the provsons of ths Code, a prvate corporaton may nvest ts funds n any other corporaton or busness or for any purpose other than the prmary purpose for whch t was organzed when approved by a ma|orty of the board of drectors or trustees and ratfed by the stockhoders representng at east two-thrds (2/3) of the outstandng capta stock, or by at east two thrds (2/3) of the members n the case of non-stock corporatons, at a stockhoder's or member's meetng duy caed for the purpose. Wrtten notce of the proposed nvestment and the tme and pace of the meetng sha be addressed to each stockhoder or member at hs pace of resdence as shown on the books of the corporaton and deposted to the addressee n the post offce wth postage prepad, or served personay: Provded, That any dssentng stockhoder sha have apprasa rght as provded n ths Code: Provded, however, That where the nvestment by the corporaton s reasonaby necessary to accompsh ts prmary purpose as stated n the artces of ncorporaton, the approva of the stockhoders or members sha not be necessary. (17 1/2a) Section 43. Power to decare dvdends. - The board of drectors of a stock corporaton may decare dvdends out of the unrestrcted retaned earnngs whch sha be payabe n cash, n property, or n stock to a stockhoders on the bass of outstandng stock hed by them: Provded, That any cash dvdends due on denquent stock sha frst be apped to the unpad baance on the subscrpton pus costs and expenses, whe stock dvdends sha be wthhed from the denquent stockhoder unt hs unpad subscrpton s fuy pad: Provded, further, That no stock dvdend sha be ssued wthout the approva of stockhoders representng not ess than two-thrds (2/3) of the outstandng capta stock at a reguar or speca meetng duy caed for the purpose. (16a) Stock corporatons are prohbted from retanng surpus profts n excess of one hundred (100%) percent of ther pad-n capta stock, except: (1) when |ustfed by defnte corporate expanson pro|ects or programs approved by the board of drectors; or (2) when the corporaton s prohbted under any oan agreement wth any fnanca nsttuton or credtor, whether oca or foregn, from decarng dvdends wthout ts/hs consent, and such consent has not yet been secured; or (3) when t can be ceary shown that such retenton s necessary under speca crcumstances obtanng n the corporaton, such as when there s need for speca reserve for probabe contngences. (n) Section 44. Power to enter nto management contract. - No corporaton sha concude a management contract wth another corporaton uness such contract sha have been approved by the board of drectors and by stockhoders ownng at east the ma|orty of the outstandng capta stock, or by at east a ma|orty of the members n the case of a non-stock corporaton, of both the managng and the managed corporaton, at a meetng duy caed for the purpose: Provded, That (1) where a stockhoder or stockhoders representng the same nterest of both the managng and the managed corporatons own or contro more than one-thrd (1/3) of the tota outstandng capta stock entted to vote of the managng corporaton; or (2) where a ma|orty of the members of the board of drectors of the managng corporaton aso consttute a ma|orty of the members of the board of drectors of the managed corporaton, then the management contract must be approved by the stockhoders of the managed corporaton ownng at east two-thrds (2/3) of the tota outstandng capta stock entted to vote, or by at east two-thrds (2/3) of the members n the case of a non-stock corporaton. No management contract sha be entered nto for a perod onger than fve years for any one term. The provsons of the next precedng paragraph sha appy to any contract whereby a corporaton undertakes to manage or operate a or substantay a of the busness of another corporaton, whether such contracts are caed servce contracts, operatng agreements or otherwse: Provded, however, That such servce contracts or operatng agreements whch reate to the exporaton, deveopment, expotaton or utzaton of natura resources may be entered nto for such perods as may be provded by the pertnent aws or reguatons. (n) Section 4#. Utra vres acts of corporatons. - No corporaton under ths Code sha possess or exercse any corporate powers except those conferred by ths Code or by ts artces of ncorporaton and except such as are necessary or ncdenta to the exercse of the powers so conferred. (n) Secton 36 Where shoud the corporaton be sued? - prncpa offce s mportant because t estabshes the resdence of the corporaton and determnng servce of summons, venue of acton - t can be sued n the cty or muncpaty where ts prncpa offce s found Prncpa offce s aso mportant for venue of meetngs Non-stock corporaton may provde n ts by- aws that the venue of meetng be anywhere n the Phppnes Upon whom servce of summons be made? - Secton 11. Servce upon domestc prvate |urdca entty- when the defendant s a corporaton, partnershp or assocaton organzed under the aws of the Phppnes wth a |urdca personaty, servce may be made upon the presdent, managng partner, genera manager, corporate secretary, treasurer, or n house counse. Deta motor vs. Mangosng - strct compance s necessary - shoud be served to those named n the statute - secretary of a dept are not those ncuded n the statute E.B. Varosa vs. Bento - decson En Banc repeas a other pronouncement - secton 13 Rue 14 was repeaed - the od rues was ambguous and broad and at a tme ogca the partcuar revson under Secton 11 of Rue 14 was expaned by retred Supreme Court |ustce Forenz Regaado, thus: "xxx the then secton 13 of ths Rue aowed servce upon a defendant corporaton to "be made on the presdent, manager, secretary, casher, agent or any of ts drectors." The aforesad terms were obvousy ambguous and susceptbe of broad and sometmes ogca nterpretatons, especay the word "agent" of the corporaton. The Fo case, nvovng the tgaton awyer of the corporaton who precsey appeared to chaenge the vadty of servce of summons but whose very appearance for that purpose was sezed upon to vadate the defectve servce, s an ustraton of the need for ths revsed secton wth mted scope and specfc termnoogy. Thus the absurd resut n the Fo case necesstated the amendment permttng servce ony on the n-house counse of the corporaton who s n effect an empoyee of the corporaton, as dstngushed from an ndependent practtoner." o notes: addtona knowedge - speca appearance enter for that partcuar appearance you are not the counse n the case - woud appy ony f t does not nvove an ntra- corporate controversy (controversy between and among the stockhoders) - upon any of the statutory offcers or offcers fxed n the by-aws any secretary, any of the drectors; any managers n the by-aws Sea - merey mnstera or permssve Power to amend - secton 16 - speca 37,38,120 Power to adopt by-aws - secton 46-48 Power to ssue or se stocks and to admt members - stock of stockhoders and provson governng non-stock Power to acqure or aenate rea or persona property - s there any mtaton? YES - Two specfc mtaton 1. Secton 36, as awfu transactons of busness of the corporaton may reasonaby and necessary requre 2. Consttuton and aw Luneta vs. A.D. Santos - Importance of the purpose cause - Cannot have the power to acqure - Cannot engage n and transportaton - Doctrne of mted capacty Govt vs. E Hogar - As the awfu transacton of ts busness may reasonaby represent Drector of Lands vs. CA - Excepton to the rue n the consttuton - Aenabe pubc and - Converts the property to a prvate and automatcay once converted t can now be regstered Power to make donaton - Lmtaton secton 36 par.9 - These are crcumstances, however, under whch a donaton by a corporaton may be to ts beneft as a means of ncreasng ts busness or promotng patronage. Thus, paragraph 9 of secton 36 expressy authorzes a corporaton to make donatons. The ony mtatons mposed are the foowng: 1. The donaton must be "reasonabe"; 2. It must be for pubc wefare, or for hospta, chartabe, scentfc, cutura or smar purpose; and, 3. It sha not be n ad of potca party or canddate, or for purposes of partsan potca actvty. Power to estabsh penson - Incude any act to promote and mprove the convenence, wefare and beneft of the empoyees or offces Repubc vs. Aco|e - Whe as a rue an utra-vres act s one commtted outsde the ob|ect for whch a corporaton s created as defned by aw, there are however certan corporate acts that may be performed outsde of the scope of the powers expressy conferred f they are necessary to promote the nterest or wefare of the corporaton. Thus, t has been hed that "athough not expressy authorzed to do so a corporaton may become a surety where the partcuar transacton s reasonaby necessary or proper to the conduct of ts busness," and here t s undsputed that the estabshment oca post offce s a reasonabe and proper ad|unct to the conduct of the busness of appeant company. Indeed, such post offce s a vta mprovement n the vng condton of ts empoyees and aborers who came to sette n ts mnng camp whch s far removed from the posta factes or means of communcaton accorded to peope vng n a cty or muncpaty. Power to exercse such other powers essenta or necessary to carry out ts purpose (mped power) 1. Acts n the usua course of busness; 2. Acts to protect debts owng to the corporaton; 3. Embarkng n a dfferent busness; 4. Acts n part or whoy to protect or ad empoyees; and, 5. Acts to ncrease busness Teresa Eectrc and Power Co. vs. P.S.C. - Examned the artces of ncorporaton to arrve at ts decson Natona Power vs. Vera - For purpose of prohbtng the NAPOCOR - The court must decde whether or not a ogca and necessary reaton exsts between the act questoned and the corporate purpose expressed n the NPC charter Importance of PLACE of regstraton - Resdence - Venue - Pace of meetngs - Pace or regstraton of chatte mortgage Power to extend ts terms - Once ts term expres, aready dssoved automatcay, thus can no onger ask for extenson - After dssouton, t has 3 years to wndup What are the modes of ncreasng capta stock? 1. Increasng the par vaue of the exstng number of shares wthout ncreasng the number of shares; 2. Increasng the number of exstng shares wthout ncreasng the par vaue thereof; and, 3. Increasng the number of exstng shares and at the same tme ncreasng the par vaue of the shares. Why a corporaton ncreases t capta stock? - Generate funds, busness expanson, or payment of abtes, purposes of acqurng other busness. (exampe: to buy cars for the offcers, purpose of acqurng other busness, expanson, other vad reasons) How do you decrease capta stock and why a corporaton decreases? - Reduce or wpeout exstng defct where no credtors woud thereby be effected - When capta s more than necessary to procreate the busness or reducton of capta surpus - To wrte down the vaue of ts fxed assets to refect those present and actua o NOTE: any ncrease or decrease of capta stock requres approva of government agency ke SEC t can never take pace uness SEC approves the same Reevance of decrease of capta? 1. To reduce or wpe out exstng defct where no credtors woud thereby be affected; 2. When the capta s more than what s necessary to procreate the busness or reducton of capta surpus; or, 3. To wrte down the vaue of ts fxed assets to refect there present actua vaue n case where there s a decne n the vaue of the fxed assets of the corporaton. - Exampes: Php 10M capta for grocery busness, mayor ddnt want to ssue cense/permt because mayor has 3 other grocery stores, ony aowed sar-sar store permt, reduce capta for sar-sar so that the money w not seep n bank - Exampe: car renta agences-Php 10M capta for 20 taxs, after some tme each tax s ony 250K, nagmura ang tax, to reduce capta s to show actua assets Lmtaton mposed by aw - Decrease sha not n any way affect the rghts of the credtors Phppne Trust Company vs. Rvera - Wthout the apprasa of SEC, a decrease n capta stocks has no effect TRUST FUND DOCTRINE: - Subscrpton to capta stock of a corporaton consttute a fund to whch the credtors have a rght to ook upon for satsfacton of ther cams and that the assgnee n nsovency can mantan an acton upon any unpad stock subscrpton n order to reaze assets for the payment of ts debts. Madrga vs. Zamora - Decrease n capta has a subterfuge to evade payment - Thus not vad and effectve - Must not pre|udce credtors whch ncudes the empoyees Bond - Commony understood as an obgaton of a state, ts subdvson or a prvate corporaton, represented by a certfcate or an nstrument for the prncpa and by detachabe coupons for the payment of nterests. In ts smpest term, t s one where an obgor obges hmsef to pay a certan sum of money to another at a day named. - There are dfferent knds of bond but before they may be ssued or foated by the corporaton, the same must be regstered and approved by the SEC sub|ect to the rues and reguatons that may be adopted by that agency. The procedure and requrements set forth n secton 38 s the same as n ncreasng or decreasng the capta stock except that the certfcate does not have to state the matters requred n sub- secton 2 & 3 thereof. Pre-emptve rghts - A rght granted by aw to a exstng stockhoders of a stock corporaton to subscrbe to a ssues or dsposton of shares of any cass, n proporton to ther respectve stockhodngs, sub|ect ony to the mtatons mposed under secton 39 of the Code. - Internatonay granted Pre-emptve rghts, why t s granted? - In order that the exstng stockhoders may mantan ther proportonate rght as not to dute ther rght Power to deny pre-emptve rghts Section 3!. Power to deny pre-emptve rght. - A stockhoders of a stock corporaton sha en|oy pre- emptve rght to subscrbe to a ssues or dsposton of shares of any cass, n proporton to ther respectve sharehodngs, uness such rght s dened by the artces of ncorporaton or an amendment thereto: Provded, That such pre-emptve rght sha not extend to shares to be ssued n compance wth aws requrng stock offerngs or mnmum stock ownershp by the pubc; or to shares to be ssued n good fath wth the approva of the stockhoders representng two-thrds (2/3) of the outstandng capta stock, n exchange for property needed for corporate purposes or n payment of a prevousy contracted debt. May t be dened? How? - Yes, f provded by artces of ncorporaton or by an amendment - However, pre-emptve rghts s unavaabe to shares n tradng n stock exchange otherwse stockhoders must wave frst ther rght before they may se such. Exceptons 1. When the shares to be ssued s n compance wth aws requrng stock offerngs or mnmum stock ownershp by the pubc 2. Shares to be ssued n good fath wth the approva of the stockhoders representng 2/3 of the outstandng capta stock ether a. In exchange for property needed for corporate purpose or, b. In payment of a prevousy contracted debt - The exceptons, however w not appy to stockhoders of a cose corporaton by vrtue of a subsequent and specfc provson of the Code whch provdes that the "pre-emptve rght of a stockhoder n a cose corporaton sha extend to a stock to be ssued, ncudng ressuance of treasury shares, whether for money, property or persona servces or n payment of a corporate debt, uness the artces of ncorporaton provde otherwse, f not entrey absoute, n that t extends to a ssuance and dsposton of shares - Such rght of pre-empton may be ost by waver of the stockhoder, expressy or mpedy by hs nabty or faure to exercse t after havng been notfed of the proposed ssuance or dsposton of shares When s t unavaabe? - In shares traded openy n stock exchange/market Is t appcabe to cose corporatons? - See secton 96, cose corporatons must provde t frst on ts artces of ncorporaton, that ts artces does not reay deny such pre-emptve rghts. Secton 102, w not appy to cose corporatons The rght of pre-emptve rghts s absoute n cose corporatons "A ssues or depostng shares of any cass" form part of ACS Certan nstances when a stockhoder may nevertheess be unabe to exercse ths rght: - Issued for pubc ownershp - Issued n good fath, wth approva of 2/3 of outstandng capta stock ether a) n exchange for property needed or b) for payment of a prevousy contracted debt Pre- emptve rghts of stockhoders n ordnary stock corporatons may be dened - f the shares are to be ssued n compance wth aws requrng stock offerng or mnmum stock ownershp by the pubc - In exchange for property needed for corporate purposes - In payment of prevousy contracted debts Ths rue, however, does not appy n a cose corporaton as the pre-emptve rghts of the stockhoders thereof s broadened to ncude a ssues wthout exceptons uness, of course, dened or mted by the artces of ncorporatons. Secton 102 provdes: Section 1&2. Pre-emptve rght n cose corporatons. - The pre-emptve rght of stockhoders n cose corporatons sha extend to a stock to be ssued, ncudng ressuance of treasury shares, whether for money, property or persona servces, or n payment of corporate debts, uness the artces of ncorporaton provde otherwse. Dena w not appy to a cose corporaton, ABSOLUTE - secton 96 May a stock hoder n a cose corporaton nsst n the exercse of hs pre-emptve rghts? - Yes, secton 102 What type or shares are covered by pre- emptve rghts? Does t ncude those orgnay unsubscrbed? - NO. Bento vs. SEC W the stockhoders be abe to exercse ther pre-emptve rght wth respect to the od unssued shares? - Pre-emptve rghts s appcabe ony to new ssued shares and not to the od unssued shares because t s presumed that the orgna subscrbers s deemed to have taken hs shares knowng that they form a defnte proportonate part of the whoe number of authorzed shares - When the shares, eft unsubscrbed are re- offered, he cannot therefore cam. DILUTION OF INTEREST W the acqurng purchaser be abe for debts of the former corporaton? - Generay no, corporate entty theory because there may be nstances when purchasng corporaton may be hed abe May a corporaton acqure ts own shares? - Yes Is there any restrcton provded for by aw n reacqurng ts own shares? - Yes, t must have been unrestrcted retaned earnngs appearng n the books of corporaton A corporaton can never acqure ts own shares f t has no unrestrcted retaned earnngs - Fase, excepton cose corporaton and redeemabe shares EXAMPLE: ACS 2M SUBSCRIBED 1M PAID UP 1M 1 100K 2 100K TO 10 100K If 1-5 became 200K each, may 6-10 demand the exercse ther pre-emptve rght? - YES May 1-5 subscrbe to the unsubscrbed capta stock to the excuson of 6-10? - If a corporaton makes 2M unrestrcted retaned earnngs, t s the shares and not the number of persons that matters May 6-10 compan for a duton of ther nterest? - YES, ts an nternatonay recognzed rght because t ncudes "a ssues and dsposton of shares of any cass" and a knds of shares new or od - If the remanng unsubscrbed shares are ssued, ts an ssuance of any cass May a corporaton se/dspose a or substantay a of ts corporate assets and abtes? - YES - 1) RESOLUTION 2) AUTHORIZATION 3) RATIFICATION 4) PRIOR WRITTEN NOTICE 5) SALE SUB|ECT TO PROVISIONS OF EXITING LAWS 6) DISSENTING STOCKHOLDERS HAVE THE RIGHT TO EXERCISE THEIR APPRAISAL RIGHT If a corporaton ses substantay a of t assets and propertes, w the buyer assume abty? - NO, EXCEPT 1) Express or mped agreement to the purchase 2) Where the transacton amounts to consodaton or merger of the corporatons 3) When purchasng corporaton s merey a contnuaton of the seng corporaton 4) Where the transacton s entered nto frauduenty n order to escape abty for such debt Legtmate purpose: for a corporaton to reacqure ts own shares - Lmtaton: t must have surpus/unrestrcted retaned earnngs - Excepton: may redeem rrespectve of unrestrcted retaned earnngs 1) Exercse of stockhoders rght to compe "cose corporaton" to purchase hs shares 2) Where corporaton has suffcent assets n ts books to cover ts debts and abtes excusve of capta stock ACS 1M SUBSRIBED 1M PAID-UP 1M ASSETS 500K 1M PROFITS - 500K LIABILITIES ____________________ 500K RESERVES IN A CLOSE CORPORATION IT CAN USE THIS TO REACOUIRE ISSUED STOCKS X - REALTY CORPORATION THE ONLY PROPERTY OF THE CORPORATION BOARD OF DIRECTORS DECIDED TO SELL IT W t need the approva of the stockhoders? - NO, f the same s necessary n the usua and reguar course of busness of sad corporaton or f the proceeds of the sae or other dsposton of such property and assets be approprated for the conduct of ts remanng busness If X s a manufacturng company, then t can se ts ony property upon approva of the stockhoders because t w render tsef capabe of contnung ts busness, BUT f the proceeds w be used to purchase a better one for the contnuance of ts busness, then t does not need the approva of the stockhoders Condtons for the vad exercse of ths power are the foowng 1. Resouton by the ma|orty vote of the board of drectors/trustees 2. Authorzaton from the stockhoders representng at east 2/3 of the outstandng capta stock or 2/3 of the members; 3. The ratfcaton of the stockhoders or members must be made at a meetng duy caed for that purpose 4. Pror wrtten notce of the proposed acton and of the tme and pace of meetng must be made addressed to a stockhoders of record, ether by ma or persona servce; 5. The sae of the assets sha be sub|ect to the provsons of exstng aws on ega combnatons and monopoes 6. Any dssentng stockhoder sha have the opton to exercse hs apprasa rght IDP vs. CA - Consent of the members was not secured Edward Ne Co. vs. Pacfc Farms - Generay where one corporaton ses or otherwse transfers a of ts assets to another corporaton, the atter s not abe for the debts and abtes of the transferor, except: 1. Where the purchaser expressy or mpedy agrees to assume such debts; 2. Where the transacton amounts to a consodaton or merger of the corporatons; 3. Where the purchasng corporaton s merey a contnuaton of the seng corporaton; 4. Where the transacton s entered nto frauduenty n order to escape abty for such debts. Power to acqure own shares Section 41. Power to acqure own shares. - A stock corporaton sha have the power to purchase or acqure ts own shares for a egtmate corporate purpose or purposes, ncudng but not mted to the foowng cases: Provded, That the corporaton has unrestrcted retaned earnngs n ts books to cover the shares to be purchased or acqured: 1. To emnate fractona shares arsng out of stock dvdends; 2. To coect or compromse an ndebtedness to the corporaton, arsng out of unpad subscrpton, n a denquency sae, and to purchase denquent shares sod durng sad sae; and 3. To pay dssentng or wthdrawng stockhoders entted to payment for ther shares under the provsons of ths Code. (a) The corporaton must at a tmes have "unrestrcted retaned earnngs" to exercse ths corporate power Stenberg vs. Veasco - For as ong as there are debts and abtes, a corporaton may not reacqure ts shares (sub|ect to exceptons) - Credtors of a corporaton have the rght to assume that so ong as there are outstandng debts and abtes, the board of drectors w not use the assets of the corporaton to purchase ts own stock, and that t w not decare dvdends to stockhoders when the corporaton s nsovent. Power to nvest funds <sec.42> Section 42. Power to nvest corporate funds n another corporaton or busness or for any other purpose. - Sub|ect to the provsons of ths Code, a prvate corporaton may nvest ts funds n any other corporaton or busness or for any purpose other than the prmary purpose for whch t was organzed when approved by a ma|orty of the board of drectors or trustees and ratfed by the stockhoders representng at east two-thrds (2/3) of the outstandng capta stock, or by at east two thrds (2/3) of the members n the case of non-stock corporatons, at a stockhoder's or member's meetng duy caed for the purpose. Wrtten notce of the proposed nvestment and the tme and pace of the meetng sha be addressed to each stockhoder or member at hs pace of resdence as shown on the books of the corporaton and deposted to the addressee n the post offce wth postage prepad, or served personay: Provded, That any dssentng stockhoder sha have apprasa rght as provded n ths Code: Provded, however, That where the nvestment by the corporaton s reasonaby necessary to accompsh ts prmary purpose as stated n the artces of ncorporaton, the approva of the stockhoders or members sha not be necessary. (17 1/2a) - For any other purpose other than the prmary purpose, stockhoders consent or approva s necessary - Thus, f ts for the secondary purpose, t s necessary - If ts n connecton wth the prmary purpose, ony board resouton s necessary Requrements and steps to be foowed for a vad nvestment of corporate funds are: 1. Resouton by the ma|orty of the board of drectors or trustees; 2. Ratfcaton by the stockhoders representng at east 2/3 of the outstandng capta stock or 2/3 of the members n case of non-stock corporatons; 3. The ratfcaton must be made at a meetng duy caed for that purpose; 4. Pror wrtten notce of the proposed nvestment and the tme and pace of the meetng sha be made, addressed to each stockhoder or member by ma or by persona servce, and; 5. Any dssentng stockhoder sha have the opton to exercse hs apprasa rght Dea rama vs. Ma-ao Sugar - There s a substanta and not remote connecton between the sugar bags and the sugar manufacture, thus stockhoders approva s not necessary for vadty - A prvate corporaton, n order to accompsh ts purpose as stated n ts artces of ncorporaton, and mposed by the Corporaton Law, has the power to acqure, hod, mortgage, pedge, or dspose of shares bonds, securtes and other evdences of ndebtedness of any domestc or foregn corporaton. Such an act, f done n pursuance of the corporate purpose, does not need the approva of the stockhoders; but when the purchase of shares of another corporaton s done soey for nvestment and not to accompsh the purpose of ts ncorporaton, the vote of approva of the stockhoders s necessary. Gokongwe vs. SEC - Investments made by SMC s necessary connected wth ts prmary purpose and ths was ratfed n a meetng - Submsson of prevous acton s a sound corporate practce Redeemabe shares Cosed corporaton (see secton 105) - For any reason, compe the vaue of shares "wthdrawa shares" provded corporaton has suffcent funds to cover ts debts and abtes Section 1&#. Wthdrawa of stockhoder or dssouton of corporaton. - In addton and wthout pre|udce to other rghts and remedes avaabe to a stockhoder under ths Tte, any stockhoder of a cose corporaton may, for any reason, compe the sad corporaton to purchase hs shares at ther far vaue, whch sha not be ess than ther par or ssued vaue, when the corporaton has suffcent assets n ts books to cover ts debts and abtes excusve of capta stock: Provded, That any stockhoder of a cose corporaton may, by wrtten petton to the Securtes and Exchange Commsson, compe the dssouton of such corporaton whenever any of acts of the drectors, offcers or those n contro of the corporaton s ega, or frauduent, or dshonest, or oppressve or unfary pre|udca to the corporaton or any stockhoder, or whenever corporate assets are beng msapped or wasted. If shares are reacqured, what happens? - It becomes treasury shares Stockhoders consent/ approva s not necessary and mere board acton s suffcent f n accordance wth prmary purpose The ogca reaton of act done and prmary purpose of corporaton and between the board of drectors to undertake submsson of acts s a sound corporate practce Dvdends Section 43. Power to decare dvdends. - The board of drectors of a stock corporaton may decare dvdends out of the unrestrcted retaned earnngs whch sha be payabe n cash, n property, or n stock to a stockhoders on the bass of outstandng stock hed by them: Provded, That any cash dvdends due on denquent stock sha frst be apped to the unpad baance on the subscrpton pus costs and expenses, whe stock dvdends sha be wthhed from the denquent stockhoder unt hs unpad subscrpton s fuy pad: Provded, further, That no stock dvdend sha be ssued wthout the approva of stockhoders representng not ess than two-thrds (2/3) of the outstandng capta stock at a reguar or speca meetng duy caed for the purpose. (16a) Stock corporatons are prohbted from retanng surpus profts n excess of one hundred (100%) percent of ther pad-n capta stock, except: (1) when |ustfed by defnte corporate expanson pro|ects or programs approved by the board of drectors; or (2) when the corporaton s prohbted under any oan agreement wth any fnanca nsttuton or credtor, whether oca or foregn, from decarng dvdends wthout ts/hs consent, and such consent has not yet been secured; or (3) when t can be ceary shown that such retenton s necessary under speca crcumstances obtanng n the corporaton, such as when there s need for speca reserve for probabe contngences. (n) What are dvdends? - Corporate profts set asde, decared and ordered by the Board of Drectors to be pad to the stockhoders. What are property dvdends? - Those pad n property surpus Lke tabes and chars? Can tabes and chars make surpus profts? - No, they do not make surpus, bonds, etc. Where shoud dvdends come from? - Stock dvdends are decared as stocks comng from corporaton Who decares dvdends to be decared? Do stockhoders have any say? - Board of Drectors, f stock approva of 2/3 outstandng capta stock ACS-1M SUB-1M P.U.-1M 1M-U.R.E. (surpus profts of the corporaton) 1-100k 2-100k To 10-100k 1M Board decdes to decare 1M, how much w each receve? May the board decare stock dvdend - NO. that woud be over ssuance of shares, voaton of securtes reguaton code - It must have a free porton - The corporaton may ncrease ts capta Z co. 1M to X Co. s 2/3 of Xco. Stockhoders reacqured? - No, because n property 2/3 s not requred What s the effect of decaraton of dvdends wth regards to the assets of a company? - As compared to stock dvdends, the decaraton of cash or property dvdends have the effect of reducng corporate assets to the extent of dvdends decared. - Nether woud stock dvdends ncrease the proportonate nterest of the stockhoders of the corporaton athough t w have the effect of ncreasng the subscrbed and pad-up capta of the corporaton. It gves the stockhoders nothng n the way of dstrbuton of assets but merey dvdes hs exstng shares nto smaer unts. Earnngs beong to the corporaton unt decared or gven Revocaton - No revocaton of dvdend may be has uness t has not been offcay communcated to the stockhoders or s n the form of stock dvdends whch s revocabe at any tme pror to dstrbuton. Stock dvdends- no reducton, you captaze your restrcted retaned earnngs, what s ssued s a pece of paper. The restrcted earnngs reman n the corporaton Cash and property- reduces corporate assets Stock dvdends ncrease corporate assets? No, t w ony have the effect of ncreasng the subscrbed and pad-up capta of the corporaton W there be a correspondng ncrease n ther proportonate nterest? - REMAINS THE SAME - Excepton: when stock dvdends w resut n a fractona share ACS-2M 1-100K 200 (10%) *VOTING AND DIVIDEND RIGHTS STILL THE SAME SUB-1M TO 10% PU-1M 10-100K ACS 2M SUB 1M PU 1M 1M RE 1 100K 2 100K TO 10 100K 1M May they be compeed? - NO. You cannot decare f t does not come from unrestrcted retaned earnngs. 1. 1M-U.R.E. (s t true there s no way to compe?) 2. 2M-U.R.E. May they be compeed to decare dvdends - Mandatory f earned, the board may be compeed to decare dvdends - f exceeds 100% of the pad-up capta the boards may be compeed ACS 2M 1M U.R.E. SUB 1M PU 800K 1-100K 50K PU 2-100K 50K TO 10-100K 1M W 1 and 2 receve fu amount of dvdends? - YES. They are entted however f they are decared denquent, the amount due them sha frst be apped to hs denquency pus expenses. Denquency occurs, you are caed to pay, but you faed to pay. In case of stock dvdend, the denquent stock hoder w not be entted thereto unt he has pad hs subscrpton n fu. Are non-stockhoders entted to receve dvdends? - No, tock dvdends are cv fruts of the orgna nvestment, and to the owners of the shares beong the cv fruts. How dd the court decde dvdends n the case of Nesen - Stock dvdends cannot be ssued to a person who s not a stockhoder n payment of servces rendered. - Whether cash, property or stock, ony stockhoders may receve dvdends. Dvdends are fruts of nvestments. They come from the U.R.E. or surpus profts of the corporaton. ACS 2M 1M U.R.E. SUB 1M |ULY 24 DECLARATION |ULY 31 PU 1M 1 100K 100T |ULY 26-Y(NEW ONE WAS DECLARED TO Y) |ULY 30- 100K 2 TO TO HAVE THE TRANSFER RECORDED 10 100K 1M Insofar as 1 and Y who has a better rght? Aready decared, but not yet pad? - Rght to receve vest upon decaraton. Who ever owns at the tme of decaraton owns the dvdends - Uness there s a stpuaton to the contrary TRUST FUND DOCTRINE - The power to decare t f pad-up capta s not mantaned or s mpared - Trust fund must be kept ntact for the protecton of credtors who have the rght to rey on such subscrpton and the pad-up capta for the satsfacton of ther cams Cannot accumuate surpus unreasonaby Bass s the pad-up capta Entted to dvdends Irrespectve of whether the subscrpton s fu Iegay decared - Decare dvdend wth the beef that t formed part of the U.R.E., but yun paa sa capta Drectors are not abe, uness sec31 acted n bad fath or gross neggence n the conduct of corporate affars Drectors even f actng n behaf of the corporaton, may st be hed sodary abe Power to enter nto management contract - New provson Section 44. Power to enter nto management contract. - No corporaton sha concude a management contract wth another corporaton uness such contract sha have been approved by the board of drectors and by stockhoders ownng at east the ma|orty of the outstandng capta stock, or by at east a ma|orty of the members n the case of a non-stock corporaton, of both the managng and the managed corporaton, at a meetng duy caed for the purpose: Provded, That (1) where a stockhoder or stockhoders representng the same nterest of both the managng and the managed corporatons own or contro more than one-thrd (1/3) of the tota outstandng capta stock entted to vote of the managng corporaton; or (2) where a ma|orty of the members of the board of drectors of the managng corporaton aso consttute a ma|orty of the members of the board of drectors of the managed corporaton, then the management contract must be approved by the stockhoders of the managed corporaton ownng at east two-thrds (2/3) of the tota outstandng capta stock entted to vote, or by at east two-thrds (2/3) of the members n the case of a non-stock corporaton. No management contract sha be entered nto for a perod onger than fve years for any one term. The provsons of the next precedng paragraph sha appy to any contract whereby a corporaton undertakes to manage or operate a or substantay a of the busness of another corporaton, whether such contracts are caed servce contracts, operatng agreements or otherwse: Provded, however, That such servce contracts or operatng agreements whch reate to the exporaton, deveopment, expotaton or utzaton of natura resources may be entered nto for such perods as may be provded by the pertnent aws or reguatons. (n) The requrement for a vad management contract are as foows: 1. Resouton of the board of drectors 2. Approva by the stockhoders hodng or representng a ma|orty of the outstandng capta stock or ma|orty of the members n case of non-stock corporaton of both the managng and the managed corporaton 3. The approva of the stockhoders or members must be made at the meetng caed for that purpose 4. The contract sha not be for a perod onger than 5 years for any one term, except those whch reate to exporaton, deveopment or utzaton of natura resources whch may be entered nto for such perods as may be provded by pertnent aws and reguatons Every corporate act emanates from the BOARD Is the votng requrements of a ma|orty stockhoder ABSOLUTE? - Not ony a ma|orty but 2/3 of the outstandng capta stock or 2/3 of the members n a non-stock corporaton woud be requred for the approva of a management contract n the foowng nstances: 1. Where the stockhoders representng the same nterest of both the managng and managed corporaton own or contro more than 1/3 of the tota outstandng capta stock of the managng corporaton; and 2. Where a ma|orty of the members of the board of drectors of the managng corporaton aso consttute a ma|orty of the drectors of the managed corporaton 3. Where the contract woud consttute the management or operaton of a or substantay a of the busness of another corporaton, whether such contracts are caed servce contracts. If t w not consttute the management of a or substantay a of the busness of another corporaton the frst paragraph of secton 44 w appy and not that of the second, that s, ony the vote of the stockhoders hodng or representng at east a ma|orty of the outstandng capta stock or ma|orty of the members n the case of non-stock corporaton w be requred. How ong? - Not onger than 5 years for any one term - Excepton: exporaton, deveopment or utzaton of natura resources What s an utra-vres act or contract? - Doctrne of mted capacty. Corporaton can do such acts and thngs as t s aowed to do - Acts beyond t w be utra vres, aowng a coatera attack - If not ega per se merey vodabe. Can be ratfed expressy or mpedy or even stopped as equtabe grounds - Utra-vres acts whch are not ega per se may become bndng and enforceabe ether by satsfacton, estoppes or equtabe grounds Consequences of utra-vres acts? 1. On the corporaton tsef - The proper forum, n accordance wth the provsons of PD 902-A, as amended and R.A. No. 8799 may suspend or revoke, after proper notce and hearng, the franchse or certfcate of regstraton of the corporaton for serous msrepresentaton as to what the corporaton can do or s dong to the great damage or pre|udce of the genera pubc 2. On the rghts of the stockhoders - A stockhoder may brng ether an ndvdua or dervatve sut to en|on a threatened utra-vres act or contract. If the act or contract has aready been performed, a dervatve sut for damages aganst the drectors may be fed, but ther abty w depend on whether they acted n good fath and wth reasonabe dgence n enterng nto the contract. 3. On the mmedate partes - The courts have not agreed as to the ega effect of a corporate contract outsde of ts authorzed busness but Baatne gves the foowng summary of the doctrnes evoved: a. If the contract s fuy executed on both sdes, the contract s effectve and the courts w no nterfere to deprve ether party of what has been acqured under t b. If the contract s executory on both sdes, as a rue, nether party can mantan an acton for ts non- performance c. Where the contract s executor on one sde ony, and has been fuy performed on the other, the courts dffer as to whether an acton w e on the contract aganst the party who has receved benefts of performance under t. Ma|orty of the courts, however, hod that the party who has receved benefts from the performance s estopped to set up that the contract s utra-vres to defeat an acton on the contract. Ths s more n conformty wth the doctrne that no person sha be aowed to enrch hmsef at the expense of another Prvano vs. Dea Rama - Court ooked nto the purpose cause - The purpose cause empowers and mts - Artces kewse provde that t may dea wth any of ts money - "dea" broad enough to cover the donaton t s not then utra-vres - Not ega per se hence (aw of agency) excess powers are sub|ect to ratfcaton - Ratfed by passng the resouton n queston Caros vs. Mndoro sugar Co. - PTC- trust company as such, t aso has mped powers as to make them more attractabe - Not utra-vres n pursuance of ts egtmate busness |apanese war notes vs. SEC - Non-stock corporatons cannot make profts and dstrbute profts to ts sharehoders - Utra-vres because |apanese war notes s a non-stock corporaton Crsoogo-|ose vs. CA (ALWAYS ASKED BY DEAN SUNDIANG) - The negotabe nstruments aw whch hods an accommodaton party abe on the nstrument to a hoder for vaue, athough such hoder at the tme of takng the nstrument knew hm to be ony an accommodaton party, does not ncude nor appy to corporatons whch are accommodaton partes. Ths s because the ssue or ndorsement of negotabe paper by a corporaton wthout consderaton and for the accommodaton of another s utra-vres - Corporate offcers may guarantee or endorse an accommodaton ony f specfcay authorzed Secton 36 paragraph 11 Secton 10 Secton 14 and 15 Corporate powers depend on the agreement of the stockhoders rather than any drector - It may se and t may guarantee, contract not necessary ega, t w n the absence of proof to the contrary presumed wthn ts power. Corporatons are presumed to contract wth n ts powers- CARLOS CASE - Purpose cause may be stretched to cover PLDT nternet. It may be wthn ts busness. - May t se computers? NO! other ne of busness. Its tradng! B/0LAWS By-Laws - Rue adopted by the corporaton for ts nterna governance Is the adopton of by-aws mandatory? When shoud the by-aws be adopted or fed? Can t not be adopted earer? - After ncorporaton- wthn 1 month (emanates from the BOARD) - Pror-more convenent (sgned by the ncorporators) Who w sgn the adopton cause? - Ma|orty of the stockhoders or members attested to by the corporate secretary What happens f the corporaton fas to adopt the by-aws from the te provded by the aw? Woud there be an automatc revocaton or suspenson? - Proper notce and hearng, must frst be comped wth Loyoa grand vas vs. CA - Not the SEC, but the HIGC - Must - not aways mperatve - Fng of by-aws mandatory - Empowered by SEC - Merey a ground, there must be proper notce and hearng - Not affect the status of the corporaton as a |urdca person - Sub|ect the corporaton to a fne, as may be ssued by the SEC When do by-aws become effectve? - Unt and uness the SEC gves t stamped of approva - Suspenson of any government agency. The permsson must frst be secured- secton 46 Eements of a vad by-aw 1. It must not be contrary to aw, pubc pocy or moras; 2. It must not be nconsstent wth the artces of ncorporaton; 3. It must be genera and unform n ts effect or appcabe to a ake or those smary stuated; 4. It must not mpar obgatons and contracts or vested rghts; and 5. It must be reasonabe. - Must not be nconsstent wth exstng aws. Not be nconsstent wth artces of ncorporaton By-aws - None fng woud not affect the status of the corporaton, Loyoa grand vas case - The word "must" s not aways mperatve - Stockhoders are conusvey presumed to know the provsons of the by-aws How about 3 rd persons? - NO. uness there s actua knowedge of the same they are not presumed to know of the provsons of the by-aws Fescher vs. Botka Noasco - Shares of stock are persona propertes - Shares of stock may transfer to whom ever he wshes - The by-aws s contrary to aw Artces of ncorporaton - May provde reasonabe restrcton - By-aws merey nterna aws - Artces s the contract between and among the partes and corporaton Govt vs. E Hogar - Dd the court categorcay rued here that the provson n the 5 th cause of acton s vad? - Rues governng equty, consderng the fact that there was aways ack of quorum - Secton 29 BOD f st consttutng a quorum may f up a vacancy other than by remova, etc. Gokongwe vs. SEC - Secton 48 aows a corporaton to amend t by- aws - Secton 47 of the code, the by-aws may provde for the quafcaton and dsquafcaton - It cannot be sad Gokongwe has a vested rghts - Prevent drectors from takng advantage of poston to promote hs ndvdua nterest to the damage of others - The vadty or reasonabeness of a by-aws s a queston of aw - Sub|ect to the mtatons that reasonabeness of a by-aw s a mere matter of |udgment - Rue of the ma|orty and not the tyranny of the mnorty May the by-aws be amended atered or appeaed? - YES. HOW? Two modes 1. By a ma|orty vote of the drectors or trustees and the ma|orty vote of the outstandng capta stock or members n a non-stock corporaton, at a reguar or speca meetng caed for that purpose; 2. By the board of drectors aone when deegated by 2/3 of the outstandng capta stock or 2/3 of the members n a non-stock corporaton. - Ths deegated power, however, s consdered revoked whenever a ma|orty of the outstandng capta stock or members sha so vote at a reguar or speca meetng. If t s to be amended what s the proceedng? - Secton 48 2 nd paragraph provdes: Section 4". Amendments to by-aws. - The board of drectors or trustees, by a ma|orty vote thereof, and the owners of at east a ma|orty of the outstandng capta stock, or at east a ma|orty of the members of a non-stock corporaton, at a reguar or speca meetng duy caed for the purpose, may amend or repea any by-aws or adopt new by-aws. The owners of two-thrds (2/3) of the outstandng capta stock or two-thrds (2/3) of the members n a non-stock corporaton may deegate to the board of drectors or trustees the power to amend or repea any by-aws or adopt new by-aws: Provded, That any power deegated to the board of drectors or trustees to amend or repea any by-aws or adopt new by-aws sha be consdered as revoked whenever stockhoders ownng or representng a ma|orty of the outstandng capta stock or a ma|orty of the members n non-stock corporatons, sha so vote at a reguar or speca meetng. Whenever any amendment or new by-aws are adopted, such amendment or new by-aws sha be attached to the orgna by-aws n the offce of the corporaton, and a copy thereof, duy certfed under oath by the corporate secretary and a ma|orty of the drectors or trustees, sha be fed wth the Securtes and Exchange Commsson the same to be attached to the orgna artces of ncorporaton and orgna by-aws. The amended or new by-aws sha ony be effectve upon the ssuance by the Securtes and Exchange Commsson of a certfcaton that the same are not nconsstent wth ths Code. (22a and 23a) Baretto vs. La Prevsora - Any corporate act emanates from the board - Drectors themseves cannot amend the by- aws f they were not granted the same Secton 48 The power granted s not sub|ect to revocaton T or F? - FALSE If the by-aws are amended when w they become vad? - Upon ssuance of the SEC that they are not nconsstent What f the SEC faed to act wthn 10 months wthout faut attrbutabe to the corporaton? T or F any amendment of the by-aws w never become vad unt t gves ts stamp of approva even after 1 year - TRUE. Artces of ncorporaton and by-aws are dfferent MEETINGS Meetngs - Meetngs of stockhoders 1. Date fxed n the by-aws or by-aw - Meetngs of drector or trustees Meetngs are reguar and speca Meetngs of stockhoders What s reguar and what s speca? When are reguar meetngs of the stockhoders hed? - Fxed date provded by the by-aws What f there s no date? - Apr Why apr? - Pont n tme the audted fnanca statement have been prepared What f n the date specfed n the by-aws or by the aw tsef the meetng was not convened, for nstance ack of quorum or force ma|eure? - It may be postponed on a reasonabe date Notce requrement? - Reguar- 2 weeks pror notce - Speca- 1 week May the notce requrement be essened? - By-aws may provde a onger or a shorter duraton What f the notce requrement s not comped wth? What happened to any act passed n a meetng when notce requrement was not requred wth? - Vodabe, sub|ect to ratfcaton Board of drectors vs. Tan - Notce requrement s the by-aws s a mandatory requrement - Impropery served, any acton w be nvadated at the ob|ecton of any stockhoder or member Must be hed n the proper pace Where shoud t be hed? - Apparent from the foregong provson s that meetngs of stockhoders must, at a tmes, be hed n the cty or muncpaty where the prncpa offce of the corporaton s ocated and, as far as practcabe, n the prncpa offce of the corporaton. May the by-aws of a corporaton provde that meetngs be hed anywhere n the Phppnes? - Whe there s no provson authorzng a stock corporaton to hod stockhoders meetngs outsde of the Cty of Muncpaty where the prncpa offce s ocated, the aw aows a non-stock corporaton to provde n ts by-aws any pace of members meetng provded that proper notce s sent to a members ndcatng the date, tme and pace of the meetng whch sha be wthn the Phppnes. T or F the by-aws of a stock corporaton may vady provde that meetngs sha be hed anywhere n the Phppnes? - FALSE. Non-stock corporatons ang pwede provded nakaagay sa by-aws and provded proper notce s gven Corporaton can do ony such thngs as the aw aows t to do, DOCTRINE OF LIMITED CAPACITY San Mgue offce ocated n Ortgas Center. May stockhoders meetng be hed n PICC center? - YES. Metro Mana, one snge cty Must be caed by the proper party Who cas? - Presdent unt and uness there s a provson , secretary on order of the presdent What f there s nobody who can ca? - The pettoner, stockhoder may petton the court What f there s a person who can ca, but he fas or negects to ca the meetng? May a stockhoder petton to authorze a meetng? - Ponce case ony appes when there s NO person authorzed to ca the meetng. If there s a person, but negects hs duty. Ponce w not appy. Wrt of n|uncton may never be ssued ex parte Is there any excepton? - Secton 28 ony nstance Section 2". Remova of drectors or trustees. - Any drector or trustee of a corporaton may be removed from offce by a vote of the stockhoders hodng or representng at east two-thrds (2/3) of the outstandng capta stock, or f the corporaton be a non-stock corporaton, by a vote of at east two-thrds (2/3) of the members entted to vote: Provded, That such remova sha take pace ether at a reguar meetng of the corporaton or at a speca meetng caed for the purpose, and n ether case, after prevous notce to stockhoders or members of the corporaton of the ntenton to propose such remova at the meetng. A speca meetng of the stockhoders or members of a corporaton for the purpose of remova of drectors or trustees, or any of them, must be caed by the secretary on order of the presdent or on the wrtten demand of the stockhoders representng or hodng at east a ma|orty of the outstandng capta stock, or, f t be a non-stock corporaton, on the wrtten demand of a ma|orty of the members entted to vote. Shoud the secretary fa or refuse to ca the speca meetng upon such demand or fa or refuse to gve the notce, or f there s no secretary, the ca for the meetng may be addressed drecty to the stockhoders or members by any stockhoder or member of the corporaton sgnng the demand. Notce of the tme and pace of such meetng, as we as of the ntenton to propose such remova, must be gven by pubcaton or by wrtten notce prescrbed n ths Code. Remova may be wth or wthout cause: Provded, That remova wthout cause may not be used to deprve mnorty stockhoders or members of the rght of representaton to whch they may be entted under Secton 24 of ths Code. (n) Cases of remova or ouster of a drector Mandamus woud be approprate remedy f there s a person authorzed but refuses Ouorum and votng requrement - Ma|orty stockhoders or members consttute a quorum Is the presence of the ma|orty owners of the outstandng capta stock ABSOLUTE to have a quorum? - NO. when the code requres a hgher quorum t must aso be equvaent to the vote requred Do you ncude non-votng shares n arrvng at the votng requrement to have a vad corporate act? - It depends. - Secton 6 ast par. If t fas wthn the penutmate par. Of secton 6 Fve requstes of a vad meetng 1. It must be hed on the date fxed n the by-aws or n accordance wth aw 2. Pror notce must be gven 3. It must be hed at he proper pace 4. It must be caed by the proper party 5. Ouorum and votng requrements must be met Date not comped wth, notce, pace, not comped wth and the person who caed not authorzed, what happens to any resouton caed? - Secton 51, any meetng sha be vad provded a the stockhoders are present or duy represented and provded t s wthn the power of the corporaton. 3 RD paragraph of 324 - If the votng requrement s met, any resouton passed n the meetng, even f mpropery hed or caed w be vad f a the stockhoders or members are present or duy represented thereat. The ast paragraph of secton 51 s cear on the matter when t provdes: "a proceedngs had and any busness transacted at any meetng of the stockhoders or members, f wthn the powers or authorty of the corporaton, sha be vad even f the meetng be mpropery hed or caed, provded a the stockhoders or members of the corporaton are present or duy represented at the meetng." Drectors/trustees meetng Reguar (monthy) and speca (anytme) May that be restrcted (wthn or outsde the Ph) - YES. uness the by-aws provde otherwse. Is there any notce requrement? - YES. 1 day uness otherwse provded by the by- aws What happens f notce s not comped wth? - If the notce requrement s not comped wth the meetng s ega and w not bnd the corporaton except when subsequenty ratfed or n the case of a cose corporaton where the act of any one drector may bnd the corporaton even wthout a meetng under the speca provson of Secton 101 of the Code. Can notce be waved? <sec.53> Section #3. Reguar and speca meetngs of drectors or trustees. - Reguar meetngs of the board of drectors or trustees of every corporaton sha be hed monthy, uness the by-aws provde otherwse. Speca meetngs of the board of drectors or trustees may be hed at any tme upon the ca of the presdent or as provded n the by-aws. Meetngs of drectors or trustees of corporatons may be hed anywhere n or outsde of the Phppnes, uness the by-aws provde otherwse. Notce of reguar or speca meetngs statng the date, tme and pace of the meetng must be sent to every drector or trustee at east one (1) day pror to the schedued meetng, uness otherwse provded by the by-aws. A drector or trustee may wave ths requrement, ether expressy or mpedy. (n) - YES. Expressy and mpedy - SEC rung A speca meetng s vad wthout notce where the drectors are a present or where they consent to the meetng. Presence at the meetng waves the want of notce. Moreover, t has been rued that the meetng of the drectors wthout a forma ca frst beng had, and notce thereof gven to the members, dd not operate to nvadate t or to render the proceedngs whch were taken at t vod, for every member of the board were present, and ther |ont acton had competey bound the corporaton as f the meetng has been caed wth due formaty, and everyone of the drectors had receved proper notce. What s the quorum and votng requrement n the drectors meetng? - Ma|orty of the members of the board of drectors (entre membershp) Vote requred to pass a vad corporate act? - Ma|orty of those present at whch there s a quorum (3 present, vote of 2 suffcent) - Excepton, ma|orty of a the members of the board n case of eecton of corporate offcers, uness the artces provde for a greater quorum or votng requrement Shoud the drector or trustees be physcay present? - Genera rue, must st and act as a body to have a vad corporate act Fve man member board, a meetng was caed today, shoud the physca presence or warm bodes requres to consttute a quorum? - NO. t s not requred. Teeconference or vdeo conference s aowed, E- commerce aw Membershp sub|ect to aws Stockhoder not yet May drector vote by proxy? - NO If A s a drector and a meetng s caed for the purpose of eectng a new set of BOD can A vote by proxy? - YES. Because t s a stockhoders meetng If drectors meetng, cannot vote by proxy Stockhoders rght to vote - Inherent n stock ownershp - However ths rght s not aways nherent, because t may be dened: 1. Redeemabe and preferred shares, however f founders shares are ssued others may be dened the rght to vote. 2. May be dened by the artces of ncorporaton or contracts - When not dened they may do so n person or by proxy May the rght to vote by proxy be dened? May the artces of ncorporaton deny? May the by-aws vady provde that proxy votng s not aowed? - NO Ony non-stock may be dened proxy votng (may be broaden, mted or dened) Proxy votng s a matter of rght granted by aw Requrements of a vad proxy? - Secton 58 Section #". Proxes. - Stockhoders and members may vote n person or by proxy n a meetngs of stockhoders or members. Proxes sha n wrtng, sgned by the stockhoder or member and fed before the schedued meetng wth the corporate secretary. Uness otherwse provded n the proxy, t sha be vad ony for the meetng for whch t s ntended. No proxy sha be vad and effectve for a perod onger than fve (5) years at any one tme. (n) How ong may a proxy exst? - Maxmum of 5 years - Vad for the meetng n whch t s ntended Is proxy revocabe? - Generay revocabe, uness couped wth nterest Revocaton - A proxy, ke agency n genera s revocabe uness couped wth an nterest and revocaton need not be made by forma notce n wrtng. Revocaton may be expressed to the proxy hoder, to the eecton commttee, by a subsequent proxy to another or by sae of the shares. Thus t may be revoke oray by conduct such that appearng and assertng the rght to vote at a meetng by the regstered owner of the shares revokes a proxy prevousy gven. Must be submtted to a vadaton commttee By-aws of non-stock corporatons may deny proxy votng What s votng trust agreement? - One created by an agreement between a group of stockhoders of a corporaton and a trustee, or a group of dentca agreements between ndvdua stockhoders and a common trustee, whereby t s provded that for a term o years or for a perod contngent upon a certan event, or unt the agreement s termnated, contro over the stock owned by such stockhoders, sha be odged n the trustee, ether wth or wthout reservaton to the owners or persons desgnated by them the power to drect how such contro sha be ssued. - It s a devse of bndng stockhoders to vote as a unt and thus assurng a desrabe stabty and contnuty n management n stuatons where t s needed. What s the effect of a votng trust agreement reatve to the rghts? - Lee vs. CA must pass these crtera 1. That the votng rghts of the stock are separated from the other attrbutes of ownershp; 2. That the votng rghts granted are ntended to be rrevocabe for a defnte perod of tme; and, 3. That the prncpa purpose of the grant of votng rghts s to acqure votng contro of the corporaton. Durng the duraton of the trust they are rrevocabe uness there s a voaton ether by fraud Requstes - Secton 59 Section #!. Votng trusts. - One or more stockhoders of a stock corporaton may create a votng trust for the purpose of conferrng upon a trustee or trustees the rght to vote and other rghts pertanng to the shares for a perod not exceedng fve (5) years at any tme: Provded, That n the case of a votng trust specfcay requred as a condton n a oan agreement, sad votng trust may be for a perod exceedng fve (5) years but sha automatcay expre upon fu payment of the oan. A votng trust agreement must be n wrtng and notarzed, and sha specfy the terms and condtons thereof. A certfed copy of such agreement sha be fed wth the corporaton and wth the Securtes and Exchange Commsson; otherwse, sad agreement s neffectve and unenforceabe. The certfcate or certfcates of stock covered by the votng trust agreement sha be canceed and new ones sha be ssued n the name of the trustee or trustees statng that they are ssued pursuant to sad agreement. In the books of the corporaton, t sha be noted that the transfer n the name of the trustee or trustees s made pursuant to sad votng trust agreement. The trustee or trustees sha execute and dever to the transferors votng trust certfcates, whch sha be transferabe n the same manner and wth the same effect as certfcates of stock. The votng trust agreement fed wth the corporaton sha be sub|ect to examnaton by any stockhoder of the corporaton n the same manner as any other corporate book or record: Provded, That both the transferor and the trustee or trustees may exercse the rght of nspecton of a corporate books and records n accordance wth the provsons of ths Code. Any other stockhoder may transfer hs shares to the same trustee or trustees upon the terms and condtons stated n the votng trust agreement, and thereupon sha be bound by a the provsons of sad agreement. No votng trust agreement sha be entered nto for the purpose of crcumventng the aw aganst monopoes and ega combnatons n restrant of trade or used for purposes of fraud. Uness expressy renewed, a rghts granted n a votng trust agreement sha automatcay expre at the end of the agreed perod, and the votng trust certfcates as we as the certfcates of stock n the name of the trustee or trustees sha thereby be deemed canceed and new certfcates of stock sha be ressued n the name of the transferors. The votng trustee or trustees may vote by proxy uness the agreement provdes otherwse. (36a) Does t need to be notarzed? - Yes, otherwse t s neffectve and unenforceabe Ony ega ownershp s transferred Beng st the benefca owner they may transfer these rghts Is the rght granted to a votng trust agreement absoute? (to nspect) - NO. - The votng trust agreement fed wth the corporaton sha be sub|ect to examnaton by any stockhoder of the corporaton n the same manner as any other corporate book or record. Provded, that both the transfer and the trustee or trustees may exercse the rght of nspecton of a corporate books and records n accordance wth the provsons of ths Code. Lega tte s transferred to the votng trustee May the votng trustee vote by proxy? - Yes, ega owner may vote by proxy May the proxy hoder vote by proxy? - NO, (AGENT) an agent can have no other agent uness specfcay aowed by the prncpa Stockhoder executng as a proxy, s he quafed to be voted as a drector? Why s he quafed to act as a drector f the stockhoder executes as a drector? - The benefca owner of the shares n a votng trust s dsquafed to be a drector n a votng trust whereas n a proxy, the owner of the shares may be eected as such snce ega tte thereof remans wth hm - YES he remans to be the owner Is the stockhoder executng n a votng trust agreement, s he quafed to act as a drector? - NO. ceases to be stockhoder of record, no onger the ega owner of shares May the corporaton enforce the votng trust agreements executed by ts stockhoders? - NO. NIDC vs. AOUINO - Not a prvy to the contract - Rghts abtes of a stockhoder are there n ther ndvdua capacty- corporate entty theory Votng trust agreements - Normay executed n favor of bankng and fnanca nsttutons - So that they can vote a certan set of drectors - They w be more secured Votng pu agreement - Enters nto an agreement - Pu a ther shares to cast one vote - Covered by rues governng contracts - By pung ther votes they can decne the resouton passed by the board E N D O F M I D T E R M S STOC1S AND STOC1(OLDERS 3 modes 1. By a contract of subscrpton wth the corporaton; 2. By purchase of treasury shares from the corporaton; and, 3. By purchase or acquston of shares from exstng stockhoders. Secton 60 subscrpton - Any contract - Whether exstng or st to be formed Section $&. Subscrpton contract. - Any contract for the acquston of unssued stock n an exstng corporaton or a corporaton st to be formed sha be deemed a subscrpton wthn the meanng of ths Tte, notwthstandng the fact that the partes refer to t as a purchase or some other contract. (n) Under the od aw the 4 th mode s PURCHASE Purchase - Recproca n nature - Purchaser can nether requre the ssuance Xco. Inc. P Authorzed capta 1M 500 SUBSCRIBED 500 UNISSUED STOCKS (AS LONG AS GALING DITO) Z wants to acqure 100K Entered n |une 50% sha be down payment remander December 08 o he w not be consdered a stockhoder uness he has pad n fu August 08 property s ravaged by fre a are turned nto shares Is Z abe to pay the baance of hs acqustons? - YES, no matter how the party refer to t, t s consdered subscrpton - Once you subscrbe, you become a stockhoder whch s entted to a the abtes of a stockhoder Z- subscrbed to 100T/S of XCo. Amount he pad 50k Z dd not pay on the date caed and was decared a denquent share Corporaton pad 100T/S therefore the corporaton reacqured the shares agan, what are they caed? - Treasury shares Y- 80T/S DECEMBER 08 40 % (AUGUST) WAS DESTROYED BY FIRE, IS HE STILL LIABLE TO PAY THE UNPAID PORTION? IT WAS AGREED THAT IT WAS A PURCHASE AND WILL BE A STOCKHOLDER ONLY IF PAID IN FULL IS HE LIABLE? - NO, because that was a purchase - Frst exampe gang sa unssued stock - 2 nd exampe gang sa treasury shares hnd sa unssued share NO such thng as purchase of unssued stocks A subscrpton contract can be condtona provded there s nothng n the charter or statute prohbtng t and not aganst pubc order, aw, etc. Must t be n wrtng? - NO, t may be ora 5M shoud t be n wrtng to be vad and bndng as a subscrpton? - NO, statutes of frauds ony appes to SALES Trana vs. Ouezon Coege - Counter proposa, therefore there was a need for an acceptance - Facutatve because t s n hs own free w, t s vod What may be used as a consderaton and how much shoud be the consderaton? - Secton 62 provdes: Section $2. Consderaton for stocks. - Stocks sha not be ssued for a consderaton ess than the par or ssued prce thereof. Consderaton for the ssuance of stock may be any or a combnaton of any two or more of the foowng: 1. Actua cash pad to the corporaton; 2. Property, tangbe or ntangbe, actuay receved by the corporaton and necessary or convenent for ts use and awfu purposes at a far vauaton equa to the par or ssued vaue of the stock ssued; 3. Labor performed for or servces actuay rendered to the corporaton; 4. Prevousy ncurred ndebtedness of the corporaton; 5. Amounts transferred from unrestrcted retaned earnngs to stated capta; and 6. Outstandng shares exchanged for stocks n the event of recassfcaton or converson. Where the consderaton s other than actua cash, or conssts of ntangbe property such as patents of copyrghts, the vauaton thereof sha ntay be determned by the ncorporators or the board of drectors, sub|ect to approva by the Securtes and Exchange Commsson. Shares of stock sha not be ssued n exchange for promssory notes or future servce. The same consderatons provded for n ths secton, nsofar as they may be appcabe, may be used for the ssuance of bonds by the corporaton. The ssued prce of no-par vaue shares may be fxed n the artces of ncorporaton or by the board of drectors pursuant to authorty conferred upon t by the artces of ncorporaton or the by-aws, or n the absence thereof, by the stockhoders representng at east a ma|orty of the outstandng capta stock at a meetng duy caed for the purpose. (5 and 16) "Amounts transferred from unrestrcted retaned earnngs to stated capta" what does t mean? - Stock dvdends w n effect captaze the unrestrcted retaned earnngs After 5 years the founders shares may be converted nto common shares or other knds of shares May shares of stocks be ssued wthout consderaton? Why? - NO, two reasons by the SC, dscrmnatory aganst other stockhoders and second unawfu, t pre|udces the rght of the credtors "Trust Fund Doctrne" If ssued wthout a consderaton - Secton 65, they w be consdered as watered stocks Section $#. Labty of drectors for watered stocks. - Any drector or offcer of a corporaton consentng to the ssuance of stocks for a consderaton ess than ts par or ssued vaue or for a consderaton n any form other than cash, vaued n excess of ts far vaue, or who, havng knowedge thereof, does not forthwth express hs ob|ecton n wrtng and fe the same wth the corporate secretary, sha be sodary, abe wth the stockhoder concerned to the corporaton and ts credtors for the dfference between the far vaue receved at the tme of ssuance of the stock and the par or ssued vaue of the same. (n) - Subscrbers may be compeed to pay the vaue Issuance of a certfcate of stock s another thng What are the requstes for the ssuance of a vad certfcate of stock? 1. It must be sgned by the presdent or vce- presdent and countersgned by the secretary or assstant secretary; 2. It must be seaed wth the corporate sea; and the entre vaue thereof (together wth nterest or expenses, f any) shoud have been pad. Whe t appears, that a subscrber to shares of stock cannot be entted to the ssuance of a certfcate of stock unt the fu amount of hs subscrpton together wth nterest and expenses (n case of denquent shares) f any s due, has been pad, a subscrber to shares of stock, even f not yet fuy pad, s entted to exercse a the rghts of a stockhoder and the correspondng abty that attach thereunder. Thus, the Code provdes: Section %2. Rghts of unpad shares. - Hoders of subscrbed shares not fuy pad whch are not denquent sha have a the rghts of a stockhoder. (n) Is the ssuance of a certfcate of stock necessary to consder the subscrber a stockhoder? - NO, sha be consdered a stockhoder even wthout a certfcate of stock Instances when he may not be abe to exercse hs rghts as such stockhoder - Decared denquent - When he exercses hs apprasa rght Are certfcate of stocks transferrabe? - YES Are certfcate of stocks consdered negotabe? - Ouas-negotabe Why are they consdered quas-negotabe when t may be transferred through endorsement and devery? 100t/s 001 10/s Abc co. B stoe and forged the sgnature C s purchaser n good fath and for vaue w C acqure tte Endorsement from When ssued by owner Endorsed by owner- strct compance ANSWER: a certfcate of stock s not regarded as negotabe n the same sense that a b or note s negotabe, even f t s endorsed n bank. Thus, whe t may be transferred by endorsement couped wth devery thereof, and therefore merey quas-negotabe, t s nonetheess non-negotabe n that the transferees takes t wthout pre|udce to a the rghts and defenses whch the true and awfu owner may have except n so far as the prncpes governng estoppes may appy. He acqured t by vrtue of a forged nstrument; no matter how nnocent the purchaser s because t s sub|ect to a the rghts and defenses What f A endorsed t? - He s estopped, uness there are other avaabe defenses Transfer s requred to be recorded n the books of the corporaton, however even f not recorded, t w be vad between the partes. Non-regstraton w not however, affect the vadty thereof at east n so far as the contractng partes are concerned. Section $3. Certfcate of stock and transfer of shares. - The capta stock of stock corporatons sha be dvded nto shares for whch certfcates sgned by the presdent or vce presdent, countersgned by the secretary or assstant secretary, and seaed wth the sea of the corporaton sha be ssued n accordance wth the by-aws. Shares of stock so ssued are persona property and may be transferred by devery of the certfcate or certfcates ndorsed by the owner or hs attorney-n-fact or other person egay authorzed to make the transfer. No transfer, however, sha be vad, except as between the partes, unt the transfer s recorded n the books of the corporaton showng the names of the partes to the transacton, the date of the transfer, the number of the certfcate or certfcates and the number of shares transferred. No shares of stock aganst whch the corporaton hods any unpad cam sha be transferabe n the books of the corporaton. (35) "Unt regstraton s accompshed, the transfer, though vad between the partes, cannot be effectve as aganst the corporaton. Thus the, unrecorded transfer cannot en|oy the status of a stockhoder; he cannot vote nor be voted for, and he w not be entted to dvdends. The corporaton w be protected when t pays dvdend to the regstered owner despte a prevous transfer of whch t had no knowedge. The purpose of regstraton therefore s twofod: to enabe the transferee to exercse a the rghts of a stockhoder and to nform the corporaton of any change n shares ownershp so that t can ascertan the persons entted to the rghts and sub|ect to the abtes of a stockhoder." Thus, t was aso rued by the Hgh Court n Nautca Cannng Corp. vs. Yumu that "A transfer of shares not recorded n the stock and transfer book of the corporaton s non-exstent n so far as the corporaton s concerned." Ths s so because "the corporaton ooks ony through ts books for the purpose of determnng who ts stockhoders are." Regstraton s necessary for the foowng: 1. To enabe the corporaton to know who ts stockhoders are; 2. To enabe the transferee to exercse hs rghts a s stockhoders; 3. To afford the corporaton an opportunty to ob|ect or refuse regstraton of the transfer n case aowed by aw; 4. To avod fcttous and frauduent transfers; and, 5. To protect credtors who have the rght to ook upon stockhoders, n case of no-payment or watered shares, for the satsfacton of ther cams. Duty of the secretary s mnstera, hence mandamus w e f the secretary refuses to record the transfer, but he cannot be compeed when the transferees tte to the sad shares has no prma face vadty or uncertan Transfer- absoute and uncondtona transfer to warrant regstraton n the books of the corporaton n order to bnd the atter and other thrd persons. Other restrctons on the rght to transfer shares woud ncude: 1. It s not vad, except as between the partes, unt recorded n the books of the corporaton; 2. Shares of stock aganst whch the corporaton hods any unpad cam sha not be transferabe n the books of the corporaton; unpad cams, refer to cams arsng from unpad subscrpton and not to any ndebtedness whch a stockhoder may owe the corporaton such as monthy dues; 3. Restrctons requred to be ndcated n the artces of ncorporaton, by-aws and stock certfcates of a cose corporaton; 4. Restrctons mposed by speca aw, such as the Pubc Servce Act requrng the approva of the government agency concerned f t w vest unto the transferee 40% of the capta of the pubc servce company; 5. Sae to aens n voaton of maxmum ownershp of shares under the Natonazaton Laws; 6. Those covered by reasonabe agreement of the partes. Monserat vs. Ceron - Does t ncude mortgage? - NO, t s not an absoute transfer - W not affect the transfer through mortgage - Absoute and uncondtona transfer - Ony the transfer or absoute conveyance of the ownershp of the tte to a share need be entered and noted upon the books of the corporaton n order that such transfer may be vad, therefore, nasmuch as a chatte mortgage of the aforesad tte s not a compete and absoute aenaton of the domnon and ownershp thereof, ts entry and notaton upon the books of the corporaton s not necessary requste to ts vadty Chua guan vs. Magsasaka - Was the mortgage vad and effectve as aganst subsequent thrd partes - Regster of deeds where the corporaton resdes and f dfferent n the regster of deeds of owners domce Unson vs. Dnamto - A transferred not regster w not have a vad force and effect Rght to transfer may be reguated May not be unreasonaby restrcted Voaton of natonazaton aw- Centra Bank Lambert vs. Fox - Vad , may be reasonaby reguated, restrcted by agreement of partes - Reasonabe agreement by the partes - Reasonabe as to ength of tme Padgett vs. Babcock - Any attempt to restran transfer - SC, n the absence of a vad en upon ts shares - Vad restrctons shares are appcabe - Any restrcton on a stockhoders rght to dspose of hs shares must be construed strcty; and any attempt to restran a transfer of shares s regarded as beng n restrant of trade, n the absence of a vad en upon ts shares, and except to the extent that vad restrctve reguatons and agreements exst and are appcabe. Sub|ect ony to such restrctons, a stockhoder cannot be controed n or restraned from exercsng hs rght to transfer by the corporaton or ts offcers or by other stockhoders, even though the sae s to a compettor of the company, or to an nsovent person, or even though a controng nterest s sod to one purchaser. Certfcate of stocks are transferrabe - By endorsement and devery of the stock certfcate to the transferee In order to be vad, must be regstered n the books. If not, w ony be bndng among partes How may shares of stock be transferred? - Endorsement of stock certfcate by owner or attorney-n-fact wth devery Embassy farms vs. CA - Must be endorsed by owner or attorney-n-fact couped wth devery - Endorsed not devered - Proper mode and manner must be comped wth Razon vs. IAC - Devered not endorsed - Reverse of Embassy Farms - Endorsement aone s not suffcent nor devery wthout endorsement s not aowed - Endorsement pus devery s mandatory Is there any other mode of transferrng stock? - Notarzed deed - Deed of assgnment Rura bank of Sanas vs. CA - If dened or refused wthout good cause, mandamus w e Tay vs. CA - Mandamus may ssue f petton has a cear ega rght - Never ssued n doubtfu cases - Pettoner faed to estabsh a cear ega rght and aeged ownershp s wthout mert - Dd not acqure ownershp by vrtue of the contract of pedge - In a contract of pedge there must be forecosure - In the case there was no attempt to forecose - Pettoner must have a prma face rght Nava vs. Peers Marketng - A stock subscrpton s a subsstng abty from the tme the subscrpton s made - The subscrber s as much bound to pay hs subscrpton as he woud be to pay any other debt - No stock certfcate was ssued. Wthout stock certfcate, whch s the evdence of ownershp of corporate stock, the assgnment of corporate shares s effectve ony between the partes to the transacton Excepton to the genera rue Rura Bank of Lpa vs. CA - By notarzed deed - Certfcate of stocks aready ssued must be couped wth devery, excepton (TAN vs. SEC) Stock certfcate has aready been ssued t must be couped wth the devery After certfcate of stock s ssued, may t be effectvey transferred even wthout endorsement or devery of the stock certfcate? - Person sought to be a stockhoder s an offcer and has custody Endorsement and devery s not necessary (TAN vs. SEC) Tan vs. SEC (FULL KNOWLEDGE, HE IS ESTOPPED) - Persons sought to be stockhoder s offcer and has custody of the book (estopped) Genera Rue for vad transfer - Certfcate of stock must be endorsed by owner or attorney-n-fact couped wth devery Exceptons - Secton 63 uses the word "may" - Showng that there may be other modes of transferrng shares Is there a tme frame or fxed perod as when transfer can be made? - NO, (WON vs. WACK WACK) Won vs. Wack Wack - Vad between contractng partes even f not recorded n corporaton books - Rght accrues ony f refused - Statute of mtatons does not appy n regstraton of shares of stock - Must determned from the tme of refusa Why are they non-negotabe when they may be transferred? - Transferees pays t wthout pre|udce to a the rghts and defenses as the true and awfu owner may have under the aw except nsofar as such rghts and defenses are sub|ect to the mtatons mposed by the prncpes governng estoppes De os Santos vs. Repubc - Why s he, not consdered as the owner of shares? When t has been sad that when endorsed by the owner t s consdered as strct certfcate? Because certfcate of stocks are non-negotabe - Athough a stock-certfcate s sometmes regarded as quas-negotabe, n the sense that t may be transferred by endorsement, couped wth devery, t s we setted that the nstrument s non-negotabe, because the hoder thereof takes t wthout pre|udce to such rghts or defenses as the regstered owner or credtor may have under the aw, except nsofar as such rghts or defenses are sub|ect to the mtatons mposes by the prncpes governng estoppes. Unauthorzed ssuance of stock certfcates 100/s 100 XYZCo 100 pesos per share Stoen by B and forged the sgnature of A B ses to C w C acqure tte? NO
ENDORSEMENT FORM C armed wth the endorsement form certfcate, sod to D (nnocent purchaser for vaue), w D acqure tte? - NO, sub|ect to such rghts and defenses as the true and awfu owner may have What f C now goes to the corporaton and presents the form? - Then the corporaton sha cance the od certfcate and ssues a new one, now n the name of C, now regstered n the name of C, w C acqure tte? A found out what happened and goes to the corporaton who has a better tte C or A? - A, A cannot be deprved of hs rght by vrtue of an unauthorzed transfer Corporaton can compe C to dever the new stock certfcate because he made a representaton that the certfcate where good. Armed wth the new certfcate ssued to C, C devers to D a purchaser n good fath and for vaue w D acqure tte? - D w acqure tte took the shares not by vrtue of a forged or unauthorzed transfer, but on the reance that the stock certfcate s vad and owned by C Stock certfcate now n possesson of D. A knew of what happened and went to the corporaton and compans. Who w have a better tte? - the corporaton may be compeed to recognze both, A as stockhoder (non-negotabe) D, reance that the stock certfcate s vad and exstng and owned by C Forged transfers - If the corporaton shoud ssue a new certfcate n pursuance of a forged transfer, the corporaton ncurs no abty to the person n whose favor t s ssued and t may demand ts return for canceaton. The corporaton n such case has been guty of no msrepresentaton. On the other hand, t s the duty of the purchaser to determne that the ndorsement of the owner s genune. However, f the new certfcate ssued to the purchaser comes nto the hands of a bona fde purchaser for vaue, the corporaton w be stopped from denyng vadty thereof, snce by ssung such new certfcate t represents that the person named theren s a stockhoder of the corporaton. The corporaton s thus forced to recognze both the orgna certfcate and new certfcate-the orgna, because the true owner coud not be deprved of hs tte by a forged transfer, and the new, because of ts representaton that the person named theren s the owner of shares n the corporaton. But f the recognton of both stockhoders woud resut n an over ssue of shares, then ony the orgna and true owner can be recognzed as a stockhoder. The bona fde purchaser of the new certfcate w however have a rght of damages aganst the corporaton. The corporaton, n turn, woud have a rght of acton aganst the person who made fase representatons and n whose favor t ssued a new certfcate. The true owner of the shares whch were wrongfuy transferred woud of course have a rght to compe the corporaton to ssue hm a certfcate n eu of the orgna one whch was wrongfuy canceed. Authorzed capta stock 1M shares A are subscrbed who w the corporaton recognze as rghtfu owner A or D? f both w be recognzed there w be over ssuance - ony A ctng ctzens natona bank vs. state (but f recognton of both stockhoders woud resut n an over ssue of shares, then ony the orgna and true owner can be recognzed as a stockhoder) - by vrtue of the doctrne of non-negotabty of certfcate of stocks The true and awfu owner w never be deprved of hs rghts What happens to D? - D w have a cause of acton aganst the corporaton for the vaue of hs acquston cost ncusve of damages, attorneys fees and cost of sut D sues the corporaton for the vaue of hs acquston cost, ncusve of damages, attorneys fees and cost of sut. What may the corporaton do? - NO defense, no vad defense, because t was represented to other partes that the certfcate of stocks s vad, subsstng, etc. 2 nd stuaton, what cause of acton may the corporaton have? Remedy? - Thrd party compant aganst C, but what f he s a purchaser for vaue? 4 th party cam aganst B When may certfcate of stocks be ssued? - Secton 64 provdes: Section $4. Issuance of stock certfcates. - No certfcate of stock sha be ssued to a subscrber unt the fu amount of hs subscrpton together wth nterest and expenses (n case of denquent shares), f any s due, has been pad. (37) A certfcate of stock cannot be ssued uness he fuy pad the amount subscrbed Subscrpton to the capta stocks of the corporaton are ndvsbe Cear mandate of secton 148 of the code s that the rung of the court n Batazar vs. Lngayen Guf, no onger hods true Section 14". Appcabty to exstng corporatons. - A corporatons awfuy exstng and dong busness n the Phppnes on the date of the effectvty of ths Code and heretofore authorzed, censed or regstered by the Securtes and Exchange Commsson, sha be deemed to have been authorzed, censed or regstered under the provsons of ths Code, sub|ect to the terms and condtons of ts cense, and sha be governed by the provsons hereof: Provded, That f any such corporaton s affected by the new requrements of ths Code, sad corporaton sha, uness otherwse heren provded, be gven a perod of not more than two (2) years from the effectvty of ths Code wthn whch to compy wth the same. (n) Subscrpton to shares of stocks are ndvsbe Aso apparent s that once a subscrber has pad hs subscrpton n fu, he becomes entted to be ssued a stock certfcate and n the event that the corporaton refuses to do so, the stockhoder my nsttute a case for mandamus wth damages. Thus, t has been sad that the duty of the corporate offcers to ssue stock certfcates to those entted thereto s a mnstera duty enforceabe by mandamus. Fua Cun vs. Summers and Chna Bankng Corp. - The court erred n hodng the pantff as the owner of 250 shares of stock; "the pantffs rghts consst n equty n 500 shares and upon payment of the unpad porton of the subscrpton prce he becomes entted to the ssuance of certfcate for sad 500 shares n hs favor." - No certfcate of stock unt the fu amount has been pad. Watered stock - One whch s ssued by the corporaton as fuy pad-up shares, when n fact the whoe amount of the vaue thereof has not been pad. - Bass s par vaue and not the far market vaue Secton 62 states that stocks sha not be ssued for a consderaton ess than par or ssued prce thereof, whe secton 13 states that n no case sha be pad-up capta be ess than fve thousand |P5000| pesos. If ssued beow par, ssued vaue consdered as water How may watered stocks be ssued? 1. For a monetary consderaton ess than ts par or ssued vaue; 2. For a consderaton n property, tangbe or ntangbe, vaued n excess of ts far market vaue; 3. Gratutousy or under an agreement that nothng sha be pad at a; or 4. In the guse of stock dvdends when there are no surpus profts of the corporaton. Why s stock waterng ega? 1. The corporaton s deprved of ts capta thereby hurtng ts busness prospects, fnanca capabty and responsbty; 2. Stockhoders who pad ther subscrptons n fu, or promsed to pay the same, are n|ured and pre|udced by the reducton of ther proportonate nterest n the corporaton; and, 3. Present and future credtors are deprved of the corporate assets for the protecton of ther nterest. - Corporaton s pre|udced - Stockhoders, duton of nterest - Credtors are pre|udced, vrtue of rght to ook upon corporatons propertes for the satsfacton of ther cams What s the effect of ssuance of watered stocks 1. As to the corporaton - when a corporaton s guty of utra-vres or ega acts whch consttute an n|ury to or fraud upon the pubc, or whch w tend to n|ure or defraud the pubc, the State may nsttute a quo-warranto proceedng to forfet ts charter for the msuse or abuse of ts franchse. 2. As between the corporaton and the subscrber- The subscrpton s vod. Such beng the case, the subscrber s abe to pay the fu par or ssued vaue thereof, to render t vad and effectve. 3. As to the consentng stockhoders - They are stopped from rasng any ob|ecton thereto; 4. As to dssentng stockhoders - In vew of the duton of ther proportonate nterest n the corporaton, they may compe the payment of the "water" n the stock sodary aganst the responsbe and consentng drectors and offcers ncusve of the hoder of the watered stocks; 5. As to credtors - They may enforce payment of the dfference n the prce, or the water n the stock, sodary aganst the responsbe drectors/offcers and the stockhoders concerned; and 6. As aganst transferees of the watered stock - Hs rght s the same as that of hs transferor. If, however, a certfcate of stock has been ssued and duy ndorsed to a bona fde purchaser, wthout knowedge, actua or constructve, the atter cannot be hed abe, at east as aganst the corporaton, snce he took the shares on reance of the msrepresentaton made by the corporaton that the stock certfcate s vad and subsstng. Ths s because a corporaton s prohbted from ssung certfcates of stock unt the fu vaue of the subscrptons have been pad and coud not, therefore, deny the vadty of the stock certfcate t ssued as aganst a purchaser n good fath. Thus, Baentne states that whether there s any abty on the part of the transferee of watered stock s made to depend upon whether he acqured the same wthout notce, ether as purchaser or donee. If he had knowedge thereof, he s sub|ect to the same abty as hs transferor. 7. What s the nature of the abty of the corporate drectors consentng to the ssuance of watered stocks and the extent of ther abtes? - - Sodary abe wth the hoder of the watered stocks to the extent of the water from sad shares of stocks
W a the drectors be abe? What f you
ob|ected w you aso be abe? - If you do not ssue a wrtten ob|ecton, you are st abe - Even passve drectors may be abe - Those havng knowedge thereof, but dd not nterpose ther ob|ecton sha be abe - Secton 65 provdes: Section $#. Labty of drectors for watered stocks. - Any drector or offcer of a corporaton consentng to the ssuance of stocks for a consderaton ess than ts par or ssued vaue or for a consderaton n any form other than cash, vaued n excess of ts far vaue, or who, havng knowedge thereof, does not forthwth express hs ob|ecton n wrtng and fe the same wth the corporate secretary, sha be sodary, abe wth the stockhoder concerned to the corporaton and ts credtors for the dfference between the far vaue receved at the tme of ssuance of the stock and the par or ssued vaue of the same. (n) ACS-100M 100M/S PAR VALUE- 1.00 SUBSCRIBED-50M FAIR MARKET VALUE- 12.00/S UNSUBSCRIBED-50M A B C D E There s a dena of pre-emptve rghts and drectors A,B,C,D,E decded to ssue the remanng 50M and subscrbed for 10M each at 2 per share. Is there stock waterng f the far market vaue s 12.00? - No stock waterng - The bass s the par vaue - The shares where n fact pad more than the par vaue ndcated n the artces of ncorporaton 3 days ater they sod ther 10M share for P11.00 each, therefore makng a proft. Can you queston there actuatons? What woud be the cause of acton? - It may be questoned. - - Duty of oyaty or fducary duty as such drectors - They cannot advance ther own motves to the damage pre|udce of the corporaton whch they represents and stockhoders as a whoe nstead of t beng sod outsde - 500M woud have gone to the coffers of the corporaton, 500M shoud be there for the protecton of credtors - They are paced n a fducary reatonshp - Sa ang ba ang kkta, pano naman yung corporaton, opportunty na yun para kumta - When are unpad subscrptons due and payabe? - Section $%. Payment of baance of subscrpton. - Sub|ect to the provsons of the contract of subscrpton, the board of drectors of any stock corporaton may at any tme decare due and payabe to the corporaton unpad subscrptons to the capta stock and may coect the same or such percentage thereof, n ether case wth accrued nterest, f any, as t may deem necessary. Payment of any unpad subscrpton or any percentage thereof, together wth the nterest accrued, f any, sha be made on the date specfed n the contract of subscrpton or on the date stated n the ca made by the board. Faure to pay on such date sha render the entre baance due and payabe and sha make the stockhoder abe for nterest at the ega rate on such baance, uness a dfferent rate of nterest s provded n the by-aws, computed from such date unt fu payment. If wthn thrty (30) days from the sad date no payment s made, a stocks covered by sad subscrpton sha thereupon become denquent and sha be sub|ect to sae as herenafter provded, uness the board of drectors orders otherwse. (38) Remedes of the corporaton to enforce payment of unpad subscrpton 1. By board acton n accordance wth the procedure ad down n sectons 67 to 69 of the code 2. By a coecton case n court as provded for n secton 70 Are subscrbers of shares of stocks not fuy pad, abe to pay nterest? - Genera rue s they are not abe to pay nterest because the code says uness requres n the by- aws - Asde from the mandate of the aw that subscrbers to shares of stock must pay the fu vaue of ther subscrpton, they may kewse be requred to pay nterest on a unpad subscrptons f so mposed n the contract or n the corporate by-aws at such rate as may be ndcated thereat or the ega rate f not so fxed. Uness so requred or provded, however, subscrbers to shares of stock, not fuy pad, are not abe to pay nterest on ther unpad subscrptons. The code thus provdes: Section $$. Interest on unpad subscrptons. - Subscrbers for stock sha pay to the corporaton nterest on a unpad subscrptons from the date of subscrpton, f so requred by, and at the rate of nterest fxed n the by-aws. If no rate of nterest s fxed n the by-aws, such rate sha be deemed to be the ega rate. (37) Unt a ca s made, they are not due and payabe, but st sub|ect to the provsons of the contracts Procedures n case of sae of denquent stocks - Section $". Denquency sae. - The board of drectors may, by resouton, order the sae of denquent stock and sha specfcay state the amount due on each subscrpton pus a accrued nterest, and the date, tme and pace of the sae whch sha not be ess than thrty (30) days nor more than sxty (60) days from the date the stocks become denquent. Notce of sad sae, wth a copy of the resouton, sha be sent to every denquent stockhoder ether personay or by regstered ma. The same sha furthermore be pubshed once a week for two (2) consecutve weeks n a newspaper of genera crcuaton n the provnce or cty where the prncpa offce of the corporaton s ocated. Uness the denquent stockhoder pays to the corporaton, on or before the date specfed for the sae of the denquent stock, the baance due on hs subscrpton, pus accrued nterest, costs of advertsement and expenses of sae, or uness the board of drectors otherwse orders, sad denquent stock sha be sod at pubc aucton to such bdder who sha offer to pay the fu amount of the baance on the subscrpton together wth accrued nterest, costs of advertsement and expenses of sae, for the smaest number of shares or fracton of a share. The stock so purchased sha be transferred to such purchaser n the books of the corporaton and a certfcate for such stock sha be ssued n hs favor. The remanng shares, f any, sha be credted n favor of the denquent stockhoder who sha kewse be entted to the ssuance of a certfcate of stock coverng such shares. Shoud there be no bdder at the pubc aucton who offers to pay the fu amount of the baance on the subscrpton together wth accrued nterest, costs of advertsement and expenses of sae, for the smaest number of shares or fracton of a share, the corporaton may, sub|ect to the provsons of ths Code, bd for the same, and the tota amount due sha be credted as pad n fu n the books of the corporaton. Tte to a the shares of stock covered by the subscrpton sha be vested n the corporaton as treasury shares and may be dsposed of by sad corporaton n accordance wth the provsons of ths Code. (39a-46a) Who s the wnnng bdder n a denquency sae? - Bdder who sha "offer to pay the fu amount of the baance on the subscrpton together wth accrued nterest, cost of advertsement and expenses of sae, for the smaest number of shares or fracton of a share." X Co. has 1M authorzed capta stock 500 thousand s aready subscrbed A subscrbed to 100 thousand shares, 50 thousand s aready pad eavng 50 thousand unpad The corporaton s at a oss of 250 thousand, the board decdes to make a ca for the payment of the unpad subscrptons, however A coud not pad, hence decared denquent and decdes to se hs share at a pubc aucton 55 thousand s to be pad, remanng baance pus cost and expenses BIDDERS: X-55K FOR 99,900 shares Y-55K FOR 99,500 shares Z-55K FOR 99,000 shares (wnnng bdder) Assume there s no bdder, may the corporaton bd? - NO. It cannot bd because the aw says, sub|ect to the provsons of ths CODE. Secton 68 and 41 shoud be reconced. Secton 68 states that: Shoud there be no bdder at the pubc aucton who offers to pay the fu amount of the baance on the subscrpton together wth accrued nterest, costs of advertsement and expenses of sae, for the smaest number of shares or fracton of a share, the corporaton may, 2345ect to t,e 67o8i2ion2 o9 t,i2 Co+e: bd for the same, and the tota amount due sha be credted as pad n fu n the books of the corporaton. Tte to a the shares of stock covered by the subscrpton sha be vested n the corporaton as treasury shares and may be dsposed of by sad corporaton n accordance wth the provsons of ths Code. (39a-46a) - There was no unrestrcted retaned earnngs n the exampe gven therefore the corporaton cannot bd , secton 41, t states that: Section 41. Power to acqure own shares. - A stock corporaton sha have the power to purchase or acqure ts own shares for a egtmate corporate purpose or purposes, ncudng but not mted to the foowng cases: Provded, That the corporaton has 3n7e2t7icte+ 7et*ine+ e*7nin.2 n ts books to cover the shares to be purchased or acqured: 1. To emnate fractona shares arsng out of stock dvdends; 2. To coect or compromse an ndebtedness to the corporaton, arsng out of unpad subscrpton, n a denquency sae, and to purchase denquent shares sod durng sad sae; and 3. To pay dssentng or wthdrawng stockhoders entted to payment for ther shares under the provsons of ths Code. (a) What f the shares of A were sod wthout compance of the requrements? May A queston the sae? - The aw prescrbes two condtons before an acton to recover denquent stocks rreguary sod may be aowed. These are: 1. The party seekng to mantan such acton frst pays or tenders to the party hodng the stock the sum for whch the same was sod, wth nterest from the date of the sae at the ega rate; and, 2. The acton sha be commenced by the fng of a compant wthn sx months from the date of the sae. - The reason for such s the stabty of transactons of the shares of stock Suppose n the exampe, snce there are no unrestrcted retaned earnngs, hence the corporaton cannot bd, s the corporaton eft wthout any recourse? - Section %&. Court acton to recover unpad subscrpton. - Nothng n ths Code sha prevent the corporaton from coectng by acton n a court of proper |ursdcton the amount due on any unpad subscrpton, wth accrued nterest, costs and expenses. (49a) Veasco vs. Pozat - The subscrber s as much bound to pay the amount of the share subscrbed by hm as he woud be to pay any other debt, and the rght of the company to demand payment s no ess ncontestabe. - Two avaabe remedes: the frst and most speca remedy gven by the statute consst n permttng the corporaton to put up the unpad stock and dspose of t for the account of the denquent subscrber. The other remedy s by acton n court. De Sva vs. Abotz and Co. - Dscretonary on the part of the board of drectors to do whatever s provded n the sad artce reatve to the appcaton of the part of the 70 percent of the proft dstrbutabe n equa parts on the payment of the shares subscrbed to and fuy pad Lngayen Guf vs. Batazar - Excepton: pursuant to a bona fde compromse or to set off a debt due from the corporaton, a reease supported by consderaton, w be effectua as aganst dssentng stockhoders and subsequent and exstng credtors. A reease whch mght orgnay have been hed nvad may be sustaned after a consderabe apse of tme Apocada vs. NLRC - Set-off s wthout any ega bass - It was premature - Unpad subscrptons w become due and payabe ony upon certan nstance - Ca or f there s a stpuaton n contract - If no ca and no stpuaton n contract then t w not be demandabe or payabe at a Lumanan vs. Cura - Trust Fund Doctrne- subscrpton to the capta of a corporaton consttute a fund to whch the credtors have a rght to ook for satsfacton of ther cams and that the assgnee n nsovency can mantan an acton upon any unpad stock subscrpton n order to reaze assets for the payment of ts debts. PNB vs. Btuak - Where t not for the promse, the defendants woud have not subscrbed - Trust Fund Doctrne, t s estabshed doctrne that subscrptons to the capta of a corporaton consttute a fund to whch credtors have a rght to ook for satsfacton of ther cams and that the assgnee n nsovency can mantan an acton upon any unpad stock subscrpton n order to reaze assets for the payment of ts debts. - A corporaton has no power to reease an orgna subscrber to ts capta stock from the obgaton of payng for hs shares, wthout a vauabe consderaton for such reease; and as aganst credtors a reducton of the capta stock can take pace ony n the manner and under the condtons prescrbed by the statute or the charter or the artces of ncorporaton. Edward Keer and Co. vs. COB - May the stockhoder be hed abe for the debts of the corporaton? YES. To the extent of ther unpad subscrpton - As to the abty of the stockhoders, t s setted that a stockhoder s personay abe for the fnanca obgatons of a corporaton to the extent of hs unpad subscrptons Is there a prescrptve perod wheren a demand for unpad subscrpton shoud be made? - NO. Garca vs. Suarez case Garca vs. Suarez - Never became due and payabe unt there s a ca made - Prescrpton w not run unt and uness there s demand - Prescrpton shoud be determned from the tme demand has been made and not from the tme of subscrpton If decared denquent, what woud be the effect as to the owner of sad shares? - Section %1. Effect of denquency. - No denquent stock sha be voted for or be entted to vote or to representaton at any stockhoder's meetng, nor sha the hoder thereof be entted to any of the rghts of a stockhoder except the rght to dvdends n accordance wth the provsons of ths Code, unt and uness he pays the amount due on hs subscrpton wth accrued nterest, and the costs and expenses of advertsement, f any. (50a) - However f the shares are not denquent, subscrbers to the capta of a corporaton, though not fuy pad, are entted to a the rghts of a stockhoder, accordng to secton 72 Section %2. Rghts of unpad shares. - Hoders of subscrbed shares not fuy pad whch are not denquent sha have a the rghts of a stockhoder. (n) May the rues governng denquency sae appy to a non-stock corporaton? Are there unpad shares n a non-stock corporaton? - Rues governng stock corporatons, when appcabe, aso appes to a non-stock corporaton - There are denquent sharehoders aso n a non-stock corporaton. Exampe s membershp dues A corporaton pad 50% of subscrpton and was ater on decared denquent when he coud not pay upon ca; A s aso a drector of the corporaton. W A, upon decaraton of denquency , st be abe to exercse hs rght as a drector? - Yes, he oses a hs rght as a stockhoder except hs rght to receve dvdends - He remans to be a drector, ony quafcaton to be a drector s he must own at east 1 share and snce t st stands n hs name pendng the sae, he remans to be and act as a drector - Even f there s sae, he may st be drector because the wnnng bdder may not bd or pay for a the shares or there mght be remanng shares, whch woud be credted n favor of the denquent stockhoder - Secton 43 provdes: Section 43. Power to decare dvdends. - The board of drectors of a stock corporaton may decare dvdends out of the unrestrcted retaned earnngs whch sha be payabe n cash, n property, or n stock to a stockhoders on the bass of outstandng stock hed by them: Provded, That any cash dvdends due on denquent stock sha frst be apped to the unpad baance on the subscrpton pus costs and expenses, whe stock dvdends sha be wthhed from the denquent stockhoder unt hs unpad subscrpton s fuy pad: Provded, further, That no stock dvdend sha be ssued wthout the approva of stockhoders representng not ess than two-thrds (2/3) of the outstandng capta stock at a reguar or speca meetng duy caed for the purpose. (16a) Stock corporatons are prohbted from retanng surpus profts n excess of one hundred (100%) percent of ther pad-n capta stock, except: (1) when |ustfed by defnte corporate expanson pro|ects or programs approved by the board of drectors; or (2) when the corporaton s prohbted under any oan agreement wth any fnanca nsttuton or credtor, whether oca or foregn, from decarng dvdends wthout ts/hs consent, and such consent has not yet been secured; or (3) when t can be ceary shown that such retenton s necessary under speca crcumstances obtanng n the corporaton, such as when there s need for speca reserve for probabe contngences. (n) When a certfcate of stock s oss or destroyed, what must be done by the owner thereof? - Section %3. Lost or destroyed certfcates. - The foowng procedure sha be foowed for the ssuance by a corporaton of new certfcates of stock n eu of those whch have been ost, stoen or destroyed: 1. The regstered owner of a certfcate of stock n a corporaton or hs ega representatve sha fe wth the corporaton an affdavt n trpcate settng forth, f possbe, the crcumstances as to how the certfcate was ost, stoen or destroyed, the number of shares represented by such certfcate, the sera number of the certfcate and the name of the corporaton whch ssued the same. He sha aso submt such other nformaton and evdence whch he may deem necessary; 2. After verfyng the affdavt and other nformaton and evdence wth the books of the corporaton, sad corporaton sha pubsh a notce n a newspaper of genera crcuaton pubshed n the pace where the corporaton has ts prncpa offce, once a week for three (3) consecutve weeks at the expense of the regstered owner of the certfcate of stock whch has been ost, stoen or destroyed. The notce sha state the name of sad corporaton, the name of the regstered owner and the sera number of sad certfcate, and the number of shares represented by such certfcate, and that after the expraton of one (1) year from the date of the ast pubcaton, f no contest has been presented to sad corporaton regardng sad certfcate of stock, the rght to make such contest sha be barred and sad corporaton sha cance n ts books the certfcate of stock whch has been ost, stoen or destroyed and ssue n eu thereof new certfcate of stock, uness the regstered owner fes a bond or other securty n eu thereof as may be requred, effectve for a perod of one (1) year, for such amount and n such form and wth such suretes as may be satsfactory to the board of drectors, n whch case a new certfcate may be ssued even before the expraton of the one (1) year perod provded heren: Provded, That f a contest has been presented to sad corporaton or f an acton s pendng n court regardng the ownershp of sad certfcate of stock whch has been ost, stoen or destroyed, the ssuance of the new certfcate of stock n eu thereof sha be suspended unt the fna decson by the court regardng the ownershp of sad certfcate of stock whch has been ost, stoen or destroyed. Except n case of fraud, bad fath, or neggence on the part of the corporaton and ts offcers, no acton may be brought aganst any corporaton whch sha have ssued certfcate of stock n eu of those ost, stoen or destroyed pursuant to the procedure above- descrbed. (R.A. 201a) - The ratonae of the above-quoted aw s to avod dupcaton of certfcates of stock and the avodance of fcttous and frauduent transfers. When w the repacement certfcate be ssued? - The code provdes that: after the e;6i7*tion o9 one <1= >e*7 97o- t,e +*te o9 t,e ?*2t 634?ic*tion: f no contest has been presented to sad corporaton regardng sad certfcate of stock, the rght to make such contest sha be barred and sad corporaton sha cance n ts books the certfcate of stock whch has been ost, stoen or destroyed and ssue n eu thereof new certfcate of stock, Coud t be ssued earer than 1 year? - Yes t can be, the code states that: uness the regstered owner fes a bond or other securty n eu thereof as may be requred, effectve for a perod of one (1) year, for such amount and n such form and wth such suretes as may be satsfactory to the board of drectors, n whch case * ne@ ce7ti9ic*te -*> 4e i223e+ e8en 4e9o7e t,e e;6i7*tion o9 t,e one <1= >e*7 6e7io+ 67o8i+e+ ,e7einA Provded, That f a contest has been presented to sad corporaton or f an acton s pendng n court regardng the ownershp of sad certfcate of stock whch has been ost, stoen or destroyed, the ssuance of the new certfcate of stock n eu thereof sha be suspended unt the fna decson by the court regardng the ownershp of sad certfcate of stock whch has been ost, stoen or destroyed. May corporate offcers be hed abe for the unauthorzed ssuance? - YES, the code provdes that: Except n case of fraud, bad fath, or neggence on the part of the corporaton and ts offcers, no acton may be brought aganst any corporaton whch sha have ssued certfcate of stock n eu of those ost, stoen or destroyed pursuant to the procedure above- descrbed. (R.A. 201a) Assumng the ast paragraph s not there; woud t be not the same, that they shoud be hed abe due to fraud, bad fath or neggence? - YES. Secton 31 provdes that: Section 31. Labty of drectors, trustees or offcers. - Drectors or trustees who wfuy and knowngy vote for or assent to patenty unawfu acts of the corporaton or who are guty of gross neggence or bad fath n drectng the affars of the corporaton or acqure any persona or pecunary nterest n confct wth ther duty as such drectors or trustees sha be abe |onty and severay for a damages resutng there from suffered by the corporaton, ts stockhoders or members and other persons. When a drector, trustee or offcer attempts to acqure or acqures, n voaton of hs duty, any nterest adverse to the corporaton n respect of any matter whch has been reposed n hm n confdence, as to whch equty mposes a dsabty upon hm to dea n hs own behaf, he sha be abe as a trustee for the corporaton and must account for the profts whch otherwse woud have accrued to the corporaton. (n) Certfcate of stock was ost, the owner transfers hs shares by way of a notarzed deed w t be vad? - He cannot do so, f a certfcate of stock s ssued by a corporaton, a mere notarzed deed w not suffce - Deed of assgnment was not suffcent snce there was no endorsement (Rura Bank of Lpa vs. CA) Rghts and abtes of stockhoders - RIGHTS 1. Partcpaton n the management of the corporate affars by exercsng ther rght to vote and be voted upon ether personay or by proxy as provded for under sectons 50 and 58 of the code; 2. To enter nto a votng trust agreement sub|ect to the procedure, requrements and mtatons mposed under secton 50; 3. To receve dvdends and to compe ther decaraton f warranted under secton 43; 4. To transfer shares of stock sub|ect ony to reasonabe restrctons such as optons and preferences as may be aowed by aw ncusve of the rght of the transferee to compe the regstraton of the transfer n the books of the corporaton as provded for n secton 63; 5. To be ssued a certfcate of stock for fuy pad- up shares n accordance wth 64; 6. To exercse pre-emptve rghts as provded for n secton 39; 7. To exercse ther apprasa rght n accordance wth the provson of secton 81 and n those nstance aowed by aw such as secton 42 and 105; 8. To nsttute and fe a dervatve sut; 9. To recover shares of stock unawfuy sod for denquency as may be aowed under secton 69; 10. To nspect the books of the corporaton sub|ect ony to the mtatons mposed by secton 73; 11. To be furnshed by the most recent fnanca statement of the corporaton as by secton 75; 12. To be ssued a new stock certfcate n eu of the ost or destroyed one sub|ect to the procedure ad down n secton 73; 13. To have the corporaton dssoved under secton 118 to 121, and secton 105 n a cose corporaton; 14. To partcpate n the dstrbuton of the assets of the corporaton upon dssouton under secton 122; 15. In the case of a cose corporaton, to petton the SEC to arbtrate n the event of a deadock as aowed under secton 104; and, 16. Aso n the case of a cose corporaton, to wthdraw therefrom, for my reason, and compe the corporaton to purchase hs shares as provded for under secton 105. - LIABILITIES 1. To pay to the corporaton the baance of hs unpad subscrptons sub|ect to the provson of secton 67 to 70; 2. To pay nterest on hs unpad subscrpton f requred by the by-aws or by the contract of subscrpton n accordance wth secton 66; 3. To answer to the credtors for the unpad porton of hs subscrpton under the TRUST FUND DOCTRINE; 4. To answer the "water" n hs stocks as provded for n secton 65; 5. To be abe, as genera partners, for a debts, abtes and damages of a determnabe corporaton as envsoned under secton 21 (corporaton by estoppe); and, 6. To be personay abe for torts, n the event that a stockhoder n a cose corporaton actvey partcpates n the management of the corporate affars. CORPORATE BOO1S AND RECORDS What are these books and records that are requred to be kept? - Section %4. Books to be kept; stock transfer agent. - E8e7> co76o7*tion 2,*?? Bee6 *n+ c*7e93??> 67e2e78e *t it2 67inci6*? o99ice * 7eco7+ o9 *?? 432ine22 t7*n2*ction2 *n+ -in3te2 o9 *?? -eetin.2 o9 2tocB,o?+e72 o7 -e-4e72: o7 o9 t,e 4o*7+ o9 +i7ecto72 o7 t732tee2: in @,ic, 2,*?? 4e 2et 9o7t, in +et*i? t,e ti-e *n+ 6?*ce o9 ,o?+in. t,e -eetin.: ,o@ *3t,o7iCe+: t,e notice .i8en: @,et,e7 t,e -eetin. @*2 7e.3?*7 o7 26eci*?: i9 26eci*? it2 o45ect: t,o2e 67e2ent *n+ *42ent: *n+ e8e7> *ct +one o7 o7+e7e+ +one *t t,e -eetin.. U6on t,e +e-*n+ o9 *n> +i7ecto7: t732tee: 2tocB,o?+e7 o7 -e-4e7: t,e ti-e @,en *n> +i7ecto7: t732tee: 2tocB,o?+e7 o7 -e-4e7 ente7e+ o7 ?e9t t,e -eetin. -32t 4e note+ in t,e -in3te2D *n+ on * 2i-i?*7 +e-*n+: t,e >e*2 *n+ n*>2 -32t 4e t*Ben on *n> -otion o7 67o6o2ition: *n+ * 7eco7+ t,e7eo9 c*7e93??> -*+e. T,e 67ote2t o9 *n> +i7ecto7: t732tee: 2tocB,o?+e7 o7 -e-4e7 on *n> *ction o7 67o6o2e+ *ction -32t 4e 7eco7+e+ in 93?? on ,i2 +e-*n+. The records of a busness transactons of the corporaton and the mnutes of any meetngs sha be open to nspecton by any drector, trustee, stockhoder or member of the corporaton at reasonabe hours on busness days and he may demand, n wrtng, for a copy of excerpts from sad records or mnutes, at hs expense. Any offcer or agent of the corporaton who sha refuse to aow any drector, trustees, stockhoder or member of the corporaton to examne and copy excerpts from ts records or mnutes, n accordance wth the provsons of ths Code, sha be abe to such drector, trustee, stockhoder or member for damages, and n addton, sha be guty of an offense whch sha be punshabe under Secton 144 of ths Code: Provded, That f such refusa s made pursuant to a resouton or order of the board of drectors or trustees, the abty under ths secton for such acton sha be mposed upon the drectors or trustees who voted for such refusa: and Provded, further, That t sha be a defense to any acton under ths secton that the person demandng to examne and copy excerpts from the corporaton's records and mnutes has mpropery used any nformaton secured through any pror examnaton of the records or mnutes of such corporaton or of any other corporaton, or was not actng n good fath or for a egtmate purpose n makng hs demand. Stock corporatons must aso keep a book to be known as the "stock and transfer book", n whch must be kept a record of a stocks n the names of the stockhoders aphabetcay arranged; the nstaments pad and unpad on a stock for whch subscrpton has been made, and the date of payment of any nstament; a statement of every aenaton, sae or transfer of stock made, the date thereof, and by and to whom made; and such other entres as the by-aws may prescrbe. The stock and transfer book sha be kept n the prncpa offce of the corporaton or n the offce of ts stock transfer agent and sha be open for nspecton by any drector or stockhoder of the corporaton at reasonabe hours on busness days. No stock transfer agent or one engaged prncpay n the busness of regsterng transfers of stocks n behaf of a stock corporaton sha be aowed to operate n the Phppnes uness he secures a cense from the Securtes and Exchange Commsson and pays a fee as may be fxed by the Commsson, whch sha be renewabe annuay: Provded, That a stock corporaton s not precuded from performng or makng transfer of ts own stocks, n whch case a the rues and reguatons mposed on stock transfer agents, except the payment of a cense fee heren provded, sha be appcabe. (51a and 32a; P.B. No. 268.) To summarze: 1. Records of a busness transactons whch ncude, among others, |ournas, edger, contracts, vouchers and recepts, fnanca statements and other books of accounts, ncome tax returns, and votng trust agreements whch must be kept and carefuy preserved at ts prncpa offce; 2. Mnutes of a meetngs of stockhoders or members and of the drectors or trustees settng forth n deta the date, tme, and pace of meetng, how authorzed, the notce gven whether the same be reguar or speca, and f speca, the purpose thereof sha be specfed, those present and absent, and every act done or ordered done there at whch ,must kewse be kept at the prncpa offce of the corporaton; and, 3. Stock and transfer book showng the names of the stockhoders, the amount pad or unpad on a stocks for whch subscrpton has been made, a statement of every aenaton, sae or transfer of stock made, f any the date thereof, and by whom and to whom made whch must aso be kept at the prncpa offce of the corporaton or n the offce of ts stock transfer agent. These corporate books and records, ncusve of a busness transactons and mnutes of meetngs, are sub|ect to nspecton by any of the drectors, trustees, stockhoders or members of the corporaton at reasonabe hours on busness days and a copy of excerpts of sad records may be demanded. In fact, n so far as fnanca statement s concerned, the Code ceary provdes: Section %#. Rght to fnanca statements. - Wthn ten (10) days from recept of a wrtten request of any stockhoder or member, the corporaton sha furnsh to hm ts most recent fnanca statement, whch sha ncude a baance sheet as of the end of the ast taxabe year and a proft or oss statement for sad taxabe year, showng n reasonabe deta ts assets and abtes and the resut of ts operatons. At the reguar meetng of stockhoders or members, the board of drectors or trustees sha present to such stockhoders or members a fnanca report of the operatons of the corporaton for the precedng year, whch sha ncude fnanca statements, duy sgned and certfed by an ndependent certfed pubc accountant. However, f the pad-up capta of the corporaton s ess than P50,000.00, the fnanca statements may be certfed under oath by the treasurer or any responsbe offcer of the corporaton. (n) May books and records be examned? Who may examne? Can they copy them? In whose expense? - Yes, accordng to the code: ET,e 7eco7+2 o9 *?? 432ine22 t7*n2*ction2 o9 t,e co76o7*tion *n+ t,e -in3te2 o9 *n> -eetin.2 2,*?? 4e o6en to in26ection 4> *n> +i7ecto7: t732tee: 2tocB,o?+e7 o7 -e-4e7 o9 t,e co76o7*tion *t 7e*2on*4?e ,o372 on 432ine22 +*>2 *n+ ,e -*> +e-*n+: in @7itin.: 9o7 * co6> o9 e;ce76t2 97o- 2*i+ 7eco7+2 o7 -in3te2: *t ,i2 e;6en2e. E Is there any defense avaabe that coud be rased? By the corporate offcers to |ustfy the refusa? - Yes, the code provdes that: "and Provded, further, That t sha be a defense to any acton under ths secton that t,e 6e72on +e-*n+in. to e;*-ine *n+ co6> e;ce76t2 97o- t,e co76o7*tionF2 7eco7+2 *n+ -in3te2 ,*2 i-67o6e7?> 32e+ *n> in9o7-*tion 2ec37e+ t,7o3., *n> 67io7 e;*-in*tion o9 t,e 7eco7+2 o7 -in3te2 o9 23c, co76o7*tion o7 o9 *n> ot,e7 co76o7*tion: o7 @*2 not *ctin. in .oo+ 9*it, o7 9o7 * ?e.iti-*te 6376o2e in -*Bin. ,i2 +e-*n+." What s the stock and transfer? Where shoud stock and transfer be kept? Can t be kept esewhere? "Stock corporatons must aso keep a book to be known as the "stock and transfer book", in @,ic, -32t 4e Be6t * 7eco7+ o9 *?? 2tocB2 in t,e n*-e2 o9 t,e 2tocB,o?+e72 *?6,*4etic*??> *77*n.e+D t,e in2t*??-ent2 6*i+ *n+ 3n6*i+ on *?? 2tocB 9o7 @,ic, 2342c7i6tion ,*2 4een -*+e: *n+ t,e +*te o9 6*>-ent o9 *n> in2t*??-entD * 2t*te-ent o9 e8e7> *?ien*tion: 2*?e o7 t7*n29e7 o9 2tocB -*+e: t,e +*te t,e7eo9: *n+ 4> *n+ to @,o- -*+eD *n+ 23c, ot,e7 ent7ie2 *2 t,e 4>0?*@2 -*> 67e2c7i4e. The stock and transfer book sha be Be6t in t,e 67inci6*? o99ice o9 t,e co76o7*tion o7 in t,e o99ice o9 it2 2tocB t7*n29e7 *.ent and sha be open for nspecton by any drector or stockhoder of the corporaton at 7e*2on*4?e ,o372 on 432ine22 +*>2. E Stock and transfer agent - Records every movement - Person who montors movement by the mnutes or by the hours - Non-stock corporaton- stock and transfer books - Cub share- membershp Are stockhoders entted to fnanca statements? - Yes, they are entted to a copy, the code provdes that: Section %#. Rght to fnanca statements. - Wthn ten (10) days from recept of a wrtten request of any stockhoder or member, the corporaton sha furnsh to hm ts most recent fnanca statement, whch sha ncude a baance sheet as of the end of the ast taxabe year and a proft or oss statement for sad taxabe year, showng n reasonabe deta ts assets and abtes and the resut of ts operatons. At the reguar meetng of stockhoders or members, the board of drectors or trustees sha present to such stockhoders or members a fnanca report of the operatons of the corporaton for the precedng year, whch sha ncude fnanca statements, duy sgned and certfed by an ndependent certfed pubc accountant. However, f the pad-up capta of the corporaton s ess than P50,000.00, the fnanca statements may be certfed under oath by the treasurer or any responsbe offcer of the corporaton. (n) - Audted fnanca statement fed n the SEC, 120 days from the end of the fna year, or must be fed on or before Apr of each year - Must be stamp receved by the BIR Those n the stock exchange - Dscosure of any matter that have to do wth ncreasng and decreasng - If not "kuong" voaton of securtes and reguaton act Why s ths rght of nspecton granted to a stockhoder? - The bass of the rght of the stockhoder to nspect the books and records of the corporaton for a proper purpose s to protect hs nterest as a stockhoder. Thus, t has been sad that: "The rght of the sharehoders to ascertan how the affars of hs company are beng conducted by ts drectors and offcers s founded by hs benefca nterest through ownershp of shares and the necessty of 2e?9067otection. Managers of some corporatons deberatey keep the sharehoders n gnorance or under msapprehenson as to the true condton of ts affars. Busness prudence demands that the nvestor keep a watchfu eye on the management and the condton of the busness. Those n charge of the company may be guty of gross ncompetence or dshonesty for years and escape abty f the sharehoders cannot nspect the records and obtan nformaton." Is there any dstncton of the rght of nspecton of a stockhoder and that of a drector? - Yes, as compared to a stockhoder or member, the rght of a drector or trustee to nspect and examne corporate books and records s consdered absoute and unquafed and wthout regard to motve. Ths s because a drector supervses, drects and manages corporate busness and t s necessary that he be equpped wth a the nformaton and data wth regard to the affars of the company n order that he may manage and drect ts operatons ntegenty and accordng to hs best |udgment n the nterest of a the stockhoders he represents. Thus, whe stockhoders and members are entted to nspect and examne the books and records as provded n sectons 74 and 75 they may not gan access to hghy senstve and confdenta nformaton. In the case of drectors. "t s not dened" that they have such access. Ths woud ncude, among others, a. Marketng strateges and prcng structure; b. Budget for expanson and dversfcaton; c. Research and deveopment; d. Sources of fundng, avaabty of personne, proposas of mergers or te-ups wth other frms May ths rght be exercsed, other than by the stockhoders themseves? - Yes, whe the rght s founded on stock ownershp thus persona n nature t may be made by the stockhoders agent or representatve snce t may be unavang n many nstances What f the rght of the stockhoder to nspect s dened? What s hs remedy? 1. Mandamus 2. Damages ether aganst the corporaton or responsbe offcer who refused the nspecton 3. Crmna compant for voaton of hs rght to nspect and copy excerpts of a busness transactons and mnutes of meetng. Secton 74 provdes that Any offcer or agent of the corporaton who sha refuse to aow any drector, trustees, stockhoder or member of the corporaton to examne and copy excerpts from ts records or mnutes, n accordance wth the provsons of ths Code, sha be abe to such drector, trustee, stockhoder or member for damages, and n addton, sha be guty of an offense whch sha be punshabe under Secton 144 of ths Code. The atter provson mposes a penaty of a fne of not ess than P1,000 but not more than P10,000 or an mprsonment for not ess than 30 days but not more than 5 years, or both, at the dscreton of the court. If the refusa s pursuant to a resouton or order of the board, the abty sha be mposed upon the drectors or trustees who voted for such refusa. Defense of the responsbe corporate offcer 1. That the person demandng has mpropery used any nformaton secured through any pror examnaton of the records or mnutes of such corporaton or of any other corporaton; 2. That he was not actng n good fath or for a egtmate purpose n makng hs demand; 3. The rght s mted or restrcted by speca aw or the aw of t creaton. W.G. Phpotts vs. Phppne Manufacturng Co. - The rght of nspecton gven to a stockhoder can be exercsed ether by hmsef or by any proper representatve or attorney-n-fact, and ether wth or wthout the attendance of the stockhoder - The rght may be regarded as persona, n the sense that ony a stockhoder may en|oy t; but the nspecton and examnaton may be made by another. Otherwse t woud be unavang n many nstances. o Note: Usuay hres an audtor or accountant to safeguard hs nterest Pardo vs. Hercues Lumber Co. - The aw s cear, t may be exercsed durng reasonabe hours on any busness days, the by-aws cannot deny ths rght a together - The genera rght gven by the statute may not be awfuy abrdged to the extent attempted n ths resouton. It may be admtted that the offcas n charge of a corporaton may deny nspecton when sought at unusua hours or under other mproper condtons; but nether the executve offcers nor the board of drectors have the power to deprve a stockhoder of the rght atogether. - The corporaton, or ts responsbe drectors and offcers cannot unduy restrct ths rght of nspecton and may not arbtrary set a few days of the year wthn whch the stockhoder may make the nspecton. - A by-aw unduy restrctng the rght of nspecton s undoubtedy nvad Vegaruth vs. Isabea Sugar Co. - Drectors of a corporaton have the unquafed rght to nspect the books and records of the corporaton at a reasonabe hours. - We do not conceve, however, that a drector or stockhoder has any absoute rght to secure certfed copes of the mnutes of the corporaton unt these mnutes have been wrtten up and approved by the drectors. May a stockhoder of a hodng company nspect the books and records of a subsdary? - It depends - The rght of the stockhoders to examne corporate books extends to whoy-owned subsdary whch s competey under the contro and management of the parent company where he s such a stockhoder. But f the two enttes (subsdary and parent) are egay beng operated as separate and dstnct enttes, there s no such rght of nspecton on the part of the stockhoder of the parent company. AYALA- HOLDING COMPANY/PARENT COMPANY SUBSIDIARIES: BPI/GLOBE/AYALA LAND (not whoy- owned subsdary) o HOLD ATLEAST 50 +1 shares n order to be a PARENT COMPANY A, s a stockhoder of Ayaa, does he have a rght to nspect the records of ts subsdares? - If whoy owned pwede, but ts subsdares are not whoy owned kaya hnd pwede Gokongwe vs. SEC - San Mgue corporaton owns a of the shares of stock of San Mgue Internatona - It s whoy-owned - It woud be n accord wth equty, good fath and far deang to construe the statutory rght of pettoner as stockhoder to nspect the books and records of such whoy-owned subsdary whch are n respondent corporatons possesson and contro If beng operated as separate and dstnct corporatons, there s no such rght Teecommuncatons- speca franchse, t s a egsatve grant Gonzaes vs. PNB - Provsons of the od aw was unquafed, when t granted stockhoders the rght to nspect - However, whoe seemngy enargng the rght of nspecton, the new code has prescrbed mtatons to the same. It s now expressy requred as a condton for such examnaton that the one requestng t must not have been guty of usng mpropery any nformaton secured through a pror examnaton and that the person askng for such examnaton must be actng n good fath and for a egtmate purpose n makng hs demand - Admttedy, he sought to be a stockhoder n order to pry nto transactons entered nto by the respondent bank even before he became a stockhoder. Hs obvous purpose was to arm hmsef wth materas he can use aganst the respondent bank for acts done by the atter when the pettoner was a tota stranger to the same. - Bank was created by a speca aw, t has ts own charter and prmary governed by the aw creatng them - The bank s ony sub|ect to the nspecton of the Centra Bank and any nformaton pertanng to the bank s confdenta and sha not be reveaed to any person other than the Presdent of the Phppnes, the Secretary of Fnance and the Board of Drectors, nor sha any nformaton reatve to the funds n ts custody, ts current accounts or deposts beongng to prvate ndvduas, corporatons or other enttes except by order of a Court of Competent |ursdcton, hence nspecton sought to by the pettoner s voatve of the provsons of ts charter and s even sub|ect to pena sanctons Assumng you are a stockhoder of PNB, and then t was prvatzed, may you aready have the rght to nspect? - No, uness ts charter has been atered or repeaed t s st sub|ect to the same aw 3 stages n the fe of a corporaton - Formaton or brth - We now dscuss the unon of the corporaton - The ast woud be ts death or dssouton MERGER AND CONSOLIDATION Merger and consodaton - In corporate parance t s caed spn-off - Amost a year ago San Mgue separated ts brewery busness - San Mgue Corporaton s now a fu tme hodng company; t can ater on absorb the company - Corporatons are granted by the code to merge or consodate - most common type of corporate recognton - not the same n every case - but most common n the wea fnanca or nsovent condton, am s to brng t back to ts fnanca capabty - aso a method of recaptazaton o purchase and sae of corporate assets s another form of corporate reorganzaton How do you vaue the assets of the mergng corporaton, do you consder goodw? Frst secure favoraby recommendaton of government agency - Section %!. Effectvty of merger or consodaton. - The artces of merger or of consodaton, sgned and certfed as heren above requred, sha be submtted to the Securtes and Exchange Commsson n quadrupcate for ts approva: P7o8i+e+: T,*t in t,e c*2e o9 -e7.e7 o7 con2o?i+*tion o9 4*nB2 o7 4*nBin. in2tit3tion2: 43i?+in. *n+ ?o*n *22oci*tion2: t732t co-6*nie2: in237*nce co-6*nie2: 634?ic 3ti?itie2: e+3c*tion*? in2tit3tion2 *n+ ot,e7 26eci*? co76o7*tion2 .o8e7ne+ 4> 26eci*? ?*@2: t,e 9*8o7*4?e 7eco--en+*tion o9 t,e *667o67i*te .o8e7n-ent *.enc> 2,*?? 9i72t 4e o4t*ine+. If the Commsson s satsfed that the merger or consodaton of the corporatons concerned s not nconsstent wth the provsons of ths Code and exstng aws, t sha ssue a certfcate of merger or of consodaton, at whch tme the merger or consodaton sha be effectve. If, upon nvestgaton, the Securtes and Exchange Commsson has reason to beeve that the proposed merger or consodaton s contrary to or nconsstent wth the provsons of ths Code or exstng aws, t sha set a hearng to gve the corporatons concerned the opportunty to be heard. Wrtten notce of the date, tme and pace of hearng sha be gven to each consttuent corporaton at east two (2) weeks before sad hearng. The Commsson sha thereafter proceed as provded n ths Code. (n) Merger - A unon effected by absorbng one or more exstng corporatons by another whch survves and contnues the combned busness - It s the untng of two or more corporatons by the transfer of property to one of them whch contnue n exstence, the other or the others beng dssoved and merged theren. A B A transfers a assets, propertes, rghts, obgatons, abtes to B B ssues shares of stocks n exchange of the transfer A s then dssoved and B SURVIVES o Partes to a merger are caed consttuent corporaton Consodaton - The untng or amagamaton of two or more exstng corporatons to form a new corporaton - In merger there s a survvng corporaton, the others are dssoved, whe n consodaton, a consttuent are dssoved and a new one organzed A B C Lke a other corporate acts, t emanates from the board 1. The board of drectors or trustees of each consttuent corporatons sha *667o8e * 6?*n of merger or consodaton settng forth the matters requred n secton 76; 2. A667o8*? of the pan 4> t,e 2tocB,o?+e72 7e67e2entin. 2)3 o9 t,e o3t2t*n+in. c*6it*? 2tocB o7 2)3 o9 t,e -e-4e7 in non02tocB co76o7*tion2 of each of such corporatons at separate corporate meetngs caed for the purpose; 3. Pror notice of such meetng, @it, * co6> o7 23--*7> o9 t,e 6?*n o9 -e7.e7 o7 con2o?i+*tion sha be gven to a stockhoders or members at east two (2) weeks pror to the schedued meetng, ether 6e72on*??> o7 7e.i2te7e+ -*i? statng the purpose thereof; 4. Executon of the artces of merger or consodaton by each consttuent corporatons to be 2i.ne+ 4> t,e 67e2i+ent o7 8ice067e2i+ent *n+ ce7ti9ie+ 4> t,e co76o7*te 2ec7et*7> o7 *22i2t*nt 2ec7et*7> 2ettin. 9o7t, t,e -*tte72 7eG3i7e+ in 2ection %"D 5. S34-i22ion o9 t,e *7tic?e2 o9 -e7.e7 o7 con2o?i+*tion in G3*+736?ic*te to t,e SEC sub|ect to the requrement of secton 79 that f t nvove corporatons under the drect supervson of any other government agency or governed by speca aws the favorabe recommendaton of the government agency concerned sha frst be secured and; 6. I223*nce o9 t,e ce7ti9ic*te o9 -e7.e7 o7 con2o?i+*tion 4> t,e SEC at whch tme the merger or consodaton sha be effectve. If the pan, however, s beeved to be contrary to aw, the SEC sha set a hearng to gve the corporatons concerned an opportunty to be heard upon proper notce and thereafter, the Commsson sha proceed as provded n the Code. Athough merger and consodaton s an express power granted to corporaton, t s sub|ect to mtatons, as maybe proscrbed by aw What woud be the effect of merger or consodaton? <sec. 80> 1. There w ony be a snge corporaton. In case of merger, the survvng corporaton or the consodated corporaton n case of consodaton; 2. The termnaton of the corporate exstence of the consttuent corporatons, except that of the survvng corporaton or the consodated corporaton; 3. The survvng corporaton or the consodated corporaton w possess a the rghts, prveges, mmuntes and powers and sha be sub|ect to a the dutes and abtes of a corporaton organzed under the Code; 4. The survvng or consodated corporaton sha possess a the rghts, prveges, mmuntes and franchses of the consttuent corporatons, and a property and a recevabes due, ncudng subscrptons to shares and other choses n acton, and every other nterest of, or beongng to or due to the consttuent corporatons sha be deemed transferred to and vested n such survvng or consodated corporaton wthout further act and deed; and, 5. The rghts of credtors or any en on the property of the consttuent corporatons sha not be mpared by the merger or consodaton. Is there a qudaton process n case of merger or consodaton? - None, there s nothng to dstrbute Assocated Bank vs. CA - By vrtue of a specfc provson n the merger agreement - Athough the sub|ect promssory note names CBTC as the payee, the reference to CBTC n the note sha be construed, under the very provson of the merger agreement, as a reference to pettoner bank, "as f such reference (was a) drect reference to the atter for a ntents and purposes - Secton 80 par. 4 states: The survvng or the consodated corporaton sha thereupon and thereafter possess a the rghts, prveges, mmuntes and franchses of each of the consttuent corporatons; and a property, rea or persona, and a recevabes due on whatever account, ncudng subscrptons to shares and other choses n acton, and a and every other nterest of, or beongng to, or due to each consttuent corporaton, sha be deemed transferred to and vested n such survvng or consodated corporaton wthout further act or deed; and - Wthout further acts, meanng t s automatc When do merger and consodaton become effectve? What f the SEC fas to act on t wthout faut attrbutabe to the corporaton nvoved? - It w never become vad unt and uness the SEC gves ts stamp of approva - It w be up to the consttuent corporaton to foow t up - It w never take effect unt the SEC gves ts approva and ssues the artces of merger o Granted 3 years to wng up uness there s a trustee to wng up ts affars Coud there be qudators and wndng up wth respect to the corporaton n consodaton and merger? - No, there s none - No assets propertes or rghts to coect, they are transferred - No debts and abtes to pay because they become the abtes of the survvng corporatons - No propertes transferred because they w be the propertes of the survvng corporatons o Hardest part s the fnanca act, regardng how many shares woud be ssued, probabty of coecton and the ke o In merger and consodaton, there s due dgence and an economst s usuay hred APPRAISAL RIG(T Defne apprasa - Rght to wthdraw from the corporaton and demand payment of the far vaue of hs shares after dssentng from certan corporate acts nvovng fundamenta changes n corporate structure <sec. 81> What property? When may ths rght be exercses? - Secton 81 provdes: Section "1. Instances of apprasa rght. - Any stockhoder of a corporaton sha have the rght to dssent and demand payment of the far vaue of hs shares n the foowng nstances: 1. In case any amendment to the artces of ncorporaton has the effect of changng or restrctng the rghts of any stockhoder or cass of shares, or of authorzng preferences n any respect superor to those of outstandng shares of any cass, or of extendng or shortenng the term of corporate exstence; 2. In case of sae, ease, exchange, transfer, mortgage, pedge or other dsposton of a or substantay a of the corporate property and assets as provded n the Code; and 3. In case of merger or consodaton. (n) May t be exercsed by a stockhoder who dssents to the act of a busness other than a prmary purpose? X Co. nc Prncpa offce s n Ouezon cty, t was changed to Paranaque A ob|ects and makes a wrtten demand. May he exercse hs rght of apprasa? - It s not avaabe n a amendments of the corporaton - It must be changng or restrctng the rghts of any stockhoder What f the prncpa offce s changed from OC to TAWI-TAWI, w t change or affect the rghts of A? - To some t may change or restrct the rghts to others t may not How s the rght exercsed? - Accordng to secton 82 of the code: Section "2. How rght s exercsed. - The apprasa rght may be exercsed by any stockhoder who sha have voted aganst the proposed corporate acton, by makng a wrtten demand on the corporaton wthn thrty (30) days after the date on whch the vote was taken for payment of the far vaue of hs shares: Provded, That faure to make the demand wthn such perod sha be deemed a waver of the apprasa rght. If the proposed corporate acton s mpemented or affected, the corporaton sha pay to such stockhoder, upon surrender of the certfcate or certfcates of stock representng hs shares, the far vaue thereof as of the day pror to the date on whch the vote was taken, excudng any apprecaton or deprecaton n antcpaton of such corporate acton. If wthn a perod of sxty (60) days from the date the corporate acton was approved by the stockhoders, the wthdrawng stockhoder and the corporaton cannot agree on the far vaue of the shares, t sha be determned and apprased by three (3) dsnterested persons, one of whom sha be named by the stockhoder, another by the corporaton, and the thrd by the two thus chosen. The fndngs of the ma|orty of the apprasers sha be fna, and ther award sha be pad by the corporaton wthn thrty (30) days after such award s made: Provded, That no payment sha be made to any dssentng stockhoder uness the corporaton has unrestrcted retaned earnngs n ts books to cover such payment: and Provded, further, That upon payment by the corporaton of the agreed or awarded prce, the stockhoder sha forthwth transfer hs shares to the corporaton. (n) X Co. Prncpa Offce- OC, t was changed to Mana A ob|ects and makes a wrtten demand for payment of far vaue of shares. Can he make a demand of payment of shares? True or Fase, no stockhoder n a stock corporaton can ever demand f the prncpa offce s amended, changng t from OC to Mana - Fase, a stockhoder n a cose corporaton may for any reason compe the cose corporaton that he be pad the far vaue of hs shares Can he exercse hs apprasa rghts n the frst pace? He hasnt even pad hs subscrpton n fu. May a stockhoder who hasnt pad hs subscrpton n fu exercse hs apprasa rghts? - Yes, he can exercse hs apprasa rghts, by reconcng the provsons of secton 72, secton 82 and secton 86 Section %2. Rghts of unpad shares. - Hoders of subscrbed shares not fuy pad whch are not denquent 2,*?? ,*8e *?? t,e 7i.,t2 o9 * 2tocB,o?+e7. (n) Section "2. How rght s exercsed. - The apprasa rght may be exercsed by any stockhoder who sha have voted aganst the proposed corporate acton, by makng a wrtten demand on the corporaton wthn thrty (30) days after the date on whch the vote was taken for payment of the far vaue of hs shares: Provded, That faure to make the demand wthn such perod sha be deemed a waver of the apprasa rght. If the proposed corporate acton s mpemented or affected, t,e co76o7*tion 2,*?? 6*> to 23c, 2tocB,o?+e7: 36on 2377en+e7 o9 t,e ce7ti9ic*te o7 ce7ti9ic*te2 o9 2tocB 7e67e2entin. ,i2 2,*7e2: the far vaue thereof as of the day pror to the date on whch the vote was taken, excudng any apprecaton or deprecaton n antcpaton of such corporate acton. If wthn a perod of sxty (60) days from the date the corporate acton was approved by the stockhoders, the wthdrawng stockhoder and the corporaton cannot agree on the far vaue of the shares, t sha be determned and apprased by three (3) dsnterested persons, one of whom sha be named by the stockhoder, another by the corporaton, and the thrd by the two thus chosen. The fndngs of the ma|orty of the apprasers sha be fna, and ther award sha be pad by the corporaton wthn thrty (30) days after such award s made: Provded, That no payment sha be made to any dssentng stockhoder uness the corporaton has unrestrcted retaned earnngs n ts books to cover such payment: and Provded, further, That upon payment by the corporaton of the agreed or awarded prce, the stockhoder sha forthwth transfer hs shares to the corporaton. (n) Section "$. Notaton on certfcates; rghts of transferee. - Wthn ten (10) days after demandng payment for hs shares, a dssentng stockhoder sha submt the certfcates of stock representng hs shares to the corporaton for notaton thereon that such shares are dssentng shares. Hs faure to do so sha, *t t,e o6tion o9 t,e co76o7*tion, termnate hs rghts under ths Tte. If shares represented by the certfcates bearng such notaton are transferred, and the certfcates consequenty canceed, the rghts of the transferor as a dssentng stockhoder under ths Tte sha cease and the transferee sha have a the rghts of a reguar stockhoder; and a dvdend dstrbutons whch woud have accrued on such shares sha be pad to the transferee. (n) - Notaton s not mandatory, t s even dscretonary because the code provdes "at the opton of the corporaton" because t never ssued one for that matter snce the subscrptons are not yet fuy pad May the corporaton be compeed to pay the nterest of A 300 T, 150T, 150T and 0 unrestrcted retaned earnngs No stockhoder may be abe to compe the corporaton to pay the vaue of hs shares f the corporaton has no unrestrcted retaned earnngs - Fase, a stockhoder of a cose corporaton may for any reason, provded ony that the corporaton has suffcent assets to cover ts debts and abtes o Genera rue: there shoud be unrestrcted retaned earnngs o Excepton: secton 105 "cose corporaton" The procedure and requrements for the vad exercse of ths rghts are: 1. The stockhoder must have voted aganst the proposed corporate acton n any of the nstances aowed by aw for the exercse of the rght of apprasa; 2. The wrtten demand for payment must be made by the dssentng stockhoder wthn thrty (30) days after the date on whch the vote was taken thereon. Faure to make the demand wthn the sad perod sha be deemed a waver on the part of the stockhoder concerned to exercse hs apprasa rght; 3. Surrender of the certfcate of stock by the dssentng stockhoder for notaton n the corporate books and the payment by the corporaton of the far market vaue of the sad shares as of the day pror to the date on whch the vote was taken. If the stockhoder and the corporaton cannot agree on the far market vaue thereof, the same sha be determned n accordance wth the provson of paragraph 2 of secton 82; 4. The far vaue of the shares of the dssentng stockhoder must be pad by the corporaton ony f t has "unrestrcted retaned earnngs" n ts books to cover such payment. If the corporaton has no unrestrcted retaned earnngs, the dssentng stockhoder may not, therefore, be abe to effectvey exercse hs apprasa rghts; 5. Upon payment of the shares by the corporaton, the dssentng stockhoder sha transfer hs shares to the corporaton. What woud be the effect f the stockhoder exercses hs apprasa rghts? What happens to hs votng and dvdend rghts f he exercses hs apprasa rghts? - It w be suspended, wth a mtaton of 30 days, as provded for by secton 83 of the code: Section "3. Effect of demand and termnaton of rght. - From the tme of demand for payment of the far vaue of a stockhoder's shares unt ether the abandonment of the corporate acton nvoved or the purchase of the sad shares by the corporaton, *?? 7i.,t2 *cc73in. to 23c, 2,*7e2: inc?3+in. 8otin. *n+ +i8i+en+ 7i.,t2: 2,*?? 4e 2326en+e+ in *cco7+*nce @it, t,e 67o8i2ion2 o9 t,i2 Co+e: e;ce6t t,e 7i.,t o9 23c, 2tocB,o?+e7 to 7ecei8e 6*>-ent o9 t,e 9*i7 8*?3e t,e7eo9A P7o8i+e+: T,*t i9 t,e +i22entin. 2tocB,o?+e7 i2 not 6*i+ t,e 8*?3e o9 ,i2 2,*7e2 @it,in 3& +*>2 *9te7 t,e *@*7+: ,i2 8otin. *n+ +i8i+en+ 7i.,t2 2,*?? i--e+i*te?> 4e 7e2to7e+. <n= How do you compare the rghts of a stockhoder, decared denquent compared to a dssentng stockhoder exercsng hs apprasa rghts What f a stockhoder exercsng hs apprasa rghts s aso a drector, w he aso ose hs rghts as a stockhoder? - The shares reman to stand n hs name unt he s pad, uness there s a stpuaton n the by-aws When may the rght to be pad the vaue of hs shares cease? Can he wthdraw hs rght of apprasa? - Yes, he may wthdraw, but there must be consent by the corporaton as provded for by secton 83 of the code: Section "4. When rght to payment ceases. - No demand for payment under ths Tte may be wthdrawn uness the corporaton consents thereto. If, however, such demand for payment s wthdrawn wth the consent of the corporaton, or f the proposed corporate acton s abandoned or rescnded by the corporaton or dsapproved by the Securtes and Exchange Commsson where such approva s necessary, or f the Securtes and Exchange Commsson determnes that such stockhoder s not entted to the apprasa rght, then the rght of sad stockhoder to be pad the far vaue of hs shares sha cease, hs status as a stockhoder sha thereupon be restored, and a dvdend dstrbutons whch woud have accrued on hs shares sha be pad to hm. (n) Instances when the rght of a dssentng stockhoder to be pad the far vaue of hs shares ceases. 1. When he wthdraws hs demand for payment and the corporaton consents thereto; 2. When the proposed acton s abandoned or rescnded by the corporaton; 3. When the proposed acton s dsapproved by the SEC where such approva s necessary; 4. When the SEC determnes that he s not entted to exercse hs apprasa rght; 5. When he fas to submt the stock certfcate wthn ten (10) days from demand to the corporaton for notaton that such shares are dssentng shares; and, 6. If the shares are transferred and the certfcate subsequenty canceed. Who bears the cost of apprasa? - It depends - The corporaton bears the cost f a. The prce offered by the corporaton s ower than the far vaue of the shares of the dssentng stockhoder as determned by the apprasers; b. Where an acton s fed by the dssentng stockhoder to recover such far vaue and the refusa of the stockhoder to receve payment s found by the court to be |ustfed. - Dssentng stockhoder w be abe for the cost and expenses of apprasa when a. When the prce offered by the corporaton s approxmatey the same as the far vaue ascertaned by the apprasers; b. Where the acton fed by the dssentng stockhoder and hs refusa to accept payment s found by the court to be un|ustfed. The dssentng stockhoder may aso se, transfer or assgn hs shares Section "$. Notaton on certfcates; rghts of transferee. - Wthn ten (10) days after demandng payment for hs shares, a dssentng stockhoder sha submt the certfcates of stock representng hs shares to the corporaton for notaton thereon that such shares are dssentng shares. Hs faure to do so sha, at the opton of the corporaton, termnate hs rghts under ths Tte. I9 2,*7e2 7e67e2ente+ 4> t,e ce7ti9ic*te2 4e*7in. 23c, not*tion *7e t7*n29e77e+: *n+ t,e ce7ti9ic*te2 con2eG3ent?> c*nce??e+: t,e 7i.,t2 o9 t,e t7*n29e7o7 *2 * +i22entin. 2tocB,o?+e7 3n+e7 t,i2 Tit?e 2,*?? ce*2e *n+ t,e t7*n29e7ee 2,*?? ,*8e *?? t,e 7i.,t2 o9 * 7e.3?*7 2tocB,o?+e7D *n+ *?? +i8i+en+ +i2t7i43tion2 @,ic, @o3?+ ,*8e *cc73e+ on 23c, 2,*7e2 2,*?? 4e 6*i+ to t,e t7*n29e7ee. <n= NON0STOC1 CORPORATIONS What s a non-stock corporaton? - A non-stock corporaton s one where no part of ts ncome s dstrbutabe as dvdends to ts members, trustees, or offcers, sub|ect to the provsons of ths code on dssouton What provson of the code w govern non- stock corporatons? Woud the provson governng stock corporatons aso appy to non-stock corporatons? - Yes, 2 nd par. Of secton 87 provdes: The provsons governng stock corporaton, when pertnent, sha be appcabe to non-stock corporatons, except as may be covered by specfc provsons of ths Tte. (n) How s the rght to vote exercsed n a non- stock corporaton compared to a stock corporaton May a member n a non-stock corporaton vote cumuatvey? - Genera rue s NO May t be granted or aowed by the by-aws? - Yes May the rght to cumuatve votng be dened n a stock corporaton? - No, Doctrne of Lmted Capacty May members n a non-stock corporaton vote by proxy? - Yes, secton 89 provdes that: "Uness otherwse provded n the artces of ncorporaton or the by-aws, a member may vote by proxy n accordance wth the provsons of ths Code. (n) " May the rght to vote by proxy be vady dened n a stock corporaton? - No, t s a matter of rght n a stock corporaton May member of a non-stock corporaton cast ther vote by text? - Yes, sub|ect to the approva and terms and condtons of the SEC <sec. 89> "Votng by ma or other smar means by members of non-stock corporatons may be authorzed by the by-aws of non-stock corporatons wth the approva of, and under such condtons whch may be prescrbed by, the Securtes and Exchange Commsson. " How about n stock? - Votng by ma or other smar means may aso be authorzed and aowed by the by-aws of non-stock corporatons. Generay, n stock corporatons, the vote must be cast at a duy consttuted meetng. The ony excepton, n case of the atter, s n the matter of genera amendment of the artces of ncorporaton where the wrtten assent of the stockhoder may be suffcent. How s the governng board consttuted n a non-stock corporaton? How many members? - It may exceed 15 n a non-stock corporaton uness the AOI or by-aws provde otherwse, as provded for by secton 92 of the code: Section !2. Eecton and term of trustees. - Uness otherwse provded n the artces of ncorporaton or the by-aws, the board of trustees of non-stock corporatons, whch may be more than ffteen (15) n number as may be fxed n ther artces of ncorporaton or by-aws, sha, as soon as organzed, so cassfy themseves that the term of offce of one-thrd (1/3) of ther number sha expre every year; and subsequent eectons of trustees comprsng one-thrd (1/3) of the board of trustees sha be hed annuay and trustees so eected sha have a term of three (3) years. Trustees thereafter eected to f vacances occurrng before the expraton of a partcuar term sha hod offce ony for the unexpred perod. No person sha be eected as trustee uness he s a member of the corporaton. Uness otherwse provded n the artces of ncorporaton or the by-aws, offcers of a non-stock corporaton may be drecty eected by the members. (n) Ouafcatons? 1. He s a member of the assocaton; 2. Ma|orty thereof must be resdents of the Phppnes; and, 3. Other quafcatons as may be provded for n the by-aws. Governng board n a non-stock - Board of Trustees, however secton 138 provdes that: Section 13". Desgnaton of governng boards. - The provsons of specfc provsons of ths Code to the contrary notwthstandng, non02tocB o7 26eci*? co76o7*tion2 -*>: t,7o3., t,ei7 *7tic?e2 o9 inco76o7*tion o7 t,ei7 4>0?*@2: +e2i.n*te t,ei7 .o8e7nin. 4o*7+2 4> *n> n*-e ot,e7 t,*n *2 4o*7+ o9 t732tee2. <n= Dsquafcatons - Secton 27 aso appes to a non-stock corporaton, same hods true to the manner of remova <sec. 29 ad 30> Section 2%. Dsquafcaton of drectors, trustees or offcers. - No person convcted by fna |udgment of an offense punshabe by mprsonment for a perod exceedng sx (6) years, or a voaton of ths Code commtted wthn fve (5) years pror to the date of hs eecton or appontment, sha quafy as a drector, trustee or offcer of any corporaton. (n) Section 2!. Vacances n the offce of drector or trustee. - Any vacancy occurrng n the board of drectors or trustees other than by remova by the stockhoders or members or by expraton of term, may be fed by the vote of at east a ma|orty of the remanng drectors or trustees, f st consttutng a quorum; otherwse, sad vacances must be fed by the stockhoders n a reguar or speca meetng caed for that purpose. A drector or trustee so eected to f a vacancy sha be eected ony or the unexpred term of hs predecessor n offce. Any drectorshp or trusteeshp to be fed by reason of an ncrease n the number of drectors or trustees sha be fed ony by an eecton at a reguar or at a speca meetng of stockhoders or members duy caed for the purpose, or n the same meetng authorzng the ncrease of drectors or trustees f so stated n the notce of the meetng. (n) Section 3&. Compensaton of drectors. - In the absence of any provson n the by-aws fxng ther compensaton, the drectors sha not receve any compensaton, as such drectors, except for reasonabe per dems: Provded, however, That any such compensaton other than per dems may be granted to drectors by the vote of the stockhoders representng at east a ma|orty of the outstandng capta stock at a reguar or speca stockhoders' meetng. In no case sha the tota yeary compensaton of drectors, as such drectors, exceed ten (10%) percent of the net ncome before ncome tax of the corporaton durng the precedng year. (n) Who eects the other offcers? - Drecty by the genera members uness the by- aws or artces provde otherwse. <sec.92> "Uness otherwse provded n the artces of ncorporaton or the by-aws, offcers of a non-stock corporaton may be drecty eected by the members. (n) " In stock corporatons who eect offcers? - Drectors The provson that stock corporatons cannot vady provde that members cannot be voted by stockhoders s ony a genera rue because there s an excepton secton 97 of the code states that: T,e *7tic?e2 o9 inco76o7*tion o9 * c?o2e co76o7*tion may provde that the busness of the corporaton 2,*?? 4e -*n*.e+ 4> t,e 2tocB,o?+e72 o9 t,e co76o7*tion 7*t,e7 t,*n 4> * 4o*7+ o9 +i7ecto72. So ong as ths provson contnues n effect: 1. No meetng of stockhoders need be caed to eect drectors; 2. Uness the context ceary requres otherwse, the stockhoders of the corporaton sha be deemed to be drectors for the purpose of appyng the provsons of ths Code; and 3. The stockhoders of the corporaton sha be sub|ect to a abtes of drectors. T,e *7tic?e2 o9 inco76o7*tion may kewse provde that a o99ice72 o7 e-6?o>ee2 o7 t,*t 26eci9ie+ o99ice72 o7 e-6?o>ee2 sha be eected or *66ointe+ 4> t,e 2tocB,o?+e72: in2te*+ o9 4> t,e 4o*7+ o9 +i7ecto72. Nature of membershp s non-transferrabe and persona n nature uness the artces of ncorporaton or by-aws provde otherwse Section !&. Non-transferabty of membershp. - Membershp n a non-stock corporaton and a rghts arsng there from are persona and non- transferabe, uness the artces of ncorporaton or the by-aws otherwse provde. (n) How s a membershp requrement n a non- stock corporaton A hods a membershp certfcate B goes to the corporaton and compes the corporaton to record the transfer n hs name - Membershp n non-stock corporatons may be acqured by compyng wth the provsons of ts rues prescrbed n the by-aws. Ths s n consonance wth the express power granted by aw under secton 36, paragraph 6 of the code, authorzng them to admt members thereof and that authorty carres wth t the power to prescrbe rues on membershp. It has thus been stated that n the absence of charter or statutory restrctons, non-stock corporatons may determne who sha be admtted to membershp and how they sha be admtted. Section 3$. Corporate powers and capacty. - Every corporaton ncorporated under ths Code has the power and capacty: 6. In case of stock corporatons, to ssue or se stocks to subscrbers and to se stocks to subscrbers and to se treasury stocks n accordance wth the provsons of ths Code; and to admt members to the corporaton f t be a non-stock corporaton; - They can provde the manner n whch to admt dependng on ther own rues The power or authorty to termnate members n non-stock corporatons s sad to be nherent but strct compance wth the manner and procedure ad down n the by-aws must be observed, otherwse t may render the expuson neffectve and nvad. Section !1. Termnaton of membershp. - Membershp sha be termnated n the manner and for the causes provded n the artces of ncorporaton or the by-aws. Termnaton of membershp sha have the effect of extngushng a rghts of a member n the corporaton or n ts property, uness otherwse provded n the artces of ncorporaton or the by-aws. (n) Power s nherent and may be exercsed n certan stuatons: 1. When an offense s commtted whch, athough t has no mmedate reaton to a members duty as such, t s so nfamous as to render hm unft for socety of honest men, whch s ndctabe at common aw; 2. When the offense s a voaton of hs duty as member of the corporaton; and, 3. When the offense s of a mxed nature, beng both aganst hs duty as a member of the corporaton, and aso ndctabe at common aw. If the conduct of the member comes wthn any of ths cases, t s a ground for vad expuson athough t may not be expressy made so by the by-aws Chnese YMCA vs. Chng - Rght of the corporaton to choose who the members are, cannot be nqured or ntervened by the court - The appeaed decson thus contravened the estabsh prncpe that the courts cannot strp a member of a non-stock corporaton of hs membershp theren wthout cause. Lons Cub Internatona vs. CA - Courts w not generay nterfere on matters nvovng the nterna affars of an unncorporated assocaton such as eecton contest uness the acts companed of are arbtrary, oppressve, frauduent, voatve of cv rghts and the ke - Genera rue s that the courts w not nterfere wth the nterna affars of an unncorporated assocaton so as to sette dsputes between the members, or questons of pocy, dscpne, or nterna government, so ong as the government of the socety s fary and honesty admnstered n conformty wth ts by-aws and the aw of the and, and no property or cv rghts are nvoved. - Exceptons are the foowng: a. Where aw and |ustce so requre, and the proceedngs of the assocaton are sub|ect to |udca revew where there s fraud, oppresson, or bad fath, or where the acton companed of s caprcous, arbtrary, or un|usty dscrmnatory b. To grant reef n case property or cv rghts are nvaded, athough t has aso been hed that the nvovement of property rghts does not necessary authorze |udca nterventon, n the absence of arbtrarness, fraud or couson. c. Are voatve of the aws of the socety, or the aw of the and, as by deprvng the person of due process of aw d. There s ack of |ursdcton on the part of the trbuna conductng the proceedngs, where the organzaton exceeds ts powers, or where the proceedngs are otherwse ega Corporatons, stock and non-stock, may be dssoved n accordance and pursuant to the provsons of Sectons 118 to 121 of the Corporaton Code and the pertnent provsons of P.D. 902-A, as amended. If such be the case, the assets of the corporaton are to be dstrbuted n accordance wth aw and estabshed |ursprudence. If a non-stock corporaton s dssoved how w ts propertes be dstrbuted? Section !4. Rues of dstrbuton. - In case dssouton of a non-stock corporaton n accordance wth the provsons of ths Code, ts assets sha be apped and dstrbuted as foows: 1. A abtes and obgatons of the corporaton sha be pad, satsfed and dscharged, or adequate provson sha be made therefore; 2. Assets hed by the corporaton upon a condton requrng return, transfer or conveyance, and whch condton occurs by reason of the dssouton, sha be returned, transferred or conveyed n accordance wth such requrements; 3. Assets receved and hed by the corporaton sub|ect to mtatons permttng ther use ony for chartabe, regous, benevoent, educatona or smar purposes, but not hed upon a condton requrng return, transfer or conveyance by reason of the dssouton, sha be transferred or conveyed to one or more corporatons, socetes or organzatons engaged n actvtes n the Phppnes substantay smar to those of the dssovng corporaton accordng to a pan of dstrbuton adopted pursuant to ths Chapter; 4. Assets other than those mentoned n the precedng paragraphs, f any, sha be dstrbuted n accordance wth the provsons of the artces of ncorporaton or the by-aws, to the extent that the artces of ncorporaton or the by-aws, determne the dstrbutve rghts of members, or any cass or casses of members, or provde for dstrbuton; and 5. In any other case, assets may be dstrbuted to such persons, socetes, organzatons or corporatons, whether or not organzed for proft, as may be specfed n a pan of dstrbuton adopted pursuant to ths Chapter. (n) Non-stock corporatons wth 4Bon funds, may t be dstrbuted for and among ts members? - Secton 94 number 3 provdes: 3. Assets receved and hed by the corporaton sub|ect to mtatons permttng ther use ony for chartabe, regous, benevoent, educatona or smar purposes, but not hed upon a condton requrng return, transfer or conveyance by reason of the dssouton, sha be transferred or conveyed to one or more corporatons, socetes or organzatons engaged n actvtes n the Phppnes substantay smar to those of the dssovng corporaton accordng to a pan of dstrbuton adopted pursuant to ths Chapter; - If there s no dstrbutve agreement then they may do so through a pan of dstrbuton under secton 95 Section !#. Pan of dstrbuton of assets. - A pan provdng for the dstrbuton of assets, not nconsstent wth the provsons of ths Tte, may be adopted by a non-stock corporaton n the process of dssouton n the foowng manner: The board of trustees sha, by ma|orty vote, adopt a resouton recommendng a pan of dstrbuton and drectng the submsson thereof to a vote at a reguar or speca meetng of members havng votng rghts. Wrtten notce settng forth the proposed pan of dstrbuton or a summary thereof and the date, tme and pace of such meetng sha be gven to each member entted to vote, wthn the tme and n the manner provded n ths Code for the gvng of notce of meetngs to members. Such pan of dstrbuton sha be adopted upon approva of at east two-thrds (2/3) of the members havng votng rghts present or represented by proxy at such meetng. (n) CLOSE CORPORATIONS Section !$. Defnton and appcabty of Tte. - A cose corporaton, wthn the meanng of ths Code, s one whose artces of ncorporaton provde that: <1= A?? t,e co76o7*tionF2 i223e+ 2tocB o9 *?? c?*22e2: e;c?32i8e o9 t7e*237> 2,*7e2: 2,*?? 4e ,e?+ o9 7eco7+ 4> not -o7e t,*n * 26eci9ie+ n3-4e7 o9 6e72on2: not e;cee+in. t@ent> <2&=D <2= *?? t,e i223e+ 2tocB o9 *?? c?*22e2 2,*?? 4e 2345ect to one o7 -o7e 26eci9ie+ 7e2t7iction2 on t7*n29e7 6e7-itte+ 4> t,i2 Tit?eD *n+ <3= T,e co76o7*tion 2,*?? not ?i2t in *n> 2tocB e;c,*n.e o7 -*Be *n> 634?ic o99e7in. o9 *n> o9 it2 2tocB o9 *n> c?*22. Notwthstandng the foregong, a corporaton sha not be deemed a cose corporaton when at east two-thrds (2/3) of ts votng stock or votng rghts s owned or controed by another corporaton whch s not a cose corporaton wthn the meanng of ths Code. - Between and among themseves, they fee and act ake - Not more than 20 stockhoders - Specfed persons, f you are not specfed, you cannot be a stockhoder - A the ssued stocks of a casses s sub|ect to restrctons - Sha not be sted n the stock exchange not pubcy offered - 3 quafyng condtons must be contaned n the artces of ncorporaton, to be consdered as a cose corporaton, f not, t w not be consdered as such and w be governed by the genera provsons of the code - Even f 100 % s owned by one person t w not be consdered a cose corporaton wthout the 3 quafyng provsons - Identty of stockhoders, specfed persons - Actve management ether as drectors or partners n management - Combnaton of the corporaton and partnershp type of busness May any type of corporaton, be organzed as such cose corporaton? - No, the 3 quafyng condtons must be present What f 2/3 of the outstandng capta stock s owned by another corporaton whch s aso a cose corporaton, w t be a cose corporaton? - No, t w ony be a cosed corporaton f 2/3 of the votng stocks of a cose corporaton s aso owned by a cose corporaton. It must be "votng" stocks - Even f another corporaton owns or contros 2/3 of the votng stocks of a cose corporaton, the atter may st be consdered as such cose corporaton f the corporaton ownng or controng the shares s aso a cose corporaton. "Notwthstandng the foregong, a corporaton sha not be deemed a cose corporaton when at east two-thrds (2/3) of ts votng stock or votng rghts s owned or controed by another corporaton whch s not a cose corporaton wthn the meanng of ths Code." What knd of corporatons cannot be a cose corporaton? 1. Mnng or o companes, 2. Stock exchange 3. Banks and nsurance companes, 4. Pubc uttes 5. Educatona nsttutons 6. Corporatons vested wth pubc nterest Cassfcaton of drectors - Ordnary stock- no such rght - Cose corporaton-yes there s such a rght Secton 97 s a permssve provson Section !%. Artces of ncorporaton. - The artces of ncorporaton of a cose corporaton may provde: 1. For a cassfcaton of shares or rghts and the quafcatons for ownng or hodng the same and restrctons on ther transfers as may be stated theren, sub|ect to the provsons of the foowng secton; 2. For a cassfcaton of drectors nto one or more casses, each of whom may be voted for and eected soey by a partcuar cass of stock; and 3. For a greater quorum or votng requrements n meetngs of stockhoders or drectors than those provded n ths Code. After cassfcaton what then? - After cassfcaton, quafcaton and then restrcton as provded for under the 3 quafyng condtons n secton 96 Cumuatve votng s restrcted n cose corporatons f w be eected soey by a partcuar cass In a cose corporaton, the artces of ncorporaton may provde for a greater quorum and votng requrement n meetngs of both stockhoders or drectors to ncrease the veto power of mnorty stockhoders, unke n a stock corporaton wheren ony drectors meetngs may provde for greater quorum requrement and n stockhoders meetng whch may not be atered or ncreased, as provde for n secton 25, foowng the doctrne of mted capacty The artces of a cose corporaton may kewse provde that the busness of the corporaton sha be managed by the stockhoders rather than by the board of drectors. However the same must contan the contnung provsons requred n paragraph 2 of secton 97, that s: 1. No meetng of stockhoders need be caed to eect drectors; 2. Uness the context ceary requres otherwse, the stockhoders of the corporaton sha be deemed to be drectors; and; 3. The stockhoders of the corporaton sha be sub|ect to a abtes of drectors. Labty of stockhoders actng as drectors n a cose corporaton are more extensve snce they are personay abe for corporate torts uness the corporaton has obtaned a reasonabe adequate abty nsurance, unke a ordnary stock corporaton, wheren drectors thereof are ony abe for corporate torts ony f they have been neggent or acted frauduenty n the performance of ther functons. Restrctons - In ordnary stock corporatons, the restrctons must appear n the artces of ncorporaton as we as the certfcate of stocks - In a cose corporaton, the restrctons must appear n the artces of ncorporaton, the by-aws and the certfcate of stocks. Otherwse, the same sha not be bndng on any purchaser thereof n good fath What f the stockhoders do not want to exercse ther rght or opton to purchase may t be sod to any person? - Yes, any thrd person, secton 98 provdes: Section !". Vadty of restrctons on transfer of shares. - Restrctons on the rght to transfer shares must appear n the artces of ncorporaton and n the by-aws as we as n the certfcate of stock; otherwse, the same sha not be bndng on any purchaser thereof n good fath. Sad restrctons sha not be more onerous than grantng the exstng stockhoders or the corporaton the opton to purchase the shares of the transferrng stockhoder wth such reasonabe terms, condtons or perod stated theren. I9 36on t,e e;6i7*tion o9 2*i+ 6e7io+: t,e e;i2tin. 2tocB,o?+e72 o7 t,e co76o7*tion 9*i?2 to e;e7ci2e t,e o6tion to 637c,*2e: t,e t7*n29e77in. 2tocB,o?+e7 -*> 2e?? ,i2 2,*7e2 to *n> t,i7+ 6e72on. o ordnary stock corporatons are abe ony f acted n Bad fath, fraud or neggence n performance of duty What f there are aready 20 stockhoders and they want to add 2 more, may t compe? - In ordnary stock corporatons, they may compe by mandamus - In cose corporatons, may not be compeed to admt because t breaches the quafyng condtons Snce they cannot be compeed, may they admt? - Yes, provded a the stockhoders consented or nstead of consentng they decde to amend ther artces of ncorporaton - W have to amend the artces of ncorporaton to accommodate other purchasers of share - W cease to be a cose corporaton f t amends and becomes n excess of 20 o Uness a the stockhoders consent they "may" What f the other stockhoders ob|ect to regster? What w be the remedy of the transferee? - Hs remedy s rescsson. The effect of rescsson s mutua resttuton How about the stockhoder, what s hs recourse? - He may compe the cose corporaton to purchase hs shares at ther far vaue for any reason, provded the corporaton has suffcent assets n ts books to cover the debts and abtes excusve of capta - In a cose corporaton, there s a wthdrawng stockhoder, unke n an ordnary stockhoder where there s none, they may ony do so n the exercse of apprasa rghts Section 1&#. Wthdrawa of stockhoder or dssouton of corporaton. - In addton and wthout pre|udce to other rghts and remedes avaabe to a stockhoder under ths Tte, *n> 2tocB,o?+e7 o9 * c?o2e co76o7*tion -*>: 9o7 *n> 7e*2on: co-6e? t,e 2*i+ co76o7*tion to 637c,*2e ,i2 2,*7e2 *t t,ei7 9*i7 8*?3e: @,ic, 2,*?? not 4e ?e22 t,*n t,ei7 6*7 o7 i223e+ 8*?3e: @,en t,e co76o7*tion ,*2 2399icient *22et2 in it2 4ooB2 to co8e7 it2 +e4t2 *n+ ?i*4i?itie2 e;c?32i8e o9 c*6it*? 2tocBA Provded, That any stockhoder of a cose corporaton may, by wrtten petton to the Securtes and Exchange Commsson, compe the dssouton of such corporaton whenever any of acts of the drectors, offcers or those n contro of the corporaton s ega, or frauduent, or dshonest, or oppressve or unfary pre|udca to the corporaton or any stockhoder, or whenever corporate assets are beng msapped or wasted. Agreements may aso be entered n a cose corporaton <sec.100> - They can even agree to be partners n management - Pre-ncorporaton - Manner n whch the busness of the corporaton sha be managed Board resouton - Ordnary stock corporatons- st and act as a body at a duy consttuted meetng, they may do so by vrtue of the E-Commerce Act through teeconference or vdeo conference Excepton to the rue: other offcers may be drecty apponted and hred by the stockhoders Cose corporatons may vady act even wthout a meetng provded the condtons are obtaned Section 1&1. When board meetng s unnecessary or mpropery hed. - Uness the by-aws provde otherwse, any acton by the drectors of a cose corporaton wthout a meetng sha nevertheess be deemed vad f: 1. Before or after such acton s taken, wrtten consent thereto s sgned by a the drectors; or 2. A the stockhoders have actua or mped knowedge of the acton and make no prompt ob|ecton thereto n wrtng; or 3. The drectors are accustomed to take nforma acton wth the express or mped acquescence of a the stockhoders; or 4. A the drectors have express or mped knowedge of the acton n queston and none of them makes prompt ob|ecton thereto n wrtng. Pre-emptve rghts n a cose corporaton s absoute Section 1&2. Pre-emptve rght n cose corporatons. - The pre-emptve rght of stockhoders n cose corporatons sha extend to a stock to be ssued, ncudng ressuance of treasury shares, whether for money, property or persona servces, or n payment of corporate debts, uness the artces of ncorporaton provde otherwse. Why s t sad to be absoute? - Because there s no pubc offerng n a cose corporaton, otherwse t w not be consdered as cose In a cose corporaton the pre-emptve rghts s broadened to ncude a ssues wthout excepton uness dened or mted by the artces of ncorporaton Secton 39 s the governng provson concernng rghts of the stockhoder n an ordnary stock corporaton and t may be dened. If t s not dened a stockhoder can exercse hs pre-emptve rghts for a ssues of shares whether money, property or prevousy ncurred ndebtedness. Section 3!. Power to deny pre-emptve rght. - A stockhoders of a stock corporaton sha en|oy pre- emptve rght to subscrbe to a ssues or dsposton of shares of any cass, n proporton to ther respectve sharehodngs, uness such rght s dened by the artces of ncorporaton or an amendment thereto: Provded, That such pre-emptve rght sha not extend to shares to be ssued n compance wth aws requrng stock offerngs or mnmum stock ownershp by the pubc; or to shares to be ssued n good fath wth the approva of the stockhoders representng two-thrds (2/3) of the outstandng capta stock, n exchange for property needed for corporate purposes or n payment of a prevousy contracted debt. Are treasury shares covered n the exercse of pre-emptve rghts n ordnary stock corporatons? As regards amendments Section 1&3. Amendment of artces of ncorporaton. - Any amendment to the artces of ncorporaton whch seeks to deete or remove any provson requred by ths Tte to be contaned n the artces of ncorporaton or to reduce a quorum or votng requrement stated n sad artces of ncorporaton sha not be vad or effectve uness approved by the affrmatve vote of at east two-thrds (2/3) of the outstandng capta stock, whether wth or wthout votng rghts, or of such greater proporton of shares as may be specfcay provded n the artces of ncorporaton for amendng, deetng or removng any of the aforesad provsons, at a meetng duy caed for the purpose. What happens f there s a deadock? - Secton 104 provdes for a remedy Section 1&4. Deadocks. - Notwthstandng any contrary provson n the artces of ncorporaton or by-aws or agreement of stockhoders of a cose corporaton, f the drectors or stockhoders are so dvded respectng the management of the corporaton's busness and affars that the votes requred for any corporate acton cannot be obtaned, wth the consequence that the busness and affars of the corporaton can no onger be conducted to the advantage of the stockhoders generay, the Securtes and Exchange Commsson, upon wrtten petton by any stockhoder, sha have the power to arbtrate the dspute. In the exercse of such power, the Commsson sha have authorty to make such order as t deems approprate, ncudng an order: (1) canceng or aterng any provson contaned n the artces of ncorporaton, by-aws, or any stockhoder's agreement; (2) canceng, aterng or en|onng any resouton or act of the corporaton or ts board of drectors, stockhoders, or offcers; (3) drectng or prohbtng any act of the corporaton or ts board of drectors, stockhoders, offcers, or other persons party to the acton; (4) requrng the purchase at ther far vaue of shares of any stockhoder, ether by the corporaton regardess of the avaabty of unrestrcted retaned earnngs n ts books, or by the other stockhoders; (5) appontng a provsona drector; (6) dssovng the corporaton; or (7) grantng such other reef as the crcumstances may warrant. A provsona drector sha be an mparta person who s nether a stockhoder nor a credtor of the corporaton or of any subsdary or affate of the corporaton, and whose further quafcatons, f any, may be determned by the Commsson. A provsona drector s not a recever of the corporaton and does not have the tte and powers of a custodan or recever. A provsona drector sha have a the rghts and powers of a duy eected drector of the corporaton, ncudng the rght to notce of and to vote at meetngs of drectors, unt such tme as he sha be removed by order of the Commsson or by a the stockhoders. Hs compensaton sha be determned by agreement between hm and the corporaton sub|ect to approva of the Commsson, whch may fx hs compensaton n the absence of agreement or n the event of dsagreement between the provsona drector and the corporaton. - Powers of the SEC n ntra-corporate concerns has been transferred to the proper commerca courts - Prohbt, even f actng n good fath - Provsona drector apponted by the court - Requrng the purchase, rrespectve of unrestrcted retaned earnngs - The provson of the aw above-quoted gves the SEC a very wde dscreton n respect to management of a cose corporaton n the event of a deadock. It may: 1. Cance or ater any provson n the artces of ncorporaton, by-aws or any stockhoders agreement 2. Cance, ater or en|on any resouton or other act of the corporaton or ts board of drectors, stockhoders or offcers 3. Prohbt any act of the corporaton or ts board of drectors, stockhoders or offcers or other persons party to the acton; 4. Requrng the purchase of the par vaue of the shares of any stockhoders, ether by the corporaton regardess of avaabty of unrestrcted earnngs, or by the other sharehoders, 5. Appontment of a provsona drector 6. Dssovng the corporaton; or 7. Other reef as the crcumstances may warrant. Secton 105 - Dshonesty s a ground for dssouton of a cose corporaton - Even one stockhoder may petton for dssouton o when there s a reef avaabe, dssouton woud not be avaabe n an ordnary corporaton CLOSE CORPORATION ORDINARY STOCK CORPORATION 1. The number of stockhoders cannot exceed 20 No mtaton as to number of sharehoder 2. To the extent that a stockhoders can be deemed drectors, the number of drectors can effectvey be more than 15 Maxmum number of drectors s 15 3. Shares of stock are sub|ect to specfed restrctons Generay no restrcton on transfer of shares 4. Shares of stock are prohbted from beng sted n the stock exchange or offered for sae to the pubc No prohbton 5. Stockhoders may take an actve part n corporate management by vestng management to them rather than a Board of Drector Management s odged n the Board of Drectors 6. Those actve n management are personay abe for corporate torts uness the corporaton has obtaned an adequate abty nsurance Drectors are abe for torts ony f they have acted neggenty or frauduenty 7. Drectors can vady act even wthout a meetng Drectors must, as a rue, act as a body at a duy consttuted meetng 8. Agreements between stockhoders regardng the operatons of the busness can vady be made Not vad and bndng snce stockhoders agreement cannot mt the dscreton of the Board to manage corporate affars 9. To the extent that drectors may be cassfed nto one or more casses and to be voted soey by a partcuar cass of stock, cumuatve votng may, n effect, be restrcted Ordnary, no such cassfcaton and no restrctons on cumuatve votng 10. The artces of ncorporaton may provde that a offcers sha be eected or apponted by the stockhoders Offcers are eected by the Board of Drectors 11. It may provde for greater quorum and votng requrements n meetngs of stockhoders and drectors Athough the artces of ncorporaton or by-aws may provde for greater quorum and votng requrements n drectors meetng under secton 25, those for stockhoders meetng cannot generay be atered 12. Restrcton on transfer of shares shoud be ndcated n the artces of ncorporaton, by-aws and stock certfcates Vad and bndng f ndcated n the artces of ncorporaton and stock certfcates 13. Pre-emptve rghts of stockhoders s broader as t ncude a ssues wthout excepton Pre-emptve rghts may be dened as provded for n secton 39 14. A stockhoder may wthdraw and compe the corporaton to purchase hs shares for any reason wth the mtaton ony that the corporaton has suffcent assets to cover ts abtes excusve of capta stock Uness he ses hs shares, a stockhoder cannot get back hs nvestment nor compe the corporaton to buy hs shares except n the exercse of hs apprasa rght 15. The proper forum may nterfere n the management of a cose corporaton n case of deadocks under Secton 104, even of the drectors/stockhoders are actng n good fath Courts cannot nterfere I the busness |udgment of the drectors/stockhoders "BUSINESS |UDGMENT RULE" 16. Any stockhoder may petton the SEC for corporate dssouton on grounds among others, provdes for n secton 105 Dssouton may be had ony on the grounds provded by the provsons of the Code on dssouton and P.D. 902-A, as amended Manue Duay Enterprses vs. CA - What was the poston of Manue Duay here? Presdent, Genera Manager and Treasurer - Cannot act both as presdent and treasurer at the same tme - Snce t s a cose corporaton owned by the famy of Manue Duay, save and except the secretary, t shoud be governed by Tte XII - Pettoner s cassfed as a cose corporaton and consequenty a board resouton authorzng the sae or mortgage of the sub|ect property s not necessary to bnd the corporaton for the acton of ts presdent. At any rate, a corporate acton taken at a board meetng wthout proper ca or notce n a cose corporaton s deemed ratfed by the absent drector uness the atter prompty fes hs wrtten ob|ecton wth the secretary of the corporaton after havng knowedge of the meetng whch, n ths case, pettoner Vrgo Duay faed to do. - Vrgo Duay s a sgnatory wtness, he knows very we about the deed of absoute sae, he s estopped Naguat vs. NLRC - Secton 100 par. 5. To the extent that the stockhoders are actvey engaged n the management or operaton of the busness and affars of a cose corporaton, the stockhoders sha be hed to strct fducary dutes to each other and among themseves. Sad stockhoders sha be personay abe for corporate torts uness the corporaton has obtaned reasonaby adequate abty nsurance. Famy corporatons s not automatcay a cose corporaton the 3 quafyng condtons must be present. SPECIAL CORPORATIONS 2 types of speca corporatons 1. Educatona corporatons 2. Regous corporatons 2.1 Corporaton Soe 2.2 Regous Socetes What provson governs educatona corporatons? Section 1&$. Incorporaton. - Educatona corporatons sha be governed by speca aws and by the genera provsons of ths Code. (n) - Speca aws ke they Educaton Act of the Phppnes - These nsttutons of earnng, once recognzed by the government as such are mandated by aw to be ncorporated wthn nnety (90) days under the provsons of the Corporaton Code and must, perforce, compy wth the requrements and procedure ad down there under. Ther faure to so w not mmune the educatona nsttuton from sut as a corporaton. (Chang Ka Sek Case) - Favorabe recommendaton of government agency nvoved Two types of educatona corporatons - Certfcate of competon n the academc fed - Vocatona and technca ones o Recommendaton of DECS f certfcate of competon n the academc fed How s the governng board of an educatona nsttuton nsttuted? - Non-stock- mutpes of 5 ony (exampe: 5,10,15) - Stock- can be anywhere between 5 to 15 Can they consst of 7 or 9 members? - Yes, f stock Can they be ncorporated aso as non-stock? - Yes - B.P. 232 aows the organzaton of an educatona nsttuton that s stock corporaton, ony f they do not ssue a certfcate of competon n the academc fed Ouafcatons and dsquafcatons of the membershp n the board of an educatona corporaton - Educatona corporatons are governed by speca aws and genera provsons, hence f there s no provson n the speca aw, you go back to secton 25 and 27 of the genera provsons - Stock- must be a stockhoder - Non-stock- must be a member - By-aws may provde for addtona quafcatons and dsquafcatons Section 2#. Corporate offcers, quorum. - Immedatey after ther eecton, the drectors of a corporaton must formay organze by the eecton of a presdent, who sha be a drector, a treasurer who may or may not be a drector, a secretary who sha be a resdent and ctzen of the Phppnes, and such other offcers as may be provded for n the by-aws. Any two (2) or more postons may be hed concurrenty by the same person, except that no one sha act as presdent and secretary or as presdent and treasurer at the same tme. The drectors or trustees and offcers to be eected sha perform the dutes en|oned on them by aw and the by-aws of the corporaton. Uness the artces of ncorporaton or the by-aws provde for a greater ma|orty, a ma|orty of the number of drectors or trustees as fxed n the artces of ncorporaton sha consttute a quorum for the transacton of corporate busness, and every decson of at east a ma|orty of the drectors or trustees present at a meetng at whch there s a quorum sha be vad as a corporate act, except for the eecton of offcers whch sha requre the vote of a ma|orty of a the members of the board. Drectors or trustees cannot attend or vote by proxy at board meetngs. (33a) Section 2%. Dsquafcaton of drectors, trustees or offcers. - No person convcted by fna |udgment of an offense punshabe by mprsonment for a perod exceedng sx (6) years, or a voaton of ths Code commtted wthn fve (5) years pror to the date of hs eecton or appontment, sha quafy as a drector, trustee or offcer of any corporaton. (n) Artce 14 secton 4 par. 2 of the Consttutons Educatona nsttutons, other than those estabshed by regous groups and msson boards, sha be owned soey by ctzens of the Phppnes or corporatons or assocatons at east sxty per centum of the capta of whch s owned by such ctzens. The Congress may, however, requre ncreased Fpno equty partcpaton n a educatona nsttutons. The contro and admnstraton of educatona nsttutons sha be vested n ctzens of the Phppnes. No educatona nsttuton sha be estabshed excusvey for aens and no group of aens sha comprse more than one-thrd of the enroment n any schoo. The provsons of ths sub secton sha not appy to schoos estabshed for foregn dpomatc personne and ther dependents and, uness otherwse provded by aw, for other foregn temporary resdents. - Management s eft soey to ctzens of the Phppnes - Board of Drectors manages the corporate affars, foregners cannot therefore be eected n the board - Exceptons are, msson boards and regous orders, whch may have a governng board consstng of foregners Term of offce of governng board n an educatona nsttutons - Can serve a term of 5 years. If that be the case, 1/5 of ther number sha expre every year Non-stock or stock, can they serve for a 1 year term ony? - Yes, the artces of ncorporaton may provde that t be 1 year ony What are these regous corporatons spoken off? - Corporaton soe and regous socetes What s a corporaton soe? - Conssts of one person ony and hs successor n some partcuar staton, who are ncorporated by aw n order to gve them some ega capactes and advantages, partcuary that of perpetuty, whch n ther natura persons they coud not have had May a corporaton be organzed by ess than 5 natura persons? - Genera rue, 5 to 15 natura persons(except cooperatves and corporatons prmary organzed to hod equtes n rura banks and may rghtfuy become ncorporators thereof) - Excepton, corporaton soe, consst of ony one person May any person form or organze a corporaton soe? - No, not any person can form a corporaton soe, secton 110 provdes: Section 11&. Corporaton soe. - For the purpose of admnsterng and managng, as trustee, the affars, property and temporates of any regous denomnaton, sect or church, a corporaton soe may be formed by the chef archbshop, bshop, prest, mnster, rabb or other presdng eder of such regous denomnaton, sect or church. (154a) Is t requred to fe the artces of ncorporaton n the SEC? - Yes What shoud be contaned n the artces of ncorporaton? - Secton 111 and secton 112 provdes for the contents and procedures Section 111. Artces of ncorporaton. - In order to become a corporaton soe, the chef archbshop, bshop, prest, mnster, rabb or presdng eder of any regous denomnaton, sect or church must fe wth the Securtes and Exchange Commsson artces of ncorporaton settng forth the foowng: 1. That he s the chef archbshop, bshop, prest, mnster, rabb or presdng eder of hs regous denomnaton, sect or church and that he desres to become a corporaton soe; 2. That the rues, reguatons and dscpne of hs regous denomnaton, sect or church are not nconsstent wth hs becomng a corporaton soe and do not forbd t; 3. That as such chef archbshop, bshop, prest, mnster, rabb or presdng eder, he s charged wth the admnstraton of the temporates and the management of the affars, estate and propertes of hs regous denomnaton, sect or church wthn hs terrtora |ursdcton, descrbng such terrtora |ursdcton; 4. The manner n whch any vacancy occurrng n the offce of chef archbshop, bshop, prest, mnster, rabb of presdng eder s requred to be fed, accordng to the rues, reguatons or dscpne of the regous denomnaton, sect or church to whch he beongs; and 5. The pace where the prncpa offce of the corporaton soe s to be estabshed and ocated, whch pace must be wthn the Phppnes. The artces of ncorporaton may ncude any other provson not contrary to aw for the reguaton of the affars of the corporaton. (n) Section 112. Submsson of the artces of ncorporaton. - The artces of ncorporaton must be verfed, before fng, by affdavt or affrmaton of the chef archbshop, bshop, prest, mnster, rabb or presdng eder, as the case may be, and accompaned by a copy of the commsson, certfcate of eecton or etter of appontment of such chef archbshop, bshop, prest, mnster, rabb or presdng eder, duy certfed to be correct by any notary pubc. From and after the fng wth the Securtes and Exchange Commsson of the sad artces of ncorporaton, verfed by affdavt or affrmaton, and accompaned by the documents mentoned n the precedng paragraph, such chef archbshop, bshop, prest, mnster, rabb or presdng eder sha become a corporaton soe and a temporates, estate and propertes of the regous denomnaton, sect or church theretofore admnstered or managed by hm as such chef archbshop, bshop, prest, mnster, rabb or presdng eder sha be hed n trust by hm as a corporaton soe, for the use, purpose, behaf and soe beneft of hs regous denomnaton, sect or church, ncudng hosptas, schoos, coeges, orphan asyums, parsonages and cemeteres thereof. (n) Is t requred to ndcate ts terms of executon? Why not? - Not requred because they are supposed to exst n perpetuty - However, t does not mean that t sha contnue to exst forever, t merey means that t has the capacty of contnuous exstence durng a partcuar perod unt dssoved n accordance wth aw When w t acqure |udca personaty? How do you compare ths to other types of corporaton? - After the fng the verfed artces of ncorporaton aong wth the documents requred n Secton 112 wth the SEC, mmedatey becomes endowed wth corporate personaty, ths serves as an excepton to the rue that a corporaton acqures |urdca personaty ony upon the ssuance of a certfcate of ncorporaton by the sad government agency. - Upon fng of verfed artces of ncorporaton wth the SEC, w not requre the approva of SEC A corporaton soe s possessed wth the same power, rghts and prveges, to own, acqure and hod or convey propertes ke any other corporaton? True or Fase - Fase, they have the same power rghts and prveges, but when t comes to aenaton and acquston, t must possess a court order, however when there s a reguated method, a court order may be dspensed wth <sec. 113> Section 113. Acquston and aenaton of property. - Any corporaton soe may purchase and hod rea estate and persona property for ts church, chartabe, benevoent or educatona purposes, and may receve bequests or gfts for such purposes. Such corporaton may se or mortgage rea property hed by t by obtanng an order for that purpose from the Court of Frst Instance of the provnce where the property s stuated upon proof made to the satsfacton of the court that notce of the appcaton for eave to se or mortgage has been gven by pubcaton or otherwse n such manner and for such tme as sad court may have drected, and that t s to the nterest of the corporaton that eave to se or mortgage shoud be granted. The appcaton for eave to se or mortgage must be made by petton, duy verfed, by the chef archbshop, bshop, prest, mnster, rabb or presdng eder actng as corporaton soe, and may be opposed by any member of the regous denomnaton, sect or church represented by the corporaton soe: Provded, That n cases where the rues, reguatons and dscpne of the regous denomnaton, sect or church, regous socety or order concerned represented by such corporaton soe reguate the method of acqurng, hodng, seng and mortgagng rea estate and persona property, such rues, reguatons and dscpne sha contro, and the nterventon of the courts sha not be necessary. (159a) Snce a corporaton soe s conssts ony of one person, w the regstraton of the property n the name of the corporaton soe vest unto the head thereof the ownershp of the property? - No, t w not vest unto the head, the head s actng merey as a guardan Roman Cathoc Apostoc Adm. Of Davao, nc. vs. Land Reg. Comm, et a. - Act ony as a guardan - Ownershp devoves upon the congregaton or regous denomnaton - A corporaton conssts of one person ony and hs successors (who w aways be one at a tme, n some partcuar staton), who are ncorporated by aw n order to gve them some ega capactes and advantages, partcuary that of perpetuty, whch n ther natura persons they coud not have had - Roman Cathoc Church has no natonaty and that the framers of the Consttuton, as w be hereunder expaned, dd not have n mnd the regous corporatons soe when they provded that 60 percent of the capta thereof be owned by Fpno ctzens. Drector of Lands vs. CA - Aenabe pubc and s converted nto prvate and when the same has been openy, contnuousy and excusvey n possesson of the property as concept of an owner for 30 years, automatcay that s Repubc of the Phppnes vs. IAC - Determnaton of the character of the and shoud be n mnd - If they st form part of pubc doman they cannot be owned, but f they are converted nto prvate and, the consttutona prohbton w not appy If there s vacancy who w f up the same? What f there s none, what must the successor do? - Accordng to secton 114: Section 114. Fng of vacances. - The successors n offce of any chef archbshop, bshop, prest, mnster, rabb or presdng eder n a corporaton soe sha become the corporaton soe on ther accesson to offce and sha be permtted to transact busness as such on the fng wth the Securtes and Exchange Commsson of a copy of ther commsson, certfcate of eecton, or etters of appontment, duy certfed by any notary pubc. Durng any vacancy n the offce of chef archbshop, bshop, prest, mnster, rabb or presdng eder of any regous denomnaton, sect or church ncorporated as a corporaton soe, the person or persons authorzed and empowered by the rues, reguatons or dscpne of the regous denomnaton, sect or church represented by the corporaton soe to admnster the temporates and manage the affars, estate and propertes of the corporaton soe durng the vacancy sha exercse a the powers and authorty of the corporaton soe durng such vacancy. (158a) If a corporaton exsts n equty may t not be dssoved? Section 11#. Dssouton. - A corporaton soe may be dssoved and ts affars setted vountary by submttng to the Securtes and Exchange Commsson a verfed decaraton of dssouton. The decaraton of dssouton sha set forth: 1. The name of the corporaton; 2. The reason for dssouton and wndng up; 3. The authorzaton for the dssouton of the corporaton by the partcuar regous denomnaton, sect or church; 4. The names and addresses of the persons who are to supervse the wndng up of the affars of the corporaton. Upon approva of such decaraton of dssouton by the Securtes and Exchange Commsson, the corporaton sha cease to carry on ts operatons except for the purpose of wndng up ts affars. (n) - Whe secton 115 of the code provdes for the process and procedure for the dssouton of a corporate soe, there s nothng n the aw tsef whch woud prohbt t from amendng ts artces of ncorporaton - It s beeved that authorzaton for the dssouton by the partcuar regous denomnaton, sect or church, as requred n sub-paragraph 3 of secton 115 woud st be necessary n the case of amendng the artces of ncorporaton to affect dssouton. o Expraton of a corporate term w not appy to a regous corporaton May a corporaton soe be dssoved by |udca decree? - Genera rue: No, because a corporaton soe, s by ts very nature eccesastca and regous (doctrne of separaton of church and state) - Excepton: poce power of the state, f ts purpose s beng carred out and s nstead beng used for ega purpose, t may be so dssoved What are regous socetes? - Under common aw, a regous socety s a body of persons assocated together for the purpose of mantanng regous worshp. Is t aso requred to fe ts artces of ncorporaton to the SEC? - No <sec. 116> "may" What shoud be contaned n the artces of ncorporaton? - Secton 116 provdes: Section 11$. Regous socetes. - Any regous socety or regous order, or any docese, synod, or dstrct organzaton of any regous denomnaton, sect or church, uness forbdden by the consttuton, rues, reguatons, or dscpne of the regous denomnaton, sect or church of whch t s a part, or by competent authorty, may, upon wrtten consent and/or by an affrmatve vote at a meetng caed for the purpose of at east two-thrds (2/3) of ts membershp, ncorporate for the admnstraton of ts temporates or for the management of ts affars, propertes and estate by fng wth the Securtes and Exchange Commsson, artces of ncorporaton verfed by the affdavt of the presdng eder, secretary, or cerk or other member of such regous socety or regous order, or docese, synod, or dstrct organzaton of the regous denomnaton, sect or church, settng forth the foowng: 1. That the regous socety or regous order, or docese, synod, or dstrct organzaton s a regous organzaton of a regous denomnaton, sect or church; 2. That at east two-thrds (2/3) of ts membershp have gven ther wrtten consent or have voted to ncorporate, at a duy convened meetng of the body; 3. That the ncorporaton of the regous socety or regous order, or docese, synod, or dstrct organzaton desrng to ncorporate s not forbdden by competent authorty or by the consttuton, rues, reguatons or dscpne of the regous denomnaton, sect, or church of whch t forms a part; 4. That the regous socety or regous order, or docese, synod, or dstrct organzaton desres to ncorporate for the admnstraton of ts affars, propertes and estate; 5. The pace where the prncpa offce of the corporaton s to be estabshed and ocated, whch pace must be wthn the Phppnes; and 6. The names, natonates, and resdences of the trustees eected by the regous socety or regous order, or the docese, synod, or dstrct organzaton to serve for the frst year or such other perod as may be prescrbed by the aws of the regous socety or regous order, or of the docese, synod, or dstrct organzaton, the board of trustees to be not ess than fve (5) nor more than ffteen (15). (160a) Is t requred to ndcate ts term of exstence? - Lkewse to exst n perpetuty, the aw does not requre to ndcate ts term of exstence When w t acqure |urdca personaty? - Ony a corporaton soe may come nto exstence wthout SEC approva, secton 19 w thus govern, Vested wth |udca capacty upon ssuance of the certfcate by the SEC o However t s not accurate accordng to atty. Lada because there are those that can ssue for exampe cooperatves- BUREAU OF COOPERATI'ES whch regster, home nsurance guaranty corporaton- (OME OWNERS How may regous socetes be dssoved? - Go to the genera rues governng dssouton, because the rues under speca corporatons do not provde for such rue DISSOLUTION What s dssouton? - Extngushment of the corporate franchse and the termnaton of corporate exstence 3 modes of dssouton 1. By expraton of ts term; 2. By vountary surrender of ts prmary franchse (vountary dssouton); 3. By revocaton of ts corporate franchse (nvountary dssouton) Phppne Natona Bank vs. CFI - When the perod of corporate fe expres, the corporaton ceases to be a body corporate for purposes of contnung the busness for whch t s organzed. But t sha nevertheess be contnued as a body corporate for three years after the tme when t woud have be dssoved, for the purpose of prosecutng and defendng suts by or aganst t and for enabng t graduay to sette and cose ts affars to dspose of and convey ts property and to dvde ts assets. There s no need for the nsttuton of a proceedng for quo warranto to determne the tme and date of the dssouton of a corporaton because the perod of corporate exstence s provded n the artces of ncorporaton. When such perod expres and wthout any extenson havng been made pursuant to aw, the corporaton s dssoved automatcay nsofar as the contnuaton of ts busness s concerned. - The rghts of the essor and the essee over the mprovements whch the atter constructed on the eased premses are governed by Artce 1678 of the Cv Code. The provson gves the essee the rght to remove the mprovements f the essor chooses not to pay one haf of the vaue thereof. However, n the case at bar the aw w not appy because the partes heren have stpuated n the contract ther own terms and condtons concernng the mprovements before the termnaton of the ease. Pettoner PNB as assgnee of PBM succeeded to the obgaton of the atter under the contract of ease. It coud not possess rghts more than what PBM had as essee under the contract. Hence, pettoner was duy bound to remove the mprovements before the expraton of the perod of ease. Its faure to do so when the ease was termnated was tantamount to a waver of ts rghts and nterest over the mprovements on the eased premse. o 3 modes of dssouton, 3 modes of vountary dssouton and 3 modes of qudaton and wndng up- FREOUENTLY ASKED IN THE FINALS What are the 3 modes of vountary dssouton? 1. Vountary dssouton where no credtors are affected; <sec.118> 2. Vountary dssouton where credtors are affected; <sec. 119> 3. Shortenng of corporate term. <sec. 120> Vountary dssouton where no credtors are affected <sec.118> - The forma and procedura requrements necessary are the foowng: 1. Ma|orty vote of the board of drectors or trustees; 2. Sendng of notce of each stockhoders or member ether by regstered ma or persona devery at east thrty (30) days pror to the meetng (schedued by the board for the purpose of submttng the board acton to dssove the corporaton for approva of the stockhoder or members.); 3. Pubcaton of the notce of tme, pace and sub|ect of the meetng for three (3) consecutve weeks n a newspaper pubshed n the pace where the prncpa offce of sad corporaton s ocated or n a newspaper of genera crcuaton n the Phppnes; 4. Resouton adopted by the affrmatve vote of the stockhoders ownng at east 2/3 of the outstandng capta stock or 2/3 of the members at the meetng duy caed for the purpose; 5. A copy of the resouton authorzng the dssouton must be certfed by a ma|orty of the board of drectors or trustees and countersgned by the corporate secretary; 6. Issuance of a certfcate of dssouton by the SEC. Shoud ths be strcty comped wth? - Yes, compance wth the requrements and formates prescrbed above s mandatory such that faure to compy therewth w have no effect on the ega exstence of the corporaton. W dssouton be effectve and vad by a mere resouton of the BOD and stockhoders? - No, a mere resouton by the stockhoders or the BOD of a corporaton to dssove the same does not affect the dssouton but that some other steps, admnstratve or |udca s necessary. (Daguhoy Enterprses vs. Ponce) - Snce t s the State whch grants ts rght to exst, t s ony through the State whch can aow the termnaton of ts exstence; wthout consent of the State, t w not be dssoved. Vountary dssouton where credtors are affected <sec.119> - By vrtue of a petton, when there are credtors affected - The foowng formates woud thus be requred: 1. Affrmatve vote of the stockhoders representng at east 2/3 of the outstandng capta stock or at east 2/3 of the members at a meetng duy caed for that purpose; 2. Petton for dssouton sha be fed wth the SEC sgned by a ma|orty of ts board of drectors or trustees or other offcers havng the management of ts affars, verfed by the presdent or secretary or one of ts drectors or trustees, settng forth a cams and demands aganst t. 3. Issuance of an order by the SEC rectng the purpose of the petton and fxng the date on or before whch ob|ectons thereto may be fed by any person, whch date sha not be ess than thrty days nor more than sxty days after entry of the order. 4. Before such date, a copy of the order must be pubshed once a week for three (3) consecutve weeks n a newspaper of genera crcuaton pubshed n the cty or muncpaty where the prncpa offce s stuated or n a newspaper of genera crcuaton n the Phppnes. 5. Postng of the same order for three (3) consecutve weeks n three (3) pubc paces n such cty or muncpaty. 6. Upon fve (5) days notce, gven after the date on whch the rght to fe ob|ectons has expred, the SEC sha hear the petton and try any ssue made by the ob|ectons fed. 7. |udgment dssovng the corporaton and drectng of ts assets as |ustce requres and the appontment of a recever (f necessary n ts dscreton) to coect such assets and pay the debts of the corporaton. o The foregong are aso mandatory requrements Is the appontment of a recever mandatory? - No, t s merey permssve or dscretonary on the part of the court. The code uses the word "may"; the aw ntended to et the sharehoders have the contro of the assets of the corporaton upon dssouton and wndng up. - The drectors may aso undertake qudaton and wndng up of ts corporate affars, and sound busness |udgment, on how they w wnd up Dssouton by shortenng of corporate term <sec.120> - W be vad upon approva of the SEC, unke genera amendments, whch w be deemed approved f not acted upon by the SEC wthn 6 months from the date of fng for a cause not attrbutabe to the corporaton. - Shortenng of the corporate term partakes the nature of an amendment of the artces of ncorporaton. Secton 16 under genera amendments aows "wrtten assent" secton 37 mandates that the vote must be cast at a duy consttuted meetng. Section 12&. Dssouton by shortenng corporate term. - A vountary dssouton may be effected by amendng the artces of ncorporaton to shorten the corporate term pursuant to the provsons of ths Code. A copy of the amended artces of ncorporaton sha be submtted to the Securtes and Exchange Commsson n accordance wth ths Code. Upon approva of the amended artces of ncorporaton of the expraton of the shortened term, as the case may be, the corporaton sha be deemed dssoved wthout any further proceedngs, sub|ect to the provsons of ths Code on qudaton. (n) o Intra-corporate- speca commerca courts Another way of dssovng a corporaton s through nvountary dssouton Section 121. Invountary dssouton. - A corporaton may be dssoved by the Securtes and Exchange Commsson upon fng of a verfed compant and after proper notce and hearng on the grounds provded by exstng aws, rues and reguatons. (n) - Dssouton s tantamount to the mposton of death penaty - Instead of dssovng the corporaton, courts normay en|on the further commsson of the questoned act - The reef of dssouton w be awarded ony where no other remedy s avaabe and t w not be aowed where the rghts of the stockhoders can be, or are, protected n some other way (Repubc vs. Bsaya Land Trans. Co. Inc.) What are the grounds for nvountary dssouton? - It s commenced through a verfed compant or motu propro by the proper courts - Secton 6 of PD 902-A provdes for the grounds for nvountary dssouton as foows: 1. Fraud n procurng ts certfcate of regstraton; 2. Serous msrepresentaton as to what the corporaton can do or s dong to the great pre|udce of or damage to the genera pubc; 3. Refusa to compy or defance of any awfu order of the Commsson restranng commsson of acts whch woud amount to a grave voaton of ts franchse; 4. Contnuous noperaton for a perod of at east fve (5) years; 5. Faure to fe by-aws wthn the requred perod; 6. Faure to fe requred reports n approprate forms as determned by the Commsson wthn the prescrbed perod. - Other grounds are provded for n the corporaton code tsef: among them are: 1. Voaton of any provson of the Code under secton 144; 2. In case of deadock n a cose corporaton as provded for n secton 105; 3. In a cose corporaton, any acts of drectors, offcers or those n contro of the corporaton whch s ega or frauduent or dshonest or oppressve or unfary pre|udca to the corporaton or any stockhoder or whenever corporate assets are beng msapped or wasted under secton 105. - Mere dshonesty s aso a ground n a cose corporaton - Other grounds can be found n other speca aws ke the Securtes Reguaton Code and the Genera Bankng Act as we as the Insurance Code. Government vs. Phppne Sugar Estate - It s necessary n order to secure |udca forecosure of respondents charter to show a ms-user of ts franchse |ustfyng such a forfeture - Ob|ect s to protect the pubc, and not to redress prvate grevances, the ms-user must be such as to work or threaten a substanta n|ury to the pubc, or such as to amount to a voaton of the fundamenta condton of the contract by whch the franchse was granted and thus defeat the purpose of the grant - Courts proceed wth extreme cauton whch has for ther ob|ect the forfeture of corporate franchse, and forfeture w not be aowed, except under express mtaton, or for pan abuse of power by whch the corporaton fas to fuf the desgn and purpose of ts organzaton. But when the abuse or voaton consttutes or threatens a substanta n|ury to the pubc or such as to amount to a voaton of the fundamenta condtons of ts charter, or ts conduct s characterzed by obduracy or pertnacty n contempt of aw, dssouton w be granted - Dd the court dssove the corporaton? No, t dd not, t granted the corporaton 6 months to cease and desst the performance of the questoned act otherwse t w be dssoved Government vs. E Hogar - 3 causes of acton, the frst s that the corporaton voated the aw by hodng on the property beyond that provde for by aw, the second s that the corporaton undertook the management f pettoners beongng to denquent sharehoders of the assocaton, and asty that the by-aw provson, whch empowers the BD to cance shares and to return to the owners thereof the baance returnng from the qudaton Compare to Phppne Sugar Estate, wheren the court rued condtona dssouton. Why decree condtona dssouton n one and not n the other case? - Because n E Hogar the government was at faut, the government wasnt abe to ssue the certfcate of tte on tme - When the case was nsttuted, E Hogar was aready abe to dspose the propertes n queston, n Phppne Sugar Estate t was st the hodng the propertes n order to enrch tsef at the expense of the taxpayers Repubc vs. Securty Credt and Acceptance Corp. et a. - The corporaton here s a endng nsttuton and not a bankng nsttuton - Defendant corporaton voated the aw because before a corporaton may engage nto a bankng actvty t must frst obtan a secondary franchse from the Centra Bank - Defendant corporaton threatens substanta n|ury to the genera pubc, dssouton s warrant - If there s a bank run kawawa naman yung depostors Repubc vs. Bsaya Land Transportaton Co. Inc - The reef of dssouton w be awarded ony where no other remedy s avaabe and t w not be aowed where the rghts of the stockhoders can be, or are, protected n some other way - Msuse and msappcaton of the funds and assets of the respondent were commtted partcuary by the corporate offcers, where they can nstead be hed personay abe - Snce there s another remedy avaabe dssouton s not warranted Assumng the above stated corporaton s a cose corporaton, woud the court decree otherwse? - Yes, because n a cose corporaton, mere dshonesty s a ground for the dssouton - Can even be dssoved by petton of ony one stockhoder on the grounds stated n the code < sec. 105> Fnancng Corporaton of the Phppnes vs. Teodoro - Mnorty stockhoders may not ask for the dssouton of a corporaton n prvate suts and that such actons shoud be brought by the Government through ts ega offcers, e;ce6t in c*2e2 @,e7e t,e inte78ention o9 t,e St*te: 9o7 one 7e*2on o7 *not,e7: c*nnot 4e o4t*ine+: *2 @,en t,e St*te i2 not inte7e2te+ 4ec*32e t,e co-6?*int i2 2t7ict?> * -*tte7 4et@een t,e 2tocB,o?+e72 *n+ +oe2 not in8o?8e: in t,e o6inion o9 t,e ?e.*? o99ice7 o9 t,e Go8e7n-ent: *n> o9 t,e *ct2 o7 o-i22ion2 @*77*ntin. G3o @*77*nto 67ocee+in. : in @,ic, -ino7it> 2tocB,o?+e72 *7e entit?e+ to ,*8e 23c, +i22o?3tion. It shoud be exercsed f necessary n order not to entrey gnore and dsregard the rghts of sad mnorty stockhoders, especay when sad mnorty stockhoders are unabe to obtan redress and protecton of ther rghts wthn the corporaton tsef. Stockhoders shoud not be eft wthout recourse P7e2ent 2et 36 - Any stockhoder or member of a corporaton can nsttute a dssouton proceedng aganst hs own corporaton before the proper forum - Speca Commerca Courts, sha hear and decde ntra-corporate dsputes May a corporaton ask for dssouton of the corporaton when there s no pre|udce to the genera pubc? - Yes, n a cose corporaton, a petton for the dssouton of the corporaton may be nsttuted by any one ndvdua sharehoder on the ground, even by mere dshonesty Effects of dssouton - The dssouton of a corporaton not ony termnates ts prmary franchse to be a corporaton, but generay prevents t from further exercsng other or secondary franchses whch have been conferred to ts. It termnates ts power to enter nto contracts or t o contnue the busness as a gong concern. - Based on ths genera rue, the Supreme Court hed that a corporaton, whose corporate fe expred, cannot awfuy pursue the busness for whch t was organzed. It cannot appy for a new certfcate or a secondary franchse for t s ncapabe of recevng a grant. Nether can t enforce a contract executed pror ts dssouton for the purpose of contnung the busness of ts organzaton. - In genera the rghts and abtes of the corporaton are not extngushed by ts dssouton. Section 14#. Amendment or repea. - No rght or remedy n favor of or aganst any corporaton, ts stockhoders, members, drectors, trustees, or offcers, nor any abty ncurred by any such corporaton, stockhoders, members, drectors, trustees, or offcers, sha be removed or mpared ether by the subsequent dssouton of sad corporaton or by any subsequent amendment or repea of ths Code or of any part thereof. (n) Buenafor vs. Camarnes Sur Industry Corp. - From that tme on Camarnes Sur was pyng n an actvty that was ega - A corporaton where the corporate fe has expred t cannot awfuy pursue the busness for whch t was organzed. - the Supreme Court hed that a corporaton, whose corporate fe expred, cannot awfuy pursue the busness for whch t was organzed. It cannot appy for a new certfcate or a secondary franchse for t s ncapabe of recevng a grant. - Awardng t to Camarnes Sur s tantamount to a meda for ts ega acts - It cannot appy for a new certfcate or a secondary franchse for t s ncapabe of recevng a grant. It was not even a corporaton de facto. And then, there s no appcaton subscrbed by the new corporaton - And yet as stated, the new corporaton has not fed any appcaton for certfcate of pubc convenence n Sabang, and has not pubshed such appcaton. Cebu Port Labor Unon vs. State Marne Co - Even a cursory readng of the provson woud convey the dea ceary manfested n the mtaton "but not for the purpose of contnung the busness for whch t was estabshed," that the 3-year perod aowed by the aw s ony for the purpose of wndng up ts affars. Gonzaes vs. Sugar Reguatory Admnstraton - Instead of appyng the corporaton code, the court apped the consttutona provson - Cannot be read as permttng to destroy the substantve rghts - Such woud code wth the non-mparment of contracts cause of the consttuton - Companants w have the rght to foow the assets of the corporaton n the hands of SRA or any other agency for that matter After dssouton what next? - Lqudaton and wndng up shoud foow What s the defnton of qudaton and wndng up? - Coecton of a corporate assets, the payments of a ts debts and settement of ts obgatons and the utmate dstrbuton of the corporate assets, f any of t remans, to a stockhoders n accordance wth ther proportonate stockhodngs n the corporaton or n accordance wth ther respectve contracts of subscrpton. Preference upon qudaton - If there are preferred shares, the preference granted to such shoud be comped wth - Preferred shares may gve the hoder thereof, preference ony n the dvdends but aso n the dstrbuton of corporate assets upon qudaton or termnaton of the corporate exstence. If such s the ntent, the contract of subscrpton must so ndcate est they are paced on equa footng wth common sharehoders - Preference may be partcpatng or non- partcpatng Dssoved corporatons are granted a perod of 3 years to qudate Section 122. Corporate qudaton. - Every corporaton whose charter expres by ts own mtaton or s annued by forfeture or otherwse, or whose corporate exstence for other purposes s termnated n any other manner, sha nevertheess be contnued as a body corporate for three (3) years after the tme when t woud have been so dssoved, for the purpose of prosecutng and defendng suts by or aganst t and enabng t to sette and cose ts affars, to dspose of and convey ts property and to dstrbute ts assets, but not for the purpose of contnung the busness for whch t was estabshed. At any tme durng sad three (3) years, the corporaton s authorzed and empowered to convey a of ts property to trustees for the beneft of stockhoders, members, credtors, and other persons n nterest. From and after any such conveyance by the corporaton of ts property n trust for the beneft of ts stockhoders, members, credtors and others n nterest, a nterest whch the corporaton had n the property termnates, the ega nterest vests n the trustees, and the benefca nterest n the stockhoders, members, credtors or other persons n nterest. Upon the wndng up of the corporate affars, any asset dstrbutabe to any credtor or stockhoder or member who s unknown or cannot be found sha be escheated to the cty or muncpaty where such assets are ocated. Except by decrease of capta stock and as otherwse aowed by ths Code, no corporaton sha dstrbute any of ts assets or property except upon awfu dssouton and after payment of a ts debts and abtes. (77a, 89a, 16a) However the 3 year perod s not absoute Lqudaton may be undertaken n ether of the 3 ways 1. By the corporaton tsef through the BOD - Usua method or procedure of qudatng a corporaton and athough there s no aw authorzng t, nether s there anythng that prohbts the BOD from undertakng the same - If ths method s resorted to, the board w ony have a perod of 3 years to fnsh ts task of qudaton - Cams for or aganst the corporate entty not fed wthn the perod w become unenforceabe as there exst no corporate entty aganst whch they can be enforced - Actons pendng for or aganst the corporaton when the 3 year perod expres, are abated snce after the perod, the corporaton ceases for a ntents and purposes and s no onger capabe of sung or beng sued 2. By a trustee apponted by the corporaton - The corporaton may opt to convey a corporate assets to a trustees who w take charge of qudaton - If ths method s used, the three year perod mtaton mposed by secton 122 w not appy provded the desgnaton of the trustee s made wthn that perod 3. By appontment of a recever - A recever may be apponted by the proper forum on petton or motu propro upon the dssouton of the corporaton - The appontment of a recever s, however, permssve rather than mandatory and the aw tends to recognze that n cases of vountary dssouton there s no occason for the appontment of a recever except under speca crcumstances and upon proper showng - If a recever s apponted, the 3 year perod fxed by aw wthn whch to compete the task of qudaton w not kewse appy because the dssoved corporaton s substtuted by the recever who may sue or be sued even after that perod o Mere appontment of a recever wthout anythng more does mpy n the dssouton of a corporaton Natona Abaca other Fbers Co. vs. Pore - Actons pendng for or aganst the corporaton when the 3 year perod expres, are abated snce after that perod, the corporaton ceases for a ntents and purposes and s no onger capabe of sung or beng sued - May be contnued by the trustee provded done wthn the 3 year perod - Shoud the corporaton, therefore, fnds t dffcut to fnsh ts qudaton, t may, at any tme durng the three year perod, convey a ts assets and recevabes to a trustee to prosecute and defend suts by or aganst the corporaton begun before the expraton of sad perod - The effect of the conveyance s to make the trustees the ega owners of the property conveyed, sub|ect to the benefca nterest theren of credtors and stockhoders Sumera vs. Vaenca - Thus t was hed that when a corporaton s dssoved and the qudaton of the assets s paced n the hands of recever or assgnee, the perod of 3 years prescrbed by aw s not appcabe and the assgnee may nsttute a actons eadng to the qudaton of the corporaton even after the expraton of 3 years. - If the corporaton carres out the qudaton of ts assets through ts own offcers and contnues and defends the actons brought by or aganst t, ts exstence sha termnate at the end of three years from the tme of dssouton; but f a recever or assgnee s apponted, wth or wthout a transfer of ts propertes wthn 3 years, the ega nterest passes to the assgnee, the benefca nterest remanng n the members, stockhoders, credtors and other nterested persons and sad assgnee may brng an acton, prosecute that whch has aready been commenced for the beneft of the corporaton, or defend the atter aganst any other acton aready nsttuted or whch may be nsttuted even outsde of the perod of three years fxed for the offces of the corporaton. Board of Lqudators vs. Kaaw - If there s a trustee, assgnee or qudator, t can contnue prosecutng sut even beyond the 3 year perod fxed by aw because he becomes the ega owner of the rghts, assets and propertes conveyed to hm Geano vs. CA - "Trustee" as used n the corporaton statute must be understood n ts genera concept whch coud ncude the counse to whom was entrusted n the nstant case, the prosecuton of the sut fed by the corporaton. The purpose n the transfer of the assets of the corporaton to a trustee upon ts dssouton s more for the protecton of ts credtors and stockhoders. Debtors ke the pettoners heren may not take advantage of the faure of the corporaton to transfer ts assets to a trustee, assumng t has any to transfer whch pettoner has faed to show, n the frst pace. To sustan pettoners contenton woud be to aow them to enrch themseves at the expense of another, whch a enghtened ega systems condemn. - The counse who prosecuted and defended the nterest of the corporaton may be consdered as a "trustee" at east wth respect to the matter n tgaton ony May a corporaton that s aready dssoved, transfer and assgn ts assets and propertes to a new corporaton whch w contnue the busness of the dssoved one? - Yes, provded a the stockhoders gave ther consent (Chung Ka Bo vs. IAC) Repubc vs. Marsman Deveopment Company & Chung Ka Bo vs. IAC - Durng the three year perod granted to a corporaton to qudate or wnd up ts affars, the BOD s not normay permtted to undertake any actvty outsde the usua qudaton of the corporaton. There s, however, nothng to prevent the stockhoders from conveyng ther respectve sharehodngs toward the creaton of a new corporaton to contnue the busness of the od. Ths s because wndng up s the soe actvty of the dssoved corporaton that does not ntend to ncorporate a new. If t does, however, t s not unawfu for the od board of drectors to negotate and transfer the assets of the dssoved corporaton to the new corporaton ntended to be created as ong as the stockhoders have gven ther consent (Repubc vs. Marsman Deveopment Company) - Wndng up s the soe actvty of a dssoved corporaton that does not ntend to ncorporate anew. If t does, however, t s not unawfu for the od board of drectors to negotate and transfer the assets of the dssoved corporaton to the new corporaton ntended to be created as ong as the stockhoders have gven ther consent (Chung Ka Bo vs. IAC) What happens to the remanng assets and propertes of the dssoved corporaton f qudaton and wndng up as provded n secton 122 s not comped wth, as a resut of whch the 3 year perod has eapsed - If the three year extended fe has expred wthout a trustee or recever havng been expressy desgnated by the corporaton wthn that perod, the board of drectors o trustees tsef, foowng the ratonae of the Supreme Courts decson n Geano vs. CA may be permtted to do so contnue as" trustees" by ega mpcaton to compete the qudaton. St n the absence of a BOD or BOT, those havng any pecunary nterest n the assets, ncudng not ony the sharehoders but kewse the credtors of the corporaton, actng for and n ts behaf, mght make proper representatons wth the SEC, whch has prmary and suffcenty broad |ursdcton n matters of ths nature, for workng out a fna settement of the corporate concerns (Cemente vs. CA) o Accordng to atty. Lada the rung of the Supreme Court n the case of Cemente vs. CA s wrong, opnon s further dscussed after the Cemente Case Cemente vs. CA - Who owns the propertes? SOCIEDAD ANONIMA - The termnaton of the fe of a |urdca entty does not by tsef cause the extncton or dmnuton of the rghts and abtes of such entty or those of ts owners and credtors. If the three year extended fe has expred wthout a trustee or recever havng been expressy desgnated by the corporaton wthn that perod, the board of drectors o trustees tsef, foowng the ratonae of the Supreme Courts decson n Geano vs. CA may be permtted to do so contnue as" trustees" by ega mpcaton to compete the qudaton. St n the absence of a BOD or BOT, those havng any pecunary nterest n the assets, ncudng not ony the sharehoders but kewse the credtors of the corporaton, actng for and n ts behaf, mght make proper representatons wth the SEC, whch has prmary and suffcenty broad |ursdcton n matters of ths nature, for workng out a fna settement of the corporate concerns o t,e 73?in. i2 @7on. *cco7+in. to *tt>. L*+i* Accordng to atty Lada: What happens to a corporaton that s aready dssoved, that has not been abe to appont a trustee wth n the 3 year perod? - a corporaton dssoved whch faed to exercse ts rghts granted n secton 122 after the 3 year perod has eapsed, ceases to exst for a ntents and purposes, t can no onger sue or be sued - accordng to 122 of the code, the property shoud be escheated, accordngy: Section 122. Corporate qudaton. - Every corporaton whose charter expres by ts own mtaton or s annued by forfeture or otherwse, or whose corporate exstence for other purposes s termnated n any other manner, sha nevertheess be contnued as a body corporate for three (3) years after the tme when t woud have been so dssoved, for the purpose of prosecutng and defendng suts by or aganst t and enabng t to sette and cose ts affars, to dspose of and convey ts property and to dstrbute ts assets, but not for the purpose of contnung the busness for whch t was estabshed. At any tme durng sad three (3) years, the corporaton s authorzed and empowered to convey a of ts property to trustees for the beneft of stockhoders, members, credtors, and other persons n nterest. From and after any such conveyance by the corporaton of ts property n trust for the beneft of ts stockhoders, members, credtors and others n nterest, a nterest whch the corporaton had n the property termnates, the ega nterest vests n the trustees, and the benefca nterest n the stockhoders, members, credtors or other persons n nterest. Upon the wndng up of the corporate affars, *n> *22et +i2t7i43t*4?e to *n> c7e+ito7 o7 2tocB,o?+e7 o7 -e-4e7 @,o i2 3nBno@n o7 c*nnot 4e 9o3n+ 2,*?? 4e e2c,e*te+ to t,e cit> o7 -3nici6*?it> @,e7e 23c, *22et2 *7e ?oc*te+. Except by decrease of capta stock and as otherwse aowed by ths Code, no corporaton sha dstrbute any of ts assets or property except upon awfu dssouton and after payment of a ts debts and abtes. (77a, 89a, 16a) FOREIGN CORPORATIONS Defnton - Section 123. Defnton and rghts of foregn corporatons. - For the purposes of ths Code, a foregn corporaton s one formed, organzed or exstng under any aws other than those of the Phppnes and whose aws aow Fpno ctzens and corporatons to do busness n ts own country or state. It sha have the rght to transact busness n the Phppnes after t sha have obtaned a cense to transact busness n ths country n accordance wth ths Code and a certfcate of authorty from the approprate government agency. (n) What f the aw of the state of the foregn corporaton does not aow Fpno ctzens to do busness n ther country? - The phrase "and whose aws aow Fpno ctzens and corporatons to do busness n ts own country or state" s not, however, an accurate ncuson n the defnton as ay corporaton regstered or organzed under the aws of another state s necessary a foregn corporaton whether or not the state of ts ncorporaton aow Fpno ctzens or corporatons to do busness n that forum. - The sad phrase was nserted by the framers of the aw ony as a condton precedent to the grant of a cense of a foregn corporaton to do busness n the Phppnes. Composed of 100% Amercans; organzed under the aws other than the Phppnes - The test s the "ncorporaton test" - Genera rue: the pace of ts ncorporaton rrespectve of the natonaty - Excepton: contro test woud appy n determnng the corporate natonaty, .e., the ctzenshp of the controng stockhoders determnes the natonaty of the corporaton If a foregn corporaton wants to transact busness n the Phppnes, what must t do? - Obtan a cense How may t do so? - Accordng to sec. 125: Section 12#. Appcaton for a cense. - A foregn corporaton appyng for a cense to transact busness n the Phppnes sha submt to the Securtes and Exchange Commsson a copy of ts artces of ncorporaton and by-aws, certfed n accordance wth aw, and ther transaton to an offca anguage of the Phppnes, f necessary. The appcaton sha be under oath and, uness aready stated n ts artces of ncorporaton, sha specfcay set forth the foowng: 1. The date and term of ncorporaton; 2. The address, ncudng the street number, of the prncpa offce of the corporaton n the country or state of ncorporaton; 3. The name and address of ts resdent agent authorzed to accept summons and process n a ega proceedngs and, pendng the estabshment of a oca offce, a notces affectng the corporaton; 4. The pace n the Phppnes where the corporaton ntends to operate; 5. The specfc purpose or purposes whch the corporaton ntends to pursue n the transacton of ts busness n the Phppnes: Provded, That sad purpose or purposes are those specfcay stated n the certfcate of authorty ssued by the approprate government agency; 6. The names and addresses of the present drectors and offcers of the corporaton; 7. A statement of ts authorzed capta stock and the aggregate number of shares whch the corporaton has authorty to ssue, temzed by casses, par vaue of shares, shares wthout par vaue, and seres, f any; 8. A statement of ts outstandng capta stock and the aggregate number of shares whch the corporaton has ssued, temzed by casses, par vaue of shares, shares wthout par vaue, and seres, f any; 9. A statement of the amount actuay pad n; and 10. Such addtona nformaton as may be necessary or approprate n order to enabe the Securtes and Exchange Commsson to determne whether such corporaton s entted to a cense to transact busness n the Phppnes, and to determne and assess the fees payabe. Attached to the appcaton for cense sha be a duy executed certfcate under oath by the authorzed offca or offcas of the |ursdcton of ts ncorporaton, attestng to the fact that the aws of the country or state of the appcant aow Fpno ctzens and corporatons to do busness theren, and that the appcant s an exstng corporaton n good standng. If such certfcate s n a foregn anguage, a transaton thereof n Engsh under oath of the transator sha be attached thereto. The appcaton for a cense to transact busness n the Phppnes sha kewse be accompaned by a statement under oath of the presdent or any other person authorzed by the corporaton, showng to the satsfacton of the Securtes and Exchange Commsson and other governmenta agency n the proper cases that the appcant s sovent and n sound fnanca condton, and settng forth the assets and abtes of the corporaton as of the date not exceedng one (1) year mmedatey pror to the fng of the appcaton. Foregn bankng, fnanca and nsurance corporatons sha, n addton to the above requrements, compy wth the provsons of exstng aws appcabe to them. In the case of a other foregn corporatons, no appcaton for cense to transact busness n the Phppnes sha be accepted by the Securtes and Exchange Commsson wthout prevous authorty from the approprate government agency, whenever requred by aw. (68a) Is there any depost or securty requrement? - Yes, wthn 60 days after the ssuance of the cense, a foregn corporaton, except those engaged n foregn bankng or nsurance, sha depost wth the SEC, for the beneft of credtors, securtes consstng of bonds or other evdence of ndebtedness of the Phppne government or ts potca subdvson, or of government owned or controed corporaton, shares of stock n "regstered enterprses" as ths term s defned n R.A. 5186, shares of stock n domestc nsurance companes and banks or any combnaton thereof wth an actua market vaue of 100,000 - Addtona securtes may be requred by the SEC f the actua market vaue of the securtes on depost has decreased by at east 10%. Secton 126 of the code provdes: Section 12$. Issuance of a cense. - If the Securtes and Exchange Commsson s satsfed that the appcant has comped wth a the requrements of ths Code and other speca aws, rues and reguatons, the Commsson sha ssue a cense to the appcant to transact busness n the Phppnes for the purpose or purposes specfed n such cense. Upon ssuance of the cense, such foregn corporaton may commence to transact busness n the Phppnes and contnue to do so for as ong as t retans ts authorty to act as a corporaton under the aws of the country or state of ts ncorporaton, uness such cense s sooner surrendered, revoked, suspended or annued n accordance wth ths Code or other speca aws. Wthn sxty (60) days after the ssuance of the cense to transact busness n the Phppnes, the cense, except foregn bankng or nsurance corporaton, sha depost wth the Securtes and Exchange Commsson for the beneft of present and future credtors of the censee n the Phppnes, securtes satsfactory to the Securtes and Exchange Commsson, consstng of bonds or other evdence of ndebtedness of the Government of the Phppnes, ts potca subdvsons and nstrumentates, or of government- owned or controed corporatons and enttes, shares of stock n "regstered enterprses" as ths term s defned n Repubc Act No. 5186, shares of stock n domestc corporatons regstered n the stock exchange, or shares of stock n domestc nsurance companes and banks, or any combnaton of these knds of securtes, wth an actua market vaue of at east one hundred thousand (P100,000.) pesos; Provded, however, That wthn sx (6) months after each fsca year of the censee, the Securtes and Exchange Commsson sha requre the censee to depost addtona securtes equvaent n actua market vaue to two (2%) percent of the amount by whch the censee's gross ncome for that fsca year exceeds fve mon (P5,000,000.00) pesos. The Securtes and Exchange Commsson sha aso requre depost of addtona securtes f the actua market vaue of the securtes on depost has decreased by at east ten (10%) percent of ther actua market vaue at the tme they were deposted. The Securtes and Exchange Commsson may at ts dscreton reease part of the addtona securtes deposted wth t f the gross ncome of the censee has decreased, or f the actua market vaue of the tota securtes on depost has ncreased, by more than ten (10%) percent of the actua market vaue of the securtes at the tme they were deposted. The Securtes and Exchange Commsson may, from tme to tme, aow the censee to substtute other securtes for those aready on depost as ong as the censee s sovent. Such censee sha be entted to coect the nterest or dvdends on the securtes deposted. In the event the censee ceases to do busness n the Phppnes, the securtes deposted as aforesad sha be returned, upon the censee's appcaton therefor and upon proof to the satsfacton of the Securtes and Exchange Commsson that the censee has no abty to Phppne resdents, ncudng the Government of the Repubc of the Phppnes. (n) Other than secton 125 and 126. What other requrements are set under Phppne Law before a foregn corporaton may transact busness n the Phppnes - Yes. A Resdent agent s requred. As a condton precedent to the grant of a cense to do or transact busness n the Phppnes, the foregn corporaton s requred to desgnate ts resdent agent on whom summons and other ega processes may be served n a actons or ega proceedngs aganst such corporaton - Secton 128 provdes: Section 12". Resdent agent; servce of process. - The Securtes and Exchange Commsson sha requre as a condton precedent to the ssuance of the cense to transact busness n the Phppnes by any foregn corporaton that such corporaton fe wth the Securtes and Exchange Commsson a wrtten power of attorney desgnatng some person who must be a resdent of the Phppnes, on whom any summons and other ega processes may be served n a actons or other ega proceedngs aganst such corporaton, and consentng that servce upon such resdent agent sha be admtted and hed as vad as f served upon the duy authorzed offcers of the foregn corporaton at ts home offce. Any such foregn corporaton sha kewse execute and fe wth the Securtes and Exchange Commsson an agreement or stpuaton, executed by the proper authortes of sad corporaton, n form and substance as foows: "The (name of foregn corporaton) does hereby stpuate and agree, n consderaton of ts beng granted by the Securtes and Exchange Commsson a cense to transact busness n the Phppnes, that f at any tme sad corporaton sha cease to transact busness n the Phppnes, or sha be wthout any resdent agent n the Phppnes on whom any summons or other ega processes may be served, then n any acton or proceedng arsng out of any busness or transacton whch occurred n the Phppnes, servce of any summons or other ega process may be made upon the Securtes and Exchange Commsson and that such servce sha have the same force and effect as f made upon the duy-authorzed offcers of the corporaton at ts home offce." Whenever such servce of summons or other process sha be made upon the Securtes and Exchange Commsson, the Commsson sha, wthn ten (10) days thereafter, transmt by ma a copy of such summons or other ega process to the corporaton at ts home or prncpa offce. The sendng of such copy by the Commsson sha be necessary part of and sha compete such servce. A expenses ncurred by the Commsson for such servce sha be pad n advance by the party at whose nstance the servce s made. In case of a change of address of the resdent agent, t sha be hs or ts duty to mmedatey notfy n wrtng the Securtes and Exchange Commsson of the new address. (72a; and n) - The necessty of the appontment of a resdent agent s ony for the purpose of recevng summons and other ega processes n any ega acton or proceedng aganst the foregn corporaton Who may be apponted as a resdent agent? - Secton 127 provdes that: Section 12%. Who may be a resdent agent. - A resdent agent may be ether an ndvdua resdng n the Phppnes or a domestc corporaton awfuy transactng busness n the Phppnes: Provded, That n the case of an ndvdua, he must be of good mora character and of sound fnanca standng. (n) May a partnershp be apponted as a resdent agent? - Yes, domestc corporaton taken n ts genera sense not ega sense If there s a resdent agent apponted. May summons be served to any offcers of the corporaton? - No, f there s a resdent agent, the desgnaton s excusve and servce must be made ony to the resdent agent or ese the servce s wthout force and effect uness made to hm - Thus, whe the aw aows servce upon the SEC or any of ts offcers or agents wthn the Phppnes - The two modes may become effectve ony f the foregn corporaton faed or negected to desgnate such a person or an agent - Summons must be made ony to resdent agent except when there s no resdent agent apponted - Where such foregn corporaton actuay dong busness here has not apped for a cense to do and has not desgnated an agent to receve summons, then servce of summons on t w be made pursuant to the provsons of the rues of court. If such foregn corporaton has a cense to do busness, then summons to t w be served on the agent desgnated by t for the purpose, or otherwse n accordance wth the Corporaton Law (Genera Corporaton of the Phppnes vs. Unon Insurance Soc. Of Canton Ltd.) If the foregn corporaton conducts busness n the Phppnes wthout the cense requrement. What s the effect? - Secton 133 provdes: Section 133. Dong busness wthout a cense. - No foregn corporaton transactng busness n the Phppnes wthout a cense, or ts successors or assgns, sha be permtted to mantan or ntervene n any acton, sut or proceedng n any court or admnstratve agency of the Phppnes; but such corporaton may be sued or proceeded aganst before Phppne courts or admnstratve trbunas on any vad cause of acton recognzed under Phppne aws. (69a) - f they do so, the responsbe offcers may be sub|ected to the pena sanctons provded for n secton 144 of the code, whch may ether be fne or mprsonment What f t s not dong busness wthout a cense? - If t s not transactng busness n the Phppnes, even wthout a cense, t can sue before the Phppne Courts The genera rue s that "t s not the ack of requred cense but dong busness wthout a cense whch bars a foregn corporaton form access to our courts." Excepton: 1. Foregn corporatons can sue before the Phppne Courts f the act or transacton nvoved s an "soated transacton" or the corporaton s not seekng to enforce any ega or contractua rghts arsng from, or growng out of, any busness whch t has transacted n the Phppnes 2. Nether s a cense requred before a foregn corporaton may sue before the forum f the purpose of the sut s to protect ts trademark, trade name, corporate name, reputaton or goodw; 3. Or where t s based on a voaton of the Revsed Pena Code; 4. Or merey defendng a sut fed aganst t 5. Or where a party s stopped to chaenge the personaty of the corporaton by enterng nto a contract wth t. Rues ad down by the SC A. As to whether or not t can sue B. As to whether or not t can be sued A foregn corporaton transactng or dong busness n the Phppnes wth a cense can sue before Phppne Courts A foregn corporaton transactng busness n the Phppnes wth the requste cense can be sued n the Phppne Courts Sub|ect to certan exceptons, a foregn corporaton dong busness n the country wthout a cense cannot sue n Phppne Courts A foregn corporaton transactng busness n the Phppnes wthout a cense can be sued n Phppne Courts If t s not transactng busness n the Phppnes, even wthout a cense, t can sue before the Phppne Courts f t s not dong busness n the Phppnes, t cannot be sued n Phppne Courts for ack of |ursdcton
A foregn corporaton not dong busness n the
Phppnes, may t be sued? - If t s not transactng busness n the country t cannot be sued for ack of |ursdcton Is there any sancton that can be enforced to foregn corporatons whch are dong busness wthout the requred cense? - Pena sanctons under secton 144 - Any voaton of the code s sub|ect to such pena sanctons What woud consttute dong busness? - The true test, however, seems to be whether the foregn corporaton s contnung the body or substance of the busness or enterprse for whch t was organzed or whether t has substantay retred from t and turned t over to another. The term mpes a contnuty of commerca deangs and arrangements, and contempates, to that extent, the performance of acts or works or the exercse of some of the functons normay ncdent to, and n progressve prosecuton of, the purpose and ob|ect of ts organzaton (Menthoatum Co. Inc. vs. Mangaman) Menthoatum vs. Mangaman - The true test, however, seems to be whether the foregn corporaton s contnung the body or substance of the busness or enterprse for whch t was organzed or whether t has substantay retred from t and turned t over to another. The term mpes a contnuty of commerca deangs and arrangements, and contempates, to that extent, the performance of acts or works or the exercse of some of the functons normay ncdent to, and n progressve prosecuton of, the purpose and ob|ect of ts organzaton - Whatever transacton the Phppne-Amercan Drug Co. had executed n vew of the aw, the Menthoatum Co. dd t tsef. And the Menthoatum Co. beng a foregn corporaton dong busness n the Phppnes wthout the cense requred by secton 68 of the Corporaton Law, t may not prosecute ths acton for voaton of trade mark and unfar competton Why s foregn corporatons barred access from our courts f they do busness wthout a cense? - Marsha-Wes Co. vs. Henry W. Eser and Co. Marsha-Wes Co. vs. Henry W. Eser and Co. - The ob|ect of the statute was to sub|ect the foregn corporaton dong busness n the Phppnes to the |ursdcton of ts courts. The ob|ect of the statute was not to prevent the foregn corporaton from performng snge acts, but to prevent t from acqurng a domce for the purpose of busness wthout takng the steps necessary to render t amenabe to sut n oca courts. Buakhdas vs. Navarro - It s setted that f a foregn corporaton s not engaged n busness n the Phppnes, t may not be dened the rght to fe an acton n Phppne courts for soated transactons - The ob|ect of secton 68 and 69 of the Corporaton aw was not to prevent the foregn corporaton from performng snge acts, but to prevent t from acqurng a domce for the purpose of busness wthout takng the steps necessary to render t amenabe to sut n the oca courts. It was never the purpose of the Legsature to excude a foregn corporaton whch happens to obtan an soated order for busness from the Phppnes, from securng redress n the Phppne courts The Swedsh East Asa Co., Ltd. Vs. Mana Port Servce - It must stated that the secton s not appcabe to a foregn corporaton performng snge acts or "soated transactons." There s nothng to show that the pettoner has been n the Phppnes engaged n contnung busness or enterprse for whch t was organzed, when the sxteen bundes were erroneousy dscharged n mana, for t to be consdered as transactng busness n the Phppnes. The fact s that the bundes, the vaue of whch s sought to be recovered, were anded not as a resut of a busness transacton, soated or otherwse, but due to a mstaken beef that they were part of the shpment of forty smar bundes consgned to persons or enttes n the Phppnes, there s no |ustfcaton therefore, for nvokng the secton There were 3 contracts entered nto, how come they were st not consdered as dong busness? (Antam Consodted, Inc. vs. CA) - Every case sha be |udged n the ght of ts pecuar crcumstances, where a snge act or transacton however, s not merey ncdenta or casua but ndcates the foregn corporatons ntenton to do other busness n the Phppnes, sad snge act or transacton consttutes "dong" or "engagng n" or "transactng" busness n the Phppnes - In the case at bar, the transacton entered nto by the respondent wth the pettoners are not a seres of commerca deangs whch sgnfy an ntent on the part of the respondent to do busness n the Phppnes but consttute an soated one whch does not fa under the category of "dong busness." - The records show that the ony reason why the respondent entered nto the second and thrd transactons wth the pettoner was because t wanted to recover the oss t sustaned from the faure of the pettoners to dever the crude coconut o under the frst transacton and n order to gve the atter a chance to make good on ther obgaton. From these facts aone, t can be deducted that n reaty there was ony one agreement between the pettoners and the respondent. - The three seemngy dfferent transactons were entered nto by the partes ony n an effort to fuf the basc agreement and n no way ndcate an ntent on the part of the respondent to engage n a contnuty of transactons wth pettoners whch w categorze t as a foregn corporaton dong busness n the Phppnes - 3 contracts, but accordng to the court was not dong busness n the Phppnes Far East Int mport vs. Nanka Kogyo Co. Ltd. - Ony one contract , but accordng to the Supreme Court was dong busness n the Phppnes - Every case sha be |udged n the ght of ts pecuar crcumstances, where a snge act or transacton however, s not merey ncdenta or casua but ndcates the foregn corporatons ntenton to do other busness n the Phppnes, sad snge act or transacton consttutes "dong" or "engagng n" or "transactng" busness n the Phppnes - In the nstant case, the testmony of Atty. Pabo Ocampo, that appeant was dong busness n the Phppnes corroborated by no ess than Nabuo Toshda, one of appeants offcers, that he was sent to the Phppnes to ook nto the operaton of mnes, thereby reveang the defendants desre to contnue engagng n busness here, after recevng the shpment of the scrap ron under consderaton, makng the Phppnes a base thereof. - In such a case, the snge act of transacton s not merey ncdenta or casua, but s of such character as dstncty to ndcate a purpose on the part of the operatons for the conduct of a part of corporatons ordnary busness If a corporaton apponts a dstrbutor or a representatve, w t necessary mpy dong busness n the country? - If the foregn corporaton mantaned an ndependent status durng the exstence of the dsputed contract. - Appontment of a dstrbutor or representatve n the Phppnes, uness t has an ndependent status (transacts and does busness n ts own name and for ts account and not of the foregn corporaton) - f that be the case the mere appontment of a dstrbutor w not consttute dong busness How do you know f t has an ndependent status? - Communcatons Materas and Desgn vs. CA Communcatons Materas and Desgn vs. CA - A perusa of the agreements between pettoner ASPAC and the respondents show that there are provsons whch are hghy restrctve n nature, such as to reduce pettoner ASPAC to a mere extenson or nstrument of the prvate respondents - ITEC was dong busness wthout a cense, however ASPAC s estopped - by enterng nto the Representatve Agreement" wth ITEC, pettoner s charge wth knowedge that ITEC was not censed to engage n busness actvtes n the country, and s thus stopped from rasng n defense such ncapacty of ITEC, havng chosen to gnore or even presumptvey take advantage of the same - In top-wed we rued that a foregn corporaton may be exempted from the cense requrements n order to nsttute an acton n our courts f ts representatve n the country mantaned an ndependent status durng the exstence of the dsputed contract. Pettoner s deemed to have acceded to such ndependent character when t entered nto the Representatve Agreement wth ITEC Western Equpment and Suppy Co. vs. Reyes - The company s not here seekng to enforce any ega or contract rghts arsng from, or growng out of any busness whch t has transacted n the Phppne Isands. The soe purpose of the acton s to protect ts reputaton, ts corporate name, ts goodw, whenever that reputaton, corporate name or goodw have through the natura deveopment of ts trade, estabshed themseves - And t contends that ts rghts to the use of ts corporate and trade name, s a property rght, a rght n rem, whch may assert and protect aganst a the word, n any of the courts of the word even n |ursdctons where t does not transact busness |ust the same as t may protect ts tangbe property, rea or persona, aganst trespass, or converson - Snce t s the trade and not the mark that s to be protected a trademark acknowedges no terrtora boundares or muncpates or states or natons, but extends to every market where the traders goods have become known and dentfed by the use of the mark Genera Garments Corporaton vs. Drector of Patents - A foregn corporaton whch has never done busness n the Phppne Isands and whch s uncensed and unregstered to do busness here, but s wdey and favoraby known n the Isands through the use theren of ts products bearng ts corporate and trade name has a ega rght to mantan an acton n the Isands - Menthoatum case was subsequenty derogated when Congress, purposey to "counteract the effects" of sad case, enacted R.A. 638, nsertng Secton 21-A n the Trademark Law, whch aows a foregn corporaton or |urstc person to brng an acton n Phppne Courts for nfrngement of a mark or trade-name, for unfar competton, or fase desgnaton of orgn and fase descrpton, "whether or not t has been censed to do busness n the Phppnes under Act Numbered Fourteen hundred and ffty-nne, as amended, otherwse known as Corporaton Law, at the tme t brngs compant. Puma Sporschufabrken Rudof Dasser, K.G. vs. IAC and MIL-ORO MFG. Corp. - Treates for part of the aw of the and - Ouotng the Pars Conventon and the case of Vanty Far Ms Inc. vs. T. Eaton Co. ths court further sad: "By the same token, the pettoner shoud be gven the same treatment n the Phppnes as we make avaabe to our own ctzens. We are obged to assure to natonas of countres of the Unon an effectve protecton aganst unfar competton on the same way that they are obgated to smary protect Fpno Ctzen and frms - The rung n the aforected case s n consonance wth the Conventon of the Unon of Pars for the protecton of Industra Property to whch the Phppnes became a party. Artce 8 thereof provdes that a trade name sha be protected n a the countres of the Unon wthout the obgaton of fng or regstraton, whether or not t forms part of the trademark Le Chemste Lacoste vs. Fernandez - The French company may gan access to our courts, n the frst pace t was not dong busness n the Phppnes - The marketng of ts products n the Phppnes s done through an excusve dstrbutor, Rustan Commerca Corporaton. The atter s an ndependent entty whch buys and then markets not ony products of the pettoner but aso many other products bearng equay we-known and estabshed trademarks and trade-names Assumng Rustans had no ndependent status woud the SC grant Lacoste access to our courts? - Even f Lacoste dd busness n the Phppnes t can brng acton because the case nvoves a voaton of our pena code - Such was a voaton of artce 189 of the RPC, f prosecuton foows after the competon of the premnary nvestgaton beng conducted by the Speca Prosecutor the nformaton sha be n the name of the Peope of the Phppnes and no onger the pettoner whch s ony an aggreved party snce a crmna offense s essentay an act aganst the State. It s the atter whch s prncpay the n|ured party athough there s a prvate rght voated - The records show that the goodw and reputaton of the pettoners products bearng the trademark Lacoste date back even before 1964 when Lacoste cothng appares were forst marketed n the Phppnes. To aow Hemandas to contnue usng the trademark Lacoste for the smpe reason that he was the frst regstrant n the Suppementa Regster of a trademark used n nternatona commerce and not beongng to hm s to render nugatory the very essence of the aw on trademarks and trade names Atantc Mutua Insurance Co. vs. Cebu Stevedorng Co. - The aw denes to a foregn corporaton the rght to mantan sut uness t has prevousy comped wth a certan requrement, then such compance, or the fact that the sung corporaton s exempt there from, becomes a necessary averment n the compant - These are matters pecuary wthn the knowedge of appeants aone, and t woud be unfar to mpose upon appeee the burden of assertng and provng the contrary. It s enough that foregn corporatons are aowed by aw to seek redress n our courts under certan condtons: the nterpretaton of the aw shoud not go so far as to ncude, n effect, an nference than those condtons have been met from the mere fact that the party sung s a foregn corporaton Oympa Busness Machnes Co. vs. E. Razon - How do you dstngush ths case wth Atantc? - In Atantc t dsmssed the case, whe n Oympa t dd not Tme Inc. vs. Reyes - We fa to see how these doctrnes can be a propos n the case at bar, snce the pettoner s not "mantanng any sut" but s merey defendng one aganst tsef; t dd not fe any compant but ony a coroary defensve petton to prohbt the ower court from further proceedng wth a sut that t had no |ursdcton to entertan What aw govern foregn corporaton dong and transactng busness n the Phppnes wth a cense - Laws of the Repubc of the Phppnes save and except that woud normay be those matters whch concern ts formaton, organzaton or dssouton, or those fxng the reatonshp, abtes, responsbtes, or dutes of the stockhoders, members or offcers of the foregn corporaton or ther reatons to each other. - In effect, ntra-corporate or nterna matters not affectng credtors or the pubc n genera are governed not by Phppne aws but the aw under whch the foregn corporaton was formed or organzed Section 12!. Law appcabe. - Any foregn corporaton awfuy dong busness n the Phppnes sha be bound by a aws, rues and reguatons appcabe to domestc corporatons of the same cass, except such ony as provde for the creaton, formaton, organzaton or dssouton of corporatons or those whch fx the reatons, abtes, responsbtes, or dutes of stockhoders, members, or offcers of corporatons to each other or to the corporaton. (73a) W the pre-emptve rghts of a foregn corporaton be governed by the same secton of the code? Is the pre-emptve rghts of a stockhoder n a domestc corporaton same as the pre-emptve of a stockhoder of a foregn corporaton. - No M.E. Grey vs. Insuar Lumber Company - PNB vs. Gonzaes, w ths appy to a foregn corporaton? How do you dstngush ths case from a Phppne aw? - Snce t concerns the rghts of stockhoders t s the aw of New York that shoud govern Is the cense to do busness of a foregn corporaton sub|ect to suspenson or revocaton? What are the grounds? - Secton 134 provdes: Section 134. Revocaton of cense. - Wthout pre|udce to other grounds provded by speca aws, the cense of a foregn corporaton to transact busness n the Phppnes may be revoked or suspended by the Securtes and Exchange Commsson upon any of the foowng grounds: 1. Faure to fe ts annua report or pay any fees as requred by ths Code; 2. Faure to appont and mantan a resdent agent n the Phppnes as requred by ths Tte; 3. Faure, after change of ts resdent agent or of hs address, to submt to the Securtes and Exchange Commsson a statement of such change as requred by ths Tte; 4. Faure to submt to the Securtes and Exchange Commsson an authentcated copy of any amendment to ts artces of ncorporaton or by-aws or of any artces of merger or consodaton wthn the tme prescrbed by ths Tte; 5. A msrepresentaton of any matera matter n any appcaton, report, affdavt or other document submtted by such corporaton pursuant to ths Tte; 6. Faure to pay any and a taxes, mposts, assessments or penates, f any, awfuy due to the Phppne Government or any of ts agences or potca subdvsons; 7. Transactng busness n the Phppnes outsde of the purpose or purposes for whch such corporaton s authorzed under ts cense; 8. Transactng busness n the Phppnes as agent of or actng for and n behaf of any foregn corporaton or entty not duy censed to do busness n the Phppnes; or 9. Any other ground as woud render t unft to transact busness n the Phppnes. (n) SEC does not have the soe authorty to suspend or revoke the cense of a foregn corporaton dong busness n the Phppnes, other government agences ke the Centra Bank , the Insurance Commsson may aso do so wthn ther respectve domnon, despte the provson of secton 134 If the SEC beeves that revocaton s warranted, secton 135 provdes that: Section 13#. Issuance of certfcate of revocaton. - Upon the revocaton of any such cense to transact busness n the Phppnes, the Securtes and Exchange Commsson sha ssue a correspondng certfcate of revocaton, furnshng a copy thereof to the approprate government agency n the proper cases. The Securtes and Exchange Commsson sha aso ma to the corporaton at ts regstered offce n the Phppnes a notce of such revocaton accompaned by a copy of the certfcate of revocaton. (n) Vountary wthdrawa of cense - A 3 condtons must be comped wth Section 13$. Wthdrawa of foregn corporatons. - Sub|ect to exstng aws and reguatons, a foregn corporaton censed to transact busness n the Phppnes may be aowed to wthdraw from the Phppnes by fng a petton for wthdrawa of cense. No certfcate of wthdrawa sha be ssued by the Securtes and Exchange Commsson uness a the foowng requrements are met; 1. A cams whch have accrued n the Phppnes have been pad, compromsed or setted; 2. A taxes, mposts, assessments, and penates, f any, awfuy due to the Phppne Government or any of ts agences or potca subdvsons have been pad; and 3. The petton for wthdrawa of cense has been pubshed once a week for three (3) consecutve weeks n a newspaper of genera crcuaton n the Phppnes. P.D. !&20A P.D. 902-A was amended by R.A. 8799 or the SECURITIES REGULATION CODE n the year 2000 The |ursdcton of SEC for cases fang under secton 5 thereof was transferred to the courts of genera |ursdcton desgnated by the SC, they were caed speca commerca courts, the ony exceptons were revocaton of corporate franchse and cang of eectons However the SEC retaned recevershp or suspenson payments wthn |une 20,2000 |ursdcton of speca commerca courts are excusve and orgna, |ursdcton s conferred by aw; 1 Speca Commerca Court per regon except MAKATI and OUEZON CITY whch has two Devces or Schemes - Pyramd scheme (msrepresentaton)-Speca Commerca Courts - Syndcated estafa- not baabe Ae|e case - Fas squarey under sec. 5 (a) Speca Commerca Courts - Aegaton corporate offcers empoyng schemes n dvertng - Not ony detrmenta to corporaton, but genera membershp - Fraud must be stated wth partcuarty Abad vs. CFI of Pangasnan - Fraud must be stated wth partcuarty otherwse t may be fed to any court Intra-corporate - Excusve and orgna |ursdcton of speca commerca courts - Soe crtera s there must be an ntra-corporate reatonshp - Pertanng to a controversy (speaks aso of ntra-partnershp controversy, that partnershp must be regstered wth the SEC) Rue now 1. Necessary be an ntra-corporate reatonshp; and, 2. The controversy must arse out of sad reatonshp Intra-corporate reatonshp aone w not suffce to put t n the ambt of speca commerca courts and courts of genera |ursdcton may take cognzance Case of a transferee of shares of stock to compe the corporaton to recognze hm as a stockhoder How can t be ntra-corporate when he s not yet fuy pad - When the transferee has done a he can be requred to do to render the transfer effectua and the corporaton refuses to regster the transfer, the requrement of the regstraton s waved and the transferee s consdered techncay a stockhoder who may sue to enforce the rght to have the transfer regstered Forendo vs. rvera, Embassy Farms - The transferor wthhed the devery, they are not yet prma face; t w not be consdered ntra- corporate Controverses n the appontment (asked n the bar) - Cases nvovng eecton, appontment and remova In Andaya the court sad that a corporate offcer eected or apponted by the BOD s aways a corporate act - The fact that pettoner sought payment of hs back wages, other benefts as we as mora and exempary damages and attorneys fees n hs compant w not operate to prevent the SEC from exercsng ts |ursdcton under P.D. 902-A. The |ursdcton w not wrest on the NLRC |ust because of that Tabang vs. NLRC - |ursdcton es orgnay and excusvey to speca commerca courts and not n the NLRC - SEC has |ursdcton over cases of remova from empoyment of corporate offcers - The reatonshp of a person to a corporaton, whether as offcer or as agent or empoyee or not determned by the nature of the servdes performed, but by the ncdents of the reatonshp on they actuay exst - Corporate offcers dsmssa s aways a corporate act or ntra-corporate controversy Mdand constructon vs. Mova - NLRC w be possessed of |ursdcton excepton w not appy to mere recovery Man consderaton - Asserts hs rght to the offce or questons the proprety or vadty of hs ouster or remova, t w be the speca commerca courts and not the NLRC Securtes Reguaton Code - Transferred |ursdcton of the SEC to Speca Commerca Courts - Suspenson of payment, appontment of management recevershp What s the reason for suspenson of a cams? - The reason for suspendng actons for cams aganst the corporaton s not reay to enabe the management commttee or the rehabtaton recever to substtute the defendant n any pendng acton aganst t before any court, trbuna or body. The rea |ustfcaton s to enabe the management commttee or rehabtaton recever to effectvey exercse hs powers free from any |udca or extra-|udca nterference that mght unduy hnder or prevent the "rescue" of the debtor company. To aow such other actons to contnue woud ony add to the burden of the management commttee pr rehabtaton recever, whose tme, effort and resources woud be wasted n defendng cams aganst the corporaton nstead of beng drected towards restructurng and rehabtaton.(PAL vs. Spouses Sadc and Kurangkng) - To enabe the recever to effectvey exercse hs or her power free form any |udca or extra-|udca that may dsturb 3 types of suspenson of payments 1. Smpe suspenson of payments - where deferment of payment of cams aganst a dstress company; ask the court to be gven tme to the payment of abty by postponng the payment - When t has suffcent assets and abtes but forces the mpossbty of meetng them when they respectvey fa due 2. Suspenson of recever wth a management commttee wth a rehabtaton pay or suspenson of payments accompaned by a proposa for rehabtaton (wth or wthout rehabtaton) - corporaton has suffcent assets to cover ts abtes, but sees the possbty; s or wthout rehabtaton pans; normay woud attach the rehabtaton pan - For purpose of economc deveopment 3. Suspenson of payments when the corporaton has no suffcent assets to ts abtes May t st be revved? - Yes, t may st be revved How can a corporaton wth more abtes than assets contnue ts operatons proftaby? - Even f the dstressed company has no suffcent assets and abtes t can go for suspenson - It asked for a management commttee wthout a recever pan (Vctorus Mng case) Convert ther cams nto equty - Ther abty was amost wped out they became stockhoders nstead of credtors - After 5 years those who converted sod t back to the corporaton, thereby makng profts Amendment s for the economc deveopment of the country What f waang amendment, e mas maramng abtes kesa assets Suspenson order- a actons for cams aganst the corporaton are accordngy suspended at whatever stage the proceedngs maybe Effect of suspenson- you cannot forecose What are cams? - Debts or demands of pecunary nature. Asserton of a rght to have money pad - Cams aganst the corporaton sha be suspended, asserton of a rght to have money pad; t must present a monetary cam, qudated or unqudated Nufcaton of corporatons does not present a monetary cam of pecunary nature Unon vs. CA - It does not aow a mere ndvdua to fe the petton whch s mted to corporatons partnershp or assocatons. - Where no authorty s granted to hear pettons of ndvduas for suspenson of payments, such petton are beyond the competence of the SEC What happens f there s a suspenson order? Expan the key phrase "quaty s equty" - A credtors stand on equa footng, secure or unsecure, hodng or en or wthout a en, no credtor may enforce hs en whe rehabtaton s gong (Aemar case) - No preference sha be gven RCBC vs. IAC - Decded on moton for reconsderaton - It court 7 years to decde authentcaton Rue of the thumb - Automatc suspenson even f not decreed n the decson tsef - Once fted the preferred credtors w regan ther preference Appontment of a management commttee - Take over the management commttee of the dstressed corporaton - Extraordnary and drastc remedy - Wthout any remedy What s an ntra-corporate controversy? - Secton 5(B) - Soe crtera s whether there exsts an ntra- corporate dspute s that f there s an ntra-corporate reatonshp Why s there suspenson of a actons aganst cams when a recever s apponted? - To enabe the management commttee to exercse ts powers Sy Chm vs. Sy Sy Ho (before a management commttee may be opt by a court) - 2 requstes for a vad appontment of management commttee 1. Immnent danger of dsspaton, oss, wastage or destructon of assets or other corporate propertes 2. Parayss of busness operatons, the mere apprehenson of future msconduct based upon pror management - Save and except n the case of a cose corporaton n case of deadock management commttee s aowed to take over rght away |acnto case - 2 nd par of page 676 - 2 requstes where present - Waa ng mapautang, there was a parayzaton Sy Chm - Dd not appont a management commttee - In the absence of a strong showng of an mmnent danger of dsspaton, oss wastage or destructon of assets or other propertes of a corporaton and parayss of ts busness operatons, the mere apprehenson of future msconduct based upon pror msmanagement w not authorze the appontment of a management commttee Secton 5 and 6(D) governed by separate rues; nterm rues and ntra-corporate controversy Venue of actons - Rues of court- where the partes are resdng - Intra-corporate- no matter where the partes are resdng t w be n the cty or muncpaty where the prncpa offce s ocated Rehabtaton proceedngs venue - In rem - Acqured upon pubcaton wthout furnshng the credtors a copy of the petton and attachments thereof - A credtor may now fe the suspenson proceedngs; provdes that credtors owns at east 25% Intra-corporate- rue 1 secton 6 Servce of summons- rue 2 secton 5 - Summons may be made to anyone In case of ntra-corporate dspute, eectons, fraud, etc; f they are governed by nterm rues of procedure on ntra-corporate controverses Venue - Speca commerca courts where prncpa offce s ocated/estabshed (secton 5 rue 1) - Matters of payment/suspenson must be fed n the cty/ muncpaty where corporaton s ocated Under od rue, credtors have no rght to nsttute an acton for recevershp; now credtors, f they sod 20% they can nsttute an acton for recevershp Secton 5 - Servce of summons may be made by fax/e- ma E.B. Varosa vs. Bento - W appy ony f t s not an ntra-corporate controversy If the controversy arose out of an ntra- corporate dspute rues on nterm rues of procedure of ntra-corporate controverses sha govern Rue 4 secton 17- mmunty from sut Rehabtaton recever sha not sub|ect to any acton, cam or demand n connecton wth any act done omtted by hm n good fath n the exercse of hs functons and powers heren conferred Cam - Rght to payment, whether or not t s reduced to |udgment, qudated or unqudated, fxed or contngent, matured or unmatured, dsputed or undsputed, ega or equtabe and secured or unsecured Investment contracts - A contract, transacton or scheme whereby a person nvests hs money n a common enterprse and s ed to expect profts prmary from the effects of others The management commttee and rehabtaton recever are empowered to: 1. Take custody and contro of a assets of the corporaton 2. Evauate assets and abtes, earnngs operatons of the corporaton 3. Determne the best way to protect the nvestors and credtors 4. Study, revew evauate the feasbty of contnung operaton and structures 5. Submt recommendatons to the RTC regardng rehabtaton pan 6. Rehabtate the corporaton f determned to be feasbe by the RTC 7. Report to the RTC unt the corporaton s dssoved T(E SECURITIES REGULATION CODE <RA"%!!= - Aso known as the B?3e SB> L*@ snce t was enacted to protect the pubc from unscrupuous promoters who stake busness whch have no bass and se shares and nterest theren to nvestors, who are then eft hodng certfcates representng nothng more than a cam to a square of the bue sky. -SEC. 2. Decaraton of State Pocy. - The State sha estabsh a socay conscous, free market that reguates tsef, encourage the wdest partcpaton of ownershp n enterprses, enhance the democratzaton of weath, promote the deveopment of the capta market, protect nvestors, ensure fu and far dscosure about securtes, mnmze f not totay emnate nsder tradng and other frauduent or manpuatve devces and practces whch create dstortons n the free market. BROKER - person who buys and ses securtes for the account of others. DEALER - person who buys and ses securtes for hs/her own account n the ordnary course of busness. NOTEA No person sha engage n the busness of buyng or seng securtes n the Phppnes as a broker or deaer, or act as a saesman, or an assocated person of any broker or deaer uness regstered as such wth the Commsson. (Sec 28) SECURITES - shares, partcpaton or nterests n a corporaton or n a commerca enterprse or proft- makng venture and evdenced by a certfcate, contract, nstrument, whether wrtten or eectronc n character. It ncudes: CODE: COFDIPS a) C ertfcates of assgnments, certfcates of partcpaton, trust certfcates, votng trust certfcates or smar nstruments; b) O ther nstruments as may n the future be determned by the Commsson; c) F ractona undvded nterests n o, gas or other mnera rghts; d) D ervatves ke opton and warrants; e) Investment contracts, certfcates of nterest or partcpaton n a proft sharng agreement, certfcates of depost for a future subscrpton; f) P ropretary or non propretary membershp certfcates ncorporatons; and g) S hares of stock, bonds, debentures, notes, evdences of ndebtedness, asset-backed securtes; GRA Securtes sha not be sod or offered for sae or dstrbuton wthn the PH, wthout a regstraton statement fed wth and approved by SEC. Pror to such sae, nformaton on the securtes, n such form and wth such substance as the Commsson may prescrbe, sha be made avaabe to each prospectve purchaser. (Sec 8) EHCEPT: Exempt Securtes under Sec 9 a) Any securty ssued or guaranteed by the Government of the PH, or by any potca subdvson or agency thereof, or by any person controed or supervsed by, and actng as an nstrumentaty of sad Government. b) Any securty ssued or guaranteed by the government of any country wth dpomatc reatons wth the PH, or by any state, provnce or potca subdvson thereof on the bass of recprocty: Provded, that the SEC may requre compance wth the form and content of dscosures the Commsson may prescrbe. c) Certfcates ssued by a recever or by a trustee n bankruptcy duy approved by the proper ad|udcatory body. d) Any securty or ts dervatves the sae or transfer of whch, by aw, s under the supervson and reguaton of the Offce of the Insurance Commsson, Housng and Land Use Reguatory Board, or the Bureau of Interna Revenue. e) Any securty ssued by a bank except ts own shares of stock. AND Exempt Transactons under Sec 10 a) A |udca sae, or sae by an executor, admnstrator, guardan or recever or trustee n nsovency or bankruptcy. b) By or for the account of a pedge hoder, or mortgagee or any other smar en hoder seng or offerng for sae or devery n the ordnary course of busness and not for the purpose of avodng the provsons of ths Code, to qudate a bona fde debt, a securty pedged n good fath as securty for such debt. c) An soated transacton n whch any securty s sod, offered for sae, subscrpton or devery by the owner thereof, or by hs representatve for the owners account, such sae or offer for sae, subscrpton or devery not beng made n the course of repeated and successve transactons of a ke character by such owner, or on hs account by such representatve and such owner or representatve not beng the underwrter of such securty. d) Dstrbuton by a corporaton, actvey engaged n the busness authorzed by ts AOI, of securtes to ts stockhoders or other securty hoders as a stock dvdend or other dstrbuton out of surpus. e) Sae of capta stock of a corporaton to ts own stockhoders excusvey, where no commsson or other remuneraton s pad or gven drecty or ndrecty n connecton wth the sae of such capta stock. f) Issuance of bonds or notes secured by mortgage upon rea estate or tangbe persona property, where the entre mortgage together wth a the bonds or notes secured thereby are sod to a snge purchaser at a snge sae. g) Issue and devery of any securty n exchange for any other securty of the same ssuer pursuant to a rght of converson enttng the hoder of the securty surrendered n exchange to make such converson: Provded, That the securty so surrendered has been regstered under ths Code or was, when sod, exempt from the provsons of ths Code, and that the securty ssued and devered n exchange, f sod at the converson prce, woud at the tme of such converson fa wthn the cass of securtes entted to regstraton under ths Code. Upon such converson the par vaue of the securty surrendered n such exchange sha be deemed the prce at whch the securtes ssued and devered n such exchange are sod. h) Brokers transactons, executed upon customers orders, on any regstered Exchange or other tradng market. ) Subscrptons for shares of the capta stock of a corporaton pror to the ncorporaton thereof or n pursuance of an ncrease n ts authorzed capta stock under the Corporaton Code, when no expense s ncurred, or no commsson, compensaton or remuneraton s pad or gven n connecton wth the sae or dsposton of such securtes, and ony when the purpose for soctng, gvng or takng of such subscrptons s to compy wth the requrements of such aw as to the percentage of the capta stock of a corporaton whch shoud be subscrbed before t can be regstered and duy ncorporated, or ts authorzed capta ncreased. |) The exchange of securtes by the ssuer wth ts exstng securty hoders excusvey, where no commsson or other remuneraton s pad or gven drecty or ndrecty for soctng such exchange. k) The sae of securtes by an ssuer to fewer than twenty (20) persons n the Phppnes durng any tweve- month perod. ) The sae of securtes to any number of the foowng quafed buyers: () Bank; () Regstered nvestment house; ()nsurance company; (v) Penson fund or retrement pan mantaned by the Government of the Phppnes or any potca subdvson thereof or managed by a bank or other persons authorzed by the Bangko Sentra to engage n trust functons; (v) nvestment company or; (v) Such other person as the Commsson may by rue determne as quafed buyers, on the bass of such factors as fnanca sophstcaton, net worth, knowedge, and experence n fnanca and busness matters, or amount of assets under management. PROTECTION OF S(ARE(OLDERS INTEREST 1. Tender Offers (Sec 19) 2. Proxy soctaton (Sec 20) 3. Interna record keepng and accountng (Sec 22) TENDER OFFER - A pubcy announced ntenton actng aone or n concert wth others to acqure equty securtes of a company. (2002 Bar Exams) In2t*nce2 @,en Ten+e7 O99e7 i2 ReG3i7e+ 1. When the person ntends to acqure 15% or more of the equty share of a pubc company pursuant to an agreement made between or among the person and one or more seers; 2. When the person ntends to acqure 30% or more of the equty share of a pubc company wthn a perod of 12 months; 3. When the person ntends to acqure shares that woud resut n an ownershp of more than 50% of the equty shares of a pubc company. PROH/ SOLICITATION NOTEA A broker or deaer who hods or acqures the proxy for at east ten per centum (10%) or such percentage as the Commsson may prescrbe of the outstandng share of the ssuer, sha submt a report dentfyng the benefca owner wthn ten (10) days after such acquston, for ts own account or customer, to the ssuer of the securty, to the Exchange where the securty s traded and to the Commsson. (Sec 20.5) FRAUDULENT TRANSACTIONS AND OT(ER MAR1ET MANIPULATIONS 1. W*2, S*?e (Sec 24.1(a)()) - any transacton n a securty whch nvoves no change n the benefca ownershp thereof. 2. M*tc,e+ O7+e7 (Sec 24.1(a)()) - order or orders for the purchase or sae of securty wth the knowedge that a smutaneous order or orders of substantay the same sze, tme and prce for the sae or purchase of such securty has, or w be entered by or for the same or dfferent partes. NoteA Wash sae and matched orders become ega when they are used as a means to create fase appearance of actve tradng n the securty concerned. 3. M*7Bin. t,e c?o2e - pacng the purchase order, at or near the cose of the tradng perod. The prce that was cosed w then be the prce that w be posted on the foowng tradng day. 4. P*intin. t,e t*6e - nvoves a seres of transactons that are reported pubcy to gve the mpresson of an actvty n a securty. 5. SG3eeCin. t,e 9?o*t - the part of an outstandng securty ntentonay hed by deaers or other persons wth a vew of reseng them ater for proft. 6. (>6e *n+ +3-6 - Act empoyed by a person or group of persons of purchasng the outstandng capta stock of a dormant pubc she company for a nomna amount and merge t wth ther prvatey hed company. They woud then gan contro of the ma|orty stocks of the merged entty. Stock certfcates are often re-ssued n the name of the merged entty to reatves and assocates who act as nomnees of the person or persons empoyng the devce. They woud then ook for a broker-deaer who woud be wng to make a "hype" of the securtes. The broker-deaer then generates voume and advance bd prce. When the market reaches a hgh prce, they woud "dump" ther sharehodngs and ba out. 7. Boi?e7 Roo- O6e7*tion2 - nvoves an ntensve seng campagn through numerous saesmen by teephone or through drect ma offerngs for securtes of ether a certan type or from a specfc ssuer. Investors are nduced to purchase through hard- se based on unfounded predctons and mang of mseadng market etters. NoteA Markng the cose, Pantng the tape, Squeezng the foat, Hype and dump, Boer Room Operatons become unawfu f t s effected to ether rase the prce or nduce the purchase of a securty or of a controng, controed, or commony controed company by others or to depress the prce to nduce the sae of a securty, whether of the same or of a dfferent cass, of the same ssuer or of a controng, controed company or common controed company by others or to create actve tradng to nduce the purchase through sad devces or schemes. 8. Ci7c3?*tin. o7 Di22e-in*tin. In9o7-*tion - crcuatng an nformaton that any of the securty sted n the exchange w or s key to rse or fa because of manpuatve market operatons of any one or more persons conducted for the purpose of rasng or depressng the prce of the securty and thus nducng the purchase of such securty. 9. M*Bin. F*?2e o7 Mi2?e*+in. St*te-ent2 wth respect to any matera fact whch he knew or had reasonabe ground to beeve was so fase or mseadng for the purpose of nducng the purchase or sae of such securty. 10. Pe..in. o7 Fi;in. O7 St*4i?iCin. the prce of securty effected ether aone or wth others through any seres of transactons for the purchase or sae thereof, f done for such purpose. 11. S,o7t 2*?e - seng of securty whch the vendor does not own uness done n accordance wth the rues and reguatons of the SEC. 12. In2i+e7 T7*+in. - the act of an nsder to buy or se securty of the ssuer whe n possesson of matera nformaton wth respect to such securty that s not generay made known to the pubc uness (a) The nsder proves that the nformaton was not ganed from such reatonshp; or (b) If the other party seng to or buyng from the nsder (or hs agent) s dentfed, the nsder proves: () that he dscosed the nformaton to the other party, or () that he had reason to beeve that the other party otherwse s aso n possesson of the nformaton. NoteA W,en i2 in9o7-*tion E-*te7i*? non0634?icIJ 0 f: (a) It has not been generay dscosed to the pubc and woud key affect the market prce of the securty after beng dssemnated to the pubc and the apse of a reasonabe tme for the market to absorb the nformaton; or (b) woud be consdered by a reasonabe person mportant under the crcumstances n determnng hs course of acton whether to buy, se or hod a securty. NoteA W,o i2 *n Ein2i+e7IJ - "Insder" means: (a) the ssuer; (b) a drector or offcer (or person performng smar functons) of, or a person controng the ssuer; (c) a person whose reatonshp or former reatonshp to the ssuer gves or gave hm access to matera nformaton about the ssuer or the securty that s not generay avaabe to the pubc; (d) a government empoyee, or drector, or offcer of an exchange, cearng agency and/or sef-reguatory organzaton who has access to matera nformaton about an ssuer or a securty that s not generay avaabe to the pubc; or (e) a person who earns such nformaton by a communcaton from any of the foregong nsders. INDEPENDENT DIRECTOR Person other than an offcer or empoyee of the corporaton, ts parent or subsdares, or any other ndvdua havng a reatonshp wth the corporaton, whch woud nterfere wth the exercse of ndependent |udgment n carryng out the responsbtes of a drector. Co76o7*tion2 @,ic, 7eG3i7e *n In+e6en+ent Di7ecto7 1. An exchange; or 2. Any corporaton wth a cass of equty securtes sted for tradng on an Exchange or wth assets n excess of P50M and havng 200 or more hoders, at east 200 of whch are hodng at east 100 shares of a cass of ts equty securtes or whch has sod a cass of equty securtes to the pubc pursuant to an effectve regstraton statement sha have at east two (2) ndependent drectors or such ndependent drectors sha consttute at east 20% of the members of such board, whchever s the esser. OPTION TRADING Put - a transferrabe opton or offer to dever a gven number of shares of stock at a stated prce on any gven tme durng the stated perod. Ca - a transferrabe opton to buy a specfed number of share at a stated prce Stradde - a combnaton of put and ca. SETTLEMENT OFFERS At any tme, durng an nvestgaton or proceedng under ths Code, partes beng nvestgated and/or charged may propose n wrtng an offer of settement wth the Commsson. The Commsson may ony agree to a settement offer based on ts fndngs that such settement s n the pubc nterest. Any agreement to sette sha have no ega effect unt pubcy dscosed. Such decson may be made wthout a determnaton of gut on the part of the person makng the offer. DAMAGES A suts to recover damages sha be brought before the Regona Tra Court, whch sha have excusve |ursdcton to hear and decde such suts. The Court s authorzed to award damages n an amount not exceedng trpe the amount of the transacton pus actua damages. NOTES
If there are goods nvoved n the mutmarket,
t s beyond the |ursdcton of SEC (Ex Frst Ouadrant) Crmna charge for voaton of SRC s a specazed dspute, hence t must be frst referred wth SEC (Bavera vs. Pagnawan G.R. No. 168380 Feb 8, 2007)
T3 R3?e in t7*+in. o9 Sec37itie2 - Tradng
day + 3 more days you must compy wth your obgatons.