registered.
CORPORATION LAW
Corporation is one of the types of
business organizations. It is also the
most
important
in
economic
development.
Corporations
-
INTRODUCTION
Sole Proprietorship
-
Partnership
-
Joint venture
-
Advantages:
causing
physical
CLASSIFICATION OF CORPORATIONS
Section 3 Stock and non-stock
-
Close corporation
-
Section 96-105
Section 4
-
Only those
shares
Open corporation
indicated
can
Close corporation
Domestic/ Foreign
Public corporation
-
private
Corporation Sole
-
Test
-
Incorporation test
ME Gray vs. CA
Private Corporation
own
HERSHEY
CBP
CBPl 12%
12%
Affiliate is subject to common control by the
12 % owners
De jure
4
De facto
-
exists
by
compliance
virtue
of
Restrictions
Mandatory in close
Non-stock
colorable
Corporation by estoppel
-
or
quasi-
3. Dissolution/winding-up
Purpose clause
-
stockholders/members
and
their
successors shall constitute a body
politic and corporate under the name
stated in the articles of incorporation
for the period of time mentioned
therein, unless said period is extended
or the corporation is sooner dissolved
in accordance with law. (n)
-
Principal Office
-
statement
required
principal
office
venue of meetings
Section 18
-
of
principal
office
NOT
office
is
only
operations
Term of existence
-
Dissolution - it is automatic
Must
be
signatories
incorporators
Corporators in a stock
corporation are called stockholders
or shareholders. Corporators in a
non-stock corporation are called
members. (4a)
5-15
be
to
Originally or subsequently
Section 5 provides:
Exception:
cooperatives
and
corporation primarily organized to hold
equities in rural banks
Corporators
in
a
stock
corporation are called stockholders or
shareholders. Corporators in a nonstock corporation are called members.
(4a)
May a corporation be a corporator?
-
section 6
Section 6. Classification of
shares. - The shares of stock of stock
corporations may be divided into
classes or series of shares, or both,
any of which classes or series of
shares may have such rights,
privileges or restrictions as may be
stated in the articles of incorporation:
Provided, That no share may be
deprived of voting rights except those
classified and issued as "preferred" or
"redeemable" shares, unless otherwise
provided in this Code: Provided,
further, That there shall always be a
class or series of shares which have
complete voting rights. Any or all of the
shares or series of shares may have a
par value or have no par value as may
be provided for in the articles of
incorporation: Provided, however, That
banks, trust companies, insurance
companies, public utilities, and building
and loan associations shall not be
permitted to issue no-par value shares
of stock.
Preferred shares of stock
issued by any corporation may be
Where
the
articles
of
incorporation provide for non-voting
shares in the cases allowed by this
Code, the holders of such shares shall
nevertheless be entitled to vote on the
following matters:
1. Amendment of the articles of
incorporation;
2. Adoption and amendment of bylaws;
3. Sale, lease, exchange, mortgage,
pledge or other disposition of all or
substantially all of the corporate
property;
4. Incurring, creating or increasing
bonded indebtedness;
5. Increase or decrease of capital
stock;
Filipino,
Capital structure
Disqualifications <sec.27>
-
50 K
50 K
B
C
250K
D
E
PAID UP =62,500
Corporation cannot exceed more than 1 M
it is the maximum amount it cannot issue
more unless amended
Maximum shares it can issue is 1M shares
unless amended
How much
subscribed?
-
shares
should
be
10
To
comply
with
statutory
requirements
particularly
those
which provide for certain limitations
on foreign ownership and shares like
overseas employment agencies
requiring to own at least 75% of the
shares of stock thereof.
To
better
insure
return
on
investment which can be affected
through the issuance of redeemable
shares or preferred shares, i.e.,
granting
the
holders
thereof,
preference as to dividends and/or
distribution of assets in case of
liquidation; and,
Section 6
-
Preferred shares
-
Specific preference
Shares of stock
Purpose of classification
No par
Treasury shares
It
may
include
such
other
preferences not inconsistent with the
Code. This is so because Section 6
of the said law allows a stock
corporation to issue preferred
shares subject only to the limitations
imposed therein which are:
once
reissued
they
outstanding stocks again
Preferred shares
-
preference as to dividends
both
Cumulative
-
become
Common shares
-
YOU
MUST
STATE
THE
PREFERENCE BECAUSE IF NOT
THEY ARE PRESUMED TO BE
EQUAL
Section 137
Section
137.
Outstanding
capital stock defined. - The term
"outstanding capital stock", as used in
this Code, means the total shares of
stock
issued
under
binding
subscription
agreements
to
subscribers or stockholders, whether
or not fully or partially paid, except
treasury shares. (n)
Preferred
-
May be denied
Mandatory if earned
Stock
corporations
are
prohibited from retaining surplus profits
in excess of one hundred (100%)
percent of their paid-in capital stock,
except: (1) when justified by definite
corporate expansion projects or
programs approved by the board of
directors; or (2) when the corporation
is
prohibited
under
any
loan
agreement with any financial institution
or creditor, whether local or foreign,
from declaring dividends without its/his
consent, and such consent has not yet
been secured; or (3) when it can be
clearly shown that such retention is
necessary
under
special
circumstances
obtaining
in
the
corporation, such as when there is
need for special reserve for probable
contingencies. (n)
Par
-
No par
Non-voting
-
Generally
a
corporation
can
reacquire its own shares if it has
unrestricted retained earnings
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
Redeemable shares
-
Discretionary/optional
Obligatory or mandatory
Treasury shares
-
May they be
corporation?
-
reissued
by
the
YES
Once
re-issued
they
outstanding stocks again
assets
of
Specified
corporations
persons-
close
No transfer clause
Execution clause
Acknowledgment
Treasurer affidavit part of the articles
of incorporation
the
become
Section
23-27
minimum
qualifications, but there may be
additional
15
refuse
or
reject
<Section 17>
Section 17. Grounds when
articles of incorporation or amendment
may be rejected or disapproved. - The
Securities and Exchange Commission
may reject the articles of incorporation
or disapprove any amendment thereto
if the same is not in compliance with
the requirements of this Code:
Provided, That the Commission shall
give the incorporators a reasonable
time within which to correct or modify
the objectionable portions of the
articles or amendment. The following
are grounds for such rejection or
disapproval:
1. That the articles of incorporation or
any amendment thereto is not
substantially in accordance with the
form prescribed herein;
2. That the purpose or purposes of the
corporation
are
patently
unconstitutional, illegal, immoral, or
contrary to government rules and
regulations;
3. That the Treasurer's Affidavit
concerning the amount of capital stock
subscribed and/or paid is false;
4. That the percentage of ownership of
the capital stock to be owned by
citizens of the Philippines has not been
complied with as required by existing
laws or the Constitution.
No articles of incorporation or
amendment to articles of incorporation
When
will
the
commence to exist?
-
corporation
Section 19
Section 19. Commencement
of corporate existence. - A private
corporation formed or organized
under this Code commences to have
corporate existence and juridical
personality
and
is
deemed
incorporated from the date the
Securities
and
Exchange
Commission issues a certificate of
incorporation under its official seal;
and thereupon the incorporators,
stockholders/members and their
successors shall constitute a body
politic and corporate under the name
stated in the articles of incorporation
for the period of time mentioned
therein, unless said period is
extended or the corporation is
sooner dissolved in accordance with
law. (n)
TRUE
De jure
-
De facto
-
Corporation by estoppel
-
NO!
Doctrine of incorporation
the
Would this
corporation?
apply
to
foreign
rd
No good faith
Another exemption
Corporation by estoppel
19
Exceptions:
1.
fraudulently
misrepresents the third person may file
an action directly to those members, 2.
3rd party will not be estopped if he is
not trying to escape liability
with
2 possible remedies
-
Albert case
Automatic
Commencement
Caram vs. CA
Franchise
Mere
ownership
of
all
or
substantially all of the shares of
stock of a corporation is not, in itself,
insufficient ground for disregarding
the separate corporate personality.
And for the separate personality of
the corporation to be disregarded,
the wrong doing must be clearly and
convincingly established
Instrumentality rule
What
where
the
facts
or
circumstances arrived by the court
here?
Subscribed
capital
where
all
advanced by Yutivo, the board
where the same as Yutivo
21
La
campana,
one
payroll,
employees
were
made
interchangeable. Acrylic had its own
standards
Cease vs. CA
-
Control test
Not mere
complete
majority
Amendment of
incorporation
the
but
rather
articles
of
Appraisal right
Express power
corporation
granted
to
Section 16
1 & 2=absent
1&2=absent but gave their written
assent
3 & 4= objected
3&4=objected
5 & 6= approved the amendment
5&6=approved
Would there be a valid amendment
Right granted
instances
only
in
specified
XYZ-----
2 100/s
To
10 100/s
=1M/S
be the 2/3?
what would
The incorporating
trustees,
Why is it retroactive?
What provision may be amended,
altered or repealed
Can you change name, address for
example she married or changed
address?
-
directors
or
26
FALSE.
It can be if there are
justifiable
reasons
for
earlier
extension as may be determined by
the SEC
BOARD OF DIRECTORS/TRUSTEES
Section 23
Section 23. The board of
directors or trustees. - Unless
otherwise provided in this Code, the
corporate powers of all corporations
formed under this Code shall be
exercised, all business conducted and
all property of such corporations
controlled and held by the board of
directors or trustees to be elected from
among the holders of stocks, or where
there is no stock, from among the
members of the corporation, who shall
hold office for one (1) year until their
successors are elected and qualified.
(28a)
Every director must own at least
one (1) share of the capital stock of the
corporation of which he is a director,
which share shall stand in his name on
the books of the corporation. Any
director who ceases to be the owner of
at least one (1) share of the capital
stock of the corporation of which he is
a director shall thereby cease to be a
director.
Trustees
of
non-stock
corporations must be members
thereof. A majority of the directors or
trustees of all corporations organized
General rule
-
corporation
will
be
bound,
notwithstanding the actual authority
may never have been granted.
-
Lee vs. CA
Qualifications:
-
board
Anti-dummy act
3-200k
4-100k
Exception:
5-100k
6-100k
7-50k
8-40k
9-5k
10-5k
=1MS
1&2 is absent, 3&4 ayaw tumakbo and
hindi nagvote 6-10, tumakbo and
ninominate nila yung sarili nila and cast all
their shares on themselves
1-100T/S
2-100T/S
Matter
of
right
granted
to
stockholders in a stock corporation
3-100T/S
to 10=1M/S
Do you include the vote of 1 & 2 to
have a quorum to have a valid
meeting?
-
2-200k
30
Is it allowed
corporation?
in
non-stock
may
be
another
31
1
1 and
requirement
present=valid
voting
3 voted no
Notice
requirement
must
be
complied with hence it should have
been with force and effect, but
according to the SC, it may be
ratified expressly if there is a
subsequent meeting called for that
purpose
4
5
Is it absolute?
-
of
the
Exception:
Considered 3 circumstanced
Delegation
Expressly conferred
Otherwise it
corporation
will
not
bind
the
32
An
unauthorized
act
may
nevertheless be binding either by
express or implied by estoppels
By recognition or adoption
33
2-200
3-200
4-100
5-100
electing
6-100
6 to 10 not related
7-50
8-40
9-5
10-5
director
outstanding
fill
up
may
35
Llamado vs. CA
-
Tramat vs. CA
-
obedient
diligent
loyal
Questions
of
policy
and
management are left solely to the
honest decision of the board of
directors and the courts are without
authority to substitute its judgment
as against the former. The directors
are the business managers of the
corporation and as long as they act
in good faith, its actuations are not
subject
to
judicial
review.
Montelibano vs. Bacolod Murcia
Milling
36
31,32,33,34
to
of
Director x co.
A-REALTY
B
C
D
E
E goes to Z and offers to pay the property
for 26 M and later he sells it for 30M
making 4M profit, one of the stockholders
learned and complains that he should
37
Another scenario:
and
the
Section
32.
Dealings
of
directors, trustees or officers with the
corporation. - A contract of the
corporation with one or more of its
directors or trustees or officers is
voidable, at the option of such
corporation, unless all the following
conditions are present:
39
X Co.
Y Co.
A owe 20%
A owe 20%
25% VALID
15%
Derivative suit
-
Available suits
Individual or Personal
-
Class suit
-
Filed
by
a
stockholder
in
representation of other stockholders
A wrong or redress
derivative suit in nature
done,
Intra-corporate remedies
-
Derivative suit
-
Stockholders
cannot
ordinarily
commence suit in equity and such is in
the hands of its BOD however there
are exceptions when the BOD will not
sue since they are themselves
principals to the fraud.
41
Section 35
Section
35.
Executive
committee. - The by-laws of a
corporation may create an executive
committee, composed of not less than
three members of the board, to be
appointed by the board. Said
committee may act, by majority vote of
all its members, on such specific
matters within the competence of the
board, as may be delegated to it in the
by-laws or on a majority vote of the
board, except with respect to: (1)
43
are
incidental
to
its
46
2. To collect or compromise an
indebtedness to the corporation, arising out
of unpaid subscription, in a delinquency
sale, and to purchase delinquent shares
sold during said sale; and
3. To pay dissenting or withdrawing
stockholders entitled to payment for their
shares under the provisions of this Code.
(a)
Section 42. Power to invest
corporate funds in another corporation or
business or for any other purpose. Subject to the provisions of this Code, a
private corporation may invest its funds in
any other corporation or business or for
any purpose other than the primary
purpose for which it was organized when
approved by a majority of the board of
directors or trustees and ratified by the
stockholders representing at least twothirds (2/3) of the outstanding capital stock,
or by at least two thirds (2/3) of the
members in the case of non-stock
corporations, at a stockholder's or
member's meeting duly called for the
purpose. Written notice of the proposed
investment and the time and place of the
meeting shall be addressed to each
stockholder or member at his place of
residence as shown on the books of the
corporation and deposited to the addressee
in the post office with postage prepaid, or
served personally: Provided, That any
dissenting stockholder shall have appraisal
right as provided in this Code: Provided,
however, That where the investment by the
corporation is reasonably necessary to
accomplish its primary purpose as stated in
the articles of incorporation, the approval of
the stockholders or members shall not be
necessary. (17 1/2a)
Section 43. Power to declare
dividends. - The board of directors of a
stock corporation may declare dividends
out of the unrestricted retained earnings
which shall be payable in cash, in property,
47
49
Seal
Exception to
constitution
Power to amend
-
section 16
special 37,38,120
section 46-48
the
rule
in
the
Examined
the
articles
of
incorporation to arrive at its decision
For purpose
NAPOCOR
Importance
registration
of
prohibiting
of
Residence
Venue
Place of meetings
Place or
mortgage
PLACE
registration
of
the
of
chattel
Philippine
Rivera
-
Trust
Company
vs.
Pre-emptive
granted?
-
Bond
-
Commonly
understood
as
an
obligation of a state, its subdivision or
a private corporation, represented by a
certificate or an instrument for the
principal and by detachable coupons
for the payment of interests. In its
simplest term, it is one where an
obligor obliges himself to pay a certain
sum of money to another at a day
named.
There are different kinds of bond but
before they may be issued or floated
by the corporation, the same must be
registered and approved by the SEC
subject to the rules and regulations
that may be adopted by that agency.
The procedure and requirements set
forth in section 38 is the same as in
increasing or decreasing the capital
stock except that the certificate does
not have to state the matters required
in sub-section 2 & 3 thereof.
Pre-emptive rights
-
Internationally granted
rights,
why
it
is
In
order
that
the
existing
stockholders may maintain their
proportionate right as not to dilute
their right
53
However,
pre-emptive
rights
is
unavailable to shares in trading in
stock
exchange
otherwise
stockholders must waive first their right
before they may sell such.
Exceptions
1. When the shares to be issued is in
compliance with laws requiring
stock offerings or minimum stock
ownership by the public
2. Shares to be issued in good faith
with
the
approval
of
the
stockholders representing 2/3 of
the outstanding capital stock either
Is
it
applicable
corporations?
-
to
close
b. In payment of a previously
contracted debt
Certain
instances
when
a
stockholder may nevertheless be
unable to exercise this right:
Preemptive
rights
of
stockholders in ordinary stock
corporations may be denied
if the shares are to be issued in
compliance with laws requiring stock
offering or minimum stock ownership
by the pubic
54
old
unissued
Yes
respect to the
shares? No.
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 exercise their preemptive right?
-
NO, EXCEPT
YES
May
1-5
subscribe
to
the
unsubscribed capital stock to the
exclusion of 6-10?
-
1)
RESOLUTION
2)
AUTHORIZATION
3)
RATIFICATION
4)
PRIOR
WRITTEN
NOTICE
5)
SALE
SUBJECT TO PROVISIONS OF
EXITING LAWS 6) DISSENTING
STOCKHOLDERS
HAVE
THE
RIGHT TO EXERCISE THEIR
APPRAISAL RIGHT
Legitimate
purpose:
for
a
corporation to reacquire its own
shares
YES
Limitation:
it
must
have
surplus/unrestricted
retained
earnings
56
1M
SUBSRIBED 1M
PAID-UP
1M
ASSETS
500K
1M PROFITS
-
500K LIABILITIES
____________________
500K RESERVES
IN
A
CLOSE CORPORATION IT CAN USE THIS
TO REACQUIRE ISSUED STOCKS
X REALTY CORPORATION
THE ONLY PROPERTY OF THE
CORPORATION
BOARD OF DIRECTORS DECIDED
TO SELL IT
Will it need the approval of the
stockholders?
-
57
shares
2. To collect or compromise an
indebtedness to the corporation,
arising out of unpaid subscription, in a
delinquency sale, and to purchase
delinquent shares sold during said
sale; and
3. To pay dissenting or withdrawing
stockholders entitled to payment for
their shares under the provisions of
this Code. (a)
The corporation must at all times
have
unrestricted
retained
earnings to exercise this corporate
power
Redeemable shares
Closed corporation (see section
105)
-
59
are
reacquired,
Stock
corporations
are
prohibited from retaining surplus
profits in excess of one hundred
(100%) percent of their paid-in
capital stock, except: (1) when
justified by definite corporate
expansion projects or programs
approved by the board of directors;
or (2) when the corporation is
prohibited
under
any
loan
agreement with any financial
institution or creditor, whether local
or foreign, from declaring dividends
without its/his consent, and such
consent has not yet been secured;
or (3) when it can be clearly shown
that such retention is necessary
under
special
circumstances
obtaining in the corporation, such as
when there is need for special
reserve for probable contingencies.
(n)
what
Dividends
Section 43. Power to declare
dividends. - The board of directors of
a stock corporation may declare
Directors to
stockholders.
be
paid
to
the
Where
from?
-
should
dividends
come
ACS-1M
SUB-1M
P.U.-1M
1M-U.R.E. (surplus profits of the corporation)
1-100k
2-100k
To
10-100k
Revocation
1M
reduces
2. 2M-U.R.E.
May they be compelled to declare
dividends
ACS 2M
1M
SUB 1M
ACS-2M
1-100K 200 (10%)
*VOTING AND DIVIDEND RIGHTS
STILL THE SAME
1-100K
50K PU
2-100K
50K
SUB-1M
10%
TO
10-100K
10-100K
PU-1M
TO
ACS 2M
SUB 1M
PU
1M
1M
RE
100K
100K
TO
10
100K
1M
May they be compelled?
-
PU
U.R.E.
800K
1M
Will 1 and 2 receive full amount of
dividends?
-
Cannot
accumulate
unreasonably
Entitled to dividends
Irrespective
of
subscription is full
Illegally declared
ACS 2M
1M
SUB 1M
JULY 31
JULY 24 DECLARATION
PU
U.R.E.
1M
1 100K
100T JULY 26-Y (NEW
ONE WAS DECLARED TO Y)
JULY 30- 100K
2
surplus
whether
the
New provision
Section 44. Power to enter
into management contract. - No
corporation
shall
conclude
a
management contract with another
corporation unless such contract
shall have been approved by the
board
of
directors
and
by
stockholders owning at least the
63
a valid
are
as
1. Where
the
stockholders
representing the same interest of
both the managing and managed
corporation own or control more
than 1/3 of the total outstanding
capital stock of the managing
corporation; and
2. Where a majority of the members of
the board of directors of the
managing
corporation
also
constitute a majority of the directors
of the managed corporation
64
How long?
-
What is an
contract?
-
ultra-vires
act
or
Doctrine
of
limited
capacity.
Corporation can do such acts and
things as it is allowed to do
Section 36 paragraph 11
Section 10
Section 14 and 15
BY-LAWS
Empowered by SEC
By-Laws
-
Is
the
adoption
mandatory?
When
do
effective?
by-laws
become
by-laws
of
5. It must be reasonable.
-
By-laws
67
The word
imperative
must
is
not
always
Stockholders
are
conlusively
presumed to know the provisions of
the by-laws
Shares of
properties
personal
stock
are
Articles of incorporation
-
Exchange
Commission
of
a
certification that the same are not
inconsistent with this Code. (22a
and 23a)
Section 48
The power granted is not subject
to revocation T or F?
-
FALSE
MEETINGS
Meetings
-
Meetings of stockholders
1.
Date fixed in the by-laws or by-law
Meetings of stockholders
April
Why april?
-
Notice requirement?
-
Special- 1 week
Apparent
from
the
foregoing
provision is that meetings of
stockholders must, at all times, be
held in the city or municipality where
the principal office of the corporation
is located and, as far as practicable,
in the principal office of the
corporation.
FALSE.
Non-stock corporations
lang pwede provided nakalagay sa
by-laws and provided proper notice
is given
70
The petitioner,
petition the court
stockholder
may
Majority stockholders
constitute a quorum
or
members
It depends.
Directors/trustees meeting
Regular (monthly)
(anytime)
and
special
otherwise
72
SEC ruling
A special meeting is valid
without notice where the
directors are all present or
where they consent to the
NO
NO
Section 58
Maximum of 5 years
Is proxy revocable?
Revocation
74
Requisites
Section 59
Section 59. Voting trusts. One or more stockholders of a stock
corporation may create a voting trust
for the purpose of conferring upon a
trustee or trustees the right to vote
and other rights pertaining to the
shares for a period not exceeding
five (5) years at any time: Provided,
That in the case of a voting trust
specifically required as a condition in
a loan agreement, said voting trust
may be for a period exceeding five
(5) years but shall automatically
expire upon full payment of the loan.
A voting trust agreement must be in
writing and notarized, and shall
specify the terms and conditions
thereof. A certified copy of such
agreement shall be filed with the
corporation and with the Securities
and
Exchange
Commission;
otherwise, said agreement is
ineffective and unenforceable. The
certificate or certificates of stock
75
Only
legal
transferred
ownership
is
NO.
Covered
contracts
by
rules
governing
END OF MIDTERMS
Any contract
Reciprocal in nature
P
Authorized capital
500
1M
SUBSCRIBED
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?
-
Section 62 provides:
Section 62. Consideration for
stocks. - Stocks shall not be issued for
a consideration less than the par or
issued price thereof. Consideration for
the issuance of stock may be any or a
combination of any two or more of the
following:
Amounts
transferred
from
unrestricted retained earnings to
stated capital what does it mean?
-
a
a
Declared delinquent
Are
certificate
transferrable?
of
stocks
YES
Quasi-negotiable
001
10/s
Abc co.
80
Endorsement from
When issued by owner
Endorsed by owner- strict compliance
ANSWER: a certificate of stock is not
regarded as negotiable in the same sense
that a bill or note is negotiable, even if it is
endorsed in blank. Thus, while it may be
transferred by endorsement coupled with
delivery thereof, and therefore merely quasinegotiable, it is nonetheless non-negotiable
in that the transferees takes it without
prejudice to all the rights and defenses which
the true and lawful owner may have except in
so far as the principles governing estoppels
may apply.
He acquired it by virtue of a forged
instrument; no matter how innocent the
purchaser is because it is subject to all the
rights and defenses
What if A endorsed it?
-
is
necessary
for
the
and fraudulent
82
6. Those
covered
by
agreement of the parties.
reasonable
Violation of
Central Bank
nationalization
law-
Reasonable
parties
agreement
by
the
Valid
restrictions
applicable
Certificate
transferrable
of
shares
stocks
are
are
83
of
stock
be
Endorsement
mandatory
plus
delivery
is
Notarized deed
Deed of assignment
Tay vs. CA
By notarized deed
is
not
Although a stock-certificate is
sometimes regarded as quasinegotiable, in the sense that it may
be transferred by endorsement,
coupled with delivery, it is well
settled that the instrument is nonnegotiable, because the holder
thereof takes it without prejudice to
such rights or defenses as the
registered owner or creditor may
have under the law, except insofar
as such rights or defenses are
subject to the limitations imposes by
the principles governing estoppels.
Exceptions
-
Unauthorized
certificates
100/s
issuance
of
stock
100
XYZCo
85
ENDORSEMENT FORM
C armed with the endorsement form
certificate, sold to D (innocent
purchaser for value), will D acquire
title?
- NO, subject to such rights and
defenses as the true and lawful owner
may have
What if C now goes to the corporation
and presents the form?
- Then the corporation shall cancel the old
certificate and issues a new one, now
in the name of C, now registered in the
name of C, will C acquire title?
A found out what happened and goes
to the corporation who has a better title
C or A?
- A, A cannot be deprived of his right by
virtue of an unauthorized transfer
Corporation can compel C to deliver
the new stock certificate because he
made a representation that the
certificate where good.
Armed with the new certificate issued
to C, C delivers to D a purchaser in
good faith and for value will D acquire
title?
Section 64 provides:
Section 64. Issuance of stock
certificates. - No certificate of stock
shall be issued to a subscriber until
the full amount of his subscription
together with interest and expenses
(in case of delinquent shares), if any
is due, has been paid. (37)
What happens to D?
Watered stock
-
prospects, financial
responsibility;
capability
and
2. Stockholders
who
paid
their
subscriptions in full, or promised to pay
the same, are injured and prejudiced
by the reduction of their proportionate
interest in the corporation; and,
3. Present and future creditors are
deprived of the corporate assets for
the protection of their interest.
-
Corporation is prejudiced
Section 65 provides:
Section 65. Liability of directors
for watered stocks. - Any director or
officer of a corporation consenting to
the issuance of stocks for a
consideration less than its par or
issued value or for a consideration in
any form other than cash, valued in
excess of its fair value, or who, having
knowledge thereof, does not forthwith
express his objection in writing and file
the same with the corporate secretary,
shall be solidarily, liable with the
stockholder
concerned
to
the
corporation and its creditors for the
difference between the fair value
received at the time of issuance of the
stock and the par or issued value of
the same. (n)
ACS-100M 100M/S
VALUE-1.00
SUBSCRIBED-50M
FAIR
MARKET VALUE-12.00/S
UNSUBSCRIBED-50M
D
E
There is a denial of pre-emptive rights
and directors A,B,C,D,E decided to
issue
the
remaining
50M
and
subscribed for 10M each at 2 per share.
Is there stock watering if the fair
market value is 12.00?
-
No stock watering
It may be questioned.
PAR
A
90
in
fiduciary
2. To collect or compromise an
indebtedness to the corporation,
arising out of unpaid subscription, in
a delinquency sale, and to purchase
delinquent shares sold during said
sale; and
RIGHTS
99
LIABILITIES
1. To pay to the corporation the balance
of his unpaid subscriptions subject to
the provision of section 67 to 70;
2. To pay interest on his unpaid
subscription if required by the by-laws
or by the contract of subscription in
accordance with section 66;
3. To answer to the creditors for the
unpaid portion of his subscription
under the TRUST FUND DOCTRINE;
4. To answer the water in his stocks as
provided for in section 65;
5. To be liable, as general partners, for
all debts, liabilities and damages of a
determinable
corporation
as
envisioned
under
section
21
(corporation by estoppel); and,
6. To be personally liable for torts, in the
event that a stockholder in a close
corporation actively participates in the
management of the corporate affairs.
CORPORATE BOOKS AND RECORDS
What are these books and records that
are required to be kept?
Section 74. Books to be kept; stock transfer
agent. - Every corporation shall keep and
carefully preserve at its principal office a
record of all business transactions and
minutes of all meetings of stockholders or
members, or of the board of directors or
trustees, in which shall be set forth in
detail the time and place of holding the
meeting, how authorized, the notice given,
whether the meeting was regular or
special, if special its object, those present
and absent, and every act done or ordered
done at the meeting. Upon the demand of
any director, trustee, stockholder or
member, the time when any director,
trustee, stockholder or member entered or
left the meeting must be noted in the
minutes; and on a similar demand, the
yeas and nays must be taken on any
motion or proposition, and a record
responsible
vs.
Philippine
It depends
The right of the stockholders to
examine corporate books extends to
wholly-owned subsidiary which is
completely under the control and
management of the parent company
where he is such a stockholder. But
if the two entities (subsidiary and
parent) are legally being operated as
separate and distinct entities, there
is no such right of inspection on the
part of the stockholder of the parent
company.
AYALAHOLDING
COMPANY/PARENT COMPANY
SUBSIDIARIES:
BPI/GLOBE/AYALA
LAND
wholly-owned subsidiary)
(not
Formation or birth
We now discuss the union of the
corporation
The last would be its death or
dissolution
Merger
-
in
A is then
SURVIVES
dissolved
and
C
Like all other corporate acts, it
emanates from the board
1. The board of directors or trustees of
each constituent corporations shall
107
2.
3.
4.
5.
6.
corporation, it is subject to
limitations, as maybe proscribed by
law
What would be the effect of merger
or consolidation? <sec. 80>
1. There will only be a single
corporation. In case of merger, the
surviving
corporation
or
the
consolidated corporation in case of
consolidation;
2. The termination of the corporate
existence
of
the
constituent
corporations, except that of the
surviving
corporation
or
the
consolidated corporation;
3. The surviving corporation or the
consolidated
corporation
will
possess all the rights, privileges,
immunities and powers and shall be
subject to all the duties and liabilities
of a corporation organized under the
Code;
4. The surviving or consolidated
corporation shall possess all the
rights, privileges, immunities and
franchises
of
the
constituent
corporations, and all property and all
receivables
due,
including
subscriptions to shares and other
choses in action, and every other
interest of, or belonging to or due to
the constituent corporations shall be
deemed transferred to and vested in
such surviving or consolidated
corporation without further act and
deed; and,
5. The rights of creditors or any lien on
the property of the constituent
corporations shall not be impaired
by the merger or consolidation.
Is there a liquidation process in case
of merger or consolidation?
-
APPRAISAL RIGHT
Define appraisal
-
Section 81 provides:
Section 81. Instances of
appraisal right. - Any stockholder of
a corporation shall have the right to
dissent and demand payment of the
fair value of his shares in the
following instances:
109
X Co. inc
Principal office is in Quezon city, it was
changed to Paranaque
A objects and makes a written
demand. May he exercise his right of
appraisal?
-
effect if the
his appraisal
to his voting
he exercises
a. The
price
offered
by
the
corporation is lower than the fair
value of the shares of the
dissenting
stockholder
as
determined by the appraisers;
b. Where an action is filed by the
dissenting stockholder to recover
such fair value and the refusal of
the stockholder to receive payment
is found by the court to be justified.
-
It depends
The corporation bears the cost if
NON-STOCK CORPORATIONS
What is a non-stock corporation?
-
General rule is NO
Yes
May members in a
corporation vote by proxy?
non-stock
May member of
a non-stock
corporation cast their vote by text?
-
Qualifications?
1. He is a member of the association;
2. Majority thereof must be residents of
the Philippines; and,
3. Other qualifications as may be
provided for in the by-laws.
115
Any
directorship
or
trusteeship to be filled by reason of
an increase in the number of
directors or trustees shall be filled
only by an election at a regular or at
a special meeting of stockholders or
members duly called for the
purpose, or in the same meeting
authorizing the increase of directors
or trustees if so stated in the notice
of the meeting. (n)
Disqualifications
-
Directors
116
Section
36.
Corporate
powers and capacity. - Every
corporation incorporated under this
Code has the power and capacity:
Membership
in
non-stock
corporations may be acquired by
complying with the provisions of its
rules prescribed in the by-laws. This
is in consonance with the express
power granted by law under section
36, paragraph 6 of the code,
authorizing them to admit members
thereof and that authority carries
with it the power to prescribe rules
on membership. It has thus been
stated that in the absence of charter
or statutory restrictions, non-stock
corporations may determine who
shall be admitted to membership
and how they shall be admitted.
be
its
powers,
or
where
the
proceedings are otherwise illegal
Corporations, stock and non-stock,
may be dissolved in accordance and
pursuant to the provisions of Sections
118 to 121 of the Corporation Code
and the pertinent provisions of P.D.
902-A, as amended. If such be the
case, the assets of the corporation are
to be distributed in accordance with
law and established jurisprudence.
If a non-stock corporation is dissolved
how will its properties be distributed?
Section
94.
Rules
of
distribution. - In case dissolution of
a
non-stock
corporation
in
accordance with the provisions of
this Code, its assets shall be
applied and distributed as follows:
1. All liabilities and obligations of
the corporation shall be paid,
satisfied and discharged, or
adequate provision shall be made
therefore;
2. Assets held by the corporation
upon a condition requiring return,
transfer or conveyance, and which
condition occurs by reason of the
dissolution, shall be returned,
transferred
or
conveyed
in
accordance
with
such
requirements;
3. Assets received and held by the
corporation subject to limitations
permitting their use only for
charitable, religious, benevolent,
educational or similar purposes, but
not held upon a condition requiring
return, transfer or conveyance by
reason of the dissolution, shall be
transferred or conveyed to one or
more corporations, societies or
organizations engaged in activities
CLOSE CORPORATIONS
Section 96. Definition and applicability
of Title. - A close corporation, within
the meaning of this Code, is one
whose articles of incorporation provide
that: (1) All the corporation's issued
stock of all classes, exclusive of
treasury shares, shall be held of
record by not more than a specified
number of persons, not exceeding
twenty (20); (2) all the issued stock
of all classes shall be subject to one
or more specified restrictions on
Classification of directors
-
of
of
Restrictions
-
Board resolution
-
close
3.
4.
5.
6.
7.
Section 105
-
CLOSE
CORPORATIO
N
1.
The
number
of
stockholders
cannot
exceed 20
2.
To
the
extent that all
stockholders
can
be
deemed
directors, the
number
of
directors can
effectively be
more than 15
3.
Shares
ORDINARY
STOCK
CORPORATION
No limitation as to
number
of
shareholder
Maximum number
of directors is 15
Generally
no
of stock are
subject
to
specified
restrictions
4.
Shares
of stock are
prohibited
from
being
listed in the
stock
exchange or
offered
for
sale to the
public
5.
Stockhol
ders may take
an active part
in corporate
management
by
vesting
management
to them rather
than a Board
of Director
6.
Those
active
in
management
are personally
liable
for
corporate
torts unless
the
corporation
has obtained
an adequate
liability
insurance
7.
Directors
can validly act
even without
a meeting
8.
Agreeme
nts between
stockholders
regarding the
operations of
the business
can validly be
restriction
on
transfer of shares
No prohibition
Management
is
lodged
in
the
Board of Directors
Directors must, as
a rule, act as a
body at a duly
constituted
meeting
Not
valid
and
binding
since
stockholders
agreement cannot
limit the discretion
of the Board to
manage corporate
126
made
9.
To
the
extent
that
directors may
be classified
into one or
more classes
and to be
voted solely
by a particular
class of stock,
cumulative
voting may, in
effect,
be
restricted
10.
The
articles
of
incorporation
may provide
that
all
officers shall
be elected or
appointed by
the
stockholders
11.
It
may
provide
for
greater
quorum and
voting
requirements
in meetings of
stockholders
and directors
12.
Restricti
on on transfer
of
shares
should
be
indicated
in
the articles of
incorporation,
by-laws and
stock
certificates
affairs
Ordinarily, no such
classification and
no restrictions on
cumulative voting
Officers
are
elected by the
Board of Directors
Although
the
articles
of
incorporation
or
by-laws
may
provide for greater
quorum and voting
requirements
in
directors meeting
under section 25,
those
for
stockholders
meeting
cannot
generally
be
altered
Valid and binding if
indicated in the
articles
of
incorporation and
stock certificates
13.
Preemptive rights
of
stockholders
is broader as
it include all
issues without
exception
14.
A
stockholder
may withdraw
and compel
the
corporation to
purchase his
shares for any
reason
with
the limitation
only that the
corporation
has sufficient
assets
to
cover
its
liabilities
exclusive of
capital stock
15.
The
proper forum
may interfere
in
the
management
of a close
corporation in
case
of
deadlocks
under Section
104, even of
the
directors/stoc
kholders are
acting in good
faith
16.
Any
stockholder
may petition
the SEC for
corporate
dissolution on
grounds
Pre-emptive rights
may be denied as
provided for in
section 39
Courts
cannot
interfere
I
the
business judgment
of
the
directors/stockhold
ers
BUSINESS
JUDGMENT
RULE
Dissolution may be
had only on the
grounds provided
by the provisions
of the Code on
dissolution
and
P.D. 902-A, as
127
among
amended
others,
provides for in
section 105
Manuel Dulay Enterprises vs. CA
-
Two
types
corporations
-
of
educational
o Recommendation of DECS if
certificate of completion in the
academic field
How is the governing board of an
educational institution instituted?
-
Yes, if stock
Yes
B.P. 232 allows the organization of an
educational institution that is stock
corporation, only if they do not issue a
certificate of completion in the
academic field
religious
and
sole
Corporation
societies
Yes
130
When
will
it
acquire
judicial
personality? How do you compare this
to other types of corporation?
-
Upon
approval
of
such
declaration of dissolution by the
Securities and Exchange Commission,
the corporation shall cease to carry on
its operations except for the purpose of
winding up its affairs. (n)
-
or
or
to
its
When
will
personality?
it
acquire
juridical
DISSOLUTION
What is dissolution?
-
3 modes of dissolution
1. By expiration of its term;
2. By voluntary surrender of its primary
franchise (voluntary dissolution);
3. By revocation of its corporate
franchise (involuntary dissolution)
Philippine National Bank vs. CFI
-
The
formal
and
procedural
requirements necessary are the
following:
3.
4.
5.
6.
7.
Another
way
corporation is
dissolution
special
of
dissolving
a
through involuntary
Government
Estate
-
vs.
Philippine
Sugar
Because
in
El
Hogar
the
government was at fault, the
government wasnt able to issue the
certificate of title on time
When the case was instituted, El
Hogar was already able to dispose
the properties in question, in
139
Credit
and
Republic
vs.
Bisaya
Transportation Co. Inc
-
Financing
Corporation
Philippines vs. Teodoro
Land
of
the
Present set up
-
Assuming
the
above
stated
corporation is a close corporation,
would the court decree otherwise?
Gonzales vs.
Administration
-
Sugar
Regulatory
142
o Mere appointment of a
receiver without anything
more does imply in the
dissolution of a corporation
National Abaca other Fibers Co. vs.
Pore
-
the
2. By a trustee
corporation
-
appointed
by
3. By appointment of a receiver
-
Gelano vs. CA
-
o the
ruling
is
wrong
according to atty. Ladia
According to atty Ladia: What
happens to a corporation that is
already dissolved, that has not been
able to appoint a trustee with in the
3 year period?
-
Who
owns
the
properties?
SOCIEDAD ANONIMA
The termination of the life of a
juridical entity does not by itself
cause the extinction or diminution of
the rights and liabilities of such entity
or those of its owners and creditors.
If the three year extended life has
expired without a trustee or receiver
having been expressly designated
by the corporation within that period,
the board of directors o trustees
itself, following the rationale of the
Supreme Courts decision in Gelano
vs. CA may be permitted to do so
continue as trustees by legal
implication
to
complete
the
liquidation. Still in the absence of a
BOD or BOT, those having any
pecuniary interest in the assets,
including not only the shareholders
but likewise the creditors of the
corporation, acting for and in its
behalf,
might
make
proper
representations with the SEC, which
has primary and sufficiently broad
jurisdiction in matters of this nature,
for working out a final settlement of
the corporate concerns
Obtain a license
"The
(name
of
foreign
corporation) does hereby stipulate and
agree, in consideration of its being
granted by the Securities and
Exchange Commission a license to
transact business in the Philippines,
that if at any time said corporation
shall cease to transact business in the
Philippines, or shall be without any
resident agent in the Philippines on
whom any summons or other legal
processes may be served, then in any
action or proceeding arising out of any
business or transaction which occurred
in the Philippines, service of any
summons or other legal process may
be made upon the Securities and
Exchange Commission and that such
service shall have the same force and
effect as if made upon the dulyauthorized officers of the corporation
at its home office."
Whenever such service of
summons or other process shall be
made upon the Securities and
Exchange
Commission,
the
Commission shall, within ten (10) days
thereafter, transmit by mail a copy of
150
B. As
to
whether
or not it
can
be
sued
A
foreign
corporation
transacting
business in the
Philippines with
the
requisite
license can be
sued
in
the
Philippine Courts
What
would
business?
-
A
foreign
corporation
transacting
business in the
Philippines
without a license
can be sued in
Philippine Courts
constitute
doing
transacting
business
in
the
Philippines
In the case at bar, the transaction
entered into by the respondent with the
petitioners are not a series of
commercial dealings which signify an
intent on the part of the respondent to
do business in the Philippines but
constitute an isolated one which does
not fall under the category of doing
business.
The records show that the only reason
why the respondent entered into the
second and third transactions with the
petitioner was because it wanted to
recover the loss it sustained from the
failure of the petitioners to deliver the
crude coconut oil under the first
transaction and in order to give the
latter a chance to make good on their
obligation. From these facts alone, it
can be deducted that in reality there
was only one agreement between the
petitioners and the respondent.
The
three
seemingly
different
transactions were entered into by the
parties only in an effort to fulfill the
basic agreement and in no way
indicate an intent on the part of the
respondent to engage in a continuity of
transactions with petitioners which will
categorize it as a foreign corporation
doing business in the Philippines
3 contracts, but according to the court
was not doing business in the
Philippines
Communications
Design vs. CA
Materials
and
154
Puma
Sporschufabriken
Rudolf
Dassler, K.G. vs. IAC and MIL-ORO
MFG. Corp.
Assuming
Rustans
had
no
independent status would the SC
grant Lacoste access to our courts?
No
M.E. Grey
Company
vs.
Insular
Lumber
of
to
a
to
158
Pyramid
scheme
(misrepresentation)-Special
Commercial Courts
Alleje case
-
Allegation
corporate
officers
employing schemes in diverting
Fraud must
particularity
Intra-corporate
P.D. 902-A
However
the
SEC
retained
receivership or suspension payments
within June 20,2000
Jurisdiction of special commercial
courts are exclusive and original,
be
stated
with
Rule now
159
1. Necessarily be an
relationship; and,
intra-corporate
Controversies in
(asked in the bar)
-
the
appointment
Main consideration
-
160
a
a
of
a
or
For
purpose
development
of
economic
there
is
Decided
on
reconsideration
It court 7
authentication
Union vs. CA
motion
years
to
for
decide
Appointment
committee
of
management
Take
over
the
management
committee
of
the
distressed
corporation
What
is
controversy?
-
an
intra-corporate
Section 5(B)
162
In rem
Jacinto case
Sy Chim
management
Venue
Investment contracts
liabilities,
of
the
until
the
OF
SHAREHOLDERS
1.
Tender Offers (Sec 19)
2.
Proxy solicitation (Sec 20)
3.
Internal record keeping
accounting (Sec 22)
and
INDEPENDENT DIRECTOR
Person other than an officer or
employee of the corporation, its parent or
subsidiaries, or any other individual having a
relationship with the corporation, which would
interfere with the exercise of independent
judgment in carrying out the responsibilities of
a director.
DAMAGES
All suits to recover damages shall be
brought before the Regional Trial Court,
which shall have exclusive jurisdiction to
hear and decide such suits. The Court is
authorized to award damages in an amount
not exceeding triple the amount of the
transaction plus actual damages.
Corporations
which
require
an
Independent Director
1.
An exchange; or
2.
Any corporation with a class of equity
securities listed for trading on an Exchange or
with assets in excess of P50M and having
200 or more holders, at least 200 of which are
holding at least 100 shares of a class of its
equity securities or which has sold a class of
equity securities to the public pursuant to an
effective registration statement shall have at
least two (2) independent directors or such
independent directors shall constitute at least
20% of the members of such board,
whichever is the lesser.
NOTES
SETTLEMENT OFFERS
At any time, during an investigation
or proceeding under this Code, parties
being investigated and/or charged may
propose in writing an offer of settlement
with the Commission. The Commission
may only agree to a settlement offer based
on its findings that such settlement is in the
public interest. Any agreement to settle
shall have no legal effect until publicly
disclosed. Such decision may be made
without a determination of guilt on the part
of the person making the offer.
OPTION TRADING