C. MERGER/CONSOLIDATION
SECTION 4108Q (2008-4111Q).
Merger/Consolidation Involving
Quasi-Banks. The merger/consolidation of QBs is encouraged to
meet minimum capital requirements and to develop larger and
stronger FIs. QBs which are IHs are likewise encouraged to merge
with banks to obtain authority to perform expanded commercial
banking functions.
February 4, 2016
EXECUTIVE ORDER NO. 198
THIRD DIVISION
[G.R. No. 195615. April 21, 2014.]
BANK OF COMMERCE, petitioner, vs. RADIO PHILIPPINES NETWORK,
INC., INTERCONTINENTAL BROADCASTING CORPORATION, and
BANAHAW BROADCASTING CORPORATION, THRU BOARD OF
ADMINISTRATOR, and SHERIFF BIENVENIDO S. REYES, JR., Sheriff,
Regional Trial Court of Quezon City, Branch 98, respondents.
The Corporation Code requires the following steps for merger or
consolidation:
(1)
The board of each corporation draws up a plan of merger or
consolidation. Such plan must include any amendment, if necessary,
to the articles of incorporation of the surviving corporation, or in
case of consolidation, all the statements required in the articles of
incorporation of a corporation.
(2)
Submission of plan to stockholders or members of each
corporation for approval. A meeting must be called and at least two
(2) weeks' notice must be sent to all stockholders or members,
personally or by registered mail. A summary of the plan must be
attached to the notice. Vote of two-thirds of the members or of
stockholders representing two-thirds of the outstanding capital
stock will be needed. Appraisal rights, when proper, must be
respected.
(3)
Execution of the formal agreement, referred to as the articles
of merger o[r] consolidation, by the corporate officers of each
constituent corporation. These take the place of the articles of
incorporation of the consolidated corporation, or amend the articles
of incorporation of the surviving corporation. AHcaDC
(4)
Submission of said articles of merger or consolidation to the
SEC for approval.
(5)
If necessary, the SEC shall set a hearing, notifying all
corporations concerned at least two weeks before.
(6)
SEC
May 1, 1980
BATAS PAMBANSA BLG. 68
THE CORPORATION CODE OF THE PHILIPPINES
SECTION 79.
Effectivity of merger or consolidation. The
articles of merger or of consolidation, signed and certified as herein
above required, shall be submitted to the Securities and Exchange
Commission in quadruplicate for its approval: Provided, That in the
case of merger or consolidation of banks or banking institutions,
building and loan associations, trust companies, insurance
companies, public utilities, educational institutions and other special
corporations governed by special laws, the favorable
recommendation of the appropriate government agency shall first be
obtained. If the Commission is satisfied that the merger or
consolidation of the corporations concerned is not inconsistent with
the provisions of this Code and existing laws, it shall issue a
certificate of merger or of consolidation, at which time the merger or
consolidation shall be effective.
If, upon investigation, the Securities and Exchange Commission has
reason to believe that the proposed merger or consolidation is
contrary to or inconsistent with the provisions of this Code or
existing laws, it shall set a hearing to give the corporations
concerned the opportunity to be heard. Written notice of the date,
time and place of hearing shall be given to each constituent
10.
Commissioner's Approval of Plan of Merger/Consolidation.
After a review, the Commissioner shall then approve or deny the
Plan of Merger/Consolidation and the Articles of
Merger/Consolidation. In case the Commissioner denies the Plan of
Merger/Consolidation, the reason/s for such denial should be stated.
Engagement Period
SECOND DIVISION
[G.R. No. 181789. February 3, 2016.]
GMA NETWORK, INC., petitioner, vs. NATIONAL TELECOMMUNICATIONS
COMMISSION, CENTRAL CATV, INC., PHILIPPINE HOME CABLE HOLDINGS, INC.,
AND PILIPINO CABLE CORPORATION, respondents.
DECISION
Resolving the propriety of the issuance of a cease and desist order based on
the petitioner's factual allegations and legal basis, we find that the petitioner
failed to clearly establish its right to be protected under Section 20 (g) of the
Public Service Act. The petitioner alleged that the respondents have
consolidated their operations without the requisite approval from the NTC.
Section 20 (g) of the Public Service Act provides as follows:
Acts requiring the approval of the Commission. Subject to established
limitations and exceptions and saving provisions to the contrary, it shall be
unlawful for any public service or for the owner, lessee or operator thereof,
without the approval and authorization of the Commission previously had:
ETHIDa
xxx
xxx
xxx
(g)
To sell, alienate, mortgage, encumber or lease its property, franchises,
certificates, privileges, or rights or any part thereof; or merge or consolidate
its property, franchises privileges or rights, or any part thereof, with those of
any other public service. The approval herein required shall be given, after
notice to the public and hearing the persons interested at a public hearing, if
it be shown that there are just and reasonable grounds for making the
mortgaged or encumbrance, for liabilities of more than one year maturity, or
the sale, alienation, lease, merger, or consolidation to be approved, and that
the same are not detrimental to the public interest, and in case of a sale, the
date on which the same is to be consummated shall be fixed in the order of
approval: Provided, however, that nothing herein contained shall be
construed to prevent the transaction from being negotiated or completed
before its approval or to prevent the sale, alienation, or lease by any public
service of any of its property in the ordinary course of its business. (emphasis
supplied)
Clearly, the above provision expressly permits the negotiation or completion
of transactions involving merger or consolidation of property, franchises,
privileges or rights even prior to the required NTC approval.
Applying Section 20 (g) of the Public Service Act to the present case, the
respondents' negotiation and even completion of transactions constituting
the alleged consolidation of property, franchises, privileges, or rights by
themselves are permitted and do not violate the provision. What the
provision prohibits is the implementation or consummation of the transaction
without the NTC's approval.