CORPORATION An artificial being created by operation of law having the righ rightt of succ succes essi sion on,, and and the the powe powers rs,, attr attrib ibut utes es and and properties expressly authorized by law and incident to its existence (Sec. 2). I. THEORIES ON FORMATION OF A CORPORATION 1.
Concession Theory
corpor orat atio ion n is an arti artifi fici cial al crea creatu ture re with without out any any A corp existe existence nce until until it has receiv received ed the imprim imprimatu aturr of the state acting according to law, through the SEC (Tayag vs. Benguet Consolidated, Inc., 26 SCRA 242). which treats Tayag rejects the Genossenschat Theo!y which a corporation as “the reality of the group as a social and legal entity, independent of state recognition and concession! 2. Theory of corporate corporate enterprise enterprise or economic economic unit unit "he corporation is not merely an artificial being, but
more of an aggregation of persons doing business, or an underlying business unit ("hili##ine Co!#o!ate $a%, Cesa! &illanueva, 2'' ed.). "he theory draws its vitality from the fact that it is not
legal fiction alone that creates a corporate entity but also the consent of those who will form the corporation to engage in a common venture or business for profit II. ATTRI!TES OF A CORPORATION artifi fici cial al bein being g with with sepa separa rate te and and dist distin inct ct 1. #t is an arti personality 2. #t is created by operation of law 3. #t enjoys the right of succession 4. #t has the powers, attributes and properties expressly authorized by law or incident to its existence ARTIFICIA" EIN# $ITH SEPARATE SEPARATE PERSONA"IT% &OCTRINE OF SEPARATE PERSONA"IT% A corporation is a legal or juridical person with a personality separate and apart from its individual stoc$holders or members and from any other legal entity to which it may be connected % The Co!#o!atio Co!#o!ation n Code o the "hili##ines, "hili##ines, ecto! S. *e $eon + ecto! . *e $eon, -!., 2''6 ed.). Conse'uences( 1. "ia)i*ity for acts or contracts "he genera generall rule rule is that that obliga obligatio tions ns incurred incurred by a corporati corporation, on, acting acting through through its authorize authorized d agents agents are are its sole liabilities liabilities Similarly Similarly,, a corporati corporation on may not generally, generally, be made to answer for acts or liabilities of its stoc$holder stoc$holders s or members members or those of the legal entities entities to which it may be connected connected and and vice vice versa versa (C!eese vs. CA, / SCRA 40/). 2. Ri+ht to )rin+ actions #t may bring civil and criminal actions in its own name in the same manner manner as natural persons (A!t. 46, 1CC). 3. Ri+ht Ri+ht to ac'uire ac'uire an, posses possess s propert property y &roperty conveyed to or ac'uired by the corporation is in law the proper property ty of the corpor corporati ation on itself itself as a distinc distinctt legal legal entity and not that of the stoc$holders or members % A!t. 44(/), 1CC). Service e of 4. Ac'u Ac'uis isiti ition on of court court of -uris, -uris,ic ictio tion n Servic summon summons s may be made made on the presid president ent,, genera generall manager manager,, corporate corporate secretary secretary,, treasurer treasurer or in(house in(house counsel (Sec. , Rule 4, Rules o Cou!t). Chan+es s in in,ii, in,ii,ua* ua* mem)ers mem)ership hip Corporation 5. Chan+e remains unchanged and unaffected in its identity by changes in its individual membership (The Co!#o!ation Code o the "hili##ines Annotated, ecto! de $eon, 2''2 ed.). 6. Entit*ement to constitutiona* +uaranties Corporations are entitled to certain constitutional rights
process s (Ale!t v. 3nive!sity "ulishing, Inc. a. )ue proces / SCRA 04 65) E'ual &rotecti &rotection on of the law (S7ith, Bell + Co. v. b. E'ual 1atividad, 4' "hil. /6 ) &rotectio tion n agains againstt unreas unreasona onable ble search searches es and c. &rotec seizures (Stonehill v. *io8no, 2' SCRA /0/ 69) *owever, it is not entitled to certain constitutional rights
such as political rights or purely personal rights not only because it is an artificial being but also because it is a mere mere creat creatur ure e of law (Revie%e! in Co77e!cial $a%, -ose R. Sundiang + Ti7oteo A:uino, 2''5 ed.). a. +ight against self(incrimination (Bataan Shi#ya!d v. "CGG, 5' SCRA 09). / Mora* &ama+es A corporation is not entitled to moral damages because it has no feelings, no emotions, no senses (ABS;CB1 vs. Cou!t o A##eals, G.R. 1o. 206', -an. 2, ). #n
held that a juridical person such as a corporation can valid alidly ly com complai plain n for for libe libell or any any othe otherr form orm of defamation and claim for moral damages "he SC had rationated that Art -. %/0 does not 'ualify whether the plaintiff plaintiff is a natural natural or a juridical person person (
the law creating or recognizing it1 in the absence thereof, it shall be understood to be the pl ace where its legal representation is established or where it exercise its principal functions functions (A!t. 5, 1CC) 3
Contro* Contro* Test est 2 determined by the nationality of the cont contro rolli lling ng stoc stoc$h $hol olde ders rs or memb member ers s "his "his test test is applied in times of war Also $nown as the 3A+"#4E "ES"
4Phi*ippine Nationa*5 un,er the Forei+n Inestment Act of 11 6R.A. No. /7829( a. a corporation organized under &hilippine laws of which 567 of the capital stoc$ outstanding and entitled to vote is owned and held by 8ilipino citizens1 b a corpor corporati ation on organiz organized ed abroad abroad and regist registere ered d as doing business in the &hilippines under the Corporation Code of which -667 of the capital stoc$s entitled to vote belong to 8ilipinos *owever, it provides that where a corporation and its
non( non(8i 8ili lipin pino o stoc stoc$h $hol older ders s own own stoc stoc$s $s in a SE SEC( C( registered enterprise, at least 567 of the capital stoc$ outst outstand anding ing and entitl entitled ed to vote of oth corporations and and at leas leastt 567 567 of the the memb member ers s of the the boar board d of directors directors of oth corporations must be 8ilipino citizens 6,ou)*e :7; ru*e9 ru*e9
1
applies the control control test both with respect respect to Note( "he law applies the owne ownerrship ship of share hares s entit ntitle led d to vote vote and and the the membership in the board of directors &OCTRINE OF PIERCIN# THE
vs. *alisay, 52 SCRA 409 09).
3hen directors and officers are unable to compensate
a party for a personal obligation, it is far(fetched to alle allege ge that that a corp corpor orat atio ion n is perp perpet etua uati ting ng frau fraud d or promoting injustice, and thereby could be held liable for the personal obligations of its directors and officers by piercing piercing the corporate veil (
commit fraud, or to defend a crime "here is always an element of malice or evil motive in
fraud cases E*ements( a "here must have been fraud or evil motive in the affected affected transaction transaction and the mere proof of control control of the corpor corporati ation on by itself itself would would not authoriz authorize e piercing b. "he main action should see$ for the enforcement of pecuniary claims pertaining to the corporation against corporate officers or stoc$holders, or vice( versa1 and "he corp orporat orate e enti entity ty has has been been used used in the c. "he perpetration of the fraud or in justification of wrong, or to escape personal liability
doctrine re'uir re'uires es the court to see through through the "he doctrine protective shroud which exempts its stoc$holders from liabilities that they ordinarily would be subject to, or distinguishes a corporation from a seemingly separate one, were it not for the existing corporate corporate fiction fiction ($i7 vs. CA, /2/ SCRA '2). #n any cases where the separate corporate identity is
disregarded, the corporation will be treated merely as an associ associati ation on of person persons s and the stoc$h stoc$hold olders ers or members will be considered as the corporation, that is, liability will attach personally or directly to the officers and stoc$holder stoc$holders s (37ali (37ali vs. Cou!t Cou!t o A##eal A##eals, s, 0 SCRA 52 '). *owever, mere ownership by a single stoc$holder or by
another corporation of all or nearly all of the capital stoc$ of a corporatio corporation n is not of itself itself sufficient sufficient ground for disreg disregard arding ing the separa separate te corpor corporate ate person personali ality ty (37ali vs. Cou!t o A##eals, 0 SCRA 52 ') "he doctrine aims to protect the interest of innocent
third person dealing with the corporation C*assification of facts on =hich corporate entity may )e ,isre+ar,e,( 1. Avoidance of redress of fraud1 2. &revention of evasion of statute or law1 3. &revention of evasion of contract1 #nternal al corpor corporate ate dealin dealings gs disregar disregardin ding g corpor corporate ate 4. #ntern entity where third persons are not involved1 Corpor orat atio ion n agen agenci cies es or inst instrrumen umenttalit alitie ies s of 5. Corp undisclosed principals "hese enumerations are not exclusive and sometimes
two or more of these elements concur Natu Nature re an, an, Cons Conse' e'ue uenc nces es of Pier Pierci cin+ n+ &oct &octri rine ne ("hili##ine Co!#o!ate $a%, Cesa! &illanueva, 2'' ed.)( 1. has on*y res -u,icata effect> preent frau, frau, or =ron+ an, not aai*a aai*a)*e )*e for 2. to preent other purposes> "he doctrine could not be employed by a corporation to complete complete its claims against another corporation corporation and cannot cannot theref therefore ore be employ employed ed by the claima claimant nt who does not appear to be the victim of any wrong or fraud (T!ade!s (T!ade!s Royal Ban8 vs. CA 26 SCRA 6' 9). 3. essentia**y a -u,icia* prero+atie on*y "o pierce the veil of corporate fiction being a power belonging to the courts, a sheriff who has ministerial duty to enforce a final and executory decision cannot pierce pierce the veil of corpor corporate ate fictio fiction n by enforc enforcing ing the decision against the stoc$holders who are not parties to the action (C!u> vs. *alisay, *alisay, 52 SCRA 409 09). 4. must )e sho=n to )e necessary an, =ith factua* )asis disregard ard the separa separate te juridic juridical al person personalit ality y of a "o disreg corp corpor orat atio ion, n, the the wron wrongdo gdoin ing g must must be clea clearl rly y and and convi convinc ncin ingl gly y esta establi blish shed ed,, it cann cannot ot be pres presum umed ed ($u?u!ia o7es, Inc. v. CA, /'2 SCRA /5 ).
2.
A*ter E+o Cases 6or Con,uit Cases9
8raud is not an element in these cases but that the
stoc$holders or those who compose the corporation did not treat the corporation as a separate entity but only as part of the property or business of an individual or group of individuals or another corporation Pro)atie factors a Stoc$ Stoc$ owner ownershi ship p by one or or common common owne ownersh rship ip of both corporations1 b #denti #dentity ty of direct directors ors and and offic officers ers11 c "he "he manne annerr of $eepi eepin ng cor corpora poratte boo$ boo$s s and and records1 and d 4eth ethods ods of condu onduct ctiing the the busi busine ness ss (Conce#t Builde!s, Inc. v. 1$RC, 259 SCRA 4 6). Four Po*icy ases in Piercin+( a. Even when the controlling stoc$holder or managing officer intends consciously to do no evil, the use of the corporation as an alter ego is in direct violation of a central corporate law principle of treating the corporatio corporation n as a separate juridical juridical entity from from its members and stoc$holders1 stoc$hold olders ers do not respec respectt the separa separate te b. #f the stoc$h entity, others cannot also be expected to be bound by the separate juridical entity1 c. Applies even when there are no monetary claims sought to be enforced against the stoc$holders or officers of the corporation1 d. 3hen the underlying business enterprise does not really change and only the medium by which that business enterprise is changed Instrumenta*ity or A*ter E+o Ru*e 3hen one corporation is so organized and controlled and its affairs are conducted so that it is in fact a mere instrumentality or adjunct of the other, the fiction of the corp corpor orat ate e enti entity ty to the the inst instru rume ment ntal alit ity y may may be disreg disregard arded ed (Conce (Conce#t #t Builde! Builde!s s Inc. Inc. vs. 1$RC, 259 SCRA 4 6). Test( Contro rol, l, not not mere mere majo majori rity ty or comp comple lete te stoc stoc$ $ 1. Cont cont contro rol, l, but but comp comple lete te domi domini nion on,, not not only only of finances but of policy and business in respect to the transaction attac$ed so that the corporate entity as to this transaction had at the time no separate mind, will, or existence of its o wn1 Such contr ontrol ol must ust have have bee been use used by the 2. Suc defendant to commit fraud or wrong in
2
contravention of plaintiff:s legal rights1 and 3. "he aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of (Conce#t Builde!s Inc. vs. 1$RC, 259 SCRA 4 6). 3.
PO$ERS@ ATTRI!TES AN& PROPERTIES THEOR% OF SPECIA" CAPACITIES?"IMITE& CAPACIT% &OCTRINE
exercise any corporate power, except those conferred by law, its Articles of #ncorporation, those implied from express powers and those as are necessary or incidental to the exercise of the powers so conferred "he corporation:s capacity is limited to such express, implied and incidental powers (Revie%e! in Co77e!cial $a%, -ose R. Sundiang + Ti7oteo A:uino, 2''5 ed.).
E'uity cases
3hen piercing the corporate fiction is necessary to
achieve justice or e'uity "he “dumping ground! where no fraud or alter ego
circumstances can be culled to warrant piercing CREATE& % OPERATION OF "A$
#f the act of the corporation is not one of those express,
implied or incidental powers, the act is ult!a vi!es. (Revie%e! in Co77e!cial $a%, -ose R. Sundiang + Ti7oteo A:uino, 2''5 ed.).
&OCTRINE OF CORPORATE ENTIT% A corporation comes into existence upon the issuance
of the certificate of incorporation (Sec. ) "hen and only then will it ac'uire a juridical personality to sue and be sued, enter into contracts, hold or convey property or perform any legal act, in its own name (Co!#o!ation Code o the "hili##ines, Ruen C. $adia, 2'' @d.).
III. C"ASSIFICATIONS OF CORPORATIONS 1.
As to or+aniers( a pu)*ic B by State only1 or b. priate B by private persons alone or with the State
2.
As to functions( a. pu)*ic government of a portion of the State1 or b. priate B usually for profit(ma$ing functions
3.
As to +oernin+ *a=( a. pu)*ic B Special =aws and =ocal >overnment Code1 or b. priate B =aw on &rivate Corporations
4.
As to *e+a* status( a. ,e -ure corporation 2 corporation created in strict or substantial conformity with the mandatory statutory re'uirements for incorporation and the right of which to exist as a corporation cannot be successfully attac$ed or 'uestioned by any party even in a direct proceeding for that purpose by the state1 or b. ,e facto corporation 2 organized with a colorable compliance with the re'uirements of a valid law and its existence cannot be in'uired collaterally but such in'uiry may be made by the Solicitor >eneral in a :uo %a!!anto proceeding % Sec. 2').
Corporations cannot come into existence by mere
agreement of the parties as in the case of business partnerships "hey re'uire special authority or grant from the State "his power is exercised by the State through the legislature, either by a special incorporation law or charter which directly creates the corporation or by means of a general corporation law under which individuals desiring to be and act as a corporation may incorporate % The Co!#o!ation Code o the "hili##ines, ecto! S. *e $eon + ecto! . *e $eon, -!., 2''6 ed.). FRANCHISES OF CORPORATION . Primary or corporate franchise?#enera* franchise "he right or privilege granted by the State to individuals to exist and act as a corporation after its incorporation 2. Secon,ary or specia* franchise "he special right or privilege conferred upon an existing corporation to the business for which it was created e.g. use of the streets of a municipality to lay pipes or trac$s, or operation of a public utility or a messenger and express delivery service PRIMAR% +efers to the franchise of being or existing as a corporation ;ested in individuals compose corporation
the who the
Cannot be sold or transferred, in the absence of legislative authority to do so "his is because it is inseparable from the corporation itself
SECON&AR% +efers to the exercise of right or privilege e.g public utility or telecommunication franchise ;ested in the corporation after its incorporation and not upon the individuals who compose the corporation 4ay be sold or transferred under a general power granted to a corporation to a corporation to dispose of its properties1 may also be subject to sale on execution or levy
RI#HT OF S!CCESSION #t is the capacity to have continuity of existence despite the changes on the persons who compose it "hus, the personality continues despite the change of stoc$holder, members, board members or officers (Revie%e! in Co77e!cial $a%, -ose R. Sundiang + Ti7oteo A:uino, 2''5 ed.).
"he
only difference between a de facto corporation and a de jure corporation is that a de jure corporation can successfully resist a suit brought by the State challenging its existence1 a de facto corporation cannot sustain its right to exist as against the State c corporation )y estoppe* 2 group of persons that assumes to act as a corporation $nowing it to be without authority to do so, and enters into a transaction with a third person on the strength of such appearance #t cannot be permitted to deny its existence in an action under said transaction (Sec. 2). #t is neither de jure nor de facto d corporation )y prescription 2 one which has exercised corporate powers for an indefinite period without interference on the part of the sovereign power, e.g. +oman Catholic Church 5.
As to eDistence of stocs( a. stoc corporation 2 a corporation which has capital stoc$ divided into shares and is authorized to distribute to holders of such shares, dividends or allotments of the surplus profits on the basis of the shares held (Sec. /)1 or 8or a stoc$ corporation to exist, the above
re'uisites must be complied with for even if there is
3
a statement of capital stoc$, the corporation is still not a stoc$ corporation if dividends are not supposed to be declared, i.e. there is no distribution of retained earning (CIR vs. Clu
As to *a=s of incorporation( a. ,omestic corporation 2 corporation formed, organized or existing under &hilippine laws1 or b. forei+n corporation 2 a corporation formed, organized or existing under any laws other than those of the &hilippines and whose laws allow 8ilipino citizens and corporation to do business in its own country or state
7.
As to =hether they are open to the pu)*ic or not( a. open 2 one which is open to any person who may wish to become a stoc$holder or member thereto1 or b. c*ose ( those whose shares of stoc$ are held by limited number of persons li$e the family or other closely($nit group %The Co!#o!ation Code o the "hili##ines, ecto! S. *e $eon + ecto! . *e $eon, -!., 2''6 ed.)
0 As to re*ationship of mana+ement an, contro*( a. ho*,in+ corporation ( it is one which controls another as a subsidiary by the power to elect management #t is one that holds stoc$s in other companies for purposes of control rather than for mere investment b su)si,iary corporation 2 one which is so related to another corporation that the majority of its directors can be elected either directly or indirectly by such other corporation #t is always controlled1 or c. affi*iate 2 one related to another by owning or being owned by common management or by a long(term lease of its properties or other control device #t may be the controlled or controlling corporation, or under common control1 or d parent an, su)si,iary corporation 2 3hen a corporation has a controlling financial interest in one or more corporations , the one having control is the parent corporation, and the others are the subsidiary corporations ("hili##ine Co!#o!ate $a%, Cesa! &illanueva, 2'' ed.). 9.
As to num)er of persons =ho compose them( a a++re+ate corporation 2 a corporation consisting of more than one person or member1 or b corporation so*e 2 a corporation consisting of only one person or member1 a special form of corporation usually associated with the clergy
7 As to =hether they are for re*i+ious purposes or not( a ecc*esiastica* corporation 2 one organized for religious purposes1 or b *ay corporation 2 one organized for a purpose other than for religion 11.
As to =hether they are for charita)*e purposes or not( a. e*eemosynary corporation 2 one established for or devoted to charitable purposes or those supported by charity1 or b. cii* corporation 2 one established for business or profit
CONCEPT OF #OIN# P!"IC AN& #OIN# PRI
&ISTIN#!ISHE&
FROM
PARTNERSHIP PARTNERSHIP CORPORATION . Creation Created by mere Created by law or by agreement of the operation of law parties 2. Num)er of incorporators 4ay be organized by +e'uires at least at least two persons five incorporators %except a corporation sole0 3. Commencement of -uri,ica* persona*ity Ac'uires juridical Ac'uires juridical personality from the personality from the moment of execution date of issuance of of the contract of the certificate of partnership incorporation by the Securities and Exchange Commission 8. Po=ers &artnership Corporation can may exercise any exercise only the power authorized by powers expressly the partners granted by law or %provided it is not implied from those contrary to law, granted or incident morals, good to its existence customs, public order, public policy0 . Mana+ement 3hen management is "he power to do not agreed upon, business and every partner is an manage its affairs is agent of the vested in the board partnership of directors or trustees :. Effect of mismana+ement A partner as such can "he suit against a sue a co(partner who member of the mismanages board of directors or trustees who mismanages must be in the name of the corporation /. Ri+ht of succession &artnership has no Corporation has right of succession right of succession 0. EDtent of *ia)i*ity to &artners are liable personally and subsidiarily
thir, persons Stoc$holders are liable only to the extent of the shares
4
%sometimes solidarily0 subscribed by them for partnership debts to third persons 1. Transfera)i*ity of interest &artner cannot Stoc$holder has transfer his interest in generally the right to the partnership so as transfer his shares to ma$e the without prior consent transferee a partner of the other without the stoc$holders unanimous consent because corporation of all the existing is not based on this partners because the principle partnership is based on the principle of delectus #e!sona!u7 7. Term of eDistence &artnership may be Corporation may not established for any be formed for a term period of time in excess of ?6 stipulated by the years extendible to partners not more than ?6 years in any one instance . Firm name =imited partnership is Corporation may re'uired by law to adopt any name add the word “=td! to provided it is not the its name same as or similar to any registered firm name 2. &isso*ution 4ay be dissolved at Can only be any time by any or all dissolved with the of the partners consent of the State 3. #oernin+ "a= >overned by the >overned by the
"here is only one set of incorporators, hence, they
3. 8.
INCORPORATORS signatory to the Articles of #ncorporation
CORPORATORS stoc$holder %stoc$ corporation0 or member %non(stoc$ corporation0 ait acco7#li1 they may cease to be accomplished fact such if they %the Articles of subse'uently lose #ncorporation cannot their shareholdings be amended to replace them0 number is limited to no restriction as to ?(-? number must have may be such through contractual capacity a guardian
<. A&
&ISA&
will remain to be such incorporators up to the termination of the life of the corporation Gua*ifications( a. natural person1 b. not less than ? but not more than -?1 c. of legal age1 d. majority must be residents of the &hilippines1 and e. each must own or subscribe to at least one share (Sec. '). >E
OTHER COMPONENTS . Promoter ( A person who, acting alone or with others, ta$es initiative in founding and organizing the business or enterprise of the issuer and receives consideration therefor (Sec. /, R.A. 09). *e is an agent of the incorporators but not of the
corporation Contracts by the promoter for and in behalf of a
2.
3
proposed corporation generally bind only him, subject to and to the extent of his representations, and not the corporation, unless and until after these contracts are ratified, expressly or impliedly, by its 9oard of )irectorsD"rustees (Cagayan
Common shares
5
expressly provided for in the articles of incorporation1 b "he terms and conditions affecting said shares must be stated both in the articles of incorporation and in the certificates of stoc$ representing such shares1 c +edeemable shares may be deprived of voting rights in the articles of incorporation, unless otherwise provided in the Code
"he basic class of stoc$ ordinarily and usually issued
without extraordinary rights and privileges, and the owners thereof are entitled to a pro rata share in the profits of the corporation and in its assets upon dissolution and, li$ewise, in the management of its affairs without preference or advantage whatsoever Common shares or stoc$s represent the residual
ownership interest in the corporation Common shares have complete voting rights "hey
cannot be deprived of said rights except as provided by law 2.
+edeemable shares may be redeemed, regardless of
the existence of unrestricted retained earnings (Sec. 0), provided that the corporation has, after such redemption, sufficient assets in its boo$s to cover debts and liabilities inclusive of capital stoc$
Preferre, shares
Shares with a stated par value which entitle the holder
thereof to certain preferences over the holders of common stoc$ "he preference may be %a0 as to asset1 or %b0 as to dividends1 or %c0 as may be determined by the board of directors when so authorized to do so (The Co!#o!ation Code o the "hili##ines, . *e $eon, 2''2 ed.). Purpose( "o induce more persons to subscribe for shares of a corporation
+edemption may not be made where the corporation is
insolvent or if such redemption would cause insolvency ot inability of the corporation to meet its debts as they mature Such limitation is based on the principle that corporate assets are a trust fund for creditors 3hen redeemable shares are reac'uired, the same
shall be considered retired and no longer issuable unless otherwise provided for in the Articles of #ncorporation Note( 8or tax purposes, there are cases when redemption of shares is considered a scheme to circumvent the tax conse'uences of cash dividends *ence, the amounts received by the shareholders shall be treated as cash dividends because proceeds of redemption in such a case is additional wealth and not merely a return of the capital ("hili##ine Co!#o!ate $a% Co7#ediu7, Ti7oteo A:uino, 2''6 ed.).
&referred
shareholders are not creditors of the corporation et all preferred stoc$ contracts are, fundamentally attempts to endow certain owners with rights analogous to creditor rights and statutes and court decisions on this matter have been concerned, primarily, with the length to which the preferred stoc$ contract can go in extending creditor rights to stoc$holder "he reason why there is an effort to extend such right is to ma$e preferred shares attractive to investors for they can remain as such and at the same time enjoy certain advantages that are available to creditors ("hili##ine Co!#o!ate $a% Co7#ediu7, Ti7oteo A:uino, 2''6 ed.). "imitations( a #f deprived of voting rights, it shall still be entitled to vote on matters enumerated in Section 6, #a!. 6 b &reference must not be violative of the Code c 4ay be issued only with a stated par value d "he board of directors may fix the terms and conditions only when so authorized by the articles of incorporation and such terms and conditions shall be effective upon filing a certificate thereof with the SEC in,s( a Cumulative 2 one which entitles he owner thereof to payment not only of current dividends but also bac$ dividends not previously paid whether or not during the past years dividends were declared or paid b
3.
Re,eema)*e shares
4.
Treasury shares
Shares of stoc$ which have been issued and fully paid
for, but subse'uently reac'uired by the issuing corporation by purchase, redemption, donation or through some other lawful means (Sec. ). "reasury shares are not retired shares "hey do not
form revert to the unissued shares of the corporation but are regarded as property ac'uired by the corporation which may be reissued or resold at a price to be fixed by the 9oard of )irectors (S@C Rules Gove!ning Redee7ale and T!easu!y Sha!es, CC" 1o. ;02).
#f purchased from stoc$holders "he transaction in effect is a return to the stoc$holders of the value of their investment in the company and a reversion of the shares to the corporation "he corporation must have surplus profits with which to buy the shares so that the transaction will not cause an impairment of the capital
#f ac'uired by donation from the stoc$holders "he act
would amount to a surrender of their stoc$ without getting bac$ their investments that are instead, voluntarily given to the corporation "reasury shares need not be sold at par or issued
value but may be sold at the best price obtainable, provided it is reasonable 3hen treasury shares are sold below its par or issued value, there can be no watering of stoc$ because such watering contemplates an original issuance of shares "reasury shares have no voting rights as long as they
remain in treasury %uncalled and subject to reissue0 (Sec. 59) Reason( A corporation cannot in any proper sense be a stoc$holder in itself and e'ual distribution of voting rights will be effectively lost
Shares of stoc$s issued by the corporation which said
corporation can purchase or ta$e up from their holders as expressly provided for in the articles of incorporation and certificate of stoc$ representing said shares at a fixed date or at the option of the issuing corporation or the stoc$holder or both at a certain redemption price "imitations( a +edeemable shares may be issued only when
assets because dividends cannot be declared by a corporation to itself "reasury shares may be declared as property dividend
to be issued out of the retained earnings previously used to support their ac'uisition provided that the amount of the retained earnings has not been subse'uently impaired by losses
6
5.
6.
Foun,ers shares Shares classified as such in the articles if incorporation and issued to organizers and promoters of a corporation in consideration of some supposed right or property such as special preference in voting rights and dividend payments 9ut if an exclusive right to vote and be voted for as director is granted, this privilege is subject to approval by the SEC, and cannot exceed ? years from the date of approval (Sec. 9).
Shares with a right to vote @nder the code, whenever a vote is necessary to
approve a particular corporate act, such vote refers only to stoc$s with voting rights except in certain cases when even non(voting shares may also vote (Sec. 6, #a!. 6 and last #a!.). 7.
Nonotin+ shares
Shares without right to vote "he law only authorizes the denial of voting rights in
the case of redeemable shares and preferred shares, provided that there shall always be a class or series of shares which have complete voting rights "hese redeemable and preferred shares, when such
voting rights are denied, shall nevertheless be entitled to vote on the following fundamental matters Fey ( 6A 2 SI2 MI&9 a. amendment of Articles of #ncorporation b. adoption and amendment of by(laws1 substantially all c. sale or disposition of all or of corporate property1 d. incurring, creating or increasing bonded indebtedness1 e. increase or decrease of capital stoc$ f. merger or consolidation of capital stoc$ g. investments of corporate funds in another corporation or another business purpose1 and h. corporate ,issolution 8.
Share in escro=
Share subject to an agreement by virtue of which the
share is deposited by the grantor or his agent with a third person to be $ept by the escrow agent until the performance of a certain condition or he happening of a certain event contained in the agreement (Cannon v. andley, 2 "hil. /5). "he escrow deposit ma$es the depository a trustee
under an express trust (A!ticles 44' and 44 o the 1e% Civil Code). 9.
Oerissue, stoc Stoc$ issued in excess of the authorized capital stoc$ #t is also $nown as s#u!ious stoc8 #ts issuance is considered null and void
10. $atere, stoc
A stoc$ issued not in exchange for its e'uivalent value
either in cash, property, share, stoc$ dividends, or services “3ater! in the stoc$ represents the difference between
the fair mar$et value at the time of the issuance of the stoc$ and the par or issued value of said stoc$ 9oth par and no par stoc$s can thus be watered stoc$s #t includes stoc$s
a #ssued without consideration (onus sha!e) b #ssued as fully paid when the corporation has received a lesser sum of money than its par or issued value (discount sha!e) c #ssued for a consideration other than actual cash such as property or services, the fair valuation of
which is less than its par or issued value d #ssued as stoc$ dividend when there are no sufficient retained earnings to justify it 11. Par a*ue shares
Shares with a value fixed in the articles of incorporation and the certificates of stoc$ A&reater protection to creditors
&ISA&
@nli$elihood of sale of subse'uently issued shares at a lower price @nli$elihood of distribution of dividends that are only ostensible profits 2. No par a*ue shares Shares having no par value but have issued value stated in the certificate or articles of incorporation A&
Enjoy wider distribution because of it being low(priced "ell no untruth concerning the value of the stoc$holder:s contribution 4ore easily issued, thereby simplifying accounting procedures
&ISA&
=esser protection creditors
to
"imitations( (
A stoc$ certificate endorsed by the registered holder in blan$ and the transferee can command its transfer to his name from the issuing corporation 13. Conerti)*e share
A share that is changeable by the stoc$holder from one class to another at a certain price and within a certain period
7
c. &ayment of filing and publication fees d. #ssuance by the SEC of the certificate of
8. Fractiona* share A share with a value of less than one full share G $HEN C"ASSIFICATION OF SHARES MA% E MA&E %The Co!#o!ation Code o the "hili##ines, ecto! S. *e $eon + ecto! . *e $eon, -!., 2''6 ed.) ( 1. y the incorporators 2 "he classes and number of shares which a corporation shall issue are first determined by the incorporators as stated in the articles of incorporation filed with the SEC y the oar, of &irectors an, the Stocho*,ers 2 After the corporations comes into existence, they may be altered by the board of directors and the stoc$holders by amending the articles of incorporation pursuant to Sec -5 A corporation may issue such classes or series of
incorporation Forma* Or+aniation an, Commencement of the Transaction of usiness "hese are conditions subse'uent, which may be satisfied by substantial compliance in order that a corporation may legally continue as such Forma* or+aniation( a. Adoption of 9y(=aws and filing of the same with the SEC1 b. Election of board of directorsDtrustees, and officers1 c. Establishment of principal office1 d. &roviding for subscription and payment of capital stoc$
shares as the prospects and needs of its business may re'uire 8urthermore, it may classify its shares for the purpose of insuring compliance with constitutional or legal re'uirements (Sec. 6, #a!. 4).
ARTIC"ES OF INCORPORATION 6AI9 "he document prepared by the persons establishing a corporation and filed with the SEC containing the matters re'uired by the Code
Shares may also be issued in different classes to
"he Articles of #ncorporation have been described as
create preferences or to deny or grant certain rights eg voting or non(voting shares &OCTRINE OF EG!A"IT% OF SHARES 3here the articles of incorporation do not provide for any distinction of the shares of stoc$, all shares issued by the corporation are presumed to be e'ual and enjoy the same rights and privileges and are also subject to the same liabilities (Sec. 6, #a!. 5). &EFINITION OF TERMSEFINITION O -. Capita* Stoc or "e+a* Stoc or State, Capita* ( "he amount fixed in the corporate charter to be subscribed and paid in cash, $ind or property at the organization of the corporation or afterwards and upon which the corporation is to conduct its operation Capita* 2 "he value of the actual property or estate of the corporation whether in money or property #ts net worth %or stoc$holder:s e'uity0 is its assets less its liabilities G Authorie, Capita* Stoc ( "he capital stoc$ divided into shares H Su)scri)e, Capita* Stoc ( "he total amount of the capital stoc$ subscribed whether fully paid or n ot ? Outstan,in+ Capita* Stoc ( "he portion of the capital stoc$ issued to subscribers, whether fully paid or partially paid %as long as there is a binding subscription contract0 except treasury stoc$s (Sec. /9). 5 !nissue, Capita* Stoc 2 "he portion of the capital stoc$ that is not issued or subscribed #t does not vote and draws no dividends / "e+a* Capita* ( "he amount e'ual to the aggregate par value andDor issued value of the outstanding capital stoc$ I State, Capita* 2 "he capital stoc$ divided into no par value shares . Pai,up Capita* 2 "he amount paid by the stoc$holders on subscriptions from unissued shares of the corporation
one that defines the charter of the corporation, and the contractual relationships between the State and the corporation, the stoc$holder and the State, and between the corporation and its stoc$holders ($anu>a v. CA GR 1o.//4, a!ch 20, 2''5). Si+nificance( - "he issuance of a certificate of incorporation signals the birth of the corporation:s juridical personality1 #t is an essential re'uirement for the existence of a corporation, even a de facto one Contents (Sec. 4)( . Corporate Name (Sec. 0) "he corporation ac'uires juridical personality under the name stated in the certificate of incorporation #t is the name of the corporation which identifies and distinguishes it from other corporations, firms or entities A corporation:s right to use its corporate and trade
name is a property right, a right in !e7 which it may assert or protect against the whole world in the same manner as it may protect its tangible property against trespass or conversion ("hili#s @?#o!t B.&. vs. CA, 2'6 SCRA 459). Statutory *imitation( "he proposed name must not be a. identical1 or b. deceptively or confusingly similar to that of any existing corporation or to any other name already protected by law1 or c. patently deceptive, confusing or contrary to law Reme,ies of corporation =hose name has )een a,opte, )y another( 1. #njunction 2. )e(registration
PRI
STEPS IN THE CREATION OF A CORPORATION - Promotion 2 A promoter is a person who, acting alone or with others, ta$es initiative in founding and organizing the business or enterprise of the issuer and receives consideration therefor (Sec. /.', SRC) 2. Incorporation Steps( a. )rafting and execution of Articles of #ncorporation by the incorporators and other documents re'uired for registration of the corporation b. 8iling with the SEC of the articles of incorporation
A corporation can change the name originally selected
by it after complying with the formalities prescribed by law, to wit amendment of the articles of incorporation and filing of the amendment with the SEC (Sec. 6). An authorized change in the name of the corporation,
whether effected by a special act or under a general law, has no more effect upon its identity as a corporation than a change of name of natural person upon his identity #t does not affect the property, rights, or liabilities of the corporation, nor lessen or add to its obligations #t is in no sense a new corporation, nor the successor of the original corporation #t is the same corporation with a different name and its character is in
8
no respect changed (Re#. "lante!s Ban8 vs. CA, 26 SCRA 9/0).
creation of a new corporation % The Co!#o!ation Code o the "hili##ines, ecto! S. *e $eon + ecto! . *e $eon, -!., 2''6 ed.)
2. Purpose C*ause Si+nificance( a A person who intends to invest his money in the business corporation will $now where and in what $ind of business or activity his money will be invested1 b. "he directors and the officers of the corporation will $now within what scope of business they are authorized to act1 and c. A third person who has dealings with the corporation may $now by perusal of the articles whether the transaction or dealing he has with the corporation is within the authority of the corporation or not "imitations( a. &urpose or purposes must be lawful1 b. &urpose or purposes must be stated with sufficient clarity1 c. #f there is more than one purpose, the primary as well as the secondary purpose must be specified1 and d. &urposes must be capable of being lawfully combined
"he expiration of the term for which the corporation
A corporation the primary object of which is without
statutory authority can have no lawful existence, even though some of its declared purposes may be lawful 3.
Principa* Office
"he articles of incorporation must state the place
where the principal office of the corporation is to be established or located, which place must be within the &hilippine (Sec. 4 /). Purpose( "o fix the residence of the corporation in a definite place, instead of allowing it to be ambulatory (oung Auto Su##ly Co. vs. CA, 22/ SCRA 69'). #t is now re'uired by the SEC that all corporations and
partnerships applying for registration should state in their Articles of #ncorporation the specific address of their principal office, which shall include, if feasible, the strict number1 street name1 barangay1 city or municipality1 and specific residence address of each incorporator, stoc$holder, director or trustee in line with the full disclosure re'uirement of existing laws (S@C Ci!c. 1o. /, Se!ies o 2''6). 8. Term of EDistence (Sec. ) "he corporation shall exist for the term specified in the articles of incorporation not exceeding ?6 years, unless sooner legally dissolved or unless its registration is revo$ed upon any of the grounds provided by law "he corporate life may be reduced or extended by
amendment of the articles of incorporation by complying with the procedural re'uirements laid down in Sec G/ "he extension of corporate term is subject to the
following limitations a. "he term shall not exceed ?6 years in any one instance1 b. "he amendment is effected before the expiration of the corporate term of existence, for after dissolution by expiration of the corporation term there is no more corporate life to extend (Alha7!a Ciga! vs. S@C, 24 SCRA 26). c. "he extension cannot be made earlier than ? years prior to the expiration date unless there are justifiable reasons therefore as may be determined by the SEC "he mere extension of the corporate term of existence
was created does not, however, produce its immediate dissolution for all purposes (Sec. 22). &OCTRINE OF RE"ATION OR RE"ATIN# AC &OCTRINE "he filing and recording of a certificate of extension after the term cannot relate bac$ to the date of the passage of the resolution of the stoc$holders to extend the life of the corporation *owever, the doctrine of relations applies if the failure to file the application for extension within the term of the corporation is due to the neglect of the officer with whom the certificate is re'uired to be filed or to a wrongful refusal on his part to receive it ("hili##ine Co!#o!ate $a% Co7#ediu7, Ti7oteo A:uino, 2''6 ed.) Incorporators (See &I. Co7#onents o a Co!#o!ation) :
&irectors an, Trustees "he 9oard of )irectors is the governing body in a stoc$ corporation while 9oard of "rustees is the governing body in a non(stoc$ corporation "hey exercise the powers of the corporation (Revie%e! in Co77e!cial $a%, -ose R. Sundiang + Ti7oteo A:uino, 2''5 ed.). Matters re'uire, to )e state, in the AI( a. a statement of the names, nationalities and residences of the incorporating directors or the persons who shall act as such until the first regular directors or trustees are duly elected and 'ualified in accordance with the law b. the number of directors or trustees, which shall not be less than ? but not more than -? EDceptions( - educational corporations registered as non( stoc$ corporation whose number of trustees though not less than five and not more than fifteen should be divisible by five1 and in close corporation where all the stoc$holders are considered as members of the board of directors thereby effectively allowing twenty members in the board (Co!#o!ation Code o the "hili##ines,Ruen C. $adia, 2'' ed.). /. Capita*iation Matters re'uire, to )e state, in the AI( a. the amount of its authorized capital stoc$ in lawful money of the &hilippines1 b. the number of shares and $ind of shares into which it is divided1 c. in case the shares are par value shares, the par value of each1 d. the names, nationalities and residences of the original subscribers1 e. the amount subscribed and paid by each on his subscription1 f. sworn statement of the treasurer elected by the subscribers showing that at least ?7 of the authorized capital stoc$ of the corporation has been subscribed1 g. sworn statement of the treasurer elected by the subscribers showing that at least ?7 of the total subscription has been fully paid to him in actual cash andDor in property the fair valuation of which is e'ual to at least ?7 of the said subscription1 and h. sworn statement of the treasurer elected by the subscribers showing that such paid(up capital being not less that five thousand pesos
made before the expiration of the original term constitutes a continuation of the old, and not the
9
CAPITA" STOC REG!IREMENT G@1@RA$ R3$@ eneral Agent 2 & ?6,66666 2. G +einsurance 9ro$er 2 & 6? 4 provided that at least ?7 of the authorized capital stoc$ has been subscribed and at least ?7 of the total subscription must be paid(up
!p to Thirty Percent 637;9 Forei+n E'uity - Advertising (A!t. D&I, Sec. o the Constitution) !p to Forty Percent 687;9 Forei+n E'uity - Exploration, development and utilization of natural resources (A!t. DII, Sec. 2 o the Constitution) Bwnership of private lands (A!t. DII, Sec. 9 o the ConstitutionF Ch. 5, Sec. 22 o CA 4F Sec. 4 o RA 02) G Bperation and management of public utilities (A!t. DII, Sec. o the ConstitutionF Sec. 6 o CA 46) H BwnershipDestablishment and administration of educational institutions (A!t. DI&, Sec. 4 o the Constitution) ? Culture, production, milling, processing, trading excepting retailing, of rice and corn and ac'uiring, by barter, purchase or otherwise, rice and corn and the by(products thereof (Sec. 5 o "* 4FSec. 5 o RA 0962 5 Contracts for the supply of materials, goods and commodities to government(owned or controlled corporation, company, agency or municipal corporation (Sec. o RA 50/) / &roject &roponent and 8acility Bperator of a 9B" project re'uiring a public utilities franchise (A!t. DII, Sec. o the ConstitutionF Sec. 2a o RA 990) I Bperation of deep sea commercial fishing vessels (Sec. 29 o RA 055') . Adjustment Companies (Sec. /2/ o "* 62 as a7ended y "* 04) -6 Bwnership of condominium units where the common areas in the condominium project are co( owned by the owners of the separate units or owned by a corporation (Sec. 5 o RA 4926)
FI"IPINO PERCENTA#E O$NERSHIP REG!IREMENT No Forei+n E'uity 1. 4ass 4edia except recording (A!t. D&I, Sec. o the ConstitutionF "!esidential e7o!andu7 dated '4 ay 4) 2. &ractice of all professions G +etail trade enterprises with paid(up capital of less than @SJ,?66,666 (Sec. 5 o RA 0962) H Cooperatives %Ch. III, A!t. 26 o RA 6/0) ? &rivate Security Agencies (Sec. 4 o RA 5409) 5 Small(scale 4ining (Sec. / o RA 9'96) / @tilization of 4arine +esources in archipelagic waters, territorial sea, and exclusive economic zone as well as small(scale utilization of natural resources in rivers, la$es, bays, and lagoons (A!t. DII, Sec. 2 o the Constitution) I Bwnership, operation and management of coc$pits (Sec. 5 o "* 44) . 4anufacture, repair, stoc$piling andDor distribution of nuclear weapons (A!t. II, Sec. 0 o the Constitution) -6 4anufacture, repair, stoc$piling andDor distribution of biological, chemical and radiological weapons and anti(personnel mines (&a!ious t!eaties to %hich the "hili##ines is a signato!y and conventions su##o!ted y the "hili##ines) 11. 4anufacture of firecrac$ers and other pyrotechnic devices (Sec. 5 o RA 90/)
0
!p to T=enty Percent 627;9 Forei+n E'uity - &rivate radio communications networ$ (RA /046)
"he issuance of the articles calls the corporation into
!p to T=entyFie Percent 62;9 Forei+n E'uity - &rivate recruitment, whether for local or overseas employment (A!t. 29 o "* 442) Contracts for the construction and repair of locally(funded public wor$s (Sec. o CA 54, $EI 6/') except a. infrastructureDdevelopment projects covered in +A //-I1 and b. projects which are foreign funded or assisted and re'uired to undergo international competitive bidding (Sec. 2a o RA 990) G Contracts for the construction of defense(related structures (Sec. o CA 54)
!p to SiDty Percent 6:7;9 Forei+n E'uity - 8inancing companies regulated by the Securities and Exchange Commission (Sec. 6 o RA 50' as a7ended y RA 0556) #nvestment houses regulated by the SEC (Sec. 5 o "* 2 as a7ended y RA 0/66) Shares of Stoc (See DIII. Stoc8s and Stoc8holde!s)
COMMENCEMENT OF CORPORATE EKISTENCE A corporation commences to have juridical personality
and legal existence only from the moment the SEC issues to the incorporators a certificate of incorporation under its official seal #t is the certificate of incorporation that gives juridical
personality to a corporation and placed it under the jurisdiction of the commission #n the case of religious corporations, the Code does not
re'uire the SEC to issue a certificate of incorporation #n fact, Sec -- clearly states that from and after the filing with the Commission of the articles of incorporation, the chief archbishop shall become a corporation sole being but it is not really ready to do business until it is organized "he corporation must formally organized and commence the transaction of its business or the construction of its wor$s within two years from the date of its incorporation or, otherwise, its corporate powers shall cease and it shall be deemed dissolved (Sec. 22.) AMEN&MENT OF ARTIC"ES OF INCORPORATION Proce,ure( 1. +esolution by at least a majority of the board of directors or trustees1 2. ;ote or written assent of the stoc$holders representing at least DG of the outstanding capital stoc$ s or DG of the members in case of non(stoc$ corporations 3. Submission and filing with the SEC of a the original and amended articles together
10
containing all the provisions re'uired by law to be set out in the articles of incorporation Such articles, as amended, shall be indicated by underscoring the change or changes made1 b a copy thereof, duly certified under oath by the corporate secretary and a majority of the directors or trustees stating the fact that such amendments have been duly approved by the re'uired vote of the stoc$holders or members1 and c a favorable recommendation of the appropriate government agency concerned if re'uired by law
capital stoc$ subscribed andDor paid is false1 H "hat the re'uired percentage of ownership of the capital stoc$ to be owned by citizens of the &hilippines has not been complied with as re'uired by existing laws or the constitution
"imitations( - "he amendment of any provision or matters stated in the articles of incorporation is not allowed when it will be contrary to the provisions or re'uirement prescribed by the Code or by special law or changes any provision in the articles of incorporation stating an accomplished fact1 #t must be for legitimate purposes1 G #t must be approved by the re'uired vote of the board of directors or trustees and the stoc$holders or members1 H "he original articles and amended articles together must contain all provisions re'uired by law to be set out in the articles of incorporation1 ? Such articles, as amended, must be indicated by underscoring the changes made, and a copy thereof duly certified under oath by the corporate secretary and a majority of the directors or trustees stating that the amendments have been duly approved by the re'uired vote of the stoc$holders or members must be submitted to the SEC1 5 "he amendments shall ta$e effect only upon their approval by the SEC1
incorporation or disapproving any amendment thereto is appealable by petition for review to the Court of Appeals in accordance with the pertinent provisions of the +ules of Court
*owever, express approval is not indispensable
"his is because the amendment shall also ta$e effect from the date of filing with the said Commission if it is not acted upon by the Commission within 5 months from the date of filing for a cause not attributable to the corporation / #f the corporation is governed by special law, the amendments must be accompanied by a favorable recommendation of the appropriate government agency1 I
"hese grounds are not exclusive 9efore rejecting the Articles of #ncorporation or its
amendments, the SEC should give the incorporators reasonable time within which to correct or modify the objectionable portions of the articles or amendments Any decision of the Commission rejecting the articles of
All the grounds enumerated in Section -/ can be
determined on the basis of the Articles of incorporation itself and the other re'uired documents >enerally, if the Articles of #ncorporation and its supporting documents are in order, the SEC has no recourse but to issue the Certificate of #ncorporation ("hili##ine Co!#o!ate $a% Co7#ediu7, Ti7oteo A:uino, 2''6 ed.). #roun,s for Suspension or Reocation of Certificate of Re+istration ("!es. *ec!ee 1o. '2;A) - 8raud in procuring its certificate of incorporation Serious misrepresentation as to what the corporation can do or is doing to the great prejudice of, or damage to, the general public G +efusal to comply with or defiance of a lawful order of the SEC restraining the commission of acts which would amount to a grave violation of its franchise H Continuous inoperation for a period of at least ? years ? 8ailure to file the by(laws within the re'uired period 5 8ailure to file re'uired reports EFFECTS OF NON!SE OF CORPORATE CHARTER (Sec. 22) #f a corporation does not formally organize and
commence the transaction of its business or the construction of its wor$s within years from the date of incorporation, its corporate powers cease and the corporation shall be deemed dissolved #f a corporation has commenced transaction of its
business but subse'uently becomes continuously inoperative for a period of at least ? years, the same shall be a ground for the suspension or revocation of its corporate franchise or certificate of incorporation #f the non(use of corporate charter or continuous
inoperation of a corporation is due to causes beyond its control as found by the Commission, the effects mentioned shall not ta$e place &E FACTO CORPORATION A corporation which actually exists for all practical purposes as a corporation but which has no legal right to corporate existence as against the State #t is one which has not complied with all the re'uirements necessary to be a de jure corporation but has complied sufficiently to be accorded corporate status as against third parties although not against the state Re'uisites( 1. "he existence of a valid law under which it may be incorporated1 2. A bona fide attempt in good faith to incorporate under such law1 3. Actual use or exercise in good faith of corporate powers1 and 4. #ssuance of a certificate of incorporation by the SEC as a minimum re'uirement of continued good faith #n the case of a de facto corporation, the only way in
which its corporate existence can be 'uestioned is in a direct proceeding by the State, brought for that
11
purpose &rivate individuals cannot raise the objection in such a case, either directly or indirectly, and nobody can raise the objection collaterally % The Co!#o!ation Code o the "hili##ines, ecto! S. *e $eon + ecto! . *e $eon, -!., 2''6 ed.) Such a corporation is practically as good as a de jure
corporation #t is deemed to have a substantial legal existence and ordinarily, in its relation with all persons except the State, has the same powers and is subject to the same liabilities, duties and responsibilities, as a corporation de jure, and is bound by all such acts as it might rightfully perform if it were a corporation de jure %The Co!#o!ation Code o the "hili##ines, ecto! S. *e $eon + ecto! . *e $eon, -!., 2''6 ed.)
without voting rights in the board (G!ace Ch!istian igh School v. CA 20 SCRA // Ectoe! 2/, 9). A majority of the directorsDtrustees must be residents of the &hilippines (Sec. 2/). G *e must not have been convicted by final judgment of an offense punishable by imprisonment for a period exceeding 5 years or a violation of the Corporation Code, committed within five years from the date of his election (Sec. 29). H Bnly natural persons can be elected directorsDtrustees #n case of corporate stoc$holders or members,
"he officers and directors of a de facto corporation are
subject to all the liabilities and penalties attending to officers and directors duly chosen by a corporation de jure, including the liability under the criminal law, and their acts are binding when such acts would be within the power of such officers if the corporation were one de jure %The Co!#o!ation Code o the "hili##ines, ecto! S. *e $eon + ecto! . *e $eon, -!., 2''6 ed.). CORPORATION % ESTOPPE" An unincorporated association which represented itself to be a corporation will be estopped from denying its corporate capacity in a suit against it by a third person who relied in good faith on such representation, liabilities and damages incurred or arising as a result thereof
A corporation by estoppel has no real existence in law #t is neither a de jure nor a de facto corporation, but is a mere fiction existing for the particular case, and vanishing where the element of estoppel is absent #t exists only between the persons who misrepresented their status and the parties who relied on the misrepresentation #ts existence may be attac$ed by any third party except where the attac$ing party is estopped to treat the entity other than as a corporation
All persons not stoc$holders or members who assume to act as a corporation $nowing it to be without authority to do so shall be liable as general partners for all debts, liabilities, and damages incurred or arising as a result thereof (Sec.2).
3hen any such ostensible corporation is sued on any transaction entered by it as a corporation or on any tort committed by it as such, it shall not be allowed to use as a defense its la c$ of corporate personality (Sec. 2).
A third party who, $nowing an association to be unincorporated, nonetheless treated it as a corporation and received benefits from it, may be barred from denying its corporate existence in a suit brought against the alleged corporation ($i7 Tong $i7 vs. "hil.
IK. OAR& OF &IRECTORS AN& TR!STEES Gua*ifications( - 8or a stoc$ corporation, ownership of at least - share capital stoc$ of the corporation in his own name, and if he ceases to own at least one share in his own name, he automatically ceases to be a director (Sec. 2/). 8or a non(stoc$ corporation, only members of the corporation can be elected to the 9oard of "rustees #n order to be eligible as a director, what is material
is the legal title to, not beneficial ownership of the stoc$s appearing on the boo$s of the corporation A person who does not own a stoc$ at time of his
election or appointment does not dis'ualify him as a director if he becomes a shareholder before assuming the duties of his office A person who is not a stoc$holder cannot be a
? 5
their representation in the board can be achieved by ma$ing their individual representatives trustees of the shares or membership to ma$e them stoc$holdersDmembers of record Bther 'ualifications as may be prescribed in the by( laws of the corporation 4ust be of legal age
E*ection of oar, Mem)ers (Secs. 24; 25) STOC NONSTOC CORPORATION CORPORATION Bwners of a majority A majority of the of the outstanding members entitled to capital stoc$, in vote, in person or by person or by their proxy, if allowed in its authorized articles of representative as incorporation or by( such by written proxy, laws, must be present must be present at in the election the election of the directors Cumulative voting is Cumulative voting is mandatory1 a matter generally not of right granted by available unless law to each allowed by the stoc$holder with articles of voting rights incorporation or by( laws, since each member is entitled only to one vote Metho,s of
a statutory right, a corporation is without power to deprive the stoc$holders of its use or even restrict the right to vote to only one way or method A stoc$holder may or may not exercise the right as he shall see fit (S@C E#inion, Ect. 2', 64).
#n electing directors by cumulative voting, the total
number of votes cast by a stoc$holder shall not exceed the number of shares owned by him as shown in the boo$s of the corporation multiplied by the whole number of directors to be elected 4embers of non(stoc$ corporations may cast as
many votes as there are trustees to be elected but may cast not more than one vote for one candidate "his is the manner of voting in non( stoc$ corporations unless otherwise provided in the articles of incorporation
director, but he can be an e? oicio member
12
"imitations on the E*ection of &irectors?Trustees - At any meeting of stoc$holder or members called for the election of directors or trustees, there must be present either in person or by representative authorized to act by written proxy, the owners of the majority of the outstanding capital stoc$ or majority of the members entitled to vote "he election must be by ballot if re'uested by any voting member or stoc$holder G A stoc$holder cannot be deprived in the articles of incorporation or in the by(laws of his statutory right to use any of the methods of voting in the election of directors H
"here is no need to follow the procedure under Section
I if the director is dis'ualified 9y operation of law, such director is dis'ualified to act as director thereby creating vacancies in the 9oard 4ere declaration of the dis'ualification as the cause of the vacancy is sufficient (S@C E#inion,
of the president or on the written demand of the stoc$holders representing a majority of the outstanding capital stoc$ or majority members entitled to vote "he law also provides that should the secretary fail or
refuse to call the special meeting upon such demand or fail or refuse to give the notice, or if there is no secretary, the call for the meeting may be addressed directly to the stoc$holders or members by any stoc$holder or member of the corporation signing the demand
that the amount to be given shall not exceed -67 of the net income before income tax of the corporation during the preceding year CORPORATE OFFICERS - &resident 2 must be a director and he may not be concurrently the treasurer or secretary "reasurer 2 may or may not be a director1 as a matter of sound corporate practice, must be a resident G Secretary 2 need not be a director unless re'uired by the by(laws1 must be a resident and citizen of the &hilippines1 and H Such other officers as may be provided in the by(laws CORPORATE OFFICER &osition is provided for in the by(laws or under the Corporation Code +"C has jurisdiction in case of labor dispute
CORPORATE EMP"O%EE Employed by the action of the managing officer of the corporation <=+C has jurisdiction in case of labor disputes
13
Authority of Officers is +enera**y ,erie, from( 1. =aw 2. 9y(laws 3. Authorization from the 9oard, either expressly or impliedly by habit, custom or ac'uiescence in the general course of business (Inte!;Asia Invest7ent Indust!ies v. CA GR no. 25990, -une ', 2''/). EDtent of Po=ers or Authority of Corporate Officers - "he authority which he has by virtue of his office1 "he authority which is expressly conferred upon him or is incidental to the effectualness of such express authority1 G As to third persons dealing with him without notice of any restriction thereof, the authority which the corporation holds the officer out as possessing or is estopped to deny H "he nature of the corporate business must also be ta$en into consideration1 and ? "he nature act of an officer though originally unauthorized may become binding upon the corporation by a subse'uent ratification (The Co!#o!ation Code o the "hili##ines Annotated, ecto! de $eon, 2''2 ed.). #t is a familiar doctrine that if a corporation $nowingly
permits one of it officers, or any other agent, to act within the scope of an apparent authority, it holds him out to the public as possessing the power to do those acts1 and thus, the corporation will, as against anyone who has in good faith dealt with it through such agent, be estopped from denying the agent:s authority ($a#u; $a#u
#ts existence may be ascertained through 1. the general manager in which the corporation holds out an officer or agent as having the power to act or, in other words the apparent authority to act in general, with which it clothes him1 or 2. the ac'uiescence in his acts of a particular nature, with actual or constructive $nowledge thereof, within or beyond the scope of his ordinary powers (Inte!;Asia Invest7ent Indust!ies, Inc. vs. CA, G.R. 1o. 25990, -une ', 2''/). OAR& OF &IRECTORS?TR!STEES AS REPOSITOR% OF CORPORATE PO$ERS G@1@RA$ R3$@ "he corporate powers of the corporation shall be exercised, all business conducted and all property of such corporation controlled and held by the board of directors or trustees (Sec. 2/). Section G of the Corporation Code expressly provides that all corporate powers shall be exercised by the board Kust as natural person may authorize another to do certain acts in its behalf, so may the board validly delegate some of its functions to individual officer or agents Absent such valid delegation, the rule is that the declarations of an individual director relating to the affairs of the corporation, but not in the course of, or connected with the performance of authorized duties of such director, are held not binding on the corporation (A< Realty + *evt v. *iesel7an
@DC@"TIE1S 1. #n case of an Executive Committee duly authorized in the by(laws1 2. #n case of a contracted manager which may be an individual, a partnership, or another corporation Note( #n case the contracted manager is another corporation, the special rule in Sec HH appli es G #n case of close corporations, the stoc$holders may directly manage the business of the corporation instead, if the articles of incorporation so provide "he power to purchase real property is vested in the
board of directors or trustees 3hile a corporation may appoint agents to negotiate for the purchase of real property needed by the corporation, the final say will have to be with the board, whose approval will finalize the transaction A corporation can only exercise its powers and transact its business through its board of directors and through its officers and agents when authorized by a board resolution or by its by(laws (S#ouses Constantine
directors usually refer only to the ordinary business transactions of the corporation and does not extend beyond the management of ordinary corporate affairs nor beyond the limits of its authority (S@C E#inion, ay 2, 4). Nature of po=ers of )oar, of ,irectors or trustees (The Co!#o!ation Code o the "hili##ines Annotated, ecto! de $eon, 2''2 ed.) - @nder the "heory of Briginal &ower, the powers of the board of directors or trustees are B+#>#A"E) "he stoc$holders or members do not confer, nor can they revo$e those powers "hey are )E+#;A"#;E only in the sense of being received from the State in the act of incorporation !SINESS !&#MENT R!"E Courts cannot underta$e to control the discretion of the board of directors about administrative matters as to which they have the legitimate power of action, and contracts intra vires entered into by the board of directors are binding upon the corporation and courts will not interfere unless such contracts are so unconscionable and oppressive as to amount to a wanton destruction of the rights of the minority (Ga7oa vs. &icto!iano, ' SCRA 4'). Conse'uences( - +esolutions and transactions entered into by the 9oard within the powers of the corporation cannot be reversed by the courts not even on the behest of the stoc$holders )irectors and officers acting within such business judgment cannot be held personally liable for such acts ("hili##ine Co!#o!ate $a%, Cesa! &illanueva, 2'' ed.). "IAI"IT% OF &IRECTORS@ TR!STEES AN& OFFICERS Threefo*, &uties of &irectors ("hili##ine Co!#o!ate $a%, Cesa! &illanueva, 2'' ed.) 1. &uty of O)e,ience "o direct the affairs of the corporation only in accordance with the purposes for which it was organized
14
asis( "he directors or trustees and officers to be elected shall perform the duties enjoined on them by law and the by(laws (Sec. 25). &uty of &i*i+ence 2. )irectors and officers are re'uired to exercise due care in the performance of their functions asis( )irectors or trustees who willfully and $nowingly vote for or assent to patently unlawful acts of the corporation or who are guilty of gross negligence or bad faith in directing the affairs of the corporation shall be liable jointly and severally for all damages resulting therefrom suffered by the corporation, its stoc$holders or members and other persons (Sec. /). G &uty of "oya*ty "he director or officer owes loyalty and allegiance to the corporationLa loyalty that is undivided and an allegiance that is influenced by no consideration other than the welfare of the corporation asis( )irectors or trustees who ac'uire any pecuniary or personal interest in conflict with their duty as such directors or trustees shall be liable jointly and severally for all damages resulting therefrom (Sec. /). 3hen a director or trustee attempts to ac'uire or
ac'uires in violation of his duty, any interest adverse to the corporation in respect of any matter which has been reposed in him in confidence as to which e'uity imposes a liability upon him to deal in his own behalf, he shall be liable as trustee for the corporation and must account for all the profits which otherwise would have accrued to the corporation (Sec. /, #a!. 2) 3here a director, by virtue of his office, ac'uires for himself a business opportunity which should belong to the corporation, thereby obtaining profits which should belong to the corporation, he must account to the latter for all such profits by refunding the same (Sec. /4) %)BC"+#
it1 or %0 he is negligent in not discovering or acting to prevent it (Co!#o!ation Code o the "hili##ines, Ruen C. $adia, 2'' @d.). Par. 1 of Sec. 31 applies to directors or trustees "he
erring directorDtrustee shall be liable jointly and severally for all damages resulting therefrom suffered by the corporation, its stoc$holders or members and other persons Par. 2 of Sec. 31 applies to directors, trustees, or
officers who attempts to ac'uire or ac'uires, in violation of his duty, any interest adverse to the corporation in respect of any matter which has been reposed in him in confidence *e shall be liable as a trustee for the corporation and must account for the profits which otherwise would have accrued to the corporation Reme,ies in case of Mismana+ement - +eceivership1 #njunction, if the act has not yet been done1 G )issolution if the abuse amounts to a ground for the institution of a :uo %a!!anto proceeding but the Solicitor >eneral refuses to act1 and H )erivative suit or complaint filed with SEC Specia* Ru*es on Contracts entere, into )y &irectors?Trustees or Officers . Contracts of Se*f,ea*in+ &irectors@ Trustees or Officers (Sec. /2) Self(dealing directors, trustees or officers are those
who personally contract with the corporation in which they are directors, trustees, or officers Such contracts are ;B#)A9=E, at the option of the
corporation unless a. "he presence of such directorDtrustee in the board meeting approving the contract was not necessary to constitute a 'uorum for such meeting1 "he vote of such directorDtrustee in the board b. meeting approving the contract was not necessary for the approval of the contract1 c. "he contract is fair and reasonable under the circumstances1 d. #n the case of an officer, there was previous authorization by the board of directors
3hile both the second paragraph of Section / and
Section /4 covers the same subject matter which is business opportunity, they differ in the following sense
SECTION 3@ 2 n, para+raph Applicable to directors, trustees and officers )oes not allow ratification of a transaction by a self( dealing directors, trustees or officers
SECTION 38 Bnly applicable directors
to
Allows the ratification of a transaction by a dealing directors, i.e. by the votes of stoc$holders representing DG of the outstanding capital stoc$
Persona* "ia)i*ity of &irectors G@1@RA$ R3$@ )irectors and officers are not solidarily liable with the corporation @DC@"TIE1S #n the following cases, personal liability may be incurred by directors and trustees, or in appropriate cases, the officers of the corporation, when theyL 1. 3illfully and $nowingly vote for and assent to patently unlawful acts of the corporation1 (Sec. /) 2. Are guilty of gross negligence or bad faith in directing the affairs of the corporation1 (Sec. /) 3. Ac'uire any personal or pecuniary interest in conflict of their duty1 (Sec. /) 4. Consent to the issuance of watered stoc$s, or, having $nowledge thereof, fails to file objections with the secretary1 (Sec. 65) 5. Agree or stipulate in a contract to hold himself personally liable with the corporation1 or 6. 9y virtue of a specific provision of law A director is not liable for misconduct of co(directors or
other officers unless %-0 he connives or participates in
Although not all conditions are present, the corporation
may elect not to attac$ or 'uestion the validity of the contract, without prejudice, however, to the liability of the directorDtrustee for damages under Sec G- 3here any of the first two conditions is absent, said
2
contract may be ratified by the vote of the stoc$holders representing at least DG of the outstanding capital stoc$ or DG of the members in a meeting called for the purpose, provided that full disclosure of the adverse interest of the directorD trustee involved is made at such meeting and the contract is fair and reasonable Contracts of Inter*ocin+ &irectors (Sec. //)
Contracts entered into between corporations with
interloc$ing directors %interest of said directors is “substantial!, ie exceeding 67 of the outstanding capital stoc$0 #nterloc$ing directorship by itself is not prohibited under
the Corporation Code *owever, the by(laws may contain provisions that disallow interloc$ing directorship A contract between or more corporations having
interloc$ing directors shall not be invalidated on that ground alone "hese contracts are valid, provided that
a "he contract is not fraudulent1 and b "he contract is fair and reasonable under the circumstances #f the interloc$ing director:s interest in one corporation
or corporations is “nominal! %not exceeding 67 of the outstanding capital stoc$0, then all the conditions prescribed in Sec. /2 on self(dealing directors must be
15
present with respect to the corporation in which he has nominal interest 3. &octrine of Corporate Opportunity (Sec. /4) "his is consistent with the duty of loyalty of a director
L which mandates that he should not give preference to his own amelioration by ta$ing the opportunity of the corporation App*ica)i*ity( @nless his act is ratified, a director shall refund to the corporation all the profits he realizes on a business opportunity which 1. the corporation is financially able to underta$e1 2. from its nature, is in line with corporations business and is of practical advantage to it1 and 3. the corporation has an interest or a reasonable expectancy "he rule shall be applied notwithstanding the fact that
the director ris$ed his own funds in the venture A
business opportunity ceases to be corporate opportunity and transforms to personal opportunity where the corporation refuses or is definitely no longer able to avail itself of the opportunity (S@C E#inion, a!ch 4, 02).
EKEC!TI
board to the extent provided for in the resolution of the board or in the by laws 4ay act by a majority vote of all of its members #ts decisions are not subject to appeal to the board
*owever, if the resolution of the Executive Committee is invalid ie not one of the powers conferred to it0, it may be ratified by the board (S@C E#inion). #f the executive committee is not validly constituted, the
members thereof may be considered as de facto officers (S@C E#inion). "imitations on the Po=ers of the EDecutie Committee #t cannot act on the following 1. 4atters needing stoc$holder approval1 2. 8illing up of board vacancies1 3. Amendment, repeal or adoption of by(laws1 4. Amendment or repeal of any resolution of the 9oard which by its express terms is not amendable or repealable1 and ? Cash dividend declaration CO&E OF CORPORATE #Oovernance shall be applicable to 1. Corporations whose securities are registered or listed1 2. Corporations which are grantees of permitsDlicenses and secondary franchise from the Commission1 and 3. &ublic companies Corporate #oernance( A system whereby shareholders, creditors and other sta$eholders of a corporation ensure that management enhances the value of the corporation as it competes in an increasingly global mar$et place
Man,atory corporate +oernance ru*es are necessary for 2 main reasons( 1. "o overcome the collective action problem resulting from the dispersion among stoc$holders, and 2. "o ensure that the interests of all relevant constituencies are represented K. CORPORATE PO$ERS in,s( - EDpress B those expressly authorized by the Corporation Code and other laws, and its Articles of #ncorporation or Charter Inci,enta* B those that are incidental to the existence of the corporation G Imp*ie, B those that can be inferred from or necessary for the exercise of the express powers Classification of #mplied &owers a Acts in the usual course of business b. Acts to protect debts owing to the corporation c. Acts which involve embar$ing in a different business usually to collect debts out of profits d. Acts to protect or aid employees e. Acts to increase business (The Co!#o!ation Code o the "hili##ines Annotated, ecto! de $eon, 2''2 ed.) #enera* Po=ers an, Capacity (Sec. /6) 1. "o sue and be sued1 2. Bf succession1 3. "o adopt and use of corporate seal1 4. "o amend its Articles of #ncorporation1 5. "o adopt its by(laws1 6. 8or stoc$ corporations issue and sell stoc$s to subscribers and treasury stoc$s1 for non(stoc$ corporations admit members1 7. "o purchase, receive, ta$e or grant, hold, convey, sell, lease, pledge, mortgage and deal with real and personal property, securities and bonds 8. "o enter into merger or consolidation1 9. "o ma$e reasonable donations for public welfare, hospital, charitable, cultural, scientific, civic or similar purposes, provided that no donation is given to any %i0 political party, %ii0 candidate and %iii0 partisan political activity 10. "o establish pension, retirement, and other plans for the benefit of its directors, trustees, officers and employees 11. "o exercise other powers essential or necessary to carry out its purposes Other Po=ers . EDtension ?Shortenin+ of Corporate Term (Sec. /9) Proce,ure( a Approval by a majority vote of the board of directorsDtrustees b 3ritten notice of the proposed action and the time and place of meeting shall be served to each stoc$holder or member either by mail or personal service c +atification by the stoc$holders representing at least DG of the outstanding capital stoc$ or DG of the members in case of non(stoc$ corporations 4ay be used as a means to voluntarily dissolve a
corporation Such voluntary dissolution may be effected by amending the articles of incorporation to shorten the corporate term (Sec. 2'). A dissenting stoc$holder may exercise his appraisal
right
16
2
Po=er to Increase or &ecrease Capita* Stoc (Sec. /0) $ays of Increasin+ Authorie, Capita* Stoc( a 9y increasingDdecreasing the number of shares and retaining the par value1 b 9y increasingDdecreasing the par value of existing shares without increasingDdecreasing the number of shares1 c 9y increasingDdecreasing the number of shares and increasingDdecreasing the par value Reasons for Increasin+ Capita* Stoc( a "o generate more wor$ing capital b "o have more shares with which to pay for ac'uisition of more assets c "o have extra shares to meet the re'uirement for deduction of stoc$ dividend (Ba! Revie% ate!ials in Co77e!cial $a%, -o!ge i!avite, 2''2 ed.). Too*s aai*a)*e to the Stocho*,ers to Rep*enish Capita* a Additional subscription to shares of stoc$ of the corporation by stoc$holders or by investors1 b Advances by the stoc$holders to the corporation1 c &ayment of unpaid subscription by the stoc$holders1 and d =oans from third persons
3
8. Se**@ ,ispose@ *ease@ encum)er a** or su)stantia**y a** of corporate assets (Sec. 4') Re'uirements( a Approval by the majority vote of the board of directors1 b +atification by the stoc$holders holding or representing at least DG of the outstanding capital stoc$ at a meeting duly called for that purpose1 c &rior written notice of the proposed increase or decrease of the capital stoc$ indicating the time and place of meeting addressed to each stoc$holder must be made either by mail or personal service1 d "he sale of the assets shall be subject to the provisions of existing laws on illegal combinations and monopolies1 and e Any dissenting stoc$holder shall have the option to exercise his appraisal right f "he vote of the majority of the trustees in office will be sufficient authorization for the corporation to enter into any transaction authorized by Sec H6 in the case of non(stoc$ corporations where there are no members with voting rights Sale or other disposition shall be deemed to cover
su)stantia**y a** the corporate assets if a the corporation would be rendered incapable of continuing the business1 or b accomplishing the purpose for which it was incorporated
Re'uirements( a. Approval by the majority vote of the board of directors1 b. +atification by the stoc$holders holding or representing at least DG of the outstanding capital stoc$ at a meeting duly called for that purpose1 c. &rior written notice of the proposed increase or decrease of the capital stoc$ indicating the time and place of meeting addressed to each stoc$holder must be made either by mail or personal service1 d. A certificate in duplicate signed by a majority of the directors of the corporation, countersigned by the chairman and the secretary of the stoc$holders meeting1 e. #n case of increase in capital stoc$, ?7 of such increased capital must be subscribed and that at least ?7 of the amount subscribed must be paid either in cash or property1 f. #n case of decrease in capital stoc$, the same must not prejudice the right of the creditors1 g. 8iling of the certificate with the SEC1 and h. Approval thereof by the SEC
Po=er to Incur@ Create or Increase on,e, In,e)te,ness (Sec. /0) Corporate )on, an obligation to pay a definite sum of money at a future time at fixed rate of interest, whether secured or unsecured, evidenced by a written debt instrument called a bond or debenture
:. Inest corporate fun,s in another corporation or )usiness en+a+e, in purpose other than primary purpose (Sec. 42)
Re'uirements( Same with the power to increase or decrease capital stoc$
#nvestment of funds includes not only investment of
ON&E& IN&ETE&NESS Secured by a mortgage on corporate property %"hili##ine Co!#o!ate $a%, Cesa! &illanueva, 2'' ed.)
&EENT!RE Serial obligations or notes issued on the basis of the general credit of the corporation *ence, they are not bonded indebtedness
needed a. if it is necessary in the usual and regular course of business b. if the proceeds of the sale or other disposition of such property and assets be appropriated for the conduct of the remaining business .
Po=er to ac'uire o=n shares (Sec. 4) Instances( a "o eliminate fractional shares out of stoc$ dividends b "o collect or compromise indebtedness to the corporation, arising out of unpaid subscription, in a delin'uency sale and to purchase delin'uent shares sold during said sale c "o pay dissenting or withdrawing stoc$holders d "o ac'uire treasury shares e +edeemable shares regardless of existence of retained earnings f "o effect a decrease of capital stoc$ g #n close corporations, when there is a deadloc$ in the management of the business Note( #n letters a(c, there must be unrestricted retained earnings
"he other purposes for which the funds may be
invested must be among those enumerated as secondary purposes and must further comply with the re'uirements of Section H money but also investment of property of the corporation *owever, the SEC imposes the following re'uirements a. "hat the property is not presently used by the company and the leasing is not made on a regular basis1 b. "hat by leasing the property1 it will ma$e it productive instead of allowing them to remain idle1 c. "here is no express restrictions in the articles of incorporation or by(laws1 d. =easing is not used as a scheme to prejudice corporate creditors or result in the infringement of the "rust 8und )octrine1 and
17
e. Compliance with the re'uirements of Section H ("hili##ine Co!#o!ate $a% Co7#endiu7, Ti7oteo A:uino, 2''6 ed.)
Re'uirements( a +esolution by the majority of the board of directors or trustees1 b +esolution by the stoc$holders representing at least DG of the outstanding capital stoc$ or DG of the members in case of non(stoc$ corporation1 c "he ratification must be made at a meeting duly called for the purposes1 and d &rior written notice of the proposed investment and the time and place of the meeting shall be made, addressed to each stoc$holder or member by mail or by personal service Any dissenting stoc$holder shall have appraisal right A corporation is not allowed to engage in a business
distinct from those enumerated in the articles of incorporation without amending the purpose clause of said article /. Po=er to ,ec*are ,ii,en,s out of unrestricte, retaine, earnin+s (Sec. 4/) +E"A#S M ASSE"S 2 =#A9#=#"#ES A<)
=E>A= CA&#"A= @<+ES"+#C"E) 2 if the retained earnings have not
been reserved or set aside by the board of directors for some corporate purpose )#;#)E<)S 2 Corporate profits set aside, declared,
and ordered to be paid by the directors for distribution among shareholders at a fixed time Forms( a. Cash b. &roperty c. Stoc$ 3hile cash dividends due on delin'uent shares can be
applied to the payment of the unpaid balance, stoc$ dividends cannot be applied as payment for unpaid subscription Stoc$ dividends shall be withheld from the delin'uent stoc$holder until his unpaid subscription is fully paid "he right to dividend is based on duly recorded
stoc$holdings, accordingly, the corporation is p rohibited from declaring dividends in favor of non(stoc$holders As a rule, dividends among stoc$holders of the same
class must always be pro rata e'ual and without discrimination and regardless of the time when the shares were ac'uired )eclaration of dividends is discretionary upon the
board )ividends are payable only when there are profits earned by the corporation and as a general rule, even if there are existing profits, the 9oard of )irectors has the discretion to determine whether or not dividends are declared (Re#ulic "lante!s Ban8 vs. Agana, 26 SCRA ), subject to the rule on non( retention of retained earnings in excess of -667 of paid(in(capital )ividends cannot be declared out of the capital except
in the case of wasting assets corporation or those corporations solely or principally engaged in the exploitation of wasting assets to distribute the net proceeds derived from exploitation of their holdings such as mines, oil wells, patents and leaseholds, without allowance or reduction for depletion (Revie%e! in Co77e!cial $a%, -ose R. Sundiang + Ti7oteo A:uino, 2''5 ed.). Stoc$holders at the time of declaration are entitled to
dividends )ividends declared before the transfer of shares belong to the transferor and those declared after the transfer belongs to the transferee (S@C E#inion, -uly 5, 4). Even unpaid subscribers are entitled to dividends, as
well as owners of delin'uent shares
Re'uirements( a +esolution by the majority of the 'uorum of the board of directors or trustees1 b Approval of stoc$holders representing at least DG of the outstanding capital stoc$ at a regular or special meeting duly called for the purpose in case of stoc$ dividend G@1@RA$ R3$@ Stoc$ corporations are prohibited from retaining surplus profits in excess of -667 of their paid(in capital stoc$ @DC@"TIE1S a 3hen justified by definite corporate expansion projects approved by the board of directors b 3hen the corporation is prohibited under any loan agreement with any financial institution or creditor from declaring dividends without itsDhis consent and such consent has not yet been secured c 3hen it can be clearly shown that such retention is necessary under special circumstances obtaining in the corporation, such as when there is a need for special reserve for probable contingencies &istri)ution of &ii,en,s( G@1@RA$ R3$@ )ividends can only be declared and paid out of actual and bona fide unrestricted retained earnings S"@CIA$ R3$@S a >ain from real property 3here a corporation sold its real property, which is not being used for business, at a gain, the income derived therefrom may be availed of for dividend distribution b +evaluation Surplus #ncrease in the value of a fixed asset as a result of its revaluation is not retained earning *owever, increase in the value of fixed assets as a result of revaluation (HRevaluation su!#lus) may be declared as cash or stoc$ dividends provided that the company i *as sufficient income from operations from which the depreciation on the appraisal increase was charged ii *as no deficit at the time the depreciation on the appraisal increase was charged to operations1 and iii Such depreciation on appraisal increase previously charged to operations has not been impaired by losses (S@C E#inion, Ect. 2, 0 and a!ch , 2). c &aid(in Surplus )ividends can be declared out of the amount received in excess of the par value of shares (H#aid;in su!#lus) when i "hey be declared only as stoc$ dividends and not cash1 ii
engaged in the exploitation of “wasting assets! to distribute the net proceeds derived from exploitation of their holdings such as mines, oil wells, patents and leaseholds, without
18
allowance or deduction for depletion . e Sale of "reasury Shares &rofits realized from sale of treasury shares are part of capital and cannot be declared as cash or stoc$ dividend as purchase and sale of such shares are regarded as contractions and expansions of paid(in capital f #ndebtedness 4oney cannot be borrowed for the payment of dividends because indebtedness is not a retained earning of the corporation g Corporate earnings which have not yet been received even though they consist in money which is due cannot be included in the profits out of which dividends may be paid h #nterim income G@1@RA$ R3$@ "here can be no dividend declaration for profits in a fiscal year that has not yet expired @DC@"TIE1S - the amount of dividend involved would not be impaired by losses during the remaining period of the year1 the projected income for the remaining period shall be submitted to the SEC, and G should the company sustain losses during the remaining period, the dividends should be refunded (S@C E#inion, Ect 22, 94 and -uly 24, ).
stoc$ from their subscriptions1 c 3here it has transferred the corporate property in fraud of its creditors1 and d 3here the corporation is insolvent Coera+e of the TF&( a #f the corporation is solvent, the "8) extends to the capital stoc$ represented by the corporation:s legal capital b #f the corporation is insolvent, the "8) extends to the capital stoc$ of the corporation as well as all of its property and assets EDceptions to the TF&( "he Code allows distribution of corporate capital only in these instances a. Amendment of Articles of #ncorporation to reduce authorized capital stoc$1 b. &urchase of +edeemable shares by the corporation regardless of existence of unrestricted retained earnings1 c. )issolution and eventual li'uidation of the corporation1 d. #n close corporation, when there should be a deadloc$ and the SEC orders the payment of the appraised value of the stoc$holder:s share (Sec. '4). 0. Po=er to enter into mana+ement contract (Sec. 44)
CASH &I
H )oes not increase the corporate capital ? #ts declaration creates a debt from the corporation to each of its stoc$holders
STOC &I
Since it is still part of corporate property, may be reached by corporate creditors
G )eclared by the board with the concurrence of the stoc$holders representing at least DG of the outstanding capital stoc$ at a regularDspecial meeting H Corporate capital is increased ?
TR!ST F!N& &OCTRINE "he subscribed capital stoc$ of the corporation is a trust fund for the payment of debts of the corporation which the creditors have the right to loo$ up to satisfy their credits, and which the corporation may not dissipate "he creditors may sue the stoc$holders directly for the latter:s unpaid subscription App*ication of the TF&( a 3here the corporation has distributed its capital among the stoc$holders without providing for the payment of creditors1 b 3here it had released the subscribers to the capital
Mana+ement Contract B any contract whereby a corporation underta$es to manage or operate all or substantially all of the business of another corporation, whether such contracts are called service contracts, operating agreements or otherwise Sec. 44 refers only to a management contract with
another corporation *ence, it does not apply to management contracts entered into by a corporation with natural persons Re'uirements( a Approval by a majority of the 'uorum of the board of directors b +atification by the stoc$holders owning at least majority of the outstanding capital stoc$ or the members of both the managing and the managed corporations, at a meeting duly called for the purpose c Approval by the stoc$holders of the managed corporation owning at least DG of the total outstanding capital stoc$ entitled to vote, or by at least DG of the members in the case of a non(stoc$ corporation i where a stoc$holderDs representing the same interest of both the managing and the managed corporations own or control more than -DG of the total outstanding capital stoc$ entitled to vote of the managing corporation1 B+ ii where a majority of the members of the board of directors of the managing corporation also constitute a majority of the members of the board of directors of the managed corporation "he period must not be longer than ? years for any -
term except those contracts which relate to the exploration, development, exploitation or utilization of natural resources that may be entered into for such periods as may be provided by pertinent laws or regulations A
management contract cannot delegate entire supervision and control over the officers and business of a corporation to another as this will contravene Sec G
19
EKEC!TI
MANA#EMENT CONTRACT - Express power of a corporation
4anagement com( pany must always be subject to the superior power of the board to give specific directions from time to time or to recall the delegation of managerial power (The Co!#o!ation Code o the "hili##ines Annotated, ecto! de $eon, 2''2 ed.) 9. Po=er to ,eny preemptie ri+ht (Sec. /F
corporate purposes or in payment of previously contracted debts 10. Po=er to amen, Artic*es of Incorporation (See &III.
ation o a "!ivate Co!#o!ation)
"he corporation can only deny pre(emptive right if the
articles of incorporation or amendment thereto denies such right )enial of pre(emptive right extends to shares issued in
good faith in exchange for property needed for
20
