Jack Transcript Corporation

Feb. 5, 2002

Cybill Uytiepo

CORPORATION LAW BACKGROUND

They They claim claim that that in Roman Roman times times they they had this this counte counter-p r-part art organi organizat zation ion,, which which is like like “Kole “Kolegia giak(? k(?),” ),” which which exists exists for mutual mutual benefi benefit, t, provi providin ding, g, for exampl example, e, burial burial benefi benefits ts to the members. During the Middle Ages, the so-called corporations were actually religious organization for the administration of the temporalities of the Church. After the end of the Civil War in 1865, U.S. star starte ted d gett gettin ing g indu indust stri riali alize zed d and and it was was the the corp corpor orat ate e vehi vehicl cle e that that enab enable le the the U.S. U.S. to be indust industria rializ lized. ed. Why? Why? Becaus Because e of the limite limited d liabil liability ity of the stock stockhol holder ders. s. Exposu Exposure re is limited limited to subscription, so people were willing to venture into business risks because if the business enterprise turns out to be unsuccessful, you don’t lose everything but your losses will be limited to your subscription. And the advantage of the corporate vehicle is that you can raise a large sum of money —billion of pesos, which may be needed to run a business, but the management can be efficient, because the management is concentrated in the hands of a small board of directors. For e.g. San Miguel, with about 30,00 stockholders. CORPORATION CODE SECTION 2. 2. Corporation defined .— .—A corporation is an artificial being created by operation of law, having the right of succession and the powers, attributes and properties expressly authorized by law or incident to its existence. AN ARTIFICIAL BEING

A corporation is an artificial being. It is an artificial person—it is not a natural person. Why? Well, one said, “You can never smell the armpit of a corporation.” One American writer said that the corporation has no body to kick and no soul to damn. It is an artificial person, that is why the Court has said in many cases, like the ABS-CBN case, that a corporati corporation, on, as a general general rule, can not recover moral damages. damages. Being Being an artificial artificial person, person, it has no feelings, it can not experience wounded feelings, anxiety, mental anguish. HOWEVER, the court said, in the SEMEX case and also in the recent JARDIN LAND case, that a corporation has a repu reputa tati tion on whic which h can can be besm besmir irch ched ed and and ther theref efor ore e it can can reco recove verr dama damage ges s for for besm besmir irch ched ed reputation. In American law, what we call moral damages in our Civil Code are also treated as part of actual damages- the rule is that what we call as moral damages would be called actual damages. Under Under such such law, law, you can only only recov recover er actual actual damage damages s for the besmir besmirche ched d reputa reputatio tion n of the corporation if the act by its very nature is something that undermines the reputation. In other words, it must be libel. You can recover damages for libel. In that JARDIN case, the Court awarded moral damages to the corporation, it said that its reputation has been besmirched because it was not paid on time—its credit standing was impaired. That is not allowed in American Law. CREATED BY OPERATION OF LAW

A corporation is created by operation of law. It is a person because of legal fiction. It is not a natural person, it only exists as a person because of legal fiction. That is why a corporation is different from a natural person. A natural person, under the Civil Code, can perform any act except what is prohibited by law. In the case of a corporation, it can perform all the acts authorized by law---anything not authorized, it cannot perform---it would be ultra vires. In other words, its powers are limited. RIGHT OF SUCCESSION

A corporation has a right of succession. In other words, stockholders come and go but the corporation continues to exist as the same corporation. It will have succession in its existence, in its name, even if there is a change of the stockholders. One English writer has said that a corporation is Jimenez Transcripts (Corporation Code) Page 1 of 46

like the River Thames and the stockholders are like the waters of the river, waters are constantly flowing—there is a constant change in the waters of the rivers—but it is the same river. POWERS, ATTRIBUTES AND PROPERTIES EXPRESSLY AUTHORIZED BY LAW OR INCIDENT TO ITS EXISTENCE

There are many consequences that will arise from the fact that a corporation has a separate and distinct personality from that of its stockholders. It has the guarantees of the Bill of Rights, like the guarantee of due process, equal protection, against unreasonable searches and seizures. In the case of Stonehill v. Diokno, it was held that if the rights of the corporation are violated, the stockholders cannot assert those rights. The Court said that Stonehill could not question the search warrant against the corporation, for which he is a stockholder, because it was not his rights that were violated, but that of the corporation. Likewise, the debts of the corporation are not the debts of the stockholders. A stockholder, as a general rule, ca not be held liable for the debts of the corporation. In the same way, a corporation can not be held liable for the debts of a stockholder. stockholder. Time and again, the Court said that you can’t garnish the properties of a stockholder because of the judgment against the corporation. And the properties belonging to a corporation are owned by it, they do not belong to the stockholders. That is why the Court said that a stockholder could not intervene in an action involving property of a corporation, he has no interest. In that case involving the Hidden valley, the corporation can sue a stockholder to recover a parcel of land belonging to a corporation because the stockholder was occupying the land. And because of that also, there is this so-called DOUBLE TAXATION. When a corporation earns profits, it pays income tax, when the corporation distributes the profits to the stockholders, the income will again be subject to tax---as you know, dividends are subject to withholding tax. More Moreov over er,, a stoc stockh khol olde derr can can not not be held held liab liable le for for the the cont contra ract cts s ente entere red d into into by the the corporation, and in the same way, a corporation can not be held liable for the contracts entered into by the stockhol stockholder ders. s. That That is why the Court Court said said that that where where a stockh stockhold older er sued sued to annul annul the conveyance of a parcel of land by a corporation, it can not have the notice of lis pendens annotated because he is not the owner of the property, therefore, he has no rights to protect. A stockholder can not be held liable to a lawyer who is claiming atty.’s fees against the corporation—and the lawyer of the stockholder can’t sue the corporation for the payment of atty.’s fees. The Court said that this is Reverse Piercing of the Corporate Veil—you pierce the veil to run after the stockholder, now, he is running after the corporation because of the debts of the stockholder. F. Guanzon and Sons Inc. Case FACTS: the corporation was dissolved and so its properties were conveyed to the stockholders as

liquidating dividends. The government is claiming that they should pay tax on the gain they made. The stockholders said NO—there was no conveyance of property. They said that this is a case of partitioning what they own, so there’s no taxable transaction. HELD: The Court said NO—the properties do not belong to you, they belong to the corporation—so they were conveyed to you—there was a taxable transaction. PIERCING THE VEIL

Whenever the law creates a legal device, the objective of the law is justice and fairness—if you use that device to perpetrate fraud---the law will not allow that---so you have the doctrine of piercing the veil of corporate fiction When the separate juridical personality of a corporation is used to defeat public convenience, to justify wrong, to protect fraud, to commit a crime, its separate juridical personality will be disregarded. BUT, time an again, the Court said that the mere fact that one stockholder is the controlli controlling ng stockhold stockholder er of a corporati corporation, on, is not sufficient sufficient for disregarding disregarding the separate juridical personalit personality. y. Mere control, control, in other other words words is not enough enough to constitut constitute e a ground ground for disregardi disregarding ng the separate personality. It must be CONTROL + something else, like fraud. For example, somebody is sued—t sued—ther here e is a judgm judgment ent agains againstt him—so him—so what does does he do---do----he he forms forms a corpor corporati ation on and Jimenez Transcripts (Corporation Code) Page 2 of 46

transfers his properties to that corporation so that they can’t levy upon the property by saying that they belong to the corporation. LIDELL AND CO. CASE FACTS: Liddel and Co. was importing cars and selling them to the public. The initial sale of the car

was subject to percentage tax. To avoid paying higher tax, the wife of the controlling stockholder formed formed another corporati corporation—Lid on—Liddel del Motors Inc. Liddel Liddel and Co. stopped stopped selling selling cars to the public, they would only sell cars to Liddel Motors Inc. at a very low price, and so they would pay the government a small amount as percentage tax. Then Liddel Motors then turn around and would resell the cars to the public at a big mark-up. HELD: Liddel and Co. and Liddel Motors were organized for the purpose of tax evasion therefore separate juridical personality may be disregarded. If in the internal dealings of the stockholders, they are disregarding the separate juridical personality of the corporation---typical of a family corporation, then that would be a ground to pierce the veil. MARVEL BLDG. CASE FACTS: Ma. Paz was the controlli controlling ng stockholder stockholder of the corporation corporation.. She had a few employees employees who

were given qualifying shares, but the shares were endorsed in blank and in her possession. The corporation never held stockholder’s meeting nor Director’s meeting. It was not keeping separate books of account, they were confusing personal affairs with affairs of the corporation. HELD: Since Since Ma.Paz Ma.Paz was in the internal internal dealings, she was disregarding disregarding the corporation’s corporation’s separate personalit personality. y. That would be a ground to pierce the veil of corporate corporate fiction fiction or if the corporatio corporation n is merely conduit or alter-ego of the controlling stockholder. PVD(?) CASE: HELD: If the corporation is exercising control over the management of another corporation—that

would be a ground to pierce the corporate veil. BUT, in a recent decision: the Court said that control over management is not enough. You must show that it is being used for a fraudulent purpose. Many corporations are subsidiary of another corporation. An example of a fraudulent purpose is one common in labor cases—a worker filed a case against a garment factory, the company closes, then form a run-away shop—transfers all the machines and equipments in the name of another corporation which will resume the business. LUXURIA HOMES CASE: FACTS: The landowner entered into a contract with somebody to develop his land—joint venture.

The landowner then transferred the land to another corporation, and now the developer is claiming the separate juridical personality be disregarded. HELD: It cann cannot ot be in frau fraud. d. The The deve develo lope perr knew knew beca becaus use e he even even sign signed ed the the cont contra ract ct of conveyance as a witness. He was told about it. It was not something done behind his back PSVSIA CASE: FACTS: There There are three three securi security ty agenci agencies es being being manage managed d by PSVSIA PSVSIA.. The The guards guards were were freely freely

transferred from one agency to another. They have a common payroll, and in fact they have the same mutual benefit system. Every year, they hold that 1 occasion where the guards of the three agencies attend and participate in the award ceremony. HELD: Separate juridical personality should be disregarded CASE: FACTS: An employee was supposed to have resigned from a corporation. On the next day, he was

working for the 2nd corporation, performing the same job as the 2 nd corp is engaged in the same line of business. The 2 nd corp is using the payroll of the old corp—in fact, his ID card for the old corp is the one he is using in order to enter the premises of the 2 nd corp.

Jimenez Transcripts (Corporation Code) Page 3 of 46

HELD: Separate juridical personality should be disregarded. CASE: FACTS: The corp filed a case, then the stockholder filed another case involving the same matter. He

filed the case in his own name to avoid forum shopping. HELD: This was a scheme to circumvent the prohibition against forum shopping. Actually, what he is asserting is the right of the corp—separate juridical personality should be disregarded. When we talk of piercing the veil of corporate fiction, it does not only involve a mother company as controlling stockholder, but also affiliate companies. Separate juridical personality could be disregarded. MERRILL-LYNCH CASE:

Merril Merr il-Ly -Lync nch h Phil Phils. s. was was inco incorp rpor orat ated ed by Syci Sycip, p, et al. al. Acco Accord rdin ing g to the the Arti Articl cles es of Incorporation, the primary purpose of the corp, is to transmit orders of customers. If you want to play the stock market in NY, the commodities in Chicago-you go to Merril Phils., you tell them, “I want to buy gold, silver, silver, ” and they will transmit your order to Chicago. You want to buy shares of stocks, they will transmit that to Merril Lynch NY. There was one man who was speculating on silver. He gave an instruction to Merril Phils. to sell the silver, so they transmitted the order—there was a delay in the implementatiom of the order to sell, when they finally implemented, the price of silver had gone down, so he sued both Merril Phils and Merril NY. Defense of Merril Phils: no cause of action, your contract is not with me but with Merril NY, we merely transmit your order. Defense of Merril NY: We are not doing business in the Phils., so you can’t sue us. If you look at this scheme, the end of the entire set-up is to enable Merril NY to deal with customers here, make profits from the orders and at the same time escape from liabilities by saying we are not doing business in the Phils. SEC crack down Merril Phils, saying, in effect you are operating as a broker. GRANDFATHER RULE

More or less, the test being used here is the nationality/ citizenship of the stockholders. Howeve However, r, the Foreig Foreign n Invest Investmen mentt Act Act has disrega disregarde rded d the grandfat grandfather her rule. rule. It adopte adopted d the liberalized interpretation of Filipino-ownership. According to the formula under the grandfather rule, if you have a corporation owned by another corporation, you trace who are the owners of this owning corp. In other words if you have: CDE (50% FIL, 50% FOREIGN) ABC

XYZ (60% FIL, 40% FOREIGN) CORP.

Under the grandfather rule if CDE is 50% foreign and 50% Filipino, and XYZ is 60% Filipino, 40% foreign, you will impute all that here and you will say a-ha, since CDE is 50% Fil, ABC CORP is not 60% Filipino—coz you are going to trace. This is only 55% Filipino coz you trace the ownershipboth CDE(50% FIL) and XYZ(60%FIL). But according to FIA, if a corporation is 60% Filipino, it will be considered 100% Filipino. FIA discarded the grandfather rule. Now, XYZ will be considered 100% Filipino, and so ABC CORP will now be considered 75% Filipino-owned(CDE 50% and XYZ 100%). It must be a t least 60% Filipino-owned to be considered a 100% Filipino corporation. But if it is less than 60%, then you apply the grandfather rule. That is provided in the FIA. SECTION 3. 3. Classes Classes of Corporati Corporations ons.. Corporations formed or organized under this Code may be stock or non-stock corporations. Corporations which have capital stock divided into shares and are authorized to distribute to the holders of such shares dividends or


allotments of the surplus profits on the basis of the shares held are stock corporations. All other corporations are non-stock corporations.

A stock corporation is one which has its capital divided into shares and are authorized to distribute dividend. There are two requirements:1) It must have shares. 2) it must be authorized to distribute dividends. Manila Golf and Country Club, Manila Polo Club, etc.- they have shares, if you want to be a member, you have to buy a share. But, they are non-profit, not authorized to declare dividends—but dividend is not limited to profits—it may take the form of benefits, for example, discounts in the commissary run by the corp. SECTION 5. COMPONENTS OF A CORPORATION. CORPORATORS - those who compose a corporation. STOCKHOLDERS - corporators in a stock corporation. MEMBERS - corporators in a non-stock corporation. INCORPORATORS - Stockholders or members who appear in the articles of incorporation, as

originally forming and composing the corporation and who are signatories thereof. The corporation law now provides that an incorporator must be a stockholder. That was not required before in the corporation law. Moreover, only natural person may be incorporators, but a corporation may be a subscriber but not an incorporator coz he is not a natural person. 25-25 RULE

When you form a corporation, at least 25% of the authorized capital stock must be subscribed and at least 25% of the subscription must be paid. You can form a subsidiary where 5 individuals will subscribe to 1 share each to qualify for the board—you must own at least 1 share to be an incorporator, the rest of the shares will be subscribed by the holding corporation and that will satisfy the 25-25 rule, because that holding corporation paid for the subscription. In computing 2525 rule, subscriptions made by a corporation will be included. Corporations can be subscribers, only that they can not be incorporators. Section 6. Classification of shares The shares of stock in corporations may be divided into classes or series of shares, or both, any of which classes or series of shares may have such rights, privileges or restrictions as may be stated in the articles of incorporation: Provided , that no share may be deprived of voting rights except those classified and issued as "preferred" or "redeemable" shares, unless otherwise provided in this Code; Provided , further , That there shall always be a class or series of shares which have complete voting rights. Any or all of the shares or series of shares may have a par value or have no par value as may be provided for in the articles of incorporation; Provided, however, That banks, trust companies, insurance companies, public utilities, and building and loan associations shall not be permitted to issue no-par value shares of stock. Preferred shares of stock issued by any corporation may be given preference in the distribution of the assets of the corporation in case of liquidation and in the distribution of dividends, or such other preferences as may be stated in the articles of incorporation which are not violative of the provisions of this Code; Provided , That preferred shares of stock may be issued only with a stated par value. The Board of Directors, where authorized in the articles of incorporation, may fix the terms and conditions of preferred shares of stock or any series thereof: Provide, That such terms and conditions shall be effective upon filing of a certificate thereof with the Securities and Exchange Commission.


Shares of capital stock issued without par value shall be deemed fully paid and nonassessable and the holder of such shares shall not be liable to the corporation or to its creditors in respect thereto: Provided, The shares without par value may not be issued for a consideration less than the value of five (P 5.00) pesos per share; Provided, further, That the entire consideration received by the corporation for its no-par value shares shall be treated as capital and shall not be available for distribution as dividends. A corporation may, furthermore, classify its shares for the purpose of insuring compliance with constitutional or legal requirements. Except as otherwise provided by the articles of incorporation and stated in the certificate of stock, each share shall be equal in all respects to every other share. Where the articles of incorporation provide for non-voting shares in the cases allowed by this Code, the holders of such shares shall nevertheless be entitled to vote on the following matters: 1. Amendment of the articles of incorporation; 2. Adoption and amendment of by-laws; 3. Sale, lease, exchange, mortgage, pledge or other disposition of all or substantially all of the corporate property; 4. Incurring, creating or increasing bonded indebtedness; 5. Increase or decrease of capital stock; 6. Merger or consolidation of the corporation with another corporation or other corporations; 7. Investment of corporate funds in another corporation or business in accordance with this Code; and 8. Dissolution of the corporation. Except as provided in the immediately preceding paragraph, the vote necessary to approve a particular corporate act as provided in this Code shall be deemed to refer only to stocks with voting rights.

The shares of stock may be divided into or classified based on rights, privileges or restrictions. NO PAR VALUE SHARES

There are limitations on the power to classify shares of stocks. Banks, trust companies, insurance companies, public utilities, building and loan associations are not allowed to issue no par value shares. When a corporation has no par value shares, no amount will be mentioned. Unlike corporations with par value shares, for ex., the Authorized Capital Stock (ACS) of the corporation shall be P1M consisting of 10,000 shares with a par value of P100 each, if you have a corporation with no par value shares, it will simply be, the ACS of the corporation consists of 10,000 no par value shares---no amount is mentioned. That's why these banks, trust companies, etc. are not allowed to have no par value shares because these are enterprises which are required by law to have a minimum paid-up capital - so that you can easily see right away - has it met the minimum paid-up capital, because if its shares have no par value - you cannot see if it has satisfied the required minimum paid-up capital. RIGHT TO VOTE

No shares may be denied the right to vote except those which are preferred shares and redeemable shares. So, common shares can not be deprived the right to vote.


PREFFERED SHARES

Preferences given to preferred shares should not violate the law. You can not provide that holder of preferred shares will be paid ahead of the creditors of the corporation, and you can not issue preferred shares with no par value shares. It must be noted that preferred shares must have par value. The preferred shares may be given preference in the distribution of dividends. If the profits are not enough to give everybody dividends, the holders of preferred shares get a first crack before the holders of the common shares get anything. Or they may have preference in the distribution of the assets in case of liquidation. PAYMENT OF SUBCRIPTION

Shares of Capital stock issued without par value should be deemed fully-paid and nonassessable, and that shares without par value may not be issued for less than P5.00 per share. In other words, when a share has no par value, it has to be fully-paid, unlike par value shares that you can pay only, for example, 25% and have unpaid subscription that you will pay later. But no par value shares must be fully paid, because there is no amount mentioned. STATED VALUE (NO PAR VALUE SHARE)

No par value shares must also have a stated value. When you form a corporation with no par value shares, the articles of incorporation states, the authorized capital stock shall consist of, for example, 10,000 no par value shares. Those shares will also be given a stated value, so the director says, `ok, the stated value we will issue initially upon incorporation, will be P5.00. We will have 3,000 shares and that will be subscribed with a stated value of P5.00. Now, the business was good, they are raking in the money, so the director decided to declare a stock dividend---`we will have a stock dividend with a stated value of P300.00 each. Business was again good---the director again declared stock dividend, this time with a stated value of P10,000.00 each. So pwedeng magbagobago ang stated value. And those shares would be equal irrespective of the difference in the stated value. So, if you hold a stockholder's meeting, the one whose no par value share with stated value of P10,000 will have one(1) vote, same as the one who has a stated value of P5.00. If the corporation declares a dividend and says, `we will pay P100.00 per share---the one with stated value of P10,000 will get P100, and the one with P5.00 will get the same. They are all equal irrespective of the stated value. (jack said this is useful for estate planning. Here's a father, he forms a corporation where his children will subscribe to no par value with stated value of P5 each, after that, he transfers all the properties to the corporation - the children who subscribed with a stated value of P5 each, they probably own P20,000 each with a stated value of P5. Then , the father would transfer his properties there and get - say, 10,000 shares with a stated value of P10,000 each. Suppose you now dissolve the corporation and distribute the properties by way of liquidating dividends. The children will get the bulk of the properties. You could keep the properties there. This is the way the father could dilute his transfer of properties.) CLASSIFICATION TO INSURE COMPLIANCE WITH CONSTITUTIONAL REQUIREMENTS

A Corporation may classify its shares to ensure compliance to the constitutional or legal requirements - partial nationalized. Corporations may classify the shares as: Class A - can be sold only to Filipinos. Class B - can be sold to anyone but, at any given point of time, the Corporation should be 60% Filipino - owned. NON-VOTING SHARES; WHEN ENTITLED TO VOTE

Even the shares which are denied the right to vote, normally can vote on the matters like amendment of articles of incorporation, adoption and amendment of by-laws, sale, lease, etc. of properties, increase or decrease of capital stock, merger, engage in another line of business, dissolution. These are fundamental actions. So even the non-voting shares are allowed to have a say in the approval of fundamental actions.


FOUNDER'S SHARES

They may be given certain rights not enjoyed by the owner of other stocks but if they are given the exclusive right to vote, that will be valid for 5 years only. Like this Baguio Country Club, they used to have only 100 shares. They said we should broaden our membership in order to raise more money to improve the facilities and to expand. The articles were amended and those 100 shares were converted to founder's shares. They created 2,000 common shares which were then sold to the public. But this was the scheme: Each owner of 1 founder share subscribed to 20 shares, 20 common shares at par value, and then he turned around and sold the 5 shares at P60,000 each. The price was computed in such a way that what you will get from selling 5 shares would be enough to pay for the 20 shares that you have subscribed. So, at the end of exercise, you will have 15 shares without shelling out any money because the price you will get from selling 5 shares will cover everything. These founder's shares, for 5 years, they have exclusive voting rights. After 5 years, everybody has the same rights. REDEEMABLE SHARES

Redeemable shares may be issued by the corporation when it is expressly provided in the articles of incorporation. Terms and conditions affecting redeemable shares are required to be provided for in the articles of incorporation and to be stated on the certificate o stock. Upon maturity of redeemable shares, they should be paid by the corporation even if the latter has no unrestricted retained earnings. Feb. 6, 2002

Alma Santiago

Section 8 deals with redeemable share. It says, such shares may be issued where provided in the Articles of Incorporation (AOI) and they may be purchased upon expiration of the fixed period… the Articles provided that they will be redeemed, let's say on a certain fixed period, let's say, after 5 years, or it may provide that the redemption be optional… It says regardless of the existence of the unrestricted retained earnings in the books of the Corporation. When this Code had just been passed, the (incoherent mumbling) asked that question: why is there a provision here? The shares may be redeemed regardless of unrestricted retained earnings? I said we were against this kasi this is the work of the UP Law Center, the SEC, and the Batasan… I said, in Batasan they inserted this… But the SC has said, in any event, remember, we took this up in political law , that the holder of redeemable shares cannot compel the corporation to redeem the shares if the assets that will be left will not be enough to pay for the claims of creditors coz before you give anything to the stockholders, the creditors must first be paid… coz remember you have the Trust Fund Doctrine. The assets incorporated constitute the Trust Fund to pay for obligations due to the creditors… and that is the distinction between a creditor and a stockholder. A stockholder rises and falls with the fortunes of the corporation, while creditors need to be paid whether or not the corporation is making money, even if it is incurring losses it has to pay creditors. Although, you have that case, (incoherent)… it was an extended decision, similar to a case we handled before, although that was resolved with a minute resolution. What happened was, that case which was referred to us before was that… You know, the SSS invests its money in corporations… now what happened is that they put their money in one corp, the AOI got amended to create preferred shares, which are redeemable, and the SSS subscribed to those redeemable shares. When the period of redemption provided became due, the corp said: "well, you cannot redeem because we… ah… don't have funds!" So the SSS filed a case in the theory that this is not a share of stock, this is not an equity instrument but a debt instrument. The SSS won that up to the CA level, and after it had been decided by the CA, that was when the corp asked us to handle the case in its appeal to the SC. So we filed a petition for review but the Court denied it with a minute resolution… they held that these preferred shares did not exist before, and the Articles were actually amended to create or include the shares. Stock certificates were issued… doc stamps were paid on the stock Jimenez Transcripts (Corporation Code) Page 8 of 46

certificates… this was entered in the Stock and Transfer book. So, that this should not be considered a debt instrument. The Court denied it. The Court was thinking: "hey, the money that was put in was the money of the members of the SSS. Kawawa naman yung mga members!"

And now, the Court came out with an extended decision in the Lirad (?) case. The situation was the same, the Court said that this was a debt instrument because there are some so-called redeemable shares, which if you look at the features would clearly be a debt instrument. Like a few years ago, the newspapers mentioned that Ayala Corporation amended its articles to create preferred redeemable shares… redeemable for 5 years. And the feature is that the holders were guaranteed dividends payable quarterly. So, note the dividends are guaranteed, then the shares to be redeemed after 5 years: mandatory, and the amount of the dividends is not fixed, but rather it is based on, I think, 2% over 90-day T-bills… because that is how banks loan money, that is how banks fix the interest. You borrow money from the bank, it will say: "okay, 2% over 90-day Tbills, and to be reviewed every 90 days." You see, the formula for fixing the dividends is not based on the productivity of the corporation, but based on the prevailing rates if you borrow money from banks. TREASURY SHARES

Then you have these treasury shares. These are shares which have been fully issued and fully paid for but subsequently re-acquired by the issuing corporation by purchase, redemption, donation, or some other lawful means. Like for instance if a stockholder (SH) defaulted when a call was made for SH to pay their unpaid subscription, and SH failed to pay… and so shares sold at public auction and the corporation acquired it. Now the SC has said that treasury shares are in limbo… they are not outstanding, but neither are they cancelled. They have already been issued. Now when the corporation re-acquires them, they are not cancelled, but they are not outstanding… so in the meantime, they are frozen.. they are in limbo. They cannot vote, they cannot receive dividends. The only thing you can do with them is to re-issue them. That is the only thing you can do. Well, you have this case (sorry! can't understand the case title)… There is this law office: Rossell Carascosso Anda (RCA), used to be the biggest law firm in Asia… it was the retained counsel of all the big companies like Shell, Caltex, SMC, Bank of America, Citibank… Now, Reese (I spell it as I hear it ) one of the controlling stockholders of the Manila Trading and Supply Company, wanted to transfer the shares to his friends without any tax consequence. So what was the bright scheme concocted by this RCA? Reese executed a Trust Agreement (TA). He appointed the Law Office (RCA) as trustee and transferred to the law office his shares of stocks. The TA included stock dividends. Upon the death of Reese the corporation was supposed to buy the shares... but in the meanwhile, the trustees would have the right to vote the shares of stocks… and as I said stock dividends are also covered by that. So what happened? Reese died. The corporation bought the shares. The remaining SH were the friends of Reese. Then the corporation now turns around and declares the shares as stock dividends of existing SH… stock dividends have no tax consequence…. So the remaining SH, all friends of Reese would acquire the shares without paying a single centavo… because the corporation bought the shares, and they said: "treasury shares yan eh!" So the corporation now declared it as a stock dividend, and so the remaining SH got it — they got the shares of Reese without paying anything… Now the Court said: "NO! These are not treasury shares!" why? Because the TA provided that the trustees would vote the shares and that it also provided that the trust would include stock dividends that may be declared. So these shares of Reese which were acquired by the corporation had these 2 features: they could vote and they could receive stock dividends. These are inconsistent with the nature of treasury shares… because a treasury share is not outstanding although it is not cancelled for it can be re-issued. The only thing you can do with it is to re-issue it. Now, when the Board re-issued it, they can sell it at any reasonable price… because you don't have to sell it for its par value as its minimum, because remember, it is unissued… remember, when you're going to sell or offer for subscription, part of the authorized but unissued share, the corporation must sell at least Jimenez Transcripts (Corporation Code) Page 9 of 46

at par value. Otherwise that would be watered stock. But in the case of treasury shares, that has already been paid for by the original SH, so the corporation already got the money equivalent to the par value. So when the corporation re-issues that, suppose they offer it for sale, they can fix any price. It can even be less than par value, let's say the book value is less than the par value. Now if the corporation decides to declare that as dividend it will not be declared as stock dividend, it will be declared as property dividend. Because that is property owned by the corporation you declare stock dividends from the authorized but unissued shares… but these are shares (treasury) which have already been issued but acquired by the corp. So they are properties belonging to the corporation. So if the corporation distributes them, as dividends, they will be property dividend, not stock dividend. SHARES OF STOCK

Now, shares of stocks are choses in action. First, they are personal properties by express provisions of the Civil Code… they are choses in action, they are intangible properties. Their situs for purposes of chattel mortgage would be the head office of the corporation… so that is where you have to register the chattel mortgage. For tax purposes, the situs of will be in the Phils, if it’s a Philippine corp. The Court has said (Fisher case), if a foreigner owns shares of stocks in the Philippines, and the foreigner dies, the heirs will have to pay estate tax on the shares of stocks because the tax situs is the Philippines. All shares are presumed to be equal, unless otherwise provided in the AOI. So that's why it is said that they will have the same voting rights… if dividends are declared, they will receive the same amount as dividend, unless it is otherwise provided in the AOI. INCORPORATORS

Now the Code says that to form a corporation (a stock corporation), you must have at least 5 but not more than 15 persons… must be of legal age and majority must be residents of the Philippines. A corporation cannot be an incorporator. Each incorporator must at least own one share. As I said, the Corp Law before did not require that. CORPORATE TERM

It should have a corporate term which should not exceed 50 years. And it may be extended for another 50 years. The Old Corp Code did not allow extension. That's why if a corporation would reach the end, it would have to be dissolved. That was the law before. That's why we have FGU Insurance Corporation. That was originally Filipinas Compania de Seguros. But its corporation life expired and you cannot extend it so it had to be dissolved, and a new corporation must be formed to take over its business… the FGU Corp. But, later on the Corp law was amended in 1968 to allow extensions. That is why now you can extend a corporate life… but you cannot incorporate today, then tomorrow, extend the corporation life. You can only do that in the last 5 years of its existence. MINIMUM CAPITAL

Now, as a rule, there is no minimum required capital, although the law requires the 25-25 rule. At least 25% of the shares must be subscribed, and at least 25% must be paid. You need not have everybody paying 25%. Somebody may only pay 10%, but if somebody paid 100% of his subscription, provided the total payment would reach 25% of the subscription, that satisfies the law. Although, the law says that paid-up capital should not be less than P5K, so you can form a corporation with a paid-up capital of P80K — subscription would be 20K and paid-up would be 5K. But for certain lines of businesses, special laws require minimum, authorized capital, like banks, insurance companies, financing companies.


ARTICLES OF INCORPORATION

And the law mentions the form for AOI: contains the name, specific purpose, place of its principal office, which must be a city or municipality. Now, the Corp Code in a subsequent provision says Metro Manila will be considered as one city. Well, I've seen some lawyers put the specific address, which is crazy! Because, then later on, when you want to transfer your office, you have to amend your Articles. It's enough to put there Metropolitan Manila so you can transfer your office anywhere in MMla. And, remember, the Court has said, in a decision penned by Justice Francisco (old Abigon(?) case… hay, I'm really bad at deciphering the case names!), that in fixing the venue, when one of the parties is a corp, the place where its principal office is located is what should be considered — not a branch. And, as was also held in that decision, the principal office should be the place as stated in the AOI. Then the term, the name, nationality, and residence of the incorporators, the name, number of directors [which should not be less than 5 nor more than 15], those who will act as directors until the regular directors are elected. Then the authorized capital stock, and other matters… like, you can put there restrictions. If somebody wants to sell his share, he must offer it first to the other SH before he can offer them to outsiders. Then you have the treasurer's affidavit, which should indicate that at least 25% of the capital has been subscribed and at least 25% has been paid. SEC offers this ready-made printed forms, which they sell. They call this the "express lane". Since they are the ones who prepared it, you just fill it up. So, in about 3 days, you can be incorporated. Well, in the good old days, provided you are diligent enough, you just spend there one whole day. You can be incorporated in one day. This can't be done anymore… but now, you have this form, this "express lane"… 3 days you could be incorporated. And they would require that if you are engaged in a line of business which is nationalized, there should be a provision there, saying: "NO transfers of shares of stocks which would reduce ownership of Filipinos to less than what is required by law should be allowed." And this should be printed at the back of the stock certificates. Now, you want to amend the AOI, that has to be approved by at least 2/3 of the SH and by majority of the board. And, you must submit to the SEC a certificate, signed by the chairman who presided the meeting, corporate secretary, and majority of the directors, certifying that the AOI has been amended, and that they have complied with the requirements, and they will attach to that certificate a copy of the AOI as amended. For example, you changed the place of business, let's say from Manila to Cebu City, you will underline the amendment. Principal office shall be located in… then you put: Cebu City. Then you put this in parenthesis: as amended on 15 January 2002. You submit that to the SEC, and it will only take effect when it is approved by the SEC. Now, the grounds for disapproving amendments are mentioned in Section 17. Like when the AOI does not conform with the form prescribed in the law. That the purpose is patently unconstitutional, immoral, illegal, or contrary to government rules and regulations. Like the Philippine Statehood Movement before. They wanted to make the Philippines the 51st state. The SEC disallowed the incorporation of that. The purpose is unconstitutional because it would run against the provision that the Philippines is a sovereign state. The CA sustained the SEC, but said: "Okay, you can incorporate, but the purpose is to study how it can be legally done… that means you have to amend the Constitution. So, you will just study." Now, these Japanese War Notes. A lot of people suffered damages during the war, a lot of people were stuck with these Jap War Notes. This bunch of swindlers… telling people that they'll form a corporation…if u suffered damages during the war, if you have jap war notes, you join them and they will work for the government to pay reparations and indemnity to those who suffered damages during the war, and to redeem jap war notes. So the SEC disallowed the incorporation of that, and the SEC was sustained by the CA. This really is a scheme for fraud.


You know, the SEC has issued a circular before 1987, which was updated in year 2000. It says: you cannot form a corporation for the practice of certain professions, like engineering, architecture… well, you have that Acebedo case. This Acebedo Optical Company wanted to set up branches. In CDO, the Mayor refused to give them a permit. The reason is: you are engaged in an illegal activity — practicing optometry. The Court said: NO! Acebedo is not practicing Optometry. It is employing optometrists. It is the optometrist who will refract the eyes of the patient and then tell them: "uh… you have to buy eyeglasses with this grade." It's not the corporation which will refract the eyes of its patients but the optometrist. So, it is not engaged in the practice of a profession. Well, although in the US, they now allow the lawyers to incorporate. Sometimes you will see some of the calling cards: PC (meaning, professional corporation). Another ground for disapproving amendments is when the treasurer's affidavit is false — that the 25% has not really been paid. Well, you see, if your paid-up capitalization is P10K, you bring the money there and they will count it manually. If it is more than that, you get a bank certificate, and then they will go to the bank and check. They would require you to waive the Secrecy of Bank Deposits. A lot of people would incorporate without any money, really. They just borrow money from the bank, get a certification, then after it has been incorporated, they return the money. Another ground is that the percentage of ownership owned by Filipinos doesn't comply with existing nationalization laws or the Constitution. Well if the corporation engages in a line of business regulated by another government agency, the SEC will usually endorse it to that office for comment. For example, insurance company or agency, with the insurance commission; schools, with DECS or CHED; banks, with the Monetary Board. CORPORATE NAME

No corporation name may be allowed if it is identical or deceptively or confusingly similar to that of any existing corp. And that the way the jurisprudence has developed, the name will not be allowed if it uses a dominant word in the name of another corporation, and they are engaged in the same line of business. Well, you have, for example, the case of UNIVERSAL TEXTILE MILLS and somebody formed another corporation: UNIVERSAL MILLS. The dominant word is universal , and they both engage in the same line of business. You know, the Telephone Directory is not owned by PLDT. That is prepared by the General Telephone Directory Corporation. PLDT is the one which merely collects the payment from the advertisers in the yellow pages. But they don't own/publish that directory. Now, there was this bunch of swindlers who formed a corporation: GENERAL DIRECTORY. They would start contacting advertisers in the yellow pages: "Ay, binago na ho 'yung set-up. Ngayon ho, we will collect the payment directly. So, we will send our collector…" You file a crim case against them for estafa, and they'll say: "NO! We are printing or own directory." And they will show it… and it is a thin directory. We filed a complaint with the SEC and the SEC ordered them to change their name because it is confusingly similar with General Telephone Directory. There was this Philippine corporation that wanted the name "Standard Phillips Corporation". Court said: that is part of the name of Phillips Electrical Lamps, Phillips export. Phillips is the dominant word… and both of them manufacture electrical appliances. On the other hand, the Court has said that Lyceum of the Phils. cannot prevent other schools from using LYCEUM because lyceum is a generic name. It means a school. Like UNIVERSITY, UE cannot prevent others from using university as part of their name Jimenez Transcripts (Corporation Code) Page 12 of 46

because it's a generic name. So Lyceum of the Phils. cannot have an exclusive right to use lyceum because it is a generic term for schools. The same way Ateneo is a spanish word which means school. But I think what has happened is the reverse… it is a generic term that has acquired secondary meaning. You can prevent another school from using that. Well, you have this case of Carlos Valdes, the accountant, a very controversial character (Jack's side-story omitted ). His son left his company and formed the VALDES CONSULTANTS. Valdes objected to that, because it was a confusingly similar name. But the SEC said: "Eh, magkaiba naman kayo ng line of business… you are in accounting, your son set up a consultancy firm. And your clients are sophisticated big men. They know that the two are different." So the SEC allowed that. Now, the existence of a corporation begins at the time when you get your certification, issued by the SEC. That is when existence begins. There are many limitations found in the law. As for example, you are not a bank, you cannot use bank as part of your name; you are not a financing company, you cannot use financing. And the law prohibits the use of United Nations as part of the business name of any company. The general Bonded Warehouse Act says, if you are not a bonded warehouse, you cannot use that as part of your name. The SEC issued a memo circular in 1987, it was updated 2002, which says, you cannot use certain name as part of your… like engineering, architecture… as part of the corporate name because you cannot practice a profession. Or, it says there you cannot use calabarzon or national as part of your corporate name. Also you cannot use Philippines 2000 as part of your corporate name. Or any which consists of similar words… 'coz you know the records are computerized, when you apply, they will check. And the one who verifies will list down all the names which are similar to what you have. Now, you could be allowed to use that if you add your line of business, and you add another word which signifies that you are engaged in a different line of business. Like for example, you have a Golden Pawnshop Incorporated, and you have somebody running a restaurant… so, Golden Restaurants Incorporated. The SEC will allow that. Feb. 7, 2002

Elaine Carreon

Defective Corporations DE FACTO CORPORATIONS

A de facto corporation is one that is defectively created so as not to become a de jure corporation. It is the result of an attempt to incorporate under an existing law coupled with the exercise of corporate powers. The existence of a de facto corporation can only be attacked directly by the state through quo warranto proceedings. If the corporation does not qualify as a de facto corporation, its existence may be attacked collaterally. This doctrine is based on public policy to ensure stability in business transactions. 1. 2.

3. 4.

4 Requisites of a de facto corporation: Valid law under which the corporation was incorporated. Attempt in good faith form a corporation according to the requirements of the law. Here the SC requires that you must have filed with the SEC articles of incorporation and gotten the certificate with the blue ribbon and gold seal. For instance the majority of the directors are not residents of the Philippines or the statement regarding the paid up capital stock is not true, those are defects that may make the corporation de facto. User of corporate powers. The corporation must have performed acts which are peculiar to a corporation like entering into a subscription agreement, adopting by-laws, electing directors. It must act in good faith. So the moment, for example, there is a decision declaring the corporation was not validly created, it can no longer claim good faith. Jimenez Transcripts (Corporation Code) Page 13 of 46

A de facto corporation will incur the same obligations, have the same powers and rights as a de jure corporation. It can acquire property, sue or be sued, enter into contracts. Likewise, the officers, directors, and stockholders will have the same rights, powers, and liabilities as those of a de jure corporation. CORPORATION BY ESTOPPEL

It is a corp, which is a group of a persons, which is so defectively formed so that it is not a de jure or a de facto corp but is considered as a corp with respect to those who cannot deny its existence because of some agreement or admission or conduct on their part. This doctrine requires that there must be dealings among the parties on a corporate basis. And there are differences between a de facto corp and a corp by estoppel. A de facto corp has a real existence in law, while a corp by estoppel has none. A de facto corp may exist even if there are no dealings among parties on a corporate basis. In corps by estoppel, dealings on a corporate basis among the parties involved are required. Also, where not all requisites for corp de facto are present, you can have corp by estoppel. Christian Children’s Fund Case

There was a teacher hired by the CCF, which was unincorporated. She wanted to go after the one with money, the organization that was funding CCF, and she was claiming “I’m an employee of that org and not the CCF.” But the court said that since she accepted employment with CCF, she was estopped from claiming that CCF is not a corp. Lozano v de los Santos

This involves 2 associations of jeepney drivers. They agreed to merge. Elections were held. The president of one of the associations won. The pres of the other association refused to recognize the victory, so he continued to collect dues from the members of his association. So the pres who won filed a case. This occurred at the time when 902-A was not yet repealed. This was filed with the SEC, the SEC clamed it was an intra-corporate dispute. Issue: Whether this is an intra-corporate dispute. SC: NO, because the 2 associations agreed to merge but did not draw articles of merger. The merger was not incorporated so there is no intra-corporate dispute. But the pres who filed the case said the respondent is in estoppel. The court said no, because corp by estoppel applies when you are dealing with an outsider, a third person. Here the two of you know that although you merged, you have not been incorporated. Albert v University Publishing

The late court of Appeals Justice Mariano Albert. He had a book on criminal law. It was published by University Publishing but he was not paid royalties. He sued UP, its president was Jose Aruego, and he litigated all the way to the SC and won. When he was executing he found out the UP was never incorporated. So at the execution stage, he asked execution against Jose Aruego. Aruego then claimed that Albert was estopped from claiming that UP was not a corp. The court said, no, Aruego was not misled because he knew all along that they were not incorporated. How could he (Aruego) claim that Albert is estopped when he (Aruego) knew all along that they were not incorporated? (medyo magulo ba? Read the next case, similar facts clearer ratio) International Express Travel Case

A party contracted with an organization which was not incorporated. He was running after the people who were running the org. They said you dealt with us so you’re estopped from claiming we are not incorporated. The court said no, the doctrine of estoppel applies when somebody has been sued and he tries to avoid liability by claiming that the corp is not incorporated. But it is not applicable when the third person is the one suing. So the people running the corp know that they are not incorporated so they are not misled.


Now the people who represented themselves as forming that corp would be liable as general partners, they will be solidarily liable. That’s why in one case the court said the people who represented themselves as the officers of a corporation that is really an unincorporated org – they were illegally recruiting persons – the court said they were liable as general partners, solidarily liable for all claims. If you will increase the authorized capital stock (ACS), you will amend the articles of incorporation. For example, if your articles states that your ACS is P10M and you want to make it P20M, you will have to amend that. And you will get your certificate, which you will attach to the amended articles, and sign a certificate of increase. And then your treasurer must sign an affidavit that at least 25% of the increased ACS has been subscribed and at least 25% of that has been paid. And again the SEC will check if that has really been complied with. And the book now talks about the abuse of right. The US SC has said that the majority are trustees in favor of the minority. There is a book by the late Professor O’Niel. The oppression of the minority stockholders (SHs). It mentions the different devises that the majority uses in order to oppress and squeeze out the minority. He also puts in devices how the minority can resist. For example if the majority will never declare dividends but they will vote themselves also as the executive officials. So they will be receiving salaries as executive officials but they won’t declare dividends so the minority never gets anything. The minority wants to examine the books of the corp but they make it so difficult for him. The book also mentions an extreme case where in a corporation, they wanted this guy to feel miserable so they ostracized him. Nobody would talk to him blah, blah … stroya lang on how petty people can be… DIRECTORS AND OFFICERS

Directors are elected by the SHs. And the law says they should be elected annually except in the case of corps where the law allows directors to hold a longer term like schools, non-stock corps. But for ordinary stock corps, they have to be elected every year. So you cannot put a provision there that the outgoing president will automatically be a director because they must be elected. 2 peculiar devises used in election of directors: 1. Cumulative voting – since the law allows cumulative voting, it cannot be prohibited by resolution or the by-laws. This is a devise for the minority SH to get himself elected to the board. So you get his share, multiply it by the number of seats to be filled up, let’s say there are 16. And this fellow owns 1,000 shares so he will have 15,000 votes. So he can cumulate that and vote it for himself. Of course he should also solicit proxies to get enough votes. 2. Election by proxies – The board and by-laws can’t prohibit this. Election shall be viva voce or by show of hand, or by balloting if there is a request. A typical SHs meeting: 9 seats, only 9 nominations are made. No need for election. Only natural persons can be directors. The law requires that a director must own at least 1 share of stock in the books of the corp. So long as he appears in the books of the corporation as a SH, it is sufficient, even it he actually has only legal title, not beneficial title, in other words, he is holding it in trust. That’s why if a director executes a voting trust, automatically he is disqualifies because he is not a SH because of the voting trust. If a director ceases to be a SH automatically he is unseated. End even if he gets a share of stock again, he will not be restored to the position. Now the question is at what point should the director be a SH? During the election or when he assumes office? Majority view in the US is that he is only required to be a SH when he assumes office. The minority view holds that it should be during the election. The SEC opinions are conflicting. But it seems the minority view is what is applicable here because of the peculiar wording of our corp code, which says that the directors shall be elected “from among the holders of stocks”. That is the text of the law in the sates where the minority view was adopted. Out law is worded similarly to the law in those states. The by-laws may prescribe additional qualifications over and above those prescribed by law. The SC has time and again said that the by-laws may prescribe that to qualify for the board a SH Jimenez Transcripts (Corporation Code) Page 15 of 46

must hold a minimum number of shares, not only one, e.g., SMC by-laws requires 50,000 shares of stock. They want to knock out people who want to make a nuisance of themselves. They buy one share and solicit proxies to get themselves elected. The code provides that a person if a person is convicted by final judgment of a crime punishable by imprisonment for over 6 years or of a violation of the Corp code, and committed the crime within 5 years before the election, he will be disqualified. But the way cases drag, by the time he is convicted, the 5year period has lapsed. There are some disqualifications imposed by law. For example the Banking Act provides that no public official can be elected director of a bank except, for example, the case of development banks. It is required to invest in rural banks, that’s to facilitate the creation of rural banks. So necessarily, they will have to have a representative in the board. Or the insurance code, if you recall, it prohibits interlocking directors. You cannot be a director of an insurance company and an adjusting company at the same time. There would be conflict of interest. Or cabinet members, they cannot be directors of private corps. And the by-laws again may impose disqualifications over and above what are found in the law. G OKONGWEI C ASE

The court said the by-laws may provide that somebody who is a SH or officer of a corp which is engaged in a competing line of business will be disqualified to run for the board. The court said that is to avoid conflict of interest. After the election of the directors, they will immediately meet for the organizational meeting to elect the officers: the president who must be a director, the treasurer, the secretary who must be a Filipino citizen and resident of the Philippines. And as a rule one can hold two or more positions like one can be director and president. However, the law prohibits the same person from being president and secretary, or president and treasurer at the same time. Like your minutes of the meeting that will be signed by the president attested by the secretary. If the same person will occupy the two positions, there will be no check and balance. Or the president-treasuer. The president will sign the checks; there will be no 2 nd person to counter-sign the check. And then you’re supposed to report to the SEC. You have the general information sheet which you must file, where you will report who were elected directors and officers w/in 30 days. There was one case where a civil action was filed in the name of the corp by a group which claimed to be the directors. But the law office of Siguion-Reyna filed a motion withdrawing the case. They said, no, that was not authorized by the board. Issue: who are the directors? The court said that the board who asked that the case be withdrawn are the directors because they are those whose names appear in the General Information Sheet that is required by the SEC, and the submission of the report is required by the corp code precisely to know who are the officers of the corp. And since that was the report filed in compliance with the code, then that is the one that will control. POWERS OF A CORPORATION

They may be classified into three: 1.

Express powers - those grated by law or contained in the articles of incorporation. For instance

in the corporation code, sec 36. 2.

Implied powers- refers to the means of attaining the purposes of the corp. For example the

corporation may borrow money, issue checks, take steps to protect debts owing to the corp. So it can bid to buy its debtors’ properties in the execution sale. Or it can perform acts which increases its volume of business. The court has said the corporation may hire entertainers to attract customers to increase its volume of business. The corporation may perform activities for the welfare of its employees, but that’s also expressly mentioned in the code. That’s why the court has said that it may grant gratuity pay to its employees because corporations have the Jimenez Transcripts (Corporation Code) Page 16 of 46

power to grant benefits to its employees. There’s this old case where the court said a mining corporation may enter into a contract with the post office at its mining camp so that its employees could receive and send letters to and from their families faster. Pilipinas Cement v Theresa Electric

They built their own power plant for their factory. Theresa Electric wanted to compel them to patronize its services. They filed a case in court. The court said, no that is connected with the manufacture of cement. They’re using the power plant to produce electricity for their factory. Mao(?) Sugar Central

A sugar central may buy a company engaged in the manufacture of sugar bags. They would need that for packaging the sugar they are producing. National Power Corp Case

Their power plant was fired by coal. The were bringing the coal to the plant themselves. The arrastre wanted to force them to hire its services, so they said that NAPOCPOR cannot do that, it’s ultra vires. The court said no, NAPOCOR is engaged in the generation of electricity and for that purpose, they can bring the coal to their power plant. It is not required to hire an arrastre stevedoring company. El Hogar Filipino

Where a corporation owns a multi-story building and it occupies only some of the floors, it can lease the other floors it is not using so it can maximize the use of its property and maximize its profits. The same way companies can sell computer time which it doesn’t need. Atrium(?) Management Corporation Case

There’s this recent decision of Justice Pardo. In his decisions, sometimes doesn’t even give citations. E.B. Henry & co. wanted to borrow money. To help them borrow, High Cement corp issued post-dated checks to E.B. Henry & Co. to be used as collateral for the loan. So they got the loan from Atrium Management Corp. They indorsed the check to Atrium management Corp so they could get the loan. Then payment was stopped. So when Atrium Management Corp presented the checks, they bounced. Issue: was the check ultra vires? Justice Pardo said no, cause a corporation can issue a check to be used as collateral for the loan of another. Ang labo! We will take up later on that as a rule a corp cannot guarantee the loan of another. Remember the case of Jose in negotiable instruments law? And then after saying that it is not ultra vires, in other words to use negotiable instrument law terms, the corporation can be an accomodation drawer, then after saying that he said says that the corp is not liable because there was no valuable consideration for the issuance of the check. 3.

Incidental powers- the powers that are inherent in a corporation.

Like the power of

succession, to adopt by-laws, to sue and be sued. A director may be removed by a vote of at least 2/3 of the SH’s. That can be done in a regular or special meeting but the notice must indicate that that is one of the matters to be taken up. And if there’s a vacancy, the remaining directors will elect a replacement. Removal may be with or without cause. Except that if the director represents the minority, he may not be removed without cause. This was not in the old corporation code. This was placed here to protect the minority SHs. Without this proviso, the majority SHs can oust the minority director and his vacant seat will now be filled up by the remaining directors who represent the majority. And unless there’s a provision in the by-laws, or the contract within the by-laws? (garbled) the directors will not receive any compensation except reasonable per diems. Now it is the SHs who approve the compensation of the directors. The directors cannot approve compensation for themselves. And the law puts a ceiling. The total compensation to directors as directors should not


exceed 10% of net income before income tax. But if they are holding another position such as president, or gen. Manager, the can receive additional income for that. Feb. 11, 2002 •

Siel Alcantara

The Court has said that when a corporation has been formed to sell spare parts of a motor vehicle, it cannot acquire a company that provides taxicab service because that has no connection with its primary purpose.

ULTRA VIRES •

Now, if a contract is ultra vires, it can be ratified by the stockholders, unless the contract is illegal because it is against public policy, law or public morals. But any stockholder who doesn’t agree with it can always question it in court.

If the contract is ultra vires but has been completely performed by both parties, it can no longer be set aside. If it has been performed by one party and the other party doesn’t comply, if he is sued, he cannot raise the defense that the contract is ultra vires because having benefited from the performance of that contract, he will be in estoppel to raise that defense. But if the contract hasn’t been performed by either party, the defense of ultra vires can be raised. Sec. 31. Liability of directors, trustees or officers. - Directors or trustees who willfully and knowingly 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 or acquire any personal or pecuniary interest in conflict with their duty as such directors or trustees shall be liable jointly and severally for all damages resulting therefrom suffered by the corporation, its stockholders or members and other persons.

In that Tramat case, the Court mentioned when officers/ directors can be personally held liable. First, when they assent to a patently unlawful act. Like when they agree to bribe a public official. Second, when the officer is guilty of bad faith or gross negligence. Bad faith means he knows that what he is doing is wrong or fraudulent. Gross negligence means he did not exercise even the slightest degree of diligence or there is complete absence of diligence. We have some cited cases where the Court said that the officers should be held personally liable because they were in bad faith. There was a case where the corporation assigned its receivables to a bank. They discounted their receivables. Then they fraudulently collected payment from the debtors whose receivables they assigned and did not remit the money to the bank. There was a case where the general manager introduced reforms and remedial measures to prevent irregularities but the directors did not like that so they fired him. The Court said that is bad faith. Where the officers were aware that the corporation was not complying with the labor law. They were not complying with labor standards and yet they did nothing. Where the directors falsely made it appear that the corporation was incurring losses so they could invoke it as an excuse to dismiss employees on the ground that there was a need to retrench employees. These were considered bad faith. CONFLICT OF INTEREST Section 32. A contract between a corporation and (one of its directors or trustees or) its officers is voidable at the option of such corporation, unless all the following (4) conditions are satisfied/ present:


1.

That the presence of such director or trustee in the board meeting in which the contract was approved was not necessary to constitute a quorum for such meeting; 2. That the vote of such director or trustee was nor necessary for the approval of the contract; 3. That the contract is fair and reasonable under the circumstances; and 4. That in case of an officer, the contract has been previously authorized by the board of directors. Where any of the first two conditions set forth in the preceding paragraph is absent, in the case of a contract with a director or trustee, such contract may be ratified by the vote of the stockholders representing at least two-thirds (2/3) of the outstanding capital stock or of at least two-thirds (2/3) of the members in a meeting called for the purpose: Provided, That full disclosure of the adverse interest of the directors or trustees involved is made at such meeting: Provided, however, That the contract is fair and reasonable under the circumstances.

Now, if the presence of that director is needed to have a quorum or to approve the contract, to validate the contract, it should be ratified by the stockholders. You would need the 2/3 vote of the stockholders to ratify the contract. When the stockholders are asked to ratify the contract, there must be full disclosure. In other words, you must tell the stockholders that there’s this contract, one of our directors wants to buy this parcel of land and these are the terms and conditions. In a typical stockholders’ meeting, somebody sympathetic with management will stand up and say, “Mr. Chairman, I move that we pass a resolution ratifying the actions of the directors and officer.” Another will say “I second the motion.” “Is there any objection? The Chair hears none. Approved.” That is not enough because there, there is no disclosure of what these actions are. In that meeting, the director who’s a stockholder can vote to ratify that contract with himself. But in any event, the law says the contract must be fair and reasonable. So even if it is ratified by the stockholders, if there is a dissenting stockholder, he can question that on the ground that it is not fair and reasonable. The contract must be at arms’ length. In other words, if the contract had not been with this officer, but with somebody else, would the terms and conditions be the same? INTERLOCKING DIRECTORS

If the contract is between two corporations with interlocking directors, the same four conditions must be satisfied. Sec. 33. Contracts between corporations with interlocking directors. - Except in cases of fraud, and provided the contract is fair and reasonable under the circumstances, a contract between two or more corporations having interlocking directors shall not be invalidated on that ground alone: Provided, That if the interest of the interlocking director in one corporation is substantial and his interest in the other corporation or corporations is merely nominal, he shall be subject to the provisions of the preceding section insofar as the latter corporation or corporations are concerned. Stockholdings exceeding twenty (20%) percent of the outstanding capital stock shall be considered substantial for purposes of interlocking directors.

If a director owns more than twenty percent (20%) of the shares in one of the corporations, then these four conditions must be present and if the first two are absent (meaning, his presence is not necessary to have a quorum in a board meeting and his vote is not necessary to approve the contract), then that should be ratified by at least 2/3 of the stockholders. We have that Prime White Cement case. The Prime White Cement Company manufactures white cement. There was a director who got a 5-year distributorship contract with the corporation and the price was fixed for the next 5 years. Then he went around and entered into 1-year contracts with hardware stores and the price was not fixed, it was left open. Then after one year,


the price of white cement went up and then he was sued for specific performance. The Court said he could not enforce the contract because it was not fair and reasonable. He knew that the price of cement was very volatile and it tended to go up yet he tied down the corporation to a 5-year contract with the price fixed. He knew that, that’s why he made his contracts with the hardware stores for one year only and that’s why he did not fix the price. If he consents to the issuance of watered stock or having knowledge of it, he does not file with the corporate secretary his written objection. If he binds himself solidarily with the corporation. This is common when the corporation borrows money. The bank would ask the majority stockholder to bind himself jointly and severally. When the specific provision of law makes him specifically liable. For instance, the Migrant Overseas Workers’ Act makes the directors personally liable. Under Section 31 (2nd paragraph), when a director, trustee or officer attempts to acquire or acquires, 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 equity imposes a disability upon him to deal in his own behalf, he shall be liable as a trustee for the corporation and must account for the profits which otherwise would have accrued to the corporation.

For example, he receives kickbacks from contracts with the corporation. Sec. 34. Disloyalty of a director. - Where a director, by virtue of his office, acquires for himself a business opportunity which should belong to the corporation, thereby obtaining profits to the prejudice of such corporation, he must account to the latter for all such profits by refunding the same, unless his act has been ratified by a vote of the stockholders owning or representing at least two-thirds (2/3) of the outstanding capital stock. This provision shall be applicable, notwithstanding the fact that the director risked his own funds in the venture.

For instance, here’s a hotel corporation looking for a suitable site and there’s a vacant property that was available and a director bought it. Then he offered instead to lease the property to the corporation – that would be grabbing a business opportunity. There’s this old Pepsi- Cola case where a softdrink company became available and a director bought the company for himself. Of course, if the corporation rejected the opportunity, the director can acquire it provided , that he did not maneuver to have it rejected by the corporation so that he could get it for himself. Here, you may consider an example where a corporation which operates has decided to limit its operations to Metro Manila. There’s a mall in Dagupan that was offered for sale. This other corporation had no plans of going out of Metro Manila. Then a director could buy that mall for himself. The Code also contains a provision on executive committees which was in recognition that this was a practice of many corporations. The board often meets probably once a month at the most. And yet, in between meetings, there are matters that would require Board approval. So the Code says: Sec. 35. Executive committee. - The by-laws of a corporation may create an executive committee, composed of not less than three members of the board, to be appointed by the board. Said committee may act, by majority vote of all its members, on such specific matters within the competence of the board, as may be delegated to it in the by-laws or on a majority vote of the board, except with respect to: (1) approval of any action for which shareholders' approval is also required; (2) the filing of vacancies in the board; (3) the amendment or repeal of by-laws or the adoption of new by-laws; (4) the


amendment or repeal of any resolution of the board which by its express terms is not so amendable or repealable; and (5) a distribution of cash dividends to the shareholders.

Usually, the committee would be composed of five directors. The Board can delegate its powers to the Executive Committee who will wield those powers in between meetings. But the code says that the Board cannot make a blanket delegation of its powers. It must specify the matters which it is delegating. The law mentions the matters which cannot be delegated: An example of number 1 (approval of any action for which shareholders' approval is also required) is increasing the authorized capital stock. The usual practice is that at the next Board meeting, the actions taken by the Executive Committee will be submitted to the Board for it to ratify. Section 36 mentions the powers (and capacity) of the corporation: Sec. 36. Corporate powers and capacity. - Every corporation incorporated under this Code has the power and capacity: To sue and be sued in its corporate name; 1.

In one case where an acronym was used, the Court said that was not correct. 2. 3. 4. 5. 6.

7.

8. 9.

10. 11.

Of succession by its corporate name for the period of time stated in the articles of incorporation and the certificate of incorporation; To adopt and use a corporate seal; To amend its articles of incorporation in accordance with the provisions of this Code; To adopt by-laws, not contrary to law, morals, or public policy, and to amend or repeal the same in accordance with this Code; In case of stock corporations, to issue or sell stocks to subscribers and to sell stocks to subscribers and to sell treasury stocks in accordance with the provisions of this Code; and to admit members to the corporation if it be a non-stock corporation; To purchase, receive, take or grant, hold, convey, sell, lease, pledge, mortgage and otherwise deal with such real and personal property, including securities and bonds of other corporations, as the transaction of the lawful business of the corporation may reasonably and necessarily require, subject to the limitations prescribed by law and the Constitution; To enter into merger or consolidation with other corporations as provided in this Code; To make reasonable donations, including those for the public welfare or for hospital, charitable, cultural, scientific, civic, or similar purposes: Provided, That no corporation, domestic or foreign, shall give donations in aid of any political party or candidate or for purposes of partisan political activity; To establish pension, retirement, and other plans for the benefit of its directors, trustees, officers and employees; and To exercise such other powers as may be essential or necessary to carry out its purpose or purposes as stated in the articles of incorporation.

Sec. 37. Power to extend or shorten corporate term. - A private corporation may extend or shorten its term as stated in the articles of incorporation when approved by a majority vote of the board of directors or trustees and ratified at a meeting by the stockholders representing at least two-thirds (2/3) of the outstanding capital stock or by at least two-thirds (2/3) of the members in case of non-stock corporations. Written notice of the proposed action and of the time and place of the meeting shall be addressed to each stockholder or member at his place of residence as shown on the books of the corporation and deposited to the addressee in the post office with postage prepaid, or


served personally: Provided, That in case of extension of corporate term, any dissenting stockholder may exercise his appraisal right under the conditions provided in this code. Sec. 38. Power to increase or decrease capital stock; incur, create or increase bonded indebtedness. - No corporation shall increase or decrease its capital stock or incur, create or increase any bonded indebtedness unless approved by a majority vote of the board of directors and, at a stockholder's meeting duly called for the purpose, two-thirds (2/3) of the outstanding capital stock shall favor the increase or diminution of the capital stock, or the incurring, creating or increasing of any bonded indebtedness. Written notice of the proposed increase or diminution of the capital stock or of the incurring, creating, or increasing of any bonded indebtedness and of the time and place of the stockholder's meeting at which the proposed increase or diminution of the capital stock or the incurring or increasing of any bonded indebtedness is to be considered, must be addressed to each stockholder at his place of residence as shown on the books of the corporation and deposited to the addressee in the post office with postage prepaid, or served personally. A certificate in duplicate must be signed by a majority of the directors of the corporation and countersigned by the chairman and the secretary of the stockholders' meeting, setting forth: (1) That the requirements of this section have been complied with; (2) The amount of the increase or diminution of the capital stock; (3) If an increase of the capital stock, the amount of capital stock or number of shares of no-par stock thereof actually subscribed, the names, nationalities and residences of the persons subscribing, the amount of capital stock or number of no-par stock subscribed by each, and the amount paid by each on his subscription in cash or property, or the amount of capital stock or number of shares of no-par stock allotted to each stock-holder if such increase is for the purpose of making effective stock dividend therefor authorized; (4) Any bonded indebtedness to be incurred, created or increased; (5) The actual indebtedness of the corporation on the day of the meeting; (6) The amount of stock represented at the meeting; and (7) The vote authorizing the increase or diminution of the capital stock, or the incurring, creating or increasing of any bonded indebtedness. Any increase or decrease in the capital stock or the incurring, creating or inreasing of any bonded indebtedness shall require prior approval of the Securities and Exchange Commission. One of the duplicate certificates shall be kept on file in the office of the corporation and the other shall be filed with the Securities and Exchange Commission and attached to the original articles of incorporation. From and after approval by the Securities and Exchange Commission and the issuance by the Commission of its certificate of filing, the capital stock shall stand increased or decreased and the incurring, creating or increasing of any bonded indebtedness authorized, as the certificate of filing may declare: Provided, That the Securities and Exchange Commission shall not accept for filing any certificate of increase of capital stock unless accompanied by the sworn statement of the treasurer of the corporation lawfully holding office at the time of the filing of the certificate, showing that at least twenty-five (25%) percent of such increased capital stock has been subscribed and that at least twenty-five (25%) percent of the amount subscribed has been paid either in actual cash to the corporation or that there has been transferred to the corporation property the valuation of which is equal to twenty-five (25%) percent of the subscription: Provided, further, That no decrease of the capital stock shall be approved by the Commission if its effect shall prejudice the rights of corporate creditors. Non-stock corporations may incur or create bonded indebtedness, or increase the same, with the approval by a majority vote of the board of trustees and of at least twothirds (2/3) of the members in a meeting duly called for the purpose.


Bonds issued by a corporation shall be registered with the Securities and Exchange Commission, which shall have the authority to determine the sufficiency of the terms thereof.

A corporation can shorten or extend its corporate term. That will need approval of at least 2/3 of the stockholders. Likewise, if you will increase or decrease capital stock, or create bonded indebtedness, you need approval of not only of the majority of the Board but that of at least 2/3 of the stockholders. PRE-EMPTIVE RIGHTS Sec. 39. Power to deny pre-emptive right. - All stockholders of a stock corporation shall enjoy pre-emptive right to subscribe to all issues or disposition of shares of any class, in proportion to their respective shareholdings, unless such right is denied by the articles of incorporation or an amendment thereto: Provided, That such pre-emptive right shall not extend to shares to be issued in compliance with laws requiring stock offerings or minimum stock ownership by the public; or to shares to be issued in good faith with the approval of the stockholders representing two-thirds (2/3) of the outstanding capital stock, in exchange for property needed for corporate purposes or in payment of a previously contracted debt.

As a rule, stockholders have the right of pre-emption to preserve their percentage of equity in the corporation In the old Corporation Law, the right of pre-emption was limited to increase in the authorized capital stock. So that if the Board offered for subscription a portion of the authorized but unissued shares, there would be not right of pre-emption. That has been changed because the Code now says the right extends to all dispositions. So if the Board offered for subscription a portion of the authorized but unissued shares, the right will apply. Chairman Haidee Yorac is saying that when San Miguel decided to sell shares to Kirin Beer, that was subject to the right of pre-emption of stockholders. That was why Mr. Cojuangco was calling a stockholders’ meeting to ratify the sale. There will be no right of pre-emption in several cases. First , if the articles of incorporation (or an amendment thereto) expressly provide. Second , when the stock ownership is being offered to the public to comply with the law. For

instance, to get a telephone, you must be a stockholder of PLDT with a Subscriber Investment Plan. So, the right of pre-emption will not apply there. Or when the Board of Investments grants incentives under the Foreign Investments Act. It usually imposes as a condition that the company must go public or for a bank to become a universal commercial bank, it is required to go public. Third , when the shares are being issued with the approval of at least 2/3 of the stockholders

in exchange for property needed by the corporation. For instance, here is a suitable site for a hotel. The owner says I am not interested in selling nor in leasing. I wioll only consider if you will make me a stockholder and I will use this property to pay for my subscription. In such a case, the right of pre- emption will not apply. Fourth, when the shares are being issued in payment of a previously contracted debt because

you’re converting debt to equity. Before the only 5-star hotels were the Manila Hotel, The Hilton (now the Holiday Inn), Sherraton and the Intercontinental. Then the Marcoses asked the IMF and the World Bank to hold their annual meeting here so they had to rush the construction of new hotels. After the conference, the hotel occupancy was down. They borrowed money to put up these hotels and they could not pay for the installments. In some cases, the indebtedness was converted to equity. A few years ago, we had a Convention of Law Professors. There was this one professor from the province who was complaining that they were being paid 6 pesos per hour. Another professor said they were not being paid at all. The law school was instead paying them with shares of stock. So that is converting debt to equity.


Sec. 40. Sale or other disposition of assets. - Subject to the provisions of existing laws on illegal combinations and monopolies, a corporation may, by a majority vote of its board of directors or trustees, sell, lease, exchange, mortgage, pledge or otherwise dispose of all or substantially all of its property and assets, including its goodwill, upon such terms and conditions and for such consideration, which may be money, stocks, bonds or other instruments for the payment of money or other property or consideration, as its board of directors or trustees may deem expedient, when authorized by the vote of the stockholders representing at least two-thirds (2/3) of the outstanding capital stock, or in case of non-stock corporation, by the vote of at least to two-thirds (2/3) of the members, in a stockholder's or member's meeting duly called for the purpose. Written notice of the proposed action and of the time and place of the meeting shall be addressed to each stockholder or member at his place of residence as shown on the books of the corporation and deposited to the addressee in the post office with postage prepaid, or served personally: Provided, That any dissenting stockholder may exercise his appraisal right under the conditions provided in this Code. A sale or other disposition shall be deemed to cover substantially all the corporate property and assets if thereby the corporation would be rendered incapable of continuing the business or accomplishing the purpose for which it was incorporated. After such authorization or approval by the stockholders or members, the board of directors or trustees may, nevertheless, in its discretion, abandon such sale, lease, exchange, mortgage, pledge or other disposition of property and assets, subject to the rights of third parties under any contract relating thereto, without further action or approval by the stockholders or members. Nothing in this section is intended to restrict the power of any corporation, without the authorization by the stockholders or members, to sell, lease, exchange, mortgage, pledge or otherwise dispose of any of its property and assets if the same is necessary in the usual and regular course of business of said corporation or if the proceeds of the sale or other disposition of such property and assets be appropriated for the conduct of its remaining business.

In non-stock corporations where there are no members with voting rights, the vote of at least a majority of the trustees in office will be sufficient authorization for the corporation to enter into any transaction authorized by this section. In the sale, lease, exchange, mortgage or disposition of all or substantially all of the properties or assets of the corpration, you need approval not only of the majority of the Board but also of at least 2/3 of the stockholders. According to the law, the test of whether the sale covers all or substantially all of the assets of the corporation is this: will the corporation be capable of continuing its business or accomplishing its purpose. For example, Jollibee must have more than 400 stores all over the country. If they sell 5 stores, you don’t have to get stockholder approval. You have a case where the assets of a corporation were foreclosed and the only remaining asset of the corporation was the right of redemption and they sold it. The Court said you need stockholder approval. I don’t know whatever happened to this but you have that property in Commonwealth Avenue owned by the Islamic Directorate. The Muslim countries in the Middle East donated money for the Muslims to acquire that property. When Martial Law was declared, the Board of Trustees fled to the Middle East and a bunch of people who were not directors sold that property to Iglesia Ni Cristo. The Supreme Court said the sale was not valid because the people who sold it were not the elected directors and secondly, that was the only property of that corporation and therefore, stockholder approval was required. A corporation can acquire its own shares but it is required that it should have unrestricted retained earnings, as a rule. Remember that we said the assets of a corporation constitute a trust fund to answer for its obligations to its creditors. If you allow a corporation when it has no retained


earnings, in effect, it is returning the investment of its stockholders. Thus, that will prejudice the creditors. Section 41 mentions some of the instances when the corporation can acquire shares. Sec. 41. Power to acquire own shares. - A stock corporation shall have the power to purchase or acquire its own shares for a legitimate corporate purpose or purposes, including but not limited to the following cases: Provided, That the corporation has unrestricted retained earnings in its books to cover the shares to be purchased or acquired: 1.

To eliminate fractional shares arising out of stock dividends;

For example, SMC declares 25% stock dividend and here is somebody who owns 17 shares. He’ll end up with fractional shares and it’s very cumbersome if you have fractional shares. At the stockholders’ meeting, how will you compute his cumulative votes? Because of that, the corporation will buy that. That is why sometimes a stockholder will receive a stock certificate for 25 shares and a check for about P6.09—that is the payment for the fractional share. 2. To collect or compromise an indebtedness to the corporation, arising out of unpaid subscription, in a delinquency sale, and to purchase delinquent shares sold during said sale;

Where a stockholder did not pay for his subscription, his shares were sold at public auction, the corporation can buy that at the public auction. 3. To pay dissenting or withdrawing stockholders entitled to payment for their shares under the provisions of this Code.

This is a dissenting stockholder who disagreed with a fundamental action requiring stockholder approval and the corporation decided to embark on a different line of business and the stockholder is not willing to go into that new line of business. He can ask the corporation to buy him out. Sec. 42. Power to invest corporate funds in another corporation or business or for any other purpose. - Subject to the provisions of this Code, a private corporation may invest its funds in any other corporation or business or for any purpose other than the primary purpose for which it was organized when approved by a majority of the board of directors or trustees and ratified by the stockholders representing at least two-thirds (2/3) of the outstanding capital stock, or by at least two thirds (2/3) of the members in the case of non-stock corporations, at a stockholder's or member's meeting duly called for the purpose. Written notice of the proposed investment and the time and place of the meeting shall be addressed to each stockholder or member at his place of residence as shown on the books of the corporation and deposited to the addressee in the post office with postage prepaid, or served personally: Provided, That any dissenting stockholder shall have appraisal right as provided in this Code: Provided, however, That where the investment by the corporation is reasonably necessary to accomplish its primary purpose as stated in the articles of incorporation, the approval of the stockholders or members shall not be necessary.

Under Section 42, the corporation can invest its funds in another corporation but it is with the same purpose, you only need approval by the Board, you don’t need stockholder approval. This is why the Court has said SMC can buy a brewery in Hong Kong without need of getting stockholder approval because that is consistent with the primary purpose of the corporation.


In the same way that the Court has said that Mau Sugar Central could buy a company that manufactures sugar bags. It doesn’t have to get SH approval because that is related to its primary purpose. Because you need sugar bags to pack the sugar that it is selling. Sec. 43. Power to declare dividends. - The board of directors of a stock corporation may declare dividends out of the unrestricted retained earnings which shall be payable in cash, in property, or in stock to all stockholders on the basis of outstanding stock held by them: Provided, That any cash dividends due on delinquent stock shall first be applied to the unpaid balance on the subscription plus costs and expenses, while stock dividends shall be withheld from the delinquent stockholder until his unpaid subscription is fully paid: Provided, further, That no stock dividend shall be issued without the approval of stockholders representing not less than two-thirds (2/3) of the outstanding capital stock at a regular or special meeting duly called for the purpose. Stock corporations are prohibited from retaining surplus profits in excess of one hundred (100%) percent of their paid-in capital stock, except: (1) when justified by definite corporate expansion projects or programs approved by the board of directors; or (2) when the corporation is prohibited under any loan agreement with any financial institution or creditor, whether local or foreign, from declaring dividends without its/his consent, and such consent has not yet been secured; or (3) when it can be clearly shown that such retention is necessary under special circumstances obtaining in the corporation, such as when there is need for special reserve for probable contingencies. Sec. 44. Power to enter into management contract. - No corporation shall conclude a management contract with another corporation unless such contract shall have been approved by the board of directors and by stockholders owning at least the majority of the outstanding capital stock, or by at least a majority of the members in the case of a non-stock corporation, of both the managing and the managed corporation, at a meeting duly called for the purpose: Provided, That (1) where a stockholder or stockholders representing the same interest of both the managing and the managed corporations own or control more than one-third (1/3) of the total outstanding capital stock entitled to vote of the managing corporation; or (2) 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, then the management contract must be approved by the stockholders of the managed corporation owning at least two-thirds (2/3) of the total outstanding capital stock entitled to vote, or by at least two-thirds (2/3) of the members in the case of a non-stock corporation. No management contract shall be entered into for a period longer than five years for any one term. The provisions of the next preceding paragraph shall apply to any contract whereby a corporation undertakes 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: Provided, however, That such service contracts or operating agreements which relate to the exploration, development, exploitation or utilization of natural resources may be entered into for such periods as may be provided by the pertinent laws or regulations.

A corporation can enter into a management contract. What the law really does here is to regulate management contracts. Mgt contracts can be necessary at times. Like here is a mining company whose directors and officers don’t know anything about mining. They can enter into a contract with a corporation which has technical expertise to manage its mines. You have that case of Nielson & Co. vs. Lepanto where Lepanto entered into a managment contract with Nielson & Co. to manage its mines. When the war broke out, the Japs took over the mines of Lepanto. (Yamashita must have been there.) After the war, Nielson wanted to continue the contract because there was a stipulation there that if the contract is interrupted, it will be extended. Lepanto did not agree. Nielson & Co. sued. The contract provided that they would be Jimenez Transcripts (Corporation Code) Page 26 of 46

provided a certain percentage of the gross income as their management fee. In addition, Nielson & Co. would get a certain percentage of the stock dividends that will be declared. Lepanto lost in the SC in December 1966. The award reached about 30 Million pesos. (That case was handled by Ike Bello (for Lepanto) who was devastated by the decision.) Lepanto went to our office which drafted a motion for reconsideration. One of the arguments raised was that a management contract is a contract of agency. Therefore, it can be terminated at any time. But the Court rejected that argument. The Court said that a management contract is a contract for lease of services. It does not involve a representation so you cannot terminate it at any time. The Court, however, eliminated the award for stock dividend. It said that Nielson & Co. was not a stockholder and only a stockholder can be given stock dividends. The law tries to regulate management contracts because it has been used too often to _______ money for the corporation. When Soriano was still managing PAL, he was a minority stockholder but he had this compania which had a management contract. So Soriano & Co. was getting a percentage of the gross income of PAL. Everytime PAL would buy or sell anything, it had a commission. When Toda(?) took over PAL, he did the same thing with his Rubicon which had a management contract. That’s why when Mr. Fred Ramos of National Bookstore was questioning this/ was waging a proxy fight against Soriano III in Atlas Mines, that was an issue he raised. He said that Atlas Mining had a management contract with Soriano Compania which was charging a fee based on the gross income. This was a time when Atlas was incurring losses. In fact, later, Atlas Mining closed. This is why the laws says that a management contract should be approved by majority of the Board, by majority of the stockholders, of both the managed and managing corporation. And if a stockholder of the managed corporation owns more than 1/3 of the managing corporation, the management contract must be approved by at least 2/3 of the stockholders of the managed corporation. A management contract should not be valid for more than 5 years for any one term. You can just keep renewing it provided, that it is not for more than 5 years at any one time. Feb. 12, 2002

Tinine Bautista

(4A, please read codal first before going through this otherwise, it won’t make any sense. For this lecture, the provisions included would be Sections 42-59 ) Powers of the Corporation (cont.)

A corporation cannot act as a surety or guarantor because the law says the assets of a corporation constitute a trust fund to answer for obligations to creditors. So if they will be used to guarantee the obligations of others then they will prejudice the ability of the corporation to pay its obligations to its creditors and besides when the SH put in their money in the corporation it is understood that it will be used for the purpose for which the corporation was organized. However there are exceptions to that, justified by the fact that it is being done for a business purpose: 1.

When it will increase the assets of the corporation (Mr. George Yang can borrow money from Citibank anytime without any collateral because McDo US is guaranteeing his loans. The more outlets, the more royalties MCDO will get. For every outlet, an initial fee will be collected + the franchiser gets 6% of gross sales. The business purpose is the expansion of the venture.)

2.

It is a subsidiary. That constitutes investment of the corporation. It is in the interest of the

mother company for the subsidiary to succeed and be practicable. Here, the mother co. must be the controlling stockholder because if it just owns a few shares it’s not sound business to risk all its assets which may be disproportionately more valuable than its subscription in the subsidiary corporation where it is just a minority SH. So that’s a small investment and it will risk all its assets.


3.

To enable a debtor of the corporation to keep going so it will increase chances of the corporation to collect payment from it . Like, here is a contractor (that is a debtor of the corporation) that cannot finish a project and it needs working capital. The corporation will guarantee the loan so it can get working capital otherwise it will not be a ble to liquidate the down payment/ loan.

PARTNERSHIPS (P)

SEC says Corporations cannot get into partnerships because the management of a P is vested in the partners and that will run counter to the idea that any exposure of the corp should be within the control of the directors. However, a corporation can enter into P’s subject to several conditions: 1. Articles of incorporation authorize the corporation 2. Corp must participate in the management and as a result, it must be jointly and severally liable for the obligations of the P. This requirement is that the corporation cannot be a limited partner because in such as case the corporation will only be a passive investor. You have no say in the management but more recently they changed that and said that a corporation can be a limited partner in a partnership and the justification for this is that if a corporation can be a passive investor in another corporation and it has no say in the management there is no reason why it can’t be a passive investor in a limited partnership DIVIDENDS (SEC. 43)

Most common types; cash, property, stock dividends. Only the board approval is needed to declare cash dividends but the corporation must have retained earnings. Now when the corporation declares cash dividends and it has no retained earnings this is illegal and SH must return what they received and in fact directors will be made liable. You have that Philbanking Corporation case before which became bankrupt because it kept declaring dividends at the time it was incurring losses and the justification: “Eh you see we have always been declaring dividends regularly and if we stop now there might be a bank run.” Well you tell me now, katwiran ba yan ng taong matino? They attacked the CB for closing Philbanking. Assuming it has retained earnings, once cash dividends have been declared they cannot be revoked because you can use that to manipulate the price. For example they declare that 25% cash dividend so the price moves up. The directors sell their shares then they revoke the declaration so the price goes down they buy back the shares. In the case of property dividends you only need board approval but in the case of stock dividends you need the approval of the stockholders. Now, a stock dividend has no taxable consequence because it is the same pie but you are slicing it into more pieces. For instance, here is somebody whose shares represent 10% of the net worth of the corp. The corp declared a 100% stock dividend. What will happen? He will still own 10 % of the net worth of the corporation. The book value of his original share plus his stock dividend will be the same. It is only when he sells and makes a profit will there be a taxable consequence. And because of that even if a stock dividend has been declared it can still be revoked because it’s the same pie only your slicing it in more pieces so even if you declare it you can revoke as long as the stock certificates have not yet been distributed. The SEC has said that paid-in surplus cannot be declared as dividends whether stock or cash. For instance, here is a corp that made a public offering. The par value of the shares is 10 pesos per share but they offer to the public for 16 pesos so the buyers will be paying 6 pesos more. Now, that paid in surplus cannot be declared as a stock or cash dividend because according to the SEC you can only declare dividends from earnings from operations. That paid in surplus was not from operations Itong si Agbayani sabi it cannot be declared but the SEC said it can be declared, subject to certain qualifications. One of the tricks for window dressing the financial statement is when the value of the corp is negative you have your real property re-appraised. Jimenez Transcripts (Corporation Code) Page 28 of 46

Now, the appraisal will increase the value of the property and that wipes out your negative value that’s why normally your external auditor will put a footnote in your financial statement for several years indicating that there has been a re-evaluation. Now, according to Agbayani it cannot be declared but the SEC says it can be declared subject to certain conditions. The property must be subject to depreciation so if it is land you cannot declare a dividend. It must be subject to depreciation and then you charge depreciation allowance and you have retained earnings then you can declare that as dividends. Treasury shares, if they are declared, should be considered property, not stock dividends. Now the law provides (taken from a decree issued before) that if the surplus profits exceed 100% of the paid-in capital, you must declare dividends whether cash or stock otherwise you will be fined by the SEC. That is one of the rackets of SGV. “O, mataas na yung retained earnings nyo, lagpas ng 100% mumultahan kayo ng SEC, you have to declare dividends.” So at the end of the year in your financial statement wala na yan and of course because of that, they will have to prepare a long-form report kasi hindi na kasali sa fiscal year and siyempre tatagain ka for the long-form report. However you can be excused from not declaring subject to certain conditions 1.

Justified by definite corporate expansion projects approved by the board. For instance you get a franchise from abroad there will be a development schedule. For instance they will tell you to open so many outlets within 5 years so when Dunkin Donuts first opened they were required to open 5 outlets within 5 years so the company was not declaring any dividends. Whatever retained earnings they were accruing were being used to put up other outlets. We have this client who owned a heavy mix (?) plant and said that the present plant cannot cope with our volume of business. We have to put up a bigger plant so they purchased a parcel of land in the CALABARZON and they will need 100 million to put up the new plant so they are not declaring any dividends. But it has to be definite in fact, the SEC will ask for copies of the Board Resolution showing the definite expansion plans. The Board Resolution is sufficient of course, you can’t be showing the same resolution for 5 years in a row. Kung hindi gumagalaw yung financial statement or hindi gumagalaw yung assets, ano ba yan? In this case, the SEC must look in. Like this fellow Henry Ng of Unimart, he doesn’t declare dividends and he’s always saying “expansion” I don’t know how he’s getting away with it!

2.

If the corporation is prohibited by a loan agreement from declaring dividends without the consent of the creditors or when the consent has not been obtained. Well, usually if it’s a big loan the creditor will require that as a condition and they will make sure the corp has enough funds to pay

3.

Special circumstances there is a need to build up reserves for contingencies (ex. There is a strike and the union filed a case for unfair labor practice because many employees were terminated so they said if we lose we will be made to pay backwages and that will amount to a hefty amount so we better start building reserves

Now the dividends will be given to the Stockholder (SH) of record. If the SH sells his shares but the transfer has not been recorded in the books of the corporation, it goes to the seller but he will have to deliver that to the buyer. That is between him and the buyer because remember it is the books that are controlling. Usually when the corporation declares a dividend it will say “resolve that the corporation declare a cash div of 25% on Feb 25 to SH of record as of Feb 15 2002 and for this purpose the books of the corporation be closed at the end of business hours on Feb 15 and will be open again at 8:00 am of Feb 26 2002”. BY-LAWS

Corp is required to adopt by-laws within a month after its incorporation in fact you can file your by-laws at the same time as your articles. That printed form you buy from the SEC, they give you the articles and the by-laws at the same time. Now you need majority of the holders to approve the by-laws. If the corporation fails to file its by-laws on time it does not result in the automatic dissolution of the corporation but it can be suspended or fined. The by-laws can state that in order Jimenez Transcripts (Corporation Code) Page 29 of 46

to be a director one must own a minimum number of shares. To amend the by-laws a majority of the SH is required but they can, by 2/3 vote, delegate that power to the Board. To revoke the delegation you only need majority of the SH to remove the delegation of the power to the board. Amendment of by-laws must also be approved by the SEC. The provisions of the by-laws must not be contrary to law. That El Hogar Filipino case, the by-laws giving the board the power to force a SH to surrender his shares would be void. Likewise this Grace Christian High School case. It is this school in Balintawak QC. There was a homeowners association organized as a nonstock, non-profit corporation and to be a member of that association you must be a homeowner. But somehow, thru the years, the principal of the school has been allowed to be a member of the board and one day he was no longer elected as member and he questioned that. He argued that there was a proposed by-law that a representative of the High School be a permanent director. The court said it was void because you’re not a member of the homeowners association so you cannot be elected member of the board and such a provision shall be void. You have that case of Citibank also. The by-laws of Citibank provide that the country manager has the power to enter into compromises in lawsuits and he can delegate that power. There was a delinquent borrower who jumped the gun and filed a case. The case was set for pretrial and the Country Manager issued a special power of attorney in favor of a bank lawyer and Citibank was declared in default. The court said no because the by-laws expressly provide that the country manager can compromise lawsuits and delegate it therefore the SPOA is valid. The by-laws are not binding on third parties unless they have actual knowledge thereof. Even if they are filed with the SEC they are not binding on 3rd parties who have no actual knowledge. You have the case of Valley Golf Club. A member pledged his share to China Bank. He failed to pay so China Bank foreclosed. It bought the share at public auction and it now asked Valley Golf to transfer the share in its name. Valley Golf when it found out, refused and claimed it had a lien on the share because its By-Laws provide that the Country Club will have a lien on the share for unpaid accounts. So they proceeded to foreclose their lien also. The court said that is not binding on China Bank because it is a third party who does not have actual knowledge of that provision. Likewise you have that PMI Colleges case. There was a teacher who was hired but eventually terminated so he filed a case for illegal dismissal. The defense of PMI College was “you got illegally hired because under our By-laws, only the chairman of the board is given the power to hire faculty members and you were not hired by the chair. Now the court said that is not binding on the teacher because he has no actual knowledge of the By-laws. MEETINGS

Title VI deals with meetings. The provision here applies in the absence of a provision in the by-laws. The by-laws will be what will primarily apply. Meetings can either be regular or special. Regular meetings shall be held annually on the day fixed by the by-laws or if none, any day in April as determined by the board or trustees. Well normally, the annual meeting of the SH will be held late in April or in May so that the audited financial statement will be available for distribution to the SH. Although itong si Henry Ng he placed in his By-laws, “the annual SH meeting will be held on the last business day of December” because everybody is busy with Christmas shopping so walang sisipot ng meeting, walang magiging kontrabida na mag-question sa meeting. That is his purpose. When I was still active attending board meetings there was this old lady Mrs. Josefina dela Cruz in a wheelchair and every meeting she will just ask a lot of questons. She would say, “you know you should send the report to me in advance so I will have time to study it. Ganon lang naman yan magdadadakdak and that would make her day so Henry Ng to avoid that, scheduled his meeting on the last day of December Now written notice must be sent to the SH at least 2 weeks before the scheduled meeting. Again, these provisions apply in the absence of any in the by-laws to the contrary. A special meeting may be held at any time and if there is no provision in the by-laws, notice must be sent at least 1 week before. Notice of the meeting may be waived expressly or impliedly by the SH, like you


may sign a waiver especially if it’s a closed corporation. anyway and he participates actively and he votes.

Implied waiver is when he shows up

The SH meeting should be held in the city or municipality where the principal office is located. It need not be held in the principal office itself as long as it is held in the city or municipality where the principal office is located. For instance the SH meeting of San Miguel Corporation is held in Folk Arts Theater or PICC, eh maraming stockholders yan eh. They go there to get the free soft drinks and iced tea. Proceedings shall be valid even if the meeting was irregularly called as long as all SH are present. Unless otherwise provided, quorum shall consist of the majority of the SH. The articles and by-laws may provide for a higher majority especially if it involves a joint venture. Two corporations, 60-40 the 40% might want to be able to block the majority so they may require to protect themselves so they may require 2/3 majority to have a quorum and that would be valid. On the other hand, you can have a provision that says that a quorum will be less than majority especially in non-stock corps. Alumni associations will have a provision there that says the quorum will consist of the number of persons who actually showed up, yeah, to make sure you always have a quorum, because if you call an alumni association meeting, less than 10% will show up so they put that any number that shows is a quorum. Once a quorum is called, and the meeting was called to order even if some of them walk out in the middle and the people left are less than majority, the proceedings will be valid so long as there was a quorum when the meeting was called to order. Regular meetings of the board will be held monthly unless otherwise provided in the by-laws. Special meetings may be called by the president (or any 2 directors for example) in accordance with the By-Laws . Meetings can be held anywhere in the Philippines or outside the Philippines but the Manual of Regulations for banks prohibit banks from holding their meetings outside the Philippines, eh otherwise magju-junket palagi yang mga directors na yan, “o, let’s hold our meeting in New York the next time o, let’s do it in Paris.” The directors may waive notice of the meeting either express or implied (same rules as stockholders above). The SEC has said before that directors cannot be represented by proxy. Proxy voting is available only to stockholders meetings and before, the SEC said that a director cannot be present electronically because the idea of having a meeting is the exchange of ideas and you do not have that benefit when other participants of the meeting are there by telephone or computer. Now, the SEC has said that because of the E-Commerce law you can be present by cellular phone/ phone patch/ video conferencing as long as properly documented. They still have to issue expanded and definitive regulations to govern the matter. Who will preside at meetings? Usually the president unless otherwise provided in the bylaws. Usually it is the chairman of the board who presides at SH and board meetings. (I guess the president and the chairman is considered the same guy but he actually said this) At the regular meeting of the board any matter can be taken up. You don’t have to specifically put an item in the agenda unless the corporation specifically requires that a matter be included there, like removal of a director. That has to be stated in the agenda. In a regular meeting you can take up anything. But if it’s a special meeting only matters stated in the notice can be taken up unless it was taken up and it was not in the notice and nobody objected, that is waiver When a sale is pledged the pledgor/ mortgagor will have a right to vote unless it was expressly provided that the pledgee/ mortgagee will be the one to vote the shares. In the case of executors/ administrators/ receivers, they will be the ones to vote the shares. If the shares are owned in common the co-owners must agree on how to vote the shares and they must all agree to give a proxy. If for example they are deadlocked, some vote no and others vote yes then that share cannot be voted. If its an and/ or set-up, either one who happens to be present at the meeting can vote but if they’re both there and their votes are conflicting then you cannot vote the share. Likewise, if it is and/ or, either one can give a proxy. A proxy is valid only for the meeting for which it is issued unless otherwise specified in the proxy that’s why normally, every time there is a board meeting, the board sends out a proxy form because the proxy is only valid for that meeting. If it is a continuing proxy it can only be valid for 5


years because the old corporation law contained a limit as to the duration of voting trusts of 5 years but did not put a limit on proxies. So to harmonize the 2 they provided here that a proxy can be valid only for 5 years because there’s no sense in making the duration of proxies unlimited while that of voting trusts are limited to 5 years. VOTING TRUSTS (SEC. 59)

A stockholder can create a voting trust. What will happen is that the share of stock under his name will be cancelled and will be issued in the name of the trustee. The VTA is valid only for 5 years. But, if this was imposed as a condition in a loan, it will be valid for a longer period because the lender imposed that condition to protect his interest especially if it is a big exposure. The bank will want to know what is happening so they will insist that a bank officer should be given a voting trust and sit in the Board to find out what’s happening. If the loan is for 10 years it can be for 10 years but if the loan is paid, automatically the VTA will lapse even if the 10 year period has not yet expired because the voting trust is merely to protect the interest of the bank. These are different devices to accumulate votes, the proxies, the trusts. You can also have a pooling agreement where 2 or more SH sign an agreement that they will vote their shares together, in the same way. We will continue tomorrow…. Feb. 13, 2002

Maita Chan-Gonzaga

Stocks and Stockholders SUBSCRIPTION CONTRACT § 60 [Subscription contract] simply defines what is a subscription agreement and § 61[Pre-incorporation subscription] says a subscription for shares of stock of a corporation still to

be formed shall be irrevocable for at least 6 months unless all the subscribers agree or the incorporation fails to materialize. §62 [Consideration for stocks] mentions that consideration may be paid… It says here that stock should not be issued for a consideration less than the par value, or if it is a no-par value share, less than the stated value and the consideration possible may be actual cash which is the most common consideration. Or property. Payment made in the form of property, the SEC will require an appraisal. Usually, the property given will be land so they will require an appraisal. And then, labor actually rendered already, in other words, past services. Then, previous debt. So when debt has been converted into equity. Then amount transferred from unrestricted retained earnings to capital. That is what happens when the corporation declares a stock dividend. A bookkeeping entry will be made and the amount corresponding to the stock dividend will be debited from unrestricted retained earnings and transferred to capital. Then outstanding shares exchanged for stocks in the event of reclassification or conversion. For instance, a preferred share is given the option to be exchanged for common shares. When you surrender, you’ll be given common shares. Or say, the corporation decided to change the par value from P100 to P10. So they say, you know, it’s very hard to sell the shares in the stock market because the price is too high. P100! Stockholders will be asked to surrender their stock certificates. In return, they will be given new stock certificates with the par value of P10. Or when you have a merger, stockholders of the absorbed corporation will surrender their shares and in exchange they will be given shares in the surviving corporation. And also, it is illegal to issue shares where the consideration is a promissory note. A promise to pay for future services. Now the stock certificate will be signed by the President, or in his absence the Vice-President, and countersigned by the Secretary (§63; Certificate of stock and transfer of shares ). That’s why in one case…you have this Torres case… a retired Judge who was the controlling stockholder in a corporation. And his nephew to whom he had given shares of stock turned out to be recalcitrant and rambunctious so he decided to regain control of the corporation by giving shares to other nephews. And what did he do? He was the president of the corporation and he simply posted entries in the stock and transfer book. O, one share to this fellow, another share to that… The court said that that is not valid. That is not the way to…and besides, he is the president, not the corporate secretary. He is not supposed to handle the stock and transfer book. Jimenez Transcripts (Corporation Code) Page 32 of 46

TRANSFER OF SHARES OF STOCK

It says here, shares of stock are personal property and they may be transferred by delivery of stock certificates endorsed by the owner or his attorney in fact. So you need two things: an indorsement of the stock certificate plus delivery . That’s why you have that case of Razon where Mr. Vicente Chuidian wanted to regain shares of stock which he claimed belonged to his father in E. Razon. And Razon said “No, this does not belong to your father. It actually belongs to me.” Well, the stock certificates were actually in his possession. The court said there was no indorsement so he cannot claim that the stock certificate belonged to him. On the other hand, the court said that where the stock certificate was endorsed but it was not delivered, then the shares of stock represented by the stock certificates had not been transferred to the buyer. And the court says it is a ministerial obligation of the corporation to transfer the shares of stock to the name of the buyer. So even if a case has been filed for the rescission of the sale, the corporation still has to transfer the stock certificates. There was a case where the seller sold the shares of stock and he was paid. And a new stock certificate was issued to the buyer. And then the corporate secretary says that, “Well, the old stock certificate has not been endorsed.” So the buyer returned it to the seller and told him, “Will you please endorse it so that it can be cancelled.” But the seller did not and refused to return the stock certificate. So the corporation declared it as cancelled. The court said that the cancellation was valid because actually he has sold and it and he has been paid. It was just delivered to him for him to endorse and he unjustifiably refused to return the stock certificate. And therefore the corporation can consider it as cancelled. Now, no transfer shall be valid except as between the parties until the transfer is recorded in the books of the corporation. Why? If the selling stockholder has a creditor and in the books of the corporation the shares are still in his name, the creditor can attach and levy on the shares. Now, although it has been said that shares of stock are personal property and are quasinegotiable because to transfer them, the seller can simply sign at the back and deliver it they’re not like negotiable instruments. That’s why if the indorsement of the stockholder was forged even if it was an indorsement in blank, the buyer shall not acquire any right to the share of stock. Now if the one who forged it was an employee or officer of the corporation who was precisely in charge of the stock, the records or the stock certificates, then the corporation will be responsible for his act. Like you know, you are required to be a stockholder of PLDT to get a telephone line. Many people do not claim their stock certificates so they are there in the vault of PLDT. I have one case where an employee there who was in charge of their custody forged the indorsement of some stock and sold them in the stock market. So the buyer would get good title, the corporation will be liable. So what will happen? The buyer will get good title and the seller will also have to be recognized. And it would be PLDT who would bear the loss. But remember whenever there will be an over-issuance of the shares, irrespective of good faith, the buyer cannot acquire title. If there is over-issuance, the owner of the shares of stock whose signature was forged must be recognized as still the owner and the remedy of the buyer would simply be to sue PLDT for damages. Likewise if the indorsement was forged… somebody stole the stock certificate, forged the indorsement and because of that, the corporation issued a stock certificate to that forger so he now has a stock certificate in his name and he goes around and sells that to somebody who bought that in good faith, he will be protected because he has the right to rely on that stock certificate in the name of the seller. So what will happen, both the original owner whose stock was stolen and that buyer, para ‘tong Torens title, will be recognized. But again if this will result in over-issuance, it is the original owner who will be recognized and the remedy of that buyer will be to simply sue the corporation for damages. Now the law says no shares of stock against which the corporation holds any unpaid claim shall be transferable in the books of the corporation. In other words, if there is an unpaid subscription and there’s a call (?). So first of all, the SEC has said that a subscription contract is an indivisible contract. And therefore the stockholder, if he subscribed to 1000 shares cannot say, “I will sell 500 and then retain 500.” No. The contract is indivisible. So it must be all or nothing. If he wants to sell, he must sell the entire 1000 shares. Now if he does that, he must get the approval of the board because remember he still owes the corporation for his unpaid subscription and therefore if he will sell the shares, in effect he will be substituting somebody for him as debtor for the unpaid Jimenez Transcripts (Corporation Code) Page 33 of 46

subscription. And when there is substitution of debtors, that is novation and you need the consent of the creditor- the corporation. Now you have this case of China Bank which I mentioned earlier where China Bank foreclosed the pledge on the proprietary shares of Valley Golf Club. When it asked Valley Golf Club to register the shares in its name, Valley Golf Club refused. It said that this stockholder has unpaid obligations. He has not paid his monthly dues, he has not paid his bills and under the bylaws, Valley Golf Club has a lien on the stock certificate for his proprietary share for his unpaid claim. And Valley Golf Club argued under §63 that it can’t be transferred in the books in the name of China Bank because we have these claims which are not paid. The Court said no. The unpaid claim mentioned here refers to the subscription price. It does not refer to amounts due the corporation arising from other transactions. It only refers to payment due under the subscription agreement. ISSUANCE OF STOCK CERTIFICATES

It says here ( §64; Issuance of stock certificates ) that no stock certificate shall be issued until the full amount of the subscription has been paid because, it said, a subscription contract is indivisible. So until the entire consideration is paid, the stockholder shall not be entitled to a stock certificate. That’s why that old Baltazar case is wrong. Where Justice Paredes said that… let’s say you subscribed to 1000 shares and you paid only 25% of the price, the stockholder has the option. He can either spread out that partial payment equally among the 1000 shares so each share will be partially paid or he can apply that as full payment for 250 shares and then ask the corporation to issue stock certificates to him for 250 shares. That is wrong because the subscription agreement is indivisible. WATERED STOCKS

Now under §65 [Liability of directors for watered stocks] , we’ve mentioned this before, an officer or director who agrees to the issuance of watered stock or such officer who, having knowledge of it, does not file with the corporate secretary his written objection, will be liable if a stock is watered. In other words, the stockholder paid less than the par value or the stated value for the shares of stock and then he was issued a stock certificate. When the corporation receives less consideration than the par value of a par value share or the stated value if it is a no-par value share… that is called watered stock. Because remember, cattle is called stock. And in the old days of the wild, wild west, when the cowboys would bring their cattle to the market to be sold, they will make the cattle eat salt so the cattle will be very thirsty. And then along the way, they will pass by a stream. And so the cattle are very thirsty and so they will drink a lot of water. So when they arrive at the market, the cattle will be very heavy because of the water. So when the cattle is weighed by the buyer, the cattle is heavy and he will pay the price for that weight but what he is paying for water. He is not getting his money’s worth. That cattle which is full of water which is being sold for a heavier weight – watered stock. That’s why shares of stock where the corporation did not get its money’s worth came to be called watered stock. UNPAID SHARES AND DELINQUENCY

Now, the unpaid portion of the subscription, as a rule, does not earn interest unless the bylaws provide for interest ( §66; Interest on unpaid subscription ). And if the by-laws specify what is the interest, that is what will apply. But if it does not state what will be the interest, then it will be the legal rate. Now, so long as the stockholder is not delinquent, he is entitled to exercise all the rights of a stockholder so he can vote his shares and if there are dividends declared, he will receive the dividends. (§72; Rights of unpaid shares). Now when will the payment of the balance fall due? (§67; Payment of balance of subscription). In two cases. First, if the subscription agreement stipulates that he should pay for the balance of the subscription on certain dates. Secondly, if a call was made. If the director said, “We need more working capital” and so it made a call. Now a call must be uniform. You must make a call on everybody. Otherwise, if you will allow the board to single out some stockholders and they want to get rid of some stockholder who is questioning so many actions of the board, then they will Jimenez Transcripts (Corporation Code) Page 34 of 46

make a call for his share only. And then if he does not pay, they will sell his shares and get rid of him. It has to be uniform. Now, so if a call is made and a stockholder fails to pay, let’s say the directors say, “Ok, we are making a call on 25% of the subscription” and he fails to pay, the law says the entire balance of his subscription will become due. Although the call was only for 25%, if he fails to pay, the entire balance including the 75% will fall due. And so if within 30 days from the date payment should have been made, he has still not paid, that is now delinquent. And once the shares are delinquent, he will lose the rights of a stockholder. ( §71; Effect of delinquency ) He cannot vote his shares, he cannot receive any dividends and if there is any stock dividend, the delivery of the stock certificate will be withheld and any cash dividend will be applied in payment of his subscription. So once the stocks are delinquent, then the corporation will now pass… the board will now pass a new resolution ordering that the shares be sold, which should not be less than 30 days or more than 60 days from the date the shares became delinquent. ( §68; Delinquency sale) And notice of the sale should be sent to the stockholder and that should be published once a week for 2 weeks in a newspaper of general circulation. So if the stockholder still fails to pay, well, the shares will be sold at public auction. The auction will be the Dutch method of auction, In other words, the price is fixed. The auctioneer will say, “Gentlemen, we have here 1000 shares which are delinquent and the balance of the subscription is P75,000. How many shares am I offered for P75,000?” Somebody says, “7,500”. Somebody else says, “6000.” “5500.” The one who is willing to get the least number of shares for that price will be the one who will win the bid. And as a result of that, the subscription will now be fully paid and the rest will be given to the delinquent stockholder because he is now fully paid. If there is no bidder, the corporation can bid. Now, until the corporation makes a call, the payment of the subscription is not due unless the subscription agreement contains a stipulation as to when it is to be paid. That’s why in one case, an employee of a corporation filed a case and got a judgment against the employer but he was also a stockholder. And the employer argued that it should not be ordered to satisfy the judgment because…since this employee has an unpaid subscription, the balance of the subscription should be set-off against the judgment in his favor. The court said, “No, for compensation to take place, both debts must be due.” And the payment for the subscription is not yet due because no call has been made. Now that unpaid portion of the subscription is an asset because it is a receivable. And creditors can sue the stockholders for the unpaid subscription if the corporation has no assets. Now normally, the plaintiff will sue first the corporation and then if the corporation… and if he gets a judgment and it cannot be satisfied…there is a sheriff’s return…unsatisfied…then he can now sue the stockholders for the unpaid amount of their subscription. Now if, at the time the case was being filed against the corporation, the corporation is already insolvent and cannot pay, then the creditor can already include the stockholders as defendants in that action. Well, I had a case before, when Miriam Defensor was still a judge. Our client was a foreign company which sold chemicals to a company here. It was a good project but the problem was they put in too little capital and instead the borrowed massively and so it was the interest payments that was killing them. Now, our client filed a case and they compromised and agreed to pay in installments over a period of 2 years but then they failed to pay. So now I sued the stockholders for their unpaid subscription and the case was assigned to then Judge Miriam Defensor Santiago. Defense of stockholders: payment. They said we have already paid for our subscription. And they submitted receipts to prove that they had paid for their subscriptions. But you see, when the printing press prints the receipts, it must first get approval from the Bureau of Internal Revenue. So they will get approval and say we are printing these official receipts with these serial numbers and it is only after you get approval that you can print and the number of the permit and the date of its issuance will be printed at the bottom of the receipts. Now these receipts were obviously forged because they were dated something like February but the date of the issuance of the permit by the BIR for printing was dated June. So they were obviously fabricated. That’s why in a moment of lucidity, Judge Miriam Defensor Santiago held the defendants liable. Now if the owner of the shares want to question the sale, the law requires he must first pay the party who paid for his shares of stock with legal interest. And he must file the case within 6 months from the date of the sale. (§69; When sale may be questioned). Jimenez Transcripts (Corporation Code) Page 35 of 46

Now the corporation can decide to sue instead on the unpaid subscription. ( §70; Court action to recover unpaid subscription ). Why? Because if, for example, a corporation is incurring losses, if you sell that at public auction, nobody will buy. Because the value of the corporation is negative. So if the corporation decides to buy it also, it won’t (?) make sense. So they would probably, in such a case, choose to sue instead the stockholder for payment of the balance of his subscription. LOST CERTIFICATES

Now if a stock certificate was lost, to get a new one, the stockholder must execute an affidavit explaining the circumstances under which the stock certificate was lost. ( §73; Lost or destroyed certificates). And then, notice of the loss will be published once a week for 3 consecutive weeks in a paper of general circulation. And then after 1 year from the date of the last publication, he can get a new stock certificate. But the stockholder might want to get the stock certificate right away. For instance, he might be applying for a loan and intends to use the shares of stock as collateral for the loan. So he cannot wait for a year. He will be allowed to get the stock certificate but he will be required to post an indemnity bond equal to the value of the shares listed in the stock market. The stock and transfer agent will say, “Ok, you just give a bond equal to the value of the shares in the stock market.” If it is not listed in the stock market, well you can use the book value which appears on the latest audited financial statement. RIGHTS OF STOCKHOLDERS

Your book mentions the rights of stockholders. They have a right to have a stock certificate, to vote, to receive their share in the dividends, to participate in the distribution of the assets in case of dissolution, and they can enter into a voting trust. They have the right to pre-emption, they can withdraw, they can ask for their appraisal rights, they can say “I don’t agree with what you’re doing, buy me out.” They can transfer their shares. They have the right to vote in and remove the directors and approve certain fundamental corporation actions. To file a derivative suit. And to enable them to exercise their rights wisely, they have the right to inspect the corporate records. PROXY VOTING

Now, as I said before, a stockholder can vote by proxy. But if he gave a later proxy, the later proxy will prevail over the earlier proxy. If you cannot tell which one is later because they don’t have dates, well, neither can vote. Or if the stockholder personally showed up at the stockholders’ meeting, then he is personally present, then the proxy will lose the right to vote because the proxy is just an agent and agency can be revoked at any time. However if the proxy is coupled with an interest, then it cannot be revoked. For instance, if you have a bank which loaned a substantial amount of money and it required this borrower to pledge his shares of stock as collateral and to give a proxy until the loan is fully paid, then he cannot revoke the proxy because it is coupled with an interest. DERIVATIVE SUIT

Now the stockholders are also allowed to file a derivative suit for redress of wrongs committed by the management. There are four requisites for the filing of a derivative suit. First, there must exist a cause of action which calls for this remedy. Example, the directors are mismanaging the affairs of the corporation. On the other hand, remember you have the business judgment rule. The court will not set aside the decisions and actions of the board unless they have acted in bad faith, illegally or with gross negligence. Even if the decisions may have resulted in losses, the court will not second-guess the board. So they must have committed mismanagement, or fraudulently disposed of their properties…Like in one case, you have two families who were stockholders of this corporation. One family was the one managing it and this family was siphoning the funds and transferring it to their own bank account. A derivative suit can be filed. Or the example given in your book is like that Republic Bank case. Republic Bank was being investigated by the Monetary Board, so what did it do? It got Caderno, the former governor of Central Bank as


consultant. It was obvious that the purpose was to take advantage of his influence. So this is a case of influence peddling and so that contract could be assailed. Or in the old days, when you still have this import control. You cannot import unless you have a dollar allocation. One company sold its dollar allocation. You sell your dollar allocation, that’s illegal. You won’t get another dollar allocation again. So that could be the basis of a derivative suit. Then the stockholder must exhaust all remedies within the corporation by applying for redress from the board or from the stockholders unless this is excused. Well, the court has said, well, if the directors are mismanaging, to appeal to them would be useless since they are the very ones committing the wrong you are complaining about. Or the case of San Miguel, where you have probably around 20,000 stockholders around the world. It would be too unrealistic and too cumbersome to require a stockholder to appeal first to the stockholders and ask for a stockholders’ meeting. Third, the plaintiff must have been such at the time of the act complained of. If he was not yet a stockholder at the time of the act complained of, he cannot sue unless they are still being continued after he became a stockholder. That’s why you have this case of Nora Bitong, she filed a derivative suit against Apostol and these other people in the Philippine Daily Inquirer but actually she was just a dummy of Juan Ponce Enrile who was the actual owner of the shares. Now the court said that since she was not really the owner of the shares, she could not file a derivative suit. And moreover, the shares issued in her name were antedated to make it appear that she became a stockholder before the action she was questioning occurred. The court said she cannot file a derivative suit questioning those transactions. Then the action must be brought in the name and for the benefit of the corporation because the cause of action you are asserting belongs to the corporation, that’s why the plaintiff will be the corporation. Well there was this recent case of Atty. Hilda Lim. Where she…they had a family corporation and the board passed a resolution saying that to pay for her legal services to the corporation, she should be given shares of stock from the authorized but unissued as payment for her legal services. Another stockholder questioned that and claimed that this violated his right to pre-emption. Well, that was his claim. Well, Hilda Lim argued that he could not file that case because…the SC had issued a TRO restraining him from acting in behalf of the corporation and he was filing a derivative suit. The court said no, the cause of action he is enforcing is his own right because he claims that he had a right of preemption. So this was not a right belonging to the corporation so this was not a derivative suit. Now, this derivative suit is allowed precisely to enable a minority to protect its rights against a majority. That’s why the majority cannot dismiss a derivative suit filed by the minority. In the case of San Miguel Corporation, the court said it is not the mere fact… that former dean Eduardo de los Angeles owned only a few shares of San Miguel is not a ground to dismiss the case that he filed because the cause of action he is ascertaining pertains to San Miguel Corporation, not to himself. Therefore the fact that he only owned a few shares, which are insignificant, is not relevant. What happened was that Mr. Andres Soriano III bought 2 corporations. He bought them for himself and he used the funds of San Miguel Corporation. And since the cause of action a stockholder is ascertaining in a derivative suit pertains to the corporation, the proceeds of the case should accrue to the corporation. If a court awards damages, that should go to the corporation, not to the stockholder who filed the derivative suit. And whatever judgment is rendered in that case will be binding on the corporation. You cannot have another stockholder filing another derivative suit. That’s why the court has to be careful if it approves any compromise. And if the stockholder wins, he is entitled to be reimbursed for the expenses and attorney’s fees he incurred in prosecuting that case for the benefit of the corporation. Feb. 14, 2002

Varvie Roldan

BOOKS Section 74 - Books to be kept; stock transfer agent. - Corporations are required to keep

records of all business transactions and minutes of the meetings of the stockholders and directors and upon demand, any stockholder or director can inspect the corporate records and obtain copies at their own expense. So stockholders are given this right of inspection so that they will be properly informed and will be able to exercise their right as stockholders intelligently. The right of directors to inspect the corporate records is broader than that of stockholders because they are the ones Jimenez Transcripts (Corporation Code) Page 37 of 46

involved in the management of the corporation so they would need information to be able to make decisions wisely. The directors and stockholders have the right to examine the records at reasonable hours on business days. The corporation cannot limit the right to inspect on specific days only. If the right of inspection is denied, the officers responsible for the withholding of the records are criminally liable under section 144 and will also be liable for damages. There are reasons given in the code for not allowing inspection, but the right exists as concurred by law; therefore, the burden is on the corporation to show that a stockholder or director is not entitled to be allowed to inspect the records of the corporation. Case of Gokongwei vs. SEC

The Court said Gokongwei had the right to examine the record of San Miguel International. San Miguel Corporation was arguing that that is a separate corporation. But the court said it is a wholly-owned subsidiary corporation so its capital gained from San Miguel Corporation, and therefore Gokongwei as stockholder of San Miguel Corporation had the right to examine the records of San Miguel International. What are the grounds for not allowing inspection? 1. If the person demanding to examine the records has improperly used any information secured for prior examination For example, a stockholder who was earlier allowed to examine the records made use of insider trading. So he was able to buy shares because of information that became available to him which was not available to others. 2. If he is not acting in good faith. For example, a stockholder who wants to get information on the business plans of the corp. because he's a stockholder of another competing corp., and so he will pass on the info. to that other corp. Or for example a stockholder would want to know the formula of Coca-Cola. 3. It is not being exercised for a legitimate purpose. Case of Ramon Gonzales - He filed a petition for mandamus to examine the records of certain

transactions entered into by the Philippine National Bank. He filed it as a taxpayer. His petition was denied. So what he did was he bought one share. He said that since he is now a stockholder, he has the right to examine the records of those transactions which he earlier wanted to see. The Court denied his petition because it said he was not exercising his right of inspection properly. This right is given to stockholders in order to protect their investment of the corp. But that is not the situation here. He earlier tried to see the records and when that wasn't allowed he bought one share, and he's using that as justification for looking into the records. He bought the one share to be able to look and pry into the records, because he was earlier denied access to the records. So he's not exercising the right to protect his investment. MERGERS AND AQUISITIONS Section 76 deals with mergers and consolidations. In merger, one corp. is absorbed by

another as the surviving corporation. In consolidation, a new corp. is formed which will absorb two or more existing corporations. In case of merger or consolidation, the directors of all the corporations involved must approve a plan of merger or consolidation. They state there what is the name of the corp., who will be the constituents, what are the terms of the consolidation or merger. Example, when Philippine Guaranty Company used to be an insurance company owned by the Ayalas, it was merged with FGU Insurance Corporation. Recently, FGU Insurance Corporation was merged with this Mitsubishi Mitomo then changed them to BPI and S Insurance Corporation. For example, when FGU Corp. was merged with Phil. Guaranty, they drew up a plan of merger. They said this is what will happen: the authorized capital stock of FGU will be increased and stockholders of Phil. Guaranty will surrender the shares of stock in Phil. Guaranty in return for shares of stock of FGU. It could then probably be provided in the merger how the directors will be distributed between the two constituent companies and how the officers will be distributed; or regarding retrenchment, for example if there are two heads of the legal dept., one will have to go; what you will pay to those who will not be maintained, etc.; what will be the interim arrangement while the merger has not yet


been approved by the SEC; and if for some reason the merger is disapproved by the SEC, how will you unwind the transaction. The merger or consolidation will have to be approved by majority of .the directors of the corporation involved and at least two thirds (2/3) of the stockholders. And the merger of consolidation will take effect upon the approval by the SEC. If it involves a corp. engaged in a line of business regulated by another agency like banks, insurance companies, then SEC will refer that to the regulatory agency for comment. And upon merger or consolidation, there will be only one surviving corporation, the existence of the separate will cease, the surviving corp. will acquire all the rights, portfolio of business, properties, privileges, and powers of the constituent corporations; at the same time it will also assume the liabilities and obligations of the absorbed corporations. There was a case where this Associated Bank and I think this Philman Bank which were merged. They were probably still using the old forms. One borrower obtained a loan and the promissory note he signed was still in the name of the bank which was absorbed and which has ceased to exist. When he was being sued, he invoked that as his defense. He said that the promissory note is in the name of the absorbed bank. The one suing him, he said, is another bank. The Court said that is the surviving bank, and sine the two banks were merged, it is entitled to sue to recover the payment even if the promissory note was issued in the name of the bank which was absorbed. APPRAISAL RIGHT

It is the right of the stockholder to ask the corporation to buy him out. A dissenting stockholder can ask the corporation to buy him out in case of an amendment which affects the rights of the stockholders, or if you increase or extend the corporate life, you increase the authorized capital stock, you go into another line of business, or there's merger or consolidation, or where the corp. sells, leases, mortgages or encumbers or disposes of all or substantially all of its assets. And then in the title on closed corporations, the law provides a stockholder can at any time ask the corp. to buy him out. Now, say if a stockholder does not agree with the fundamental decision approved by the corporation which requires stockholder approval, he can ask the corp. to buy him out. To exercise that right, he must make a demand within thirty (30) days from which the decision to which he does not agree was approved. If he does not make the demand within that period, that will be barred. He'll be paid the value of his shares on the day before that action was approved. It must be the day before because the approval will affect the price of his shares one way or the other. It might increase, or decrease. If within sixty (60) days from the time the action with which the stockholder does not agree was taken, they cannot agree on the value, then that will be decided by appraisal. The corporation will name one appraiser, the stockholder will name another appraiser, and the two will choose the third one (a tiebreaker), and the decision will be final The corporation must pay within thirty (30) days after the award was made. But the corp. must have retained earnings; otherwise, creditors will be prejudiced. The cost of the appraisal will be borne by the corp. unless the award is close to what the corp. offered, for then it is the stockholder who will pay because it is his unreasonable demand that made that unnecessary expense. Once a stockholder demands the exercise of his appraisal right, he will lose all the rights of a stockholder: he can no longer vote, he can no longer receive dividends. His only right is to receive payment. His right to be paid will cease if he withdraws his demand and the corp. agrees. Secondly, if the proposed action to which he was objecting was cancelled, or it was disapproved by the SEC, or if the SEC determines that he is not entitled to appraisal rights, then his rights will be restored. Likewise, if the corp. fails to pay him within 30 days then his rights will be restored. NON-STOCK CORPORATIONS

For a corporation to be non-stock, it must have no shares of stock and it must not be authorized to declare dividends. The law mentions the different purposes for which a non-stock corp. may be organized: 1. They may be organized for charitable purposes (Suspicio de San Jose, Tahanang Walang Hagdanan). 2. A religious order can incorporate as a non-stock corp. for the management of its properties. Jimenez Transcripts (Corporation Code) Page 39 of 46

3. Educational: many of the religious sectarian schools are organized as non-stock corporations (Ateneo de Manila, La Salle) 4. Others: Professional (bar associations, accountants, engineers), Cultural, Fraternal, Literary, Scientific, Social, Civic Service, or similar purposes ( Chambers of Commerce). The right to vote may be limited, broadened, or denied in the articles or the by-laws, but unless the right is limited, broadened or denied, each member will be entitled to vote. A member may vote by proxy unless that is prohibited in the by-laws. For instance, the country clubs. Usually they will have different kinds of members. They will usually provide that whoever is the President of the Phils. And the mayor of the place are honorary members, and they can use the Philippines. After the honorary members, there are the regular members, and these are those who own a proprietary share. But it's expensive to run and maintain a country club. So to broaden the base of people to whom they can collect monthly dues, they sometimes create these associate members. These are members who do not have a proprietary share but they will be allowed to make use of the playing rights of one who owns a proprietary share provided they pay also monthly dues. And usually the by-laws will provide that only those who own proprietary shares can vote. So the honorary members and these associate members are given only playing rights and are not allowed to vote. Voting by mail or others means like by fax may be allowed. But membership is non-transferrable. If somebody owns a proprietary share in a country club, if he dies and his share is inherited by his son, the son does not automatically become a member. He has to apply for membership. If he's disapproved, he cannot make use of the facilities. If he has a reputation for not getting along with others, quarrelsome, they wouldn't want to have such person as member. The only thing he can do to that share is that he can sell it, mortgage it, but he cannot be a member if he's not accepted. Membership shall be terminated in the manner and for causes provided in the articles or by-laws. For example, a case of loyalty to the organization. Like for instance, a member of the Manila Yacht Club, organizes a competing regatta in Subic to compete with the regatta there, so that's his loyalty. Or where a member playing golf would make a game terrible for everybody: they use their temper, they throw the club, etc. The country club could suspend him as what was done in the case of Norberto Quisumbing for picking a fight with a caddy. He sued for moral damages in the RTC, but the RTC dismissed it because it's an intra-corporate dispute and should be filed in the SEC, which he did. The country club filed a motion to dismiss because they said the complaint does not state a cause of action because under the by-laws, if a member wants to question his suspension by the board, he must appeal to the members. He has not exhausted the intra-corporate remedy provided by the by-laws. So it was premature. But the SEC dismissed on the ground that it has no jurisdiction, that it should be filed in the RTC. Motion for Reconsideration in the RTC granted. Petition for prohibition by the club in the CA was granted. Eventually Quisumbing just sold his share. In non-stock corporations may have more than fifteen (15) directors. You may even have 21. Ex. In alumni associations if you want to broaden representation in the board. You can provide that only one third (1/3) of the directors would be elected every year so the terms every three years would be staggered, to allow for continuity in policies. But you can provide that everybody will be elected every year. If you do not provide for such, then 1/3 will be elected every year. CLOSE CORPORATIONS

This is a new title, made in recognition of the fact that the overwhelming majority of the corporations are family corps. In many family corporations here, the set-up is such that the husband is the president, the wife is the treasurer, but it is the wife who is actually running the corp. The husband is just the nominal figurehead. Ex. Tesoro Handicraft. A close corp. Has a technical meaning in the law. For it to be a close corp., the articles must provide that it cannot have more than 20 stockholders. There should be restrictions on the transfer of the shares, like usually it will be provided that if a stockholder wants to sell his share, he must first offer it to the other stockholders. Only if they are not willing to buy can he offer it to an outsider. Or it may also provide that if no stockholder is willing to buy the shares, then he must offer it to the corporation before offering to an outsider.


The corporation shall not be listed in any stock exchange. The law says that the mere fact that a corp. is controlled by another corp. does not make it a close corp. The articles must contain the features mentioned in the law. But corps. Engaged in mining, oil companies, stock exchanges, banks, insurance companies, public utilities, schools, and corps. vested with public interest are not allowed to be close corps. Because they're engaged in lines of business vested with public interest and so they should be subject to regulation and close scrutiny. The law says the articles may provide for classification of shares and qualifications for owning them. For example, you have three brothers who form a close corp. So they may provide: a) we will classify these shares into class a, class b, class c. Only the members of the family of the first brother can own class a shares. Only members of 2nd brother can own class b shares, and class c shares can be owned only by members of the 3 rd brother; b) we will have nine (9) directors, and 3 will be elected by holders of class a shares; c) can provide for a greater quorum or voting requirements. It can be provided that you will need three fourths (3/4) majority to approve any action by the board, any action by the stockholder. Why? Because each group would want to be protected for otherwise if the two groups combine they can get anything approved, like there would be two thirds. And so the third group would want to be protected; d) the articles may provide that if it's the stockholders and not the board who will manage the affairs and that there is no need for formal meetings, if the stockholders will be the directors, then they will be subject to the same liabilities as directors. For restrictions for the transfer of shares to be binding on third parties, they have to appear in the articles of incorporation, in the by-laws, and must be printed at the back of the stock certificate. So you can just put there for example, subject to the restrictions in article 10 of the articles of incorporation. It is up to the prospective buyer to look into the articles to find out what are those restrictions. The laws says that the stockholders may enter into pre-incorporation agreement before they incorporate, and that pre-incorporation agreement will remain binding even after they have incorporated because that agreement will lay down the modus vivendi after they have incorporated. Example, it could be agreed that each family will have 3 directors, the president can come from one family, the general manager from another family, the treasurer from the 3 rd family, and then every year they will rotate the position. They may also agree on how the shares will be voted. Like 3 directors may be elected only by class a shares, 3 by lass b, and 3 by class c shares. And unless the by-laws provide otherwise, action of the directors without need of a meeting will be valid if all the directors sign a written consent. Or if the stockholders have actual or implied knowledge but do not object in writing. Or if the directors are used to taking informal action, or the directors all have express or implied knowledge of the action taken and none of them objects. The law says that in close corps., there is right of pre-emption to call issuances of shares even if the shares have been issued for property or payment for past services or payment to convert debt to equity. When you have these close corporations with everybody having a veto power, like you are required 3/4 majority a the quorum of the board, 3/4 majority for quorum in a stockholders meeting, you could be paralyzed by inaction. And so the law provides for remedies for that. The SEC can arbitrate. It can cancel or alter any provision in the articles or by-law. They can cancel for example the greater quorum requirement. Or they may alter, prohibit or cancel any resolution or action of the corporation, directors, stockholders, or officers. They may direct or prohibit the action taken by any one of those mentioned . Or it may require the purchase of the shares of any stockholder by the corporation or by other stockholders even if there are no retained earnings. In fact usually in a corporation like this, it's advisable that you put a buy-out provision. You anticipate. Everybody has a right to veto. You''ll be paralyzed inaction, and such is intolerable, then you'll have to put there a buy-out provision, that in case you have this continuing deadlock then a stockholder can demand to buy out the shares of another stockholder. And you can put there a formula on what would be the valuation, like regarding the book value of something. Suppose they cannot agree who will buy whom, they can provide that the one who's willing to pay the higher price will be the one who will prevail. Or dissolving the corporation, that will be an extreme case; granting other reliefs as the circumstances may warrant, or appointing a provisional director. The law says that the provisional director is supposed to be an impartial person, an outsider who is not a stockholder or a creditor. He will have the rights of a duly elected director. He can vote. He's the tiebreaker.


SPECIAL CORPORATIONS EDUCATIONAL CORPORATIONS

For educational corporations, where the trustees should be divided into multiples of five. So you should have five, ten, or fifteen trustees if they are organized as non-stock corporation. And unless otherwise provided in the articles of incorporation or by-laws, the terms of the trustees should be five years, and every year only one fifth (1/5) is elected, again to provide for continuity in policies. But you can provide that they will all be elected instead for a term of one year, so every year, everybody has to be elected. RELIGIOUS CORPORATIONS

There are three ways a religious group can provide for the administration of its properties. One is by forming a non-stock corporation, another is by forming a corporation sole, third is by the incorporation of a religious society, like a religious order may incorporate itself to manage its properties. Feb. 18, 2002

Rolando Sy

RELIGIOUS CORPORATION

There are three (3) ways by which a religious organization can provide for the administration of its properties: 1. by forming a non-stock corporation 2. by corporation sole 3. by religious aggregate or society Corporation sole may constitute of one person only so the head of a religious sect would incorporate himself for the purpose of administering the properties of a religious sect. To incorporate what you will file with the SEC is an affidavit. The affidavit will state that the affiant is the head of a religious denomination or sect and would want to become a corporation sole. and the rules of his religion allow him to incorporate as a corporation sole and that he is charged with the administration of its properties and in fact he will be required to submit an inventory and the manner in which the successor will be chosen and the place where he will hold his office. The Roman Catholic Archbishop of Manila is a corporation sole so if Cardinal Sin dies the new archbishop will simply submit his appointment and he need not incorporate again because the corporation is different from the occupant of the position. The Iglesia ni Kristo is incorporated as a corporation sole. The court has held in Roman Catholic Apostolic Adm. of Davao, Inc. v. Land Registration Commission that although the Bishop was a foreigner, he could register a parcel of land in his name because he is a mere administrator the property really belongs to the faithful and since they are Filipinos they could register the land in the administrator’s name. Under the law if a corporation sole wants to dispose of or mortgage real property, he has to get authorization from the Regional Trial Court unless the rules of the religious sect allow him to dispose of or mortgage real property and that is usually the case. The last is the religious aggregate or religious society. It can incorporate for the purpose of managing its properties and the articles would indicate that the members constitute a religious order or society and that at least 2/3 of the members have agreed to incorporate, that the rules allow them to incorporate they desire to incorporate to manage their properties in the place where located. The recollects are incorporated to manage their properties, they are the single biggest bloc of stockholder of San Miguel Corporation.


DISSOLUTION

There are different ways to dissolve a corporation one is voluntarily and the other involuntarily, under the law there are three provisions governing voluntary dissolution. The first one is if no creditors are affected. In all the methods of voluntary dissolution, you need a resolution approved by a majority of directors and a resolution approved by at least 2/3 of the stockholders In Section 118, where no creditors are affected the directors and the stockholders pass the resolution dissolving the corporation and that will be filed in the SEC for approval. In a case where a suit was filed and the corporation said, we have already been dissolved and they submitted a board resolution, the SC held that it is not enough to dissolve a corporation. The Second one, is under Section 119 where creditors are affected. Here the board and the stockholders will approve the dissolution but a petition will be filed signed by the majority of the directors and verified by the president, secretary or one of the directors which will indicate the claims of creditors. That will be set for hearing and not less than thirty (30) days nor more than sixty (60) days after the entry of the issuance of the order and a copy of the order will be published once a week for three consecutive weeks in a newspaper of general circulation and that will also be posted for three weeks in three public places like the bulletin board of a municipal hall, post office, the plaza and then the SEC will set that for hearing and determine w/n the corporation should be dissolved. The third one you will just shorten the corporate life and this is the simplest and fastest way of dissolving the corporation voluntarily like when Ford Philippines decided to close its subsidiary they simply amended the articles of corporation that the corporation will exist until December 31, 1978. The SEC will require to get a tax clearance from the BIR and the stockholders will be required to sign an undertaking that they will answer for the claim of the creditors to the extent of the liquidating dividends they will receive. Then you can have a voluntary dissolution. This could be done by filing a quo warranto case under rule 66 of the ROC on the ground mentioned there or a corporation can be dissolved for certain violation of the corporation code as mentioned in the Corporation Code or PD 902-A and also a minority stockholder may file a petition to dissolve the corporation where the majority is mismanaging the assets of the corporation, dissipating its assets, and fraudulently disposing of its properties and a receiver may be appointed in an action for involuntary dissolution. The SC held in the leading case of El Hogar Filipino, 50 Phil. 399(1927 ) the first corporation organized under the Corporation Act, the government filed a case to dissolve that corporation and invoked 17 grounds, the SC denied the petition, building and loans association like banks are required to dispose of within 5 years of any properties they foreclosed they disposed of the properties after 6 years but they exerted their best efforts, they hired real estate brokers, they advertised in newspapers but they just could not find buyers, they acquired this land and building, the sc held that it is not illegal, that they leased the space that they did not need for their office, that is not illegal they are maximizing their property, that they provide a provision in the by-laws that stockholders can be compelled to surrender their shares, to be bought out well the court said that that is void but that is not sufficient ground to dissolve the corporation. In other words the court is saying that you do not dissolve a corporation for every infraction, the infraction must be serious, because dissolution is imposing the death penalty upon the corporation. The Court said the employees of a railroad are required to wear uniform indicating their positions in their nameplate, now you mean tell me if one employee did not have such a nameplate you are going to dissolve a corporation because that is a legal requirement, it has to be a serious violation. But in one case, the SC dissolved a corporation which was engaging in banking without authorization from the monetary board, it was accepting deposits from the public, the court considered that as a serious violation.


When a minority stockholder files a case and asks to dissolve the corporation, the court said that that is a harsh remedy unless the situation is really beyond redemption you should not impose that remedy. The corporation has three years after it should have been dissolved for the purpose of winding up its affairs. The SEC has said the three year period should be counted from the time the dissolution was approved by the SEC even if the directors and stockholders pass a resolution dissolving the corporation that is not effective until it has been approved by the SEC. For three years , the corporation will continue to exist it will no longer be a going concern but only for the purpose of winding up that is why the SC has said that the corporation cannot for example renew its contract of lease because it is no longer a going concern. During the three year period, it should devote its time prosecuting and defending law suits, winding up its affairs disposing its properties so they can be used to pay off its creditors and to distribute balance to the stockholders. There are two ways of providing for the winding up of its affairs under the law. This is voluntary either the directors themselves may take care of winding up the affairs of the corporation or they may appoint a trustee like when Ford Philippines decided to close its subsidiary here one of the last acts of the BOD was to pass a resolution appointing Ricardo Romulo as trustee vesting upon him legal title to all the assets of Ford Philippines to be used to pay off its creditors and to dispose of its properties of Ford Philippines. to distribute the balance as liquidating dividends. Supposed to be, this was the rule before if any case is not finished within the three year period, the case will be abated whether the corporation is plaintiff or whether it is defendant but recent jurisprudence has rendered that obsolete. That rule is applicable if it is the directors winding up the corporation. if the corporation is under receivership, it is the receiver who may wind up the affair of the corporation. But if it is the trustee, that will not apply, the trust will subsist until the affairs of the corporation are wound up and until any creditor can sue the trustee provided that the applicable prescriptive period has not yet lapsed. So if his cause of action is based on a written contract he has ten (10) years to sue the trustee. The Court has said that the remedy there if the three years will end and there are still pending cases is for the board to appoint a trustee but more recent jurisprudence has fashioned a practicable solution to that the lawyer handling the cases may be considered as trustee of the corporation and therefore the cases will not be abated but should continue. In one case, the SC held that the directors may be considered as trustees after three years so that they can continue to wind up the affairs of the corporation and in effect the three year period has become ineffectual. FOREIGN CORPORATIONS

Section 123 defines what is a foreign corporation, one formed, organized, or existing under any laws other than those of the Philippines and whose laws allow Filipino citizens and corporations to do business in its own country or state. Note the element of reciprocity is included in the definition of a foreign corporation as an ingredient of a foreign corporation. We said that a corporation is an artificial person, it has a juridical personality by legal fiction. So it has personality because of the law under which it was incorporated and since it exists only because of the law under which it was incorporated, if it wishes to participate in the economic processes of another country, it must get permission from that other country also and it will get permission by getting a license to do business and our code now requires reciprocity so normally like if it is an American corporation it will submit a certification from the Secretary of State of that particular state under which it was incorporated like New York, California because the Secretary of State is the custodian of the laws and he will certify that under the laws of New York, Filipinos are allowed to do business in New York. There are different ways by which a foreign corporation can establish its presence here. one is by setting a branch office, another is by setting up subsidiary, for tax purposes there are no trade-


offs because a branch and a subsidiary are taxed in the same way but a subsidiary may be beneficial in the sense that it limits the exposure of the mother company to its subscription instead of risking all the assets of the mother company. Another is the regional headquarters which does not do business, it is just a coordinating and communication center. Foreign companies are setting up regional headquarters here because it has subsidiaries in Southeast Asia or licensees and franchisees and its function is to supervise and coordinate with those subsidiaries or franchisees so normally a regional headquarters would have a one room office here probably with country manager and secretary, a telephone, computer and fax machine. If a foreign corporation wants to do business here it has to appoint a resident agent who may be a corporation, partnership or individual, if individual he must be of good moral character, sound financial standing, although his only function is to receive summonses in behalf of the corporation. If a foreign corporation is being sued, the summons must be served on the resident agent. The corporation is also required to file with the SEC a power of attorney or resolution which says that if it has no resident agent it agrees that the summons be served with the SEC which will forward the summons and the complaint to the foreign corporation. If no resident agent and any officer who will be in the Philippines may be served with summons. Section 133 says that if the foreign corporation will be doing business without a license it cannot sue or intervene in any action in court or administrative agency. The SC had said that if a foreign corporation is doing business here without a license, a contract it entered into is valid, it is not rendered void so the court said the legislature made a judgment call that imposing penal sanctions and denying access to the courts are sufficient penalties for doing business without a license. The legislature did not provide that the contract it entered into is void. Although the foreign corporation did not have license to do business when it entered into in that contract, it could sue if later on it acquired a license to do business. If a foreign corporation is not doing business it can sue because it is not required to get a license but it can not be sued because it has no presence here it will violate due process. In the farm machinery case, the court made an obiter dictum that a foreign corporation not doing business can be sued, the reasoning of Justice Makasiar, if the foreign corporation not doing business can sue, then it should also be allowed to be sued is wrong because that will violate due process because it has no presence here. Our courts cannot acquire jurisdiction over it. The remedy is to make the action an action quasi in rem you attach its property serve it summons. If the corporation is doing business whether or not it is licensed it can be sued, the law says that if it is doing business but it has no license it cannot sue. If a foreign corporation is suing it must alleged either that it is not doing business or it is doing business but it is licensed because a plaintiff must indicate in the complaint that it has the legal capacity to sue. In the case of a foreign corporation it must show it is either not doing business or it doing business and it is licensed. However, in the Merrill Lynch case, the court said that if a foreign corporation is doing business without a license, it the other party was aware of it, it can not claim that the plaintiff cannot sue, he will be in estoppel having benefited from the contract. Except in two cases, the SC has followed this most of the subsequent cases. When is a foreign corporation doing business?

American jurisprudence makes a distinction. When you talk of foreign corporation doing business you will ask for what purpose are we trying to determine whether or not a foreign corporation is doing business. Is it for the purpose of determining whether or not it can be sued? If that is the purpose, to determine its amenability to the jurisdiction of the courts they apply a liberal interpretation, the USSC says minimal contact that would satisfy the requirements of due process is sufficient. In fact the different states have these long-arm statutes by which state the instances when a foreign corporation may be sued. There is one state Georgia has this provision that if a foreign corporation Jimenez Transcripts (Corporation Code) Page 45 of 46

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