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#CORPO FAQs Midterms
#CORPO FAQs Midterms
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That Metro Manila shall, purposes of this section Interlocking Director
be considered a city/municipality.
A director in one corporation who deals or
Non‐stock Corporation – the law allows NSC to provide in transacts business with another corporation of which he is
its By Laws any place of members meetings. Provided that also a director.
NOTICE is sent to all members indicating the date, time and The contract is void if he owns 20% of the
place of the meeting which shall be in the Philippines. outstanding capital stock and his interest in the other
corporation is nominal.
If outside the Philippines, it should be in relation
to the nature of their business. (applicable only in Executive Committee
directors’/trustees’ meeting).
The corporate powers, properties and business
Service of Summons
conducted shall be exercised and controlled by the
E.B Villarosa V. Benito – under Sec. 11 of Rule 14, Rules of BOD’s/Trustees because the board are elected for their
Court, service of summons shall be made on the: knowledge and expertise in the management of business of
the corporation.
a) President
b) Managing partner May the board alone create an executive committee
c) General manager without any authority provided for the by‐laws?
d) Corporate secretary
e) Treasurer or NO board of directors must sit and act as a body
f) In – house counsel
to have a valid transaction
This requirement is applicable only if the corporation is
May a non‐member of the board of directors be a member
being sued by a third party or outsider, not to SH’s
of the executive committee?
In case of “INTRA‐CORPORATE CONTROVERSIES” Sec. 5.
Rule 2 of Interim Rules of Procedure – Service upon NO, all of them must be members of the board of
domestic private juridical entities, shall be deemed director
adequate, is made upon any of the statutory or corporate
officers fixed by the By Laws or their respective secretaries. Section 35. Executive committee. ‐ The by‐laws of a
corporation may create an executive committee, composed
Contract of Self – Dealing Director of not less than three members of the board, to be
appointed by the board.
A self‐dealing director is one who deals or
transacts business with his own corporation. The contract of Compensation (Western Institute of Tech V. Salas)
self‐dealing director is voidable unless the following
conditions are present: “As such” – the directors cannot grant themselves
a) That the presence of such director/trustee in the salaries for being directors but they are not prohibited to
get compensation if aside from being a director they are
board meeting in which the contract was
also officers of the corporation (Sec. 30)
approved was not necessary to constitute a
quorum for such meeting; They can have compensation if:
b) That the vote of such director/trustee was not
a) There is a fix grant of compensation in the By
necessary for the approval of the contract;
Laws
c) That the contract is fair and reasonable under the
circumstances; and b) If the directors granted it by the vote of the SH’s
representing at least a majority of the
d) That in case of an officer, the contract has been
outstanding capital stock at a regular meeting or
previously authorized by the board. (Sec. 32) special meeting
c) When they render services other than their usual
or ordinary duties
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Steinberg vs. Velasco
In no case shall the total yearly compensation of directors,
as such directors, exceed 10% of the net income BEFORE For as long as there are debts and liabilities, a
income tax of the corporation during the preceding year. corporation may not reacquire its shares (subject
to exceptions)
How do you decrease capital stock and why a corporation
decreases? Creditors of a corporation have the right to
assume that so long as there are outstanding
1) Reduce or wipeout existing deficit where no
debts and liabilities, the board of directors will not
creditors would thereby be effected
use the assets of the corporation to purchase its
2) When capital is more than necessary to procreate own stock, and that it will not declare dividends to
the business or reduction of capital surplus stockholders when the corporation is insolvent.
3) To write down the value of its fixed assets to Elements of valid By‐Laws
reflect those present and actual
1) It must not be contrary to law, public policy or
morals;
NOTE: any increase or decrease of capital stock 2) It must not be inconsistent with the AOI;
requires approval of government agency like SEC it can 3) It must be general and uniform in its effect or
never take place unless SEC approves the same applicable to all alike or those similarly situated;
4) It must not impair obligations and contracts or
Relevance of decrease of capital? vested rights; and
5) It must be reasonable
1. To reduce or wipe out existing deficit where no
creditors would thereby be affected; When should the by‐laws be adopted or filed? Can it not be
adopted earlier?
2. When the capital is more than what is necessary
to procreate the business or reduction of capital a) After incorporation‐ within 1 month (emanates
surplus; or, from the BOARD)
3. To write down the value of its fixed assets to b) Prior‐more convenient (signed by the
reflect the present actual value in case where incorporators)
there is a decline in the value of the fixed assets of
Who will sign the adoption clause?
the corporation.
Majority of the stockholders or members attested to
Power to Acquire Own Shares
by the corporate secretary
1) To eliminate fractional shares arising out of stock
What happens if the corporation fails to adopt the by‐laws
dividends;
2) To collect or compromise an indebtedness to the from the time provided by the law? Would there be an
corporation, arising out of unpaid subscription, in automatic revocation or suspension?
a delinquency sale, and to purchase delinquent
shares sold during said sale; and a) Proper notice and hearing, must first be complied
3) To pay dissenting or withdrawing stockholders with
entitled to payment for their shares under the
provisions of this Code. (a) b) Subject the corporation to a fine, as may be issued
by the SEC
The corporation must at all times have “unrestricted
retained earnings” to exercise this corporate power
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Amendment of By‐Laws Dela rama vs. Ma‐ao Sugar
Sec. 48, last par. – amendment/repeal of the By‐laws shall There is a substantial and not remote connection
only be effective upon the issuance by the SEC of a between the sugar bags and the sugar manufacture, thus
certificate that the same is not inconsistent with the code. stockholder’s approval is not necessary for validity
Absence of the STAMP APPROVAL of the SEC, it will not
A private corporation, in order to accomplish its
become valid.
purpose as stated in its articles of incorporation, and
Power to Invest Funds imposed by the Corporation Law, has the power to acquire,
hold, mortgage, pledge, or dispose of shares bonds,
Refers to invest in the form of money, stock, securities and other evidences of indebtedness of any
bonds and other liquid assets and does not include real domestic or foreign corporation. Such an act, if done in
properties or other fixed assets. (See requirements) pursuance of the corporate purpose, does not need the
approval of the stockholders; but when the purchase of
Note: the approval of the stockholders or members is not
required where the investment is reasonably necessary to shares of another corporation is done solely for investment
accomplish its primary purpose. and not to accomplish the purpose of its incorporation, the
vote of approval of the stockholders is necessary.
Section 42. Power to invest corporate funds in
another corporation or business or for any other purpose. ‐ Gokongwei, Jr. V. SEC
Subject to the provisions of this Code, a private corporation
may invest its funds in any other corporation or business or An unauthorized investment which is not illegal or
for any purpose other than the primary purpose for which it void ab initio or not contrary to law, morals, public order or
was organized when approved by a majority of the board of public policy, is merely voidable and may become binding
directors or trustees and ratified by the stockholders and enforceable when 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 Power to declare Dividends (retaining surplus profit)
member's meeting duly called for the purpose. Written
notice of the proposed investment and the time and place General Rule: Stock corporations are prohibited from
of the meeting shall be addressed to each stockholder or retaining surplus profit in excess of 100%
member at his place of residence as shown on the books of of their paid‐in capital stock.
the corporation and deposited to the addressee in the post
office with postage prepaid, or served personally: Provided, Exceptions: (justification to refuse declaration of dividends)
That any dissenting stockholder shall have appraisal right as
provided in this Code: Provided, however, That where the 1) When justified by definite corporate
investment by the corporation is reasonably necessary to expansion projects or programs approved by
accomplish its primary purpose as stated in the articles of the BOD; or
incorporation, the approval of the stockholders or members 2) When the corporation is prohibited under
shall not be necessary. (17 1/2a) any loan agreement with any financial
institution or creditor, whether local or
foreign, from declaring dividends without
For any other purpose other than the
its/his consent, and such consent has not yet
primary purpose, stockholder’s consent or been secured; or
approval is necessary 3) When it can be clearly shown that such
retention is necessary under special
Thus, if it’s for the secondary purpose, it is circumstances obtaining in the corporation,
necessary such as when there is need for special
reserve for probable contingencies.
If it’s in connection with the primary
purpose, only board resolution is necessary Note: BOD exercise exclusive authority as to whether or
not the corporations declare cash or property
dividends.
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But as to the declaration of stock dividends, the A stockholder may not be able to exercise the pre‐emptive
approval of the stockholders, holding or right in the following instances:
representing at least 2/3 of the outstanding a) When the shares to be issued is in compliance
capital stock is required. with the laws requiring stock offerings or
minimum stock ownership by the public; or
Power to Sell/Disposition of all/Substantially all of its
assets b) Shares to be issued in good faith with the
approval of the SH’s representing 2/3 of the
Sec. 40 (2) Majority vote is not required if: outstanding capital stock either:
1) In exchange for property needed for
a) The sale/disposition does not involve “all or corporate purpose or
substantially all of the assets of the corporation as 2) In payment of previously contracted
to render it incapable of continuing the business debts.
or accomplishing the purpose for which it was
incorporated. Stockholders or members or other persons shall be
b) The same is necessary in the usual and regular solidarily liable for all damages suffered by the corporation
course of business, such as Realty Company.
1) Who willfully and knowingly vote for or assent to
The sale or other disposition of all or substantially all of the a patently unlawful acts of the corporation
corporate property or assets must be voted for by the 2) Who are guilty of gross negligence or bad faith in
legitimate board and concurred in by bona fide stockholders directing the affairs of the corporation; or
or members. (Islamic Director of the Phil. V. CA) 3) Who acquires any personal property or pecuniary
interest in conflict with their duty as such director.
General Rule: Where a corporation sells or otherwise
transfers all of its assets to another General Rule: A director is not liable for misconduct of
corporation, the latter is not liable for the co‐directors or other officers.
debts and liabilities of the transferor.
Exceptions:
Exceptions: 1) He connives or participates in it; or
1) Where the purchaser expressly or impliedly 2) He is negligent in not discovering or acting to
agrees to assume such debts; prevent it.
2) Where the transaction amounts to a consolidation
or merger of the corporations; Resolutions passed in good faith by the board of directors
3) Where the purchasing corporation is merely a are valid and binding, and whether or not it will cause losses
continuation of the selling corporation; and or decrease in profits are not subject to the review of the
4) Where the transaction is entered into fraudulently court. (Montelibano V. Bacolod Murcia Milling)
in order to escape liability for such debts.
Three‐Fold Duty of Directors
Pre‐Emptive Right 1) Obedience – violated when willfully and
knowingly voting or assenting to a patently
Sec. 39 – all SH’s of a stock corporation shall enjoy pre‐ unlawful acts.
emptive right to subscribe to all issues/dispositions of 2) Diligence – violated when the director fails to
shares of ANY CLASS, in proportion to their respective manage the corporate affairs with reasonable
shareholdings UNLESS such right is denied by the AOI or care and prudence.
amendment thereto. 3) Loyalty – violated when:
a) When a director or trustee acquires any
Pre‐Emptive Right includes: personal or pecuniary interest in conflict
a) New shares to be issued pursuant to an increase with his duty as such director;
in capital stock; or b) Then he attempts to acquire, in violation
b) From unissued shares which form part of the of his duty, any interest adverse to the
original authorize capital stock; and corporation in respect to any matter
c) Also covers trading stock which has been reposed in him in
confidence;
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