Professional Documents
Culture Documents
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Q: May the Board of Directors create Q: What about if the bylaws allows the
positions and offices?
Board to create offices and the Board,
A: The Board can also create ordinary
positions, offices and even departments pursuant to that authority, created the
under the Business Judgment Rule. However, office for legal and appointed the person to
the board has no power to create corporate occupy it. Thereafter, that person was
officers without first amending the corporate removed. Where should he go – the Labor
bylaws to include therein the newly created Arbiter or the RTC?
office. Though the board may create A: The Labor Arbiter because despite the
appointive positions, the persons occupying
authority granted under the bylaws, the Board
such positions cannot be viewed as corporate
officers under Section 24 of the RCC. cannot create a corporate office.
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Treasurer; (3) Secretary; and (4) such other RULING: The Supreme Court said that he is
officers as may be provided for in the bylaws. a corporate officer because his position is
required by law and likewise appearing in the
bylaws of the corporation.
WESLEYAN UNIVERSITY-PHILIPPINES V.
MAGLAYA, SR. (2017)
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and the Secretary Pro-Term to execute a designate the officer who will perform
power of attorney to a designated bank specified acts on behalf of the
officer clothing him with authority to corporation.
direct and manage corporate affairs,
including the appointment of legal In one case, it was held that a board
counsel. resolution authorizing a corporate officer
to obtain a law includes the authority to
If the corporation is a defendant or a assign receivables to secure the loan if the
plaintiff and attends pre-trial, the agent or resolution empowers the officer to agree
representative of the corporation must be to the terms and conditions of the loan
equipped with a Special Power of and to sign the implementing documents.
Attorney to represent the corporation. If
he is a natural person, it must be a Special PEOPLE’S AIRCARGO AND WAREHOUSING
Power of Attorney. If it is a corporation, CO., INC. V. COURT OF APPEALS AND
that authority comes by way of a board
SAÑO (1998)
resolution adopted by the Board,
confirming the authority of this lawyer to
represent the corporation and agree on Even in the absence of authority from the
those points that have been taken up articles of incorporation and/or the
during the pre-trial conference. bylaws or from the board of directors, the
acts of the officer are binding on the
FACTS: corporation if such acts are ratified by the
The lawyer who represented Citibank in corporation, either subsequent thereto or
this case was not equipped with a board under the doctrine of apparent authority.
resolution. What he had was an
appointment from the Executive Officer The Supreme Court held that in the
of Citibank Corporation. absence of charter or bylaw provision to
the contrary, the president is presumed to
ISSUE: Is that [appointment from the have the authority to act within the
Executive Officer] sufficient to authorize the domain of the general objectives of its
lawyer to represent the corporation? (YES) business and falls within the scope of his
usual duties, and even if a certain contract
RULING: It is sufficient because under the is outside the usual powers of the
bylaws of the corporation, that Executive president, the corporation’s ratification of
Officer is authorized to appoint the lawyer to the same and accordance of benefits
represent the corporation. Therefore, he make it binding.
derives authority from the bylaws of the
corporation.
Q: What is the doctrine of apparent
GREAT ASIAN SALES CENTER authority?
CORPORATION V. COURT OF APPEALS A: The doctrine of apparent authority
(2002) provides that a corporation will be estopped
from denying the agent’s authority if it
knowingly permits one of its officers or any
The board, on the other hand, as other agent to act within the scope of apparent
previously discussed, has the power to
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authority and it holds him out to the public as TERP CONSTRUCTION CORPORATION V.
possessing the power to do those acts. BANCO FILIPINO SAVINGS AND
MORTGAGE BANK (2019)
ADVANCE PAPER CORPORATION V. ARMA
TRADERS CORPORATION (2013)
Although an officer acts without, or in
excess of his actual authority if he acts
Apparent authority is derived not merely within the scope of an apparent authority
from practice. Its existence may be with which the corporation has clothed
ascertained through (1) the general him, by holding him out or permitting
manner in which the corporation holds him to appear as having such authority,
out an officer or agent as having the the corporation is bound thereby in favor
power to act or, in other words, the of a person who deals with him in good
apparent authority to act in general, with faith in reliance on such apparent
which it clothes him; or (2) the authority, as where an officer is allowed
acquiescence in his acts of a particular to exercise a particular authority with
nature, with actual or constructive respect to the business, or a particular
knowledge thereof, within or beyond the branch of its continuously and publicly,
scope of his ordinary powers. It is not the for a considerable time.
quantity of similar acts which establishes
apparent authority, but the vesting of a FACTS:
corporate officer with the power to bind This case is about an issuance of a bond
the corporation. by TERP Construction with a yield of
8.5%. One of the investors is Banco
FACTS: Filipino. The SVP of TERP Construction
The corporation purchased paper paid more than 8.5% interest. Those
products from the seller-corporation and payments were not objected to by TERP
furnished a contract signed by the officers Construction.
of the buyer-corporation. At a certain
point, they were not paid. So the seller- ISSUE: Can Banco Filipino enforce payment
corporation sued the buyer-corporation. of interest higher than the guaranteed yield?
The buyer-corporation repudiated the (YES)
authority of those officers, saying that
they were not authorized by the board to RULING: The Supreme Court said yes
enter into those contracts. under the Doctrine of Apparent Authority,
particularly because this SVP made payments
ISSUE: Is the buyer-corporation bound by above the guaranteed yield and those
the purchases made by those officers? (YES) payments were recognized by the
corporation.
RULING: Those officers were entrusted
with the management of the corporation.
They are being clothed with apparent
Q: Cite jurisprudence where the Supreme
authority by the corporation.
Court applied the doctrine of apparent
authority.
A:
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RURAL BANK OF MILAOR (CAMARINES which the bank and guaranteed that
subsequent releases from the loan would
SUR) V. OCFEMIA, ET AL. (2000)
be made directly to the seller, but the
manager released the loan instead to the
When a bank, by its act failure to act, has buyer who, however, failed to pay the
clearly clothes its manager with apparent seller.
authority to sell an acquired asset in the
normal course of business, it is legal FACTS:
obliged to confirm the transaction by The owner of a real property sold and
issuing a board resolution to enable the transferred title to the buyer on the
buyers to register the property in their strength of a certification by Allied Bank
names. It has a duty to perform necessary that the buyer has obtained a loan and that
and lawful acts to enable the other parties loan is earmarked in favor of the seller as
to enjoy all benefits of the contract which payment for the purchase price.
it had authorized. But, eventually, Allied Bank refused to
recognize the binding effect of that
FACTS: certification signed by its manager.
The manager sold a property and Allied Bank argues as follows: (1) That
acquired asset or property. The buyer certification is a guaranty and the bank is
paid the purchase price and went to the not allowed by law to enter into a
Register of Deeds to cancel the title of the guaranty agreement; and (2) even
seller and to issue a new title to the buyer. assuming that it is not a guaranty, we did
The Register of Deeds required the not authorize the manager to sign that
submission of a board resolution to certification.
confirm the authority of the officer who
signed the Deed of Sale. He was given the ISSUES:
run around by the corporation until the 1. Is that certification a guaranty? (NO)
seller-corporation repudiated or did not 2. Is the manager authorized to sign the
recognize the authority of the manager certification? (YES)
who signed the deed of sale.
RULING:
ISSUE: Is the corporation bound with the 1. If the bank only certifies that there is
sale entered into by the manager? (YES) a loan granted and the loan is for this
particular transaction, it is not a
RULING: The Supreme Court said yes, guaranty. So, the bank is not making
following the Doctrine of Apparent a promise or a commitment to pay. It
Authority. is just certifying a matter of fact.
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the transaction is not related to the function Q: What is the concept of emergency
of the officer of the corporation. quorum under the RCC?
A: Emergency quorum means that, in certain
cases, stock or membership represented in a
meeting called by the SEC may constitute a
REPORT OF ELECTION OF quorum to elect directors of corporation even
DIRECTORS, TRUSTEES AND though the number of shares or members
OFFICERS, NON-HOLDING OF present is less than majority of the
ELECTION AND CESSATION FROM outstanding capital stock or total members, or
OFFICE the quorum required under the articles and
bylaws of the corporation.
Q: What are the revisions under the RCC
relating to non-holding of election and For purposes of Section 25 of the RCC, the
cessation from office? attendants of the election, as summarily
A: ordered by the SEC, who are entitled to vote
a. The non-holding of elections and the shall constitute a quorum regardless of the
reasons therefor shall be reported to required number of attendants stated in the
the SEC within 30 days from the date Articles of Incorporation or bylaws of the
of the scheduled election. The report corporation.
shall specify a new date for the
election, which shall not be later than This finds basis in the Section 25 of the RCC
60 days from the scheduled date. that in case of non-holding of the election of
b. If no new date has been designated, or directors and no new date has been
if the rescheduled election is likewise designated, or it the rescheduled election is
not held, the SEC may, upon the likewise not held, the SEC may also
application of a stockholder, member, summarily order the holding of elections
director or trustee, and after should the reason for the non-holding of
verification of the unjustified non- election be found unjustifiable upon the
holding of the election, summarily application of any stockholder or member.
order that an election be held. The Notwithstanding any provision of the articles
SEC shall have the power to issue of incorporation or bylaws to the contrary,
such orders as may be appropriate, the shares of stock or membership
including orders directing the represented at such meeting called by SEC
issuance of a notice stating the time and entitled to vote shall constitute a quorum
and place of the election, designated for purposes of conducting an election.
presiding officer, and the record date
or dates for the determination of DISQUALIFICATION OF
stockholders or members entitled to DIRECTORS, TRUSTEES OR
vote. OFFICERS
c. Should a director, trustee, or officer
die, resign or in any manner cease to
hold office, the secretary, or the Q: What are the revisions under the RCC
director, trustee or officer of the regarding disqualifications of directors,
corporation shall, within 7 days from trustees or officers?
knowledge thereof, report in writing A: Under the OCC, grounds for
such fact to the SEC. disqualification were conviction by final
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judgment of an offense punishable by more being elected to the board, as a sanction in its
than 6 years or violation of the RCC administrative proceeding.
committed within 5 years prior to election or
appointment. The RCC expanded and Note that the bylaws may likewise provide
qualified the grounds such that a person shall for grounds for disqualification.
be disqualified from being a director, trustee
or officer of any corporation if, within 5 years Q: May the bylaws provide as a ground for
prior to the election or appointment as such, disqualification being a director or
the person was: stockholder of a competing corporation or
a. Convicted by final judgment: representing an interest in conflict with or
i. Of an offense punishable by adverse to the corporation?
imprisonment for a period A: Yes, sound principles of corporate
exceeding 6 years; management counsel against sharing
ii. For violating the RCC; and sensitive information with a director whose
iii. For violating Republic Act fiduciary duty of loyalty may well require
No. 8799, otherwise known as that he disclose this information to a
“The Securities Regulation competitive arrival. These dangers are
Code” enhanced considerable where the common
b. Found administratively liable for any director such as the petitioner is a controlling
offense involving fraudulent acts; and stockholder of 2 of the competing
c. By a foreign court or equivalent corporations. It would seem manifest that in
foreign regulatory authority for acts, such situations, the director has an economic
violations or misconduct similar to incentive to appropriate for the benefit of his
those enumerated in paragraphs (a) own corporation the corporate plans and
and (b) above. policies of the corporation where he sits as
director.
The foregoing is without prejudice to
qualifications or other disqualifications, GOKONGWEI, JR. V. SECURITIES AND
which the SEC, the primary regulatory EXCHANGE COMMISSION, ET AL. (1979)
agency, or the Philippine Competition may
impose in its promotion of good corporate
governance or as a sanction in its Indeed, access by a competitor to
administrative proceedings. confidential information regarding
marketing strategies and pricing policies
To be a ground for disqualification, it is not of the corporation would subject the latter
enough then that the violation of the RCC, be to a competitive disadvantage and
committed within 5 years prior to election. It unjustly enrich the competitor, for
is also required that there is a conviction by advance knowledge by the competitor of
final judgment. the strategies for the development of
existing or new markets of existing or
Based on the language of the law, the new products could enable said
administrative liability may be imposed by competitor to utilize such knowledge to
any government agency, different from the his advantage.
SEC, as long as it is an offense involving
fraudulent act. The SEC, by itself, is FACTS:
authorized to impose disqualification from
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Gokongwei acquired shares of stock of a. The SEC is given the authority, motu
San Miguel Corporation enough for a proprio, or upon verified complaint,
board seat. At the same time, he was the and after due notice and hearing, to
owner of other corporations and order the removal of a director or
businesses that compete with San Miguel trustee elected despite the
Corporation. disqualification, or whose
When San Miguel knew that Gokongwei disqualification arose or is discovered
had acquired enough shares to be assured subsequent to an election.
of a board seat, San Miguel amended the b. The removal of a disqualified director
bylaws and disqualified any director of a shall be without prejudice to other
competing corporation – any person sanctions that the SEC may impose
owning more than 10% of a competing on the board of directors or trustees
corporation or any person who represents who, with knowledge of the
an interest in conflict with or adverse to disqualification, failed to remove
the corporation. such director or trustee.
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stated in the agenda and notice b. The cause of the vacancy is not any of
of the said meeting; the 3 grounds referred to above but
iii. For all other cases, the the remaining directors do not
election must be held no later constitute a quorum; and
than 45 days from the time the c. The cause of the vacancy is not any of
vacancy arose. the 3 grounds referred to above, the
b. The RCC also introduced the concept remaining directors constitute a
of emergency board. quorum but the board of directors
referred the authority to fill the
Q: What if Congress enacts a law saying vacancy to the stockholders.
that all directors of a corporation who are
former Congressmen are disqualified The filling of vacancy by the stockholders is
from continuing their director positions? subject to the notice and quorum
Does that need stockholders’ approval? requirements under Section 24 of the RCC.
A: No. Non-voting shares are not included in the
computation of quorum because the election
Q: If the SEC would be the one to remove of directors is outside the 8 cases where non-
a director, does that require authority or voting shares are vested the right to vote.
approval of concerned stockholders?
A: No. The board of directors may fill the vacancy if
the following requisites are present:
Q: What are the grounds or causes of a. The cause of the vacancy is due to any
vacancy in the position of board director ground other than expiration of term,
or trustee? removal of director or increase in the
A: number of board seats; and
a. Vacancy in the position of director or b. The remaining directors constitute a
trustee may be due to expiration of quorum.
term, removal or increase in the
number of board seats; or Q: Within what periods should the
b. It may be due to resignation, vacancies be filed?
retirement, withdrawal, death, A:
abandonment or similar grounds, a. If the vacancy is due to term
other than those stated in the expiration, the election shall be held
preceding paragraph. no later than the day of such
expiration;
Q: Who may fill the vacancy? b. If the vacancy arises as a result of
A: The stockholders or the board of directors, removal by the stockholders or
depending on the circumstances may fill the members, the election may be held on
vacancy. the same day of the meeting
authorizing the removal. However,
The stockholders have the sole power to fill this fact must be so stated in the
the vacancy in the following cases: agenda and notice of the said meeting.
a. The cause of the vacancy is the c. For all other cases, the election must
expiration of term, removal of a be held no later than 45 days from the
director or increase in the number of time the vacancy arose.
board seats;
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It may not be amiss to point out that under the vacancies. Is there a way such that you
RCC, any directorship or trusteeship to be don’t have to call a stockholders’ meeting?
filled by reason of an increase in the number A: Yes, you can request that the resignation
of board of directors or trustees shall be filled be accepted on a staggered basis. You can
by an election at a regular or at a special arrange it in such that the resignation shall be
meeting of stockholders or members duly made in staggered basis – 5 will resign and
called for the purpose, or in the same meeting after their resignation, 5 will come in and
authorizing the increase of directors or after the 5 have been elected, the remaining 5
trustees is so stated in the notice of the of the 10 who were supposed to resign will
meeting. then resign to pave the way for the election or
appointment of the remaining 5 to create the
At best, the election is conditional because 15, as long as any given time you have a
the SEC is yet to approve the amendment to quorum.
the articles of incorporation on increasing the
number of board seats. Q: If there are 15 directors and 7 died in a
plane crash. The [other] 8 called a meeting,
Q: Who should fill the vacancy due to the can the 5 out of the 8 vote to fill the
resignation of a hold-over director? vacancy?
A: In the case of Valle Verde Country Club, A: Yes, because the law says majority of the
Inc. et. al. v. Africa, the Supreme Court ruled remaining directors present until they have a
that the resignation as holdover director will quorum. The law does not say majority of the
not change the nature of the cause of the board to fill the vacancy – it says majority of
vacancy which is due to the expiration of directors present if they have a quorum.
director’s term. The term of a holdover
director has expired. The holdover period is In simple words, majority of the quorum may
not part of his term. So, the cause of the fill the vacancy, unless the bylaws provide
vacancy is not resignation but the expiration otherwise.
of term. As such, the vacancy must be filled
by the stockholders in a regular or special Q: What are the requisites to create an
meeting called for the purpose pursuant to Emergency Board?
Section 29 of OCC. A:
a. The vacancy prevents the remaining
Q: Supposing that there are 15 directors in directors from constituting a quorum;
the corporation and 10 of the 15 are b. Emergency action is required to
nominees of the controlling stockholder. prevent grave, substantial and
The controlling stockholder decided to sell irreparable loss or damage to the
his shares to another investor. It is corporation;
customary for the buyer to require the c. The vacancy may be temporarily
resignation of the nominees of the seller to filled from among the officers of the
the board so that the buyer can nominate corporation;
his trusted allies or nominees in the d. The appointment must be made by the
corporation. unanimous vote of the remaining
directors or trustees; and
If you have 10 [directors] who will resign, e. The action by the designation director
you don’t have a quorum, right? You have or trustee shall be limited to the
to call a stockholders’ meeting to fill the emergency action necessary, and the
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term shall cease within a reasonable In other words, the directors presumably have
time from the termination of the significant equity stake in the corporation
emergency or upon the election of the since one generally cannot be elected to the
replacement director or trustee, board unless he has sufficient number of
whichever comes earlier. shares. The return on their equity is sufficient
motive or consideration for their work.
The corporation must notify the SEC within
three (3) days from the creation of the The exceptions to this rule are as follows:
emergency board, stating therein the reasons 1. The bylaws authorize the said
for its creation. compensation; or
2. The stockholders representing at least
a majority of the outstanding capital
COMPENSATION OF DIRECTORS
stock or a majority of the members
OR TRUSTEES
grant the directors or trustees with
compensation and approve the
Q: What are the revisions on the provision amount thereof at a regular or special
on compensation of directors or trustees? meeting.
A:
a. Section 29 of the RCC clarified that Q: “A” is the President of ABC
directors or trustees shall not Corporation, a corporation vested with
participate in the determination of public interest while X is a director and at
their own per diems or compensation. the same time Vice Chairman of the Board
with executive functions. The
Q: Who then can determine the per diem Compensation Committee of the Board of
allowance of directors? Directors fixed their compensation
A: Either the stockholders or the bylaws or package as President and Vice Chairman,
the board of directors but the resolution of the respectively. The Board of Directors
board on per diem should not apply to them. thereafter confirmed it. When their
b. It imposed an annual reportorial compensation package was reported to the
requirement in relation to the total stockholders during the regular meeting, a
compensation of each of the directors stockholder representing minority interest
or trustees for corporations vested argues that the compensation is invalid
with public interest. and irregular because it is not authorized
by the laws nor approved by the
Q: Are directors or trustees entitled to stockholders. Is he correct?
compensation for their services rendered A: He is not correct. The Supreme Court held
to the corporation in their capacity as in Western Institute of Technology, Inc. et.
such? al. v. Salas, et. al., that the above proscription
A: As a general rule, directors or trustees are against granting compensation to directors or
not entitled to compensation in their capacity trustees of a corporation is not a sweeping
as such, because they are supposed to render rule. The said provision itself delimits the
their services to the corporation gratuitously, scope of the prohibition to the compensation
and the return upon their shares adequately given to directors or trustees. The members
furnishes the motives for service, without of the board may receive compensation, in
compensation. addition to reasonable per diems, when they
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In sum, there are, therefore, 3 instances when Per diem (Latin term for each day) is a
directors or trustees may receive specific amount a corporation or organization
compensation, to wit: gives an individual per day to cover living
a. The bylaws authorize the said expenses when traveling and attending board
compensation, or meeting. The reasonableness depends on the
b. The stockholders representing at least amount, the statute of the directors, the
a majority of the outstanding capital income and size of the corporation, and other
stock or a majority of the members related considerations. Per diem of P35,000
grant the directors or trustees with for every board meeting is deemed to be
compensation and approve the reasonable.
amount thereof at a regular or special
meeting, or Q: Is there a limit on the amount of
c. They render services in their capacity compensation of directors or trustees?
other than as directors or trustees, A: Yes, total yearly compensation if directors
even though the payment of shall not exceed 10% of the net income
compensation is not authorized by the before income tax of the corporation during
bylaws of the stockholders. the preceding year.
Q: The Board of Directors adopted a Note that unlike the OCC, where the 10%
couple of resolutions, the first one limit applies to the annual compensation of
approving car and housing plans for the directors or trustees, as such, the 10% limit
board members and the second, fixing the under the RCC does not make any such
per diem allowance of directors to P35,000 qualification. It should, therefore, apply to all
for every board meeting. The board forms of compensation for services rendered
resolutions shall be applicable to directors by the directors or trustees to the corporation
who will be elected in the next in whatever capacity.
stockholders’ meeting. Are the resolutions
valid?
A: The first resolution is invalid. The housing
and car plan are considered forms of
compensation. They are to be given to
directors as a form of remuneration for their
services in their capacity as directors. These
require authority in the bylaws or approval by
the stockholders representing at least
majority of the outstanding capital stock in a
duly called stockholders meeting.
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The Supreme Court similarly held in Carag They are not, after all, insurers of the
vs. NLRC that the liability of the officers of profitability of this corporation. Their
the corporation is not determined by the liability will attach under this ground only if
Labor Code but by the Corporation Code, their acts amount to gross negligence or bad
particularly, sections 31 and 34 of the faith in directing the affairs of the
Corporation Code (now Section 30, RCC). corporation. Gross negligence is a
Carag vs. NLRC, G.R. No. 147590, April conscious, voluntary act or omission in
2, 2007. reckless disregard of a legal duty and of
the consequences to the other party. It is
Discussion: In this case, the issue is whether one that is characterized by the want of even
or not the failure of a director/officer to slight care, acting or omitting to act in a
inform the DOLE about the termination of situation where there is a duty to act, not
the employee due to authorized cause. inadvertently but willfully and intentionally
with a conscious indifference to
The answer is no because there is no law consequences insofar as other persons may
declaring such act to be unlawful. Therefore, be affected. Parenthetically, gross or willful
on the basis of such omission, that officer negligence could amount to bad faith. Lucia
cannot be held personally liable. Magaling, et al. vs. Peter Ong, G.R. No.
173333, August 13, 2008.
However, if the omission amounts to gross
negligence or bad faith, the officer shall be Discussion: The standard to make them
liable. liable is gross negligence or bad faith. They
are not liable for mere oversight, for
b. Gross Negligence or Bad Faith in imprudence or ordinary negligence. They
Directing the Affairs of the cannot be held liable just because they made
Corporation. a mistake in making a business decision.
They could not guarantee that their decisions
Directors, trustees and officers are not liable translate to profitability.
for oversight, imprudence, or ordinary
negligence. They cannot be held liable just Slide:
because they erred in their business decision. However, before a director or officer of a
Under the business judgment rule, questions corporation can be held personally liable for
of business policy and management are left to corporate obligations, the following
the sound discretion of the board and they requisites must concur:
cannot be held liable for any adverse iii. The complainant must allege in the
consequence of those decisions as long as complaint that the director or officer
they acted in good faith and not contrary to assented to patently unlawful acts of
law. Balinghasay vs. Castillo, G.R. NO. the corporation, or that the officer was
185664, April 8, 2015.
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guilty of gross negligence or bad commission but he was not given the
faith; and commission. He sued the president and the
iv. The complainant must clearly and corporation for non-payment of
convincingly prove such unlawful commission. Who is liable?
acts, negligence, or bad faith. Heirs A: Only the corporation because there was no
of Fe Tan Uy vs. International allegation of bad faith or negligence on the
Exchange Bank, G.R. No. 166282, part of the president.
February 13, 2013.
Slide: In one case, the Supreme Court
In Heirs of Fe Tan Uy vs. International considered the corporation president's casual
Exchange Bank, it was held that the President manner, insouciance, and nonchalance, nay,
of the corporation cannot be held personally indifference, to the predicament of the
liable for gross negligence or bad faith if the distressed corporation, as gleaned from his
complaint merely averred that he signed as a court testimony, glaringly exhibited a
surety to secure the obligation of the lackadaisical attitude from a top officer of a
corporation, but which surety turned out to be corporation, a conduct totally abhorrent in the
spurious. corporate world constitute gross negligence
that will impute liability to the corporate
Discussion: Since the surety agreement is officer for corporate obligations. Thus, under
spurious, the same is void and cannot be the circumstances, the investor who made
enforced against the President. placement with the corporation could recover
the same from the grossly negligent officer.
Q: So, can the corporation, now, the Lucia Magaling, et al. vs. Peter Ong, ibid.
lender, hold the president for bad faith
and gross negligence if the complaint Relating to a criminal case, the Supreme
alleges only suretyship as the basis for the Court said that approval of a loan during the
liability? incumbency as a director does not establish
A: The SC said you cannot make the probable cause absent showing of personal
president liable for bad faith or gross participation in any irregularity as regards
negligence because it is not alleged in the approval of the loan. Presidential
complaint. What is alleged in the complaint Commission on Good Government vs.
is the spurious suretyship agreement Hon. Ma. Merceditas Gutierrez, G.R. No.
The complaint must allege with particularity 189800, July 29,2018.
the patently unlawful acts or gross
negligence. It should be noted that the stockholders are
not included in the enumeration of persons
Q: In another case, one was signed as a who may be held personally liable.
marketing agent of a corporation to sell Stockholders are liable only to the extent of
water dispenser. He was able to get a their subscription unless they also act as
contract with ITCSI. He was entitled to the directors, officers, or agents of the
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corporation. Donnina Halley vs. Printwell, opportunity refers to a case when a director,
Inc., G.R. No. 157549, May 30, 2011. by virtue of his office, acquires for himself a
business opportunity which should belong to
Discussion: the corporation, thereby obtaining profits to
Q: The question we asked earlier is the the prejudice of such corporation. There is a
case of Remo. In this case, the corporation responsibility not just to account but to remit
authorized the purchase of a truck to the corporation any profit he realized from
approved by the board through a the venture.
resolution implemented by an officer. Who
is liable to pay the purchase price? Discussion: It is not enough that there is
A: Only the corporation, not the director and conflict of interest. The conflict should result
the officer who implemented it. in damage to the corporation.
Q: What if this time, the corporation lent Q: When do you know there is a conflict?
or granted a loan to a borrower. Let’s A: When you take a position adverse to the
assume that the corporation is corporation and that results in damage to the
sequestered. Will the directors who corporation.
participated in the approval of the loan be
made liable? Q: What are the consequences when a
A: The answer is NO if there is no irregularity director acquires a business opportunity
anyway as regards the approval of the loan that belongs to the corporation?
transaction. A: He is liable to account and remit profits
earned from that transaction.
Take note that you did not see in the
enumeration the stockholders. Directors, d. Consenting to the issuance of watered
officers, trustees, agent and no mention of the stocks.
stockholders because we are clear at the
outset that the liability of the stockholders Under Section 64 of the RCC, a director or
is limited to the extent of their subscription officer of a corporation who: (a) consents to
to the corporation unless they are also the issuance of stocks for a consideration less
directors, officers, or agents of the than their par or issued value; (b) consents to
corporation. the issuance of stocks for a consideration in
any form other than cash, valued in excess of
c. Acquiring any personal or pecuniary their fair value, or (c) having knowledge of
interest in conflict with their duty as the insufficient consideration, does not file a
directors or trustees. written objection with the corporate
secretary, shall be liable to the corporation or
This conflict of interest must result in its creditors, solidarily with the stockholder
damage to the corporation. In relation concerned for the difference between the
thereto, the doctrine of corporate value received at the time of the issuance of
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the stock and the par or issued value of the on the nature of the agreement he entered to
same. secure the obligation of the corporation. If he
signs a surety agreement, he is liable
Discussion: solidarity with the corporation. If it is a
Q: What do you mean by watered stocks guaranty agreement, he is liable subsidiarily
again? with the corporation because as a guarantor,
A: Watered stocks are those issued for an he has the right of excussion. However, if the
amount lower than par value for a stock with guaranty agreement waives the benefit of
par value. What about no par value share? If excussion, then he is liable solidarily with the
issued lower than the issued price as corporation. It is thus clear that the
approved by the board or the stockholders. It assumption of the corporation's liability does
is not correct to say that watered stocks are not always translate to solidary liability. It
issued for an amount lower than fair value. has to be read in conjunction with the
You use fair value if the consideration in the provisions of the Civil Code on guaranty.
issuance of the stocks is property and the
property is valued in excess of the fair value. In Security Bank and Trust Company vs.
In which case, the stocks issued are Cuenca, the president signed a surety
accordingly watered. agreement to secure the obligation of the
corporation. Thereafter, he lost his position
Q: Liable to whom? as he was not re-appointed. The Bank,
A: The corporation and the creditors of the subsequently, extended the term of payment.
corporation.
The question on the extent of liability of the
Q: Why do you hold the director and the president cannot be resolved by corporation
subscriber liable and for what amount? law. Reference should be made to the
A: They are liable for the difference between provisions of the Civil Code on guaranty.
the par or issued price and the amount Under the Civil Code, any material or
actually received by the corporation, adverse change in the terms and conditions of
the principal contract made without the
They are liable to the creditors because of the consent of the surety or guarantor shall
trust fund doctrine. The trust fund doctrine release him from liability. Extension of term
says that the totality of subscriptions are is a material adverse change to the principal
funds held in trust for the benefit of the contract. It was extended without his consent.
creditors. His consent could not be obtained as he was
no longer the president when the loan was
e. Contractual Liability extended. He is consequently released from
liability under the law on guaranty. Security
If a director or officer makes himself Bank and Trust Company vs. Cuenca,
contractually liable with the corporation, is G.R. No. 138544, October 3, 2000.
he automatically liable solidarity? It depends
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the extent of his subscription. They can prosecution the corporate agent who
proceed against B up to the extent of his knowingly and intentionally causes the
unpaid subscription. C is solidarily liable corporation to commit a crime. The
with the corporation for the payment of the corporation obviously acts and can act, only
creditor's claims because of C's gross by and through its human agents, and it is
negligence in directing the affairs of the their conduct which the law must deter. The
corporation. 1997 Bar Exam. Executive Secretary, et al. vs. Court of
Appeals, et al., G.R. No. 131719, May
Of course, even if the law does not impose 25,2004.
liability upon directors or officers for the
corporate act omission, the officers of the There is likewise jurisprudence that not only
corporation, other than the board of persons who participated in the act can be
directors, can be made criminally liable for made criminally liable. Even those with
their criminal acts if it can be proven that power to prevent the illegal act may be
they participated therein. Gregorio Singian, held criminally liable. Thus, to be held
Jr. vs. the Honorable Sandiganbayan and criminally liable for the acts of a corporation,
the Presidential Commission on Good there must be a showing that its officers,
Government, G.R. Nos. 160577-94, directors, and shareholders actively
December 16, 2005. participated in or had the power to prevent the
wrongful act. Securities and Exchange
Discussion: There are two instances where Commission vs. Price Richardson Corp.,
you can impose criminal liability upon et al, G.R. No. 197032, July 26, 2017.
directors or officers:
1. If they are made liable for the act of Discussion: In this case of SEC v. Price
the corporation (PD 115 is an Richardson, it turns out that the corporation
example); is engaged in selling unregistered securities.
2. Even if there is no law that imposes In paper, their purposes is legitimate because
liability upon them, if they they provided that they are engaged in the
themselves participated in the business of admin and housekeeping
commission of the criminal acts. activities.
Slide: Labor disputes such as that of illegal Q: Aside from the six circumstances
recruitment can also trigger the liability of discussed above, is there any other ground
employees and employers. An employee of a to hold a director or officer personally
corporation, engaged in illegal recruitment liable for corporate acts or omission?
may be held liable as principal, together with A: The abovementioned six circumstances
his employer, if it is shown that he actively where a director or officer can be held
and consciously participated in illegal personally liable for corporate acts or
recruitment because the existence of the omission are exclusive.
corporate entity does not shield from
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In one case, Restaurante Las Conchas vs. exception because when the corporate veil is
Llego, the Supreme Court held an exception pierced, the director/officers become one
to the rule that officers and members of the with the corporation. They cease to be
corporation are not personally liable for acts corporate representatives. They are no
done in the performance of their duties is longer being made liable for the act taken on
when the corporation is no longer existing behalf of the corporation as the corporation
and is unable to satisfy the judgment in favor ceases to have a separate legal personality.
of the employee. The officers in this case
should be liable for acting on behalf of the Besides, piercing the corporate veil assumes
corporation. There were also cases where the gross negligence, bad faith, or breach of
Supreme Court held that if the records do not fiduciary duties on the part of directors and
clearly identify the "officer or officers" officers and as such, subsumed under the 2nd
directly responsible for the payment of circumstance as previously discussed.
monetary benefits to the employees, the
president of the corporation, as the Q: What do you understand by the special
responsible officer of the corporation, may be fact doctrine?
ordered to respond personally in case of A: It is a doctrine holding that a corporate
closure of the corporation. These cases are officer with superior knowledge gained by
no longer controlling. As explained in virtue of being an insider owes a limited
Carag vs NLRC, the Supreme Court said fiduciary duty to a shareholder in transactions
that the liability of the director or officer is involving transfer of stock. This duty arises
determined not by the Labor Code but by because of the superior knowledge the officer
the provisions of the Corporation Code. holds by virtue of his or her position.
Just because the corporation has no Discussion: This is different from insider
available leviable assets should not make trading. Insider trading is buying or selling of
the directors or officers personally liable. securities by an insider while in possession of
There ought to be any of the abovementioned a material non-public information. The law
circumstances to make the officer or director defines who are the insider.
liable with the corporation.
Q: This special fact doctrine applies to a
The enumeration is therefore exclusive. corporate officer limited in scope not to all
The six instances have been reiterated in insiders but only to a corporate officer who
various cases without addition or secured knowledge gained by reason of
subtraction. him being an insider, being an officer of
the corporation. So what is his duty? Does
What about the application of the doctrine of he have duty, for example, to disclose such
piercing the veil of corporate fiction where information to all stockholders of the
the directors and officers are liable for the corporation or to the public for that
debts of the corporation? This is not really an matter?
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A: He has no such obligation but he has the directors voting to approve the material
duty to disclose if he is the one involved in contract.
the transaction. If acquires information on (Dean: The code has not defined yet what
account of being a corporate officer and he is are material contracts. It may be defined
a party to that transaction, he had the duty to by the corporation.)
disclose the same in favor of the counterparty
in the transaction. So only if he is involved in Q: What is the legal status of a contract
the sale transaction, he is required to disclose between the corporation and any of its
but is not required to disclose any directors, trustees or officers or their
information he knows about the corporation related interest?
to all stockholders unless it’s a public A: A contract of the corporation with one (1)
company and any material benefit against the or more of its directors, trustees, officers or
company has to be disclosed to the public and their spouses and relatives within the fourth
the SEC. civil degree of consanguinity or affinity is
voidable, at the option of such corporation,
Q: What do you mean by self-dealing? unless all the following conditions are
A: Basically, it is a transaction between the present:
corporation and its director or the corporation a. The presence of such director or trustee in
and its officer. the board meeting in which the contract
was approved was not necessary to
Q: What are the revisions under the RCC constitute a quorum for such meeting;
on self-dealing provision? b. The vote of such director or trustee was
A: not necessary for the approval of the
a. It expands the coverage of self-dealing contract;
provision to spouses and relatives within c. The contract is fair and reasonable under
the fourth civil degree of consanguinity the circumstances;
or affinity of the directors, trustees, d. In case of corporations vested with public
officers. interest, material contracts are approved
(Dean: The conditions or requisites that by at least two-thirds (2/3) of the entire
should be complied with for a contract membership of the board, with at least a
between the corporation and its director, majority of the independent directors
officer, trustee should now apply even to voting to approve the material contract;
a contract between the corporation and and
the relatives of director, officer, trustee e. In the case of an officer, the contract has
up to 4th degree of consanguinity.) been previously authorized by the board
b. In the case of corporations vested with of directors.
public interest, material contracts are
approved by at least two-thirds (2/3) of Where any of the first three (3) conditions set
the entire membership of the board, with forth in the preceding paragraph is absent, in
at least a majority of the independent the case of a contract with a director or
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trustee, such contract may be ratified by the cement. It entered into a contract with XX,
vote of the stockholders representing at least one of its directors, making him the
two-thirds (2/3) of the outstanding capital exclusive distributor of prime white
stock or of at least two-thirds (2/3) of the cement in the entire country. The contract
members in a meeting called for the purpose: further stipulated that the price of the
Provided, That full disclosure of the adverse cement is fixed at P9 pesos per bag for a
interest of the directors or trustees involved is period of five (5) years. Is the contract fair
made at such meeting and the contract is fair and reasonable under the circumstances?
and reasonable under the circumstances. Is it valid?
A: In the case of Prime White Cement
Under this provision, such a contract is Corporation vs. IAC, the Supreme Court held
voidable at the option of the corporation, that the transaction is covered by the self-
meaning valid, until annulled by the dealing provision under the Corporation
corporation. The option to void the contract Code. It is not valid because the contract is
ceases if the foregoing requisites are duly not fair and reasonable under the
complied with. circumstances. There is no hard and fast rule
in determining whether the contract is fair
Note further that the presence and vote of the and reasonable under the circumstances,
self-dealing director may be dispensed with hence the clause "under the circumstances."
in lieu of the ratification by the stockholders In this case, the Supreme Court held that it is
representing at least 2/3s of the outstanding not fair and reasonable because one cannot
capital stock or at least 2/3s of the members fix the price of cement for a period of five (5)
for a non-stock corporation in a meeting years, considering the fluctuation of market
called for the purpose. The condition that prices and nature of the commodity.
cannot be dispensed with is that the contract
must be fair and reasonable under the Another example is when a corporation hires
circumstances. one of its directors to serve as legal counsel
to handle an important case for the
Discussion: It is voidable so valid until corporation. The director should recuse
annulled so it may be annulled by the himself in presence and voting. He can waive
corporation. However, the option to declare it his fees or charge less what he would
void ceases if the aforementioned conditions ordinarily charge other clients for similar
are present. cases to fulfill the spirit against the rule on
self-dealing.
The one requirement that you cannot do away
with is that the contract is fair and reasonable Q: Let’s say ABC Corporation and XYZ
under the circumstances. Corporation entered into a contract and
they have the same directors or
Q: ABC Corporation is engaged in the interlocking directors. Can the contract
business of manufacturing prime white
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they entered into be invalidated on the fact for the quorum there and his vote is not
that they have interlocking directors? required to cover the contract or transaction
A: No except in cases of fraud and the there. You can dispense with these 2
contract is not fair. conditions upon approval of the 2/3 of the
outstanding capital stock of the other
Q: What is the legal status of a contract corporation.
between two corporations with
interlocking directors? Q: When do you say that one is substantial
A: Except in cases of fraud, and provided the and the other one nominal?
contract is fair and reasonable under the A: More than 20% is substantial. Below is
circumstances, a contract between two (2) or nominal.
more corporations having interlocking
directors shall not be invalidated on that Q: What if both are substantial?
ground alone: Provided, That if the interest of A: This rule will not apply. Meaning, you
the interlocking director in one (1) don’t subject the other corporation to the
corporation is substantial and the interest in rules under Section 31.
the other corporation or corporations is
merely nominal, the contract shall be subject Q: What if they are both nominal?
to the provisions of the preceding section A: Again, those conditions under Section 31
insofar as the latter corporation or will not apply.
corporations are concerned.
DBP v. CA
Stockholdings exceeding twenty percent
(20%) of the outstanding capital stock shall
Facts: DBP granted loan accommodations to
be considered substantial for purposes of
Marinduque Mining secured by mortgage on
interlocking directors.
the property of Marinduque Mining. Loan
In other words, the mere fact that there is a
was not paid. The bank foreclosed the
contract between two (2) corporations with
mortgage. Redemption right was not
common directors is not a ground to
exercised. Bank became the owner of the
invalidate the said contract. However, the
foreclosed assets. After that, the bank set up
contract must be fair and reasonable under
a new mining company called Nonoc Mining.
the circumstances and should not be tainted
It assigned the foreclosed assets to Nonoc
with fraud.
Mining. It turns out that Marinduque Mining
purchased steel products from Remington
Discussion: What does this mean? It means
Steel and did not pay the purchase price.
that the corporation where the interest of the
director is nominal, it’s as if it is a contract
Issue: Can Remington Steel, un unpaid seller
between the corporation and its director.
of Marinduque Mining, question the contract
With respect to the corporation with the
of assignment of foreclosed assets between
interest is nominal, his presence is not needed
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DBP and Nonoc just because they have underlying philosophy upon which such
common directors and officers? doctrine rests?
A: The doctrine of corporate opportunity
Ruling: No. Only the corporations involved means that if the director acquired for himself
having interlocking directors can question the a business opportunity that should belong to
contract, not a third party. Remington as a the corporation, he must account to the
third party has no legal personality to corporation for all the profits he obtained
question the contract just because the two unless his act was ratified by the stockholders
corporations have common or interlocking representing at least 2/3s of the outstanding
directors. It’s supposed to be the parties capital stock.
which entered into the contract itself.
Under such doctrine, a director of the
Q: Why do we have this rule? Why not corporation is prohibited from competing
prohibit corporations from dealing with with the business in which the corporation is
another corporation if they have common engaged in, as otherwise, he would be guilty
directors? of disloyalty, where profits he may realize
A: Because this is the reality of business. You will have to go to the corporate funds except
don’t farm out business to a competitor. You if the disloyal act is ratified. IENT vs. Tullett
farm out a business to an affiliate company, a Prebon, G.R. No. 189158, January 11,
company where you have a common director 2017
or you have a stake in.
This doctrine rests fundamentally on the
NOTE: There are special laws which unfairness, in particular circumstances, of an
prohibit contracts between corporations officer or directql taking advantage of an
having interlocking directors. opportunity for his own personal benefit
when the interest of the corporation should
Examples: director of a bank and a quasi- have been more paramount. 1985 and 2005
bank, director of an investment house, Bar Exams.
director of 2 thrift banks.
Under Section 33 of RCC, when a director
Remember, except for these special cases, seized an opportunity belonging to the
there is nothing wrong if a person sits as a corporation, there is an obligation to account
director of 2 corporations (even competing for and remit any profit he earned from that
corporations subject to the provisions of the venture or transaction. The obligation to
corporation’s bylaws disqualifying a account and remit is not excused even if he
stockholder from a competing corporation to risked his own funds unless the act was
be a director). ratified by the stockholders representing
at least two-thirds (2/3) of the outstanding
Q: What is the so-called “doctrine of capital stock.
corporate opportunity”? What is the
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Discussion: This doctrine has two facets: matters falling within the board’s
1. The director should not compete with competence.
the business of the corporation;
2. If there is a business opportunity An execom is basically a small board of
belonging to the corporation, he directors. A mini board of directors that can
should not take advantage of it. If he act on matters that fall within the board’s
does, he must account for any profit competence. Whatever the board can do, the
earned from that venture and remit execom can also do. Because the board is
the same to the corporation unless the appointed or elected by the stockholders, then
acts are ratified by the stockholders only the stockholders have right to determine
representing at least 2/3 of the or decide whether to create a small board of
outstanding capital stock. directors. So, it is an adjunct or an extension
of the board.
Q: Is there any revision under the RCC
relating to Executive Committee? Q: What’s the rational of the creation of
A: In Section 34 of the RCC, a new paragraph the executive committee?
was added in relation to the power of the A: Regular board meetings are often
board to create other special committees of conducted only once a month. There are
temporary or permanent nature and occasions where transactions require
determine the members' term, composition, corporate approval but cannot wait for the
compensation, powers, and responsibilities. Board to meet, given the urgency or the need
to make a prompt decision. The bylaws may
Discussion: Take note that the board cannot authorize the creation of an executive
create a corporate office. committee, which is an adjunct or extension
of the board, that can act on matters falling
Q: What is an executive committee? within the board's competence.
A: It is a committee that the board creates Q: Who may create the executive
pursuant to an authority granted under the committee?
corporation's bylaws, composed of at least A: The executive committee is created by the
three members of the Board, that can act on bylaws. Once created, the board may fill the
matters falling within the board's composition of the committee. As the power
competence. to adopt bylaws is lodged with the
stockholders, by parity of reasoning, only
Discussion: Let’s dissect this. It is created the stockholders may decide to create a
pursuant to an authority granted under the committee that will serve as an adjunct or
corporation’s bylaws. Therefore, there ought extension of the board of directors or a
to be a provision in the bylaws on execom or mini-board of directors.
the bylaws authorized the board to create it.
Without the authority, there can be no legal However, the board can create a committee
basis to create an execom that can act on and name it "executive committee" as long as
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present, met and decided on the following b. Corporations are now expressly allowed
matters: to enter into a partnership, joint venture,
or any other commercial agreement with
a. purchase of a delivery van for use in the natural and juridical persons.
corporation's retail business; c. It appears that there is no more
b. declaration and approval of the prohibition for domestic corporations to
13thmonth bonus; donate in favor of a political party or
c. purchase of an office condominium unit candidate.
at the Fort; and
d. declaration of P10.00 per share cash Q: What are the classifications of
dividend. corporate powers and capacity?
A: The powers of a corporation can be
Are the actions of the Executive classified as follows:
Committee valid? a. Express powers - those which are
expressly granted under the RCC and
A: The actions of the Executive Committee those embodied in the corporation's
are valid except for the declaration of cash articles of incorporation, as sanctioned by
dividends which is an act that cannot be the State
delegated by the Board of Directors to the b. Implied or incidental powers - these are
Executive Committee pursuant to Section 34 the corporation's "powers, attributes and
of the RCC. properties…incident to its existence",
which may be "essential or necessary to
NB: The answer is on the assumption that: a) carry out its purpose or purposes as stated
the Vice President is also a director because in its articles of incorporation."
only board directors can be appointed as Corporate Powers: Ultra Vires Acts,
regular and voting members of the Executive SEC-OGC Opinion No. 20-09, August
Committee; and, b) that it is the bylaws that 4, 2009.
created the Executive Committee and the (Dean: There can be no enumeration of
Board is simply authorized under the bylaws implied powers. It is implied because it is
to appoint the members. necessary for the purpose of the
corporation.
POWERS OF CORPORATIONS
If there is a power to obtain a loan, does
the corporation also have the power to
Q: What are the revisions under the RCC sign documents through its agent?
on corporate powers? Obviously, the answer is yes. The power
A:
to sign documents is implied from the
a. As previously discussed, corporations
power to obtain a loan.)
under the RCC may have perpetual
existence.
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c. Inherent powers - those which are not of the plant. The Court ruled that "a
expressly stated but are deemed to be corporation is not restricted to the exercise of
within the capacity of corporate entities. powers expressly conferred upon it by its
Incidental powers are also called inherent charter, but has the power to do what is
corporate powers and include those reasonably necessary or proper to promote
which a corporation can exercise by the the interest or welfare of the corporation".
mere fact of its corporate existence, such National Power Corp. vs. Vera, G.R. No.
as: 83558, Third Division, February 27, 1989,
a. Right to succession J. Cortes.
b. Right to have a corporate name
c. Right to adopt its own bylaws Discussion: In this case, the question is
whether NAPOCOR can hire its own
(Dean: In our code, the inherent powers are stevedores? The SC said that NAPOCOR has
also express powers. Every corporation has no power to engage stevedores and it is not
the right of succession, the right to adopt consistent to its purposes. However, in this
bylaws, the right to adopt a corporate name.) case, the hiring of the stevedore is for the
purpose of unloading the coal shipments into
The inherent powers of the corporation are the pier and for transmission to the power
also included in the enumeration of express plant. This, therefore, is incidental to the
powers under Section 35 of the RCC. operation of the plant. Therefore, implied
from the power of the corporation. This is the
Acts outside these powers are ultra vires case where the SC said that the powers of the
acts. The statutory provision prohibiting corporation are not restricted to what appears
them is Section 44 of the RCC. in the articles of incorporation.
Discussion: If the acts are ultra vires, they are The ultimate test is “Is that act or transaction
not enforceable against the corporation. For related to the purpose of the corporation?
an action to be valid and binding against the Incident to the purpose of the corporation?
corporation, it must be consistent with and Germane to the purpose of the corporation?”
not contrary to the express, implied or The purpose is what you see in the articles of
inherent powers of the corporation.) incorporation. If the answer is yes, then the
act is binding and enforceable.
Q: Give examples of implied or incidental
powers. Slide: Also, in the case of Teresa Electric &
A: In the case of National Power Corporation Power Co., Inc. vs. Public Service
vs. Vera, the stevedoring services which Commission and Filipinos Cement
involve the unloading of the coal shipments Corporation in interpreting a provision found
into the NPC pier for its eventual conveyance in respondent corporations articles of
to the power plant were considered as incorporation authorizing the corporation to
incidental and indispensable to the operation perform any and all acts connected with the
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business of manufacturing portland cement certificate that it shall bear the corporate
or arising therefrom or incidental thereto, the seal. However, the lack of corporate seal
Supreme Court concluded that the in the stock certificate does not invalidate
corporation must be deemed authorized to the document.)
operate and maintain an electric power plant d. To amend its articles of incorporation in
exclusively for its own use in connection with accordance with the provisions of the
the operation of its cement factory in a remote RCC;
barrio. The Supreme Court found that the e. To adopt bylaws, not contrary to law,
operation of such plant was necessarily morals or public policy, and to amend or
connected with the business of repeal the same in accordance with the
manufacturing cement. Teresa Electric & RCC;
Power, Co., Inc. vs. Public Service f. In case of stock corporations, to issue or
Commission, G.R. No. L-21804, sell stocks to subscribers and to sell
September 25, 1967. treasury stocks in accordance with the
provisions of the RCC and to admit
As a practical example, a corporation which members to the corporation if it be a
is expressly allowed by its articles of nonstock corporation;
incorporation to obtain a loan is impliedly g. To purchase, receive, take or grant, hold,
authorized to sign, execute and deliver convey, sell, lease, pledge, mortgage, and
documents and perform other acts necessary otherwise deal with such real and
to carry out the loan transaction. personal property, including securities
and bonds of other corporations, as the
Q: What is the theory of general capacity? transaction of the lawful business of the
A: Under the theory of general capacity, a corporation may reasonably and
corporation holds such powers which are not necessarily require, subject to the
prohibited or withheld from it by general limitations prescribed by law and the
laws. Constitution;
h. To enter into a partnership, joint venture,
The general powers of a corporation are merger, consolidation, or any other
enumerated under Section 35 of the RCC, to commercial agreement with natural and
wit: juridical persons;
a. To sue and be sued in its corporate name; (Dean: This is something new. Before
b. To have perpetual existence unless the corporations can only enter into joint
certificate of incorporation provides ventures. Now, they can enter into
otherwise; partnerships.)
c. To adopt and use a corporate seal; i. To make reasonable donations, including
(Dean: a corporate seal is used to identify those for the public welfare or for
the documents of the corporation. There hospital, charitable, cultural scientific,
are two provisions on corporate seal: this civic, or similar purposes: Provided, That
one (Sec. 35) and the provision on stock no foreign corporation shall give
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Wing Talk vs. Makasiar, G.R. No. 122452, Philippines, et al., G.R. No. 161838, April
January 29, 2001. 7, 2010.
It is also not lodged with the President of the In the case of Maranaw Hotels and Resort
corporation. In one case, it was held that a Corporation vs. Court of Appeals , G.R. No.
derivative suit should not prosper if it is filed 149660, First Division, January 20, 2009, ,
by the president, not authorized by the the Supreme Court ruled that the lawyer who
corporate shareholder for whose benefit the signed the pleading, verification and
shares are held. Nora Bitong vs Court of certification against forum shopping must
Appeals, G.R. No. 123553. July 13, 1998. be specifically authorized by the Board of
Directors of the Corporation to make his
The corporate power to sue and be sued actions binding on his principal. Similarly,
commences upon the issuance by SEC of the a petition filed, and the accompanying
certificate of incorporation. This power, as certification against non-forum shopping
previously pointed out, is exercised by the signed, by the Chief Legal Counsel and one
board of directors. The physical acts of the of the controlling stockholders of the
corporation, like the signing of documents, corporation is not valid unless he is
can be performed only by natural persons authorized by the board. Philippine Rabbit
duly authorized for the purpose by corporate Bus Lines vs. Aladdin Transit
bylaws or by a specific act of the board. Corporation, G.R. No. 166279, June 30,
Absent the said board resolution, a petition 2006.
may not be given due course. Ligaya
Esguerra vs. Holcim Philippines, Inc., Under the Revised Rules of Civil Procedure,
G.R. No. 182571, September 2, 2013. the authorization of the affiant to act on
behalf of a party, whether in the form of a
If the real party in interest is a corporate body, secretary's certificate or a special power of
an officer of the corporation can sign the attorney, should be attached to the
certification against forum shopping so long pleading. Failure to comply with the
as he has been duly authorized by a resolution foregoing requirements shall not be curable
of its board of directors. It was held that the by mere amendment of the complaint or other
lower court did not commit grave abuse of initiatory pleading but shall be cause for
discretion in dismissing the petition for lack dismissal of the complaint without prejudice,
of authority of the officer who signed the unless otherwise provided, upon motion and
certification of non-forum shopping in after hearing. Rule 7, Section 5 of the
representation of petitioner corporation. San Revised Rules of Procedure, AM No. 19-
Miguel Bukid Homeowners Association, 1020-SC (which took effect on May 1,
Inc. vs. City of Mandaluyong, et al., G.R. 2020)
No.153653, October 2, 2009; Republic of
the Philippines vs. Coalbrine International Cases abound that board resolution on the
authority of the agent of the corporation may
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be dispensed with if the verification and officers who committed a wrongful act
certification against forum shopping is signed against the corporation. Obviously, the
by the following corporate officers: directors who committed the wrongful act,
a. Chairperson of the Board of Directors; being in control of the corporation, are not
b. President; expected to adopt a resolution to authorize
c. General Manager; the filing of legal action to nullify their very
d. Personnel Officer; or own acts. To require a board resolution on the
e. Employment Specialist in labor case. part of the suing stockholder will render
illusory the right of a stockholder to file a
The reason they can sign the verification and derivative suit. In Tan Wing Talk case, it was
certification even without approval is that also held that the minority stockholder could
these officers are in the position to verify the have sued on a derivative cause of action but
truthfulness and correctness of the allegation he must allege and comply with the
in the petition. conditions for a derivative suit.
It is not settled yet whether the jurisprudence Discussion: If the corporation wants to sue,
on the authority of the foregoing officers to it needs the approval of the board of directors.
sign the initiatory pleading and certification The board shall authorize likewise the person
against non-forum shopping even without the who shall sign the pleadings and the
supporting board resolution ceases to apply complaint or petition on behalf of the
in view of the foregoing revision in the Rules corporation. If there is no board resolution
of Civil Procedure. The author believes that attached to the complaint, it will result to the
such jurisprudence should be deemed dismissal of the complaint or petition.
superseded by the new rules. While these
officers are in the position to certify as to the The exception is a derivative suit. A
accuracy and truthfulness of the allegations derivative suit does not need a board
of the initiatory pleading, it does not resolution. In fact, to require board resolution
necessarily mean that they have been on derivative suit is to render illusory the
authorized by the board to initiate the legal power of the minor stockholder to file such
action and verify the pleading accordingly. suit on behalf of the corporation.
For practitioners, it is also better to err in the
side of caution. Q: What is the essence of derivative suit?
A: The corporation is the aggrieved party.
The only instance that board resolution is not The ones who performed the wrongful acts
necessary in filing legal action on behalf of are the majority directors and/or corporate
the corporation is through a derivative suit. A officers or the ones who are in control of the
derivative suit is an action filed by a minority corporation. They refused to act on these
stockholder in the name and on behalf of the wrongful acts so someone has to act on behalf
corporation to enforce a corporate right or of the corporation to enforce a corporate right
cause of action against the directors and or a cause of action by filing that suit on
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behalf of the corporation to seek redress for (2) President; (3) General Manager (4)
the corporation. Human Resource Officer; and (5)
Employment specialist in labor cases.
In Ago v. Agro Realty, only the minority can
file derivative suit. The remedy of majority of Why is it they can sign the complaint or
stockholders to cause the board to issue a petition even without board resolution?
board resolution to authorize the filing of the Because by reason of the nature of their
suit. position, they are deemed to be familiar with
Derivative suit is only a last resort. the affairs of the corporation and therefore,
can certify as to the accuracy in the complaint
Q: A minority stockholder filed a or petition.
derivative suit on behalf of the corporation
to question the acts of the management on HOWEVER, under the Revised Rules of
the part of the board and the corporate Procedure, the authorization of the affiant to
officers. The board convened and passed a act on behalf of the party in the form of a
resolution instructing the counsel of the secretary certificate or a special power of
corporation to cause the dismissal of the attorney should be attached to the pleading.
derivative suit on the ground that it is not This procedure should supersede the
authorized by the board. Would you grant jurisprudence.
the motion to dismiss?
A: No. You will deny the motion to dismiss b. Power of the Corporation to Have
because you cannot subject a derivative suit Perpetual Existence
to the approval of the board. It does not
require any board approval. Otherwise, you As previously discussed, unlike the OCC
render illusory or meaningless the right of the which prescribed a maximum corporate term
stockholder to file derivative suit. of 50 years unless extended, corporations are
now expressly allowed to have perpetual
There is one case where the SC that board existence unless their certificate of
resolution is need to file derivative suit. It is incorporation provides otherwise.
because the stockholders suing is a corporate
stockholder. So, if the plaintiff is a corporate c. Power of the Corporation to Issue or
stockholder, then you need a board resolution Sell Stocks to Subscribers
from the corporate stockholder, not the board
resolution of the corporation whose acts of The power of the corporation to issue stocks
the board you are questioning. includes the authority to set the terms and
conditions of the issuance. These may
There are cases where the SC said certain include terms and dates of payment.
officers can sign a petition or complaint on Ordinarily, the 25% payment requirement for
behalf of the corporation even without board subscription only applies in case of an
resolution. These officers are: (1) chairman; increase of capital stock. The corporation,
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The RCC expressly allows corporations "to Other related laws include the General
purchase, receive, take or grant, hold, Banking Act.
convey, sell, lease, pledge, mortgage, and
otherwise deal with such real and personal e. Power of Corporation to Enter into
property, including securities and bonds of Commercial Agreement with Natural
other corporations. This, however, is subject and Juridical Persons
to the following limitations:
i. It must be in furtherance of the Another significant revision under the new
purpose for which the corporation law is the express grant of power to
was organized. corporations to enter into any commercial
agreement, including but not limited to
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But for joint venture, as far back as the case (i) To make reasonable donations,
of Aurbach vs. Sanitary Wares including those for the public welfare
Manufacturing Corporation, the Supreme or for hospital, charitable, cultural,
Court had already ruled that a joint venture is scientific, civic, Or similar purposes:
a form of partnership and should thus be Provided, That no foreign corporation
governed by the law of partnerships. The shall give donations in aid of any
Supreme Court, however, recognized a political party or candidate or for
distinction between these two business forms purposes of partisan political
and held that although a corporation cannot activity...
enter into a partnership contract, it may
however engage in a joint venture with As previously indicated, it appears that there
others. Aurbach vs. Sanitary Wares is no more prohibition for domestic
Manufacturing Corp., G.R. No. 75875, corporations to donate in favor of a
75951, 75975-76, Third Division, political party or candidate.
December 15, 1989.
Hence, the following are the requisites for a
Discussion: Now, expressly allowed to enter valid donation by a corporation:
into partnerships. The SEC said that the a. The donation must be reasonable;
corporation before it enter into a partnership, b. It must be for a valid purpose including
it must be authorized by its articles of public welfare or for hospital, charitable,
incorporation. cultural, scientific, civic, or similar
purposes; and
f. Power of Corporation to Make c. The donation must bear a reasonable
Donations relation to the corporation's interest and
must not be so remote and fanciful.
Section 36(9) Of the OCC reads:
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Providing gratuity pay is one of the express Q: What about retirement benefits? Can
powers of the corporation and therefore, the corporation grant retirement benefits
resolutions duly passed by the board superior to what the law provides?
approving the grant of gratuity pay to the A: Yes.
employees of the corporation are not ultra
vires. The grant of gratuity pay does not Q: What about inferior to what the law
require shareholders' approval as it is not provides?
tantamount to the sale, lease, exchange or A: No.
disposition of all or substantially all of the
corporation's assets. Lopez Realty, Inc. vs. Q: What is the theory of specific capacity?
Fontecha, G.R. No. 76801, Second A: Under the Theory of Specific Capacity, a
Division, August 11, 1995 corporation cannot exercise powers except
Discussion: The grant of gratuity pay does those expressly or impliedly given to it.
not require shareholders’ approval. The grant
of gratuity pay is not tantamount to sale, The specific powers of a corporation can be
lease, exchange of property. found in Sections 36 to 43 of the RCC.
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POWERS OF THE CORPORATION On the other hand, the corporate term may be
shortened for corporations with a specified
term in the articles of incorporation or even
Q: Is there any revision under the RCC on
those with perpetual existence.
modes of notice of meeting for any of the
corporate act requiring approval of
Discussion: May be exercised only in the
stockholders or members in a meeting
event when the corporation has a fixed term.
called for the purpose?
As we said, corporations under the RCC have
A: Under the RCC, notices of the meeting,
the perpetual existence and corporations
when allowed by the bylaws or done with the
organized prior to the effectivity of the RCC
consent of the stockholder, may be sent
likewise are deemed to have perpetual
electronically in accordance with the rules
existence.
and regulations of the SEC on the use of
electronic data messages. This is a new
Section 36 on the extension of term refers to
provision which cannot be found in BP Blg.
the corporations which opted or preferred to
68 and which can be uniformly seen in
have a fixed term specified in the articles of
Section 36 (Power to Extend or Shorten
incorporation.
Corporate Term), Section 37 (Power to
Increase or Decrease Capital Stock; Incur,
Q: What are the requirements for
Create or Increase Bonded Indebtedness),
extending or shortening the corporate
Section 39 (Sale or Other Disposition of
term?
Assets) and Section 41 (Power to Invest
A: The requirements are as follows:
Corporate Funds in Another Corporation or
a. At least majority vote of the board;
Business or for Any Other Purpose) of the
b. Ratification by the stockholders
RCC.
representing at least 2/3 of the
outstanding capital stock or by at least
Discussion: The revision or amendment is
2/3 of the members in case of non-
Notices can be sent electronically based on
stock corporations;
the rules of the SEC if provided for in the
c. Written notice of proposed action and
bylaws of the corporation. This goes through
the time and place of the meeting
all of the various corporate acts.
must be given to stockholders' or
members' residences, served
Q: When may the power to extend or
personally or sent electronically;
shorten the corporate term be exercised?
d. The extension or shortening of
A: This power to extend the corporate term
corporate term entails an amendment
may be exercised in case the corporation has
of the articles of incorporation. As
opted to have a fixed term, as specified in its
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shares. The properties exchanged for Q: The authorized capital stock of ABC
shares become the assets of the Corporation is Php100 million divided into
corporation. 100,000,000 shares with par value of Php
c. c. To support stock dividend declaration 1/share. The subscribed capital stock is
— if the unsubscribed shares of the P50,000,000 divided into 50,000,000 shares
authorized capital stock of the with par value of Php 1/share and fully
corporation are not sufficient to paid-up. The corporation posted a surplus
accommodate the shares that the profit of Php100,000,000 in the preceding
corporation may issue as a result of the year. The corporation would like to
stock dividends, the capital stock must be declare 200% stock dividends. What steps
increased to support such stock dividend. should the corporation take?
Over-issuance of shares is not allowed, A: The stock dividend declaration has to be
being an ultra vires act. 2001 Bar Exam. approved by the board of directors by at least
majority vote and the stockholders
Discussion: representing at least 2/3s of the outstanding
Q: What are the tools /remedies available capital stock.
to the corporation to raise funds?
A: The corporation should also increase the
a. To increase the capital stock capital stock. Their base figure for the
b. To issue shares from the unsubscribed declaration of stock dividends is the number
portion of the ACS of subscribed shares which is 50 million. The
c. Loans from creditors 200% stock dividend declaration translates to
d. Advances from SH 100 million shares. This means that the
corporation will have to issue this number of
Note: Advances from SH are not considered shares because of the 200% stock dividend
as equity. They are loans of SH to declaration. The only available shares are the
corporation until they decide to convert it to 50 million unsubscribed shares. The capital
equity. stock then has to be increased by at least P
150 million divided into 150 million shares to
Q: What is the difference between an support the stock dividend declaration.
advance and equity?
A: Discussion: The following are the steps that
a. Loan earns interest. Equity does not should be taken by the corporation:
earn interest; Equity will earn 1. Get the approval of the majority of the
dividends if declared by the Board and ⅔ of SH to declare stock
corporation. dividends
b. Loan is an obligation. Dividends are 2. Corpo must likewise increase the capital
not. stock by at least P150M to support the
stock dividend declaration.
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a. Why? Because the base figure for Php500,000,000 divided into 500,000,000
stock dividend declaration is the shares with par value of Php 1.00 per share
number of subscribed shares. while the paid-up capital stock is
Here, the subscribed shares is Php250,000,000 divided into 250,000,000
P50M, therefore 200% is based shares with par value of Php 1.00 per
on subscribed shares - P50M. share. ABC Corporation intends to
b. 200% of P50M means P100M increase its capital stock to Php2 billion
shares. This means that ABC corp pesos divided into 2 billion shares.
will have to issue P100M
a. May ABC corporation increase its
Unfortunately, for this corporation, the only capital stock even if its authorized
available shares are 50M unsubscribed capital stock is not yet fully
shares. Therefore, you have to increase the subscribed?
capital stock by at least P150M divided into b. Is the corporation required to collect
150 million shares to support the stock payment on the subscription to the
dividend declaration. increase in capital stock considering
that Php500,000,000 already amounts
Slide: Pertinently, the Supreme Court in the to 25% of the Php2 billion increased
case of Central Textile Mills, Inc. vs. capital stock?
National Wages and Productivity c. Are there other ways by which ABC
Commission, ruled that prior to the approval Corporation can increase its
by the SEC of the increase in the authorized authorized capital stock from Php 1
capital stock, subscription payments cannot, billion to Php 2 billion?
as yet, be deemed part of a corporation's paid-
up capital, technically speaking, because its A:
capital stock has not yet been legally a. Yes, a corporation is not prohibited from
increased. Such payments constitute deposits increasing its authorized capital stock
on future subscriptions, money which the even if the same has not yet been fully
corporation will hold in trust for the subscribed.
subscribers until it files a petition to increase (Dean: According to the SEC, the corpo
its capitalization and a certificate o f filing of is not prohibited from increasing its ACS
increase of capital stock is approved and even if the same has not yet been fully
issued by the SEC. Central Textile Mills, subscribed. There is no obligation to
Inc. vs. NWPC, G.R. No. 104102, Second subscribe in full the ACS before it can
Division, August 7, 1996. increase the same.)
Q: The authorized capital stock of ABC b. Yes, because the 25% subscription is
Corporation is Php 1 billion divided into 1 based on the P1 billion increase in the
billion shares with a par value of P 1.00 per capital stock and not on the total capital
share. The subscribed capital stock is stock as increased. The 25% subscription
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50,000,000 will mean the release or indebtedness and therefore will not require
condonation of the 10,000,000 unpaid SH approval and majority of the entire Board.
subscription, thereby causing prejudice to the
creditors as subscriptions to the capital stock NOTE: The bonds usually, but not all the
are funds held in trust for their benefit under time, are payable to bearer. So they are
the trust fund doctrine. transferred by delivery.
Discussion: No, because the decrease of Q: What are the characteristics or features
capital stock will prejudice the creditors. The of a bonded indebtedness?
reduction to P50M will mean the A: The two principal elements of distinction
condonation of the P10M unpaid are time duration and the division of the
subscription, in violation of the Trust Fund whole debt into like aliquot part units of
Doctrine. Capital Stock are funds held in round number denominations, represented by
trust for the benefit of the creditors. negotiable or assignable certificates of
indebtedness.
Q: What is bonded indebtedness? a. Such certificates are generally called
A: It is a borrowing by the corporation which bonds, the purpose being to enable the
is long term in nature involving a large corporation to make use of the borrowed
number of lenders and secured by the money for a long period of years, to
encumbrance on corporate assets. Since obtain from a large number of people and
bonds are securities, they should be to facilitate the transfer of the certificate
registered with the SEC. of indebtedness from hand to hand during
the term of the collective obligation.
Q: From this definition, what are the b. b. Such bond issues are usually secured
features and characteristics of bonded by the transfer to a trustee of specific
indebtedness? property to secure payment of the debt.
A: c. The bonds usually, but not necessarily,
1. Long term in nature - The corpo needs run to bearer and transferable by delivery.
longer time to use the money d. The effect of the creation and issuance of
2. Involving large number of lenders - You such obligations is borrowing from the
use a bond, and not a promissory note general public.
(PN is used when you borrow from a
bank) Whenever a corporation resorts to this
3. Encumbrance on corporate assets method of borrowing funds, the resulting
4. Registered with the SEC - because bonds obligations constitute a bonded indebtedness,
are considered as securities subject to the requirements of Section 37 as
to creation and increase.
NOTE: Regardless of the amount of
borrowing, if the borrowing does not have Discussion: Regardless of the amount of
these characteristics, it is not a bonded borrowing, if the borrowing does not have
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those characteristics and features, it is not a Note: It is a right and option but not an
bonded indebtedness that will require obligation.
stockholders’ approval or approval of the
majority of the board. Q: What is the rationale of pre-emptive
right?
Q: What is pre-emptive right? A: The foundation of this right is to maintain
A: It is the right of stockholders to subscribe the proportionate voting strength and control
to all issues or disposition of shares of any of existing SH, that is, the existing ratio of
class by the corporation, in proportion to their their interest and voting power in the
respective shareholdings. In practical terms, corporation. It prevents dilution and
this means that the shares of stock of the impairment of the SH interest in the
corporation should first be offered corporation.
proportionately to the stockholders before
they can be issued or sold to non- EXAMPLE: The ACS is P100M divided
stockholders. 2019 Bar Exam. into 100M shares with par value of P1.00
per share. P50M is fully subscribed. Of
Discussion: Check the first sentence. Right these, A, B, C, D, E subscribed to P10M
of stockholders. Obviously, available to all each. Each gets to receive 20% of the
stockholders. dividends that the corpo may declare. In
case of dissolution, they will also receive
NOTE: Right of SH to subscribe to all issues 20% each of the residual assets of the
All issues mean whether such is taken corporation. In case of new share issuance,
on increase of capital stock or the SH should be given the first
issuance of shares from the opportunity to subscribe thereto, in
unsubscribed portion of ACS proportion to their shareholdings in the
Pre-emptive right also applies to corpo, before such new shares can be
disposition of Treasury shares issued to non-SH otherwise, the 20%
The phrase any class means that equity stake of each SH will be diluted.
preferred shares are also covered by
this right Dean: If you are the SH, you have the right to
Owners of Common shares are prevent the entry of any investor.
allowed to exercise this right even
when the new shares issued by the Q: Do stockholders have pre-emptive right
corpo are only preferred shares. to additional shares to be issued from
Why? Because it will dilute the stake existing authorized capital stock, or only in
of the owners of the common shares case of an increase of capital stock or both?
if they would not be allowed to A: The preemptive right applies to any and all
exercise pre-emptive right even to the issuance of shares by the corporation whether
newly issues preferred shares. sourced from the unissued portion of the
authorized capital stock or in case of an
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Dean: In the board resolution, there should NOTE: Only in these two cases that you are
be a period given to the SH to subscribe. allowed to issue shares to a non-stockholder
Failure to subscribe within the period without violating pre-emptive right as long as
constitutes an implied waiver on the part of the issuance is approved by the stockholders
SH. owned by at least 2/3 of the outstanding
capital stock.
c. Shares issued in compliance with the
laws requiring minimum stock Issuance of shares to a non-SH even
ownership by the public. though he may be an investor, is subject to
pre-emptive right. Even though it was
Public companies are required to have a approved by 99% of the stockholders, the 1%
portion of their outstanding capital stock owner should be entitled to pre-emptive right.
owned by the public. The current minimum
public ownership set by law is 10% of the Q: `X" Realty, Inc., a corporation engaged
corporation's outstanding capital stock. in the subdivision business, has an
Failure to comply with this requirement will authorized capital of P8, 000,000, all of
result to the delisting of the shares in the which has been fully subscribed. At a
Stock Exchange. Thus, the issuance of shares special meeting of the board of directors,
to comply with the minimum public the majority vote decided, on the basis of
ownership requirement is not subject to pre- the recommendation of its Executive
emptive right. Committee, that the corporation purchase
a 5-hectare property offered to It because
Dean: It was ideal for its subdivision business, the
1. Those companies whose shares are price offered was lower than the prevailing
traded in stock exchange market price, and John Roque, the owner
2. Failure to comply with this will result of the property, was willing to accept P2,
in the delisting of the shares in the 000,000 worth of shares of the corporation
stock exchange in exchange of, or as payment for, his
property. No cash was involved in the
d. Issuance of shares in exchange for transaction. Thus, the board approved a
property given for a corporate resolution increasing the authorized
purpose, if approved by the capital stock from P8,000,000 to P10
stockholders representing at least 2/3 Million, stipulating that the additional
of the outstanding capital stock P200,000 worth of shares shall be issued in
exchange for the 5-hectare property and
e. Issuance of share in payment of debt that the existing stockholders shall have no
made in good faith, if approved by the pre-emptive right to subscribe to the
stockholders representing 2/3 of the additional shares as the same were being
outstanding capital stock. issued to pay for the property.
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Was the action of the Board correct and capital stock requires approval by the
sufficient? board and the stockholders
A: The action of the Board of Directors was representing at least 2/3s of the
correct, but not sufficient. Under Sections 38 outstanding capital stock.
and 61 of the RCC, shares may be issued for - The resolution authorizing the
property needed for corporate purposes but issuance of shares to outside investors
subject to SEC approval to ensure that the is also valid. Shares may be issued to
real property is fairly valued, to prevent the non-stockholders but subject to
issuance of watered stocks. The increase of stockholders' pre-emptive right.
capital stock is also subject to the approval
of the stockholders representing at least B. What remedies, if any, are available to
2/3s of the outstanding capital stock. No dissenter?
A: Estrada, the dissenting stockholder,
SEC and stockholders approvals were
may exercise his pre-emptive right. Pre-
indicated in the problem.
emptive right is not applicable only if the
stockholders' approval representing 99%
Q: The stockholders of People Power, Inc.
of the outstanding capital stock pertains
("PPI") approved the following two
to issuance of shares for property needed
resolutions in a special stockholder's
for corporate purpose or in payment of
meeting: (i) Resolution increasing the
previously incurred indebtedness. He
authorized capital stock of PPI, and (ii)
cannot exercise his appraisal right
Resolution authorizing the Board of
because an increase in capital stock is not
Directors to issue for cash payment the
one of the instances where such right may
new shares from the proposed capital
be exercised under Section 80 of the
stock increase in favor of outside investors
RCC. 1987 Bar Exam.
who are non-stockholders. The foregoing
resolutions were approved by stockholders
Q: What is the remedy of the stockholder
representing 99% of the total outstanding
not in favor of an amendment to the
capital stock. The sole dissenter was Jose
articles of incorporation to deny pre-
Estrada who owned the rest 1% of the
emptive right?
stock.
A: He can exercise his appraisal right. It is
available in case of an amendment to the AOI
A. Are the resolutions binding on the
that has the effect of changing the rights of
corporations and its SH, including the
the SH or of any shares. If you deny pre-
dissenter?
emptive right to the SH, it restricts his right
A:
to subscribe to the issuance of the
- The resolution to increase capital
corporation.
stock is binding on the corporation on
the assumption that it was similarly
Q: What are the revisions under the RCC
approved by at least a majority of the
on the power of a corporation to sell,
board of directors. The increase of
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encumber, and dispose of its corporate and Iglesia Ni Cristo, G.R. No. 117897, May
assets? 14,1997.
A:
a. Approval of the Philippine Competition Dean: Approval by the majority vote of the
Commission should be obtained for sale Board and SH representing ⅔ of OCS
and purchase transactions covered by the
provisions of Republic Act No. 10667, Slide: Similarly, the assignment of the right
otherwise known as the "Philippine to redeem the only asset of the corporation
Competition Act". amounts to a sale of all or substantially all of
b. The determination whether the the corporate assets. As such, it requires
disposition involves the sale of all or approval by at least a majority of the board
substantially all corporate assets does not and the affirmative vote of the stockholders
rest solely on whether the corporation representing at least 2/3s of the outstanding
would be rendered incapable of capital stock. Rosita Pena vs. the Court of
continuing the business or accomplishing Appeals, et al., G.R. No. 91478, February
the purpose for which it was 7, 1991.
incorporated, it also must be read in
harmony with the revised provision PENA v. CA
essentially stating that it must be
Q: What if the corporation will assign the
computed based on its net asset value, as
right to redeem the only asset of the
shown in its latest financial statement.
corporation in favor of third party?
A: The assignment of the right to redeem the
Q: Where the assets to be disposed of
only asset is tantamount to sale of all or
constitutes the only property of the
substantially all of the corporate assets.
corporation, whose approvals are needed?
Hence, approval by majority of the Board and
A: Where an asset constitutes the only
SH representing ⅔ of the OCS is required.
property of the corporation, its sale to a third-
party is a sale or disposition of all the
Slide: In one case though, it was held that a
corporate property and assets of said
stockholder cannot invalidate the sale of
corporation falling squarely within the
corporate properties for failure to comply
contemplation of Section 39 of the RCC. In
with Section 40 of the Corporation Code
the case of Islamic Directorate of the
( now Section 39 of the RCC ), where the
Philippines vs. Court of Appeals, the Court
buyer relied on the secretary's certificate that
ruled that for such sale to be valid, the
the sale had been authorized by resolutions of
majority vote of the legitimate Board,
the board and stockholders. Being regular on
concurred in by the vote of at least 2/3 of the
its face, a Secretary's Certificate is sufficient
bona fide members of the corporation should
for a third party to rely on. It does not have to
have been obtained. Islamic Directorate of
investigate the truth of the facts contained in
the Philippines, et al., vs. Court of Appeals
such certification, otherwise business
transaction of a corporation would become
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company holds the company in trust of the the seller cannot continue with the
creditors of Juan dela Cruz. business for which it was organized.
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Will the sale of all assets and liabilities of EXPN: (where buyer is liable to assume the
MA Corporation to BBB Banking obligation of the seller)
Corporation automatically dissolve or 1. When the buyer expressly or impliedly
terminate the corporate existence of AAA assumes the liabilities of the seller (Art.
Corporation? Explain your answer. 2047 of Civil Code)
A: No, the sale of all the assets and liabilities 2. If the sale amounts to a merger or
of MA Corporation to BBB Banking consolidation (Title X of RCC)
Corporation will not result in the automatic 3. If the sale is entered into fraudulently or
dissolution or termination of the existence of made in bad faith (Art. 1388 of Civil
the former. Such sale is not one of the modes Code)
of dissolution under the Corporation Code. 4. If the buyer is merely a continuation of
Moreover, having assets is not a condition for the personality of the seller or the
the continuation of juridical existence. business-enterprise transfer rule
(Dean: That’s why even when you sell your (Business-Enterprise Transfer Rule)
assets, you continue to exist.)
Q: Under the Nell Doctrine, so called
Q: Is there a merger between AAA and because it was first pronounced by the
BBB? Or only a sale transaction/? Supreme Court in the 1965 ruling in Nell
A: There can be no merger without a vs. Pacific Farms, Inc. , the general rule is
certificate of merger issued by the SEC. It is that where one corporation sells or
only a sale of all of the assets from the seller otherwise transfers all of its assets to
to buyer. Therefore, the buyer is not liable to another corporation, the latter is not liable
all the remaining liabilities of the seller, for the debts and liabilities of the
despite the transfer of all the assets and transferor.
liabilities. THIS IS NELL DOCTRINE.
State the exceptions to the Nell Doctrine.
Q: Is there a de facto merger? A: The exceptions to the Nell doctrine are as
A: None. A de facto merger takes place when follows:
a corporation acquires the assets and
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a. When the buyer expressly or impliedly damages suffered. Thus, if there is fraud in
assumes the liabilities of the seller; the transfer of all the assets of the transferor
b. If the sale amounts to a merger or corporation, its creditors can hold the
consolidation; transferee liable.
c. If the sale is entered into fraudulently or
made in bad faith; and The legal basis of the last in the four (4)
d. If the buyer is merely a continuation of exceptions to the Nell Doctrine, where the
the personality of the seller or the so purchasing corporation is merely a
called business- enterprise transfer rule. continuation of the selling corporation, is
2017 Bar Exam. challenging to determine.
Q: State the legal basis of each of the In other words, in this last exception, the
exceptions. transferee purchases not only the assets of the
A: The first exception under the Nell transferor but also its business. As a result of
Doctrine, where the transferee corporation the sale, the transferor is merely left with its
expressly or impliedly agrees to assume the juridical existence, devoid of its industry and
transferor's debts, is provided under Article earning capacity. Fittingly, the proper
2047 of the Civil Code. When a person binds provision of law that is contemplated by this
himself solidarily with the principal debtor, exception would be Section 39 of the RCC.
then a contract of suretyship is produced.
Necessarily, the corporation which expressly The purpose of the business-enterprise
or impliedly agrees to assume the transferor's transfer is to protect the creditors of the
debts shall be liable to the same. business by allowing them a remedy against
the new owner of the assets and business
The second exception under the doctrine, as enterprise. Otherwise, creditors would be left
to the merger and consolidation of "holding the bag," because they may not be
corporations, is well-established under Title able to recover from the transferor who has
X of the RCC. If the transfer of assets of one "disappeared with the loot." or against the
corporation to another amounts to a merger transferee who can claim that he is a
or consolidation, then the transferee purchaser in good faith and for value. Based
corporation must take over the liabilities of on the foregoing, as the exception of the Nell
the transferor. doctrine relates to the protection of the
creditors of the transferor corporation, and
Mother exception of the doctrine, where the does not depend on any deceit committed by
sale of all corporate assets is entered into the transferor-corporation, then fraud is
fraudulently to escape liability for transferor's certainly not an element of the business
debts, can be found under Article 1388 of the enterprise doctrine, Y-I Leisure Philippines
Civil Code. It provides that whoever acquires vs. James Yu; G.R. No, 207161, September
in bad faith the things alienated in fraud of 13, 2015
creditors, shall indemnify the latter for
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In the Y-1 Leisure case, James Yu purchased seller obtained funds from the buyer, which
golf and country club shares from a funds may be garnished by the seller's
corporation organized to establish a golf creditors?
course in Arayat, P'ampanga. When he
visited the site, he discovered that the golf With respect to employment agreements, the
and country club was non-existent. He filed Supreme Court held that in asset sales, the
an action for collection against the seller- rule is that the seller in good faith is
corporation and its President. Meanwhile, the authorized to dismiss the affected employees,
property was conveyed to Y-1 Leisure. The but is liable for the payment of separation pay
latter was made liable because the seller under the law, The buyer in good faith, on the
corporation, after the sale, had been rendered other hand, is not obliged to absorb the
incapable of continuing the business for employees affected by the sale, nor is it liable
which it was organized the development of for the payment of their claims. The most that
the golf course) and the buyer-corporation it may do, for reasons of public policy and
acquired the property to complete the social justice, is to give preference to the
development of the project. It was held that qualified separated personnel of the selling
two requisites must concur for the business- firm. SME Bank, Inc_ et al., vs. Peregrin de
enterprise rule to apply: (a) the transferor Guzman, et al., G.13. No. 186M1, October 8,
corporation sells all or substantially all of its 2013.
asserts to another entity.; and (b) the
transferee corporation continues the business Y-1 LEISURE PH v. JAMES YU
of the transferor corporation. Both were
accordingly present.
FACTS: James Yu bought a certificate of
membership in a corporation that was
Based on this case, which incidentally is an
organized for the purpose of constructing a
en bane decision, it appears that if the
golf course. After a few months, there is no
transferee acquires all of the assets of the
development. He wanted a refund of his
transferor corporation and continues the
investments from the President of the
business of the transferor, the transferee
Corporation. The obligation was
should be liable to pay the claims of the
acknowledged by the corporation and the
transferor's creditors. There is a very thin line
president. The corporation transferred the
between the mere sale of all or substantially
property to another corpo and another corpo.
all of the assets and tie business-enterprise
rule because in most cases, the transferee
ISSUE: WON James Yu can recover his
devotes the acquired assets for a purpose
claim from the buyer of the property of the
similar, if not exactly the same, to the
seller corporation
business of the transferor. Does it mean that
the buyer is now liable for the obligations of
RULING: In this case, what was transferred
the seller? Can we still say that the creditors
is not only the assets of the seller but also the
of the seller are holding an "empty bag" if the
business, because the buyer will continue the
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months from the time of its purchase or And the balance is payable on the later date.
acquisition, be sold or disposed of at a public Such later date maybe specified in the
or private sale. contract of subscription or upon call of the
BOD.
Q: Cite examples of legitimate corporate
purposes to warrant acquisition or If the shares are not paid 30 days from due
purchase by the corporation of its own date, it become delinquent stocks. Being
shares of stock. delinquent stock there are two remedies
available to the corporation:
A: a. To eliminate fractional shares arising
out of stock dividends. 1. File an action for collection to enforce
payment of the unpaid subscription
A fractional share is less than one (1) share. 2. Extrajudicial Sale – done through
For example, a stockholder owns 250 shares auction sale
and the corporation declares 25% stock
dividends. 25% of 250 is 62.5; the .5 is the Q: Can a corporation participate in the bid
fractional share that the corporation may for delinquent shares?
acquire.
A: GR: It cannot.
Fractional share cannot vote. But if one XPN: if there is no bidder willing to pay or
fractional share added to another fractional able to pay the balance of the subscription,
share became a composite share. the law allows the corporation to acquire the
delinquent shares as long as it has surplus
b. To collect or compromise an indebtedness profit.
to the corporation, arising out of unpaid
subscription, in a delinquency sale, and to c. To pay dissenting or withdrawing
purchase delinquent shares sold during the stockholders entitled to payment for their
said sale. shares under the provisions of the RCC.
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exercising his appraisal right if the project stockholders. Board approval suffices. (Del
goes through. He, therefore, demands that Rama vs. Maao Sugar Central, G.R. No.
the project be submitted to the 175041 Feb. 28, 1969)
stockholders for approval, but the board
refuses to do so on the ground that there is Q: Stikki Cement Corporation
no need for such approval and that the ("STIKKI") was organized primarily for
calling of a special stockholder's meeting cement manufacturing. Anticipating
would entail too much expenses. substantial profits, its President proposed
that STIKKI invest in (a) a power plant
M thus cannot have the opportunity to project, (b) a concrete road project, and (c)
exercise his appraisal right. He wants to quarry operations for limestone used in
sue the board to compel it to submit the the manufacture of cement.
matter to the stockholders and to enjoin it
from pursuing the project until the What corporate approvals or votes are
stockholders shall have approved it. needed for the proposed investments?
Explain.
Do you think the matter needs the
stockholders' approval or is the action of A: Unless the power plant and the concrete
the Board of Directors sufficient? Explain. road project are reasonably necessary to the
manufacture of cement by STIKKI (and they
A: No, it does not need stockholders' do not appear to be so), then the approval of
approval. Under Section 41 of the RCC, a the said projects by a majority of the Board
corporation may, as a general rule, invest its of Directors and the ratification of such
funds in another business or in any purpose approval by the stockholders representing at
other than the primary purpose for which it least 2/3 of the outstanding capital stock
was organized, when approved by the Board would be necessary.
of Directors and by the stockholders
representing at least 2/3 of the outstanding As for the quarry operations for limestone,
capital stock in a meeting duly called for the the same is an indispensable ingredient in the
purpose. Any dissenting stockholder may manufacture of cement and may, therefore,
exercise his appraisal right. be considered reasonably necessary to
accomplish the primary purpose of STIKKI.
However, where the investment is reasonably In such a case, only the approval of the Board
necessary to accomplish its primary purpose, of Directors would be necessary.
the approval of the stockholders is not
necessary. In this case, the manufucture of This provision likewise refers to property.
bottles is reasonably necessary for the The property of the corporation must be
corporation's primary business of devoted to attain the primary purpose. If the
manufactunng soft drinks and does not, property would be devoted to attain the
therefore, need the approval of the
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Let’s say, the corporation obtained a loan that Q: Are profits the same as dividends?
loan can be secured by a mortgage of the
property. So the mortgage is connected to the A: NO
primary purpose of the corporation. Because
the loan is obtained to accomplish the Profits are the sources of dividends. Profits
purpose of the corporation. Thus, the are dividends only when they have been set
mortgage is reasonably necessary or aside for distribution to stockholders under
connected to the loan transaction. the conditions specified by law.
In order to secure obligation of another, you Profits belong to the corporation while
need amendment. If it is done for secondary dividends once declared, belong to the
purpose, you need board and stockholders’ stockholders.
approval.
Q: Under what conditions may the
Q: What if the amendment, is to make the corporation declare dividends?
corporation a bonding company?
A:
A: You don’t need stockholders’ approval a. The corporation must have
anymore because the bonding company’s unrestricted retained earnings as of
business is to secure the obligation of the last fiscal or calendar year.
another. It becomes the primary purpose and b. The dividends shall be payable in
board approval will suffice. cash, in property, or in stock to all
stockholders based on outstanding
stock held by them.
POWER TO DECLARE DIVIDENDS c. The cash dividend declaration must
be approved by the board of
Q: What are dividends? directors. In case of stock dividends,
in addition to board approval, the
declaration must likewise be
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NOTE: SEC approval is not needed in Slide: The total subscriptions are deducted
declaring dividends. SEC approval are from the assets to determine the availability
only required in increasing capital stock of retained earnings because, under the trust
as a result of stock dividends declaration. fund doctrine, subscriptions to the capital
stock constitute a fund to which creditors
Q: What are retained earnings? have a right to look for the satisfaction of
their claims and which the corporation is not
A: Retained Earnings are the accumulated allowed to impair to their prejudice.
profits realized out of normal and continuous
operations of the business after deducting Q: What are unrestricted retained
therefrom distributions to stockholders and earnings?
transfers to capital stock or other accounts.
The Retained Earnings shall be the amount as A: Unrestricted retained earnings represent
shown in the financial statements audited by the amount of accumulated profits and gains
the company's independent auditor. If realized out of the normal and continuous
applicable, such amount shall refer to the operations of the company after deducting
retained earnings of the parent company but therefrom distributions to stockholders and
not the consolidated financial statements. transfers to capital stock or other accounts,
and which are: (1) not appropriated by its
Stated otherwise, the corporation has retained Board of Directors for corporate expansion
earnings if its assets exceed the total projects or programs: (2) not covered by a
liabilities and combined subscriptions to the restriction for dividend declaration under a
capital stock of the corporation. This may be loan agreement; and (3) not required to be
expressed in the following formula: retained under special circumstances
obtaining in the corporation such as when
Retained Earnings = Assets - Liabilities and there is a need for a special reserve for
Subscriptions probable contingencies.
Such retained earnings or portion thereof are Therefore, the retained earnings are
unrestricted if there are no legal and unrestricted if they are not appropriated for
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BOD expansion, not covered by restriction dividend policy and the fact of payment of
declaration of dividends under loan dividends or the reasons for the nonpayment
agreement, and not required to be retained thereof.
under special circumstances if there is a need
for a special reserve for probable Q:May the corporation
contingencies. revaluation/appraisal surplus?
Q: Is it a ministerial duty of the A: No, the SEC opined that an increase in the
corporation to declare dividends if surplus value of a fixed asset as a result of its
profit is available? revaluation is not retained earnings. Such are
mere increments in the value of corporate
A: The declaration of dividends is assets which may fluctuate from time to time.
discretionary, covered by the business
judgment rule. However, stock corporations Thus, if a parcel of land originally acquired
are prohibited from retaining surplus profits for P 10,000,000 had doubled in value after
in excess of one hundred percent (100%) of three years, the recognition in the corporate
their paid-in capital stock, except: (a) when books of the revaluation does not justify
justified by definite corporate expansion dividend declaration. It is the gain arising
projects or programs approved by the board from the sale of the revalued property which
of directors; or (b) when the corporation is may serve as the basis for the declaration of
prohibited under any loan agreement with dividends. (1987 BAR EXAM)
financial institutions or creditors, whether
local or foreign, from declaring dividends It is only when the property is sold in the
without their consent, and such consent has higher price that the gain arising from the sale
not yet been secured; or (c) when it can be of the revalued property can be served as a
clearly shown that such retention is necessary basis for declaration of dividends.
under special circumstances obtaining in the
corporation, such as when there is need for Q: What are the kinds of dividends?
special reserve for probable contingencies.
A: Either cash, stock or property dividends.
Thus, the board of directors may be
compelled to declare dividends if the surplus NOTE: For the purposes of approval, any
profit is in excess of 100% of its paid-in dividends not payable in stock or shares is
capital and no justifiable reasons exist to considered cash dividends. So, property
withhold dividend declaration (Section 42, dividend is considered cash dividend. It only
RCC). requires BOD’s approval. Same as bond
dividend.
Under Section 49 of the RCC, however, the
board of directors must endeavor to present
to the stockholders an explanation on
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A: Yes, they are property dividends. Q: Was the resolution declaring the
Dividends as a result of the investment in issuance of stock dividends valid? Explain
another corporation. Board’s approval only. your answer.
Slide: Dividends may either be cash or stock. A: Yes, the resolution of the Board of
Any dividend other than from the unissued Directors declaring the issuance of stock
shares of the corporation is, in contemplation dividends was valid, but still insufficient for
of law a cash dividend. Thus, property purposes of stock dividend.
dividend is essentially a cash dividend.
Stockholders' approval, therefore, is not Q: What step or steps need to be taken so
required for property dividends. that the decision of the board could be
implemented? State the required vote.
A stock dividend is one that is declared and
paid out from the unissued shares of the A: The aforesaid approval of the Board of
corporation. It is paid in shares of stock Directors for the declaration of stock
instead of cash. dividends should still be concurred in by the
stockholders representing not less than 2/3 of
Q: Discuss the concept of stock dividends. the outstanding capital stock, at a regular or
special meeting called for the purpose. In
A: Stock dividend is actually a two-step addition, the authorized capital stock must be
process: increased to accommodate the stock
(1) a dividend, and (2) the enforced use of the dividends since the authorized capital stock
dividend money to purchase additional shares of Palmavera Corporation is fully subscribed.
of stock at par value to be proportionately The increase in capital stock is subject to SEC
distributed to the stockholders on the basis of approval.
the shares held.
Q: When you declare stock dividends and
Slide: Palmavera Corporation has an you increase ACS, do you need to collect
authorized capital stock of P500,ooo,ooo all money from the stockholders to be able to
subscribed and outstanding as of December comply with 25% subscription and
31, 2019. The corporation also has payment requirement in case of increase in
unrestricted retained earnings in its book ACS?
amounting to P375,ooo,ooo. Since the
corporation needed the cash surplus to carry A: No, it is cash coming from the corporation
out its expansion projects, the board of to fund the increase.
directors, in its meeting held on January 5,
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It must be noted, however, that the trust fund NOTE: Properties cannot distributed to the
doctrine is not limited to the stockholders' stockholders except in cases of dissolution
subscriptions. The scope of the doctrine and liquidation, redemption of redeemable
encompasses not only the capital stock but shares and reduction of capital stock.
also other property and assets generally
regarded in equity as a trust fund for the Q: Does the additional paid-in capital
payment of corporate debts. ("APIC"), that is, the premium above par
value, form part of the trust fund
Q: When is the trust fund doctrine doctrine?
violated?
A: APIC forms part of the equity emanating
A: The Trust Fund Doctrine is violated in the from the original subscription agreement.
following cases: APIC, as a premium, forms part of the capital
a. The corporation has distributed its capital of the corporation and therefore, falls within
among the stockholders without providing the purview of the trust fund doctrine.
for the payment of creditors
b. It released the subscribers to the capital There have been previous SEC Opinions that
stock from their unpaid subscriptions in fraud stock dividends can be declared out of APIC
of its creditors. but the most recent SEC regulation, as
c. It transferred corporate property by way of previously pointed out, is that APIC shall
dissolution neither be declared as dividend nor shall it be
reclassified to absorb deficiency except
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Q: ABC Corporation ("ABC") obtained a BMPI then place with Printwell several
loan from XYZ Bank secured by a orders on credit totaling P316, 342.76.
mortgage on its real property. ABC Considering that the former paid only
defaulted. To stave off foreclosure, A, the P25,ooo.oo, the latter sued the former for
controlling stockholder of ABC invited the collection of the unpaid balance.
investor X to invest in ABC. X subscribed Impleaded as defendants are all the
to shares of stock of ABC and became a original stockholders and incorporators of
significant stockholder. In further BMPI to recover on their unpaid
consideration of his investment, X and A subscriptions.
agreed on how to manage the corporation.
Unfortunately, the two stockholders had a May Printwell collect the unpaid
disagreement, with each one claiming a subscription of Halley?
breach of the subscription agreement.
May A rescind the subscription of X? A: Yes, a creditor is allowed to maintain an
action upon any unpaid subscriptions (in the
A: No, the rescission of the Subscription same collection suit against the corporation)
Agreement will effectively result in the and thereby steps into the shoes of the
unauthorized distribution of the capital assets corporation for the satisfaction of the debt.
and property of the corporation, thereby To make out a prima facie case in a suit
violating the Trust Fund Doctrine. Rescission against stockholders of an insolvent
of a subscription agreement is not one of the corporation to compel them to contribute to
instances when the distribution of capital the payment of its debts by making good the
assets and property of the corporation is balances upon their subscriptions, it is only
allowed. The Trust Fund Doctrine provides necessary to establish that the stockholders
that subscriptions to the capital stock of a have not in good faith paid the par value of
corporation constitute a fund to which the the stocks of the corporation. Subscriptions to
creditors have a right to look for the the capital stock of a corporation constitute a
satisfaction of their claims. fund to which creditors have the right to look
for the satisfaction of their claims.
Q: Halley was an incorporator and
original director of Business Media In PNB v. Bitulok Sawmill, that the only time
Philippines, Inc. (BMPI ) which originally the unpaid subscribers can be made liable to
had an ACS of Php 3,000,000.00 with a par corporation’s creditors or corporate creditors
value of Php 10.00 0 of which 75,000 were may enforce payment of the unpaid
initially subscribed. BMPI commissioned subscription, is when the corporation
Printwell for the printing of a magazine becomes insolvent. So you need formal
that BMPI published and sold. For that
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That is why the corporate creditors must wait Q: What if between record date and
first for the insolvency of the corporation payment date, the stockholder sold his
before they can run after the unpaid shares. Who gets the dividends in payment
subscribers. Not anymore in the case of date? The owner or stockholder of record?
Halley v. Printwell.
A: Stockholder of record, the one who is
In the case of Halley v. Printwell, lnc., there entitled to the rights of the stockholder. As far
was no insolvency proceeding and yet the as the corporation is concerned, dividends are
Supreme Court affirmed the right of the payable to the stockholders as of this
creditor to enforce the payment of the unpaid particular date.
subscription in the same collection suit
against the corporation. POWER TO ENTER INTO
MANAGEMENT CONTRACT
It is submitted that the correct thing to do is
to enforce the judgment against the Q: What is a management contract?
corporation first and it is only when the writ
of execution is returned unsatisfied for lack A: A management contract is an agreement
of leviable assets sufficient to satisfy the under which a corporation delegates the
judgment debt that the judgment against the management of its affairs to another
unpaid subscriber may be enforced. corporation for a certain period of time. The
Otherwise, the unpaid subscriber effectively contract can have a different nomenclature
becomes solidarily liable with the but falls within the purview of a management
contract for so long as the intention is to
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Q: What are the requirements for the As a rule, the period of management contracts
exercise of the power to enter into is five (5) years for any one (1) term, and for
Management Contracts? so long as it is between two corporations.
However, the following are some of the
A: exceptions:
a. Such contract shall have been approved by
the board of directors and by stockholders a. Management contract between two
owning at least the majority of the corporations pursuant to the Mining Act of
outstanding capital stock, or by at least the 1995. Under this law, the contract may be for
majority of the members in the case of a 25 years.
nonstock corporation, of both the managing
and the managed corporation, at a meeting b. Technical/Financial Service Agreement or
duly called for the purpose; Production Agreement can be for 25 years.
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because it is governed by Oblicon and not by which the corporation was created as defined
RCC. in the law of its organization, and therefore,
beyond the powers conferred upon it by law.
ULTRA VIRES ACTS OF
CORPORATIONS LEONEN: Corporations are artificial entities
granted legal personalities upon their creation
Q: What is the test to determine whether by their incorporators in accordance with
or not an act is within the powers of the law. Unlike natural persons, they have no
corporation? inherent powers. Third persons dealing with
corporations cannot assume that corporations
A: The test to be applied is whether the act in have powers. It is up to expressly defined by
question is in direct and immediate the law and their articles of incorporation.
furtherance of the corporation’s business,
fairly incident to the express powers and A corporation may exercise its powers only
reasonably necessary to their exercise. If so, within those definitions. Corporate acts that
the corporation has the power to do it; are outside those express definitions under
otherwise not. It is a question therefore in the law or articles of incorporation or those
each case of the logical relation of the act to committed outside the object for which a
the corporate purpose expressed in the corporation is created are ultra vires. The
charter. If the act, which is lawful in itself and only exception to this rule is when acts are
not otherwise prohibited, is done for the necessary and incidental to carry out a
purpose of serving corporate ends, and is corporation's purposes and to the exercise of
reasonably tributary to the promotion of powers conferred by the Corporation Code
those ends, in a substantial, and not in a and under a corporation's articles of
remote sense, it may fairly be considered incorporation.
within the powers.
Tersely, an ultra vires act is an act done by a
NOTE: The powers of the coporation is not corporation outside of the express and
restricted to what appears on AOI. It is not incidental powers vested in it by its charter
everything that can be captures by the AOI. and by law.
It also extends to incidental powers or
powers implied to expressed powers. Or Q: Is ultra vires act limited to any act
simply any act that is related to furtherance which is outside the express and incidental
of the purpose of the corporation. powers of the corporation?
Q: What is an ultra vires act of the A: No, there are three types of ultra vires acts:
corporation?
a. Acts done beyond the powers of the
A: The term is used to describe a corporate corporation as provided in the law or its
transaction that is outside the objects for articles of incorporation.
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Cite instances where the corporate acts are Q: Y, as President of and on behalf of AAA
within the powers of the corporation but Corporation, as a way to accommodate X,
are considered ultra vires because they one of its stockholders, endorsed the check
were entered into on behalf of the issued by X. Which statement is most
corporation by persons w h o h ave no accurate?
corporate authority or have exceeded the
scope of their authority. a. It is an ultra vires act;
b. It is a valid indorsement;
a. Another, a contract to sell cement signed c. The corporation will be held liable to
by the president and chairman of the any holder in due course;
corporation is not binding upon it where they d. It is an invalid indorsement.
were not authorized by the board of directors
to enter into a contract and the company Answer: a. It is an ultra vires act.
board of directors disapproved the contract
and the bylaws conferred the power to Q: Is an ultra vires act illegal?
manage the business of the corporation upon
the general manager. A: It depends. If the act is illegal then that act
is void. But not all ultra vires act are illegal
b. Also, the assignment of certificates of act. If act is illegal it is automatic ultra vires.
indebtedness belonging to a corporation Ultra vires acts are those acts outside the
made without the authorization of the board powers of the corporations but not contrary to
of directors does not bind the corporation. law and can be ratified.
c. There is also ultra vires act on the part of Slide: An illegal act, such as one that is
the board of directors when it performs a contrary to law, is necessarily ultra vires but
corporate act without the affirmative or an ultra vires act is not necessarily an illegal
ratificatory vote of the stockholders in those act if it only one that is outside the conferred
instances where the RCC so requires. powers of the corporation.
And there is an ultra vi res act on the part of The term ultra vires should be distinguished
the corporate officers when they performed from an illegal act for the former is merely
acts, purportedly on behalf of the voidable which may be enforced by
corporation, without having been so performance, ratification, or estoppel, while
expressly or impliedly authorized by the the latter is void and cannot be validated. It
bylaws or board of directors, even when the being merely voidable, an ultra vires act can
act or contract falls within the Corporation’s be enforced or validated if there are equitable
express, implied or incidental power, unless grounds for taking such action.
the acts are ratified by the corporation.
Q: May an ultra vires act be ratified?
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A: Yes, as long as it is not contrary to law. It employees and laborers who came to settle in
can be ratified based on equitable grounds. its mining camp which is far removed from
the postal facilities or means of
Slide: In the Pirovano vs. Dela Rama communication accorded to people living in
Steamship, the board authorized the a city or municipality.
corporation to obtain insurance policy on the
life of Pirovano making his children as And even assuming it is ultra vires, it is
beneficiaries. This was done in recognition of deemed ratified because the corporation
Pirovano's immense contribution to the requested for it and agreed to the conditions
growth of the corporation. Upon Pirovano's imposed by the government and as such,
death, however, the corporation questioned estopped from claiming otherwise.
the obtention of the insurance policy arguing
that it is ultra vires. The Supreme Court held In the case of Metropolitan Bank & Trust
that even assuming it is an ultra vires act, it is Co. vs. Quilts & All, Inc., a mortgage on a
deemed ratified by the corporation. A careful corporate property accepted by a bank as the
reading of the case shows, however, that that basis for restructuring a personal loan cannot
the ratio decidendi was more on estoppel be annulled even though it could not have
rather than ratification. been authorized by the board of directors (for
lack of quorum) where the bank relied on the
In Republic vs. Acoje Mining Co., a mining secretary's certificate attesting to the
company requested the Director of Post to existence of a board resolution approving the
establish a postal office inside the mining mortgage.
camp. The latter agreed but subject to the
condition that the company shall indemnify Q: What are the consequences of Ultra
for any loss or damage that the government Vires Acts?
would suffer by reason of the act of the
person designated as postal officer by the A: Unenforceable
mining company. The latter agreed and
adopted the corresponding board resolution. Q: What is the remedy of the stockholder
When the postal officer incurred cash against an ultra vires act?
shortage and Director of Posts demanded
payment for it, the mining company denied A: If the act is yet to be done, the remedy is
liability arguing that the establishment of the one of injunction to enjoin the performance
postal office is ultra vires. The Supreme or continued performance of the ultra vires
Court held that "although not expressly act.
authorized to do so, the establishment of the
local post office is a reasonable and proper If the act has already been performed, a
adjunct to the conduct of the business of a stockholder may file a derivative suit on
mining company for such post office is a vital behalf of the corporation to set aside the ultra
improvement in the living condition of its vires act.
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BYLAWS
Q: What is then the status of the
-Recitation- corporation?
Q: ABC Corporation allows the BOD to A: The corporation may be considered as a de
amend the bylaws. The bylaws is approved facto corporation whose right to exercise
by all the stockholders, not just the corporate powers may not be inquired into
majority and not just 2/3. Let’s just say collaterally in any private suit to which such
that they filed and approved the bylaws corporation may be a party.
prior to incorporation. So pursuant to the
authority delegated by the SH to the Dean’s Book: It is submitted that a
board, the board amended the bylaws to corporation which has not adopted bylaws,
reduce the number of votes needed to after incorporation, should be considered a de
disqualify a competitor. The board facto corporation. It has all the powers and
adopted a resolution and effected the privileges of a corporation under the RCC
amendment to the bylaws. If you are the until the State assails its existence in a direct
SEC, will you approve the amendment to proceeding. But because the one-month
the bylaws? period to submit the bylaws was removed, it
A: No, because there is no valid delegation of may adopt the bylaws anytime and the basis
authority. Under the RCC, the delegation of of the suit against the corporation is only the
authority by the SH to the BOD to amend the inaction or refusal of the corporation to
bylaws must be embodied in a stockholders’ adopt and submit bylaws despite the order
resolution. from the SEC.
Q: What if the delegation of authority is in In actuality, the bylaws are submitted prior to
the bylaws? Is it valid? incorporation. SEC will not act on the
A: No, delegation found in the bylaws is application without the bylaws. (Divina,
invalid. Being a part of the bylaws, it is 2020)
difficult to withdraw or revoke the authority
granted to the BOD. (One of the significant -Slide-
amendments under the RCC) Q: What are the revisions under the RCC
on bylaws?
Q: If the bylaws are not submitted within A:
one (1) month from incorporation, is that a. It removed the option of adopting and
a ground to dissolve the corporation? submitted the bylaws of the corporation
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to the SEC within a period of one month of the outstanding capital stock, or of at least
from the former’s incorporation but, a majority of the members in case of non-
nevertheless, retained the option of the stock corporations, shall be necessary. The
corporation to adopt bylaws after bylaws shall be signed by the stockholders or
incorporation. members voting for them and shall keep in
b. On the contents of the bylaws, it included the principal office of the corporation, subject
the provisions on the mode of notice to to the inspection of the stockholders or
the stockholders or members and the members during office hours. A copy thereof,
modes by which they may attend duly certified by a majority of the directors or
meetings; the guidelines for setting the trustees and countersigned by the secretary of
compensation of directors or trustees and the corporation, shall be filed with the SEC
officers, and the number of other board and attached to the original articles of
representations that an independent incorporation.
director or trustee may have which shall,
in no case, be more than the number -Discussion-
prescribed by the SEC; and other matters There are two (2) ways of adopting bylaws:
as may be necessary for the promotion of 1. Prior to incorporation
good governance and anti-graft and shall be signed by the stockholders
corruption measures. voting for them (basically, all the
c. It also allows the inclusion of an incorporators); and
arbitration agreement in the bylaws. shall keep in the principal office of
the corporation subject to the
Q: What are the nature and functions of inspection
bylaws? 2. After incorporation was approved by
A: Bylaws are set of rules and regulations the SEC
adopted by the corporation for its internal Shall be approved by the stockholders
government, and to regulate the conduct and representing at least a majority of the
prescribe the rights and duties of its members members of the outstanding capital
towards itself and among themselves in stock (or majority of members in case
reference to the management of its affairs. of nonstock corporation)
(John Gokongwei, Jr. vs. SEC, L-45911, As you can see, the BOD has no participation
Aprill 11, 1979) The corporation has the regarding the adoption and approval of
inherent and, at the same time, express power bylaws. Bylaws are set of rules adopted by
to adopt bylaws. the owners of the corporation.
Who are the owners? Stockholders owning
Q: How are the bylaws adopted? the corporation but only requires the majority
A: For the adoption of bylaws by the of the outstanding capital stock.
corporation, the affirmative vote of the What is the participation of the BOD? The
stockholders representing at least a majority copy of the bylaws, as approved by the
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stockholders, must be kept and filed with the for setting the compensation of directors
SEC. The copy with the corporation must be or trustees and officers, and the maximum
certified by the majority of the directors and number of other board representations
countersigned by the Corporate Secretary of that an independent director or trustee
the corporation. This is to make sure that this may have which shall, in no case, be more
is the bylaws approved by the stockholders than the number prescribed by the SEC;
and by the SEC or that there are no two sets g. The time for holding the annual election
of bylaws. of directors or trustees and the mode or
Special Corporations (i.e. banks, insurance manner of giving notice thereof;
companies, building and loan association, h. The manner of election or appointment
public utility, educational institution, or and the term of office of all officers other
other special corporations governed by than directors or trustees;
special laws) i. The penalties for violation of the bylaws;
The bylaws must be indorsed favorably by j. In the case of stock corporations, the
the appropriate government agency. So, SEC manner of issuing stock certificates; and
will not accept any application for approval k. Such other matters as may be necessary
of bylaws or its amendment if there is no for the proper or convenient transaction
indorsement from the appropriate of its corporate affairs for the promotion
government agency. of good governance and anti-graft and
corruption measures.
Q: What are the contents of bylaws? An arbitration agreement may be provided in
A: the bylaws pursuant to Sections 46 and 181
a. The time, place and manner of calling and of the RCC.
conducting regular or special meetings of
the directors or trustees; (a and b)
b. The time and manner of calling and If you compare A and B, you will notice that
conducting regular or special meetings with respect to the meetings of directors, the
and mode of notifying the stockholders or bylaws included “place,” right?
members thereof; The bylaws allows a venue for board
c. The required quorum in meetings of meetings. Meetings of the board may be held
stockholders or members and the manner anywhere, even outside the country. Unless,
of voting therein; the bylaws provides otherwise.
d. The modes by which a stockholder, BUT FOR STOCKHOLDERS’ MEETING,
member, director or trustee may attend that option is not available. This is because
meetings and cast their votes; the place of stockholders’ meeting is fixed by
e. The form for proxies of stockholders and law. i.e. principal office of the corporation
members and the manner of voting them; and if not practicable, in the city or
f. The directors’ or trustees’ qualifications, municipality where the principal office is
duties and responsibilities, the guidelines located.
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Mode of Notice: The RCC included the Corporation vested with Public Interest:
electronic notice if allowed by the bylaws. even if not in the bylaws, they can participate
Before RCC, the usual modes of giving thru electronic communication.
notice are the ff: (e)
1. Personal notice; Proxies: Forms and Manner of Voting
2. Notice by Publication; and RCC provides that proxies must be in writing
3. Notice, electronically, thru email. and filed with the Corporate Secretary before
What is the most practical and most the meeting. Meaning? The bylaws may
convenient mode of giving notice? Still, require additional requirement/s for a valid
publication. Because personal notice, you proxy. E.g. (1) it must be notarize to ensure
have to prove that you have given notice to authenticity. (2) period to file the proxy with
all the stockholders. For electronic notice, the Corporate Secretary. For public
you have to go to so many processes of companies, it is at least five (5) days before
authentication whether or not the notice was the scheduled meeting.
received by the stockholder concerned. (f)
Whereas, in publication, all you have to Qualifications of Directors:
present to prove notice is the affidavit of the They must have the basic qualifications
publisher that publication was done in under the Code and the Bylaws.
newspaper of general circulation in the city The RCC provides for the duties and
where the principal office of the corporation responsibilities of the directors but the
is located and following the frequency bylaws may expand such.
prescribed by the bylaws of the corporation. Compensation of the Directors:
(c) Cannot be fixed by the directors. Can only be
Required quorum in SHs’ meetings: fixed by the bylaws or the stockholders
It can be less than outstanding capital stock. owning the majority OCS. The bylaws may
Except when the RCC requires majority OCS provide for the guidelines in setting their
or 2/3 capital stock as the case may be. compensations.
(d) Independent Directors:
Modes in attending meetings: The maximum number of other board
This refers to the mode on how the representations that an ID may have may also
stockholders may be present in the meeting be provided by the bylaws. But such must be,
and cast their votes. in no case, more than the number prescribed
1. In Person by the SEC.
2. Proxy SEC prescribes: maximum of 9.
3. Remote Communication Public Companies are required to have at
4. In Absentia least 2 IDs. Justices of the SC are appointed
If allowed by the bylaws or not, by approval as ID in various public companies. Public
of the board that is majority of the companies usually appoint retired justices.
members(?) (g)
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Time for Holding the Annual Election: Having an arbitration agreement, any court
Dean only read it. suit, without resorting first to arbitration
(h) proceedings, will be premature.
Term of Office of All Officers:
Q: Can the bylaws provide that the term of all
officers is 1 year subject to reappointment? If CHINA BANKING CORPORATION VS. CA
you are not reappointed, then your term has
117504 | MARCH 26, 1997
prescribed and you lose your job.
A: the “officers” in letter “h” pertains to Q: Are the bylaws of the corporation
corporate officers and other officers binding on third parties?
A: No, bylaws are only binding among the
holding their positions based on trust and
confidence. Remember, when you are stockholders and members of the
holding on a bylaws position, you are a corporation. To be bound, a third party must
corporate officer. Meaning, this cannot be have acquired knowledge of the pertinent
construed to mean non-corporate officers. bylaws at the time the transaction or
Non-corporate officers are protected by agreement was entered into.
security of tenure under our Labor Laws. Thus, a provision in the bylaws of a country
club granting it a preferred lien over the share
(i)
of stock of a member for unpaid dues is not
Penalties for Violation of the Bylaws:
As long as they are not contrary to law, the binding on the pledgee of the same share of
bylaws may provide for such. stock if the latter had no actual knowledge of
e.g. directors who failed to pay dues and it when the shares were assigned to it as
assessment or who are absent for 3 security for a loan transaction.
consecutive meetings may be removed by the Fully Paid Shares: The consent of the
board. corporation is not required. In case of
Of course, the removal by director is void subscription which are not fully paid, the
because only stockholders can remove a corporation may refuse the transfer of shares.
director. BUT the penalties mentioned above Correlate it to Sec. 62, RCC: “unpaid claim”
will provide as the just cause that may pertains to unpaid subscription, nothing
warrant the removal of a minority director. more/less.
(j)
Manner of Issuing Stock Certificates:
Dean only read it. PMI COLLEGES VS. NLRC AND GALVAN
(k) 121466 | AUGUST 15, 1997
Other matters: Dean only read it.
Arbitration Agreement: ❖ The bylaws provides that the
Can be in the AOI or in the bylaws. employment contracts must be signed
by the Chairman of the Board of the
school. Is the employment contract
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entered into by the school and the Under Section 47 of the RCC, bylaws may be
instructors still valid if the Chairman is amended by at least majority of the BOD or
not a signatory thereon? BOT and the owners of at least majority of
the OCS in case of a stock corporation or of
Yes, it is still valid. Bylaws cannot affect or the members in case of a non-stock
prejudice third persons who deal with the corporation, at a regular or special meeting
corporation, unless they have knowledge of duly called for the purpose.
the contents of bylaws. Owners of 2/3 of the OCS of stock
corporation or 2/3 of the members in a
Q: When do bylaws become effective? nonstock corporation can delegate to the
A: Under Section 45 of the RCC, bylaws board of directors or trustees the power to
become effective only upon the issuance of amend or repeal the bylaws or adopt new
the SEC of a certification that the bylaws are bylaws. This delegation is revoked by the
in accordance with the RCC. vote of stockholders owning or representing
Amended or new bylaws become effective a majority of the OCS or a majority of the
upon the issuance by the SEC of a members at a regular or special meeting.
certification that the same is in accordance Whenever the bylaws are amended or new
with the RCC and other relevant laws. bylaws are adopted, the corporation shall file
with the SEC such amended or new bylaws
IN PRACTICE: When applying for the and, if applicable, the SHs’ or Ms’ resolution
incorporation make sure you have the authorizing the delegation of the power to
following documents: amend and/or adopt new bylaws, duly
1. Certificate of Incorporation or certified under oath by the corporate
Registration secretary and a majority of the directors or
o signed by Director for trustees. (Sec. 47, RCC)
Company Monitoring and
administration department Delegation – 2/3 of the OCS
2. Certification of filing of Articles of Revocation – Majority of the OCS only.
Incorporation; and
3. Certification of filing of Bylaws. Q: May the bylaws reflect the actual
delegation of authority to the board of
Q: Is there any revision under the RCC on directors to amend the bylaws?
the amendment of bylaws? A: No, the bylaws may not reflect the actual
A: Yes, the delegation of authority by the delegation. The delegated authority is
stockholder or members to the BOD or BOT temporary. If the delegation is in the bylaws,
to amend the bylaws must be embodied in a the authority cannot be simply recalled for it
SHs’ or Ms’ Resolution. would have required an amendment to the
bylaws itself. (SEC-OGC Opinion 18-08,
Q: How are bylaws amended or revised? dated April 20, 2018)
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the bylaws and sent by the proper officer SEC; provided that the mode of notice
authorized therein. conforms to what the bylaws provide.
c) It must be called by the proper person.
The person authorized to call the meeting RICAFORT VS. DICDICAN
is normally stated in the bylaws. If no
202647-50 | MARCH 9, 2016
person is designated in the bylaws, the
authority to call a stockholders’ meeting
rests with the board of directors. ❖ Q: When is regular stockholder
d) It must be held in the proper place. It is meeting valid even without notice to
mandatory that stockholders’ meetings the stockholders?
must be held in the principal office of the
corporation, as indicated in the AOI, and A: The regular stockholders’ meeting is valid
if not practicable, in the city or despite lack of written notice to the
municipality where the principal office of stockholders if the bylaws specify the date
the corporation is located. and time of the annual meeting. It was held
e) The quorum and voting requirements that the failure to give notice of the regular or
must be met. annual meetings, when the date thereof is
-Discussion- fixed in the bylaws, as in “at twelve-thirty
(c) P.M., on the THIRD MONDAY OF AUGUST
Called by the Proper Person in each year, if not a legal holiday, and if a
It used to be the President. Now, it is the legal holiday, then on the first day following
Chairman. Usually, the bylaws already which is not a legal holiday,” will not affect
provides for the person authorized to call the the validity of the regular or annual
meeting. stockholders’ meeting or the proceedings
(d) therein. (This is yet to be asked in the bar.)
Proper Place
Old Code: in the city or municipality and if ❖ Q: Is it an election contest if it is filed
practicable, in the principal office of the by a stockholder questioning the
corporation. results of the election, even though the
RCC: reversed. Principal office and if not petitioner is not aspiring for a seat in
practicable, in the city or municipality where the board?
the principal office of the corporation is
located. A: Yes, it is an election contest. Election
contest is not limited to a petition filed by
Q: What are the modes of notice of someone who is aspiring for a board seat. It
meeting to stockholders? includes nullifying the results of the election.
A: Notices can be made personally, or by This became important because election
mail or by publication or through electronic contest can only be filed within 15 days after
mail or other modes as may be allowed by the election.
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This petition is therefore barred for being Q: Pledgee or creditors with security
filed out of time. interest cannot vote the shares even
though the security agreement is recorded
-Recitation- in the books of the corporation.
Q: TRUE OR FALSE: Quorum and A: They are not allowed to vote. Only
voting requirements are the same. stockholders of record are allowed to vote
A: FALSE. Quorum is the number of and participate in the stockholders meeting.
stockholders/directors required to be present
to conduct a meeting. Voting requirements Q: Can they be allowed to vote by
are the number of votes needed, under the agreement?
bylaws, to approve a corporate act. A: Yes, provided that it is expressly stated
and recorded in the books of the corporation.
Q: TRUE OR FALSE: The quorum for
board meeting is majority of the directors Q: When the law says that notices must be
as fixed under the bylaws. sent to the stockholders, it means the day
A: FALSE. It is the majority of the directors it was mailed and not the day it was
as fixed by the articles of incorporation. received.
A: Case decided by former CJ Serreno and
Q: Can the bylaws prescribed a lesser or express provision of the RCC, it is the date of
greater number than what the AOI mailing.
required? Dean’s book: It must be the date of receipt
A: No. The bylaws cannot. date of mailing.
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To be more precise, for stock corporations, Quorum in NSC: numerical equivalent of all
the quorum is the majority of the outstanding members who are entitled to vote. In other
stocks whereas for a nonstock corporation, words, majority of the voting members,
the basis in determining the presence of unless the bylaws requires otherwise.
quorum in nonstock corporations is the
numerical equivalent of all members who are Q: Is it permissible for the bylaws to
entitled to vote, unless some other basis is provide quorum of stockholders’ meetings
provided by the bylaws of the corporation. which is less than a majority?
(Lim vs. Moldex) A: A corporation can state in its bylaws that
The bylaws, for instance, may provide that a quorum shall be less than the majority or
members who are delinquent in the payment greater than what was provided for in the
of their dues are not entitled to vote, in which RCC unless the RCC specifically provides
case, they are not included in the computation otherwise. (Sec. 51, RCC)
of quorum. (SEC-OGC Opinion No. 31-19, Worthy of note, however, is that the bylaws
September 9,2019) provision on quorum will not apply in
instances where the RCC explicitly requires
Stock Corporation a specific number of stockholders or
To be more precise: It is the majority of members necessary to resolve or carry out a
outstanding voting stock, unless the bylaws particular corporate proposal. (based on RCC
or the RCC provide otherwise. and SEC Opinion)
Reason: There are certain cases where
preferred shares may vote and therefore, part Q: What are the modes of voting in a
of the OCS. There are certain cases that they stockholders’ or members’ meeting under
cannot vote and therefore, not part of the the RCC?
OCS. A: The right to vote of stockholders or
For the purpose of electing directors: We members may be exercised in person,
all know that non-voting preferred shares are through a proxy, or when so authorized in the
not included in the computation of majority bylaws, through remote communication or in
of OCS. absentia.
For the purpose of increasing the capital At all elections of directors or trustees, the
stock or amending the AOI (any of the 8 right to vote through remote communication
cases enumerated in Sec 6 of the RCC): or in absentia may be exercised in
Non-voting preferred shares are given the corporations vested with public interest,
right to vote and considered part of the OCS. notwithstanding the absence of a provision in
HENCE, TO BE MORE PRECISE, it is the bylaws of such corporations. A
the majority of the outstanding voting stock, stockholder or member who participates
unless the bylaws or the RCC provide through remote communication or in absentia
otherwise. shall be deemed present for purposes of
Nonstock Corporation quorum.
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The board may allow such mode of voting A: In Lopez Realty, Inc. vs. Spouses
even if the bylaws are silent on such Tanjangco, the Supreme Court held that such
provision. Should the board, however, board meeting is legally infirm considering
resolve to allow voting through remote that there is a failure to comply with the
communication or in absentia, it has to requirements or formalities of the law or the
approve the guidelines and procedure corporation’s bylaws. As such, any action
therefor. taken during the said meeting may be
challenged. However, said action may be
Q: What is the effect of the stockholder’s subsequently ratified by the board.
abstention during stockholders’ meetings? Ratification can be made either expressly or
A: In those cases specified by law on impliedly. Implied ratification may take
instances of appraisal right, a stockholder various forms – like silence or acquiescence,
present in a meeting but abstains, is not acts showing approval or adoption of the act,
entitled to exercise such right. He cannot or acceptance and retention of benefits
demand payment of the fair value of his flowing therefrom.
shares, because one of the elements of
appraisal right is his vote against the Q: What is the quorum for board
proposed corporate act. As such, abstention is meetings?
tantamount to a waiver of appraisal right. A: Based on Section 52 of the RCC, a
Stockholders who abstain from voting are, majority of the directors or trustees as stated
however, counted for quorum purposes. in the AOI shall constitute a quorum to
transact corporate business, unless the AOI or
Q: What are the requisites of a valid board the bylaws provides for a greater majority.
meeting? Furthermore, every decision reached by at
A: least majority of the directors or trustees
a. The meeting must be held on the date constituting a quorum, except for the election
specified in the bylaws or in accordance with of officers which shall require the vote of a
law; majority of all the members of the board,
b. Prior written notice of such meeting must shall be valid as a corporate act.
be sent to all directors/trustees;
c. It must be called by the proper party; Q: Under the Bylaws of the Corporation
d. It must be held at the proper place; and A, its BOT is composed of five members,
e. Quorum and voting requirements must be two of whom are nominated and appointed
met. by the three original members. Further,
under Section 2, Article I of the Bylaws,
Q: What is the effect of failure to give only a majority of the three original
notice of the board meeting to even one members of the Board shall be necessary
director? at all meetings to constitute a quorum. Is
Section 2, Article I of the Bylaws of
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Q: What are the corporate acts under the York). The board meeting was 2pm (2am in
RCC requiring only majority of the California, 11pm in New York). The
quorum? directors were already in their 80s.
A: 1. Declaration of dividends (Sec. 42) Even before the RCC, teleconference and
2. Entering into a management contract videoconference were already allowed.
(Sec. 43) However, what are the mechanics in order
3. Fixing the issued price of no-par value to conduct telecon/videocon?
shares (Sec. 62) 1. The director must express his intention to
4. And such other corporate acts which participate thru remote communication;
under the RCC and the bylaws do not 2. He must be identified during the meeting;
require approval by at least majority of and
the entire board. 3. The meeting must be recorded all
This is because under Section 52 of the RCC throughout.
or the RCC, unless the RCC or the bylaws So as the CorSec, I asked:
require otherwise, every decision reached by “Mr. X do you confirmed and affirmed your
a majority of the directors or trustees intention to participate through remote
constituting a quorum shall be valid. communication?” YES
Thus, whenever the RCC or the bylaws “Are you the director of the ABC
require board approval, as opposed to the Corporation?” YES
majority of the entire board, it means the And then we went on the meeting…
majority of the quorum of the directors. Even before I could reach that part of the
meeting where we needed their votes, they
Q: How can a director or trustee cast vote already said “we are in favor of item 8.”
in a meeting via remote communication? Hence, I have to redo the agenda and make
A: The director or trustee in the meeting via item 8 the first item.
remote communication may cast his vote
through electronic mail, messaging service or Q: Is the director who abstained or
such other manner as may be provided in recused himself from voting on a
internal procedures. The vote shall be sent to particular measure counted for quorum
the Presiding Officer and the Corporate purposes?
Secretary for notation. (Sec. 8, SEC Memo A: A director who abstained or recused
Circular No. 6 series of 2020) himself from voting should be considered as
present for quorum purposes. His abstention,
DEAN: There was a board meeting. I was the however, may have a bearing on the validity
Corporate Secretary. It was a very important of the board approval depending on whether
meeting because we needed to get the the RCC or the bylaws require the majority of
approval for certain important measures. the entire board or simply, majority of the
Unfortunately, two (2) of our directors were quorum.
in the United States (1 in California, 1 in New
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shares: Provided, That when the shares are a reasonable time before the scheduled
owned in an “and/or” capacity by the holders meeting.
thereof, any one of the joint owners can vote DEAN: So in case the CorSec rejects the
said shares or appoint a proxy therefor. (Sec. proxy, the stockholder must be given time to
55, RCC) contest it.
DEAN: b. Unless otherwise provided in the proxy
A and B = both must be present in order to form, it shall be valid only for the meeting
vote for the said shares for which it is intended.
A and/or B = any can vote said shares c. No proxy shall be valid and effective for
a period longer than five (5) years at any
d. Treasury shares one time. While the proxy cannot exceed
Treasury shares shall have no voting right as five years, a new proxy can always be
long as such shares remain in the treasury. given with another five-year period.
(Sec. 56, RCC) d. No broker or dealer shall give any proxy,
consent or any authorization, in respect of
Q: What is a proxy? any security carried for the account of the
A: A proxy is the written instrument signed customer, to a person other than the
by the stockholder authoring another person customer, without written authorization
to exercise the voting rights of the former. It of the customer. (This is found in the SRC
may also refer to the person exercising the and not in the RCC.)
voting authority granted by the stockholder.
DEAN: Why do you need a proxy? Q: What is a voting trust?
To ensure quorum. A: It is an agreement where one or more
There are many cases where stockholders stockholders of a stock corporation confer
may not/cannot want to attend. They have upon a trustee or trustees the right to vote and
more important concerns to attend to than to other rights pertaining to the shares for a
attend the stockholders’ meeting. period generally not exceeding 5 years at any
Through proxy the stockholder can time.
participate indirectly to the meeting. By its nature, a voting trust agreement creates
Another purpose of proxy is to ensure a dichotomy between the voting rights of the
management control. stockholder and his other rights. (Lee vs. CA)
The transferring stockholder parts away with
Q: What are the limitations on proxies? his voting rights but retains equitable or
A: beneficial ownership over the stock. As such,
a. Proxies shall be in writing, signed and he has the right to receive dividends and
filed, by the stockholder or member, in other rights a stockholder is entitled to, until
any form authorized in the bylaws and the dissolution and liquidation of the
received by the corporate secretary on the corporation. He also retains his right to
date fixed in the bylaws but not later than inspection which he can exercise
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concurrently with the voting trustee. But, Does the demand of the Company tally
having conveyed the legal title to the trustee, with the concept of a Voting Trust
the transferring stockholder is disqualified Agreement? Explain briefly.
form being elected as a director. A: No, the demand of the Company does not
tally with the concept of a VTA. Under a
LEE VS. CA VTA, the transferring stockholder merely
conveys to the trustee the right to vote and
other rights of a stockholder over the
❖ What is the effect of VTA executed by
transferred shares except for proprietary
a director during his term?
rights.
If he executes the voting trust agreement
The consequence of the foreclosure of the
during his term as a director, he shall cease to
mortgaged properties is distinct and separate
be a director of the corporation.
from the VTA and its effects.
Why? Because he ceases to be a stockholder
owning legal title to the shares of the
DEAN: What is the purpose why a
corporation.
stockholder would convey legal title to the
shares and lose the right to vote those
Q: A distressed company (“Company”)
shares and render him disqualified for
executed a voting trust agreement for a
aspiring a director position?
period of three years over 60% of its
It is usually one of the requirements of
outstanding paid-up shares in favor of a
lenders.
bank to whom it was indebted, with the
bank named as trustee. Additionally, the
Q: What are the formalities and
Company mortgaged all its properties to
limitations on voting trust agreement?
the bank.
A:
Because of the insolvency of the company,
a. It should not exceed five years at any time,
the bank foreclosed the mortgaged
provided, that in case of a voting trust
properties and as the highest bidder,
specifically required as a condition in a loan
acquired said properties and assets of the
agreement, said voting trust may be for a
Company.
period exceeding five years but shall
The three-year period prescribed and the
automatically expired upon full payment of
Voting Trust Agreement having expired,
the loan.
the Company demanded the turn-over and
b. A VTA must be in writing and notarized
transfer of all its assets and properties,
and shall specify the terms and conditions
including the management and operation
thereof.
of the Company, claiming that under the
c. A certified copy of such agreement shall be
Voting Trust Agreement, the bank was
filed with the corporation and wit the SEC;
constituted as trustee of the management
otherwise, the agreement is ineffective and
and operations of the Company.
unenforceable.
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The presence of
trustor does not
revoke the authority
of the trustee.
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versa. As you will see, there were cases the aggrieved party in a representative suit
decided by the Supreme Court where an are the stockholders similarly situated.
individual suit is pursued as a derivative suit
but there are elements of individual suit that LIM VS. LIM-YU, IN HER CAPACITY AS A
must be present before that remedy can be MINORITY STOCKHOLDER OF LIMPAN
pursued. INVESTMENT CORPORATION
Therefore, if it is derivative suit, it
(G.R. No. 138343, Third Division,
cannot be pursued as an individual suit or
February 19, 2001).
vice versa.
For instance, if it is proper for a
derivative suit then the corporation must be In one case, it was held that the suit
impleaded as a defendant. Otherwise, it is cannot be characterized as derivative,
dismissible. This is the case of Florete vs. because she was complaining only of the
Florete. violation of her pre-emptive right and was
merely praying that she be allowed to
subscribe to the additional issuance of stocks
in proportion to her shareholdings to enable
FLORETE VS FLORETE
her to preserve ger percentage of ownership
(G.R. No. 177275, J. Leonen). in the corporation. She was therefore not
acting for the benefit of the corporation.
❖ Should the derivative suit implead the Quite the contrary, she was suing on her own
corporation as a defendant? behalf, out of a desire to protect and preserve
Yes. Otherwise, it is dismissible. her preemptive rights.
Court held in the case of Evangelista v. and on behalf of the corporation to enforce a
Santos, that the stockholders may not corporate right or cause of action to set aside
directly claim those damages for the wrongful acts committed by the board,
themselves for that would result in the directors and officers.
appropriation by, and the distribution Let us dissect that definition.
among them of part of the corporate 1. It is an action filed by a minority
assets before the dissolution of the stockholder.
corporation and the liquidation of its Why by a minorty stockholder?
debts and liabilities something which Because we learned in the case of Go Realty
cannot be legally done in view of vs. Go if the suing stockholder belongs to the
Section 16 of the Corporation Law ..." majority, then the remedy for him is to cause
iii. the filing of such suits would the board of directors to pass the appropriate
conflict with the duty of the resolution authorizing a corporate act.
management to sue for the protection of Remember that case that a minority
all concerned; stockholder constructed a restaurant on the
iv. it would produce wasteful property of the corporation. A majority
multiplicity of suits; and stockholder on behalf of the corporation filed
v. it would involve confusion in a derivative suit to remove the improvements
ascertaining the effect of partial on the property of the corporation.
recovery by an individual on the The SC said it is not proper for the
damages recoverable by the derivative suit. It should be seen as a last
corporation for the same act. (Asset remedy and a board action should take
Privatization Trust vs. Court of precedence over derivative suit. The remedy
Appeals, et. al., G.R. No. 121171, is not to file a derivative suit but to issue a
December 29, 1998). resolution authorizing the removal of the
property that was constructed without
Q: What is a derivative suit? authority from the corporation.
Discussion:
This is yet to be discussed in the bar. 2. It is filed in the name and on behalf of
There have been many questions on the corporation.
whether or not it is proper for a derivative suit Why? Because the aggrieved party
but so far, there has been no question yet in here is the corporation and the whole body of
the bar on what is a derivative suit. stockholders. The harm is inflicted against
A derivative suit is an action filed by the corporation.
stockholder in the name and on behalf of the
corporation to enforce a corporate right or
cause of action to set aside the wrongful acts Q: How do you caption a derivative suit?
of the corporation's directors and officers. A: If it is not captioned properly, there have
In Go Realty vs. Go, it is an action been cases where the SC dismissed this kind
filed by a minority stockholder in the name of suit because it was not properly couched.
We saw this under Section 35 that the association, as the case may be,
power to sue or be sued is lodged with the provided, that:
Board of Directors. This is an exception a. He was a stockholder or member at
because the suit is not authorized by the board the time the acts or transactions
of directors but filed by a stockholder on subject of the action occurred and at
behalf of the corporation. the time the action was filed;
However, the SC said in so many exhausted all the remedies that specified the
cases that it is implied that in every articles bylaws and rules of the Corporation
derivative suit that it is filed in the name then you can avail yourself of this remedy.
and on behalf of the corporation to enforce
a corporate right or cause of action. Q: You remember we also discussed the that
While you don't see it as an element the bylaws or the articles may contain an
in the rules, it is implied in every derivative arbitration agreement. So how do we
suit that it is a corporate cause of action. correlate now this element of derivative suit
to the presence of arbitration agreements in
As a rule, the plaintiff should be a the bylaws or articles of incorporation?
stockholder both at the time of transaction A: So it means that if you have an arbitration
and at the time the action was filed. UNLESS agreement in the bylaws or articles, you must
the cause of action is continuing in nature exhaust the arbitration procedure before you
in which case it is enough that he is a can resort likewise to this remedy. Otherwise,
stockholder at the time of filing of the your cause of action will be premature.
action.
YU VS. YUKAYGUAN
Q: There was one bar exam question:
(GR No. 177549, January 18, 2009)
supposing Juan dela Cruz became a
stockholder June 1, 2020. Can he question by
Q: The need to exert efforts for these
way of derivative suit payment of fees made
remedies. Is this available even for a closed
to a law firm before he became a stockholder
corporation?
on the ground that the fees were exorbitant?
A: When you come to think about it, this
A: Of course the answer is NO because he
should not apply to a closed corporation.
never became a stockholder when the act or
Why? Because in a closed corporation, there
transaction subject of the action occurred. He
is the remedy of appraisal right. At any time
became a stockholder a day after.
for any purpose or reason whatsoever, a
The exception is when the cause of
stockholder may demand the payment for fair
action is continuing in nature as when the
value of his shares in a closed corporation.
engagement of a law firm is continuing basis.
If you can demand for any purpose or
In that case, he can file the suit.
reason the payment of the fair value of these
shares that means the element of no appraisal
Q: Third exhaustion of intracorporate
right will not be present. Therefore, there
remedies. What does this mean?
should be no right to file this kind of suit in a
A: It means that if the articles or the bylaws
closed corporation.
or the rules of the corporation provide for the
However, the SC said the need to
remedies for the right violated then he must
exhaust intracorporate remedies also
allege with particularity exhaustion of those
applies to a closed corporation.
intra proper demolitions showed must be
seen as a last remedy and only if you have
I think it is not a good decision given price of P175,000.00 per share even when
the reason that I cited but in passing the bar, the current market value is P200,000.00.
you have to answer it that way. In behalf and for the benefit of the
corporation, Peter, a stockholder, filed a
Slide: derivative not against the members of the
In case of a nuisance Or harassment suit. the Board for breach of trust for selling the
court shall forthwith dismiss the case. The shares at P25,000.00, lower than its market
fifth requisite for filing derivative suit, value, and asked for the nullification of the
while not included in the enumeration, is sales and the removal of the board
implied in the first paragraph of Rule 8. members. Peter claims the Club incurred
Sect. 1 of the Interim Rules: The action a loss of PS million. The Board presented
brought by the stockholder or member the defense that in its honest belief any
must be 'in name of [the] corporation or delay in the payment of the arrearages will
association to enforce a corporate right or be prejudicial to the Club as the mortgage
cause of action. (Oscar C. Reyes vs. Hon. on its assets will be foreclosed and the sale
Regional Trial Court of Makati, Branch 142, at a lower price is the best solution to the
Zenith Insurance Corporation, and Rodrigo problem. Decide the suit and explain.
C. Reyes, G.R. No. 165744, 11 August 2008; A: The derivative suit will not prosper
Anthony Yu, et al., vs. Joseph Yukayguan, et because while it was filed by a stockholder on
al., GR No. 177549, January 18, 2009; behalf of the corporation the complaint did
Juanita Ang, for and In behalf of Sunrise not allege the other elements of derivative
Marketing (Bacolod), Inc vs. Sps. Roberto suit namely; a) exhaustion of intra corporate
and Rachel Ang, G.R. No. 201675, June 19, remedies available under the articles of
2013; Alfredo L. Villamor, Jr., vs. John S.. incorporation, bylaws and rules and
Umale, G.R. Nos. 172843 & 172881, 24 regulations governing the corporation to
September 2014; Nestor Ching vs. Subic Bay obtain the relief the stockholder desires; b) A
Golf And Country Club, Inc., et, al., G.R. No. is not a nuisance suit; and c) appraisal right
174353 September 10, 2014). not available. Ching vs. Subic Bay Golf and
Country Club, GR no. 174353. September
Q: Royal Links Golf Club obtained a loan 10, 2014.
from a bank which is secured by a Furthermore, there was no wrongful
mortgage on a titled lot where holes 1, 2, 3 act on the part of the Board of directors for
and 4 are located. The bank informed the simply selling the treasury shares below
Board of Directors ("Board") that if the market value given the circumstances
arrearages are not paid within thirty (30) obtaining M the corporation. The terms and
days, it will extrajudicially foreclose the conditions of the sale of treasury shares are
mortgage. The Board decided to offer to reasonably determined by the board of
the members 200 proprietary membership directors under the business judgment rule.
shares, which are treasury shares, at the Under such rule, questions of policy and
management are left to the sound discretion
of the board of directors and their acts are him from filing the suit. It is also not
valid for as long as they acted In geed faith necessary that a stockholder be a director to
and not contrary to law. 2016 Bar Exam. be entitled to file a derivative suit. San
Miguel Corporation vs. Kahn, G.R.
Q: A became a stockholder of prime Real No.85339, August 11, 1989.
Estate Corporation (°PREC") on July 10, In one case, A was held that a person
2018, when he was given one share by who is merely holding In trust the shares of
another stockholder to qualify him as a stock M her name cannot file a derivative suit
director. A was not re-elected director in since she is not a stockholder in her own
the July 1, 2019 annual meeting but he right. And where the date of the issuance of a
continued to be a registered shareholder of stock certificate was antedated, the
PREC. stockholder cannot file a derivative suit to
When he was still a director, A discovered question the transaction before the true date
that on January 5, 2018, PREC issued free of its issuance. Bitong vs. Court of Appeals,
of charge 10,000 shares to X, a lawyer who G.R. No. 123553, July 13,1988.
assisted in a court case involving PREC.
a. Can A now bring an action in the name Q: AA, a minority stockholder, filed a suit
of the corporation to question the issuance against BB, CC, CC, and EE, the holders
of the shares to X without receiving any of majority shares of MOP Corporation,
payment? for alleged misappropriation of corporate
A: As a general rule, A cannot bring a funds. The complaint averred, inter alia,
derivative suit in the name of the corporation that MOP Corporation is the corporation
concerning an act that took place before he in whose behalf and for whose benefit the
became a stockholder because one of the derivative suit is brought. In their capacity
elements of a derivative suit is that he must as members of the Board of Directors, the
be a stockholder at the time the questioned majority stockholders adopted a
acts occurred and at the time of the filing of resolution authorizing MOP Corporation
the complaint. However, if the act to withdraw the suit. Pursuant to said
complained of is a continuing one, A may do resolution, the corporate counsel filed a
so. The act subject of the suit as indicated in motion to dismiss in the name of the MOP
the problem is not, however, continuing in Corporation.
nature. Hence, the suit should not prosper. Should the motion be granted or denied?
Reason briefly.
b. Can X question the right of A to sue him A: The motion should be denied. The
on behalf of the corporation on the ground complaint is in the nature of derivative suit.
that A has only one share in his name? In Conmart (Phils.) Inc. vs. Securities and
A: No. Since a stockholder filing a derivative Exchange Commission, it was held that to
suit is not suing M his own behalf but in grant to the corporation concerned the right
behalf of the corporation, the fact that his of withdrawing or dismissing the suit at the
shareholding is significant does not preclude instance of the majority stockholders and
directors who themselves are the persons the requisites for the existence of a derivative
alleged to have committed the breach of trust suit. Omar C. Reyes vs. Hon. Regional Trial
against the interest of the corporation would Court of Makati, Branch 142, Zenith
be to emasculate the right of minority Insurance Corporation, and Rodrigo Reyes,
stockholders to seek redress for the G.R. No.165744, 11August 2008.
corporation. Filing such action as a derivative
suit even by a lone stockholder is one of the c. Petitioners, members of the board for
protections extended by law to minority 2003-2004, sought the nullification of the
stockholders against abuses of the majority. election composed of the new board of
2000 Bar Exam. directors for 2004-2005, who pushed through
with the election even it petitioners had
Slide: adjourned the meeting allegedly due to lack
Cite jurisprudence where resort to derivative of quorum. Petitioners are the injured party,
suit was held to be improper for failure to whose rights to vote and to be voted upon
meet the fifth requisite for its filing — it were directly affected by the election of new
should be filed in the name of the corporation set of board of directors. The party-in-interest
to enforce a corporate right or cause of action. are the petitioners as stockholders, who wield
such right to vote. The cause of action
a. A derivative suit filed by stockholders of a devolves on petitioners, the condominium
corporation against the bank that foreclosed corporation, which did not have the right to
the mortgage of the property of the vote. Hence, the complaint for nullification
corporation, but without impleading the of the election is a direct action by
corporation in the suit. Asset Privatization petitioners, who were members of the Baord
Trust vs Court of Appeals, GR No. 121171, of Directors of the corporation before the
December 29,1988 election, against respondents, who are the
newly elected Board of Directors. Under the
b. Whether as an individual or as a derivative circumstances, the derivative suit filed by
suit, the RTC—sitting as special commercial petitioners on behalf of the condominium
court —has no jurisdiction to hear the corporation is improper. Legaspi Towers 300,
plaintiff's complaint since what is involved Inc., vs. Muer, GR No.170783, June 18,
determination and distribution of 2012, 2014 Bar Exam.
successional rights to the shareholdings of his
mother, as the controlling shareholder of the Discussion:
corporation. Plaintiff's proper remedy, under An action to nullify the results of an
the circumstances, is to institute a special election is an election contest, not a
proceeding for settlement of the estate of the derivative suit. If you want to nullify the
deceased. The bare claim that the complaint elections as we saw in the case of Ricafort vs
is a derivative suit will not suffice to confer Dicdican, it is an election contest.
jurisdiction on the RTC (as special To be clear, both election contests and
commercial court) if he cannot comply with derivative suits are governed by the Rules on
Intra Corporate Disputes. Even though you the assets of Sunrise Marketing
have one set of rules for this type of action, Corporation.
each one is different from the other. On maturity of the loan, one of the
partners were willing to pay but the other
Slide: one is not. So the willing brother filed an
d. The complaint filed by a stockholder to action on behalf of the corporation to
compel another stockholder to settle his share compel his other brother who is also
of the loan because non-payment would stockholder of the corporation to pay the
affect the financial viability of the sister on the ground that non-payment of
corporation could not be considered as a the loan to the sister threatens the financial
derivative suit because the loan was not a viability of the corporation. Is it proper for
corporate obligation but a personal debt of derivative suit?
the stockholders. There is no damage caused A: NO. There is no loan obtained by the
to the corporation. The fact that the corporation. It is a debt of the stockholder.
stockholders attempted to constitute a There is no damage to the corporation
mortgage over their pro-indiviso share in a whatsoever. There is no mortgage of
corporate asset cannot affect the corporation corporate property and the corporation did
since shares only represent an aliquot interest not likewise guarantee the obligation.
in the property of the corporation. The right Since there is no harm to the
of a stockholder to the corporate property is corporation, it can never be proper for
only inchoate which will ripen into full derivative suit.
ownership only upon dissolution and
liquidation of the corporation. Juanito Ang, Q: What about the fact that the loan is
for and in behalf of Sunrise Marketing secured by the stockholder's share in the
(Bacolod), Inc. vs. Sps. Roberto and assets of the corporation? Will it now
Rachel Ang. G.R. No. 201675, June 19, qualify for derivative suit because there
2013. will be harm against the corporation?
A: Still NO. As we all know, the right of the
Discussion: stockholder to property is only inchoate. It
This was penned by Justice Tony Carpio. will ripen into full ownership only upon
Again, not yet asked in the bar. dissolution and liquidation of the
corporation.
ANG, FOR AND IN BEHALF OF SUNRISE It would have been different if the
MARKETING (BACOLOD), INC. VS. SPS. loan is secured by the mortgage on the
ANG property of the corporation. That is obviously
ultra vires and can be set aside. The
(G.R. No. 201675, June 19, 2013.)
stockholder can have it nullified but none of
Q: What happened in this case is we have
that is present because this case is simply a
two brothers who are also stockholders of
loan of the stockholder where there will be no
Sunrise Marketing who obtained a loan
damage whatsoever to the corporation.
from their sister, secured by their share in
VILLAMOR VS UMALE been proper for a derivative suit but the suing
stockholder did not bring the action for
(G.R. No. 172843, September 24, 2014)
benefit of the corporation. Instead, he alleged
that the acts of the corporate directors were
This is yet to be asked in the bar.
detrimental to his individual interest as a
Q: The corporation has an option to lease a
stockholder. I
prime property in Ortigas. Do you know
In filing an action, therefore, his
Home Depot in Ortigas? This corporation has
intention was to vindicate his individual
the option to lease the valuable property. This
interest and not that of the corporation. He
Corporation assigned that lease option in
did not even allege that he was filing on
favor of Atty. Villamor.
behalf of the corporation. The nonderivative
Atty. Villamor assigned the lease
character of the respondent may also be
option and earned substantial income. Is this
gleaned horn his allegations in the trial court
proper for derivative suit? It could have been
complaint where he described the nature of
proper right? Since the aggrieved property is
his action as an action under Rule 1, Section
the corporation? That lease option could have
l(a)(l) of the Interim Rules, not an action
translated into income for the corporation. It
under Rule 1, Section 1(a)(4), of the Interim
was assigned without anything in return. That
Rules, which refers to derivative suits. Rule
is certainly a wrongful act against the
1, Section 1 (a)(1) of the Interim Rules refers
corporation. Would it be proper for derivative
to acts of the board, associates, and officers,
suit?
amounting to fraud or misrepresentation,
However, in the complaint, he alleged
which may be detrimental to the interest of
that the acts of the directors were detrimental
the stockholders. This is different from a
to his own interest.
derivative suit.
It would have been proper for a
derivative suit except that the suing
While devices and schemes of the board of
stockholder did not bring the action in the
directors, business associates, or officers
name and for the benefit of the corporation.
amounting to fraud under Rule 1, Section
He alleged the acts of the directors were
1(a)(1) of the Interim Rules are causes of a
detrimental to his own interests and not of the
derivative suit, it is not always the case that
corporation. Obviously in filing the action, he
derivative suits are limited to such causes or
does not want to vindicate the right of the
that they are necessarily derivative suits.
corporation but his own individual right. It is
Hence, they are separately enumerated in
not proper for derivative suit.
Rule 1, Section 1 (a) of the Interim Rules. See
Alfredo L. Villamor, vs. John S. Umale, G.R.
Slide:
Nos. 172843 172881, 24 September 2010,
e. In one case, the corporation, without any
valuable consideration, assigned its option to
The reliefs sought In the complaint, namely
lease a prime property in favor of another.
that of enjoining defendants from acting as
The assignee leased out the property and
officers and Board of Directors of the
earned substantial income. This could have
corporation, the appointment of a receiver, the benefits of membership and the right to
and the prayer for damages in the amount of receive the assets upon dissolution and
the decrease in the value of the shares of liquidation of the corporation.
stock, clearly show that the complaint was Make it not proprietary the enjoyment
filed to curb the alleged mismanagement of of the benefits of membership but without
the corporation. The causes of action pleaded any right to receive the assets upon the
by petitioners do not accrue to a single dissolution and liquidation. As a
shareholder or a class of shareholders but to consequence, the value of the share dropped.
the corporation itself. Ching alleged mismanagement on the part of
the corporation's board of trustees. Is it
While there were allegations in the proper for derivative suit?
Complaint of fraud in their subscription In the bar exam, every time you see
agreements, such as the misrepresentation of an allegation of mismanagement, the
the Articles of Incorporation, petitioners do question is could this be pursued as a
not pray for the rescission of their derivative suit? The answer should be yes
subscription or seek to avail of their appraisal except that the way it was couched is what is
rights. Instead, they ask that defendants be wrong in this case.
enjoined from managing the corporation and He is not suing on behalf of the
to pay damages for their mismanagement. corporation. He is suing for his own interests.
Petitioners' only possible cause of action as So if the aggrieved party is the corporation, it
minority stockholders against the actions of should be one for derivative suit but you have
the Board of Directors is the common law to comply with the elements of derivative
right to file a derivative suit. However, a suit. What is wrong here is "Ching vs Subic
derivative suit cannot prosper without first Bay Golf and Country Club" should have
complying with the legal requisites for its been "Ching on behalf of Subic Bay Golf and
institution. In this case, the requisite missing Country Club vs. the trustees who
is that the action was not filed on behalf of mismanaged the corporation.
the corporation. Nestor Ching vs. Subic Bay
Golf and Country Club, Inc., Et Al., G.R. No. g. There is no derivative suit where the action
174353 September 10, 2014. is clearly not for the benefit of the
corporation, particularly where a judgment in
Discussion: favor of the plaintiff, in his capacity as third
This is yet to be asked in the bar. party mortgagor would mean recovery of his
Basically what happened here is that own properties. Bangko Sentral ng Pilipinas
Subic Bay Golf and Country Club Board of vs. Vicente Jose Campa, Jr. ,G.R. No. 1859
Trustees amended the certificate of March 16, 2016.
membership from proprietary to non-
proprietary. h. .The action should be a proper derivative
What do you mean by proprietary and suit even if the assailed acts do not pertain to
non-proprietary? In proprietary, you enjoy all a corporation's transactions with third
certificates. Republic vs Estate of Hans sold it and then after that the buyer sold to
Menzi, G.R. No 152578, November 23, 2005. another party, Vertex Sales. So vertex sales
to each nominee allowed to enjoy all the
Discussion: This has been asked in the Bar. benefits of membership but because the
stocks were not delivered right away, Vertex
Q: When is the sale of shares perfected? filed an action to rescind the same. Can the
A: Sale of share is perfected not upon sale be rescinded even though vertex has
meeting of the minds by the parties on the enjoyed all the privileges and benefits of
cause, consideration and object of the sale but membership?
upon compliance with the formalities Yes it because the sale has not been
prescribed by the RCC. consummated there was no delivery of the
sales certificate within a reasonable time
In one case, the buyer of the shares had fully from transaction.
paid the purchase price but the stock In this case, the binibigay ni seller
certificate was only delivered after close to yung certificates but it does not cure the
three years from the sale. The seller clearly defect. It should have been done within a
failed to deliver the stock certificates to the reasonable time and not anytime you like.
buyer representing the shares of stock
purchased by the buyer, within a reasonable Q: This is not in the presentation but in my
time from the transaction. This was a book. Can the corporation whose shares
substantial breach of their contract that are the subject of said transaction be the
entitles the buyer the right to rescind the sale one to appeal the decision?
under article 1191 of the Civil Code. It is not A: It is not the corporation whose shares were
entirely correct to say that a sale had already sold that should appeal but the contracting
been consummated as the buyer already party aggrieved by the decision.
enjoyed the rights a shareholder can exercise. The corporation whose shares were
The enjoyment of these rights cannot suffice sold is not a party to the sale. Its appeal does
where the law, by express terms, requires a not toll the running of the period to file an
specific form to transfer ownership. Fil- appeal.
Estate Golf and Development, Inc. vs. Vertex
Sales And Trading, Inc., G.R. No.202021, Q: What is the nature of delivery that the law
June 10,2013. contemplates for the transfer of shares?
A: The delivery contemplated in Section 63
Discussion: (now 62 of the RCC), pertains to the delivery
This has not yet been asked in the bar of the certificate of shares by the transferor to
so take note. the transfere, that is, from the original
So this is the Corporation that put up stockholder named in the certificate to the
a golf course I think in Rizal. A very beautiful person of entity the stockholder was
golf course. Anyway, so the certificate when transferring shares to, whether by sale or
he sold it to the contractor and the contractor
some other valid form of absolute cannot be required to issue a new certificate
conveyance of ownership. unless the original certificate is produced and
It Is the delivery of the certificate, surrendered.
coupled with the endorsement by the owner Surrender and cancellation of the old
or his duly authorized representative that is certificates serve to protect not only the
the operative act of transfer of shares from the corporation but the legitimate shareholder
original owner to the transferee. Anna Teng and the public as well, as it ensures that there
vs. Securities and Exchange Commission, is only one document covering a particular
G.R. No.184332. February 17, 2016. share of stock. Anna Teng vs. SEC, ibid.
In another case, it was held that where
the teller indorsed the stock certificates but Q: Can the corporate secretary refuse the
did not deliver them, ownership of the shares record in the books of the corporation?
cannot be transferred to the buyer. For an A: No. SC through Justice Reyes said that
effective transfer of shares of stock, the mode under the Corporation Code, the
and manner or transfer as prescribed by law requirements for the transfer are
should be followed Embassy Farms, vs. indorsement, delivery and taxes likewise paid
Court of Appeals, G.R. No. 80682, August and if the shares are fully paid. To require the
13.1990. surrender of the stock certificate of the seller
is to impose a condition not contemplated by
Q: What other steps should the transferee law.
take for the registration of the transfer of
shares and the issuance of the stock Q: Can the buyer ask the corporation for the
certificate in his favor? issuance of a new stock certificate given that
A: He should pay the taxes due on the the certificate of the seller should be
transaction, if any, then obtain from the cancelled by reason of the same?
Bureau of Internal Revenue a certificate A: The buyer cannot require the certificate of
authorizing registration ("CAR"). The cancellation of the seller without a surrender
transferee should present the CAR and the to the Corporate Secretary. Without
document evidencing the conveyance, and surrender of the certificate, you cannot ask
surrender the duly endorsed stock certificate likewise for the issuance of a new one in
to the secretary of the corporation who shall favor of the buyer-transferor.
then cancel the stook certificate of the
transferor and issue a stock certificate to the It depends on how the question will
transferee. be couched. If the question is "is the
In one case, the SC ruled that with surrender of the certificate required for
regard to the issuance of a new certificate of recordation of the transfer books of the
stock, the surrender of the original certificate corporation?" The answer is NO because
of stock is necessary before the issuance of a it adds a condition not contemplated by
new one so that the old certificate may be law.
cancelled. A corporation is not bound and
If the question is "can a new not subject to tax. Thereafter, the CTA issued
certificate be issued to the buyer without a ruling to the effect that there is no longer
surrender of the stock certificate of the the need to present proof of payment of tax
seller?" The answer is NO under Teng vs. where it is sure that it is not subject to tax to
SEC. record the transfer.
Q: Is the payment of the capital gains tax Q: Who can validly register the transfer in
on the part of the seller, assuming there the books of the corporation?
was a gain in the sale, a requirement for A: Being the custodian of the corporate
the validity of the sale or assignment or records, the corporate secretary alone can
transfer of the shares to the buyer? validly cause the registration of the
A: No. Non-payment of capital gains tax does transfer in the books a the corporation.
not affect the validity of the as between the Thus, in one use, the corpora. secretary
seller and the buyer. However, if the capital refused to perform his ministerial duty of
gains tax is not paid, the sale or the transfer recording the transfer of shares. As a result,
of shares shall not be registered in the books the nominees of the controlling stockholder
of the corporation by the transfer agent or could not qualify for the election of directors.
secretary of the corporation. Transfer of The controlling stockholder made the entries
Shares; Documentary Requirements, SEC- himself in the stock a. transfer book to record
OGC Opinion No. 06-07, April 19, 2007. the assignment of shares to his nominees. The
Supreme Court ruled that the registration is
Discussion: not valid. Torres vs. Court of Appeals, G.R.
Payment of capital gains tax is not an No. 120138 Septembers, 1997.
element for the validity of the sale or The remedy of the controlling
assignment or transfer of shares to the buyer. stockholder, in this case, is to file a petition
While this principle applies to capital for mandamus with prayer for the issuance of
gains tax, the same principle holds whether it a preliminary mandatory injunction to
is succession or donation. compel the corporate secretary to cause the
transfer. He cannot take the law Into his own
Q: What if the transaction is not subject to hands.
tax? Is there a need for proof of payment The stock a. transfer agent, being an
of tax? extension of the office of the corporate
A: For peace of mind of the parties, they get secretary may also cause the transfer of
a CAR (Certificate Authorizing Registration) shares of mask involving large corporations
from the BIR whether taxes have been paid or public companies.
or it is not subject to tax for good measure.
Discussion:
Discussion: In Torres vs. CA, the controlling
We handled a similar case with the stockholder nominated persons to be
BIR for exchange of shares of stock which is directors. Since you cannot have directors
who do not have a share in the corporations, unrecorded transfer Garcia vs. Jomouad,
that is what he did. He transferred some G.P. No. 133969, January 26, 2000.
shares to his nominees. Upon the death of a shareholder,
However, the CorpSec refused. What the heirs do not automatically become
he did was the controlling stockholder stockholders of the corporation and
himself made entries in the stock and transfer acquire the rights and privileges of the
book to record the assignment to his deceased as shareholder of the
nominees. The SC said the registration is not corporation. The stacks must be distributed
valid. He should have filed a petition for first to the heirs in estate proceedings, and the
mandamus with prayer for issuance of a transfer of the stocks must be recorded in the
preliminary mandatory injunction to compel books of the corporation. Joselito Musni
the CorpSec to cause the transfer. Puno vs. Punao Enterprises, Inc.,
represented by Jesusa Puno, No.177066,
Q: What is the effect if the transfer is not September 11, 2009.
recorded in the books of the corporation?
A: The transfer is valid only between the Discussion:
contracting parties but not effective and The SC said there are some
binding as against the corporation and exceptions where the non-recording in the
third parties. The right of the transferee, stock and transfer book still produces effect.
as stockholder, accrues only upon entry of In one case, where the transfer is
his name in the books of the corporation. ministerial, meaning it should have been
Consequently, the transferee cannot recorded but was not, the non-recording in
enjoy the status of a stockholder, cannot vote the STB still produces effect against the
or be voted for and will not be entitled to corporation and the whole world.
dividends insofar as assigned shares are This is only an exception to the
concerned. Parenthetically, the assignors general rule.
cannot, as yet, he deprived of their rights as
stockholders, until and unless the issue of Q: How may partially paid shares be
ownership and transfer of the shares in transferred?
question are resolved with finality. Rural A: Because partially paid shares are not
Rank of Lipa City, Inc., vs Court of Appeals covered yet by a stock certificate, and as
G.R. No. 124535, September 28, 2001; De such, there is no certificate which can be
Erquiga vs. Court of Appeals, G.R. No. endorsed and delivered to the transferee as
42706, September 27, 1989. required by Section 62 of the RCC, the
subscriber, as the owner of the shares, may
The unrecorded transfer of a assign his right to the contract of
proprietary ownership certificate is not valid subscription in favor of the assignee.
as against the judgment creditor of the The corporation, may, however,
transferor who can, therefore, levy the shares refuse the transfer of shares based on Section
pursuant to a judgment despite the 62 of the RCC which provides that the
Q: What is the appropriate legal remedy if After many years, the SC had the
the corporation refuses to register the opportunity to reassess Ponce.
transfer of shares? In the case of Andaya vs Rural Bank
A: Because it is a ministerial duty to of Cabadbaran.
register the transfer of shares of the
corporation, if it refuses without good Slide:
cause to make such transfer, may be Subsequently, in Andaya vs. Rural Bank of
compelled to do so by mandamus. Cabadbaran, the Supreme Court held that
The only limitation imposed by transferees of shares of stock are real
Section 63 of the OCC (now Section 62 of parties in interest having a cause of action
the RCC) is when the corporation holds for mandamus to compel the registration
any unpaid claim against the shares of the transfer and the corresponding
intended to be transferred. issuance of stock certificates. In this case,
the transferee was able to establish that be is
Q: The question is who can file the petition a bone fide transferee of the shares of stock
for mandamus? as evidenced by the following documents: (1)
A: The transferor or the transferee. a notarized Sale of Shares of stocks; (2) a
Documentary Stamp Tax Declaration/
Slide: Return: (3) a Capital Gains Tax Return; and
In Ponce vs. Alsons Cement (4) stock certificates covering the subject
Corporation, though, the Supreme Court shares duly endorsed by the transferor. There
ruled that only the transferor may file the is no doubt that the transferee had the
petition for mandamus. The transferee cannot standing to initiate an action for mandamus to
compel the corporate secretary to cause the compel the corporation to record the transfer
registration and issuance of a stock certificate of shares in its stock and transfer book and to
because the transferee has not acquired issue new stock certificates in his name. G.R.
standing yet in the books of the corporation No.188769, August 3, 2016.
and that the transferee can only file such
petition if he has been authorized by the Discussion:
transferor to cause such transfer. G.R. No. The SC said in Andaya that either
139802, December 10, 2002. the transferor or the transferee can file a
petition for mandamus.
Discussion:
This case is unfair because the Slide:
transferee is denied legal personality because In contrast, at the crux of this petition
he has not acquired legal personality yet in are the registration of the transfer and the
the books of the corporation which is why he issuance of the corresponding stock
wants to file a mandamus because he wants certificates. Requiring petitioner to register
to be recognized in the books of the the transaction before he could institute a
corporation yet he cannot do so. It is absurd. mandamus suit in supposed abidance by the
ruling in Ponce was a palpable error. It led to A: No the term "unpaid claim" only refers to
an absurd, circuitous situation in which the "any unpaid claim arising from unpaid
petitioner was prevented from causing the subscription. It does include any
registration of the transfer, ironically indebtedness which a subscriber or
because the shares had not been registered. stockholder may owe the corporation arising
With the logic resorted to by the RTC, from any other transaction. It does not, for
transferees of shares of stock would never be instance, include monthly dues imposed by
able to compel the registration of the transfer the corporation for the use of its facilities.
and the issuance of new stock certificates in China Banking Corporation vs. Court of
their favor. They would first be required to Appeals, and Valley Golf and Country Club,
show the registration of the transfer in their Inc., G.R. No. 117604, March 26, 1997.
names — the ministerial act that is the subject
of the mandamus suit in the first place. Discussion:
Transferees of shares of stock are real parties We already discussed this before. If a
in interest then having a cause of action for stockholder owes money from the
mandamus to compel the registration of the corporation or even purchased property from
transfer and the corresponding issuance of the corporation and has not paid in full the
stock certificates. purchase price, the corporation cannot refuse
to transfer because the term "unpaid claim"
Q: When may a corporation refuse to should be understood as unpaid subscription.
register the transfer of shares in the books
of the corporation? Q: Are transactions where the shares of
A: stock are subjected to security interest or
a. If the formalities prescribed by law encumbrance required to be recorded in
for the transfer of shares, which are the books of the corporation in order to
endorsement of the stock certificate make the transfer effective as against the
and delivery to the transferee, are not corporation and third persons?
complied with. A: Only the transfer of shares resulting in a
b. If the above-stated formalities have change of ownership is required to be
been complied with but the registered in the books of the corporation.
corresponding taxes for the transfer These include sale, donation or succession.
have not been paid. Encumbrances, like security interest on
c. If the corporation holds any unpaid shares, are not required to be registered to
claim on the shares. bind the corporation and third persons. They
are binding and enforceable against third
Q: Does "unpaid claim", which justifies persons if they are registered with the
the corporation to refuse the registration appropriate registration registry under RA
of the transfer, include any obligation or 11057, otherwise known as the Personal
liability that the subscriber may owe to the Property Security Act.
corporation?
Q: The corporation's articles and bylaws no reason why they cannot be applied to open
has the right of first refusal giving the or regular corporations.
stockholder the option to buy the shares of
a certain stockholder for 50% above par Q: Mr. A is a stockholder/founding
value. member of Rural Bank of Maria Aurora
Par value is P100. 50% above par value is Incorporated, (RBMAI for brevity).
P150. Previously, he was able to sell shares of
There is a buyer of the shares for stock of RBMAI.
P200 per share. Can the stockholder However, at present, Mr. A could not sell
exercise the option to buy it at P150 even if his shares to outsiders since the new
it is being sold for P200? manager/majority stockholder imposed a
A: Yes. The law does not say upon the same new policy that the shares should be sold
terms and conditions offered by the buyer but only to insiders, particularly, to the
only upon reasonable terms and conditions employees who are also stockholders of
stated in the offer. RBMAI. Mr. A is now questioning the new
policy since these employees/stockholders
Q: Does this restriction apply to mortgages buy at very low prices while there are
or involuntary dealing? Can a mortgagee third-party buyers willing to buy his
foreclose the mortgage without having shares at a higher price.
first to recognize the right of first refusal Is the restriction on the transfer of shares
of the stockholder? to insiders a valid restriction?
A: Mortgage is not contemplated or covered A: The company policy restricting the
by this restriction. This only covers voluntary transferability of shares is not valid.
transfer and not involuntary. In order to be valid and enforceable,
any restriction on the transfer of shares of
Q: Can a judgment creditor garnish the stock must be explicitly provided for in the
shares of a judgment debtor stockholder articles of incorporation and in the certificate
and acquire the shares in the sale without of stocks.
having to recognize the right of first Restrictions on the transfer of shares
refusal by the other stockholders? Or are essentially contractual in nature between
should they give the other stockholders the the stockholders and the corporation. Hence,
option to buy before it can be sold in such restrictions must be embodied in their
auction? contract, i.e. the articles of incorporation.
A: No. Involuntary dealings or
transactions are not covered by this Q: What are the remedies available to a
provision. creditor, who is a successful bidder in an
auction sale of shares of stocks of a
Discussion: corporation, in the event that the
Although these restrictions are found corporate secretary refuses to issue
in the chapter on closed corporation, there is certificates of stock and record the auction
sale in the stock and transfer book in his again sell without having to pull out the stock
favor? certificate.
A: If the corporation wrongfully refuses to
issue a certificate of stock, the following are Q: What is a certificate of stock?
the remedies available to an assignee or A: A certificate of stock is a written
transferee of shares of stock: instrument signed by the proper officer of a
1. File a suit for specific performance corporation stating or acknowledging that
of an express or implied contract; the person named therein is the owner of a
2. File for an alternative relief by way designated number of shares of its stock. It
of damages where specific performance indicates the name of the holder, the number,
cannot be granted; and kind and class of shares represented, and the
3. File a petition for mandamus to date of issuance.
compel issuance of a certificate. Pertinently, it was held that the mere
Refusal to Issue Certificates of Stock; inclusion as a shareholder in the General
Remedies of a Successful Bidder In an Information Sheet of a corporation is not
Auction Sale of Shares of Stock, SEC 000 sufficient proof that one is a shareholder of
Opinion No. 21-06, March 23, 2006. such corporation. David C. Lao n vs. Dionisio
Lao, G.R. No. 170585, October 6, 2008.
Q: Is there any revision under the RCC on
the issuance of stock certificates? Discussion:
A: Yes, the SEC may require corporations Even in the absence of stock
whose securities are traded in trading markets certificates, you can still vote these stocks by
and which can reasonably demonstrate their presenting the contract of subscription. It is
capability to do so to issue their securities or important to have a stock certificate but it is
shares of stocks in uncertificated or scripless not essential to the exercise of the right of a
form in accordance with the rules of the SEC. stockholder.
Possession of the stock certificate is
Discussion: not indispensable for the exercise of
Uncertificated or scripless form is stockholder's rights.
important for public companies where shares
are traded in the stock exchange. Q: This was asked in the bar. May a
Shares actively traded in the stock corporation consider the portion paid by a
exchange is very cumbersome to follow the shareholder as full payment for the
usual formalities required. In this case, the corresponding number of shares and
shares can be in uncertificated or scripless cancel the subscription as to the rest?
form. A: Upon the acceptance of a stock
Shares can be in the name of the subscription by a corporation, the
broker where shares are held for the benefit subscription becomes a binding contract to
of the customer so that the customer can which the subscriber cannot withdraw.
Q: What is the liability of directors or Q: Can treasury shares be sold for a price
officers relating to the issuance of watered below par value? If yes, are they not
stocks? considered watered shares?
A: Yes, treasury shares may be sold for a unless a different interest rate is provided in
price below par value; provided that such the subscription contract. The interest shall
price is reasonable under the circumstances be computed from the date specified, until
as determined by the board of directors. They full payment of the subscription.
are not watered stocks because rule against If no payment is made within thirty
watered stocks only applies to the issuance of (30) days from the said date, all stocks
original or primary shares and not covered by the subscription shall thereupon
disposition of existing shares. become delinquent and shall be subject to
sale as hereinafter provided, unless the board
Q: When should the balance of subscription of directors orders otherwise.
be paid? The subscriber is also liable to pay
A: The balance of subscription should be paid interest on the unpaid subscription.
on the date specified in the contract of
subscription. In the absence of due date in the Q: What are the remedies available to the
contract of subscription, the board of corporation to enforce the payment of the
directors may, at any time, declare due and unpaid subscription?
payable to the corporation unpaid A:
subscriptions and may collect the same or a. The corporation may declare the shares as
such percentage thereof, in either case, with delinquent and subject such delinquent shares
accrued interest, if any, as it may deem to sale; or
necessary. b. It may collect, through court action, the
The due date for the payment of the unpaid subscription.
balance is either the stipulated date or in the
absence of such stipulation, the call or Discussion:
demand by the Board of Directors. I have not seen a corporation file an
Demand is not necessary to put the action for collection because it requires filing
subscriber in default if the due date of fees. It is easier to have it the delinquent
payment is specified in the contract of shares sold.
subscription based on Article 1169 of the When is filing an action for collection
Civil Code that demand is not necessary to a better option? If there is no bidder willing
put the debtor in default when the law so to pay the balance of the subscription and the
declares. corporation has no surplus profit.
Can it be sold on piece-meal basis?
Q: What are the legal consequences if the The SEC said NO. The contract of
balance of the subscription is not paid on subscription is indivisible.
the due date?
A: Failure to pay the subscription on the due Q: Does the subscriber have any right as a
date shall render the entire balance due and stockholder despite the failure to pay the
payable and shall make the stockholder liable subscription?
for interest at the legal rate on such balance,
A: The subscriber retains all his rights as Q: Juan subscribed to 1,000,000 shares of
a stockholder despite his failure to pay the stock of ABC Corporation with par value
balance of the subscription on the date of Php 1.0o per share. The subscription
specified in the contract of subscription or amount is Php 1,000,000. He paid Php
upon call made by the board of directors 250,000.00.
("due date"). He is entitled to such rights a. When should Juan pay the balance of
until his stocks become delinquent. the subscription?
Stocks become delinquent only if He should pay on the date specified in
not paid within 30 days from due date. This the contract of subscription, If the contract is
is consistent with Section 71 of the RCC silent on the due date, the balance should be
which states that holders of subscribed shares paid upon call or demand made by the board
not fully paid which are not delinquent shall of directors,
have all the rights of a stockholder.
If the stocks are delinquent, the b. Assume that the due date is June 15,
only right available to the subscriber is to 2020 and Juan failed the pay the balance
right to the dividends which should be of subscription on such date. The
exercised in accordance with law. This corporation called a regular stockholder's
means the cash dividends due on meeting on June 30, 2020 to elect the board
delinquent stack shall be applied against of directors.
the unpaid balance on the subscription Can Juan vote his shares in the
plus interest, cost and expenses while the corporation? If yes, how many shares can
stock dividends shall be withheld until full he vote?
payment of the subscription. Yes, he can vote. Non-payment on
due date does not mean that the stocks
Q: What are the effects of delinquency? covered by the subscription have become
A: No delinquent stock shall be: delinquent. Stocks become delinquent only if
a. Voted for not paid after 30 days from the due date of
b. Be entitled to vote payment. Under Section 71 of the RCC,
c. Be represented at any stockholder's holders of unpaid shares that are not
meeting delinquent have all the rights of a
d. Nor shall the holder thereof be stockholder.
entitled to any of the rights of a stockholder He can vote the entire 1,000,000
except the right to dividends in accordance share, The standing of the stockholder is
with the provisions of the RCC, until and measured by his subscription and not on his
unless payment is made by the holder of such paid-up shares. He retains his rights based on
delinquent stock for the amount due on the his subscription until the stocks become
subscription with accrued interest, and the delinquent.
costs and expenses of advertisement, if any.
c. Is Juan qualified to be elected as a
director of the corporation?
Yes, for the reasons stated above, Delinquent Shares; Delinquency Sale, SEC-
Juan remains to be a stockholder on the CMC Opinion No. 0516, March 31, 2016.
election date and is qualified to be elected as
a director. However, once the shares become Discussion:
delinquent, he should be deemed to have When can the corporation apply the
forfeited his director position because share cash dividends against the unpaid
ownership is a continuing requirement. subscription?
1. When the contract of subscription
d. Assume further that on July 10, 2020, allows it;
the corporation declared cash dividends of 2. When the stockholders concerned
P1.00 per share, is Juan entitled to receive give their consent thereto; and
the dividends? If yes, how many shares are 3. If the stocks are declared
entitled to dividends? delinquent
Yes, Juan is entitled to dividends for
his entire 1,000,000 shares. This is for the f. May stock dividends be used to pay the
same reason stated above that holders of balance of the unpaid subscriptions?
unpaid shares that are not delinquent have all A stockholder's indebtedness to a
the rights of a stockholder. corporation under a subscription agreement
cannot be compensated with the amount of
e. Can the corporation apply the cash shares given to him under a stock dividend
dividends against the unpaid declaration, there being no relation of
subscription? creditor and debtor with regard to such
The corporation cannot apply the shares. Under Section 42 of the RCC, "stock
dividends against the unpaid subscription dividends shall be withheld from the
unless the contract of subscription allows it. delinquent stockholder until full payment of
This is because the corporation is only the subscription. In other words, under the
allowed to apply the cash dividends against said provision, it is now allowed to apply
the unpaid subscription only for delinquent stock dividends to unpaid subscription.
stocks.
In other words, cash dividends Q: On June 15, 2019, Pedro subscribed to 1
cannot be withheld from the subscribers million shares of XYZ Corporation in the
who have not fully paid their subscriptions amount of Php 1,000,000. He paid P
unless they are delinquent on thew unpaid 250,000.00 and agreed to pay the balance on
subscriptions. The corporation may use the June 15, 2020 as specified in the contract of
cash dividends to pay off stockholders' subscription. The contract stipulated that the
subscription but which have not been balance of the subscription shall earn 12%
declared delinquent only if the stockholders interest from the date of the contract until full
concerned give their consent thereto. Re: payment. Pedro failed to pay on the due date.
Indivisibility of Subscription Contract; Despite demands, the balance remained
Payment of Balance of Unpaid Subscriptions; unpaid after 30 days from June 15, 2020.
who offers the highest amount for the subscription and not for only the unpaid
purchase of property. portion of the subscription.
The principle of indivisibility of
d. Does Pedro have any right to the shares subscription is absolute as Section 63 of the
after the auction sale? RCC speaks of no exception. Thus, partial
Under Section 67 of the RCC, the payment to a subscription contract shall be
stock so purchased during the public auction deemed forfeited and the whole subscription
shall be transferred to such purchaser in the shall be declared delinquent.
books of the corporation and a certificate for
such stock shall be issued in the purchaser's e. May the corporation participate in the
favor. The remaining shares, if any, shall be public auction for the sale of delinquent
credited in favor of the delinquent shares?
stockholder who shall likewise be entitled to The corporation may bid for the
the issuance of a certificate of stock covering delinquent shares only if there is no bidder at
such shares. the public auction who offers to pay the full
Therefore, C shall be issued a stock amount of the balance on the subscription
certificate for 750,000 shares corresponding together with accrued interest, costs of
to the stocks he purchased while Pedro will advertisement, and expenses of sale, for the
be issued a stock certificate covering 250,000 smallest number of shares or fraction of a
shares. share. After the bid, the total amount due
shall be credited as fully paid in the books of
Discussion: the corporation. Title to all the shares of stock
It is not correct to say that the stock covered by the subscription shall be vested in
certificate shall be cancelled because in the the corporation as treasury shares and troy Ise
first place, there is no stock certificate issued disposed of by said corporation in accordance
yet there being no full payment of the with the provisions of the RCC.
subscription.
What will happen is the corporation Q: What is the remedy available to the
will issue 2 certificates. One to the winning corporation in case of conflicting claims of
bidder but only corresponding to the shares ownership over the same shares of stock
he purchased during the bidding and the issued by the corporation?
difference in favor of the original A: The corporation may bring an action for
stockholder. interpleader to compel the claimants to
interplead and litigate their claims between or
Slide: among themselves (Rule 62 of the 1997
In the event, however that the auction is Rules of Court). The corporation will
successful but there is only one bidder who basically recognize the claimant who will be
offered to pay the full amount for the entire adjudged by the court as the owner of the
delinquent stocks, the corporation must issue shares.
a certificate of stock covering the entire
Q: Juan is the registered owner of 100,000 cancelled and is no longer outstanding in the
shares of stock of ABC Corporation books of the corporation. The remedy of
covered by stock certificate no. 143. He Pedro is to file an action against Juan.
claims to have lost his stock certificate. He
fled an affidavit stating the circumstances c. Suppose Juan did not really lose the
surrounding the loss of his certificate. The stock certificate but had previously
affidavit further contains all the endorsed it to Maria. After obtaining the
information required by the Corporate replacement stock certificate, Juan
Secretary. The Corporation caused the endorsed it to Anna.
publication of the notice of loss once a Who has a better right, Maria as endorsee
week for three consecutive weeks in a of the purportedly lost certificate, or
newspaper of general circulation in the Anna, the endorsee of the replacement
city where the principal office of the stock certificate?
corporation is located. There being no The endorsee of the replacement
claimant after the one year publication certificate has a better right because the lost
period, the Corporation cancelled the certificate of Juan had already been cancelled
stock certificate and issued a replacement and is no longer outstanding in the books of
in favor of Joan. the corporation.
Thereafter, Pedro came forward
claiming that the stock certificate was in
TITLE VIII
fact endorsed to him pursuant to a sale
transaction and asked the Corporation to CORPORATE BOOKS AND
cancel the replacement certificate issued to RECORDS
Juan.
a. Is the Corporation liable for Q: What are the revisions under the RCC
issuing a replacement certificate? on corporate records and stockholders'
b. Can the corporation be right of inspection?
compelled to cancel the replacement A:
certificate? a. It required all information about the
corporation to be preserved, and
a. No, except in case of fraud, bad faith, or expanded the list of records required to
negligence on the part of the corporation and be kept by the corporation at its
its officers, no action may be brought against principal office.
any corporation which shall have issued b. Inspecting/reproducing party is
certificate of stock in lieu of those lost, stolen bound by confidentiality rules.
or destroyed pursuant to the procedure laid However, a person who is not a
down in Section 72 of the RCC. stockholder or member of record, a
b. No, because in the books of the competitor, or who represents the
corporation, the stock certificate of Juan as interests of a competitor is prohibited to
purportedly sold to Pedro had already been Inspect/reproduce corporate records.
from Ten thousand pesos (P10,000.00) to Fourth. Where the officer or agent of
Two hundred thousand pesos (P200,000.00), the corporation sets up the defense
at the discretion of the court, taking into that the person demanding to
consideration the seriousness of the violation examine and copy excerpts from the
and its implications. When the violation of corporation's records and minutes
this provision is injurious or detrimental to has improperly used any
the public, the penalty is a fine ranging from information secured through any
Twenty thousand pesos (20,000.00) to Four prior examination of the records or
hundred thousand pesos (P400,000.00). minutes of such corporation or of
any other corporation, or was not
Q: Did the RCC de-criminalize violation of acting in good faith or for a
stockholder's right of inspection? legitimate purpose in making his
A: The RCC did not de-criminalize the demand, the contrary must be shown
violation of stockholder's right of inspection. or proved.
It only removed the penalty of imprisonment
and limited the penalty to monetary fines. Thus, in a criminal complaint for
violation of Section 74 of the Corporation
Q: What are the requisites before the Code (now Section 73 of the RCC), the
penal provision may be applied in a case of defense of improper use or motive is M the
violation of a stockholder or member's nature of a justifying circumstance that
right to inspect the corporate would exonerate those who raise and are able
books/records? to prove the same.
The elements of the offense are: Accordingly, where the corporation
First. A director, trustee, stockholder denies inspection on the ground of improper
or member has made a prior demand motive or purpose, the burden of proof is
in writing for a copy of excerpts from taken from the shareholder and placed on the
the corporation's records or minutes; corporation.
Second. Any officer or agent of the However, where no such improper
concerned corporation shall refuse to motive or purpose is alleged, and even
allow the said director, trustee, though so alleged, it is not proved by the
stockholder or member of the corporation, then there is no valid reason to
corporation to examine and copy said deny the requested inspection. Sy Tiong
excerpts; Shiou, et al., vs Sy Chim, et. al., G.R. No.
Third. If such refusal is made 179438, 30 March 2009.
pursuant to a resolution or order of
the board of directors or trustees, the Q: What are the remedies of a stockholder
liability under this section for such if the corporation denies or does not act on
action shall be imposed upon the his demand for inspection?
directors or trustees who voted for A: The remedies are as follows:
such refusal; and
a. If the corporation denies or does not No, a criminal action based on the
act on a demand for inspection and/or violation of a stockholder's right to examine
reproduction, the aggrieved party may or inspect the corporate records and the stock
report such denial or inaction to the and transfer book of a corporation can only
SEC. Within five (5) days from receipt be maintained against corporate officers or
of such report, the SEC shall conduct a any other persons acting on behalf of such
summary investigation and issue an corporation.
order directing the inspection or A violation of Section 74 of the OCC
reproduction of the requested records; (now Section 73 of the RCC) contemplates a
b. He may file with a criminal situation wherein a corporation, acting thru
complaint for violation of his right of one of its officers or agents, denies the right
inspection; and, of any of its stockholders to inspect the
c. He may file a petition for inspection records, minutes and the stock and transfer
of corporate records (Ruled of the book of such corporation.
Rules of Procedure for Intra-Corporate The proprietary right of the
Controversies). corporation to the in possession of such
records and book though certainly legally
Discussion: enforceable by other means, cannot be
These remedies can be pursued enforced by a criminal prosecution based on
simultaneously. a violation of the Corporation Code.
the records available to you but your client Q: Cite examples of improper purposes
can't make a peek of the sensitive which may justify denial of the right of
information. inspection.
What is the point of giving access to A: Among the improper purposes which may
records but not to the ones you want? So justify a denial of the right of inspection are:
basically the CA affirmed the RTC ruling. (1) obtaining of information as to
I was hoping they will go up to the SC business secrets or to aid a competitor;
to enrich jurisprudence but they did not. So it (2) to secure business "prospects" or
is only a CA decision that trade secrets investment or advertising lists;
outweigh the right of inspection. (3) to find technical defects in
After a few years, I got my validation corporate transactions in order to bring
not in a case we handled but a different case "strike suits" for purposes of blackmail
Terelay Investment vs Yulo where the SC or extortion.
ruled that trade secrets are outside the right
of inspection. Q: Is the right of inspection extinguished
by the dissolution of the corporation?
Q: Cite examples of legitimate purposes to A: The termination of the life of a juridical
warrant the exercise of the right of entity does not, by itself, cause the extinction
inspection. or diminution of the rights and liabilities of
A: Among the purposes held to justify a such entity nor those of its owners and
demand for inspection are the following: creditors. Thus, the revocation of the
(1) to ascertain the financial condition corporation's registration does not
of the company or the propriety of automatically strip off the stockholder of his
dividends; right to examine pertinent documents and
(2) to determine the value of the shares records of the corporation. Alejandro D.C.
of stock for sale or investment; Roque vs. People of the Philippines, G.R. No.
(3) to determine whether there has been 211108, June 7, 2017.
mismanagement; The rights and remedies against, or
(4) in anticipation of shareholders' liabilities of, the office shall not be
meetings, to obtain a mailing list of removed or impaired by reason of the
shareholders to solicit proxies or dissolution of the corporation. Corollary
influence voting; then, a stockholder's right to inspect
(5) to obtain information in aid of corporate records subsists during the
litigation with the corporation or its period of liquidation. Accordingly, if the
officers as to corporate transactions. stockholder was deprived of the exercise of
Terelay Investment and Development an effective right of inspection, offenses had
Corporation vs. Cecilia Teresita J. in fact been committed, regardless of lack of
Yulo; G.R. No. 160924, 05 August criminal intent. Alfredo L. Chua vs. People of
2015, the Philippines, G.P. No. 216146, August 24,
2016.
liabilities of both constituent corporation. absorbed the employees of the seller. But, the
buyer must give preference to the employees
Distinguish merger from asset sale of the seller corporation if they are qualified.
between corporations.
Merger Asset Sale Q: In 2015, Total Bank (“Total”) proposed
to sell to Royal Bank (“Royal”) its banking
the constituent both the seller business for P10 billion consisting of
cease to exist except corporation and specified assets and liabilities. The parties
the surviving buyer corporation reached an eventual agreement, which
continue to exist. they termed as "Purchase and Assumption
corporation which
The seller Agreement" (“P&A”) in which Royal
retains its corporate corporation is not
identity but acquires would acquire Total's specified assets and
dissolved even liabilities, excluding contingent claims,
all the rights and though it may not with the further stipulation that it should
liabilities of the have any asset left. be approved by the Bangko Sentral ng
acquired Pilipinas (“BSP”). BSP imposed the
corporation/s condition that Total should place in escrow
the surviving the buyer, as a Pl billion to cover for contingent claims
corporation general rule, does against it. Total complied. After securing
not assume the the approval of the BSP, the two banks
assumes all the
liabilities of the signed the agreement. BSP thereafter
liabilities of the issued a circular advising all bank and
seller.
absorbed non-bank intermediaries that effective
corporation January 1, 2016 the banking activities of
Total Bank and Royal Bank have been
Q: You have a publishing company that consolidated and the latter has carried out
wanted to be acquired because it is not their operations since then."
making money. You decides to sell it. The
buyer only bought the assets only not the Was there a merger and consolidation of
shares of the stockholders. Is it obligated the two banks in point of the Corporation
to absorbed the writers, editors staff of Code? Explain.
publishing company?
A: No. It is not a merger but simply a sale of A: There was no merger or consolidation of
assets, even all the assets of seller. the two banks in point of the Corporation
Code. The Supreme Court ruled in Bank of
The seller is justified in terminating the Commerce vs. Radio Philippine Network,
employment of his employees because he Inc. that there can be no merger if the
have no business. He shall pay the separation requirements and procedure for merger were
benefits. not observed and no certificate of merger was
issued by the SEC.
Q: Is the seller dissolved?
A: No, even though it may not have any In the actual case, the Supreme Court said
assets. You may have a corporation even that all the require specified in the law must
without a single asset. be complied with in order for the take effect.
Here, Traders Royal Bank (“TRB") and Bank
As to the buyer, the buyer is not obligated to of Commerce (“BOC") remained separate
corporations with distinct personalities. What disposed of the sale in favor of bank of
happened is that TRB sold to BOC identified commerce. How will RPN 9 enforce its
recorded assets in consideration of BOC's judgment against TRB?
assumption of TRB’s identified recorded
liabilities, including booked contingent A: Remember there is an escrow? That could
accounts. There is no law that prohibits this be the source of fund for the judgment. But
kind of transaction especially when it is done bank of commerce is not liable because it is a
openly and with appropriate government pure sale.
approval.
Q: What is meant by a de facto merger?
BANK OF COMMERCE VS. RADIO Discuss.
A: De facto merger means that a corporation
PHILIPPINE NETWORK
called the Acquiring Corporation acquired
FACTS: In this case there is an acquisition of the assets and liabilities of another
all assets in exchange of assumption of corporation in exchange for an equivalent
liabilities. No cash consideration instead it value of shares of stock of the Acquiring
only acquire the assets and for buying those Corporation making the other corporation a
assets, it will pay the obligations particularly stockholder of the Acquiring Corporation.
Bank of Commerce v. Radio Philippines
to its depositors and set an escrow deposit to Network Inc. G.R. No. 195615, 21 April 2014
answer for the liabilities that are not specific
in the agreement. In the present case, there is no de facto
merger because the Acquiring Corporation
There was a judgment in favor of RPN acquired the assets and liabilities of the other
against TRB. RPN filed a motion for issuance corporation but not in exchange for stocks.
The assets were acquired in exchange for the
of writ of execution, it learned that assets of
assumption of liabilities.
TRB were acquired by bank of commerce.
Thus it filed a motion for issuance of writ of Distinguish merger from consolidation.
execution against bank of commerce. Merger Consolidation
union whereby one union of two or
ISSUE: Is bank of commerce liable to pay the
corporation absorbs more existing
judgment debt in favor of RPN.
one or more existing corporations to
corporations, and form a new
RULING: No. Because it is not a merger. It
the absorbing corporation called
is simply a sale of all of the assets. There is
corporation the consolidated
no merger because there is no certificate of
survives and corporation.
merger issued by the SEC. The certificate of
continues the
merger can be issued only upon compliance
combined business.
with the procedure for merger set by RCC.
all constituents, all the constituents
except the surviving are dissolved and
Q: If bank of commerce is not liable to pay
corporation, are absorbed by the new
RPN, from whom RPN 9 get payment?
TRB has no more assets since it has dissolved.
f. The articles shall be submitted to the SEC A: In a merger, the shares of stock held by the
for its approval provided that in the case of stockholders of the absorbed corporation will
merger or consolidation of special be exchanged for shares of stock of the
corporations governed by special laws, the surviving corporation. The exchange or swap
favorable recommendation of the appropriate ratio is spelled out in the plan of merger
government agency shall first be obtained. taking into account the respective fair values
(sec. 78 RCC) of the assets and liabilities of the constituent
corporations.
g. If upon investigation, the SEC has reason
to believe that proposed merger or The RCC requires the articles of
consolidation is contrary or inconsistent with incorporation to reflect items (d) to (f) to
the provisions of the RCC or existing laws, it allow the concerned shareholders or
shall set a hearing to give the corporations members and the SEC to ascertain if the
concerned the opportunity to be heard. (Sec. exchange is fair and reasonable, considering
78, RCC) the pre-merger and post-merger or
consolidation information. The aggregate fair
h. Where the SEC is satisfied that the merger value of shares that will be issued by the
or consolidation of the corporations surviving or consolidated corporation should
concerned is not inconsistent with the generally approximate the adjusted net asset
provisions of the RCC and existing laws, it value of the constituent Corporation/s. The
shall issue a certificate of merger or same will be established using the carrying
consolidation, at which time the merger or amounts and fair value of the assets and
consolidation shall be effective. (Sec. 78, liabilities of the respective companies as of
RCC) the agreed cut-off date, vis-à-vis the method
to be used in the merger or consolidation of
Dean: accounts of the companies. The RCC:
1. Plan of merger Theories and Applications: Herbosa and
2. Approved by majority of each of the board Recalde, 2019, p. 296
3. Notice of stockholder’s meeting which
include purpose of the pl Importance: it is by agreement by the
4. Approval of stockholders of 2/3 OCS of corporations. It is not by law.
Q: What are the effects of merger or Register of deed wanted to see the transfer
consolidation? (SCPAL) of title from Equitable PCI bank to BDO
The following are the effects of merger or before BDO can sell to third party buyer.
consolidation: That is expensive because there will be 2
a. The constituent corporations shall set of taxes. BDO can sell property even
become a single corporation which, in though the title is in the name of equitable
case of merger, shall be the surviving because the property is deemed
corporation designated in the plan of transferred to BDO. You present to the RD
merger; and, in case of consolidation, shall even though the TCT is on the name of
be the consolidated corporation Equitable PCI bank the certificate of
designated in the plan of consolidation. merger, the operative document.
b. The separate existence of the
constituent corporations shall cease, e. The surviving or consolidated
except that of the surviving or the corporation shall be responsible for all the
consolidated corporation liabilities and obligations of each
c. The surviving or the consolidated constituent corporation as though such
corporation shall possess all the rights, surviving or consolidated corporation
privileges, immunities, and powers and had itself incurred such liabilities or
shall be subject to all the duties and obligations; and any pending claim
liabilities of a corporation organized under action or proceeding brought by or against
the RCC any constituent corporation may be
d. The surviving or the consolidated prosecuted by or against the surviving
corporation shall possess all the rights, consolidated corporation. The rights of
privileges, immunities and franchises of creditors or liens upon the property of
each constituent corporation; and all real such constituent corporations shall not
or personal property, all receivables due be impaired by the merger or
on whatever account, including consolidation.
subscriptions to shares and other whatever
account including subscriptions to shares Q: Can a debtor of absorbed
and other choses in action, and every other corporation invoke the defense of
interest of, belonging to or due to each novation?
constituent corporation, shall be deemed A: No, “rights of creditors or liens upon
transferred to and vested in such the property of such constituent
surviving or consolidated corporation corporations shall not be impaired by the
without further act or deed. (assets) merger or consolidation.”
be able to increase its working capital to A: Any provision or matter stated in the AOI
undertake business expansions. may be amended by a majority vote of the
board of directors and the vote or written
The Board of Directors consults with you assent of the stockholders representing at
as legal counsel or proper answers to the least 2/3 of the outstanding capital stock.
following issues: Stockholders cannot exercise any appraisal
right in case of amendment to the articles of
Can Yenetic's Articles of Incorporation incorporation to increase capital stock
(“AOI”) be formally to remove the right of because this is not one of the cases allowed
appraisal on all dissenting stockholders in by law where appraisal right may be
all matters under the law which requires a exercised unless the corporation is a close
ratification vote of the stockholders? corporation where a stockholder may
demand the payment of the fair value of his
A: Yenetic's AOI cannot be amended to shares for any reason whatsoever.
remove appraisal right of the stockholders on
matters requiring stockholders’ approval if Q: What are the requisites for the valid
the law grants them such appraisal right, like: exercise of appraisal right?
1. In case an amendment to the articles The requisites are:
of incorporation has the effect of a. It can only be exercised in the cases
changing or restricting the rights of specified by law
any stockholder or class of shares, or b. The dissenting stockholder must have
of authorizing preferences in any voted against a proposed corporate
respect superior to those of action specified by law.
outstanding shares of any class, or of c. The stockholder must make a written
extending or shortening the term of demand on the corporation for the
corporate existence; payment of the fair value of shares
2. In case of sale, lease, exchange, held within thirty (30) days from the
transfer, mortgage, pledge or other date on which the vote was taken
disposition of all or substantially all d. If the proposed corporate action is
of the corporate property and assets. implemented, the corporation shall
3. In case of merger pay the stockholder, upon surrender
4. In case of investment of corporate of the certificate or certificates of
funds for any purpose other than the stock representing the stockholder’s
primary purpose of the corporation. shares, the fair value thereof as of the
day before the vote was taken,
Appraisal right is a statutory right. It cannot excluding any appreciation or
be denied to the stockholders in cases where depreciation in anticipation of such
the law allows such right. 2018 Bar Exam. corporate action.
e. The fair value must be determined in
Q: If the increase in Authorized Capital accordance with the mechanism set
Stock is formally submitted to the forth by law.
stockholders in a meeting duly called for f. Within ten (10) days after demanding
the purpose, what is the vote necessary for payment for shares held, a dissenting
the stockholders' ratification, and may the stockholder shall submit the
dissenting stockholders exercise their certificates of stock representing the
appraisal right? shares to the corporation for notation
AOI because investment in shares is not a just that its allowed to use the word
business activity. As long as the income from foundation. If you use the word foundation as
those investments are used to attain the part of your corporate name as nonstock
purpose of the corporation. corporation, your subject to a higher capital
contribution from the members.
Foundation
It is a nonstock nonprofit corporation. It’s
DECEMBER 8, 2020
Discussion: According to the SEC, the
SORIANO
answer is YES. You have to keep in mind that
what Ayala intends to sell are products
Recit related to the purpose of the corporation – to
*No recording promote the culture of the Philippines. Online
*The question was about the case of Lim v. sale of these products is allowed because it is
Moldex found in pp. 478-479 of the book incidental to the purpose of the corporation.
propose? Can you propose the amend the of any of its members. To include these
bylaws? members without voting rights in the total
A: You cannot because to amend the bylaws, number of members for purposes of quorum
you need majority of the members and the would be superfluous for although they may
board. You cannot even afford to maintain a attend a particular meeting, they cannot cast
quorum. How can you amend the bylaws. their vote on any matter discussed therein.
Q: So what is the remedy? Usually, one member has one voting right.
A: The remedy here is the concept of So, if the corporation has 100 members who
emergency quorum. Any member may ask or all have voting rights, then the quorum is 51.
petition the SEC to call a meeting and if the Majority of 51 members will be needed to
SEC finds that there was unjustified holding approve a corporate act unless the RCC
of the members’ meeting, then it may requires either majority or 2/3s of the entire
authorize that member to call the meeting and membership, or the bylaws require a number
whoever is present in that meeting, regardless greater than majority. In some cases though,
of number or less than the majority required the bylaws may provide that one member
in the bylaws of the corporation, will be your may have more than one voting right. This is
quorum. mostly true in condominium corporations. A
member will be counted as one for quorum
Q: What is the quorum for the members’ purposes but can have more than one voting
meeting? right corresponding to the number of
A: To constitute a quorum, there should be condominium units registered in his name.
present a majority (50% plus 1) of the total
interest of all members who are entitled to Discussion: Quorum is generally the
vote and not delinquent, unless the bylaws majority of the voting members unless the
provide otherwise. SEC-OGC OPINION bylaws provide otherwise. The bylaws may
31-2019. provide that quorum is less than majority of
total number of members for nonstock
The majority of the quorum is needed to corporation or less than the majority of the
approve a corporate act unless the law or by- outstanding capital stock in a stock
laws requires otherwise. corporation. That is allowed for members or
stockholders’ meeting but not for board’s
The basis in determining the presence of meetings. For the board, quorum is the
quorum in non-stock corporations is the majority of the number of the board as
numerical equivalent of all members who are indicated in the in the AOI unless the bylaws
entitled to vote, unless some other basis is prescribes a greater number.
provided by the bylaws of the corporation.
The qualification "with voting rights" simply For stockholder and members’ meetings, the
recognizes the power of a non-stock quorum may be less than the majority as long
corporation to limit or deny the right to vote
by-laws and even The by-laws may of the corporation is located. However,
when the by-laws likewise authorize located. the place of meeting
are silent, in case of members to vote shall be within
corporations vested through remote Any city or Philippine territory.
with public interest. communication municipality in (Section 92, RCC)
However, the and/or in absentia. Metro Manila,
election must be by Metro Cebu, Metro Dean: It can be held
ballot if requested Dean: Regional or Davao, and other anywhere as long as
by any voting district voting, as Metropolitan areas it is within
stockholder or long as it is are considered city Philippine territory.
member. (Section provided in the or municipality.
23, RCC) bylaws. It should be (Section 50, RCC)
allowed.
Dean: Venue is
There is no fixed by law.
distinction with Can you remove a A member may be
remote stockholder who is expelled for the
communication in fully paid? No. grounds specified in
the sense that There is no the bylaws.
members may provision to remove
participate also a stockholder under Can the bylaws
through remote the RCC. You can expel a member
communication remove a director without hearing if
and/or in absentia but never a he propagates
when authorized by stockholder. teachings contrary
the bylaws, by the to the tenets of his
board for those church? It is valid if
vested with public the ground is
interest. provided for in the
Stockholders' The by-laws may bylaws.
meetings shall be provide that the Assets of stock Assets of non-stock
held in the principal members of a non- corporation shall be corporation shall be
office of the stock corporation distributed in the distributed as
corporation as set may hold their following order: follows:
forth in the articles regular or special a. Payment of a. Payment of
of incorporation, or, meetings at any claims of claims of
if not practicable, in place even outside creditors who creditors;
the city or the place where the are not b. Assets held on
municipality where principal office of stockholders condition
the principal office the corporation is (based the requiring return
or the corporation.
grantor; Dean: The (Section 91, RCC)
2. Assets to be stockholders cannot
used only elect the officers of
for the corporation
religious,
benevolent, Q: May a non-stock corporation be
educational converted to a stock corporation by the
or similar mere amendment of the AOI?
purposes. A: No, this will amount to the distribution of
assets to the members of the corporation and
GR: The other subscription to the stock corporation out of
assets shall be these assets. This will then violate Section 86
distributed to the of the RCC which allows distribution of
members only if assets to the members of the non-stock
their rights to corporation only upon dissolution of the
distribution are corporation and only to the extent that their
stated in the AOI or distributive rights are defined in the articles
BL. of incorporation or pursuant to a plan of
XPN: When you distribution adopted by at least majority of
have a plan of the board of trustee and approved by at least
distribution 2/3s of members. The remedy is to dissolve
approved by the non-stock corporation, adopt a
majority of the distribution plan, distribute the assets to the
trustees and 2/3 of members based on such plan and use the
the members. assets as their contribution to the stock
corporation to be formed. 2001 Bar Exam.
What happens when
you don’t have any? Discussion: No. Why? The only way you can
So can members distribute the assets of a nonstock corporation
distribute the assets is through dissolution. Now, if you convert
to themselves? NO. nonstock to stock, in effect, you are
distributing the assets of the corporation to
What will happen? the members as their contribution to the stock
Forfeited to the corporation and short of dissolution.
national Therefore, you violate the norm that assets
government. can only be given to the members if you
The Board appoints The members can dissolve the corporation.
the officers of the directly elect the
corporation. officers of the
corporation just because a man and his wife their efforts and managerial skill that they
own 98.86% of its subscribed capital stock; expect the business to grow and prosper, it is
So too, a narrow distribution of ownership quite understandable why they would not
does not, by itself, make a close corporation. trust outsiders to come in and interfere with
The features of a close corporation under the their management of the business, and much
Corporation Code must be embodied in the less share whatever fortune, big or small, that
Articles of Incorporation to make it as one. the business may bring.
San Juan Structural and Steel
Fabricators, Inc. vs Court of Appeals, GR Discussion: In open corporations, acts of
No. 129459, September 29,1998 management belong to the board. Acts of
ownership belong to the stockholder. In a
Q: What corporation cannot be close corporation, you have a fusion of stock
incorporated as a close corporation? ownership and management.
A: (Mnemonic: MOSBIPEP)
Q: What are the principal characteristics
Any corporation may be organized as a close of close corporations?
corporation except the following: A: The principal characteristics of close
a. Mining or oil companies; corporations are the following:
b. Stock exchanges; a. The business of the corporation may be
c. Banks; managed by the stockholders of the
d. Insurance companies; corporation rather than by a board of
e. Public utilities; directors.
f. Educational Institutions; and
g. Corporations declared to be vested Stockholders who are actively involved
with public interest in accordance in the management of the corporation are
with the provisions of the RCC. liable in the same manner as directors are
liable. They are personally liable for
Q: What is the main difference between a corporate torts unless the corporation has
close corporation and other corporations? obtained reasonably adequate liability
A: The main difference between a close insurance. An example of corporate tort
corporation and other corporations is the is the non-payment of separation benefits
identity of stock ownership and active of employees who were terminated due to
management, that is, all or most of the authorized cause. Sergio Naguiat and
stockholders of a close corporation are active Clark Field taxi, Inc. vs. NLRC, G.R. No.
in the corporate business either as directors, 116123, March 13, 1997.
officers or other key men in management.
Where business associates belong to a small, While Section 97 of the Corporation
closely-knit group, they usually prefer to Code (now Section 96, RCC) only
keep the organization exclusive and would specifies that "the stockholders of the
not welcome strangers. Since it is through corporation shall be subject to all
Q: Can you have a close corporation with Dean: Remember, pre-emptive right
a board of directors? applies to the issuance of shares to a non-
A: Yes. stockholder.
same shall not be binding on any to 60 days or even more, depending on the
purchaser in good faith. circumstances surrounding the case.
b. Restrictions shall not be more onerous
than granting the existing stockholders or The disputed provision does not provide for
the corporation the option to purchase the an option period for the existing
shares of the transferring stockholder stockholders/corporation and the transferring
with such reasonable terms, conditions or stockholder who desires to transfer/encumber
period stated. his stocks. It only provides that the other
c. Upon the expiration of said period parties shall give their written consent thereto
(period to exercise the option to purchase before such encumbrance can be realized.
shares), the existing stockholders or the The SEC had previously opined that a
corporation fails to exercise the option to restriction clause is not valid and enforceable
purchase, the transferring stockholder if it absolutely prohibits the sale or transfer of
may sell their shares to any third person. stock without the consent of the Board of
Directors and/or stockholders, as this would
Q: ABC Incorporated, a close corporation violate the general law on free alienability of
provides for the following restriction on shares of stock as personal property.
the transferability of its shares in the
Articles of Incorporation, to wit: In view of thereof, the provision on
"Encumbrance of Shares. The encumbrance of shares in the articles of
shareholders may mortgage, pledge, or incorporation of ABC Incorporated is not
otherwise encumber all or part of their valid. The provision, as it stands, does not
shares in the Corporation; provided that, provide for an option period to be exercised
the other parties shall give their written by the other stockholders or the corporation
consent thereto; provided further that, vis-a-vis the transferring stockholder. The
written notice to the other parties shall be result of the absence of such an option period
sufficient if the mortgagee or pledgee is a is to absolutely prohibit the mortgage, pledge
banking or financial institution." or encumbrance of such stock without the
written consent of the other stockholders.
Is the aforementioned provision of the This violates the general law on free
Articles of Incorporation valid? alienability of shares of stock as personal
A: The restrictions on the transfer of shares property. Validity of Provision Restricting
shall not be more onerous than granting the Transferability of Shares in Close
existing stockholders or the corporation the Corporations, SEC-OGC Opinion No. 19-
option to purchase the shares of the 061 March 13, 2006; Answer modified based
transferring stockholder with such reasonable on RCC.
terms, conditions or period stated therein. Q: The board of directors of the
The SEC has previously opined that the corporation adopted a resolution that no
reasonable option period may range from 30 stock holder can sell his fully paid shares
in favor of any person without the prior
consent of the corporation. Is the buyer, while not bound by these documents,
restriction valid? is charged with notice because the restriction
A: It is void. While the corporation may also appears in the stock certificate.
impose restrictions on share transfers, to be
valid, the restrictions should be embodied in Also, the restriction on pricing is not more
all of the articles of incorporation, by-laws onerous than the right of first refusal. In fact,
and stock certificate of the corporation and the law does not require that the option to
cannot be more onerous than the right of first purchase the shares of the transferring
refusal. In this case, the restriction is only by stockholder be on the same price, terms and
way of board resolution. Most importantly, conditions. It is enough they are based on
securing the consent of the corporation prior reasonable terms. The option to buy shares at
to the sale of fully paid shares is a restriction 25% above par value is a reasonable
more onerous than the right of first refusal. provision.
Q: The bylaws of the corporation provide Q: When is any corporate action taken by
that a stockholder has the option to directors valid even without a meeting
purchase the shares of a transferring called properly?
stockholder for a price equivalent to 25% A: Section 100 of the RCC provides that any
above par-value but the offer price of the action taken by the directors of a close
buyer of the shares of the selling corporation without a meeting called
stockholder is 100% above the par value of properly and with due notice shall
the share. Is such restriction valid? nevertheless be deemed valid, unless the
A: It is void because the restriction is only in bylaws provide otherwise, if:
the bylaws.
a. Before or after such action is taken, a
Q: Assuming that the restriction is written consent thereto is signed by all the
similarly incorporated in the AOI and directors; or
embodied in the stock certificate but the b. All the stockholders have actual or
offer price of the buyer of the shares of the implied knowledge of the action and
selling stockholder is 100% above the par make no prompt objection in writing; or
value of the share, may the existing c. The directors are accustomed to take
stockholder validly enforce the pricing informal action with the express or
provision restriction? implied acquiescence of all the
A: Yes, the restriction may be enforced. The stockholders; or
selling stockholder cannot complain that the d. All the directors have express or implied
offer of the buyer is higher than the option knowledge of the action in question and
price granted to existing stockholders none of them makes a prompt objection
because he is bound by the restrictions as in writing.
appearing in the articles of incorporation and
bylaws of the corporation. The proposed
Q: Regarding the power of the President the conditions enumerated in the provision
of a close corporation, can he or she decide cited above is present. Re: Close
on matters like needed renovations, major Corporations; Powers of the President; Right
or minor, of a property/building without of Inspection, SEC-OGC Opinion No. 23-14,
the approval of the Board and then just ibid.
have it ratified in the next meeting?
A: Yes, a President of a close corporation Q: How do you distinguish pre-emptive
may not even need later ratification of the right in ordinary corporation from the
Board of Directors or Trustees for the acts same right in close corporation?
previously made. A: Pre-emptive right in an ordinary
corporation does not extend to issuance of
Presidents of corporations are often given shares in exchange for property given for a
general supervision and control of the corporate purpose or in payment of debt
business as chief executive officers from made in good faith, if approved by the
which is to be inferred that contracts or acts stockholders representing at least 2/3 of the
made or done by the President in the ordinary outstanding capital stock.
course of business are presumed to be duly
authorized unless the contrary appears. The pre-emptive right of stockholders in
Unless there is a charter or by-law provision close corporations shall extend to all stock to
to the contrary, the President may, as a be issued, including reissuance of treasury
general rule, bind the corporation on a shares, whether for money, property or
contract in the ordinary course of business, personal services, or in payment of corporate
provided that the same is reasonable under debts, unless the articles of incorporation
the circumstances. provides otherwise.
A: A corporation sole may sell or mortgage Discussion: Basically, the corporation must
real property held by it by obtaining an order petition to the court to sell, mortgage,
for that purpose from the Regional Trial encumber or dispose of the property of the
Court of the province where the property is corporation.
situated upon proof that the notice of the
application for leave to sell or mortgage has The only exception is if the rules of the
been made through publication or as directed church regulate the method of acquiring,
by the Court, and that it is in the interest of holding, selling, encumbering such property
the corporation that leave to sell or mortgage of the corporation. In which case, the
be granted. The application for leave to sell intervention of the court is no longer
or mortgage must be made by petition, duly necessary.
verified, by the chief archbishop, bishop,
priest, minister, rabbi, or presiding elder In the case of Iglesia Filipina, take note that
acting as corporation sole, and may be the sale was not void but only unenforceable.
opposed by any member of the religious
denomination, sect or church represented by Q: How is a corporation sole dissolved?
the corporation sole: Provided, That in cases A: A corporation sole may be dissolved and
where the rules, regulations, and discipline of its affairs settled voluntarily by submitting to
the religious denomination, sect or church, the SEC a verified declaration of dissolution,
religious society, or order concerned setting forth:
represented by such corporation sole regulate a. The name of the corporation;
the method of acquiring, holding, selling, and b. The reason for dissolution and
mortgaging real estate and personal property, winding up;
such rules, regulations and discipline shall c. The authorization for the dissolution
govern, and the intervention of the courts of the corporation by the particular
shall not be necessary. religious denomination, sect or
church; and
In one case, the foregoing provision was d. The names and addresses of the
applied for the sale of real property by a persons who are to supervise the
religious corporation. The sale was ruled to winding up of the affairs of the
be unenforceable because it was made by the corporation.
Supreme Bishop in contravention of the rule4
s of the corporation. Under the rules of the Upon approval of such declaration of
corporation, the sale required the dissolution by the SEC, the corporation shall
concurrence of the laymen's committee and cease to carry on its operations except for the
other officials of the church, but which purpose of winding up its affairs.
approval was not given. Iglesia Filipina
Independiente vs. Heirs of Bernardino Discussion:
Taeza, G.R. No. 179597, February 3, 2014.
Q: Can the OPC appoint a president other Q: Can a person own more than 1 OPC?
than the sole stockholder? A1: Yes, provided that it has all the resources
A: No. Remember that you cannot be a to put up more than 1 OPC.
president unless you are a director and you A2: Yes, there is no prohibition under the law
cannot be a director unless you are a and the OPC has a separate and distinct
stockholder. There is only one stockholder. personality from that of the stockholder.
Obviously, he is the only one qualified to
become a president of the corporation. Dean: No opinion yet but there is no
prohibition so it is allowed as long as they do
Q: Can he occupy the position of not overlap.
treasurer?
A: Yes, provided that he will give a bond.
LECTURE
Q: How much is the bond?
A: Based on the graduated amount approved Q: What is a One Person Corporation
by the SEC, redeemable every 2 years. (“OPC”)?
A: OPC is a corporation with a single
Dean: But he cannot be the president and stockholder: Provided, that only a natural
secretary at the same time. person, trust, or an estate may form a OPC.
Q: Can he be the compliance officer? Is it Q: What is the rationale for the RCC
required to have a compliance officer? provision on OPC?
A: Only corporations which are vested with A: The provision for OPC, aims to encourage
public interest are allowed or required to have the formation of businesses in the country by
a compliance officer. An OPC is not a making it easier for entrepreneurs to start a
corporation vested with public interest. limited liability company. In turn, this will
benefit our economy where micro, small and
medium enterprises comprise the majority of custodian or any other person exercising
the business establishments and would fiduciary duties?
generate more jobs in the Philippines. A: If the single stockholder is a trustee,
administrator, executor, guardian,
Discussion: Those in colorum businesses conservator, custodian or any other person
may be recognized by law as a valid entity to exercising fiduciary duties, proof of authority
generate more taxes. to act on behalf of the trust or estate must be
submitted at the time of incorporation.
Q: May a foreign natural person
organized a OPC? Q: Which corporations are not allowed to
A: Yes. In case of a natural person the only incorporate as OPC?
requirement under the RCC is that he/she A: Banks and quasi-banks, preneed, trust,
must be of legal age. There is no provision on insurance, public and publicly-listed
any nationality requirement. Thus, subject to companies, and non-chartered government-
the applicable constitutional and statutory owned and -controlled corporations may not
restrictions on foreign participation in certain incorporate as OPC: Provided, further, That a
investment areas or activities, a foreign natural person who is licensed to exercise a
natural person may organize a OPC. Section profession may not organize as a OPC for the
15, SEC MC No.7. purpose of exercising such profession except
as otherwise provided under special laws.
Discussion: As long as he is not engaged in
any nationalized activity. Q: Can a bank as a trustee organize an
OPC?
Q: What is the “trust” referred to under A: No. Not allowed.
the RCC which can organize a OPC?
A: The “trust” as used by the law does not Q: Can a natural person as trustee
refer to a trust entity, but to the subject being organized an OPC?
managed by the trustee. A: Yes.
Discussion: For example, Juan dela Cruz Q: Can a corporation, not a bank, as
holds funds for Pedro Reyes. So, Juan dela trustee organized an OPC?
Cruz can put up an OPC as a trustee of the A: Yes.
funds he is managing for Pedro Reyes. Pedro,
of course, can organize his own. GR: A natural person can organize an OPC.
XPN: A natural person cannot organize an
Q: What is the additional requirement for OPC for the purpose of exercising a
incorporation of a OPC if the single profession.
stockholder is a trustee, administrator,
executor, guardian, conservator, Q: Can you organize an OPC for the
practice of law?
A: No because it is not allowed by any law. (Dean: This is very important. The SEC
shall not act on the application of the OPC
Q: What is the term of existence of a OPC? unless the single stockholder designates a
A: Like other corporations, the term of nominee and an alternate nominee. When
existence of the OPC shall be perpetual. the nominee becomes the single
However, if the OPC is a trust or estate, the stockholder in case of death or incapacity
term of existence shall be co-terminus with of the single stockholder, the alternate
the existence of the trust or estate. nominee becomes the nominee. )
Q: What are the characteristics of OPC? g. The liability of the single stockholder
A: A OPC has the following characteristics: shall be limited to his subscription to the
a. It has a single stockholder. corporation unless there is ground to
b. It is not required to have a minimum pierce the veil of corporate fiction.
authorized capital stock except as (Section 130, RCC)
otherwise provided by special law. (Dean: It should also be adequately
Further, no portion of the authorized financed and there is no commingling of
capital is required to be paid up at the properties.)
time of the incorporation, unless
otherwise required by applicable laws or Q: Distinguish sole proprietorship from
regulations. (Section 117 of the RCC and OPC.
Section 8 of MC No. 7) A: Sole proprietorship has no separate legal
c. It is not required to submit and file personality from the proprietor conducting
corporate bylaws. (Section 119, RCC) the business whereas a OPC has a legal
(Q: Why? personality separate and distinct from the
A: Because the single stockholder sole stockholder of the corporation.
administers the rules of his corporation)
d. It is required to indicate the letters "OPC" The assets of the sole proprietorship are
either below or at the end of its corporate similarly owned by the proprietor conducting
name. (Section 120, RCC) the business whereas, in a OPC, the assets of
e. The single stockholder shall be the sole the OPC are not owned by its sole
director and president of the OPC. stockholder and should be independent of the
(Section 121, RCC) stockholder's personal property.
f. The single stockholder is required to
designate a nominee and an alternate The obligations that the sole proprietorship
nominee who shall, in the event of the incurred in conducting the business may be
single stockholder's death or incapacity, enforced against the proprietor whereas, in
take the place of the single stockholder as OPC, the obligations of the corporation
director and shall manage the cannot be enforced against its sole
corporation's affairs. (Section 124, RCC) stockholder unless the situation warrants
piercing the veil of corporate fiction.
Sole proprietorship is registered with the DTI Q: Who are the officers of a OPC?
while a OPC is registered with the SEC. A: OPC should appoint a treasurer, corporate
secretary, and other officers as it may deem
Q: What should the articles of necessary, within fifteen (15) days from the
incorporation of a OPC contain? issuance of its certificate of incorporation and
A: OPC shall file articles of incorporation in should 1:ie reported to the SEC within five
accordance with the requirements under (5) days from appointment.
Section 14 of the RCC. It shall likewise
substantially contain the following: The single stockholder may not be appointed
a. If the single stockholder is a trust or an as the corporate secretary.
estate, the name, nationality, and
residence of the trustee, administrator, A single stockholder who is likewise the self-
executor, guardian, conservator, appointed treasurer of the corporation shall
custodian, or other person exercising give a bond to the SEC in such a sum as may
fiduciary duties together with the proof of be required: Provided, That the said
such authority to act on behalf of the trust stockholder/treasurer shall undertake in
or estate; and writing to faithfully administer the OPC's
b. Name, nationality, the residence of the funds to be received as treasurer, and to
nominee and alternate nominee, and the disburse and invest the same according to the
extent, coverage and limitation of the articles of incorporation as approved by the
authority. SEC. The bond shall be renewed every two
(2) years or as often as may be required.
The articles of incorporation should also state
the names, residence addresses and contact Discussion: The single stockholder must be
details of the nominee and alternate nominee, the president. It is by law.
as well as the extent and limitations of their
authority in managing the affairs of the OPC. The SEC said that the single stockholder
cannot be the corporate secretary. Not just
The written consent of the nominee and may. He cannot be the corporate secretary.
alternate nominee shall be attached to the
application for incorporation. Such consent Q: Who shall take the place of the single
may be withdrawn in writing any time before stockholder in managing the affairs of the
the death or incapacity of the single corporation in case of the latter’s death or
stockholder. incapacity?
A: The nominee and alternate nominee
Q: What happens when the consent is designated by the single stockholder shall, in
withdrawn? the event of the single stockholder's death or
A: The single stockholder must designate incapacity, take the place of the single
another nominee. stockholder as director and shall manage the
corporation's affairs.
Q: What is the term of the nominee and Q: How does a OPC approve a corporate
alternate nominee? act?
A: When the incapacity of the single A: When action is needed on any matter, it
stockholder is temporary, the nominee shall shall be sufficient to prepare a written
sit as director and manage the affairs of the resolution, signed and dated by the single
OPC until the stockholder, by self- stockholder, and recorded in the minutes
determination, regains the capacity to assume book of the OPC. The date of recording in the
such duties. minutes book shall be deemed to be the date
of the meeting for all purposes under the
(Dean: Here, the nominee cannot say that the RCC.
stockholder does not have yet the capacity to
assume the duties. It is the stockholder who A OPC shall maintain a minutes book which
determines whether or not he has regained the shall contain all actions, decisions, and
capacity to assume the duties). resolutions taken by the OPC.
Q: If a single stockholder acquires all the Within sixty (60) days from the transfer of the
stocks of an ordinary stock corporation, is shares, the legal heirs shall notify the SEC of
it automatic that it gets converted to an their decision to either wind up and dissolve
OPC? the OPC or convert it into an ordinary stock
A: Obviously, not. You can have a corporation.
corporation owning the controlling capital
stock or even 99.99% of a corporation but The ordinary stock corporation converted
that does not make it as an OPC. But the law from a OPC shall succeed the latter and be
gives that option to be converted to an OPC. legally responsible for all the latter's
outstanding liabilities as of the date of
Q: When may an OPC be converted to an conversion.
Ordinary Stock Corporation?
A: OPC may be converted to an Ordinary Q: Whether or not a person can own more
Stock Corporation in the following cases: than 1 OPC.
a. After due notice to the SEC of such fact A: Since there is no prohibition, a person can
and of the circumstances leading to the own more than 1 OPC subject to condition
conversion, and after compliance with all that there must be no abuse or misuse of the
other requirements for stock corporations separate legal personality of each of the OPC.
under the RCC and applicable rules. Such If they are in different businesses, their
notice shall be filed with the SEC within separate legal personality shall be
sixty (60) days from the occurrence of the maintained.
circumstances leading to the conversion
Slide: Slide:
Q: What is Dissolution? This extended authority necessarily excludes
A: Dissolution is the extinguishment or the purpose of continuing the business for
cancellation of the corporate franchise and which it was established. The reason for this
the termination of its corporate existence for is simple: the dissolution of the corporation
business purposes. carries with it the termination of the
corporation's juridical personality. Any new
Discussion: business in which the dissolved corporation
So we have to qualify termination of would engage in, other than those for the
existence for business purposes, because as purpose of liquidation, will be a void
we all know a dissolve corporation does not transaction because of the non-existence of
mean it cannot perform any act. A dissolve the corporate party.
corporation retains its legal personality but Thus, a real estate mortgage executed by a
only for one purpose, that is to liquidate and corporation after its dissolution is void. The
to wind up its corporate affairs, but it does not redemption of the mortgaged property is
exist anymore for the purpose of continuing likewise void for being inconsistent with
the business it was organized. liquidation. A real estate mortgage is not part
of the liquidation powers that could have
Slide: been extended to the corporation. It could not
Q: What is the consequence of dissolution? have been for the purpose of prosecuting and
A: A corporation that has already been defending suits by or against it and enabling
dissolved, be it voluntarily or involuntarily, it to settle and close its affairs, to dispose of
retains no juridical personality to conduct its and convey its property and to distribute its
business save for those directed towards assets.
corporate liquidation. In other words, the
corporation ceases to be a body corporate for Discussion:
the purpose of continuing the business for This is the case that we discussed a while ago,
which it was organized. But it shall, a REM or a mortgage on a property signed by
the corporation after dissolution is void, the the corporation's certificate of incorporation.
redemption of the property likewise is void Even if said documents were executed years
for being inconsistent with liquidation. A after the dissolution of the corporation, the
REM is not part of the powers of liquidation same are still valid and binding upon the
that would have been extended to the parties and the dissolution will not erase its
corporation, because its not obviously for the consequences. Benigno M. Vigilla, et. al., Vs.
purpose of winding up and liquidating the Philippine College of Criminology Inc. G.R.
affairs of the corporation.
No. 200094, June 10, 2013.
Now, it would have been different if the
mortgage was executed before the dissolution Discussion:
of the corporation, in that case redemption Now, Vigilla vs Philippine College of
can be effected even after dissolution, Criminology, what happened in this case,
anyway it would not exceed 3 years because PCCR entered a contract with ABC labor
redemption is only within 1 year from agency and this agency provided manpower
registration of the sale, so the redemption of to PCCR, eventually that contract was
the property that was mortgage before the terminated so employees of the agency were
dissolution, SC said is valid. likewise terminated and they were able to
obtain their separation benefits from ABC
Labor Agency and they signed a quitclaim in
Slide:
Consequently, any redemption exercised by favor of the agency. Subsequently, they filed
the Corporation pursuant to this void real a claim against PCCR claiming that they are
estate mortgage is likewise void, and could employees of PCCR and not of the agency.
not be given any effect. If real estate To prove its arguments that these are not
mortgage agreement was entered prior to its employees of PCCR, they presented the
dissolution, then the redemption of the quitclaim signed by the personnel hired by
subject property, even if already after its ABC.
dissolution (as long as it would not exceed
three years thereafter), would still be valid Q: Are those waivers and quitclaims
because of the liquidation/winding up powers signed six years after the dissolution of the
accorded by the Corporation Code. Dr. Gil J. corporation, can those documents be given
Rich vs. Guillermo Paloma III, GR No. probative value? Are they still valid and
210538, March 7, 2018. binding despite the fact that they were
signed 6 years after dissolution?
A corporation whose term has expired and, A: SC said yes, emphasizing that no right or
ipso facto, dissolved can no longer exercise remedy available to or against the
an option to lease a property because the corporations, SHs or members will be
same is tantamount to the continuation of the impaired on account of dissolution.
business. Philippine National Bank vs. Court
of First Instance of Rizal, et. al., GR No. Slide:
63201, May 27, 1992. Barn filed an action to enjoin SN Company's
Board of Directors from selling a parcel of
In another case, the Supreme Court affirmed land registered in the corporation's name, to
the validity and binding effect of executed compel the corporation to recognize Barn as
releases, waivers and quitclaims of a stockholder with 50 shares, to allow him to
employees notwithstanding the revocation of inspect the corporate books, and to claim
damages against the corporation and its removed or impaired by the subsequent
officers. Subsequently, the corporation and dissolution of the corporation.
the individual defendants moved to dismiss The dissolution does not automatically
the complaint since the corporation's convert the parties into strangers or change
certificate of registration was revoked by the their intra corporate relationship. Neither
SEC during the pendency of Barn's case on does it terminate existing causes of action
the ground of non-compliance with which arose because of the corporate ties of
reportorial requirements. The special the parties. The cause of action involving an
commercial court granted the motion and intra-corporate controversy remains and must
reasoned that only action for liquidation of be filed as an intra corporate dispute despite
assets can be maintained when a cor-po-ra- the subsequent dissolution of the
tion has been dissolved and Barn cannot seek corporation.
reliefs which in effect lead to the continuation
of the corporation's business. The court also Discussion:
ruled that it lost jurisdiction over the intra- (As to first paragraph)
corporate controversy upon the dissolution of Whatever right or remedy available to the
the corporation. corporation cannot be extinguished just
because the corp. is dissolved.
a. Was the court correct? (As to second paragraph)
If it started as intra-corporate in nature, it
Discussion: continues to be intra-corporate despite
Here is a bar exam question based on Aguirre dissolution of the corporation. So the course
vs. FQB+7. When we analyze the facts, there of action is not changed, if it is intra-
are three questions or issues: corporate on the outset, it remains to be intra-
1. Whether or not an action to be recognized corporate despite dissolution.
as SH amounts to continuation of business. 2.
Whether or not the dissolution of the Slide:
corporation results in the court losing its The foregoing bar exam question is based on
jurisdiction and the case should now move to the case of Aguirre vs. FQB +7, Inc. In that
the liquidation court. case, the Supreme Court said that the
3. Whether or not a course of action is complaint does not show any intention to
changed or extinguished upon dissolution. continue the corporate business of FQB+7. It
does not seek to enter into contracts, issue
Slide: new stocks, acquire properties, execute
The court is not correct. An action to be business transactions, etc. Its aim is not to
recognized as a stockholder and to inspect continue the corporate business, but to
corporate documents is an intra-corporate determine and vindicate an alleged
dispute which does not constitute a stockholder's right to the return of his
continuation of the business. The dissolution stockholdings and to participate in the
of the corporation simply prohibits it from election of directors, and a corporation's right
continuing its business. Moreover, under to remove usurpers and strangers from its
Section 145 of the OCC (now Section 184 of affairs. Neither are these issues mooted by
the RCC), no right or remedy in favor of or the dissolution of the corporation. A
against any corporation, its stockholders, corporation's board of directors is not
members, directors and officers shall be rendered functus officio by its dissolution.
Since Section 122 of the OCC (now Section
139 of the RCC) allows a corporation to yet to be sold, as well as those considered
continue its existence for a limited purpose, open spaces that have not yet been donated to
necessarily there must be a board that will the local government of Muntinlupa City or
continue acting for and on behalf of the the Homeowner's Association. In September
dissolved corporation for that purpose. Thus, 2006, ADC learned that Alabang Hills
the determination of which group is the bona Village Association Inc. ("AHVAI”) started
fide or rightful board of the dissolved the construction of a multi-purpose hall and a
corporation will still provide practical relief swimming pool on one of the parcels of land
to the parties involved. The same is true with still owned by ADC without the latter's
regard to the shareholdings in the dissolved consent and approval, and that despite
corporation. A party's stockholdings in a demand, AHVAI failed to desist from
corporation, whether existing or dissolved, is constructing the said improvements. ADC
a property right which he may vindicate thus prayed that an injunction be issued
against another party who has deprived him enjoining AHVAI from continuing with the
thereof. The corporation's dissolution does construction. In its Answer, AHVAI claimed
not extinguish such property right. that the latter has no legal capacity to sue
since its existence as a registered corporate
Discussion: entity had been revoked by the SEC.
There is also a practical reason why the case
should continue, you have to determine who Discussion:
are the bona fide SH of the corporation to Q: So basic question is if the corporation is
determine the persons who will participate dissolved, can it still file an action?
in the dissolution and liquidation of the A: Before we know, yes right?
assets of the corporation.
Q: What if the action if filed after 3 years
Slide: from dissolution?
b. Four years later, SN Company files A: SC through Justice Peralta said: The
an action against Barn to recover action should not prosper because 3 years
corporate assets allegedly held by the after dissolution, the corporation has no more
latter for liquidation. Will this action legal capacity to sue.
prosper?
In this case likewise, the SC as you will see
Discussion: in the next slide, one of the arguments of
Take note that it says "four years later" ADC are the various jurisprudence upholding
the right of corporations to enforce whatever
Slide: remedy it has under the law, despite
The action cannot prosper because the dissolution, citing Sec. 145 , now 184, that no
corporation has no more legal capacity to sue right or remedy should be impaired on
after three years from its dissolution. Alabang account of dissolution.
Development Corporation vs. Alabang Hills
Village Association, GR no. 187456, June 2, Q: How was that argument addressed by
2014. the SC?
In a relevant case, Alabang Development A: It said that all of these cases that ADC
Corporation ("ADC") was the developer of cited point to cases filed by the corporation
Alabang Hills Village and claimed that it still during its lifetime or after dissolution but not
owns certain parcels of land therein that are exceeding 3 years from such dissolution.
similar to a request for dissolution where term to dissolve the corporation. G.R. No.
creditors are not affected. If creditors will be 63201, May 27, 1992.
affected, the rules similar to petition for
voluntary dissolution should be followed. Discussion:
The reason why I had to include this was
because it was asked in the bar. The case of
Q: Is there any distinction between PNB vs. CFI regarding the corporation
expiration of the original term and wanting to exercise an option to lease a
expiration of the shortened term as a property, the SC said that if the term expires
ground to dissolve the corporation? ipso facto, corporation is deemed dissolved
A: Expiration of the shortened term ipso facto
without having to file a petition for quo
results in the automatic dissolution of the
warranto or request for dissolution, no need
corporation. This is clear under Section 136
to file any document, basically, with the SEC
of the RCC which provides that upon the
when the term expires. Therefore, since it s
expiration of the shortened term, as stated in
dissolved, it cannot exercise the option to
the approved amended articles of
lease the property. So I say that, this case
incorporation, the corporation shall be
should now be construed to mean or to refer
deemed dissolved without any further
to corporations that shortened their term to
proceedings, subject to the provisions of the
dissolve the corporation not to a situation
RCC on liquidation. In the case of expiration
where the original term will expire, because
of corporate term, dissolution shall
of the provision of the RCC regarding the
automatically take effect on the day
corporation, the remedy of reviving the
following the last day of the corporate term
existence of the corporation.
stated in the articles of incorporation, without
the need for the issuance by the SEC of a
Q: So what are the grounds for
certificate of dissolution
involuntary dissolution?
A: A corporation may be dissolved by the
The expiration of term should be without
SEC motu proprio or upon filing of a verified
prejudice to the remedy available to the
complaint by any interested party. The
corporation to apply for a revival of its
following may be grounds for dissolution of
corporate existence. Since the law does not
the corporation:
prescribe the period to file it, the application
a. Non-use of the corporate charter as
may be filed prior to the liquidation of the
provided under Section 21 of
corporation.
the RCC.
Under Section 21 of the RCC, if a corporation
It is submitted that the Supreme Court
does not formally organize and commence its
decision in Philippine National Bank vs. The
business within five (5) years from the date
Court of First Instance of Rizal, Pasig, et al.
of its incorporation, its certificate of
that upon the expiration of the period fixed in
incorporation shall be deemed revoked as of
the articles of incorporation, the corporation
the day following the end of the five (5)-year
ceases to exist and is dissolved ipso facto and
period.
there is no need for the institution of a
proceeding for quo warranto to determine the
Discussion:
time or date of the dissolution of a
I'd like to refresh your memory, previously
corporation should now be construed to refer
it was 2 years, now its 5 years to organize
to corporations that shortened their corporate
and commence business.
iii. Repeatedly and knowingly Note further that while the three grounds
tolerated the commission of provided in paragraph (e) refer to
graft and corrupt practices or commission of graft and corrupt practices,
other fraudulent or illegal acts fraudulent or other illegal acts, these are
by its directors, trustees, distinct from one another. Under the first
officers, or employees. ground, the corporation was organized for the
purpose of creating, concealing or aiding in
If the corporation is ordered dissolved by the commission of the specified illegal acts.
final judgment pursuant to the grounds set Obviously, in this case, there was
forth in subparagraph (e) hereof, its assets, misrepresentation too as to the purposes of
after payment of its liabilities, shall, upon the corporation because the SEC will not
petition of the SEC with the appropriate approve the incorporation if the articles of
court, be forfeited in favor of the national incorporation, on its face, indicates as the
government. Such forfeiture shall be without corporation's purposes the commission of
prejudice to the rights of innocent illegal acts. Under the second ground, the
stockholders and employees for services corporation is lawfully organized and
rendered, and to the application of other conducting business but it committed or
penalties or sanctions under the RCC or other aided in the commission of the same
laws. specified illegal acts and its stockholders
The SEC shall give reasonable notice to, and knew about them. Under the third ground, the
coordinate with, the appropriate regulatory corporation is created for lawful purposes
agency prior to the involuntary dissolution of and legally conducting business but it
companies under their special regulatory repeatedly and knowingly tolerated the
jurisdiction. commission of graft and corrupt practices or
other fraudulent or illegal acts by its
Discussion: directors, trustees, officers, or employees.
Its not automatic that just because they
committed those violations of special laws as
Q: Are there other grounds to dissolve the
enumerated, the assets will be forfeited to the
corporation upon order of the SEC?
national government, the SEC must file with
A: Yes.
the appropriate court a petition to forfeit
The above-stated grounds under PD 902-A
those assets.
were reinforced by Section 158 of the RCC
Q: What about the other grounds for
which provides that, if, after due notice and
involuntary dissolution? Can the SEC file
hearing, the SEC finds that any provision of
a petition to forfeit those assets?
the RCC, rules or regulations, or any of its
A: No, only for those three grounds under
orders has been violated, the SEC may
subparagraph E:
impose any or all of the following sanctions,
Slide:
taking into consideration the extent of
Note that it is only on the grounds specified
participation, nature, effects, frequency, and
in paragraph (e) that the SEC may file a
seriousness of the violation:
petition with the appropriate court that the
a. Imposition of a fine ranging from
assets be forfeited in favor of the national
Five thousand pesos (P5,000.00) to
government but without prejudice to the
Two million pesos (P2,000,000.00),
rights of innocent stockholders and
and not more than one thousand pesos
employees for services rendered.
(P1,000.00) for each day of
continuing violation but in no case to
Q: What are the revisions under the RCC Q: Within what period should the
on the liquidation of private corporations? liquidation of the corporation be
A: concluded?
a. It provided that the liquidation of A: Every corporation whose charter expires
banks shall be covered by the New pursuant to its articles of incorporation, is
Central Bank Act and the Philippine annulled by forfeiture, or whose corporate
Deposit Insurance Corporation existence is terminated in any other manner,
Charter. shall nevertheless remain as a body corporate
b. In case of escheat, the properties shall for three (3) years after the effective date of
revert to the national government. dissolution, for the purpose of prosecuting
The OCC previously provided that and defending suits by or against it and
such properties will be escheated to enabling it to settle and close its affairs,
the city or municipality where such dispose of and convey its property, and
are located. distribute its assets, but not for the purpose of
continuing the business for which it was
Q: What is liquidation? established.
In the absence of a statutory provision to the can be done even after 3 years from
contrary, pending actions by or against a dissolution of the corporation
corporation are abated upon the expiration of Slide:
the three-year period allowed by law for the Yes, a corporation may still dispose of its
liquidation of its affairs. Mambulao Lumber assets despite the lapse of the three-year
Company vs. Philippine National Bank, G.R. period for liquidation of assets provided
No. L-22973, January 30, 1968. under Section 139 of the RCC.
Based on the above provision, there is, as a
Discussion: general rule, no juridical personality after
But as you will see later on, the 3 year period dissolution. If there is, it is only a juridical
is not an absolute period. Meaning, what personality to serve but one purpose –
happens if it is not done within 3 years? Does liquidation, culminating in the disposition
it mean that everything is stopped? It used to and distribution of the dissolved
be Mambulao vs. PNB where everything is corporation's remaining assets. As pointed
abated after three years, finished or not out, any matter entered into that is not for the
finished, pass your papers type of dissolution. purpose of liquidation will be a void
transaction because of the non-existence of
But not anymore, liquidation can go beyond the corporate party.
3 years from dissolution under various modes
as you will see in the next slides. Discussion:
Is it not when you liquidate, you have to
Slide: maximize asset recovery, you have to
Nevertheless, a corporation that has a generate cash, you have to collect receivables
pending action and which cannot be from debtors and you can sell property to
terminated within the three year period after generate cash then use that cash proceeds to
its dissolution is authorized under Sec. 139 of pay the creditors and distribute the remaining
the RCC to convey all its property to a trustee assets and cash to the SHs starting with
to enable it to prosecute and defend suits by preferred to common. So it does not make
or against the corporation beyond the three sense, therefore, to cut or to put a period in
year period. The trustee may commence a suit selling a property if it is incidental to
which can proceed to final judgment even liquidation.
beyond the three-year period.
Even if no trustee is formally appointed, the Slide:
directors of the dissolved corporation may be While Section 139 of the RCC gives a
permitted to continue as trustees to complete dissolved corporation three (3) years to
the liquidation of the corporation. Clemente continue as a body corporate for purposes of
vs. Court of Appeals, G.R. No. 82407, March liquidation, the disposition of the remaining
27, 1995. undistributed assets must necessarily
continue even after such period. This should
Q: May a corporation be allowed to not, however, be construed to prevent a
dispose of its remaining assets after three corporation from pursuing activities which
years from the time of its dissolution? would complete the final liquidation of a
A: The SEC said that it is absurd and dissolved corporation. Accordingly, it should
ridiculous to say otherwise. A property may be allowed to continue liquidating its
be disposed incident to the liquidation that remaining assets in order to complete the
process of dissolving the corporation.
Likewise, it should be allowed to distribute If you have 15 Directors for example, how
the proceeds from the said disposition to its will you get a quorum if it is already
stockholders or creditors if any. A contrary dissolved and they are not too motivated to
interpretation would have unjust and absurd fulfill their duties as directors? So its best to
results. appoint a trustee, either 1 or 3. But it is not
good for the BOD to be trustees given the
Discussion: difficulty of getting a quorum. But legally
In Clemente vs. CA, under the Corporation speaking, SC said even without a trustee
Code, as we have seen then and now, within formally appointed, the BOD shall serve as
three years a corporation must appoint a trustees to carry out liquidation.
trustee, and the trustee appointed will be the
one to carry out the liquidation of the 2. Gelano vs, CA, it is asked in the bar twice.
corporation even beyond 3 years from There was no trustee formally appointed but
dissolution. The implication here seems to be the lawyer handled the case is deemed the
that if there is no trustee appointed, then the trustee with respect to this case and therefore
corporation is bound by the three year period, it can continue beyond the 3 year period.
well not so, based on these cases: Slide:
1. Clemente vs. CA In the Gelano vs. Court of Appeals, the word
Slide: "trustee" as used in the corporation statute
In Clemente vs. Court of Appeals, the must be understood in its general concept
Supreme Court affirmed that if the three year which could include the counsel to whom
extended life has expired without a trustee or was entrusted in the instant case, the
receiver having been expressly designated by prosecution of the suit filed by the
the corporation within that period, the board corporation. The purpose in the transfer of
of directors (or trustees) itself, following the the assets of the corporation to a trustee upon
rationale of the Supreme Court's decision in its dissolution is more for the protection of its
Gelano vs. Court of Appeals, G.R. No. L- creditor and stockholders. Carlos Gelano vs.
39050, February 24, 1981, maybe permitted the Honorable Court of Appeals, et al., G.R.
to continue as "trustees" by legal implication No. L-39050 February 24, 1981.
to complete the corporate liquidation. Still, in
the absence of a board of directors or trustees, Q: Do liquidation and winding up of
those having any pecuniary interest in the corporate affair automatically follow after
assets including not only the shareholders but dissolution?
likewise the creditors of the corporation, A: Not necessarily, we saw this in Chung Ka
acting for and its behalf, might make proper Bio vs. IAC, regarding the term that expired
representations with the SEC which has but instead of liquidating, the SHs put up a
primary and sufficiently broad jurisdiction in new corporation and then the assets that
matters of this nature, for working out a final should have been distributed, were assigned
settlement of the corporate concerns. See to the new corporation as a subscription to the
SEC-OGC Opinion No. 31-09, December 9, shares of stock.
2009.
Slide:
Generally, liquidation is the necessary
Discussion:
consequence of dissolution. However,
Its very cumbersome of course, if your
winding up is the sole activity of a dissolved
trustees will carry out the liquidation are the
corporation that does not intend to
very same BOD of the corporation.
incorporate anew. If it does, however, it is not corporation. Rene Knecht and Knecht, Inc.,
unlawful for the old board of directors to vs. United Cigarette Corp., represented by
negotiate and transfer the assets of the Encarnacion Gonzales Wong, and Eduardo
dissolved corporation to the new corporation Bolima, Sheriff, Regional Trial Court,
intended to be created as long as the Branch 151, Pasig City, G.R. No. 139370,
stockholders have given their consent. Chung July 4, 2002.
Ka Bio vs. Intermediate Appellate Court,
G.R. No. 71837, July 26, 1988. Q: Can an appeal be taken from an
adverse ruling of the RTC if that appeal is
to be done after three years from
Discussion:
dissolution?
Liquidation is a necessary consequence of
A: Yes
dissolution, but its not the automatic
Slide:
consequence because the SHs may not want
A dissolved corporation may also maintain
to liquidate but put up a new corporation.
actions in court for the protection of its rights
including the right to appeal from an adverse
Q: May the following legal actions decision. Paramount Insurance Corp. vs.
involving the corporation be enforced by A.C. Ordoñez Corporation and Franklin
or against the corporation beyond the Suspine, G.R. No. 175109, August 6, 2008.
three-year liquidation period? Discussion:
1. Action filed during the lifetime of the Same reason, no right or remedy shall be
corporation? impaired on account of dissolution.
A:Yes
Slide: Slide:
The trustee (of a dissolved corporation) may Generally, liquidation is the necessary
commence a suit which can proceed to final consequence of dissolution. However,
judgment even beyond the three-year period winding up is the sole activity of a dissolved
of liquidation. No reason can be conceived corporation that does not intend to
why a suit already commenced by the incorporate anew. If it does, however, it is not
corporation itself during its existence, not by unlawful for the old board of directors to
a mere trustee who, by fiction, merely negotiate and transfer the assets of the
continues the legal personality of the dissolved corporation to the new corporation
dissolved corporation, should not be intended to be created as long as the
accorded similar treatment – to proceed to stockholders have given their consent. Chung
final judgment and execution thereof. Indeed, Ka Bio vs. Intermediate Appellate Court,
the rights of a corporation that has been G.R. No. 71837, July 26, 1988.
dissolved pending litigation are accorded
protection by Section 145 of the OCC (now 2. Action filed during the three-year
Section 184 of the RCC) which provides "no liquidation period?
right or remedy in favor of or against any A: Yes, the trustee appointed by the
corporation, its stockholders, members, corporation may initiate a suit during the
directors, trustees, or officers, nor any three year liquidation period, which may
liability incurred by any such corporation, continue even beyond the said period. As
stockholders, members, directors, trustees, or pointed out, in Gelano vs. Court of Appeals,
officers, shall be removed or impaired either it was held that the lawyer handling the case
by the subsequent dissolution of said for the corporation is deemed a trustee with
respect to that case. In Clemente vs. Court of c) by the receiver that the SEC may
Appeals, it was held that in the absence of a appoint upon judgment dissolving
trustee formally appointed, the board of the corporation after hearing the
directors shall be deemed the trustees of the corporation's petition for voluntary
corporation to carry out the liquidation of the dissolution; and
corporation. d) by the rehabilitation receiver or
Moreover, it is clear under Section 184 of the liquidator appointed by the
RCC that "no right or remedy in favor of or court after judgment on a petition for
against any corporation, its stockholders, liquidation involving an insolvent
members, directors, trustees, or officers, nor debtor.
any liability incurred by any such
corporation, stockholders, members, a. By the corporation itself
directors, trustees, or officers, shall be Under Section 139 of the RCC, the
removed or impaired either by corporation is granted a period of three years
the subsequent dissolution of said after dissolution, whether voluntary or
corporation. involuntary, to wind up it bffairs. Ideally, the
winding-up process should be completed in
3. Action filed more than three years from three years. Otherwise, it should appoint a
the dissolution of the corporation? trustee to carry out the liquidation even
A: No, As previously expounded, an action beyond three years. But, in the absence of an
filed more than three years from the appointed trustee, the board of directors shall
dissolution of the corporation should be be deemed the trustees of the corporation.
dismissed since by that time the corporation b. By the trustee appointed by the
lacks the capacity to sue because it no longer corporation
possesses juridical personality by reason of Under Section 139 of the RCC, at any time
its dissolution. during said three (3) year liquidation period,
While there are cases that a corporation may the corporation is authorized and empowered
still sue, even after it has been dissolved and to convey all of its property to a trustee for
despite the lapse of the three-year liquidation the benefit of stockholders, members,
period, the corporations involved in those creditors and other persons in interest. After
cases filed their respective complaints while any such conveyance by the corporation of its
they were still in existence. In other words, property in trust for the benefit of its
they already had pending actions at the time stockholders, members, creditors and others
that their corporate existence was terminated. in interest, all interest which the corporation
Alabang Corporation, Development vs. had in the property terminates, the legal
Alabang Hills Village Association and Rafael interest vests in the trustee, and the beneficial
Tinio, G.R. No. 187456, 02 June 2014. interest in the stockholders, members,
creditors or other persons-in-interest.
Slide: The trustee is not bound by the three-year
Q: What are the methods of liquidation? period. What is important is the completion
A: There are four methods of liquidation, of the liquidation process so that creditors
namely: will be paid and the residual assets are
a) by the corporation itself; distributed to the stockholders.
b) by the trustee duly appointed by the c. By the Receiver appointed by the
corporation; SEC
Under Section 135 of the RCC, the SEC shall jurisdiction of the regular courts. The trial
proceed to hear the petition (filed by a court is in the best position to convene all the
corporation where creditors are affected) and creditors of the corporation, ascertain their
try any issue raised in the objections filed; claims, and determine their preferences. GR
and if no such objection is sufficient, and the No. 161771, February 15, 2012.
material allegations of the petition are true, it
shall render judgment dissolving the Discussion:
corporation and directing such disposition of Q: Now is it the Special Commercial
its assets as justice requires, and may appoint Courts that has jurisdiction to ascertain
a receiver to collect such assets and pay the those claims?
debts of the corporation. A: There is one author that opined that it us
The receiver represents the SEC, as well as the SCA, but that's not me. It’s not the SCA,
the stockholders and creditors. The receiver its the RTC. Because those creditors may not
is not bound by the three year liquidation have intra-corporate relationship with the
period. Pepsi Cola Products Philippines vs. corporation so its more correct to say, that
Court of Appeals, G.R. No. 145855, RTC and not those designated to hear intra-
November 24, 2004.
corporate disputes.
Slide:
The appointment of a receiver operates to
It should be noted that the power of the SEC
suspend the authority of a corporation and its
to appoint a receiver existed even under the
directors and officers over its property and
OCC and retained under the RCC despite the
effects, such authority being reposed in
ruling in Bank of the Philippine Islands vs.
the receiver. Thus, a corporate officer had no
Eduardo Hong. It is submitted that the
authority to condone a debt. Victor Yam &
receiver may carry out the liquidation of the
Yek Sun Lent, doing business under the name
corporation if the creditors and the
and style of Philippine Printing Works vs. the
corporation are able to agree among
Court of Appeals and Manphil Investment
themselves on how the creditors' claims shall
Corporation, G.R. No. 104726, February 11,
be satisfied. Otherwise, the RTC should carry
1999.
out the liquidation process.
Discussion:
Q: In the case of BPI vs. Hong, who will d. By the rehabilitation receiver or the
carry out the liquidation of the liquidator appointed by the
corporation? is it the receiver appointed competent RTC in cases involving
by the SEC or the court? insolvent debtor under FRIA.
A: Slide: The receiver who may be appointed by the
In Bank of the Philippine Islands vs. Eduardo SEC is different from the rehabilitation
Hong, the Supreme Court held, however, that receiver that the competent Regional Trial
while the SEC has jurisdiction to order the Court may appoint in cases involving the
dissolution of a corporation, jurisdiction over rehabilitation of an insolvent debtor under
the liquidation of the corporation now FRIA.
pertains to the appropriate regional trial In cases falling under FRIA, the liquidation
courts. This is the correct procedure because of the debtor will be carried out by the
the liquidation of a corporation requires the rehabilitation receiver or the liquidator
settlement of claims for and against the appointed by the court.
corporation, which clearly falls under the
Under Section 25 of the FRIA, the incorporation. It has no debts but owns a
Rehabilitation Court may convert a petition prime property located in Quezon City.
for rehabilitation to liquidation if there is no How would the said property be liquidated
showing that the debtor may be rehabilitated. among the five stockholders of
In which case, the Rehabilitation Receiver the said corporation?
may perform the functions of the liquidator. A: The prime property of "X" Corporation
can be liquidated among the five
stockholders by dividing or partitioning it
The insolvent debtor may also file a petition
among themselves in any of the following
for voluntary liquidation or be the subject of
ways:
a petition for involuntary liquidation by his
a. By physical division or partition
creditors. In either case, if the petition is
based on the proportion of the values
sufficient in form and substance, the
of their stockholdings; or
Rehabilitation Court shall issue the Order of
b. Selling the property to a third person
Liquidation. Such order has the effect of
and dividing the proceeds among the
dissolving the corporation and title to the
five stockholders in proportion to
properties of the debtor shall be transferred to
their stockholdings; or
the Liquidator who will then carry out the
c. After the determination of the value
liquidation of the corporation.
of the property, by assigning or
transferring the property to one
stockholder with the obligation on
Q: How are the assets of the corporation the part of said stockholder to pay the
distributed during the liquidation other four stockholders the amount/s
process? in proportion to the value of the
The assets of the corporation shall be used to stockholding of each. 2001 Bar
pay off the claims of various creditors based Exam.
on the law on concurrence and preference of
Discussion:
credit. The residual assets shall then be
So if you have 5 SHs and the property is
distributed to the holders of the preferred
worth 50M, one of them will acquire it then
shares of stock, if any, then to the holders of
pay 10M (not sure, medyo inaudible) each to
common shares based on their agreement, if
the other SH in proportion to their
any, otherwise, in proportion to their
shareholdings.
respective shareholdings in the corporation.
Note that SEC approval is not required in the
In another bar exam question, there's another
approval of the distribution or liquidation of
option: whether or not the SEC will be the
the assets of the dissolved corporation. This
one to decide on how to distribute - now that
falls within the authority of the directors and
option is clearly not allowed because as we
stockholders or the duly appointed trustee or
said the SEC has not participation, no
receiver.
authority, no say in the liquidation of the
Any asset distributable to the creditor or
assets of the dissolved corporation.
stockholder or member who is unknown or
cannot be found shall be escheated in favor of
the national government.
Q: Are the rules on liquidation for private
Q: X” Corporation shortened its corporate corporations organized under the RCC
life by amending its articles of applicable for banks?
A: We took this up on SPCL, the case of not there, and would be tantamount to
Bokod Benguet, the issue is: W/N a bank may judicial legislation. There are substantial
be dissolved and liquidated without obtaining differences in the procedure for involuntary
tax clearance. dissolution and liquidation of a corporation
Slide: under the Corporation Code, and that of a
The rules on liquidation for corporations do banking corporation under the New Central
not apply for banks, which shall be covered Bank Act, so that the requirements in one
by the applicable provisions of Republic Act cannot simply be imposed in the other.
No. 7653, otherwise known as "The New Besides, to require a tax clearance prior to the
Central Bank Act," as amended, and dissolution, closure and liquidation of the
Republic Act No. 3591, otherwise known as bank will impair the authority of BSP to close
the Philippine Deposit Insurance Corporation a bank and of the PDIC to carry out the
Charter, as amended.
liquidation of the closed bank.
This provision of the RCC is based on the
Supreme Court decision in the case of in Re:
Petition for Assistance in the Liquidation of Discussion:
the Rural Bank of Bokod (BENGUET) vs. Q: May congress dissolve private
Bureau of Internal Revenue ("BIR"). In that corporations?
case, the BIR argued that Philippine Deposit A: Yes, congress may dissolve all private
Insurance Corporation( "PDIC" ) could not corporations even those organized under
proceed with the dissolution and liquidation special law. Why? because corporations are
of the bank without first securing tax creatures of law, the RCC governs the
clearance as required under the Tax Code and formation of private corporations and special
its agreement with the SEC. It was held that laws are passed to organized GOCCs. If
Section 30 of the New Central Bank Act lays congress repeals that special law, the special
down the proceedings for receivership and corp is dissolves. Similarly if Congress
liquidation of a bank. The said provision is repeals RCC, then all corporations organized
silent as regards securing a tax clearance under it is likewise dissolved but without
from the BIR. G.R. No. 158261, December prejudice is to vested rights. While it can be
18, 2006. done by Congress, it does not mean that it
should be done.
The omission, nonetheless, cannot compel
the Supreme Court to apply by analogy the Slide:
tax clearance requirement of the SEC, as Q: Other than dissolution when else may
stated in Section 52(C) of the Tax Code of the assets or property of the corporation
1997 and BIR-SEC Regulations No. 1, since, be distributed?
again, the dissolution of a corporation by the A: For reduction of course of capital stock:
SEC is a totally different proceeding from the Except by decrease of capital stock and as
receivership and liquidation of a bank by the otherwise allowed by the RCC, no
Bangko Sentral ng Pilipinas ("BSP"). The corporation shall distribute any of its assets
Supreme Court cannot simply replace any or property except upon lawful dissolution
reference by Section 52(C) of the Tax Code and after payment of all its debts and
of 1997 and the provisions of the BIR-SEC liabilities
Regulations No. 1 to the “SEC” with the
"BSP." To do so would be to read into the law
and the regulations something that is simply
latter issued a draft payable to the evidence of the truth of such factual
order of Llorente. allegation. If in fact, a foreign corporation
That draft was drawn against a bank does not do business here, that is a matter that
in Sydney. So Llorente is the payee, should be ventilated in the trial on the merits
he went to Australia, in Star City, to but not in a motion to dismiss. Signetics
play in their casino, and to be Corp. vs. Court of Appeals, G.R. No. 105141
upgraded and given certain privileges (Resolution), August 31, 1993.
he negotiated that draft to Star City,
thus the latter became the holder of
It does not follow that the insurer, as
the draft.
subrogee, has also no capacity to sue in this
Llorente claims that Star City,
jurisdiction simply because the insured party
cheated him, so he issued a stop
(which is a foreign corporation) has no legal
payment order to Banco de Oro, and
capacity to sue in the Philippines. The rights
the latter directed the drawee of the
inherited by the insurer pertain only to the
draft not to pay Star City.
payment it made to the insured and which
So when Star City presented the draft
amount it now seeks to recover from the
it was dishonored. Star City now filed
shipping company which caused the loss
an action to the Philippines to enforce
sustained by the insured. The capacity to sue
the liability of Equitable PCI bank as
is a right personal to its holder. It is conferred
drawer of the draft and Llorente.
by law and not by the parties. The insurer has
Q: Can Star City enforce the liabilities of
satisfactorily proven its capacity to sue, after
Banco de Oro?
having shown that it is not doing business in
A: Even though it has no license to do
the Philippines, but is suing only under an
business in the Philippines, the SC said that it
isolated transaction, i.e under the one marine
is a casual or an isolated transaction. The
insurance policy issued in favor of the
enforcement of the warranties of a drawer is
consignee/insured. Lorenzo Shipping Corp.
a casual or isolated transaction, departed,
vs. Chubb and Sons, G.R. NO. 147724, June
divorced or detached from the usual business
8, 2004.
of Star City. Thus, it does not need a license
to sue in the PH.
Q: When is a foreign corporation deemed
Slide: doing business in the Philippines?
Q: What confers upon the foreign A: The term "doing business" is not
corporation the legal capacity to sue in the specifically defined by the OCC and the
Philippines? RCC. There are certain activities, however,
A: The foreign corporation has the legal which are deemed as doing business under
capacity to sue if it has procured from the Republic Act No. 7042, otherwise known as
SEC a license to do business or it is suing on the Foreign Investments Act of 1991 (“FIA").
a casual or isolated transaction. Under the FIA, doing business shall include:
For purposes of acquiring jurisdiction by way a. soliciting orders;
of service of summons, there is no need to b. service contracts;
prove first the fact that the defendant is doing c. opening offices, whether called
business in the Philippines. Where a "liaison" offices or branches;
complaint alleges that the defendant has an d. appointing representatives or
agent in the Philippines, summons can distributors domiciled in the
validly be served thereto even without prior Philippines or who in any
calendar year stay in the country for conclusion that the foreign corporation is
a period or periods totaling one doing business:
hundred eighty (180) days or more; 1. The distributor or Rep. is domiciled in
e. participating in the management, the PH for 180 days or more.
supervision or control of any 2. The Dist. or rep. is exclusive to the
domestic business, firm, entity or foreign corporation without any
corporation in the Philippines, and dependent operations.
f. any other act or acts that imply a The moment that the distributor has
continuity of commercial dealings or dependent operations or not exclusive to the
arrangements, and contemplate to FC then the presence of the distributor on
that extent the performance of acts or behalf of the FC does not mean that it is doing
works, or the exercise of some of the business in PH
functions normally incident to, and
in progressive prosecution of, (E) Participation in the management:
commercial gain or of the purpose Take note what amounts to doing business is
and object of the business to participate in the management, supervision
organization. or control, not just to become a SH of the
corporation. So passive investment in the
equity, be a SH of a domestic corp, exercise
Discussion:
the right of SH, enforcement of those rights
(A) Soliciting orders:
in case of violation, all of those can be
This is the case of BMW vs Hahn. Before
pursued by FC despite of lack of license.
BMW entered into contracts with distributors
Voting, receiving dividends, right of pre-
in the Philippines, a person accepts orders on
emption is violated so FC sued to enforce this
behalf of BMW and once a customer places
right, no need for a license
an order with this person it is faxed or sent to
Q: What should the FC contend with if it
Germany and BMW will send or ship the car
is just investment in equity? What is the
to the buyer.
hurdle?
Q: So is that doing business?
A: W/N the investment exceeds or within the
A: Yes, soliciting orders is doing business.
limit allowed by law for a certain type of
economic activity.
(B) Service Contracts:
Rendering services post-sale or after sale of
(F) Any other act or acts:
the product owned, manufactured and
It says any other act, not necessarily more
produced by the foreign corporation.
than one act.
Q: So is it possible then that one act of a
(C) Opening offices:
FC means doing business?
Whether it is a liason office or a branch,
A: SC said yes, SEC likewise said yes, the so-
subsidiary, bottom line: the presence of the
called characterization test. If that one act is
foreign corporation in the Philippines by
of such a character that it shows the
opening offices is tantamount to doing
intention of the FC to obtain the purpose of
business.
incorporation here in the PH then that FC
needs the license from the SEC.
(D) Appointment of Distributors:
The classic example: The case of Hutchinson
Take note that there are 2 conditions so that
vs, SBMA, 2000
the appointment of a distributor warrants the
A: It is the misrepresentation.
RECITATION
DD: It is the basis, the misrepresentation
but what will be your relief when you file a
Recitation petition with the RTC for intracorporate
controversy?
Q: An investor purchased shares of stock
of ABC corporation, ABC sold securities A: Reimbursement
to investors and investors in our example
purchased shares from ABC Corporation DD: To get a REFUND to get the value of
based on the statement made by the issuer the shares, on the value of the investment
company in its registration statement, and that cannot be done or and or
basically highlighting the profits of ABC damages
corporation. It turns out that there was an
understatement of the loss and there and DD: Can you not file a claim for refund
overstatement of the income of the issuer with the SEC for the value of the shares?
corporation, basically there is A: No, because the refund or refund is mere
misrepresentation. Well, the question is incidental to the intracorporate dispute
what are the remedies available to Juan
dela cruz as a stockholder who bought DD: Can you ask the RTC to impose upon
stocks based on false misrepresentation? the corporation who sold the shares based
on false representation?
A: The remedy of the investor is to file a
complaint before the SEC for violation of the A: The SEC can impose admin sanctions
RCC.
DD: So you can file a petition with the
DD: So file a complaint, alright, with the RTC to file a refund, but the RTC cannot
SEC? impose admin sanctions, on or against the
corporation, the directors, officers,
A: The investor may file before the RTC responsible for the violation. Can you not
because it is an intra-corporate dispute. ask the RTC to dissolve the corporation?
DD: So he may file a petition which is A: No, you cannot.
intra-corporate in nature, so what would
the relief be prayed for in the petition? SECOND PERSON RECITATION
A: Collection for damages? DD: Do you agree with [] that the remedies
available to the investor are to file a
DD: Shouldn’t it be with the regular civil petition with the RTC to refund the value
courts? of the shares of investment plus damages,
and that the damages are only incidental
A: The special commercial court has to the claim for refund and will not affect
jurisdiction because it is mere incidental.
the intracorporate nature of the petition may impose sanctions after notice and
and second the RTC cannot impose hearing
administrative sanctions, but it is the SEC
and the remedy is to likewise file a Q: What are the sanctions that may be
complaint for violation of the SRC and the imposed under section 158 of the RCC?
imposition of the corresponding admin
sanctions? A: The SEC may issue a monetary fine
it is only one transaction because it shows the The rights of the director of the FC are
intention of the foreign corporation to attain violated, it can be enforced even without a
the purpose of its incorporation. Hutchinson license
Ports Limites v. Subic metropolitan
Authority. If the rights of a stockholder are violated such
as the right of preemption, inspection,
Discussion of dean divina: financial right, appraisal right if these rights
In Litton Mills v. CA, a FC made a 1 time of the FC may enforce those rights in the
purchase of soccer uniforms but involving Philippines without a license from the SEC
more than 3,000 pieces and since the FC is Any suit that is related to the enforcement to
engaged in sale of the jerseys, the one time the right of the FC as a stockholder does not
purchase is considered as doing business. need to have a license
Slide:
c. Where the contract provides the Discussion:
Philippine court as the exclusive Contract entered into FC without a license is
venue for court action, to the not void, it is merely voidable and the defect
exclusion of other courts can be cured by getting a license.
Stipulation as to venue which is not While the contracts may be cured by the act
permissive but exclusive in nature is of obtaining a license, it is without prejudice
binding to the parties. to criminal prosecution for doing business
without a license.
Discussion:
If it is exclusive, then the foreign corporation Slide:
has no other option but to file in the In IENT v. Tullett Prebon, the supreme court
Philippines, otherwise a motion to dismiss on however, rules that its declaration in Home
improper venue may be filed. insurance company v. Eastern shipping lines
that ”the prohibition against doing business
Slide: without first securing a license is now given
d. A license to engage in business a penal sanction which is also applicable to
granted subsequent to the transaction other violations of the corporation code under
enables the foreign corporation to sue the general provisions of section 144 of the
on contracts executed before grant of code” is unmistakably an obiter dictum. The
license. issue in the Home Insurance case was
whether or not a foreign corporation
In one case, the supreme court rules that previously doing business here without a
a contract entered into by a foreign license has the capacity to sue in the courts
corporation not licensed to do business in when it had already acquired the necessary
the Philippines is not void even as against license at the time of the filing of the
the erring foreign corporation. The lack complaints. The statement regarding the
of capacity at the time of execution of the supposed penal sanction was not essential to
contracts was cured by the subsequent the resolution of the case as none of the
grant of a license to engage in business. parties was being made criminally liable.
It was likewise held in this case that while
the grant of the license retroacts to the Slide:
date of the transaction, this is without e. When the unlicensed foreign
prejudice to criminal prosecution against corporation foreign corporation has
the foreign corporation for doing business domestic corporation as a co-
without a license. The basis of criminal plaintiff/petitioner
liability is section 144 of the OCC now
section 170 of the RCC THAT ANY This is necessary to prevent multiplicity of
VIOLATION of the provisions of the suits.
corporation code or its amendments not
otherwise specifically penalized therein Discussion:
shall be punished by a fine or by Let’s say we have a domestic borrower that
imprisonment (The RCC retained the obtained loans from various lenders. Let’s
language but removed the penalty of say the single borrower’s limit of a lender
imprisonment) bank, is not enough to accommodate the
single borrower’s unit for the borrower so contracted with and been benefited by said
they need a group of lenders, it’s called a corporation where such party is aware that
syndicated loan agreement which means a the foreign corporation is doing business in
loan facilitated by various lenders its because the Philippines without a license and received
the loan is so huge that the SBL of a single benefits from transacting business with it,
lender is not enough, so a pool is needed. one under the principle of estoppel. Merril Lynch
of those lenders is a foreign corporation Future, Inc. vs. Court of Appeals, GR NO.
There is a loan agreement signed by the 97816, July 24, 1992
borrower and various lenders and it is A party is estopped from challenging the
violated and one of the lenders filed in the personality of a corporation after having
Philippines and the FC split the cause of acknowledged the same by entering into a
action and filed abroad it is impractical, so contract with it. The principle is applied to
the foreign corporation can join the lender prevent a person contracting with a foreign
that filed here in the Philippines, and it does corporation from later taking advantage of its
need a license to avoid multiplicity of suits. non-compliance with the statutes, chiefly in
cases where such person has received the
Slide: benefits of the contract. Global Business
Holdings, Inc., vs. Surecomp Software, B.V.,
Slide: G.R. No. 173463, October 13, 2010;
F. Under the doctrine of estoppel when the Steelcase, Inc., vs. Design International
counterparty is estopped or precluded from Selections, Inc., G.R. No. 171995, April 18,
questioning the lack of legal capacity of the 2012.
foreign corporation, as held in the following
cases:
A foreign corporation which licensed a Slide:
domestic corporation to manufacture and Q: Who may be a resident agent ?
market its products and equipment is doing A: A resident agent may be either an
business in the Philippines and cannot sue the individual residing in the Philippines or a
domestic corporations if it has no license to domestic corporation lawfully transacting
do business in the Philippines and cannot sue business in the Philippines: Provided, that an
the domestic corporations if it has no license individual resident agent must be of good
to do business in the Philippines. For being in moral character and of sound financial
pari delicto, the domestic corporation cannot standing: Provided, further, That in case of a
ask the courts to prohibit the foreign domestic corporation who will act as a
corporation from terminating its contact and resident agent, it must likewise be of sound
giving the license to produce and market its financial standing and must show proof that
products to another. Top-Weld it is in good standing as certified by the SEC.
Manufacturing, Inc. vs. Eced, S.A., G.R. No. Note that the removal of the resident agent
L-44944, August 9, 1985; See also Granger and the failure to appoint a replacement can
Associates vs. Microwave Systems, Inc., G.R. be a ground for revocation or suspension of
No. 79986. September 14, 1990 its license to do business. 2012 Bar Exam.
Slide:
A foreign corporation doing business in the Discussion:
Philippines may sue in the Philippine courts For a grant of a license in favor of a FC the
although it has no license to do business here SEC requires that there must be a nomination
against a Philippine citizen who had of a resident agent, he is authorized to receive
summons and other court processes, there is c. Failure¸ after change of its resident
a need to appoint so that the FC is subject to agent or address, to submit to the SEC a
the jurisdiction of the court and subject to statement of such change as required by this
regulation by the SEC. Title;
d. Failure to submit to the SEC an
authenticated coy of any amendment to its
Q: Is the resident agent of a foreign articles of incorporation or bylaws or of any
corporation doing business in the articles of merger or consolidation within the
Philippines necessarily authorized to time prescribed by this Title;
execute the requisite certification against e. A misrepresentation of any material
non-forum shopping? matter in any application, report, affidavit or
other document submitted by such
A: The resident agent of a foreign corporation corporation pursuant to this Title;
doing business in the Philippines is not f. Failure to pay any and all taxes,
necessarily authorized to execute the imposts, assessments or penalties, if any,
requisite certification against forum lawfully due to the Philippine Government or
shopping. Under the Corporation Code, (then any of its agencies or political subdivisions;
and now) the resident agent was not g. Transacting business in the
specifically authorized to execute a Philippines outside of the purpose or
certificate of non-forum shopping as required purposes for which such corporation is
by the Rules of Court. This is because while authorized under its license;
a resident agent may be aware of actions filed h. Transacting business in the
against his principal, such resident agent may Phillipines as a agent of or acting on behalf
not be aware of actions initiated by its of any foreign corporation or entity not duly
principal, whether in the Philippines, against licensed to do business in the Philippines; or
a domestic corporation or private individual, i. Any other ground as would render it
or in the country where such corporation was unfit to transact business in the Philippines.
organized and registered, against a Philippine
registered corporation or a Filipino citizen. Discussion:
Expertravel & Tours, Inc. vs. CA, G.R. No. It is long enumeration but to summarize:
152392. May 26, 2005. 1. Violation by the terms of its license
2. violation of the laws or rules issued
Q: When may the SEC revoke or suspend by the SEC governing FC
the license of a foreign corporation to 3. violation of foreign laws in so far as it
transact business in the Philippines? affects the foreign license of the
A: Without prejudice to other grounds Philippines
provided under special laws, the license of a
foreign corporation to transact business in the
Philippines may be revoked or suspended by
the SEC upon any of the following grounds: Slide:
a. Failure to file its annual report or pay Upon the revocation of the license to transact
any fees as required by the RCC; business in the Philippines , the SEC shall
b. Failure to appoint and maintain a issue a corresponding certificate of
resident agent in the Philippines as required revocation, furnishing a copy thereof to the
by this Title; appropriate government agency in the proper
cases.
question demands the exercise of sounds SCB and certain officials for violation of the
administrative discretion requiring the SRC. The DOJ dismissed Baviera’s
specialized knowledge and expertise of said complaint for violation of the doctrine of
administrative tribunal to determine technical primary jurisdiction. Both the Court of
and intricate matters of fact. The Securities Appeals and the Supreme Court sustained the
Regulation Code (“SRC”) is a special law. Its Department of Justice.
enforcement is particularly vested in the Slide:
SEC. Hence, all complaints for any violations Q: What are the revisions under the RCC
of the SRC and its implementing rules and on the powers and functions of the SEC?
regulations should be filled with the SEC. A:
Discussion: So you need to file it first with a. The SEC may investigate an alleged
the SEC if it is criminal in nature and if the violation of the RCC or any of its own rules,
SEC finds that there is a violation, it will refer regulations, or orders.
it to the DOJ. There are some exceptions to b. It may publish its findings, orders,
this case. opinions, advisories, or information
You Cannot bypass the SEC when it comes concerning any such violation, as may be
to criminal violations like the SRC, if you do relevant to the general public or to the parties
so it will be dismissed. concerned, subject to the provisions of
The doctrine of primary jurisdiction is not Republic Act No. 10173, otherwise known as
applicable to civil liabilities, you can directly the “Data Privacy Act of 2012”, and other
file it to the RTC no need to go to the SEC pertinent laws. The SEC, however, shall give
first. reasonable notice to and coordinate with the
appropriate regulatory agency prior to any
Slide: such publication involving companies under
In the case of Manuel Baviera vs. Standard their regulatory jurisdiction.
Chartered Bank, et al., Baviera was the c. The SEC, through its designated
former head of the HR Service Delivery and officer, may administer oaths and
Industrial Relations of Standard Chartered affirmations, issue subpoena and subpoena
Bank-Philippines (“SCB”). SCB is a foreign duces tecum, take testimony in any inquiry or
banking corporation duly licensed to engage investigation, and may perform other acts
in banking, trust, and other fiduciary necessary to the proceedings or to the
business. It solicited from local residents investigations.
foreign securities called “GLOBAL THIRD d. Whenever the SEC has reasonable
PARTY MUTUAL FUNDS” (“GTPMF”), basis to believe that a person has violated, or
denominated in the US dollars. These is about to violate the RCC, a rule, regulation,
securities were not registered with the SEC. or order of the SEC, it may direct such person
Baveria entered into an Investement Trust to desist from committing the act constituting
Agreement with SCB wherein he purchased the violation.
securities upon the bank’s promise of a 40% Slide:
return on his investment and a guarantee that The SEC may issue a cease and desist order
his money is safe. Unfortunately, Baveria ex parte to enjoin an act or practice which is
learned that the value of his investment went fraudulent or can be reasonably expected to
down. After a few months, he demanded the cause significant, imminent, and irreparable
return of his investment but SCB rejected it danger or injury to public safety or welfare.
claiming Baviera’s investment is regular. The ex parte order shall be valid for a
Baverie filed a criminal complaint against maximum period of twenty (20) days,
without prejudice to the order being made g. Certain violations of the RCC are
permanent after due notice and hearing explicitly considered criminal offenses.
Thereafter, the SEC may proceed h. The penalty of imprisonment was
administratively against such person in removed for violations of right of inspection
accordance with Section 158 of the RCC, and other violation of the RCC. The
and/or transmit evidence to the Department imposable penalty is a fine.
of Justice for preliminary investigation or i. If the offender is a corporation, the
criminal prosecution and/or initiate criminal penalty may, at be discretion of the court, be
prosecution for any violation of the RCC, imposed upon such corporation and/or upon
rule, or regulation. its directors, trustee, stockholders, member,
officers, or employees responsible for the
e. It may cite for contempt, after notice violation or indispensable to its commission.
and hearing, any person who, without j. Anyone who shall aid, abet, counsel,
justifiable cause, fails or refuses to comply command, induce, or cause any violation of
with any lawful order, decision, or subpoena the RCC, or any rule, regulation, or order of
issued by the SEC and fined in an amount not the SEC shall be punished with a fine not
exceeding Thirty thousand pesos exceeding that imposed on the principal
(P30,000.00). When the refusal amounts to offenders, at the discretion of the court, after
clear and open defiance of the SEC’s order, taking into account their participation in the
decision, or subpoena, the SEC may impose offense.
a daily fine of One thousand pesos Discussion:
(P1,000.00) until the order, decision, or If these provisions are familiar to you, you
subpoena is complied with. have read them in the SRC, about CDO,
f. If, after due notice and hearing, the subpoena, about fine of course the data
SEC finds that any provision of the RCC, privacy are new most of these provisions are
rules or regulations, or any of the SEC’s found in the SRC, they are not a duplication.
orders has been violated, the SEC may These provisions are intended to enforce the
impose any or all of the following sanctions, RCC, the same provisions in SRC are
taking into consideration the extent of intended to strengthen the powers of the SEC
participation, nature, effects , frequency and to enforce and implement the SRC.
seriousness of the violation:
Q: What are the administrative sanctions
I. Imposition of a fine ranging from that the SEC may impose if it finds that
Five thousand pesos (P5,000.00) to Two any provision of the RCC or any of the
million pesos (P2,000,000.00). and not more SEC’s orders has been violated?
than One thousand pesos (P1,000.00) for
each day of continuing violation but in no A: The SEC may impose administrative
case to exceed Two million pesos sanctions against the corporation any or all of
(P2,000,000.00); the following sanctions, taking into
II. Issuance of a permanent cease and consideration the extent of participation,
desist oder; nature, effects, frequency and seriousness of
III. Suspension or revocation of the the violation.
certificate of incorporation; and a. Imposition of a fine ranging from
IV. Dissolution of the corporation and Five thousand pesos (P5,000.00) to Two
forfeiture of its assets under the conditions in million pesos (P2,000,000.00), and not more
Title XIV of the RCC than One thousand pesos (P1,000.00) for
A: They are different. The SRC is a different engage in any act or practice constituting a
sourcr of authority for the SEC to issue a violation of any provision of the SRC, any
cease and desisit order. rule, regulation or order thereunder, or any
The grounds under the CDO under SRC and rule of an exchange, registered securities
SEC are almost the same bu in the case of association, clearing agency or other self-
GSIS v CA. regulatory organization.
The provision additionally requires a finding
Slide: that “there is a reasonable likelihood of
In GSIS v. CA, GSIS was a stockholder of continuing [or engaging in] further or future
Merlaco. It was able to obtain a cease and violations by such person.” The maximum
desist order from the SEC to enjoin the Lopez duration of the CDO issued under section
family, then the controlling stockholder of 53.3. is 10 days
Merlalco, from using and voting the proxies
in the election of directors, for alleged Slide:
violation of the SRC rules on proxy The third basis for the issuance of a CDO is
solicitation. The CDO signed by only one section 64 of the SRC, This CDO is founded
SEC commissioner, did not accordingly state on a determination of an act or practice,
the exact provision of the SRC which was which unless restrained, will operate as a
violated. It was held that there are three fraud on investors or is otherwise likely to
distinct bases for the issuance by the SEC of cause grave or irreparable injury or prejudice
the cease and desist order. The first, under to the investing public.
Section 5(i) of the SRC, is predicated on a
necessity “to prevent fraud or injury to the Discussion:
investing public” No other requisite or detail Even if there are three grounds for the
is tied to this CDO authorized under Section issuance of a CDO the SC said for the CDO
5(i) SRC to be valid must specify the provision
applicable, is it under 5.1? 53.3? 64.1?
Discussion:
We know what a CDO is it is basically an There is no such thing as a shotgun CDO. It
injunction that the SEC issues to enjoin the must be specified what law is violated.
performance of an act but don’t call it an Following gsis v ca, If the CDO is issued
injunction it has the same effect as an under the SRC, the specific provision must be
injunction but from the perspective of the mentioned, without reference to the provision
regulator it is a cease and desist order. Even violated, it is void.
though you have provisions on the issuance
of the CDO under the RCC you likewise have Also the CDO, it must be signed also by 3 out
the same provisions of issuance under the of 5 commissioners, at least majority if
SRC, they are almost identical. But the SC signed by one only as in the GSIS case, it is
said in the GSIS case that under the SRC void.
there are three provisions governing the
issuance of the CDO 5.i, 53.3, and 64.1 Slide:
Section 64.1 plainly provides three
Slide: segregrate instances upon which the SEC
The second basis, found in Section 53.3 of the may issue the CDO under this provision (1)
SRC, involves a determination by the SEC after proper investigation or verification (2)
that “any person has engaged or is about to motu propio or (3) upon verified complaint
enemy so the RTC pasay has no jurisdiction the SEC even though the petition may
because this is not an ordinary civil dispute ostensibly raise a violation of the SRC. If the
so it is the rules on intra-corporate proxies were sought to be voted on any non-
controversy applies, so it should be filed in intra-corporate matter, such as approval of
the RTC of the city where the principal office certain corporate acts under the RCC, the
of Meralco is located or the SEC. SEC had jurisdiction to rule on issues related
We filed it in Pasay first, withdrew it to to validation of proxies. This ruling was
prevent forum shopping just to confuse the reiterated in Securities and exchange
enemy and we filed it before the SEC in the commission v. Omico and CA.
afternoon, and a CDO was issued by the SEC
to restrain the Lopez family from voting by Discussion of dean divina:
the use of proxies that it would cause fraud To simplify the SC said: if the proxies will be
and irreparable injury to the public. used in relation to election of directors, it is
The Lopez family defied the CDO in this an election contest it is cognizable by the
case, arguing that the SEC has no jurisdiction RTC by city where the principal office is
to issue a CDO to restrain the use of proxies. located if proxies will be used in non-
That’s your ruling GSIS v. CA intracorporate items or any corporate acts
which require stock holders approval, the
Slide: SEC has jurisdiction.
A singular CDO could not be founded on
Section 5.1, Section 53.3 and Section 64 Under the rules on intracorporate
collectively. At the very least, the CDO under controversy, the validation of proxies is part
section 53.3 and under Section 64 have their of an election contest and is under
respective requisites and terms. It is an error intracorporate use, thus if proxies are used in
on the part of the SEC in granting the CDO the election of directors, it is cognizable by
without stating which kind of CDO as it is an the RTC.
act that contravenes due process of law.
Also, the fact that the CDO was signed, much The ruling was reiterated in Omico. The
less apparently deliberated upon by only one corsec accepted as valid the proxies of
commissioner likewise renders the order stockbrokers even if there was no written
fatally infirm. The SEC is a collegial body consent from the beneficial owner. So those
composed of a chairperson and 4 proxies were admitted in favor of one
commissioners. In order to constitute a stockholder group, so the other sh group
quorum to conduct buisness the presence of claimed there was a violation because there
at least three commissioners is required. was a violation since there was no written
consent
Slide:
It is also in this case that the Supreme Court The SC said that the proxies were used to
rules that if the proxies were obtained on elect the directors of the corporation it is
matters which are intra-corporate in nature, cognizable by the RTC
like the election of directors or determination
of quorum for the election of directors, any If they are sought and be used on an
issue about the validity and legality of the intracorporate matter, it is the RTC otherwise
proxies partakes of an election contest, the SEC will have jurisdiction.
falling under the rules on intra-corporate
controversy and outside the jurisdiction of Slide:
defined under be
pertinent prima
statutes facie
eviden
When there is ce of
a finding that corpor
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Section Any person At the dhearing,
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against and with be punished appropriate
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wers retaliate, ranging s before the
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SEC or Provided,
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not otherwise ; if the provided in
specifically violation is the RCC.
committed Liability
court, after taking into account their penalty is a fine, you file the complaint with
participation in the offense. the prosecutor’s office.
A: It is not a security. It only discloses the A: Yes. The developer constructs, sells units
rights and obligations of the parties. and the owner surrenders possession back to
the subsidiary and the subsidiary manages
Q: What are securities? and offers it for belithing to guests or
A: [The answer is in the latter discussion in interested parties, they pay and then the
the slides so I took the answer nalang from income deducting expenses shared by the
the brief explanation] subsidiary and the owners of those units.
eliminate insider trading, it starts with the There is our SRC and former securities act
aspiration to MINIMIZE it. patterned after the blue sky law, it is blue sky
The declaration should say “eliminate” law because beneath the blue sky there is
insider trading, but here it’s as if that insider nothing but hollow clouds.
trading cannot really be eliminated.
Q: How do we translate this into securities,
In sum, these ends can be divided into two: what is the most important provision of the
(1) the development of the capital market SRC?
and (2) to protect the investing public
The development of the capital market, it is A: That is as securities as defined by law shall
subsumed by the first one, establish a socially not be offered to the public unless registered
conscious and enhance wealth distribution – with the SEC.
all of these are for the development of the
capital market Q: What does “registered” means
A: it means you need to apply for registration
And then to protect investors, why is there a with SEC, you need to get a permission to sell
need to ensure full and fair disclosure about securities from the SEC to the public,
securities, minimize if not totally eliminate securities as defined by law
insider trading and other manipulative
devices and practices which create distortions Q: And how is the permit to sell issued by
in the free market – to promote the investing the government?
public
A: When you comply with the requirements
SLIDE for registration.
Q:What is the principal purpose of laws That’s why the law says you need to file a
and regulations governing securities in the registration statement – you need to apply for
Philippines? registration of securities in so doing you need
to disclose all information about the issuer,
A: The principal purpose of laws and the one who will issue and sell the securities
regulations governing securities in the and the securities that you will issue to the
Philippines is to protect the public against public.
nefarious practices of unscrupulous brokers
and salesmen in selling securities and to Therefore you need to include the name of the
protect the public against the imposition of issuer, who are the persons involved, the
worthless ventures and the sale of securities directors, officers, nature of operations,
which have no basis at all. performance for the past five years, how the
proceeds of the funds to be generated how
Hence, securities law provide for a system of will it be used, how will the funds be
registration of securities, registration of deployed?
brokers and dealers of securities, prohibitions
against manipulations and practices What is the nature of the securities? Are they
detrimental to the investing public and shares of stocks, bonds, notes?
measures for the protection of investors.
Describe them, if they are SS are they
Discussion of dean divina: preferred? If they are preferred are they
participating? Non-participating? All the Can they just invite investors? Anyone
things discussed in corpo will now come into interested to become a member of this
play when you discuss the nature and kind of theme park association later on? So you
securities will have the right to use the theme park to
be constructed, you will have an income
The purpose is to inform the public so they from the venture once it is fully
can make a decision whether or not they will operational. Can this be done? Can you
buy or sell those securities. just issue brochures? Invitations?
Through internet? Print media, to entice
The law does not guarantee that the public the public to invest and join you in having
will make money when they invest in the the best theme park? Can you do that? But
securities that the issuer will sell what the law those are securities to sell in the public
guarantees is that the public will be informed because they will be entitled to have a
before making a decision whether or not to share or a participation interest in a profit
buy the securities offered by the issuer sharing venture. You need to apply first a
registration and get a permit to sell from
This is accomplished by the system of the SEC, you need to disclose all info about
registration, making sure that the only you and the securities to be sold, you need
persons credited by SEC can deal with to do this otherwise, you will violate the
securities, so brokers, dealers salesmen must law, despite the best intentions
be accredited by the SEC
Slide
Without the system of registration, the public Q: Why is the SRC called a “truth in
will be deceived into buying securities which securities law”?
are worthless, that are beautiful in the surface
but nothing in the surface A: The SRC is called truth in securities law
because it requires the issuer to make full and
That’s why it’s Blue sky law, it is beautiful fair disclosure of information about securities
but beneath it nothing but empty clouds. being sold or offered to be sold within the
Philippines and penalizes manipulative and
EXAMPLE: fraudulent acts, devices and schemes. (Bar
Let’s say a corp pre-covid would like to 2015)
construct a theme park that will rival
Sentosa in Singapore and ocean park in Discussion of dean divina: Read lang the
HK, before covid but there is no point in slide
constructing a theme park now, Disney
land just laid off 38,000 employees because Slide:
very few go to the themed resorts. So
before covid, they wanted to construct a Q: What are the salient features of the
theme park that will rival the best theme SRC that are intended to protect the
parks in asia. And based on their estimate, investing public?
they need some legacy 3 billion pesos to
have the theme park, based on the specs A:
they want. They have 1-2 billion internally The following are the salient features of the
generated but they need 1 billion more SRC that are intended to protect the investing
from the public to finish the theme park. public
Are those SS? No, because if they have no SC then said that even assuming if not used
voting rights, they are not shares of stocks, for loans, only used for deposits for future
they are securities, just right to share to PDRs subscriptions, there is another law violated,
cannot be issued without the permit to sell, The SRC as these are securities and before
without the registration filed with the SEC sold should be registered with the SEC
Other examples include commercial paper, that can be sold in the market. The SPV buys
also called CP which is a short-term debt it a discount then sells to the public
instrument issued by companies to raise participations in the pool of underlying
funds generally for a time period up to one assets. As the consumers pay their debts,
year. They are typically issued by large payments are proportionately distributed to
corporations to cover short-term receivables the holders of the ABS.
and meet short-term financial obligations.
Discussion of DD:
Discussion of DD: So if it is commercial It is called asset-backed because its security,
paper it is subject to registration thus if not the value of which is based on the underlying
registered it cannot be sold. assets.
Slide: Example:
Warren buffet said that these ABS is a
Q: Are checks considered as securities? weapon of mass destruction it was the
downfall of Liman brothers and various
A: Checks constitute mere substitutes for investment houses and other banks that dealt
cash if so issued in payment of obligations in with institutions all over the world. That’s
the ordinary course of business transactions. why you have the 2007 financial crisis.
But when they are issued in exchange for a When you borrow money from the bank, the
big number of individual non-personalized bank conducts a credit investigation about
loans solicited from the public, numbering your background, about your capacity to pay,
about 700 in this case, the checks ceased to about your means of payment and the bank
be such. In such a circumstance, the checks will only lend you if you can pay based on
assume the character of evidence of investigation and if you have collateral
indebtedness. Gabionza v CA Let’s say a bank has 1B of loans, receivables
so the bank will collect based on the PN
DD: When a corp issues checks as a means So someone from wall street thought of an
of obtaining funds from the public, it is not a idea, why can’t he buy 1B receivables from
mere substitute for cash but becomes an the bank but it is bought at a discount, say
indebtedness and should be registered with 900M dollars, so this is what the liman
the SEC brothers did so it is true that there is a
discount but the bank need to extend effort to
Slide: collect and they have cash right away so what
will liman brothers do with these pool of
Q: What are asset-backed securities? receivables?
A: It is a security whose income payments They will sell it ng tingi tingi, sold in retail to
and hence value are derived from and the counter parties of liman brothers, what do
collateralized by a specified pool of you mean counterpaties those who deal with
underlying assets. For instance, when liman brothers. Now these coumterparties
consumers take out loans, their debts become will sell to their own clients.
assets on the balance sheet of the lender.
The lender, in turn, can sell these assets to a BDO is a counterpart of the Liman brothers
trust or “special purpose vehicle which in the Philippines they will buy a portion and
packages them into an asset-backed security sell it tingi tingi to various customers in the
Philippines, as the Original borrowers pay enterprise and is led to expect profits
their loan, then the payments are distributed primarily from the efforts of others.
to the holders to the certificate of
participation DD: It is true. If it is principally based on the
The banks in the states became lenient, they efforts, That’s not howey test it must be
did not conduct a thorough investigation and primarily
resulted in the sub-prime mortgage since it is
packaged and sold to investment houses who Slide:
will sell to counter parties who will sell to The business scheme of power homes
customers all over in the world. The banks unlimited corporation (power homes) is
became very lenient in granting loans even to that an investor will enroll under its
those who cannot afford it. program, and the latter would be entitled
to recruit other investors and receive
If you are an investor in the Philippines, and commissions from the investments of those
you are dealing with someone who is directly recruited by him. Is power homes
reputable, Liman brothers were highly rated engaged in the sale of securities which
and well known, they were insured by the must be registered?
biggest insurer, and it was triple A rated so
what else can go wrong you have the biggest A: Yes. A corporation allowing a principal
insurer, so you can never go wrong investor to enroll in its program by paying a
certain amount, which in turn entitles him to
So what happened thereafter, it exploded, be paid a certain amount if the recruit was
those borrowers were not able to pay their able to get a minimum recruitment of four (4)
loans, and holder of the holders of certificate investors, is engaged in the sale or
of deposits were just holding empty distribution of an investment contract.
certificates
DD: Why is it an investment contract?
They stopped for a while and resurrected and A: because all the elements of an investment
called it under a different name contract are present in this case (1)
investment of money in an enterprise (2)
In the Philippines, this cannot be sold unless expectation of profits from various efforts of
registered by the SEC another
Slide: Slide:
It must be registered with the SEC before its
Q: What is an investment contract? sale or offer for sale or distribution to the
public, otherwise, the SEC cannot protect the
A: Investment contract is an investment of investing public from fraudulent securities is
money in a contract, transaction or scheme founded on the premise that the capital
with the expectation of profits primarily from markets depend on the investing public’s
the efforts of another. level of confidence in the system (Power
homes unlimited corporation v SEC GR
Slide: TRUE or FALSE no.164182, February 26, 2008) 2010 bar
The Howey Test is relevant in cases wherein
a person invests money in a common Slide:
Propsperity.com, Inc (PCI) sold computer products are bought from the store’s shelf and
software and hosted websites without where the buyer can become a down-line
providing internet service. It devised a seller, earning commissions from purchases
scheme in which a buyer could acquire from made by new buyers from whom he refers to
it an internet website with 15-MB capacity. the person who sold the product to him, is not
At the same time, by referring to PCI his own an investment contract (Securities and
down-line buyers, a first-time buyer could Exchange Commission v Prosperity Com Inc
earn commissions, interest in real estate and GR No. 164197 January 25, 2012)
insurance coverage. Is PCI’s scheme
considered an investment contract which Discussion of DD:
requires registration? The difference with powerhouse is that in this
case, it is just a pure referral scheme and just
A: investment of money. You refer a customer,
No. For an investment contract to exist, the you get a commission and you get insurance
following elements refereed to as the Howey coverage, you can use the wifi privilege of
test must concur (1) a contract, transaction or the company. No need to register with the
scheme (2) an investment of money (3) the SEC.
investment is made in common enterprise (4)
expectation of profits (5) profits arising In the first one, it is an investment contract
primarily from the efforts of others. Network because you need to invest money first before
marketing, a scheme adopted by companies you get commission for the recruits you refer
for getting people to buy their products to the company.
outside the usual retail system where
issuing corporation to recover short swing Wincorp basically enters into a credit line
transaction profits? agreement with a potential borrower, so that
Dean: 2 years from the discovery of the date the latter can draw or borrow X amount
of transaction. within a certain period of time. That is why
there’s a period to draw on the line, and
borrow or obtain a loan.
SECURITIES REGULATION CODE
Slide:
Slide: Westmont Investment Corporation Yes. In this jurisdiction, the Supreme Court
(Wincorp) offered to the public “sans employs the Howey test to determine
recourse” transactions with the following whether or not the security being offered
mechanics: Wincorp enters into a Credit takes the form of an investment contract.
Line Agreement for a specific amount with Under the Howey test, the following must
a corporation needing financial assistance concur for an investment contract to exist:
which the latter can draw upon in a series (1) A contract, transaction, or scheme;
of availments over a period of time. The (2) An investment of money;
agreement stipulates that Wincorp shall (3) Investment is made in a common
extend a credit facility on “best effort” enterprise;
basis and that every drawdown by the (4) Expectation of profits; and
accredited borrower shall be evidenced by (5) Profits arising primarily from the
a promissory note executed in favor of efforts of others. Indubitably all of the
Wincorp and/or the investor/s who elements are present in the extant
has/have agreed to extend the credit case.
facility. Wincorp then scouts for investors First, Wincorp offered what it purported to
willing to provide the funds needed by the be “sans recourse” transactions wherein the
accredited borrower. The investor is investment house would allegedly match
matched with the accredited borrower. An investors with pre-screened corporate
investor who provides the fund is issued a borrowers in need of financial assistance.
Confirmation Advice which indicates the
amount of his investment, the due date, the Second, Ng Wee invested the aggregate
term, the yield, the maturity and the name amount of P213,290,410.36 in the “sans
of the borrower. recourse” transactions through his trustees, as
embodied in the Confirmation Advices.
Are the “sans recourse” transactions
offered by Wincorp securities that must Third, prior to being matched with a
registered with the Securities and corporate borrower, all the monies infused by
Exchange Commission (SEC)? the investors are pooled in an account
maintained by Wincorp. This ensures that
Discussion: This case is about whether or not there are enough funds to meet large draw
this arrangement is an investment contract. downs by single borrowers.
What if it’s the other way around? The price Discussion: Usually, warrants are linked or
is P10 but doing only P5 per share on the tied up to debt instruments like a bond. Let’s
exercise date. Does it make sense to exercise say ABC Corporation will issue a bond with
the option? a yield in the market is at 8% interest per
annum. Now, this particular company or
What about Put Option: PS, put option or conglomerate will issue a bond but will offer
profit share – option to sell. Let’s say a person to pay interest only at 4% per annum. Of
buys an option to sell securities, shares of course, when this company is only offering
stock of ABC Corporation for P10 per share 4% while it is doing 8% in the market, then
after 3 years. On the third year, it is doing at nobody will subscribe, nobody will invest.
P20 per share. Does it make sense for him to But, if the bond is linked to a warrant that
sell share at P10 to ABC, if he can sell it to gives the bondholder the option to subscribe
the market for P20? It doesn’t make sense. He to shares of stock of the company, then that
would rather sell it to the market than sell it 4% may be attracted even though lower than
to the issuing company. the market. The kicker(?) is that after X
period, the bondholder has the option but no
Anyway, the issuer of the options must the obligation to subscribe to the shares of
register with the SEC because options are stock of the company. So if the exercise price
considered securities. is cheaper than market, then it makes sense to
exercise that option.
Slide:
What is a warrant? Slide:
It gives the holder the option, but not the What is a timeshare? Is it a security?
obligation to subscribe shares of stock of a A timeshare sometimes called vacation
company at a fixed price at a pre-agreed date. ownership is a property with a divided form
of ownership or use rights. These properties
Discussion: are typically resort condominium units, in
This is warrant in the context of SRC, not which multiple parties hold rights to use the
criminal procedure of course. property and each owner of the same
accommodation is allotted their period of
Slide: time.
What is the distinction between warrant
and option? Timeshare is a form of certificate of
If warrants are exercised, the company will membership therefore considered a security.
issue new stocks thereby causing dilution of
existing stockholders. Exercising a call
option does not involve issuing new stock
since a call option is derivative instrument on Slide:
existing shares of the company. Is a corporation registered with the SEC
authorized to sell timeshares to the public?
of the Securities Regulation Code, no club assets, gives, however, to the holder
securities shall be sold or offered for sale or thereof privileges on the use of club facilities,
distribution in the Philippines without a that are of value and transferable. The
registration statement duly filed and certificate is thus a security within the
approved by the SEC. The permit to sell meaning of the Revised Securities Act. (BAR
should be issued before the actual sale or 1982)
distribution of the securities. The permit does
not retroact to the date of the actual sale. Discussion:
A certifiate of membership is not an
Slide: investment contract but a security within the
X has the following plans: definition of the SRC. Remember the 6th
a. Organized the Tagaytay Country enumeration by Section 3 of the SRC:
Club, Incorporate. Proprietary or nonproprietary membership
b. Let the club buy a 10-hectare land certificates incorporations; is considered as a
for P10M which will be developed security independent of an investment
into a sports and health club contract.
complete with an Olympic size
swimming pool, tennis and pelota Slide:
courts, bowling lanes, poo rooms, What are the kinds of securities?
etc. Non-exempt securities
c. Five of the P10M needed to develop o These are securities that can
the club will be raised thru the sale not be sold or distributed
of certificates of membership. within the Philippines unless
d. The certificate of membership shall registered with the SEC.
give the purchaser the right to use Exempt securities
all club facilities, and shall be o Dean: they can be issued,
transferable. It shall not, however, sold, or distributed within the
give the purchaser any right in the Philippines even without the
income or assets of the club. The registration statement filed
purchaser must also pay monthly with the SEC.
dues. Securities sold on exempt
transaction
X wants to know whether the certificate of
membership is an investment contract and
hence, a security within the meaning of the
Revised Securities Act. What is your Slide:
opinion? What is the rule regarding sale or
distribution of securities within the
The certificate of membership, although not Philippines?
providing for a right of income or right over
Securities shall not be sold or offered for sale February 11, 1998 after the SEC issued a
or distribution within the Philippines, without resolution declaring that PPR was
a registration statement duly filed with and authorized to sell securities, including
approved by the Commission. Prior to such timeshares.
sale, information on the securities, in such
form and with such substance as the On March 30, 1998, Leon and Carina
Commission may prescribe, shall be made wrote PPR rescinding their purchase
available to each prospective purchaser. agreement and demanding the refund of
(Section 8.1, SRC). “Registration Statement” the amount they paid, because the Palacio
is the application for registration of securities del Boracay timeshare was sold to them by
required to be filed with the Commission PPR without the requisite license or
(Section 3.12, SRC) authority from the SEC. PPR contended
that the grant of the SEC authority had the
Discussion: RS is not what you distribute to effect of ratifying the purchase agreement
the prospective buyers of the securities. It is (with Leon and Carina) of October 6, 1996.
what you apply with the SEC. The
application must contain all the material Is the contention of PPR correct? Explain.
information about the issuer and the type of
securities that it will issue – director, officer, No. The contention of PPR is not correct. It
stockholder, officers, nature of the business, is settled that no securities shall be sold or
income for the last X years, how proceeds of offered for sale or distribution in the
the funds are being deployed or utilized, and Philippines without a registration duly filed
other information as may be prescribed by the and approved by the Commission. Corporate
SEC. registration is one of the requirements under
Section 8 of BP Blg. 178. (BAR 2009)
The prospectus is the document that also Slide:
contains all the information about the issuer “Securities” issued to the public are required
and the type of security to be issued to be by law to be registered with –
distributed to the buyer. a.) The Bangko Sentral ng Pilipinas;
b.) The Philippine Stock Exchange;
Slide: c.) The Securities and Exchange
Philippine Palaces Realty (PPR) had been Commission
representing itself as a registered broker d.) The Securities and Exchange
of securities, duly authorized by the Commission and the Philippine Stock
Securities and Exchange Commission Exchange
(SEC). On October 6, 199, PPR sold to Slide:
spouses Leon and Carina one (1) ABC Corp. is engaged in the pawnshop
timeshare of Palacio del Boracay for business involving cellphones, laptops and
US$7,500.00. However, its Registration other gadgets of value. In order to expand
Statement became effective only on its business and attract investors, it offered
generally the requirement of registration (d) Any security or its derivatives the sale or
under SRC. These are the following: transfer of which, by law, is under the
supervision and regulation of the Office of
the Insurance Commission, Housing and
(G2RIBO)
Land Use Rule Regulatory Board, or the
Bureau of Internal Revenue.
(a) Any security issued or guaranteed by the
Government of the Philippines, or by any
political subdivision or agency thereof, or by (e) Any security issued by a bank except its
any person controlled or supervised by, and own shares of stock. (Section 9, SRC)
acting as an instrumentality of said Discussion: That’s why banks can
Government. issue certificates of deposits to
Dean: Need not be issued, but can thousand of depositors. It can even
only be guaranteed by the issue deposit certificates to a foreign
Government. That’s why Treasury country.
Bills can be sold to the public without
the need of registration. The If you notice, there’s a common denominator:
Katipunan Bonds issued to the public 1. Issued or guaranteed by the
by the Caloocan government. The government
GSIS Retail Bonds. 2. Issued or guaranteed by a corporation
Rationale: The government can never supervised already by another
go bankrupt. The public is adequately government agency
protected.
Slide:
(b) Any security issued or guaranteed by the The SRC exempts from registration the
government of any country with which the securities issued by banking or financial
Philippines maintains diplomatic relations, or institutions mentioned in the law. Does this
by any state, province or political subdivision exemption include reportorial
thereof on the basis of reciprocity: Provided, requirements?
That the Commission may require
compliance with the form and content for No. Nowhere does it state or even imply that
disclosures the Commission may prescribe. the Bank, as a listed corporation is exempt
Discussion: USA: Brady bonds, from complying with the reports required by
Yankee bonds, JAPAN: Samurai the assailed RSA Implementing Rules. The
bonds exemption from the registration requirement
What if Taiwan will issue a bond here enjoyed by the bank does not necessarily
in the Philippines? It will not be connote that it is exempted from reportorial
exempt because we don’t have requirements. Having confined the
diplomatic relations with Taiwan. We exemption enjoyed by the bank merely to the
only have diplomatic relations with initial requirement of registration of
the People’s Republic of China. securities for public offering, and not to the
(c) Certificates issued by a receiver or by a subsequent filing of various periodic reports,
trustee in bankruptcy duly approved by the the SEC, as the regulatory agency, is able to
proper adjudicatory body. exercise its power of supervision and control
over corporations and over the securities
market as whole. Otherwise, the objectives of
the “Full Material Disclosure” policy would security is sold, offered for sale, subscription
be defeated since the petitioner corporation or delivery by the owner thereof, or by his
and its dealings would be totally beyond the representative for the owner’s account, such
reach of the Commission and the investing sale or offer for sale, subscription or delivery
public. (Union Bank of the Philippines v. not being made in the course of repeated
Securities and Exchange Commission, and successive transactions of a like
G.R. No. 138949, June 6, 2001) character by such owner, or on his account
Discussion: These are two different things. by such representative and such owner or
The exemption enjoyed by banks is just the representative not being the underwriter of
initial requirement of registration of such security.
securities; not the various reports required by Discussion: This is different from
the SEC as a regulatory body. Without the what we discussed on foreign
filing of these reports like the GIS, financial corporations. In the context of the
statements, reports of transactions, the SEC SRC, if you sell securities to 19 only,
cannot exercise fully its power of supervision exempt from registration. If you keep
and control over corporations. The full and on doing it to 19 only, and this 19 will
fair disclosure policy will be defeated if the be the one in turn, to subsell another
bank in this case and its dealings will be 19, it is no longer isolated. Also, if the
totally beyond the reach and knowledge of first 19 will also subsell, then it is no
the SEC and the investing public. longer isolated.
taken from the unsubscribed portion have the following features: convertible if not
is not subject to registration as long redeemed after 3 years. On the 3rd year, they
as the issuance of shares is made to were not redeemed so the holder decided to
stockholders and no commission is convert those preferred shares into common
paid in connection with such sale. shares. And because it is an obligation on the
Therefore, if the shares are to be sold part of the issuer, it will now have to issue
or issued to non-stockholders, it is common shares in exchange of the preferred
subject to registration. It is not shares. Question: Is the issuance of the
exempt. common shares in exchange for the preferred
shares subject to registration? Not anymore.
What if issued to stockholders but the Because the issuance in this case is subject to
corporation engaged an underwriter a right of exchange.
to be the one to arrange for the
issuance and sale of securities? The (h) Broker’s transactions, executed upon
moment commission is paid, it is no customer’s orders, on any registered
longer an exempt transaction. Exchange or other trading market.
(f) The issuance of bonds or notes secured by (i) Subscriptions for shares of the capital
mortgage upon real estate or tangible stock of a corporation prior to the
personal property, where the entire mortgage incorporation thereof or in pursuance of an
together with all the bonds or notes secured increase in its authorized capital stock under
thereby are sold to a single purchaser at a the Corporation Code, when no expense is
single sale. incurred, or no commission, compensation or
remuneration is paid or given in connection
(g) The issue and delivery of any security in with the sale or disposition of such securities,
exchange for any other security of the same and only when the purpose for soliciting,
issuer pursuant to a right of conversion giving or taking of such subscriptions is to
entitling the holder of the security comply with the requirements of such law as
surrendered in exchange to make such to the percentage of the capital stock of a
conversion: Provided, That the security so corporation which should be subscribed
surrendered has been registered under this before it can be registered and duly
Code or was, when sold, exempt from the incorporated, or its authorized capital
provisions of this Code, and that the security increased.
issued and delivered in exchange, if sold at Discussion: These are subscriptions
the conversion price, would at the time of to comply when you incorporate or
such conversion fall within the class of when you increase your capital stock.
securities entitled to registration under this
Code. Upon such conversion the par value of (j) The exchange of securities by the issuer
the security surrendered in such exchange with its existing security holders exclusively,
shall be deemed the price at which the where no commission or other remuneration
securities issued and delivered in such is paid or given directly or indirectly for
exchange are sold. soliciting such exchange.
Discussion: Let’s say ABC Discussion: Let’s say magmamature
Corporation will issue preferred shares to na yung securities ng issuer, so gusto
non-stockholders (hence, subject to nya i-refinance. Kukunin niya yung
registration). Supposing, the preferred shares
Assume that Greater Manila Telephone Exempt securities may be sold or distributed
and Telegraph Company, Incorporated within the Philippines, not subject to the
has 10,000 employees. It has a policy of foregoing requirement.
encouraging stock ownership among its
employees. Its Board of Directors, intends Discussion: Basically, when you are certain
to sell P2M worth of common stocks to (absolutely sure) that your transaction falls
either (a) its managerial employees only within the exempt transactions, you don’t
numbering about 1,000 or (b) need to register with the SEC. You just need
indiscriminately to all its 10,000 to file a notice of exemption.
employees. In case it decides to sell to its
managerial employees only, does it have to What if you are not sure?
register its securities? How about if the The issuer will get a confirmation of
intended sale is to all employees? exemption from the SEC. They will apply
for a confirmation from the SEC itself that
Exempt transactions are those that do not this transaction is not subject to registration.
rewuire registration either because the law
itself exempts them therefrom or the SEC What if you think it’s exempt but it turns out
finds that the enforcement of the registration that it is not exempt?
requirement is not necessary in the public Then, you are subject to all sanctions –
interest and for the protection of investors by criminal, civil, administrative liabilites.
reaason of the amount involved or the limited
character of the public offering. The Slide:
proposed sales stated in the problem do not Discuss the procedure for registration of
strictly fall under any of the exempt securities.
transactions in the law itself. (BAR 1989) Preferred Shares Issuance
PSE to do the buying and selling of The information required for the registration
securities. of any kind, and all securities, shall include,
among others, the effect of the securities
Section 13. Rejection and Revocation of issue on ownership, on the mix of ownership,
Registration of Securities. especially foreign and local ownership. (12.3,
13.1. The Commission may reject a SRC)
registration statement and refuse registration
of the security there-under, or revoke the The registration statement shall be signed by
affectivity of a registration statement and the the issuer’s executive officer, its principal
registration of the security there-under after operating officer, its principal financial
the due notice and hearing by issuing an order officer, its comptroller, principal accounting
to such effect, setting forth its finding in officer, its corporate secretary or persons
respect thereto, if it finds that: performing similar functions accompanied
by a duly verified resolution of the board of
All securities required to be registered under directors of the issuer corporation. The
Subsection 8.1 shall be registered through the written consent of the expert named as having
filing by the issuer in the main office of the certified any part of the registration statement
Commission, of a sworn registration or any document used in connection
statement with respect to such securities, in therewith shall also be filed. Where the
such form and containing such information registration statement includes shares to be
and documents as the Commission shall sold by selling shareholders, a written
prescribe. The registration statement shall certification by such selling shareholders as
include any prospectus required or permitted to the accuracy of any part of the registration
to be delivered under Subsections 8.2, 8.3 statement contributed to by such selling
and 8.4. (Section 12, SRC) shareholders shall also be filed. (Section
12.4, SRC)
In promulgating rules governing the content
of any registration statement (including any (a) Upon filing of the registration statement,
prospectus made a part thereof or annexed the issuer shall pay to the Commission a fee
thereto), the Commission may require the of not more than one-tenth (1/10) of one per
centum (1%) of the maximum aggregate
registration statement to contain such
price at which such securities are proposed to
information or documents as it may, by rule, be offered. The Commission shall prescribe
prescribe. It may dispense with any such by rule diminishing fees in inverse proportion
requirement, or may require additional to the value of the aggregate price of the
information or documents, including written offering.
information from an expert, depending on the (b) Notice of the filing of the registration
necessity thereof or their applicability to the statement shall be immediately published by
class of securities sought to be registered. the issuer, at its own expense, in two (2)
(12.2) newspapers of general circulation in the
Philippines, once a week for two (2)
consecutive weeks, or in such other manner material fact required to be stated therein or
as the Commission by rule shall prescribe, necessary to make the statement therein not
reciting that a registration statement for the misleading shall constitute fraud. (12.7,
sale of such security has been filed, and that SRC)
the aforesaid registration statement, as well
as the papers attached thereto are open to What are the grounds for rejection of
inspection at the Commission during securities?
business hours, and copies thereof,
photostatic or otherwise, shall be furnished to I-VER-C
interested parties at such reasonable charge
as the Commission may prescribe. (Section a. The issuer:
12.5, SRC) (i) Has been judicially declared insolvent;
(ii) Has violated any of the provisions of this
Within forty-five (45) days after the date of Code, the rules promulgated pursuant thereto,
or any order of the Commission of which the
filing of the registration statement, or by such
issuer has notice in connection with the
later date to which the issuer has consented, offering for which a registration statement
the Commission shall declare the registration has been filed;
statement effective or rejected, unless the (iii) Has been or is engaged or is about to
applicant is allowed to amend the registration engage in fraudulent transactions;
statement as provided in Section 14 hereof. (iv) Has made any false or misleading
The Commission shall enter an order representation of material facts in any
prospectus concerning the issuer or its
declaring the registration statement to be
securities;
effective if it finds that the registration (v) Has failed to comply with any
statement together with all the other papers requirement that the Commission may
and documents attached thereto, is on its face impose as a condition for registration of the
complete and that the requirements have been security for which the registration statement
complied with. (12.6, SRC) has been filed; or
The SEC may impose such terms and (b) The registration statement is on its face
conditions as may be necessary or incomplete or inaccurate in any material
appropriate for the protection of the respect or includes any untrue statement of a
investors. material fact or omits to state a material fact
required to be stated therein or necessary to
Upon effectivity of the registration statement, make the statements therein not misleading;
or
the issuer shall state under oath in every
prospectus that all registration requirements (c) The issuer, any officer, director or
have been met and that all information are controlling person of the issuer, or person
true and correct as represented by the issuer performing similar functions, or any
or the one making the statement. Any untrue underwriter has been convicted, by a
statement of fact or omission to state a competent judicial or administrative body,
upon plea of guilty, or otherwise, of an
offense involving moral turpitude and/or with Stanley Ho, the king of casinos in
fraud or is enjoined or restrained by the Macau. BW listed its share in the stock
Commission or other competent judicial or exchange. After listing, the price went up
administrative body for violations of from P3 per share to P128 in a span of 4
securities, commodities, and other related months. This is because they created an
laws. illusion of active trading. It turns out, the ones
For purposes of this subsection, the term buying and selling are the same dummy
“competent judicial or administrative body” accounts owned by the business man and
shall include a foreign court of competent persons allied with him. From P128, it
reached down to rock bottom of 70 centavos
jurisdiction as provided for under the Rules
per share.
of Court. (Section 13, SRC)
The SEC may compel the production of all (ii) By entering an order or orders for
the books and papers of such issuer, and may the purchase or sale of such security with the
administer oaths to, and examine the officers knowledge that a simultaneous order or
of such issuer or any other person connected orders of substantially the same size, time
and price, for the sale or purchase of any such
therewith as to its business and affairs. (13.2,
security, has or will be entered by or for the
SRC) same or different parties; (improperly
matched order) or
If any issuer shall refuse to permit an Discussion: When you buy or sell, there is a
examination to be made by the Commission, corresponding match order or buy order.
its refusal shall be ground for the refusal or What’s wrong is that this is resorted to to
revocation of the registration of its securities. create an appearance of active trading.
(iii) By performing similar act where
(13.3, SRC)
there is no change in beneficial ownership.
Discussion: There could be other schemes or
Slide: other arrangements that could be devised in
What are the prohibited acts relating to the future which is not a washed sale or
manipulation of security prices? improperly matched order, but the effect is
the same.
It shall be unlawful for any person acting Discussion: Basically, a person or group of
for himself or through a dealer or broker, persons create the illusion of active trading
directly or indirectly: thereby inducing the buying and selling of the
(a) To create a false or misleading appearance security through washed sale, improperly
of active trading in any listed security traded matched order, and performing similar act
in an Exchange or any other trading market where there is no change in beneficial
(hereafter referred to purposes of this Chapter ownership.
as “Exchange”):
(i) By effecting any transaction in (b) To effect, alone or with others, a series of
such security which involves no change in the transactions in securities that:
beneficial ownership thereof; (washed sale) (i) Raises their price to induce the
Discussion: Before Solaire, City of Dreams, purchase of a security, whether of the same
or Resorts World, there was one BW(?) who or a different class of the same issuer or of a
was allowed to put up a casino. He partnered
the person selling the security or his Meanwhile, while the complainants and
principal does not own the security sold; or Jose Maximo and Mark Angelo entered
a. If owning the security, does not into a compromise agreement. Can this
deliver it against such sale within compromise agreement absolve Jose
twenty (20) days thereafter, or does Maximo and Mark Angelo from the civil
not within five (5) days after such sale case?
deposit it in the mails (Sec. 23.3,
SRC) Under the SRC, what is the Margin
b. No person shall be deemed to have Trading Rule?
violated this subsection if he proves
that notwithstanding the exercise of Under the Margin Trading Rule, no
good faith he was unable to make registered broker or dealer, or member of an
such delivery or deposit within such exchange shall extend credit on any security
time, or that to do so would cause an amount greater than whichever is higher
undue inconvenience or expense. of:
Discussion: This is what we call Short a. 65% of the current market price of the
Selling. Why will a person do short selling? security;
Halimbawa: he will speculate as to the price b. 100% of the lowest market price of
of the security. He will sell at P100 per share the security during the preceding 36
and he will get the proceeds of the sale. He calendar months, but not more than
will then speculate that the price will go down 75% of the current market price.
to P90 per share. He will use the generated
funds from the sale of the security that he The purpose of the Margin Trading Rule is to
does not own to buy the securities he will prevent excessive use of credit for the
deliver later on it. The concept is selling of purchase of securities. It is a counter to the
securities that you do not own or can’t broker’s desire to generate more sales by
deliver. encouraging clients to buy securities on
credit. (BAR 2009)
A complaint was filed with the SEC
against Abacus Securities Corporation, What is meant by “Over-the-Counter
Sapphire Securities Inc., and several other Markets” as provided in the Revised
persons, including Jose Maximo Cuaycong Securities Act?
III and Mark Angelo Cuaycong. It was
alleged that Jose Maximo engaged in The term “Over-the-Counter Markets”
fraudulent and deceitful activities with the refers to markets made or created for the
complicity of Abacus, Saphire and the purchase and sale of securities other than on
other defendants. The complainants a security exchange. The SEC may provide
prayed that all defendants be held jointly rules and regulations of transactions therein,
and severally liable for all damages.
c. The purchase or sale was done by the securities. Nevertheless, it shall be unlawful
insider while in the possession of for any insider to communicate material
material non-public information. nonpublic information about the issuer or the
Discussion: security to any person who, by virtue of the
Material – Likely to influence the communication, becomes an insider as
decision of a reasonable person to buy defined in Subsection 3.8, where the insider
or sell a security. The law does not communication the information knows or has
equate materiality with the amount of reason to believe that such person will likely
the transaction. buy or sell a security of the issuer while in
Ex. Merger, President possession of such information. Section 27.3,
resigns/replaced, declaration of SRC)
dividends, losses incurred, being part Discussion:
of a suit Example, a lawyer assisting a client handling
Nonpublic – it has not been disclosed the plan of merger between another
yet to the public. Even though corporation. The lawyer calls up the wife
disclosed, the public has not the saying, “I’ll be home late. We are working on
chance to absorb the impact of the the merger of these two companies.” What if
information. the wife buys after learning the impending
Ex. Director discloses the information merger? There’s no doubt that the wife is an
to the SEC and PSE, after 1 minute he insider because she received a material non-
bought or sold securities. In that case, public information from the husband who is
it is nonpublic because the public has an insider. What about the husband? No,
not had the chance to absorb the because he has no reason to believe that his
impact of the information. wife will buy. He only made the disclosure
because he will be late for dinner. If he
We can be considered as insiders discloses to his good friend broker, he will be
because as lawyers, advisers, we are liable with the broker because he has reason
given access to material nonpublic to believe that such person will likely buy.
information.
him access to material information about the Any insider who violates Subsection 27.1 and
issuer or the security that is not generally any person in the case of a tender offer who
available to the public; (d) a government violates Subsection 27.4 (a)(i), or any rule or
employee, or director, or officer of an regulation thereunder, by purchasing or
exchange, clearing agency and/or self- selling a security while in possession of
regulatory organization who has access to material information not generally available
material information about an issuer or a to the public, shall be liable in a suit brought
security that is not generally available to the by any investor who, contemporaneously
public; or (e) a person who learns such with the purchase or sale of securities that is
information by a communication from any of the subject of the violation, purchased or sold
the foregoing insiders. (Section 3.8, SRC) securities of the same class unless such
insider, or such person in the case of a tender
offer, proves that such investor knew the
When is an information considered information or would have purchased or sold
material nonpublic for the purpose of at the same price regardless of disclosure of
insider trading? the information to him. (Section 61, SRC)
For purposes of insider trading, information An insider who violates the rule against
is “material non-public” if: insider trading by communicating material
(a) It has not been generally disclosed to the non-public information, shall be jointly and
public and would likely affect the market severally liable with, and to the same extent
price of the security after being disseminated as, the insider, by reason of his purchase or
to the public and the lapse of a reasonable sale of a security. (Section 61.2, SRC)
time for the market to absorb the information;
or All suits to recover damages shall be brought
(b) would be considered by a reasonable before the Regional Trial Court, which shall
person important under the circumstances in have exclusive jurisdiction to hear and decide
determining his course of action whether to such suits. The Court is hereby authorized to
buy, sell or hold a security. (Section 27.2, award damages in an amount not exceeding
SRC) triple the amount of the transaction plus
actual damages.
What are the penalties for unlawful
insider trading? Exemplary damages may also be awarded in
cases of bad faith, fraud, malevolence or
Unlawful insider trading renders the wantonness in the violation of this Code or
the rules and regulations promulgated
violators civilly, criminally and
thereunder.
administratively liable.
The Court is also authorized to award
a. Civil liability attorney’s fees not exceeding thirty
percentum (30%) of the award.
was an insider, the information was not disclosed to the SEC and the PSE, the
obtained regarding planned corporate market price of YCC increased by 50%.
rehabilitation by a communication from him.
The file was just accidentally given. Can Yolly be held liable for insider
trading? (2018 Bar)
It would be unethical to sell the shares. Rule
Yolly cannot be held liable for insider
1.01 of the Code of Professional
trading. Insider trading is the buying and
Responsibility provides, “A lawyer shall not
selling by an insider while in the possession
engage in unlawful, dishonest, immoral or
of a material non-public information. While
deceitful conduct.”
Yolly is an insider because by reason of her
relationship with the Issuer, she has access to
A lawyer should not only refrain from
material non-public information. However,
performing unlawful acts. He should also
Yolly did not but the shares. She is liable
desist from engaging in unfair deceitful
under in that an insider he discloses the
conduct to conceal from the buyer of the
information to broker WHO presumably will
shares the planned corporate rehabilitation.
buy the shares.
(BAR 2013)
Yenkell Cement Corporation (YCC) is a Mr. P., the president of JKL, Inc. which
public corporation whose shares are listed shares are listed in the Philippine Stock
at the PSE. It is 60% owned by Yenkell Exchange, was notified that the
Holdings Corporation (YHC) and 20% by corporation has just been awarded a
Yengco Exploration Inc. (YEI). The P5,000,000,000.00 construction contract
remaining 20% is held by the public. YHC
by a reputable private company. Before
is a private non-listed corporation which,
in turn, is 60% owned by Yatlas Mines Inc. this information could be disclosed to the
(YMI), and 40% by Yacnotan public, Mr. P called his stockbroker to
Consolidated Inc. (YCI). On August 8, purchase 20,000 shares of JKL, Inc. He
2008, the Board of Directors of YEI passed also mentioned the transaction to his
a resolution approving the acquisition of brother, Mr. B. Mr. B, who was not
50% and 25% of the shares held by YMI involved at all in the business of JKL, Inc.,
and YCI, respectively, in the authorized
also brought 50,000 shares of JKL, Inc.
capital stock of YHC.
because of the tip disclosed to him by Mr.
Yolly, one of the staff members in the P.
office of the Corporate Secretary of YEI, a. Is the information disclosed by Mr.
was immediately asked to type the P to Mr. B considered as material
resolution and file the disclosure with the non-public information for
PSE and the Securities and Exchange purposes of insider trading?
Commission (SEC). Before doing that, she
Explain.
secretly called her brother who works with
a stock brokerage company, to purchase,
in the name of Yolly's husband, 5,000 Yes, the information that the corporation has
shares in YCC. After the acquisition was just been awarded a P5 billion construction
contract by a reputable private company is indirectly beneficial owner of more than ten
material non-public information. It has not percent of any equity security, director or
been generally disclosed to the public and officer by reason of his relationship to the
would likely affect the market price of the issuer, any profit realized by the latter from
security after being disseminated to the any purchase or sale, or any sale or purchase,
public or would be considered by a of any equity security of such issuer within
reasonable person important under the any period of less than (6) months unless such
circumstances in determining his course of security was acquired in good faith in
action whether to buy, sell or hold the connection with a debt previously contracted,
security. (Section 27.2 of the SRC) shall inure to and be recoverable by the
issuer, irrespective of any intention of
b. Should Mr. P and Mr. B be held holding the security purchased or of not
liable for insider trading? Explain. repurchasing the security sold for a period
exceeding six months.
P is liable for insider trading because he
bought the shares of the company, thru his Suit to recover such profit may be instituted
broker, while in the possession of material before the Regional Trial Court by the issuer,
non-public information. or by the owner of any security of the issuer
in the name and in behalf of the issuer if the
B is also liable for insider trading. B became issuer shall fail or refuse to bring such suit
an insider after having received by within sixty (60) days after request or shall
communication a material non-public fail diligently to prosecute the same
information from P, who as President of JKL thereafter, but no such suit shall be brought
is an actual insider. (Sections 3.8 and 27 of more than two (2) years after the date such
SRC). B is liable because he bough the shares profit was realized. (Section 23.2, SRC)
of JKL while in the possession of material on-
public information. What are the sale and purchase
transactions excepted by the rule on
In Securities Law, what is “shortswing” shortswing transaction?
transaction?
1. Purchase and sale of security that was
A “shortswing” transaction is one where a acquired in good faith in connection
person makes a combined buying and selling with a debt previously contracted
of securities within a period of 6 months. (ibid)
State the rules on shortswing transaction 2. Purchase and sale, or sale and
purchase, and purchase of an equity
For the purpose of preventing the unfair use security not then or thereafter held by
of information which may have been him in an investment account, by a
obtained by a person who is directly or dealer in the ordinary course of his
INSIDER SHORTSWING
TRADING TRANSACTION
Insider trading is the Shortswing
buying or selling by transaction is one
an insider of a involving the
security while in the combined purchase
possession of material and sale of security
S: under the same terms and conditions that D: But the law also afford the acquirer the
X acquire the shares of A. option to buy those tendered shares for a price
D: Let’s say the par value is 10php, the book that may not be the same as the price he
value is 50php. Bu the acquirer, acquire the acquired the dominant shares as long as long
shares of the dominant stockholder for the price is for fairness opinion. So, if the
100php per share. same price for sure its fair. But it can be
S: 100 php lower. Now it can be justified and approved
D: What if the acquirer finds the 100php too by the SEC if that is supported by fairness
expensive? Can he offer a price lower than opinion prepared by whom?
100php? S: The independent accountant
S: No dean because the acquirer now is D: The independent party, financial advisor
mandated to purchase the shares tendered by or equivalent party. So not a nominee of the
the other stockholders at the same terms so acquirer but independent 3rd party financial
that this minority stockholders will be placed advisor, right? So, 35% triggers mandatory
in equal footing with company A. tender offer but the acquirer is only required
D: Does the law not afford the acquirer the to buy 35% assuming all the share will be
option to offer a price not equivalent to the tendered. So, let’s say after 2 years, the
price he purchased to the dominant acquirer acquires additional shares that will
stockholder? As long as that price is fair and bring his stake to 50% + 1. So, let’s say on
reasonable? the first transaction, the 35%, not all the
S: if the stockholders agree stockholders tender their shares. So, they
D: Of course, they will not agree to the want to see first how will the new stockholder
amount less than 100php. Supposing the perform, if the new dominant stockholder
acquirer says he will buy them for 90php per will be able to do well for the company … the
share. And 90php is a fair price. Is that stake. Then thereafter this stockholder the
allowed? acquirer, acquire additional shares after 2
S: I think no because it must be the same years from the time he acquired the 35%
D: Are you sure? The law says for a price bringing his stake to 50% + 1. What is his
supported by fairness (opinion?). so obligation under the tender offer rule of
therefore, not necessary the same price. SRC?
Ideally same price. Because if the acquirer S: He must offer it to all stockholders
offers to buy the shares for the same price D: he must make a bid to buy the remaining
then the objective of the tender offer is shares regardless of the period he acquired
accomplished. To allow the minority the shares that increases the stake to more
stockholders to exit the company with the than 50%. What is the threshold number? Is
same terms and condition for which the it 50% + 1 or over 50% or 51%?
dominant stockholder got out of the S: 50%
company, right? D: Are you sure? There is a difference
S: Yes dean. between 50% and over 50%.
S: over 50%
owning more than 10% and officers of the That was the original definition of tender
issuer. offer. But the SEC added the second part. The
outstanding equity securities of an associate
Protection of Investors or related company of such public company
This is a subtopic in your syllabus. We have that control said public company. This is
seen the features in the SRC intended to offshoot of the Semco vs Tacio life insurance
protect the investing public. But for your case.
syllabus, so the provision to protect minority What could be a common term for a tender
or the investors limited to tender offer rule offer?
and the rules on proxy solicitation. We will It simply means to bid. Bid for the shares of
focus our discussion to tender offer rule and stockholders of public company.
proxy solicitation. Under the SRC mandatory tender offer
includes
What is tender offer under the SRC? 1. Any person or group of persons
Tender offer is a publicly announced acting in concert who intend to acquire 15%
intention by a person acting alone or in of equity securities in a public company in
concert with other to acquire the outstanding one or more transactions within a period of
equity securities of a public company or 12 months shall file a declaration to that
outstanding equity securities of the associate effect with the SEC.
or related company of such public company
that controls said public company. Take note if you acquire 50% or if you want
Let’s dissect the definition. It’s a publicly to acquire 50% and you succeed, you don’t
announced intention. It does mean published have any obligation to buy the other shares or
in a newspaper and likewise made known to to buy the remaining shares. You have no
the SEC by a person acting alone or as a obligation to invite the others to tender their
group, meaning in concert with others to shares. If the first one is not hardly done. If
acquire the outstanding equity securities. So, the person wants to buy shares in a public
the tender offer rule only applies to purchase company does not have to announce to the
of shares not purchase of debt instruments, or SEC. He can just deal directly with any
other securities as defined under the SRC. Si private stockholder owning 50% or he can
it excludes everything except shares of stock. buy in the market. Just to clarify while 50%
Shares of stock, not of any company, but a is the threshold figure under the SRC to
public company. trigger mandatory tender offer, the SEC
Now what is a public company again? increase the threshold limit or amount to
Either the shares of stock are listed in the 35%. And that is valid because the SRC
stock exchange or with the more than 50M allows to issue rules and regulations to
assets, 200 stockholders each one owning implement the SRC. So far there has been no
100 shares each. Therefore, company outside contest or suit filed to question whether or not
this 2 not subject to tender offer rule. the new threshold is valid. Or contrary to the
SRC.
willing to buy for the same price, it is too buy those shares for a price supported by
expensive for him, he can recommend to the fairness opinion.
SEC a price lower than the price he acquired X acquires the shares of Corp 1 in ABC 13%,
the dominant shares. And the SEC may not required to make tender offer. After 2
accept it if that price is supported by fairness years, he acquires the shares of Corp 2 in
opinion prepared by independent financial ABC. So, increasing his stake to 51%. What
advisor or equivalent party. is his obligation? Mandatory tender offer, to
buy the shares of the remaining stockholders.
4. If any acquisition would result in If all of them tender their shares, this time the
ownership of over 50%, previously it is 51% acquirer has no shares but to buy everybody
now over 50% the acquirer shall be required for the same price supported by fairness
to make a tender offer for the outstanding opinion.
equity securities to all remaining
stockholders if the said company at a price And the last one the one asked in the bar,
supported by a fairness opinion provided by Cemco vs National Life insurance Company.
an independent financial advisor or Corp 2 acquired the shares of P and J in Corp
equivalent third party. 1. Is it required to make a tender offer?
So, this time regardless. Let’s say he acquire Yes. Because Supreme Court said, direct or
only 34%, not required to make tender offer. indirect acquisitions that will increase the
But after 2 years acquired 70% more. stake of the stockholder to the threshold
Increasing his stake to 51%. So, he has no number referred to under the SRC rule. Over
obligation to make tender offer to other 50%. So, before the case of Cemco the tender
stockholders. If all of them tender their offer rule only applies If you buy the shares
shares, he has no choice but to buy them. for of the stockholder in the public company.
a price supported by fairness opinion. Then, so only to the purchase of the shares of
the public company and not to the share of the
Let’s say X acquires the shares of Corp 1 in stockholder in the company owns the public
ABC. As we said he is required to make a company. Cemco change all of that. That’s
tender offer to other stockholders of ABC why in the definition adds “or outstanding
Company. To all of them. a bid to buy all of equity securities of an associate of the public
those shares for a price supported by fairness company that controls the public company”
opinion. If all of them tender their shares all
of them willing to sell their shares to the Why do we say that Corp 2 has the obligation
acquirer of Corp 1, the acquirer is only to make a mandatory tender offer? Let’s do
required to buy 33% more. That should be our math, it owns 9% of Corp 1. It acquires J
distributed proportionately to all tendering and P for 50% making it stake at 59% let us
stockholders. Now this rule does not obligate say 60%. 60% of 60% is 36% indirect
the minority stockholders to sell. But they acquisition. You add that 36% to the 17% it
have the option to sell. And the acquirer must directly owns it means 53% direct and direct
owning shares of ABC company.
public company. He is not required to make a and infuse more capital to the corporation.
tender offer. Because he is only exercising But this investor would like to acquire only
his right as a security creditor. It’s not a 51%. Or end up owning 51% as part of the
voluntary purchase, it’s an involuntary rehab plan approved by the court. Is it
transaction. Otherwise, you impair the required to make a tender offer to the
interest and right of the creditor to enforce his stockholders? No. otherwise if you insist or
lien on shares. require the acquirer to do tender offer it may
4. Purchase undertaken in connection not imperil any chance of rehabilitating the
with a privatization undertaken by the distressed debtor.
government of the Philippines. 6. Purchase in open market.
What do you mean by privatization? To make Meaning in the stock exchange, prevailing
a government owned and controlled market price.
corporation own by private individuals. To 7. Merger or consolidation
allow the government to divest its equity Regardless of how many shares a stockholder
ownership in the company. One example is ends up owning after the merger is not
the UCPB. It is 90% owned by the required to make a mandatory tender offer.
government and UCPB has been trying to
privatize the bank for quite some time. Let’s Violation
say the governments auctioned of UCPB What happens in case of violation of the rules
shares as a, result of its privatization effort. on tender offer?
Let’s say BDO wants to buy 51% of the bank. If equity securities of a public company are
Or let’s say the government owns 51% and purchased at threshold amount without
the private company acquires all of those complying with the tender offer rule, the SEC
shares of the government in the corporation. upon complaint, nullify such purchase and
So even if the acquirer ends up owning 51%, order the conduct of a tender offer, without
he is not required to make a tender offer as prejudice to the admin sanctions that the SEC
long the sale of the share by the government may impose.
is pursuant to a privatization efforts.
5. Purchase in connection with Where should a civil action for violation of
corporate rehab under court supervision. the SRC be filed? SRC or RTC?
One of the material features of a rehab plan is Pua vs Citibank. Civil suits to enforce
a material financial commitment of the liability of the issuer or directors and officers
debtor to fund the rehabilitation. So, it could like selling unregistered securities or selling
mean the stockholders, infusing new capital securities based on false registration
into the corporation or getting a 3rd party statement are cognizable by the RTC. So,
investor to infuse capital to the corporation. they are under the sole original jurisdiction of
What if the stockholders all exhausted their the RTC. Not subject to the doctrine of
funds that’s why the debtor went to rehab, but primary jurisdiction. So, you don’t have to go
they were able to find a white knight investor to the SEC as a condition to enforce the civil
willing to buy the shares of the stockholders liability of the issuer. You can go straight to
the RTC. It is when you file a criminal case more than 5 years after the security was bona
against the directors and officers of the fide offered to the public.
issuer, that you are required to go to the SEC Sale of unregistered security – 2 years from
first under the doctrine of primary discovery of the violation upon which the
jurisdiction. cause of action is based. But not more than 5
years from the sale of the securities.
What damages may be awarded in case of
sale of unregistered securities or sale of What happens if the discovery of the
securities based on false RS? untruthfulness or falsity was made after 5
Just like insider trading, the court is years from the sale?
authorized to award damages in amount not In that case the cause of action is lost on
exceeding triple the amount of the transaction prescription because these 2 must concur.
plus actual damages. Exemplary damages in
case of bad faith, fraud, malevolence or Philippine Chromite, after registration of its
wantonness in the violation of this code or the securities, sold P10M worth of common
rules and regulations implementing the code stock to the public at P0.1 per share. In its RS,
and the attorney’s fees not to exceed 30% of it alleged that it holds a perfected mining
the award. claim on 100 hectares of chromite land in
Botolan Zmabales. X, a Botolan resident
What are the prescriptive periods for any bought P50,000 worth of stocks of the
action that may be filed under 56 and 57 of corporation from the stock exchange. After
the SRC? its public offering, the value of stocks
So, there are 2 liabilities refer to in this dropped to half its price. X made some
section investigations and discovered that the mining
56 – sale based on false RS claims of the corporations had not been
57 – sale of unregistered securities. perfected at the time of the issuance of its
These 2 must concur: 2 years with respect to securities. The stock however rallied and
sale based on false RS. 2 years from after 2 years commanded a price of 1 ½
discovery of falsity or misrepresentation or centavo per share. On its third year, the
incompleteness of the RS. But not more than company collapsed and its stocks became
5 years after the security was bona fide totally valueless. What is the remedy of X.
offered to the public. So, it’s not actual sale So, we know that X cannot enforce the civil
but bona fide offered to the public. Although liability of the issuer because the remedy of
in reality if there is bona fide offer, there is a X for damage sis lost by prescription. Any
sale. But you have to be careful with the suit to enforce civil liability based on sale on
words. You have to adapt the words as they false registration statement must be filed
couched. within 2 years from the discovery of the
With respect to sale based on false RS – 2 falsity. But not more than 5 years after the
years from discovery of falsity or bona fide offer of the securities to the public.
untruthfulness or incompleteness. But not So, 2 years it rallied, on 3rd year from
discovery the price has dropped. So, 2 years violation of 28 of the SRC. Complainants
has lapsed from the discovery. Therefore, the were allegedly enticed to invest with PIPC
suit is lost by prescription. However, X can with a promise of higher income and lower-
invoke the regulatory powers of the SEC to risk investment program. Turn out that
impose sanctions against the issuer, neither PIPC nor its officers, employees and
responsible directors and officers. agents were registered brokers/dealers.
Santos denied defrauding the complainants,
Who are liable for damages assuming it was claiming she was a mere employee of and
filed within the prescriptive period? subsequently independent information
All of the directors and all of the officers provider for PIPC. Will the complaint against
signed the RS. CEO, COO, Financial Officer, santos prosper?
Comptroller, Corporate Secretary, signing Supreme Court Justice Pepe Perez said Yes.
stockholder and expert if any. A person is liable for violating 28 where
acting as a broker or salesman is in the
The issue in this case to summarize, it’s a employ of the corporation which sold or
long narrative, is what about the criminal offered for sale unregistered securities in the
liability for selling unregistered securities or Philippines.
sale based on false RS? When does it Can you imagine, he is an employee, wala
prescribe? siyang broker’s license, wala siyang dealer’s
Supreme Court said that 2 and 5 periods license … namimigay ng mga brochure,
under the SRC pertains to the enforcement of sumasagot sa mga tanong ng mga investor
civil liability of the issuer. Not to criminal but made liable in this case.
liability. Given that SRC does not contain a
prescriptive period to enforce criminal When may the SEC exercise its power of
liability, we apply special law, Act no. 3326. investigation?
It is the law applicable to offenses under When it deems necessary to determine
special law like the SRC. Under 73 of the whether or not the person has violated or
SRC, violation of its provision is punishable about to violate the SRC.
the imprisonment of not less than 7 but not
more than 21 years. Applying this special Can the SEC issue a CDO without a formal
law, criminal prosecution for violation of charge?
SRC prescribes in 12 years. This CDO in relation to SRC, we have seen a
CDO to implement the SRC. We discussed
Even an employee that offers a brochure to the provisions on CDO in the SRC we
potential investors, held liable for violation of compared the CDO under the RCC. While
SRC. both laws allow SEC to issue CDO so they
are treated separately.
Complaint was filed against Oudine Santos, Can the SEC issue a CDO motu proprio, even
an investment consultant of Performance without complaint?
Investment Products Corporation for
The Supreme Court said Yes. Primamanila 2. Proxy must be in writing, signed by
Plans vs Sec. What happen in this case, the stockholder filed with the CorSec before
Primanila plans was selling educational plan? the meeting.
Everybody happy, nobody complaining. This is RCC.
Then the SEC issued a CDO to stop the sale 3. Unless otherwise provided in the
of the preneed plan, educational plans. The proxy, valid only for the meeting intended.
issue is, can the SEC without any complaint No proxy shall be valid for any other meeting
from the public issue a CDO. So, whether or unless it is General and continuing which
not educational plans are securities? Supreme should not be longer than 5 years at one time.
Court said Yes. Educational plans are This is RCC
securities. They cannot be issued or cannot be 4. No broker or dealer shall give any
sold or offered to be sold unless registered proxy, consent or authorization, in respect of
with the SEC. So, by selling unregistered any security carried for the account of the
educational plans, it causes harm to the customer, to a person other than the
investing public. Therefore, the SEC may customer, without written authorization of
issue a CDO to stop the sale even though such customer.
there is no complaint from any private This is SRC. Pertains to shares held by broker
offended party. for the benefit of another stockholder. If the
broker does not own the shares, he has no
If offender is a corporation, impose of course right to give proxy those shares. Even though
the liability upon the responsible director, it is in his name, he is not the rea owner. He
person and officers. In case of alien, deported holds it for the benefit of the customer.
without further proceedings after service of Therefore, under the SRC, he must get the
sentence. written consent of the customer before giving
the proxy those shares. If the broker or the
What are the rules on proxy solicitation? I dealer owns the shares, they can give the
combine the rules under the SRC and RCC proxy because they own it. But if they are
1. The proxies must be issued and proxy only acting on behalf of another, they have to
solicitation must be made in accordance with get the consent of the person they represent.
the rules and regulations of the commission. 5. A broker or dealer who holds or
When you solicit proxy from the public, you acquire the proxy for at least 10% or such
have to comply with the regulations of the percentage that the SEC may prescribe of the
SEC. You have to file a proxy statement with outstanding share of the issuer, shall submit a
the SEC. you have to attach a proxy form to report to identify the beneficial owner of the
the proxy statement. You have to disclose shares within 10 days from the acquisition.
your intention to solicit proxy in the public. So, there is an additional requirement for
The proxy form has to conform to certain broker, acting in behalf of another. He must
measurement, size. file a report to identify the actual beneficial
owner after such acquisition if the acquisition
results in at least 10% or more of the
outstanding equity securities of the company corporate acts? The CorSec accepts proxy
or any percentage that the SEC may with irregularity. Proxy will be use for
prescribe. And then there’s recent regulation, corporate acts requiring stockholders
kung foreigners, regardless of the shares to be approval then you go to SEC to question the
disclosed to the SEC. pag non foreigners action taken by the CorSec.
more than 10%, pag foreigners kahit ilang
shares pa … to be disclosed to the SEC. What is Disclosure Obligation?
6. Person intends to solicit proxy, must It requires public companies to disclose to the
file a proxy statement and pay corresponding SEC and to the company shareholders
fees with the SEC. financial data on a regular basis as well as
material information about the company.
Who has the power to investigate violation of It is applicable only to public company.
SEC rules on proxy solicitation or to set aside
the action taken by the CorSec relating to the What companies are subject to SEC
validation of proxies? disclosure rules?
GSIS vs CA; SEC vs CA. Companies that are privately owned are not
Which government agency has jurisdiction? required by law to disclose detailed financial
SEC or RTC? Which body can act on a and operating information. They enjoy wide
complaint to nullify the resolution of the latitude in deciding what types of information
CorSec in accepting or denying a proxy? to make available to the public. Public
The person who will determine if the proxy is Companies, on the other hand are subject to
valid or not, is the CorSec. CorSec makes a detailed disclosure regulations about their
ruling, proxy valid or proxy invalid. Where financial condition, operating results,
would the stockholder go? management compensation and other areas of
Supreme Court said if the proxy is used in their business.
relation to election of directors or to
determine the quorum to elect directors, then
the RTC has jurisdiction. Even though the
petition may raise violation of SRC, like Financial Rehabilitation and Insolvency Act
violation of proxy solicitation. So even of 2010 (RA No 10142)
though on its face a petition may allege
violation of the SRC if the proxy is use for Lecture
election of directors or to determine the Is there life for insolvent debtor?
quorum to elect directors or any intra Yes. That’s why there is a law for the benefit
corporate matter, RTC has jurisdiction. Why? of insolvent debtors, and that when FRIA
Because election contest falls under the RTC. comes in. What then are the remedies
Election contest includes validation of proxy. available to a juridical insolvent debtor under
What of the proxy will be used for non intra FRIA.
corporate matter like increase of capital a. Rehabilitation
stock, appointment of auditor or approval or a.1. Court Supervised
we argue that it is already insolvent and that convince the court to carry out the liquidation
it has no more assets, and insolvent debtor of the bank. But before liquidation, it is the
has only 1 remedy under the old rules and that BSP who has supervision over financially
is to file a petition for liquidation. The distressed banks.
Supreme Court sustain our argument. That
ruling will no longer hold because FRIA What is the objective of rehabilitation?
covers both actually and technically insolvent Corporate rehab contemplates a continuance
debtor. of corporate life and activities in an effort to
The term debtor does not include banks, restore and reinstate the corporation to its
insurance companies, pre-need companies, former position of successful operation and
national and lock government agencies or solvency, the purpose being to enable the
units. company to gain a new lease on life and allow
You remember our discussion in SPCL. If a its creditors to be paid their claims out of its
bank is under rehabilitation or financially earnings. So, the basic questions and issues in
distressed, what are the remedies available? rehab concerns the viability of continuing the
BSP will appoint a conservator in case of business of the distressed corporation. so, it’s
liquidity or a receiver in case of insolvency. not to end it, not to close it. But to continue
But never to go on behalf with the court. RTC the business as a growing concern, through
has no jurisdiction over banks, when it comes adoption of a viable rehabilitation plan
to rehabilitation. It is lodged by law with the intended to restore the corporation to its
BSP. A bank cannot be placed under a control former state of solvency and successful
of a management committee because it operations.
violates the Central bank. Only BSP may That’s why the question to be asked is this:
appoint a conservator or receiver of a Given the various stakeholder of the debtor,
financially distressed bank. Insolvency is the stockholders. Creditors and the state, is it
equated with receivership and liquidity with better to rehabilitate the debtor than to carry
conservatorship. out its liquidation. Is the present value
recovery better than if the debtor will go on
We also discussed Apex Bancrights vs liquidation within 120 days from filing of the
Bangko Sentral ng Pilipinas. If a receiver is petition?
appointed because the bank is insolvent and What do you call this?
the receiver which is the PDIC, determines It is called the liquidation analysis. On every
that rehabilitation is no longer feasible, the rehab plan, must include this analysis.
monetary board of BSP is obligated to simply Without this plan, feature of the plan rather
notify in writing the bank’s board and the court will have to dismiss the petition and
proceed right away to liquidation. Direct the deny or disapprove the proposed
PDIC to liquidation. So, the court will only rehabilitation plan.
be involved after the liquidation of the bank. The answer is it’s better to allow it as
That’s why PDIC will file a petition for business concern(?) rather to liquidate it
assistance in liquidation with the court to within 120 days from filing of the petition.
This is a case penned by Justice Marvic St. Michael Medical Center, those of you
Leonen, Viva shipping vs Keppel Philippines who live in Meycauayan. That time very
Mining. So, the court took note of the profitable, so the owners wanted to construct
characteristics of an economically feasible a bigger and better hospital. So, the owners,
rehabilitation plan. put up a corporation to buy the land and
1. The debtor has assets that can construct the bigger hospital adjacent to its
generate more cash if used in its daily existing that corporation obtained a loan from
operations than if sold. BPI Family Savings Bank. The money was
2. Liquidity issues (meaning the cash used to buy the land and started the
requirement) can be addressed by a construction of the bigger hospital building.
practicable business that will generate While the hospital was almost finished it was
enough cash to sustain daily operations. not fully operational nor earned any income
3. The debtor has a definite source of since its incorporation. Unable to pay its
financing for the proper and full obligation because of mismanagement and
implementation of Rehab plan anchored on some economic issues or concerns, this
realistic goals and assumptions. corporation file a petition for rehabilitation.
So, the question is will you grant the petition
This is a case BPI Family Savings vs St. for rehab of this corporation, not ST. Michael
Michael Medical Center. Case penned by Medical Center but the corporation that was
Justice Bernabe. Purpose behind organized to borrow money from the bank
rehabilitation is to restore the debtor to its and use the money to buy property and
former state of solvency and operations. construct a bigger hospital. Should the
Supreme Court said Rehab assumes that the petition be given due course?
corporation has been operational but for Supreme Court said No because there is
some reasons like economic crisis or nothing to restore. The company has never
mismanagement had become distressed or been fully operational. No income was ever
insolvent. The petition for rehab should be earned by that corporation. so, if it is not a
denied if the debtor had never been in viable business concern then there is nothing
position of successful operation and solvency to restore, so it is not a viable candidate for
prior to the filing of the petition. While the rehabilitation.
debtor had indeed commenced business
through the preparatory act of opening a How is the objective attained?
credit line with the bank to finance the There are 3 ways of restoring the debtor to its
construction of a new hospital building for its former state of solvency and successful
future operations, the debtor corporation operation. First is the effect of stay order.
itself admits that it has not formally operated 1. During the pendency of
nor earned any income since its rehabilitation, enforcement of claims against
incorporation. This simple means that there the debtor are generally suspended. So, they
exist no viable business concern to be are stayed. For what reason or purpose? To
restored. So, the petition was dismissed. give the debtor and rehab receiver the time to
of his assets among themselves. Because I am Who can file a petition for rehab?
insolvent, my assets are not enough to pay all 1. Sole proprietorship
of my obligation. What happens to those 2. Partnership, when the filing is
obligations that are not paid, not settled approved by at least majority of the partners.
because of my limited property? They are 3. Corporation when approved by at
extinguished. And the improvement of least majority of the board and 2/3 of the
financial condition will not revive those outstanding capital stock.
claims against the individual debtor who Why is it that the petition for rehab must be
obtained discharge from the court. approved by the board, at least majority vote
and stockholders owning 2/3 of the
How do we distinguish voluntary from outstanding capital stock?
involuntary liquidation of individual debtors? So that the stockholders are bound by
We talk about liquidation from the standpoint whatever rehab plan the court may approve.
of individual debtor not juridical debtor, If the rehab plan as approve by the court
because these are governed by different rules. entails the conversion of debt to equity. Let’s
Voluntary liquidation is filed by the debtor say, the court says you creditors, you convert
whose assets are less that liabilities. your debt to equity. But if they convert what
Involuntary liquidation filed by 3 or more happens? The corporation will be issuing
creditors (not anymore) whose aggregate new shares to non-stockholders. What right is
claim is at least 500,000 if the debtor violated? Preemptive right. But if the
commits an act of insolvency (basically issuance of shares in payment of a debt, is
fraudulent act to defeat the rights of creditor. approve by the stockholders at least, no
So, if you say voluntary liquidation of preemptive right is violated. So, at the outset
individual debtor or even for juridical debtor, the law requires that the stockholders owning
the premise is if its voluntary the assets are 2/3 must approve and in fact sign the petition
less than liabilities. For individual debtor the for rehabilitation.
threshold amount is more than 500,000. What
about involuntary liquidation? It is filed by What is the procedure for debtor-initiated
creditors even though the assets of the debtor rehabilitation?
may be more than his liabilities. The basic 1. File a petition for rehab in the RTC of
premise of involuntary liquidation of the city where the principal office is located.
individual debtor is by the commission of an Must be under oath, verified to establish the
act of insolvency. But this remedy, is not insolvency of the debtor, whether actual or
applicable to juridical debtor. You have a technical insolvency and the viability of its
different ground to file involuntary rehabilitation. It shall include among others a
liquidation for juridical debtor. So, this is rehab plan and names of at least 3 nominees
more for individual debtor. So juridical to the rehab receiver position to implement
debtor cannot commit an act of insolvency the rehab plan.
basically. All individual debtor can. The court is not bound of course to choose
from the nominees proposed by the debtor
but usually the court chooses from the a pledge. The grantee of security interest
nominees starting from the first. But under cannot enforce security interest over the
the law the court is not bound by the property. While the stay order is subsisting.
nominations made by the debtor. Pal vs Kurangking (?)
2. If the court finds the petition to be Residents of Marawi city, plaintiffs in this
sufficient in form and substance, (it says case, went to Mecca for their pilgrimage.
establishes the insolvency of the debtor and They boarded Philippine Airlines aircraft.
there’s a rehab plan attach to the petition), it Went back home, likewise boarded
shall within 5 working days issue a Philippine airline aircraft after deplaning they
commencement order and if the petition discovered that their luggage was missing.
needs further amendment because not They filed an action for damage to recover
sufficient in form and substance then the the missing luggage against PAL in RTC
court may give time to petitioner to make it Marawi. In the meantime, PAL went on
sufficient in form and substance. Rehab and filed a petition for rehab in I think
What’s the significance of the QC if I’m not mistaken at that time. Anyway,
commencement order? the RTC issued a stay order. The question
That is what commences the rehabilitation now is what happens to the action to recover
procedure. That commencement order the missing luggage.
includes the appointment of the rehab Supreme Court said that action is likewise
receiver, sets the case for initial hearing and suspended given that an action to recover the
more importantly it includes a stay order. missing luggage has an equivalent monetary
A stay order that has the effect of suspending value. Can you imagine, even that action to
all action or proceedings to enforce claims recover the missing luggage is suspended by
against the debtor and actions to enforce any the issuance of the rehab or of a stay order.
judgment or attachment or provisional Policy holder cannot enforce against pre-
remedy against the debtor, prohibits need company. Labor to certain extent,
disposition or encumbrance of property execution pending appeal, can be enjoined.
except in the ordinary course of business and Enforcement of any judgment. If there is a
prohibit debtor from making any payment judgment rendered against the debtor outside
except when authorized by the rules. the rehabilitation meaning a different case.
CJAPDEP Can a judgment be enforced against the
debtor on the theory or argument that anyway
What do you mean suspend enforcement of it is rendered by a different court? No. That
claims? judgment ought to be stayed. Because of the
Because the law makes a distinction, the stay order.
claims cover both secured and unsecured Attachment, another court issued a writ of
obligations. That’s why a creditor cannot attachment of the property of the debtor.
collect payment of the obligation. A Debtor went on rehab and got a stay order
mortgagee cannot foreclose a mortgage. A from the rehab court. The attachment is
pledgee before a security act cannot enforce enjoined.
for liquidation. So, the court has the option to When is there a failure of rehab? In ascending
convert at the recommendation of the order.
receiver or on its own may convert the rehab 1. Dismissal of the petition of the court.
into one of liquidation if debtor is insolvent Because its not sufficient in form and
and no substantial likelihood that it can be substance.
rehabilitated. 2. Debtor fails to submit a rehab plan.
If the petition is given due course, the court No rehab plan attached to the petition or by
again shall direct the receiver to review, the order of the court, despite such order, no
revise and/or recommend action on the rehab plan was submitted.
plan. 3. There is a plan submitted by the
Receiver consults with debtor and creditors debtor to the court but that plan showed that
again. there is no substantial likelihood that the
Submits the rehab plan to the court. debtor can be rehabilitated within a
Court directs creditors to give comments to reasonable period.
the rehab plan. 4. There’s a rehab plan. Approved by
The court finally approves the rehab plan the court. But in the implantation of the rehab
upon recommendation of receiver and even plan, debtor fails to perform its obligation
over the objection of creditors if objection is thereunder or there is failure to realize the
manifestly unreasonable. objectives, targets or goals set forth therein,
The court has 1 year, generally, from filling including timeliness and conditions for the
of petition to approve the rehab plan. settlement of the obligations due to the
Proceedings terminated by order of the court creditors and other claimants.
declaring successful implementation of the 5. Fraud in securing a rehab plan or its
rehab plan or failure of rehab amendment.
Like colluding with the rehab receiver.
Had there been cases of successful rehab? 6. Other analogous circumstances as
So many. PAL. PAL went on rehab again. may be defined by the rules of procedure.
They filed chapter 11 petition to the states but
before this covid, decades ago, PAL went on Upon failure of rehab the court may issue an
rehab and was successful, got out of rehab, order converting the proceedings to a
until the covid. And the company owns liquidation.
tectile building in Ortigas, it filed rehab
petition and became successful. One of our What is the rationale for the stay order?
clients, went on rehab, almost in liquidation Rational is based on equalities, equity
mode, insolvent na, went on rehab, now principle of rehab.
successful, the 7th biggest taxpayer of the
country. So, there are success stories. Of What do you mean by Doctrine of Equality is
course, there are horror stories, rehab plan not equity in relation to stay order?
working out. All creditors of the debtor are in equal footing
with one another the mortgagee losses
1. The debtor has assets that can You have to convince the court that you are
generate more cash if used in its daily ready, willing and able to fully fund the
operation than if sold. rehab. Without this commitment, the rehab
2. Liquidity issues can be addresses by a plan will be disapproved.
practicable business plan that will generate
enough cash to sustain daily operations. This is the case that we handled PAGT vs
3. The debtor has a definite source of Fastech penned by Justice Bernabe. In this
financing for the proper and full case what happened?
implementation of a rehab plan based on The court approved the rehab plan because of
realistic goals and assumptions. the glowing recommendation of the rehab
receiver. As a consequence, we cannot fully
This is the case of Viva Shipping Lines enforce a right as a mortgagee. Because if
penned by Justice Marvic. The vessels are there is a stay order, the mortgagee cannot
fully depreciated. No longer serviceable. But foreclose the mortgage and cannot do the
there’s a plan to sell the vessels to a sister next step of the foreclosure. This case went
company. Are these allegations enough for up to the supreme court eventually. And we
the court to approve the proposed rehab plan? were sustained by the Supreme Court on 2
The Supreme Court said if the assets are no important point.
longer serviceable, vessel fully depreciated, 1. Despite the glowing recommendation
and the plan only indicates a plan to sell the of the receiver, despite her sterling
vessels of the company, that’s not enough. qualifications, the bottom line is that the plan
Because the sister company may not buy the lacks those features we discussed awhile ago.
vessels. You need a firm commitment to fund No liquidation analysis. There’s no material
the rehabilitation. financial commitment. All it has is a waiver
of penalty interest and charges. Di mo
Material Financial Commitment pwedeng sabihin na “di kayo pwedeng
Keppel case. There has to be a material mangolekta ah mga charges interest, mga
financial commitment of the debtor to fund penalty. If you will not collect
the rehabilitation whether cash infusion from makakabangon kami. “. That’s free ride. The
the stockholders of the corporation or new supreme court said that’s not enough, you
capital from third party investor. have to show readiness, willingness and
Readiness, Ability and Willingness (RAW) commitment of und the rehab. So, if you only
to fund the rehabilitation. asked for waiver of interest, the rehab plan
‘we are in talks with a possible investor’, ‘we should be denied. So, the supreme court
are exploring merger with more solid (?) reversed the court of appeals and allow our
institution’, ‘we intend to get, recover, client PAGT to foreclose the mortgage and
proceeds, insurance from the insurance consolidate title to the property.
company’ is not a material financial 2. The court is not bound by the report
commitment. of the receiver. Despite of the glowing
recommendation of the receiver, the court on
its own must study the rehab plan. Without hotel, obtained a loan from BPI.
the features we discussed awhile ago the Unfortunately, plans did not materialize
court must dismissed and deny the rehab because of economic difficulties, unable to
plan. pay its obligations to BPI and other banks, the
creditors. Sarabia Manor filed a petition for
Important points rehab. The rehab plan accepted by all
g. Commencement order retroacts to date of creditors except BPI. The rehab plan reduced
petition. the interest rate that the creditor may charge
Remember day 1 is the filing of petition for against the debtor while the pendency of the
rehab. Court has 5 days to determine if the rehab proceedings to 6% per annum. So sabi
petition is sufficient in form and substance. If ng court “oh kayo ireduce nyo yung interest
not, may require amendment to the petition rate nyo ah 6% ok na yan. 6% more than
until it is sufficient in form and substance. enough to meet you cost of funds – interest
After being convinced, the court will issue that the bank pays on the deposit”. BPI
commencement order. So filing is day 1, day objected, because the interest rate of BPI is
5 commencement order. What happens in 16%. Tama naman 16% bawasan mo ng 6,
between? What if a creditor sets off deposit lugi pa din.
with the debtor? What if there’s an Sabi ng court, yung objection mo ay
attachment during that period. unreasonable. Dahil 6% naman is enough to
Any process during that period between meet your cost of funds. So, this is an
filing and issuance of commencement order illustration of the cram down clause.
is nullified. Because the commencement
order retroacts to the date of filing of the What is the basis of the cram down clause?
petition. Police Power of the state. Taking into
account all the stakeholders of the debtor.
The case of Sarabia Manor. This is a case Not just the interest of 1 stakeholder, like 1
penned by justice Bernabe, expert on FRIA. creditor in this case.
This illustrates the power of the court to
overrule an objection if the objection is Bar exam Questions
manifestly reasonable. An objection that is
based only on reduction of interest, the Debtor Corporation and its principal
interest rate quoted or approved by the court, stockholders filed with SEC a petition for
does not give us benefit or mean loss for the rehabilitation and declaration of a state of
creditor. If that is the only basis of the suspension of payments under PD 902-A.
objection, invariably the court will have to The objective was for SEC to take control of
deny or overrule the objection. Taking into the corporation and all its assets and
account the interest of all stakeholders of the liabilities, earnings and operations and
corporation. What happen in this case? rehabilitating the company for the benefit of
Sarabia Manor, the biggest hotel in ilo-ilo, investors and creditors.
wanted to expand, have it bigger and better
Generally, the unsecured creditors had c. Whether or not the 2nd bank can
manifested willingness to cooperate with foreclose the mortgage on the property of the
Debtor Corporation. The secured creditor, stockholders who acted as third-party
however, expressed serious objections and mortgagor.
reservations. Under FRIA, Generally, the stay order does
1st Bank initiated judicial foreclosure on the not enjoin the foreclosure of mortgage on the
property of debtor property of third-party mortgagor because its
2nd Bank foreclosure on third-party not part of the rehab unless it can be shown
mortgage on the assets of the principal and approve by the court that the property of
stockholders. the third-party mortgagor is necessary to
3rd Bank filed a suit against the principal rehabilitate the debtor.
stockholders who had held themselves liable
jointly and severally for the loans of Debtor What about the 3rd bank?
Corporation with the said Bank. The 3rd bank can file the collection suit
After hearing, the SEC directed the against the sureties. Because they are not
appointment of Rehab receiver and ordered covered by the stay order.
the suspension of all actions and claims
against the debtor corporation as well as When may creditor/s commence involuntary
against the principal stockholders. proceedings?
a. Whether or not the order of the SEC Any creditor or group of creditors with a
is valid. claim of at least 1M or at least 25% of
SEC has no more authority or jurisdiction to subscribed capital stock or partner’s
hear and entertain petition for rehab. Transfer contribution whichever is higher, may initiate
to the RTC of the city where the principal involuntary proceedings against the debtor by
office is located. filing a petition for rehabilitation with the
Let’s assume that the order is issued by the court.
RTC, is the order of suspension valid? So, the threshold amount is P1M unpaid. You
Its only valid with respect to the corporation know what made the old insolvency law,
and not with respect to stockholders who are obsolete?
not part of rehab. Because the threshold amount is P1,000.
FRIA committed the same mistake. In what
b. Is the order of suspension, assuming sense? There’s no automatic adjustment of
by the RTC on judicial foreclosure the threshold. 10 years ago, 1M is a lot of
proceedings, valid? money. But now, 1M is small. If that would
Its is valid. Because stay order covers both be the threshold amount for rehabilitation.
the secure and unsecured creditors. So even But that is enough, that there is a claim of at
if secured creditor cannot foreclose the least P1M, it must be coupled with the
mortgage. following:
a. There is no genuine issue of fact on
law on the claim of petitioner. (meaning there
is no doubt whatsoever, that the petitioner has This has not been asked in the bar but very
an outstanding claim) and that due and practical solution.
demandable payments have not been made Out of Court or Informal restructuring
for at least 60 days or debtor failed generally agreement
to meet his liabilities as they fall due Out of court meaning we don’t need court
b. A creditor, other than the petitioner approval for the agreement. Its among the
has initiated foreclosure proceedings against creditors. You go to court for enforcement of
the debtor that will prevent the debtor from the agreement if its violated. But for
paying its debts as they become due or will implementation, you don’t need to go to
render it insolvent. court.
What about free negotiated rehabilitation? Terms or approval requirements for Out of
Pre -negotiated meaning, nagkasundo na, Court or Informal restructuring agreement?
outside the court yung debtor at creditors. 1. Debtor and creditor must agree of
Hindi na kelangan maghearing pa ng course to the out of court or informal
matagal. Nag usap na kami. Ito court restructuring agreement.
aprubahan mo nalang. So, when this may be 2. It must be approved by creditors
resorted to? representing at least 67% of secured claims,
Insolvent debtor, by itself or jointly with any 75% of unsecured claims and 85% of total
of its creditors, may file a verified petition liabilities.
with the RTC for approval of a pre-negotiated What happens to 15%?
Rehab Plan which has been endorsed or Bound under the cram down effect doctrine.
approved by creditors holding at least 2/3 of
the total liabilities of the debtor, including What do you mean by standstill agreement?
secured creditors holding more than 50%of It is a remedy afforded by FRIA. It means that
the total secured claims of the debtor and pending the negotiation of out of court or
unsecured creditors holding more than 50% informal restructuring agreement, so debtor
of the total unsecured claims of the debtor. is discussing with creditor of out of court
The petition shall include the pre-negotiated agreement, there can be a standstill
rehab plan, including the names of at least 3 agreement for 120 days. In the sense that no
qualified nominees for rehab receiver. creditor can enforce the claim against the
Here, it’s not based on number of creditors. debtor within the 120 days standstill period.
Its based on the amount of liabilities. As long as that agreement is approved by
creditors representing more than 50% of total
What happens to the remaining 1/3? Are they liability and notice is published in newspaper
bound by the rehab plan? of general circulation once a week for 2
Yes. Cram down effect. This plan when weeks and period does not exceed 120 days
approved by the court may be imposed from the date of effectivity.
against the remaining 1/3 creditors. So, this is a counterpart of a stay order.
Except that there’s no order from the court. If
you are the debtor you have so many I’m not in favor of your insolvency. No no no
creditors, you just need 120 days. While you no. It’s the remedy available afforded by law
are working out the restructuring agreement. to insolvent debtor. So, if you are insolvent
You don’t want to go to court. Its expensive. and the petition really shows that you are.
Get 1 creditor or 2 as the case maybe, if that Then the court will have no choice but to
1 or 2 creditors represent at least 50% of total adjudicate you as insolvent.
liabilities. Then the rest of creditors cannot
enforce their claims until finalization or non- One of my classmates, I hope this will not
finalization of out of court or informal happen to you, incurred various credit card
restructuring agreement. charges and had to borrow money from
institutions umabot ng 15M-20M and
When may an insolvent juridical debtor file a kanyang utang. This is a less for all of you. If
petition for voluntary liquidation? you use your credit card please pay in full.
Where the juridical debtor, insolvent or Don’t pay only the minimum charge. Why?
individual debtor the premise is assets less That minimum charge will earn interest. It’s
than liabilities initiated by the debtor. gonna kill you. Pag minimum palaki ng
Therefore, the petition for liquidation must palaki interest kasi yung next charge mo if
show or contain the you only pay a minimum charge and the
1. schedule of assets and liabilities interest maccarry over sa next billing mo,
including list of creditors with addresses, until such time you can’t afford even the
amounts of claims and collaterals or minimum charge. So, if you cannot afford it
securities if any. don’t get a credit card. If you have a credit
2. An inventory of all its assets card pay in full. That’s the bottom line.
including receivables and claims against third My classmate, good friend of mine, had to
parties use credit card to buy supplies of the children,
3. Names of at least 3 nominees to the tuition fee and household requirements and
position liquidator. so on until the obligation ballooned to a 20M.
So, it must show based on the schedule that A very good position, she cannot afford her
there are more claims than liabilities. If the creditors knocking at her door if they filed
petition is sufficient in forms and substance, case against her, she may be fired by the
the court shall issue a liquidation order. company that she’s connected with. Sabi
sakin “Nilo what should I do, my husband
Is the issuance of an order, declaring also, financial problems… what do I do?”
petitioner in voluntary liquidation proceeding well I said “ok, what are your obligation, blah
insolvent mandatory upon the court? blah blah,” so merong cheke. So pag merong
Yes. If the petition is sufficient in form and cheke unahin mo yung cheke kasi pwede
substance meaning it shows that the assets are kang makulong dun. Pwede ka ma BP22. So
indeed liabilities the court has no choice but unahin naten kako yung cheke. I have to lend
to adjudicate the person as insolvent. And the money para ma ano yung cheke. Ok still
court has no discretion. The court cannot say Malaki pa din natira. So, I said you have no
choice but to file a petition for liquidation. Who may file petition for involuntary
What do you mean? We go to court and the liquidation?
court will declare you as bankrupt. Declare This time it is involuntary liquidation of
you insolvent. What are your assets? I have juridical debtor. This premises conditions
an old car. Anything else? That’s it. Ok, so let pertain to involuntary liquidation of juridical
those creditors partake off that decrepit car of insolvent debtor. So being involuntary it is
yours. filed by creditors.
So, we, of course not me, because we 3 or more creditors the aggregate claim is at
represent the conglomerates are banks. In least 1M or at least 25% of the subscribed
fact, some of the creditors are banks. That’s capital stock or partner’s contribution
why we cannot represent her, it will be whichever is higher, may apply for and seek
conflicted. But I ask a friend, a former student the liquidation of an insolvent debtor by
to handle the case for her. She filed a petition filing a petition for liquidation premised on
for liquidation, now she is a free person. All the following conditions:
of those debts are discharged. They can no 1. If there is no genuine issue of fact or
longer run after her. She’s starting a life all law on the claims of the petitioners and that
over again. It can happen to anyone but I hope the due and demandable payments not made
it will not happen to you. There’s always a for 180 days or debtor failed generally to
remedy. Insolvent under FRIA. meet its obligation as they fall due.
It is uncommon in the Philippines as Rehab, not made for 60 days.
individual debtor, to acknowledge to the 2. There is no substantial likelihood that
whole world that I am insolvent. I am debtor may be rehabilitated.
bankrupt. We have so much pride that we’ll
never admit to anyone that we are insolvent. If the petition is sufficient in form and
That we are heavy on debts. But in the states, substance, the court shall issue an order
it’s something very common, it’s called directing the publication of the petition,
Chapter 11. So, Allan Iverson filed a petition, directing the debtor, creditors who are not
can you imagine Allan Iverson, at one point a petitioners to file their comment on the
billionaire, one of the best players in petition. If after going over those comments
Philadelphia, had to go to court and declare a filed, the court determine that petition is
bankruptcy. His wife asked for support. Can sufficient in form and substance and
you imagine the wife asking for support? And meritorious, the court shall issue the
you have to say “I can’t even afford to buy liquidation order.
McDonalds” and the wife threw $100 to
Iverson, here is $100 buy your McDonalds.” Can a distresses corporation file a petition for
Anyway, bottom line is this is very common rehab after the dismissal of its earlier petition
in states. So many actors, actresses have gone for insolvency?
to the bankruptcy court. Saten hindi Yes, the dismissal of a petition for insolvency
masyadong common. does not preclude the distressed corporation
from filing a petition for rehab. Dismissal of
petition for insolvency only means that the If there is no agreement in 3 months from
corporation may still be restored to solvency. filing, then those claims can now be enforced.
What if, there’s an agreement by the debtors
Can the corporation file a petition for rehab and creditors, and the court issued an order
first and after it is dismissed file a petition for approving suspension of payment?
liquidation? So, despite the order of the court approving
Not necessary anymore. Under FRIA, the the suspension of payment these creditors
petition for rehab, either upon the may enforce their claims against the debtor.
recommendation of the receiver or by the They are not covered by the order of
court’s order on its own can convert the rehab suspension of payment.
into one of liquidation, if there’s no 1. So those creditors having claims for
substantial likelihood that the debtor can be personal labor, maintenance like the
rehabilitated. contractor, foreman, expense of last illness
and funeral of the wife or children of the
When may an individual debtor file a petition debtor incurred in the 60 days before the
for suspension of payments? filing of the petition. So, take note ascendants
This is available to individual debtor, not to a are not included. Wife and children only of
sole proprietorship. What is the basic premise the debtor.
for suspension of payment of individual 2. Secured creditors
debtor? 3. Creditors whose claims are not listed
He has sufficient property to cover his debts in the petition
but foreseeing the impossibility of meeting
those debts as they respectively fall due. So, What are the requisites for the approval of the
he may file then under oath a petition for petition by the court?
suspension of payment in the city or province This is very important the so-called Double
in which he resided 6 months prior to the Majority Rule in suspension of payments.
filing of petition. He shall attach the petition So, the petition for suspension of payment
of course, the assets, liabilities, inventory of must be approved by 2/3 of creditors
assets and proposed agreement with his representing at least 3/5 of total liabilities. It
creditor. Meaning how many months or years is only in this kind of remedy that number of
will he propose the creditors and under what creditors is important. In other remedies we
terms. have seen is the amount of liabilities is
critical, not the number of creditors. But for
Who are not covered by the court order and suspension of payment, number of creditors
proceedings on suspension of payment? is important.
When a debtor files a petition for suspension
of payment, mere filing suspends claims. Example
Except the following: The total amount of liabilities owing to A B
The debtor has 3 months to get an agreement C D E F is 250M. The amount due to each
with the creditors on suspension of payment. AB C is 150M. that is 3/5 of 250. In the
creditors meeting, the 3 agreed to the petition No. Because in rehab, the test is whether or
but not the remaining creditors. Will the not the rehab plan is sufficient to rehabilitate
petition prosper then? the debtor. You don’t need to get the decision
It cannot prosper. The court cannot approve of the majority. But if an individual debtor
it. Because even though 150 is 3/5 of 250 who is not a sole proprietorship, he cannot go
only 3 out of 6 approved the petition. It on rehab. But he can go on suspension of
should have been 4 out of 6 or 2/3. payments. That petition should be approved
by double majority of creditors. Otherwise,
Sole proprietorship cannot file suspension of the court cannot approve it.
payment but can file rehab. Is he subject to
the double majority rule?
such petition shall be an act of 5. In general, debts that are not provable
insolvency. against the estate of the insolvent or
If the court finds the petition not listed in the schedule submitted
sufficient in form and substance it by the insolvent debtor. (BAR 1988)
shall, within five (5) working days Q: When may creditor/s file a petition for
involuntary liquidation against an
issue the Liquidation Order.
individual debtor?
A: Any creditor or group of creditors with a
Q: A debtor who has been adjudged claim of, or with claims aggregating at least
insolvent is given his discharge by the Five hundred thousand pesos (Php500,
court after his properties have been 000.00) may file a verified petition for
applied to his debts. A year later, with liquidation with the court of the province or
those debts still not fully paid, he wins in city in which the individual debtor resides
the sweepstakes and comes into a large alleging that the debtor committed an act of
fortune. His creditors sue him for the
balance. insolvency.
Would the suit prosper? Reasons. Discussion:
It used to be at least 3 creditors under the old
A: Insolvency Law. Now, under FRIA even 1
Discussion: creditor may file a petition to place the debtor
So we know that once there is an order of under involuntary liquidation if he commits
discharge, basically, whatever properties an act of insolvency. So the basic premise of
available to the debtor are distributed to the involuntary liquidation for individual debtor
creditor and even though they may not have is the commission of an act of insolvency by
been fully paid given that the assets are less the debtor, this is not proper, as you know, for
than the liabilities, those obligations are juridical debtor. So a juridical debtor cannot
deemed extinguished. But there are debts commit an act of insolvency, it is limited to
that are not discharged. These are the debts an individual debtor.
that subsist despite the order of discharged
issued by the liquidation court: Slides:
Q: Distinguish between voluntary
Slides: liquidation and involuntary liquidation of
The suit will not prosper on debts that are individual debtors.
properly discharged in insolvency. Those that A:
are not discharged, assuming that a discharge In voluntary liquidation, it is the
can be obtained, include: debtor himself who files the petition
for insolvency, while in involuntary
1. Taxes and assessments due the liquidation, a creditor or group of
government, national or local; creditors are the ones who file the
2. Obligation arising from petition for liquidation against the
embezzlement or fraud; insolvent debtor.
In voluntary liquidation, the filing of
3. Obligations of any person liable to the the petition is by itself the act of
insolvent debtor for the same debt; insolvency whereas in involuntary
liquidation filed by creditor/s against
4. Alimony or claim for support;
the individual, the latter must have So either way, to me, an insane person cannot
committed an act of insolvency. file or cannot be the object of petition for
The required amount of debt for the voluntary liquidation or cannot be the object
debtor to file the petition for of involuntary liquidation.
voluntary liquidation should exceed P
500,000 whereas in involuntary
liquidation, the creditor/s claims Q: What are considered acts of insolvency
should be at least P 500,000. under FRIA?
To be more precise, under this law, the State This is one of the objectives of this law – to
endeavors to: promote free and fair competition, which
encourages the players to improve their
a. Enhance economic efficiency and service.
promote free and fair competition in
trade, industry and all commercial More importantly, you give the public wider
economic activities, as well as establish choices or options.
a National Competition Policy to be
implemented by the Government of the Discussion for slide: Keep these three in
Republic of the Philippines and all of its mind because these are the prohibited acts
political agencies as a whole; under the PCA – anti-competitive agreement,
b. Prevent economic concentration which abuse of dominant position, and ant-
will control the production, distribution, competitive mergers and acquisitions, as you
trade, or industry that will unduly stifle will see in the next slides.
competition, lessen, manipulate or
constrict the discipline of free markets; What is the scope and application of the
and PCA?
c. Penalize all forms of anti-competitive
agreements, abuse of dominant position The PCA shall be enforceable against any
and anti-competitive mergers and person or entity engaged in any trade,
acquisitions, with the objective of industry and commerce in the Republic of
protecting consumer welfare and the Philippines. It shall likewise be
advancing domestic and international applicable to international trade having
trade and economic development. direct, substantial, and reasonably
foreseeable effects in trade, industry, or
Discussion for (a): There was a time there commerce in the Republic of the
was only one telecom company in the Philippines, including those that result
Philippines – PLDT. It was a complete from acts done outside the Republic of the
monopoly. You have no choice, despite Philippines.
complaints of inefficiency, poor service, high
billing, you cannot do anything about it The PCA shall not apply to the
because it was the only telecom provider. combinations or activities of workers or
Now we have Globe and Smart, but even that, employees nor to agreements or
many were still complaining; the duopoly arrangements with their employers when
being complained by many. Probably better such combinations, activities, agreements,
service, better efficiency cannot be provided or arrangements are designed solely to
by these two companies that is why there is facilitate collective bargaining in respect of
now a third player. conditions of employment.
but to interpret, enforce, and implement jurisdiction on the part of the PCC, as
the provisions of the PCA, it is the PCA opposed to a petition for review where you
that has the original and primary only point out to the CA the error of the PCC
jurisdiction. in appreciation of facts and of the law.
b. It may summarily punish for contempt by However, the law says “in accordance to the
imprisonment not exceeding thirty (30) rules of court”, therefore, it should be petition
days or by a fine not exceeding one for review, not petition for certiorari.
hundred thousand pesos (Pl00,000.00), or
both. In the same way, how do you appeal a
decision of the SEC, one that is also a quasi-
NOTE: This is at the option of the PCC. judicial body, to the CA? It is through a
petition for review, not petition for certiorari.
c. It may issue subpoena duces tecum and
subpoena ad testificandum. Therefore, the answer is through a petition
for review under Rule 43 of the Rules of
d. It may conduct administrative proceedings Court.
and impose administrative fines.
Does the PCC have fact-finding
NOTE: ONLY administrative fine. It authority?
cannot impose penal sanctions.
A: Yes.
Where can the decision of the PCC be The PCC has the sole and exclusive
appealable? authority to initiate and conduct a fact-
finding or preliminary inquiry for the
Decisions of the PCC shall be appealable enforcement of the PCA. Section 31, PCA
to the Court of Appeals in accordance with
the rules of court. It may conduct inquiry, investigate, and
hear and decide on cases involving
Q: What is your mode of appeal, is a violation of the PCA and other existing
petition for review or petition for competition laws motu proprio, upon
certiorari? receipt of a verified complaint from an
A: The law is not clear. interested party, or upon referral by the
concerned regulatory agency. Section
A commissioner wanted to answer petition 12(a), PCA
for certiorari. Why? Because the threshold or
premise for such petition is grave abuse of Q: Can the PCC conduct inquiry,
discretion, which is difficult to prove. It investigation motu proprio or upon
requires a higher degree of evidence to show complaint only of any interested party?
that there was lack of jurisdiction or excess of
If the evidence so warrants, the PCC may There are two kinds:
file before the DOJ criminal complaints for The following agreements, between or
violations of the PCC or relevant laws for among competitors, are per se
preliminary investigation and prosecution prohibited:
before the proper court. The DOJ shall a. Restricting competition as to price, or
conduct such preliminary investigation in components thereof, or other terms of
accordance with the Revised Rules of trade.
Criminal Procedure. Section 31, PCA b. Fixing price at an auction or in any
form of bidding including cover
Just like the SEC, the PCC is not a bidding, bid suppression, bid rotation
prosecutorial agency. It may only conduct and market allocation and other
initial investigation, and then refer the matter analogous practices of bid
to the DOJ which will be the one to conduct manipulation. Section 14, PCA
preliminary investigation and prosecution
before the proper court. These two are per se violations regardless of
the effect on competition:
What are the general classifications of a. Price fixing
violations under the PCA? b. Bid-rigging (*as enumerated in the
above slide)
There are three:
a. Anti-Competitive Agreements. What are the anti-competitive
(Section 14, PCA) agreements which are not considered
b. Abuse of Dominant Position. (Section violations per se?
15, PCA)
The other kind, as we said, under anti- Remember that price-fixing is per se
competitive agreements are those not violation.
considered violations per se, but if these
agreements between and among competitors This involves restricting competition as to
have the object or effect of substantially price, or components thereof, or other
preventing, restricting, or lessening terms of trade. This happens when
competition then they are prohibited. (Take competitors agree on the prices of goods or
not of PRLC – preventing, restricting, or services, rather than independently setting
lessening competition) their respective prices.
The following agreements, between or This occurs, for example, when competitors
among competitors which have the object agree to set the price of goods or services
or effect of substantially preventing, rather than letting the market be the one to
restricting or lessening competition shall determine the price of those goods or
be prohibited: services.
other brand of tires. In the States there is now marginalized service providers and
an attempt to unbundle Facebook from producers.
Instagram, Messenger. There is an antitrust
suit filed against Facebook. Q: The Enforcement Office of PCC filed
Statement of Objections with the PCC
Price discrimination: Example, when price is alleging that Urban Deca Homes
Manila Condominium Corporation
set higher for elderly people than for young
("UDH Manila”) and 8990 Holdings, Inc.
people. This is not allowed. ("8990 Holdings") abused its dominant
position in the provision of property
d. Tying - an often illegal arrangement where management services by preventing
in order to buy one product, the consumer internet service providers other than Fiber
must purchase another product that exists in to Deco Homes ("FDTH") from providing
a separate market. (e.g., if a particular brand fixed- line Internet service to residents of
of car requires the use of a particular brand of UDH Manila. The Enforcement Office and
Urban Deca filed a Joint Motion for
tires).
Settlement setting out the commitments,
terms, and conditions to address the
e. Price discrimination - a selling strategy that alleged conduct and admitting abuse of
charges customers different prices for the dominant position of UDH Manila
same product or service based on what the and 8990 Holdings. The commitments
seller thinks they can get the customer to include perpetual desistance from anti-
agree to. In price discrimination, the seller competitive conduct.
charges each customer the maximum price he
a. When is an entity in a dominant
or she will pay. Forms of price discrimination position?
include age discounts, occupational
discounts, gender based pricing. A: An entity is in dominant position in the
market if it is in a position of economic
f. Imposing barriers to entry - acts that strength which makes it capable of
controlling the relevant market
prevent competitors from growing within the
independently from any or a combination of
market in an anti-competitive manner, except the following: competitors, customers,
those that develop in the market as a result of, suppliers, or consumers.
or arising from a superior product or process,
business acumen, or legal rights or laws. It should be emphasized that an entity's
dominance in a market is not per se anti-
g. Monopsony - directly or indirectly competitive. However, Section 15 of the
PCA, prohibits abuse of such dominance that
imposing unfairly low purchase prices for the
would substantially prevent, restrict, or
goods or services of, among others, lessen competition. (Competition
marginalized agricultural producers, Enforcement Office of the Philippine
fisherfolk, micro, small, and medium Competition Commission vs. Urban Deco
enterprises (MSMEs), and other homes Manila Condominium Corporation
and 8990 Holdings, Inc., PCC Case No. E-
2019-001, September 30, 2019.)
A: Section 12(f) of the PCA grants the PCC A: Yes. As to the first competition concern,
express powers to impose interim measures SM Prime Holdings, Inc. undertake to treat
such as show cause orders and cease and Sill mall tenants and lease applicants engaged
desist orders after due notice and hearing in in the sale of Goldilocks-like products or
accordance with the PCA’s implementing those in the same relevant product market in
rules and regulations. Under Rule 2.13 of the a fair, reasonable, and non- discriminatory
Merger Procedure, the interim measures may manner. Likewise, it will not refuse
include ordering a party, its subsidiaries or Goldilocks' competitors from locating in SM
affiliates, including their respective directors, malls nor foreclose its spaces.
officers, agents or employees, to temporarily
cease or desist from the performance of As to the second, it shall maintain data
certain acts. protection protocols and firewall systems
which will prevent the ability of SM Group
NOTE: While PCC has the power to issue to access detailed sales data or information of
interim measure while conducting the motu SM Prime Holdings tenants. The tenant sales
proprio review, it cannot be done ex parte. data in possession shall not be used and will
There must be notice and hearing in never be used for any purpose outside the
accordance to the rules of PCA. computation of rent due from such 5M malls
tenant. Also, SM Group obliged itself to
Q: Mergers and Acquisitions Office comply with its commitment to submit
("MAO") of the PCC issued a Statement reports to the PCC and acknowledge the
of Concerns detailing the potential authority of the PCC's monitoring team.
competition issues arising from the (Acquisition by SM Retail, Inc. of goldilocks
acquisition of Goldilocks. A major finding Bakeshop, Inc., Commission Decision No.
by the review undertaken by MAO is the 42-M-017/2017, December 29, 2017.)
possibility of partial or total foreclosure in
the supply of retail spaces in SM Malls Q: Is PCC allowed to forbear the
to competitors of Goldilocks after its application of the PCA?
acquisition by the SM Group (SM Retail,
b. Forbearance will neither impede Compared to the 10th Negative List. the 11th
competition in the market where the entity Negative List is less restrictive since it now
or group of entities seeking exemption allows full foreign participation in 5
operates nor in related markets; and investment areas or activities and relaxes
foreign equity restrictions by allowing up to
c. Forbearance is consistent with public 40% foreign participation in 3 sectors. The
interest and the benefit and welfare of the following table outlines the changes
consumers. introduced by the11th Negative List in the
following investment areas:
A public hearing shall be held to assist the
PCC in making this determination. 10TH NEGATIVE 11TH NEGATIVE
LIST LIST
The PCC's order exempting the relevant
Internet Business. which refers to internet
entity or group of entities under this section
access providers that merely serve as
shall be made public. Conditions may be
carriers for transmitting messages. rather
attached to the forbearance if the PCC deems
than being the creator of the
it appropriate to ensure the long-term interest
message/information.
of consumers.
(Dean: Before foreigners are not allowed.
In the event that the basis for the issuance
Now, 100% allowed. Internet businesses
of the exemption order ceases to be valid the
do not create content but transmit
order may be withdrawn by the PCC.
messages only)
0% 100%
11TH NEGATIVE LIST Carved out as an
exception to mass
Discussion: media, which is
Under the Foreign Investment Act, the strictly restricted to
executive is required to draw up a list of Filipino nationals
foreign corporations which are allowed to Teaching at higher education levels
investment or not. provided that the subject being taught is
Discussion: The person to whom the PIC Therefore, you cannot do any of the acts (MR
outsource the processing of personal data CROS CUCUBED) without the consent of
referring to the data subject. The PIC the data subject.
subcontracts the processing of the
information to the PIP. Q: What is outsourcing or subcontracting
in the context of data privacy law?
Q: What is processing? A: Outsourcing or subcontracting is the
A: Processing refers to any operation or any disclosure or transfer of personal data by a
set of operations performed upon personal personal information controller to a personal
information including, but not limited to, the information processor. The purpose of such
collection, recording, organization, storage, disclosure is for the personal information
updating or modification, retrieval, processor to perform processing activities on
consultation, use, consolidation, blocking, the personal data upon the instructions of the
erasure or destruction of data. Section 3(j), personal information controller.
DPA.
A personal informational controller, from the
Discussion: Personal information and name itself, controls the processing activities
personal sensitive information shall not be and decides on what information shall be
processed without consent of the data subject collected, or the purpose or extent of its
except in the cases allowed by law. If the processing. A personal information
processing is unauthorized, it constitutes a processor, on the other hand, refers to any
violation of the right to privacy of the data natural or juridical person or any other body
subject under the Data Privacy Act. to whom a personal information controller
may outsource or instruct the processing of
Keyword for Processing: MR CROS personal data pertaining to a data subject.
CUCUBED
M - MODIFCATION The processing by a personal information
R- RECORDING processor must be governed by a contract or
C - CONSOLIDATION other legal act that binds the personal
R - RETRIEVAL information controller to the personal
for processing the personal data other the information, or when put together with
personal data than that as other information would directly and
involved instructed by the certainly identify an individual. Section 3(g),
personal DPA.
information
controller Thus, the image of a person recorded by a
Lastly, data sharing Outsourcing is best camera constitutes personal data.
shall be governed evidenced by an
by a data sharing outsourcing Examples: owner of the car with a particular
agreement agreement plate number, the person with this telephone
number
Data sharing and outsourcing agreements
must comply with the principles of Discussion:
transparency, legitimate purpose, and Gist of data privacy act: Personal information
proportionality as well as general principles will not be processed without the consent of
in collection, processing, and retention of data subject except in cases allowed by law.
personal data.
Keyword: to identify an individual. Any
Q: Do the following activities constitute information that will identify an individual is
data sharing or outsourcing? personal information.
a. When a school discloses to an entity the
entire student data for archiving or Q: What is the scope of the application of
recording purposes; the DPA?
b. When a bank transfers to a third party A: This DPA applies to the processing of all
personal data of clients for purposes of types of personal information and to any
loan or credit rating: natural and juridical person involved in
c. When a telecommunications company personal information processing including
discloses personal data of its subscribers those personal information controllers and
which it obtained for purposes of processors who, although not round or
marketing to a bank for the letter's established in the Philippines, use equipment
purpose of credit rating and vice versa? that are located in the Philippines, or those
A: The first two activities are outsourcing who maintain an office, branch or agency in
while the third is data sharing. the Philippines.
the country, provided that the personal data or the sentence of any court in such
relates to a Filipino citizen or a resident of the proceedings:
Philippines, and/or the personal information
controller (PIC) or personal information Dean: Health is SPI. The only institution
processor (PIP) has an established link to the allowed to disclose if you have COVID is
Philippines. Thus, as long as any of the the DOH. Even employers are not
foregoing conditions are met, processing of allowed to disclose when they have
personal data, whether involving a cross- employees who have COVID.
border dimension, will be covered by the
DPA, the IRR and other applicable issuances Education. That is why we cannot post
by the NPC. online your grades because grades are
SPI.
Discussion:
Example: Let's say the one processing the Any offense committed or alleged to have
data is a company in Singapore. The data been committee. Di pwedeng sabihin na
subject is a citizen or resident of the may admin case.
Philippines but processing is being done
outside the country. Does DPA apply? c. Issued by government agencies peculiar
A: Yes. As long as the data relates to a to an individual which includes, but not
Filipino citizen or a resident of the limited to, social security numbers.,
Philippines or the processor has link to the previous or current health records,
Philippines. licenses or its denials, suspension or
revocation, and tax returns: and
Q: What is sensitive personal information?
A: Sensitive personal information refers to d. Those specifically established by an
the following personal information: executive order or an act of Congress to
a. an individual's race, ethnic origin, marital be kepi classified. Section 3(I), DPA.
status, age, color, and religious,
philosophical or political affiliations;
Dean: The keyword is REMCARPP Q: What are main differences between
(race, ethnic origin, marital status, color, personal information (PI) and sensitive
age, religious, philosophical or political personal information (SPI)?
affiliations) A:
PI SPI
b. an individual's health, education, genetic As to Processing
or sexual life of a person, or to any Processing of PI is Processing of SPI is
proceeding for any offense committed or allowed if not prohibited unless
alleged to have been committed by such otherwise at least one ground
person, the disposal of such proceedings, prohibited by law, for lawful
and when at least processing exists.
c. The processing is necessary for publish the names of the MCLE non-
compliance with a legal obligation to compliant lawyers who have not executed
which the personal information controller any waiver relative to RA 10173 or the
is subject. DPA?
A: The posting or publication of the names of
Example of dormant accounts to the MCLE non-compliant lawyers is permitted
national treasurer for the purpose of even without the consent of the lawyer
initiating escheat proceedings. pursuant to Section 12(l) of the DPA, to wit:
"SECTION 12, Criteria for Lawful
d. The processing is necessary to protect Processing of Personal Information. - The
vitally important interests of the data processing of personal information shall be
subject, including life and health; permitted only if not otherwise prohibited by
law, and when at least one of the following
HMOs may process personal information conditions exists: xxx
of its members for the purpose of
providing health and medical services. The processing is necessary for the purposes
of the legitimate interests pursued by the
e. The processing is necessary in order to personal information controller or by a third
respond to national emergency, to part/ or parties to whom the data is disclosed,
comply with the requirements of public except where such interests are overridden by
order and safety, or to fulfill functions of fundamental rights and freedoms of the data
public authority which necessarily subject which require protection under the
includes the processing of personal data Philippine Constitution,"
for the fulfillment of its mandate;
In order to rely on legitimate interests as basis
f. The processing is necessary for the for lawful processing, the Personal
purposes of the legitimate interests Information Controller (PIC) must be able to
pursued by the personal information satisfy its key elements which can be broken
controller or by a third party or parties to down into a three-part test, as follows:
whom the data is disclosed, except where 1. Purpose test: Are you pursuing a
such interests are overridden by legitimate interest?
fundamental rights and freedoms of the 2. Necessity test: Is the processing
data subject which require protection necessary for that purpose?
under the Philippine Constitution. 3. Balancing test: Do the individual's
interests override the legitimate
Who are qualified for promotion, job interest?
assignments
Here, there is a legitimate interest in the
Q: May the Mandatory Continuing Legal posting or publication of the names of MCLE
Education Office (MCLE Office) legally non-compliant lawyers, the main purpose of
organize, store, update, modify, use, agent specifically authorized by the data
access, share and/or disclose to any subject to do so."
member of the ABC Group my personal
data for regular business use such as but From the definition provided above, it is
not limited to relationship management, clear that consent may be evidenced by
marketing products or services including written, electronic, or recorded means.
cross-selling and direct marketing, Any of the three MI formats provided may
profiling, automated decision making, be adapted by a personal information
researching, survey, internal policy, legal controller (PIC) relative to the collection
and regulatory compliance. I likewise and processing of personal data. The NPC
acknowledge to have read and understood currently does not maintain any preference
ABC's Data Privacy Statement which was among the three. Nonetheless, it is worth
made available to me upon account emphasizing that regardless of the format of
opening and posted in the ABC's website the consent given by the data subject, it must
www.abc.com.ph be freely given, specific, and informed.
f. The processing concerns such personal Dean: In sum, it has to be consistent with any
information as is necessary for the of the criteria of lawful processing of SPI and
protection of lawful rights and interests of always compliant with the principles of
natural or legal persons in cowl transparency, legitimate purpose and
proceeding, or the establishment, proportionality.
exercise or defense of legal claims, or
when provided to government or public Q: Can the PIC invoke the principle of
authority. Section 13, DPA privileged communication against the
NPC?
A person subpoenaed as a witness may A: Personal information controllers may
testify as to what he knows about a invoke the principle of privileged
criminal offense committed by the communication over privileged information
accused. that they lawfully control or process. Subject
Q: May the Human Resource Department to existing laws and regulations. any
of a corporation disclose personal and/or evidence gathered on privileged information
sensitive personal information gathered is inadmissible. Section 15, DPA
from an employees' exit interview to the
former employee's direct superior and to When the NPC inquires upon communication
the departments in the company? claimed to be privileged, The personal
A: The lawful disclosure to a non-HR information controller concerned shall prove
personnel of a former employee's personal the nature of the communication in an
and/or sensitive personal information executive session. Should The
gathered from their exit interviews would be communication be determined as privileged,
dependent on the existence of any of the it shall be excluded from evidence, and the
above circumstances, and on the company's contents thereof shall not form part of the
strict compliance with the basic principles of records of the case: Provided, that where the
privileged communication itself is the subject
ii. Sources from which personal data correct it immediately and accordingly,
were obtained; unless the request is vexatious or otherwise
iii. Names and addresses of recipients of unreasonable, if the personal data has been
the personal data; corrected, the personal information controller
iv. Manner by which such data were shall ensure the accessibility of both the new
processed; and The retracted information and the
v. Reasons for the disclosure of the simultaneous receipt of the new and the
personal data to recipients, if any: retracted information by the intended
vi. Information on automated processes recipients thereof: Provided, That recipients
where the data will, or is likely for be or third parties who have previously received
made as the sole basis for any such processed personal data shall be
decision that significantly affects or informed of its inaccuracy and its
will affect the data subject; rectification, upon reasonable request of the
vii. Date when his or her personal data data subject.
concerning the data subject were last
accessed and modified; and e. Right to erasure or blocking
viii. The designation, name or identity, The data subject shall have the right to
and address of the personal suspend, withdraw or order the blocking,
information controller. removal or destruction of his or her personal
data from the personal information
Some exceptions may disallow the exercise controller's filing system.
of an individual's right to access to balance
the right to privacy of on individual versus This right may be exercised upon discovery
the needs of civil society. Here are some and substantial proof of any of the following:
examples: i. The personal data is incomplete,
i. A criminal suspect is not allowed outdated, false, or unlawfully
access to the personal data held about obtained:
him by law enforcement agencies as ii. The personal data is being used for
it may impede investigation, purpose not authorized by the data
ii. A person is not allowed access to subject;
information about himself as iii. The personal data is no longer
contained in communications necessary for the purposes for which
between a lawyer and his or her they were collected;
client, if such communication is iv. The data subject withdraws consent
subject to legal privilege in court. or objects to the processing, and there
is no other legal ground or overriding
d. Right to rectification legitimate interest for the processing;
The data subject has the. right to dispute. the v. The personal data concerns private
inaccuracy or error in the personal data and information that is prejudicial to data
have the personal information controller subject, unless justified by freedom of
The Congress recently enacted the Mobile the data subject shall only be to the minimum
Number Portability Act (RA 11202) which extent necessary to achieve the purpose of
allows a mobile or prepaid subscriber of said research or investigation.
mobile phone services to retain their existing
mobile number even if they move from one Q: What are the obligations of PIC or PIP
service provider lo another and even if they under the DPA?
change their subscription from postpaid to A:
prepaid, or vice versa, provided the a. Security Personal Information
subscriber has no existing financial The personal information controller must
obligations to his/her current service implement reasonable and appropriate
provider. organizational, physical and technical
measures intended for the protection of
i. Transmissibility Rights of the Data personal information against an accidental or
Subject unlawful destruction, alteration and
The lawful heirs and assigns of the data disclosure, as well as against any other
subject may invoke the rights of the data unlawful processing.
subject to which he or she is an heir or an
assignee, at any time after the death of the b. Accountability for transfer of Personal
data subject, or when the data subject is Data
incapacitated or incapable of exercising the A personal information controller shall be
rights as enumerated in the immediately responsible for any personal data under its
preceding section. control or custody, including information that
(Note: not included in the keyword.) have been outsourced or transferred to a
personal information processor or o third
Q: What are the limitations to the rights of party for processing, whether domestically or
a data subject? internationally, subject to cross-border
A: The rights of a data subject shall not be arrangement and cooperation.
applicable if the processed personal data are A personal information controller shall be
used only for the needs of scientific and accountable for complying with the
statistical research and, on the basis of such, requirements of the DPA, the EPA Rules, and
no activities are carried out and no decisions other issuances of the NPC, it shall use
are taken regarding the data subject; contractual or other reasonable means to
Provided, that the personal data shall be held provide a comparable level of protection to
under strict confidentiality and shall be used the personal data while it is being processed
only for the declared purpose. The said by a personal information processor or third
sections are also not applicable. to the party.
processing of personal data gathered for the
purpose of investigations in relation to any In relation thereto, a personal information
criminal. administrative or tax liabilities of a controller may subcontract or outsource the
data subject_ Any limitations on the rights of processing of personal data: Provided, that