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May 8, 2017
Submitted By:
General Principles
d) All contracts entered into in its
name by its regular appointed
CONSTITUTIONAL BASIS: Article XII, Section officers and agents are the contracts
16 of the corporation and not those of
the stockholders or members.
e) The property of the corporation is
The Congress shall not, except by general law, not the property of the stockholders
provide for the formation, organization, or or members
regulation of private corporations.
Government-owned or controlled corporations
may be created or established by special Constitutional rights of corporations
charters in the interest of the common good 1. Due process
and subject to the test of economic viability. 2. Equal protection
3. Protection against unreasonable
search and seizure
DEFINITION OF CORPORATION: A corporation is
an artificial being created by operation of
law, having the right of succession and the Note: corporation is not entitled to the
powers, attributes and properties expressly privilege against self-incrimination.
authorized by law or incident to its
existence.
CREATED BY OPERATION OF LAW: Corporations
cannot come into existence by mere agreement
ATTRIBUTES OF CORPORATIONS: of the parties as in the case of business
partnerships
1. It is an artificial being
2. Created by operation of law
3. With rights of succession General Rule: Corporation is created by law
4. Has powers, attributes and properties or operation of law
expressly authorized by law or
incident to its existence
Exceptions:
Included: all powers which may be implied
(a) If there is an express assumption of
from those expressly provided by law and
liabilities by the buying entity;
those which are incidental or essential to
(b) If the purchase was in fraud of
the corporation's existence may also be
creditors;
exercised.
(c) When there is consolidation or
merger; or
(d) If the purchaser merely continues the
Test to determine if it is within the power: business enterprise of the seller
Whether the act of the corporation is in (i.e., when it amounts to a business
direct and immediate furtherance of its enterprise transfer).
business, fairly incidental to the express
powers and reasonably necessary to their
exercise.
B. LIMITED LIABILITY TO INVESTORS - As a mutual agreement by the parties and without
general rule, stockholders in a stock a corporate name.
corporation are personally liable for
corporate debts and liabilities only to
the extent of what they have invested PETRON VS. NCMBA (2007)
(paid-up capital) and what they have
promised to invest in the corporation Article 2208(5) contemplates a situation
(unpaid subscriptions). where one refuses unjustifiably and in
evident bad faith to satisfy another’s
plainly valid, just and demandable claim,
C. CENTRALIZED MANAGEMENT - Except when
compelling the latter needlessly to seek
otherwise provided in the Corporation
redress from the courts. In such a case,
Code, all corporate powers and all
the law allows recovery of money the
corporate properties are vested in the
plaintiff had to spend for a lawyer’s
Board of Directors or Trustees; and other
assistance in suing the defendant –
than electing directors or trustees, the
expenses the plaintiff would not have
stockholders or members do not have
incurred if not for the defendant’s
management powers relating to the
refusal to comply with the most basic rules
operations and assets of the corporation.
of fair dealing. It does not mean, however,
that the losing party should be made to
D. FREE TRANSFERABILITY OF UNITS OF pay attorney’s fees merely because the
OWNERSHIP - The doctrine of delectus court finds his legal position to be
personam in partnership is not applicable erroneous and upholds that of the other
to corporate setting, and that party, for that would be an intolerable
stockholders hold their shares as transgression of the policy that no one
personal property with rights to dispose, should be penalized for exercising the
assign or encumber them as they may right to have contending claims settled by
desire. a court of law.13 In fact, even a clearly
untenable defense does not justify an
award of attorney’s fees unless it amounts
to gross and evident bad faith.14
Petron’s claim to the V. Mapa properties,
founded as it was on final deeds of sale
Tri Level Existence on execution, was far from untenable. No
gross and evident bad faith could be
First: a corporation is aggregation
imputed to Petron merely for intervening
of assets and resources
in NCBA’s suit against DBP and the
Second: being a business enterprise
Monserrats in order to assert what it
or economic union
believed (and had good reason to believe)
Third: privilege granted – juridical
were its rights and to have the disputed
personality
ownership of the V. Mapa properties
settled decisively in a single lawsuit.
Corporate Name
The corporation acquires juridical GSIS Family Bank v. BPI Family Bank
personality under the name stated in the G.R. NO. 175278; September 23, 2015
certificate of incorporation. It is the name
of the corporation which identifies and In Philips Export v. CA, this Court ruled
distinguishes it from other corporations, that to fall within the prohibition of the
firms or entities. law on the right to the exclusive use of a
corporate name, two requisites must be
proven, namely:
A corporation’s right to use its corporate 1. that the complainant corporation
and trade name is a property right, a right acquired a prior right over the use
in rem which it may assert or protect against of such corporate name; and
the whole world in the same manner as it may 2. the proposed name is either
protect its tangible property against a. identical or
trespass or conversion (Philips Export B.V. b. deceptive or confusingly
vs. CA, 206 SCRA 457). similar to that of any
existing corporation or to
any other name already
protected by law; or
Statutory limitation: The proposed name must
c. Patently deceptive,
not be:
confusing or contrary to
1. Identical; or existing law.
2. Deceptively or confusingly similar to
that of any existing corporation or On the 1st requisite, in this case,
to any other name already protected respondent was incorporated in 1969 as
by law; or Family Savings Bank and in 1985 as BPI
3. Patently deceptive, confusing or Family Bank. Petitioner, on the other
contrary to law. hand, was incorporated as GSIS Family –
Thrift Bank only in 2002, or at least 17
years after respondent started using its
Remedies of corporation whose name has been
name. Following the precedent in the IRCP
adopted by another:
case, we rule that respondent has the prior
1. Injunction right over the use of the corporate name.
2. De-registration
On the 2nd requisite, first point (a), the
words "Family Bank" present in both
RULES: A corporation can change the name petitioner and respondent's corporate name
originally selected by it after complying satisfy the requirement that there be
with the formalities prescribed by law, to identical names in the existing corporate
wit: amendment of the articles of name and the proposed one. Section 3 states
incorporation and filing of the amendment that if there be identical, misleading or
with the SEC (Sec. 16). confusingly similar name to one already
registered by another corporation or
partnership with the SEC, the proposed
An authorized change in the name of the name must contain at least one distinctive
corporation, whether effected by a special word different from the name of the company
act or under a general law, has no more already registered. To show contrast with
effect upon its identity as a corporation respondent's corporate name, petitioner
than a change of name of natural person upon used the words "GSIS" and "thrift." But
his identity. It does not affect the property, these are not sufficiently distinct words
rights, or liabilities of the corporation, that differentiate petitioner's corporate
nor lessen or add to its obligations. It is name from respondent's. While "GSIS" is
in no sense a new corporation, nor the merely an acronym of the proper name by
successor of the original corporation. It is which petitioner is identified, the word
"thrift" is simply a classification of the The use of such words "KAMI, ang mga
type of bank that petitioner is. Even if Manggagawa sa HANJIN Shipyard" in the
the classification of the bank as "thrift" preamble of the constitution and by-laws
is appended to petitioner's proposed did not constitute misrepresentation so as
corporate name, it will not make the said to warrant the cancellation of Samahan's
corporate name distinct from respondent's certificate of registration. Hanjin failed
because the latter is likewise engaged in to indicate how this phrase constitutes a
the banking business. malicious and deliberate
misrepresentation. Neither was there any
On the second point (b), there is a showing that the alleged misrepresentation
deceptive and confusing similarity between was serious in character.
petitioner's proposed name and Misrepresentation is a devious charge that
respondent's corporate name, as found by cannot simply be entertained by mere
the SEC. In determining the existence of surmises and conjectures.
confusing similarity in corporate names,
the test is whether the similarity is such Even granting arguendo that Samahan's
as to mislead a person using ordinary care members misrepresented themselves as
and discrimination. And even without such employees or workers of Hanjin, said
proof of actual confusion between the two misrepresentation does not relate to the
corporate names, it suffices that adoption or ratification of its
confusion is probable or likely to occur. constitution and by-laws or to the
Petitioner's corporate name is "GSIS election of its officers.
Family Bank—A Thrift Bank" and
respondent's corporate name is "BPI Family
Purpose Clause
Bank." The only words that distinguish the
two are "BPI," "GSIS," and "Thrift." The
first two words are merely the acronyms of
the proper names by which the two Significance:
corporations identify themselves; and the
a. A person who intends to invest his
third word simply describes the
money in the business corporation
classification of the bank. The overriding
will know where and in what kind of
consideration in determining whether a
business or activity his money will
person, using ordinary care and
be invested;
discrimination, might be misled is the
b. The directors and the officers of the
circumstance that both petitioner and
corporation will know within what
respondent are engaged in the same
scope of business they are authorized
business of banking. "The likelihood of
to act; and
confusion is accentuated in cases where
c. A third person who has dealings with
the goods or business of one corporation
the corporation may know by perusal
are the same or substantially the same to
of the articles whether the
that of another corporation."
transaction or dealing he has with
the corporation is within the
Samahan ng Manggagawa ng Hanjin v. BLR authority of the corporation or not.
G.R. No. 211145, October 14, 2015
Limitations:
Based on the foregoing, the Court
concludes that misrepresentation, to be a 1. Purpose or purposes must be lawful;
ground for the cancellation of the 2. Purpose or purposes must be stated
certificate of registration, must be done with sufficient clarity;
maliciously and deliberately. Further, the 3. If there is more than one purpose,
mistakes appearing in the application or the primary as well as the secondary
attachments must be grave or refer to purpose must be specified; and
significant matters. The details as to how 4. Purposes must be capable of being
the alleged fraud was committed must also lawfully combined.
be indubitably shown.
1. Banking + insurance
2. Life + non-life insurance Clavecilla Radio System v. Antillon, 19
3. Two or more forms of transportation SCRA 379
4. Stock dealership + stock brokerage
5. Radio/TV + print Settled is the principle in corporation
law that the residence of a corporation is
the place where its principal office is
Gala vs Ellice Agro Industrial Corp., 418 established. Since it is not disputed that
SCRA 431 the Clavecilla Radio system has its
principal office in Manila, it follows
a perusal of the Articles of Incorporation that the suit against it may properly be
of Ellice and Margo shows no sign of the filed in the City of Manila.
allegedly illegal purposes that
petitioners are complaining of. And even In the case of Cohen v. Benguet Commercial
assuming that the petitioner’s allegations Co., Ltd., 34 Phil. 526, the term "may be
were true, the legality of the purposes served with summons" does not apply when
for which the two corporations were formed the defendant resides in the Philippines
should be first threshed out in an for, in such case, he may be sued only in
administrative case before the Securities the municipality of his residence,
and Exchange Commission. regardless of the place where he may be
found and served with summons. As any other
Moreover, on the contention that Ellice corporation, the Clavecilla Radio System
and Margo were meant to be tools for the maintains a residence which is Manila in
avoidance of estate taxes, the court said this case, and a person can have only one
that “…the legal right of a taxpayer to residence at a time. The fact that it
reduce the amount of what otherwise could maintains branch offices in some parts of
be his taxes or altogether avoid them, by the country does not mean that it can be
means which the law permits cannot be sued in any of these places. To allow an
doubted. action to be instituted in any place where
a corporate entity has its branch offices
would create confusion and work untold
Principal office or domicile
inconvenience to the corporation. Thus, in
the case of Evangelista v. Santos, Et Al.,
the laying of the venue of an action is
The articles of incorporation must state the not left to plaintiff’s caprice because
place where the principal office of the the matter is regulated by the Rules of
corporation is to be established or located, Court. Applying the provision of the Rules
which place must be within the Philippine of Court, the venue in this case was
(Sec. 14 [3]). improperly laid.
Incorporating directors
DOCTRINE OF RELATION OR RELATING BACK
DOCTRINE
Exceptions:
Stated Capital – The capital stock divided
1. Educational corporations registered into no par value shares.
as nonstock corporation whose number
of trustees though not less than five
and not more than fifteen should be Paid-up Capital – The amount paid by the
divisible by five; and stockholders on subscriptions from unissued
2. In close corporation where all the shares of the corporation.
stockholders are considered as
members of the board of directors
thereby effectively allowing twenty Matters required to be stated in the AI:
members in the board (Corporation
a. The amount of its authorized capital
Code of the Philippines,Ruben C.
stock in lawful money of the
Ladia, 2001 ed.).
Philippines;
b. The number of shares and kind of
Capital stock
shares into which it is divided;
c. In case the shares are par value
shares, the par value of each;
Capital Stock or Legal Stock or Stated d. The names, nationalities and
Capital – The amount fixed in the corporate residences of the original
charter to be subscribed and paid in cash, subscribers;
kind or property at the organization of the e. The amount subscribed and paid by
corporation or afterwards and upon which the each on his subscription;
corporation is to conduct its operation. f. Sworn statement of the treasurer
elected by the subscribers showing
that at least 25% of the authorized
Capital – The value of the actual property capital stock of the corporation has
or estate of the corporation whether in money been subscribed;
or property. Its net worth (or stockholder’s g. Sworn statement of the treasurer
equity) is its assets less its liabilities. elected by the subscribers showing
that at least 25% of the total
subscription has been fully paid to
Authorized Capital Stock - The capital stock him in actual cash and/or in property
divided into shares. the fair valuation of which is equal
to at least 25% of the said
subscription; and
h. Sworn statement of the treasurer
Subscribed Capital Stock - The total amount
elected by the subscribers showing
of the capital stock subscribed whether fully
that such paid-up capital being not
paid or not.
less than five thousand pesos.
The loans and advances of MTII to Nature: Preferred shareholders are not
respondent MSCI cannot be treated as creditors of the corporation. Yet all
investments, unless the corresponding preferred stock contracts are, fundamentally
shares of stocks are issued. But as it attempts to endow certain owners with rights
turned out, such loans and advances were analogous to creditor rights and statutes and
in fact treated as liabilities of MSCI to court decisions on this matter have been
MTII as shown in its 1990 audited financial concerned, primarily, with the length to
statements. The treatment by the Board of which the preferred stock contract can go in
these loans as part of MSCI’s capital stock extending creditor rights to stockholder
without satisfying certain mandatory
requirements is prohibited under Sec 38 of
the Corporation Code Limitations:
FOUNDER’S SHARES
Selling price: Treasury shares need not be - Shares with a right to vote.
sold at par or issued value but may be sold - Under the code, whenever a vote is
at the best price obtainable, provided it is necessary to approve a particular
reasonable. corporate act, such vote refers only
to stocks with voting rights except
- When treasury shares are sold below in certain cases when even non-voting
its par or issued value, there can be shares may also vote (Sec. 6, par. 6
no watering of stock because such and last par.).
watering contemplates an original
issuance of shares.
NON VOTING SHARES
A stock issued not in exchange for its Shares having no par value but have issued
equivalent value either in cash, property, value stated in the certificate or articles
share, stock dividends, or services. of incorporation.
Treasurer in trust
A share that is changeable by the stockholder
from one class to another at a certain price
and within a certain period.
The person elected by the subscribers as
Treasurer of the corporation at the time of
FRACTIONAL SHARES the incorporation who is named as such in the
AoI and who has been authorized to receive
for and in the name of the corporation, all
A share with a value of less than one full subscriptions, fees, contributions or
share.
donations paid of given by the subscribers directors or trustees stating the
or members. fact that such amendments have
been duly approved by the
- Not a regular treasurer required vote of the stockholders
- The treasurer who signs the or members; and
treasurer’s affidavit in Section 15. c. a favorable recommendation of the
appropriate government agency
Special provision concerned if required by law.
Limitations:
1. "No Transfer" Clause: Prohibition of
transfer of stock or interest which 1. The amendment of any provision or
will reduce the ownership of Filipino matters stated in the articles of
citizens to less than the required incorporation is not allowed when it
percentage of the capital stock as will be contrary to the provisions or
provided by existing laws requirement prescribed by the Code or
by special law or changes any
provision in the articles of
Must be stated not just in AoI but also in incorporation stating an accomplished
all certificate of stock. fact;
2. It must be for legitimate purposes;
2. Expanded Pre-emptive Rights: Pre-
3. It must be approved by the required
emptive right is the stockholder’s
vote of the board of directors or
right to SUBSCRIBE to all issues or
trustees and the stockholders or
disposition of shares of any class in
members;
proportion of his stockholdings.
4. The original articles and amended
articles together must contain all
3. Right of first refusal provisions required by law to be set
out in the articles of incorporation;
5. Such articles, as amended, must be
4. High quorum and/or high voting indicated by underscoring the changes
requirements made, and a copy thereof duly
certified under oath by the corporate
secretary and a majority of the
Amendment / rejection of the Articles of
directors or trustees stating that
Incorporation
the amendments have been duly
approved by the required vote of the
stockholders or members must be
Procedure:
submitted to the SEC;
1. Resolution by at least a majority of 6. The amendments shall take effect only
the board of directors or trustees; upon their approval by the SEC;
2. Vote or written assent of the
stockholders representing at least
However, express approval is not
2/3 of the outstanding capital stock
indispensable. This is because the amendment
s or 2/3 of the members in case of
shall also take effect from the date of
non-stock corporations.
filing with the said Commission if it is not
3. Submission and filing with the SEC
acted upon by the Commission within 6 months
of:
from the date of filing for a cause not
a. The original and amended articles
attributable to the corporation.
together containing all the
provisions required by law to be 7. If the corporation is governed by
set out in the articles of special law, the amendments must be
incorporation. Such articles, as accompanied by a favorable
amended, shall be indicated by recommendation of the appropriate
underscoring the change or government agency;
changes made; 8. No right or remedy in favor of or
b. a copy thereof, duly certified against any corporation, its
under oath by the corporate stockholders, members, directors,
secretary and a majority of the trustees, or officers, nor any
liability incurred by any such - Any decision of the Commission
corporation, stockholders, members, rejecting the articles of
directors, trustees, or officers, incorporation or disapproving any
shall be removed or impaired either amendment thereto is appealable by
by the subsequent dissolution of said petition for review to the Court of
corporation or by any subsequent Appeals in accordance with the
amendment or repeal of this Code or pertinent provisions of the Rules of
of any part thereof (Section 145 of Court.
the Corporation Code).
AMENDMENTS TO BY-LAWS
May be made by: ARTICLES OF
BY-LAWS
(a) Majority vote by the Board and INCORPORATION
majority of the outstanding Merely rules and Charter or
capital stock or members at a regulations fundamental law
meeting called for that purpose
adopted by the of the Filing of the
corporation corporation Condition same is a
Usually after the Executed before subsequent to condition
incorporation by the incorporation corporate precedent to
the stockholders by the existence corporate
or members incorporators existence
MEETINGS
BOARD MEETING STOCKHOLDERS MEETING
(a) Time and date under the by-
(a) Time and date under the by- laws, or
Regular laws, or (b) Annually –on any date of
(b) Monthly April of every year as
WHEN
determined by the board
If the meeting is held at an unauthorized place or without proper notice and not
all the stockholders or members are present, those who have a right to complain
may take steps to set aside any action taken at such meetings even though majority
of the stockholders were present in the absence of waiver, estoppel or
ratification.
WHEN STOCKHOLDERS’ MEETING IS MANDATORY
Lopez Realty vs. Spouses Tanjanco (2014)
1. Election of members of the board The Court agrees with the petitioners
2. Removal of directors or trustees that the August 17, 1981 Board Resolution did
3. Filling of vacancies not give Arturo the authority to act as LRI's
4. Ratification of contract with a self- representative in the subject sale, as the
meeting of the board of directors where such
dealing director was passed was conducted without giving any
5. Extension or reduction of the notice to Asuncion.
corporate term
6. Increase or decrease of the capital A meeting of the board of directors is
legally infirm if there is failure to comply
stock with the requirements or formalities of the
7. Creation or increase of bonded law or the corporation's by laws and any
indebtedness action taken on such meeting may be
8. Sale or disposition of all or challenged as a consequence:
The general rule is that a
substantially all of the corporate corporation, through its board of
assets directors, should act in the manner and
9. Investment of corporate funds in within the formalities, if any,
another corporation prescribed by its charter or by the
general law. Thus, directors must act as
10. Declaration of stock dividends a body in a meeting called pursuant to
11. Entering into a management contract the law or the corporation's bylaws,
with another corporation otherwise, any action taken therein may
12. Amendment to, repeal of or adoption be questioned by any objecting director
or shareholder.
of new by-laws
13. Fixing of the issued price of no par However, the actions taken in such a
value shares meeting by the directors or trustees may
14. Plan of merger or consolidation be ratified expressly or impliedly.
15. Amendment of AOI of close corporation In the present case, the ratification was
16. Voluntary dissolution of the expressed through the July 30, 1982 Board
corporation, whether or not there are Resolution.
creditors affected
sent by registered mail or
17. Dissolution by shortening corporate
personal delivery.
term
QUORUM
LIMITATIONS ON VTA
1. It shall be good for a period not
exceeding 5years at any one time. CAPITAL STRUCTURE: STOCKS
If required by a loan agreement,
the period may go beyond 5years A. Authorized Capital Stock (ACS)
but the trust shall automatically
This refers to the maximum
cease upon full payment of the
number of shares that a
loan.
corporation is legally
permitted to issue, as
specified in its articles of 1. Authorized Capital Stock
incorporation.
No minimum authorized capital
B. Subscribed Capital Stock (SCS) stock is required for stock
corporations incorporated under the
It is the amount of capital Corporation Code. (Sec. 12)
stock subscribed, whether fully
paid or not. 2. Subscribed Capital Stock
Docomo (Japan):
15% Dividends Market Value
Prefer 10. 78% Non Phil: 99% Case: Express Investments v. Bayantel
red 00 - Facts: Bayantel was undergoing judicial
Vot corporate rehabilitation. Because of
ing huge debt, it entered into an agreement
with a group of foreign banks in order
to pay off its liabilities. In a debt
for equity swap, the arrangement is as shall be considered as water-
follows: 77% of the OCS common voting down shares
shares shall be transferred to foreign
banks (dacion en pago). 2. No- Par Shares
- These are shares where the
Ruling: The SC nullified the agreement. value of the shares is not
Corporate Layering fixed in the AOI but fixed by
the Board whose decision
A device whereby the should be concurred by at
ownership of the CS of a least 2/3 of the OCS
group of companies is - Note however that the
apportioned or allocated statutory minimum value of
when in truth, the owners of these shares is five pesos
said companies are one and - Benefits
the same. The ownership is a. the corporation is
layered thru various afforded flexibility in
companies. pricing these shares
especially when it needs
This is not illegal per se.
additional funds
In fact, it is a useful
b. once no par shares are
device for some lawful
issued, they are
purposes including tax
considered as fully paid,
avoidance.
hence, subscriber cannot
What makes it unlawful is be declared as delinquent
when corporate layering is - There are certain entities
used to circumvent which are not allowed to have
constitutional requirements no-par shares such as those
as to citizenship. The regulated by law or imbued
mechanism or device becomes with public interest, i.e.
NULL AND VOID. (Narra Nickel banks, quasi-banks, trusts,
v Redmont Consolidated) educational corporations,
insurance corporations – these
are allowed only to have par
Classifications of Shares shares for purposes of
transparency and monitoring
1. Par v No Par -
2. Common v Preferred 3. Common Shares
3. Voting v Non-voting - These are shares which do not
enjoy special rights but
Note: In stating the Authorized entitled to pro-rata
Capital Stock of the corporation, it distribution of profits.
must specify each class of shares:
Illustration:
Illustration:
The sale to the third person was The contract is VOID as far as the
nullified. corporation is concerned. The
contract is valid only between X
and Y.
Procedure for the Replacement of lost, 1) The owner: as long as the shares
stolen or destroyed stock certificate: are not classified as non-voting
(preferred or redeemable shares)
1. The registered owner of the lost or even if the shares are
stock certificate must file with classified as voting if the
the corporation an affidavit of shares are considered as
loss. delinquent or subject to
appraisal right.
certificate issued in
his name.
2) Representative:
The agreement cannot
Forms: exceed 5 years.
a) Proxy
Trustee: stockholder
of a corporation OR a Note: VTA is a management control device.
stranger. He has the The voting power is concentrated or
legal title as given to certain people who are not
evidenced by the new necessarily the owners of the shares.
BUT it cannot be used to circumvent 2) Any other place within the city
citizenship requirements under the or municipality of the PO
Constitution.
3) At the place fixed by the by-laws
Illustration:
Elections Plurality of
votes
Q: What are the requirements for the
conduct of meetings? Quorum: Majority
of those
Prior written notice sent to the entitled to
address of the stockholder as vote.
found in the books of the
corporation UNLESS the To grant Majority
stockholder waives notice. compensation to the
directors
If the corporation is a public
company, aside from individual To ratify contract 2/3
notices to the stockholders, the of a self-dealing
notice of meeting must be director
published in a newspaper of
To ratify profits 2/3
general circulation in the
of a disloyal
Philippines.
director
Q: How often must meetings be conducted?
To enter into a Majority UNLESS
A: As often as the by-laws require. If management contract interlocking
the by-laws is silent, it must be held directorship or
annually. Meetings must be held on the interlocking
date fixed by the by-laws; if not, on interest
the date fixed by the SEC.
To declare 2/3
Usually, the annual stockholders’ dividends
meeting (ASM) is also the
election of directors. To fix value of no- 2/3
par value shares
1
/1491789/alternatives-when-stock-and-transfer-
http://www.philstar.com:8080/business/2015/08/25 book-inaccessible
1.File an action in court to gain
access and assume custody of Exception:
the STB; or If the paid-up capital is
2.Have the STB reconstituted if less than P50,000 – the
appropriate, i.e. when it is financial statements may be
lost or destroyed. certified under oath by the
treasurer or any responsible
These corporate books and officer of the corporation
records, inclusive of all (instead of an independent CPA).
business transactions and
minutes of meetings, are Requirements for the exercise of
subject to inspection by any the right of inspection (Sec.
director, trustee, stockholder 74)
or member of the corporation 1.It must be exercised at
at reasonable hours on reasonable hours on business
business days and a copy of days and in the place where
excerpts of said records may the corporation keeps all its
be demanded. records (i.e., principal
office).
Stock transfer agent
One engaged principally in 2.The stockholder has not
the business of registering improperly used any
transfers of stocks in information he secured through
behalf of a stock any previous examination.
corporation (licensed by
the SEC). The corporate 3.Demand is made in good faith
secretary is the one duly or for a legitimate purpose.
authorized to make entries If the corporation or its
in the stock and transfer officers contest such purpose
book. It is the corporate or contend that there is evil
secretary's duty and motive behind the inspection,
obligation to register the burden of proof is with
valid transfers of stocks the corporation or such
and if said corporate officer to show the same
officer refuses to comply,
the transferor-stockholder General rule: Any officer or
may rightfully bring suit agent of the corporation who
to compel performance. refuses to allow the
(Torres et al. v. CA , inspection of corporate books
1997) and records, or any director
or trustee who through a
Financial statements (Sec. 75) resolution by the board votes
Within 10 days from written for such refusal shall be
request, the corporation shall liable for damages and shall
furnish its most recent be guilty of an offense which
financial statement (balance shall be punishable under Sec.
sheet and profit or loss 144.
statement as of last taxable
year) At a regular meeting, the Exception. It shall be a
Board shall present a financial defense that the person
report of the operations of the demanding inspection:
corporation for the preceding
year, which shall include A. Has improperly used any
financial statements duly signed information secured through
and certified by an independent any prior examination of
CPA. the records or minutes of
such corporation or of any such a stockholder.
other corporation; or (Gokongwei vs. SEC)
B. Was not acting in good o Exception: The subsidiary
faith or for a legitimate and the parent are
purpose in making his legally being operated as
demand. separate and distinct
Within ten (10) days from entities.
receipt of a written request o The right to inspect
of any stockholder or member, corporate books, although
the corporation shall furnish personal, may be exercised
to him its most recent through an agent or
financial statement, which representative since it may
shall include a balance sheet be unavailing in many
as of the end of the last instances. (W.G. Philpotts
taxable year and a profit or vs. Philippine Manufacturing
loss statement for said Co.)
taxable year, showing in o The corporation, or its
reasonable detail its assets responsible directors and
and liabilities and the result officers cannot unduly
of its operations. restrict the right of
inspection and may not
At the regular meeting of arbitrarily set a few days of
stockholders or members, the the year within which the
board of directors or trustees stockholder may make the
shall present to such inspection. (Pardo vs.
stockholders or members a Hercules Lumber, Co.)
financial report of the
operations of the corporation o Directors of a corporation
for the preceding year, which have the unqualified right to
shall include financial inspect the books and records
statements, duly signed and of the corporation at all
certified by an independent reasonable hours. However,
certified public accountant. there is no absolute right to
However, if the paid-up secure certified copies of the
capital of the corporation is minutes of the corporation
less than P50,000.00, the until these minutes have been
financial statements may be written up and approved by the
certified under oath by the directors. (Vegaruth vs.
treasurer or any responsible Isabela Sugar Co., Inc.)
officer of the corporation.
o It is a required condition for
The basis of the right of the the inspection of corporate
stockholder to inspect the books that the one requesting
books and records of the it must not have been guilty
corporation for a proper of using improperly any
purpose is to protect his information secured through a
interest as a stockholder. prior examination and that the
person asking for such
General rule: The right of examination must be acting in
stockholders to examine good faith and for a
corporate books extends to a legitimate purpose in making
wholly owned subsidiary which his demand. (Gonzales vs. PNB)
is completely under the
control and management of the Remedies of a stockholder who is
parent company where he is denied inspection of corporate
books:
1. Mandamus; was able to inspect some of the
2. Damages either against the documents of CHVI. However, it
corporate or the responsible appears that the inspection was
officer; or ineffective since the petitioner
3. Criminal complaint based on and Loreli Lim Po refused to
Sec. 144 of the Code. present the other documents
demanded by the inspection team.
PO even prevented the team from
copying the corporate books and
Cases: records.
1. Po vs DOJ and Tan
G.R. No. 195198, February 11, 2. Grace Insigne et al. vs Abra
2013, J. REYES Valley
Facts: July 29, 2015, G.R. No. 204089,
Tan, a stockholder of Coastal J. Bersamin
Highpoint Ventures, Inc., Facts:
lamented that pertinent Pedro was the founder, president
information relative to CHVI’s and majority stockholder of
operations were withheld from respondent Abra Valley Colleges,
him. His repeated requests for Inc. (Abra Valley), a stock
copies of financial statements corporation. The petitioners,
and allowance to inspect Grace et al. are the children of
corporate books proved futile. the late Pedro Borgoña (Pedro)
Consequently, he filed before by his second wife, Teresita
the Office of the City Valeros, while Francis was
Prosecutor of Cebu a complaint Pedro’s son by his first wife.
against Chiu, President of the After Pedro’s death, Francis
corporation, for violation of succeeded him as the president
Section 74(2) in relation to of Abra Valley. Petitioners
Section 144 of the Corporation filed a case against Abra Valley
Code of the Philippines. to allow them to inspect its
corporate books and records, and
Issue the minutes of meetings, and to
Whether or not Chiu is guilty of provide them with its financial
violating the Corporation Code statement.
Facts: Held:
2
Culled from Atty. Riguera Notes on SRC.
offer for sale or offer for sale,
(f) All other heretofore subscription or delivery not
securities exempt. being made in the course of
repeated and successive
NOTE: Protection by Securities transaction of a like character
and Exchange Commission (SEC) is by such owner, or on his account
not necessary as Banks are under by such representative and such
the supervision of the Bangko owner or representative not being
Sentral ng Pilipinas. the underwriter of such security.
RECIPROCITY RULE
Any person who is a national of, or MOST FAVORED NATION CLAUSE
is domiciled in, or has a real and With regard to the protection of
effective industrial establishment intellectual property, any
in, a country which is a party to any advantage, favor, privilege or
convention, treaty or agreement immunity granted by a member to the
relating to intellectual property nationals of another shall be
rights or the repression of unfair accorded immediately and
competition, to which the Philippines unconditionally to the nationals of
is also a party, or its laws extends all other members of WTO’s TRIPS.
reciprocal rights to Philippine (Art.4, TRIPS)
nationals shall be entitled to
benefits to the extent necessary to
give effect to such convention, treaty
or reciprocal law, in addition to the INTELLECTUAL PROPERTY OFFICE
rights to which any owner of an
intellectual property right is Powers of IPO (Sec.5, IPC)
otherwise entitled under IPC. 1. Examine applications for:
Grant of letters patent
However, any condition, restriction, for inventions and
limitation, diminution, requirement, register utility models
penalty or burden imposed by a foreign and industrial designs
country on a Philippine national Registration of marks,
seeking protection of the geographic indications,
intellectual property rights in that integrated circuits
country shall reciprocally 2. Registers, settles disputes
enforceable upon that country’s relating to, develop and
nationals within Philippine implement strategies to promote
jurisdiction. and facilitate technology
transfer arrangements
3. Regularly publish in IPO Gazette
issue or approved intellectual
property rights and registered
technology transfer arrangements
4. Adjudicate contested proceedings
affecting intellectual property
rights applying when applicable
equitable principles of laches,
estoppel and acquiescence.
Opposition Within
to 30 days Registration
UNFAIR COMPETITION application
after will damage IPO
This involves employing deception or for
publicat the oppositor
any other means contrary to good registration
(Sec.134) ion
faith by which a person passes off
his goods or business or services for Within 5
those of one who has already years
established goodwill thereto. Cancellation Mark is
from
(Sec168.2, IPL) (Sec.151 confusingly IPO
[a]) date of
similar
registra
TEST: Whether the acts of the defendant tion
have the intent of deceiving or are Mark
calculated to deceive the ordinary becomes
conditions of the particular trade to generic
or
which the controversy relates.
descript-
(Superior ;?”Commercial Enterprises vs. tive
Kunnan Enterprises, 2010)
Abandonment
–failure
Essential Elements of unfair competition to use it
with respect to goods: for an
(a) Confusing similarity in the Cancellation uninterru
At any
general appearance of the goods (Sec.151[b] pted IPO
and [c]) time
(b) Fraud or intent to deceive the period of
public and defraud a competitor. 3years
Mark is
UNFAIR being
TRADEMARK
COMPETITION used to
Passing off of misrepresent
one’s goods as the
source of
Infringement is those of another
goods or
unauthorized use and giving one’s services
of a trademark goods the
appearance of
An administrative complaint for
that of another.
violation of laws involving
Not necessary to It is necessary intellectual property rights can be
establish to establish filed with the IPO where the total
fraudulent intent fraudulent intent damages claimed are not less than
Prior P200,000.00 (Subsec.10.2, IPL)
Registration is
registration of
necessary for the
the trademark is
filing of an
not necessary in
action for
unfair
infringement
competition
Broader as it
includes cases
covered not only
Limited in
by IPC but also
coverage
by Article 27 of
the New Civil
Code
VI. COPYRIGHT OWNERSHIP OF COPYRIGHT
Right over literary and artistic 1. One creator
works which are original Creator, his heirs or assigns
intellectual creations in the owns the copyright.
literary and artistic domain
protected from the moment of 2. Joint creation
creation. GR: co-authors shall be the
original owners of the copyright
PRINCIPLE OF AUTOMATIC PROTECTION and in the absence of agreement,
Right over copyrights are their rights shall be governed
conferred from the moment of by the rules on co-ownership.
creation. (Sec.172.1) The work is
deemed created if something EXCEPT: Work of joint authorship
original is expressed in a fixed consists of parts that can be
manner. used separately and the author
of each part is identified, the
Even with respect to works which are author of each part shall be the
required to be registered and with original owner of the copyright
copies to be deposited with National in the part that he has created.
Library. Failure to comply with said
requirements does not deprive the 3. Commissioned work
copyright owner of the right to sue for The person commissioning owns
infringement as it merely limits the the work; ownership of the
remedies available to him and subjects copyright remains with the
him to the corresponding sanction. creator unless there is a
(Columbia Pictures vs. CA, 1996) written stipulation to the
contrary.