Professional Documents
Culture Documents
Basis of Right
SHs do not directly participate in the management of the business and have little knowledge, if at all, of how the corporate affairs are being run by the
directors and officers
As beneficial owners, SHs have the right to know only the financial condition but also how the corporate affairs are being run by their elected directors
and the appointed officers
Law grants them the right to inspect the records of the corporation to obtain information they need
Significant for minority SHs
What Records Covered
CorpCode, 74. Books to be kept; stock transfer agent. - Every corporation shall keep and carefully preserve at its principal office a record of all business
transactions and minutes of all meetings of stockholders or members, or of the board of directors or trustees, in which shall be set forth in detail the time
and place of holding the meeting, how authorized, the notice given, whether the meeting was regular or special, if special its object, those present and
absent, and every act done or ordered done at the meeting. Upon the demand of any director, trustee, stockholder or member, the time when any director,
trustee, stockholder or member entered or left the meeting must be noted in the minutes; and on a similar demand, the yeas and nays must be taken on any
motion or proposition, and a record thereof carefully made. The protest of any director, trustee, stockholder or member on any action or proposed action
must be recorded in full on his demand.
The records of all business transactions of the corporation and the minutes of any meetings shall be open to inspection by any director, trustee,
stockholder or member of the corporation at reasonable hours on business days and he may demand, writing, for a copy of excerpts from said records or
minutes, at his expense.
Any officer or agent of the corporation who shall refuse to allow any director, trustees, stockholder or member of the corporation to examine and
copy excerpts from its records or minutes, in accordance with the provisions of this Code, shall be liable to such director, trustee, stockholder or member
for damages, and in addition, shall be guilty of an offense which shall be punishable under Section 144 of this Code: Provided, That if such refusal is made
pursuant to a resolution or order of the board of directors or trustees, the liability under this section for such action shall be imposed upon the directors or
trustees who voted for such refusal: and Provided, further, That it shall be a defense to any action under this section that the person demanding to examine
and copy excerpts from the corporation's records and minutes has improperly used any information secured through any prior examination of the records
or minutes of such corporation or of any other corporation, or was not acting in good faith or for a legitimate purpose in making his demand.
Stock corporations must also keep a book to be known as the "stock and transfer book", in which must be kept a record of all stocks in the names of
the stockholders alphabetically arranged; the installments paid and unpaid on all stock for which subscription has been made, and the date of payment of
any installment; a statement of every alienation, sale or transfer of stock made, the date thereof, and by and to whom made; and such other entries as the
by-laws may prescribe. The stock and transfer book shall be kept in the principal office of the corporation or in the office of its stock transfer agent and shall
be open for inspection by any director or stockholder of the corporation at reasonable hours on business days.
No stock transfer agent or one engaged principally in the business of registering transfers of stocks in behalf of a stock corporation shall be allowed
to operate in the Philippines unless he secures a license from the Securities and Exchange Commission and pays a fee as may be fixed by the Commission,
which shall be renewable annually: Provided, That a stock corporation is not precluded from performing or making transfer of its own stocks, in which case
all the rules and regulations imposed on stock transfer agents, except the payment of a license fee herein provided, shall be applicable.
— Books that record all business transactions
o “records of all business transactions” broad enough to include those which the Code of Commerce requires all merchants including corporations:
book of inventories and balances
journal
ledger
book for copies of letters and telegrams
financial statements
income tax returns
vouchers and receipts
contracts and all papers pertaining to the contracts
voting trust agreements
o records of business transactions
SH need not blindly accept figures in the financial report given by management
Records are voluminous and may be difficult to interpret—thus SC held that a SH may make copies, extracts, and memoranda of such
records (Veraguth v Isabela Sugar)
— Minutes book for meeting of SHs
— Minutes book for meetings of the board
o Informs the SHs of the policies of the board
o SC: until minutes are approved, no SH has the right to make a copy thereof
— Stock and transfer book
o Contains the names of all SHs
o Code does not require the corporation to furnish a SH with the list of names of other SHs
13
Corporation Law Finals reviewer (Campos Annotations)
Prof. Jacinto
2 Semester A.Y. 2011-2012
nd
— GR: Suing SH must have exhausted his remedies within the corporation
o Made a demand on directors to sue
o Directors refuse or fail to sue
— Exception: demand not necessary where it would be futile to make it, as where the majority of the board are the very ones guilty of the wrong
complained of (Everett v Asia Banking Corp.)
— Not only a procedural rule but also a substantive one
— Do the remedies within the corporation include removal of the errant directors, or ratification of the transaction?
— A SH can also ask for the appointment of a receiver to take management away from the board and place in the hands of a receiver
— GR: SH must have been a SH at the time of the transaction or act complained of took place, or the shares devolved upon him
o SMC v Kahn: bona fide ownership by a SH in his own right suffices to invest him with standing to bring a derivative action for the benefit of the
corporation
o Rep. v. Cuaderno: Number of shares is immaterial since the SH is not suing in his own behalf
— Exception: Even if the SH was not a SH at the time the questioned transactions took place, but the covered transactions continue and are injurious to the
SH or affect him in some other way, he may bring a derivative suit (Pascual v Orozco)
— Exceptions to the exception:
o If a SH transferred his shares after he had a chance to institute the derivative suit but failed to do so before the transfer, the transferee cannot
institute the derivative suit himself
o If a transferor is estopped, the transferee is also estopped from suing
o If the transferor is himself party to the fraud or wrongful act against the corporation
3. The action must be brought for the benefit and in behalf of the corporation
4. Any benefit recovered by the SH as a result of the derivative suit must be accounted for to the corporation as the real party-in-interest
5. Plaintiff SH is entitled to reimbursement from the corporation for the reasonable expenses of litigation
Amendment by legislature
— Charter of a private corporation:
o AOI
o Corpo Code
15
Corporation Law Finals reviewer (Campos Annotations)
Prof. Jacinto
2 Semester A.Y. 2011-2012
nd
1. Limitations on power
(1) Must be for a legitimate purpose
(2) Must be with vote or written assent of 2/3 of capital stock or members. No meeting is required
(3) Appraisal right must be recognized if amendment
— changes rights of SHs or class of shares or
— authorizes preferences superior to those of outstanding shares or
— extends or shortens corporate term
(4) Extension of corporate term cannot exceed 50 years in any one instance
(5) Certified copy of amended articles be filed with the SEC
(6) Original and amended AOI should contain all matters required by law
(7) Amendment to increase/decrease capital stock or extend/shorten corporate term cannot be made under Sec 16, but under Sec 38 and 37—
requires a meeting
(8) Amendment must be in the prescribed form
- Sec 16 in relation to Sec 42 implies power to add a purpose entirely different from the original one
- Amendment to AOI + approval of SHs required
2. Grounds for rejection of amendment
CorpCode, 17. Grounds when articles of incorporation or amendment may be rejected or disapproved. - The Securities and Exchange Commission
may reject the articles of incorporation or disapprove any amendment thereto if the same is not in compliance with the requirements of this Code:
Provided, That the Commission shall give the incorporators a reasonable time within which to correct or modify the objectionable portions of the
articles or amendment. The following are grounds for such rejection or disapproval:
1. That the articles of incorporation or any amendment thereto is not substantially in accordance with the form prescribed herein;
2. That the purpose or purposes of the corporation are patently unconstitutional, illegal, immoral, or contrary to government rules and
regulations;
3. That the Treasurer's Affidavit concerning the amount of capital stock subscribed and/or paid if false;
4. That the percentage of ownership of the capital stock to be owned by citizens of the Philippines has not been complied with as required by
existing laws or the Constitution.
No articles of incorporation or amendment to articles of incorporation of banks, banking and quasi-banking institutions, building and loan
associations, trust companies and other financial intermediaries, insurance companies, public utilities, educational institutions, and other
corporations governed by special laws shall be accepted or approved by the Commission unless accompanied by a favorable recommendation of the
appropriate government agency to the effect that such articles or amendment is in accordance with law.
3. Amendment changing stockholders’ rights
CorpCode, 81, supra.
— Power of self-amendment is quite extensive and has been held to include the power of changing, restricting, or abrogating preemptive rights as
well as voting rights
o must be exercised in GF and not merely to defraud or prejudice the minority
o must be for a legitimate purpose
o burden of proving BF on the dissenting SH
— No vested rights of SHs are impaired by the power of self-amendment: one who becomes a SH is presumed to have accepted his contract with the
corporation subject to the power of self-amendment
— Remedy: exercise appraisal right
4. Effectivity of amendment
— GR: Amendment takes effect only upon approval by the SEC
o Made within 6 months from filing of amendment
o Exception: beyond 6 months, it takes effect even without approval, on the date of filing
o Exception to exception: delay is due to some cause attributable to the corporation
5. Special amendments
— Meeting is required in all these cases
— SEC approval is required
— Grounds for rejection applicable
(1) Increase of capital stock
— Corporation may be organized with an authorized capital stock in excess of what may be intended to cover shares presently issued (Sec
97[2])
o Board may dispose of unissued shares to obtain more capital
o But amendment needed if authorized capital stock is fully subscribed and corporation needs to issue shares for more capital
o Overissuance or issuance of shares beyond authorized limit is void
16
Corporation Law Finals reviewer (Campos Annotations)
Prof. Jacinto
2 Semester A.Y. 2011-2012
nd
— 63: capital shall be divided into shares for which certificates signed by the president or VP, countersigned by secretary, sealed with the corporate seal
shall be issued in accordance with the by-laws
— 64: no certificate shall be issued until the full amount of his subscription + interest + expenses shall be paid
o therefore a subscriber must pay his subscription totally before a certificate can be issued to him…
o … but an unpaid and not declared delinquent subscription can be vote for and upon in corporate meetings
o delinquent shares, however, are entitled to dividends subject to the rules in Sec 43
Probative value
— The stock certificate, once issued, is a continuing affirmation or representation that the stock described is valid and genuine and is at least prima facie
evidence of ownership of stock
o as long as the subscriber is duly recorded in the books as the owner of the shares, he is considered a SH of record and entitled to all rights of a SH
Unauthorized Transfers
1. Certificate indorsed in blank; when quasi-negotiable
— stock certificate possess certain attributes of quasi-negotiability based on the policy to give stability to transactions to encourage their commercial
use
— if certificate indorsed in blank and places it in the hands of another for purposes other than transfer, such possessor may transfer good title to a
bona fide purchaser who relied on the indorsement and believed him the be the real owner
— real owner is estopped from claiming shares as against such bona fide purchasers which he has clothed the possessor with apparent authority
(Santamaria case)
— negotiable character is limited to the situation where the owner is guilty of estoppel in making other persons believe that the possessor has the
right to transfer the same
o if not entrusted to anyone: not guilty of estoppels
o ex finder or thief
2. Forged transfers
— GR: stock certificates, since they are only quasi-negotiable, do not afford the same protection to a holder in GF and for value who receives them in
the course of their being negotiated, and that the true owner will be preferred
— Exception: when the true owner was guilty of negligence in causing the loss
— if corporation issues a new certificate in pursuance of a forged transfer: no liability incurred
o if it comes into the hands of a bona fide purchaser for value: corporation will be estopped from denying validity thereof
o but corporation will have right of action against the person who made false representations and in whose favor it issued a new certificate
o duty of purchaser to determine that indorsement of the owner is genuine
Collateral Transfers
— As personal property, shares may be the subject matter of pledge and chattel mortgage (CM)
o Collateral transfers are not covered by the registration requirement in Sec 63 (applies only to absolute transfers per SC in Monserrat v Ceron)
o If certificate is delivered as security for the performance of an obligation, it is a pledge and governed by CC
o If not delivered, transaction must be registered in the CM registry of the province
o If SHs domicile is in a different province, registration must also be made in such province
Non-transferability and Termination of Membership in Non-stock corporations
CorpCode, 90. Non-transferability of membership. - Membership in a non-stock corporation and all rights arising therefrom are personal and non-
transferable, unless the articles of incorporation or the by-laws otherwise provide.
CorpCode, 91. Termination of membership. - Membership shall be terminated in the manner and for the causes provided in the articles of
incorporation or the by-laws. Termination of membership shall have the effect of extinguishing all rights of a member in the corporation or in its
property, unless otherwise provided in the articles of incorporation or the by-laws.
Under Sec 43.1 of the SRC: a corporation whose shares are listed in the PSE or registered pursuant to the Corpo Code may:
— Issue shares to or record the transfer of some or all its shares in the form of uncertificated securities, to investors or securities intermediaries,
upon resolution of the board and agreed by a SH
— Use of said uncertificated securities shall be without prejudice to the rights of the securities intermediary to subsequently require the issuance
of the certificate
— Issue all of the shares of a particular class in the form of uncertificated securities, subject to the condition that the investors may not require
the corporation to issue a certificate
Under 43.3 of the SRC: transfers of securities, including uncertificated ones, may be validly made and consummated in any of the ff ways, which would have
the effect of delivery of a security in bearer form or duly indorsed in blank, representing the unrestricted negotiability of such delivery:
Definition, Status
Methods of Entry of Investment
27
Corporation Law Finals reviewer (Campos Annotations)
Prof. Jacinto
2 Semester A.Y. 2011-2012
nd