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EH403 Corporation Code Reviewer - Title I
EH403 Corporation Code Reviewer - Title I
ADVANTAGES OF A CORPORATION
CRIMINAL LIABILITY OF A CORPORATION The receiver’s job is to settles as much as possible – keep the
business of the Corporation going, such as appoint some
GEN: A corporation cannot be held criminally liable under the managers, so that the business will continue, earn income, and
Revised Penal Code. such profits will be now distributed to the creditors. However,
this may not be a one-time payment. They will now program the
Rationale: Crimes under the RPC have the element of intent payment. In this manner, the creditors will be protected.
which corporations are not capable of, as it has no mind of its
own. As a creature of the law, its intention cannot be determined. VEIL OF CORPORATE FICTION
It can also not be sent to jail because it has no corporal or
physical existence. A corporation has a separate and distinct personality from its
shareholders, officers, and directors. Once said corporate fiction
XPNs: is created, the veil hides the stockholders such that when a
corporation incurs liability, the stockholders are shielded from
(1) When the crime is punishable by a special law; liability. In so far as the law is concerned, we are only dealing
Atty. E.: The special law must specify that it imposes with the corporation.
penalties on the officers of the corporation. To be able
to punish the officers, the law should specifically Otherwise, without the veil, would you still like to be a
provide that in case the corporation becomes liable, the stockholder?
officers shall be directly punishable for the commission Atty. E: There is no point. In other words, that veil is the
of the act or violation, and that they will suffer the protection of the stockholders.
penalty of imprisonment. Otherwise, they cannot be
held liable. Can the veil of corporate fiction be enjoyed by a
partnership?
(2) When the penalty imposed is a fine; A: No. While a corporation and a partnership are both juridical
A corporation can be made criminally liable by being persons, the veil of corporate fiction only applies to corporations.
made to pay a fine. Fines are not civil obligations, but
are penalties. When can there be piercing of the veil of corporate fiction?
A: When the corporate veil: (Memory Aid: PDFJ)
(3) When the corporation violates the Anti-Money 1. Defeats public convenience;
Laundering Act (AMLA) 2. Is used to perpetuate fraud;
3. Is used to defend a crime;
Penalties in the AMLA include: 4. Is used to justify a wrong.
a. Suspension
b. Revocation of license Illustration.
c. Fine Corporation A defrauds its creditors by transferring its
assets to Corporation B
When the sheriff came to attach the property of Corporation A, On the other hand, if you borrowed money from the bank and
the sheriff was shown a document that the assets are sold to you cannot return it, there will be interest to be paid,
Corporation B. Do you think that the sheriff can go after compounded interest, and the bank may foreclose your
Corporation B? property.
A: Normally, the sheriff might be hesitant. The sheriff will not
want to violate the rights of Corporation B. DIFFERENCE BETWEEN A LENDER & AN INVESTOR
Atty. E: But lawyers have a way of pursuing Corporation B. They LENDER INVESTOR
can proceed to Corporation B by proving that the assets were No risk presumed Takes the risk because
actually owned by Corporation A through establishing that the there is no guarantee of
stockholders of Corporation A are the same stockholders of success or profits in
Corporation B. business.
Show that the assets were only transferred to defraud the Note: When you invest, you share opportunities. You share risks
creditors. So this is an instance when the corporate veil may be as well.
lifted. What is the difference between an investor and a lender?
A: The investor takes a risk.
RELATIONSHIPS OF A CORPORATION
Atty. E: Nobody can guarantee success. But more or less, if
When we organize or form a corporation, we will establish there is hard work and perseverance, success follows.
various relationships. Relationships are necessary.
RELATIONSHIP BETWEEN A CORPORATION & THE
Relationships formed by a corporation SHAREHOLDERS
(1) Relationship between Corporation and the The relationship between the corporation and the stockholders
Shareholders is well established in the Articles of Incorporation (AOI). The AOI
Which is why it is necessary to execute the Articles of is considered as the contract or agreement of the Corporation
Incorporation. It manages the relationship between the and the Stockholders. Since this is their agreement, the AOI
corporation and the shareholders. binds their relationship and regulates their relationship.
In forming a corporation, your objective is to gather friends and The moment the corporation intends to pursue another
people in order to get funds or ask for investments. business, the stockholder may ask for an amendment of the
Articles of Incorporation to reflect such changes. Otherwise, the
Atty. E.: In forming a corporation, the main purpose is contract will be violated.
fundraising. Because when you do not have money or
investments, it will be difficult to run a business. Note: Amending the Articles of Incorporation is basically
amending the contract between the shareholders and the
The easiest option is to borrow. But if you do not have financial corporation.
assets, do you think the bank will lend to you? What will the bank
require? Financial statements. The FS however will show that RELATIONSHIP AMONG SHAREHOLDERS THEMSELVES
you have zero assets. No bank will lend to you. Because if the
manager lends to you without collateral, he will lose his job. If This is still an agreement among themselves. This can be found
you do not pay your debt, you might even be sent to jail because in their by-laws.
you defrauded the bank.
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Content of the By-Laws of the Corporation
(1) How many boards and officers will be elected Transferability Needs consent of Without prior
(2) Term of office of Interest all partners consent of other
(3) Functions and Powers (based on stockholders
(4) Manner of election delectus
(5) When will the stockholders and/or board meet personarum)
(6) Definition of various types of shares
(7) Etc. Term of Any period of Perpetual
Existence time Old law: 50 years
RELATIONSHIP BETWEEN THE CORPORATION AND and extendible for
STATE another 50 years
A corporation is a creation of the law. In other words, it is a Firm Name For limited May adopt any
privilege granted by the State. The term extended or granted by
partnership, name as long as it
the state is subject to the condition that the corporation will
requires LTD in is not the same or
comply with the reportorial requirements and behave within the its name similar to other
bounds of the law. Otherwise, the State may revoke or cancel registered firm
the license. It may also suspend and/or charge a fine.
name
PARTNERSHIP VS CORPORATION
Dissolution May be dissolved Dissolved only with
anytime by the consent of the
PARTNERSHIP CORPORATION
will of any or all State
Manner of Created by mere Created by law or partners
Creation agreement of the by operation of law
parties Governing Laws Civil Code Governed by a
general law which
No. of At least 2 One Person is the Revised
Incorporators persons Corporation Corporation Code
Old law: at least 5 or a special charter
incorporators
Why is management in a corporation better?
Commencement Moment of From the date of A:
of Juridical execution of the the issuance of the 1. There are fewer members, and as a result, it is easier
Personality contract Certificate of to convene and communicate, while in a partnership,
Incorporation by “everyone talks”.
the SEC 2. Management is vested on persons with expertise.
Management Absence of any Power to do Note: You do not have to pay the subscription immediately.
agreement, every business is vested The balance or may be due or payable later.
partner is an in the Board of
agent of the Directors or Board When will the balance be due?
partnership of Trustees A: It depends on the Board. The Board may indicate the date
when the balance will be due or will simply announce or make a
Rights of No right of Has right of call on the balance.
Succession succession succession
How is it paid?
Extent of Liable personally Stockholders are A: The paid-up capital may either be done in cash or property
Liability to 3rd and subsidiarily liable only to the equivalent to the amount you intend to pay.
Persons for partnership extent of their
Page 7 of 25 | EH403 2019-2020 Corporation Law
If payment is through property, how will the equivalent of RIGHT OF SUCCESSION
the property be determined?
A: If a stockholder or a member dies, withdraws, is insolvent, or
(1) The value will be determined through an appraisal. suffers incapacity, the corporation will still continue and not be
(a) The SEC will send an appraiser OR dissolved.
(b) You will be required to submit an appraisal report of
your property done by a duly accredited appraiser, When all the stockholders die, the heirs will become
together with the Articles of Incorporation, to the SEC. stockholders. The rights, as well as the interests of the deceased
stockholders will now be transferred to the heirs at the moment
(2) The SEC personnel will verify WON the paid-up capital has of death because succession starts at the moment of the death
been deposited to the bank in addition to the certified bank of the deceased person.
deposit, which shall accompany the Articles of
Incorporation. POWERS, ATTRIBUTES, PROPERTIES
(3) The treasurer’s affidavit will indicate that at least 25% of the These rights may be determined in the Articles of Incorporation,
subscribed capital has been paid, OR under the present the Corporation Code, and the By-Laws. These are the sources
code, there will be now a verification. (Does not necessarily of rights and obligations of the stockholders.
by the treasurer but some other officers of the corporation,
indicating among others that at least 25% of the Illustration 1. Transportation Company
subscriptions have been paid and that it was made with + Big building for Garage
cash or properties.
If you are a transportation company, you are managing,
APPLICATION WITH THE SEC operating, and maintaining a fleet of buses. What do you
think your powers could be?
Atty. E.: More or less these are the contents of an Article of A: Demand fare. You have the power to pursue and engage in
Incorporation. You may submit this to the SEC. the business of transportation
(1) Verification – The SEC will go over your Article of Your neighbors are complaining because your business is
Incorporation and verify the name. Before you submit your transportation, but you also own a big building. Do you
Articles of Incorporation, you have to confirm or verify the think you can maintain a big building as a garage?
name that you intend to use. A: Yes, it is allowed. Maintaining a big building is incidental to
the business.
Otherwise if the SEC discovers that somebody is already
using the same name, SEC might deny or return to you Illustration 2. Cement Factory + Electricity
your papers and come up with another name.
You are operating a cement factory. It requires a big volume
To save time, they require you to give 3 alternative names. of power, so much that the services of VECO may not be
SEC is free to choose from those 3 alternative names. enough, prompting you now to maintain your own power
plant.
(2) Issuance of the Certificate of Incorporation – If all the
requisites are in order, the SEC will issue the Certificate of You now have your own power plant within the cement
Incorporation. factory. You have officers and employees residing within
your cement factory. Because you have extra power for
That is the official document that will give the birth of your your cement factory, you started selling this extra power to
corporation. Once you receive this, all the stockholders will your EEs inside the compound.
be convened and we will have the first stockholders
meeting. If you are VECO, do you have a reason to complain?
A: The best approach would be to ask the EEs who they would
STEPS AFTER THE BIRTH OF THE CORPORATION want to provide electricity for them. They will definitely side with
the cement factory because the rates are subsidized.
(1) Organization meeting of the stockholders
The main agenda is the election of the Board. The corporation may argue that it is not doing business per se
but only providing assistance to their EEs – extending facilities
(2) Meeting of the Board of Directors, Election of Officers to their EEs.
Once the Board of Directors are elected, they could adjourn
the stockholders meeting and the directors themselves will Important: So long as you can justify that the act is incidental to
now hold its first Board Meeting. the main purpose, you are allowed to execute such power.
In that meeting, they will elect the officers based on the Illustration 3. USC + Dance lessons after class
ballots (President, Chairman, Vice President, Secretary,
Treasurer). If they may want to, they will select the COO After class hours, the entire school will be vacated. The
(child of the owner). best way to succeed is to maximize the use of assets. Thus,
the priests hired dancing instructors and offered dancing
lessons to interested matrons and engaged the services of
macho dancing instructors. At least they can earn some
more for two (2) hours.
Basis why the State is liberal in the establishment of (E) AS TO LEGAL OR CORPORATE EXISTENCE
religious corporations as a corporation sole: Constitutional
right to Freedom of Religion and Separation of Powers (1) De jure corporation
between the Church and the State. corporation existing in fact or in law
Atty. E.: Any attempt of preventing anyone from exercising his (2) De facto corporation
religion, from establishing his own church, can be considered as existing in fact but not in law
a violation to his freedom of religion. Thus, the State would just
want to know where you are located and the funds that the (F) WHETHER IT IS FOR A RELIGIONS PURPOSE OR NOT
church has earned.
(1) Ecclesiastical Corporation
Notes: for religious purposes
Corporation sole – one formed for the purpose of
administering and managing, as trustee, the affairs, (2) Lay Corporation
property and temporalities of any religions purpose other than religion
denomination, sect, or church, by the chief archbishop,
bishop, priest, rabbi, or other presiding elder of such **Other types of religious/charitable corporations:
religious denomination, sect or church.
(3) Corporation Sole
(D) AS TO WHETHER IT IS OPEN OR CLOSE incorporated by one person
a corporation formed for the purpose of administering
(1) Open Corporation and managing, as trustee, the affairs, properties and
open to any person who may wish to become temporalities of any religious denomination, sect or
shareholders. Most of these are publicly listed. church, by the chief archbishop, bishop, priest, rabbi or
other presiding elder of such religious denomination,
(2) Close Corporation sect or church.
limited to selected persons or members of a family. A corporation sole has no nationality but for the
This qualification is contained in the Articles of purpose of applying nationalization laws, nationality is
Incorporation (AOI) and the Stock Certificate. The stock determined not by the nationality of its presiding elder,
certificate indicates that these holders shall not be allowed but by the nationality of the its members constituting
to dispose the shares UNLESS he offers it to the existing the sect in the Philippines.
holders first. o Thus, the Roman Catholic Church can
IOW, it cannot be an absolute prohibition. Otherwise, it acquire lands in the Philippines even if it is
will violate the right of an owner which includes the right to headed by the Pope (Roman Catholic
own, right to possess, and right to dispose. Apostolic, et. al. vs. Register of Deeds of
Davao City, G.R. No. L-8451)
Relative Prohibition – you are required to offer this to
existing stockholders. Only when there are no (4) Corporation Aggregate (Religious Society)
existing stockholders that would buy that you can A religious organization incorporated by more than one
sell it to others. person
What is the difference between an affiliate and a SEC. 4. CORPORATIONS CREATED BY SPECIAL LAWS
subsidiary? OR CHARTERS
A: The difference lies in the level of ownership of the parent
company in a certain corporation. Section 4. Corporations Created by Special Laws or
Charters. – Corporations created by special laws or charters
The terms “affiliate” and “associate” corporation are used shall be governed primarily by the provisions of the special law
synonymously to describe a company whose parent only or charter creating or applicable to them, supplemented by the
possesses a minority stake in the ownership of the provisions of this Code, insofar as they are applicable.
company.
SEC. 5. CORPORATORS AND INCORPORATORS,
On the other hand, a subsidiary is a business whose parent STOCKHOLDERS AND MEMBERS
holds a majority stake or is a majority shareholder of 50%
or more of all shares. Some subsidiaries are even wholly Section 5. Corporators and Incorporators, Stockholders
owned, meaning the parent corporation owns 100% of the and Members. – Corporators are those who compose a
subsidiary. corporation, whether as stockholders or shareholders in a stock
corporation, or members in a nonstock corporation.
(4) Sister Company Incorporators are those stockholders mentioned in the articles
fellow subsidiary with respect to another subsidiary; of incorporation as originally forming and composing the
both owned by the parent corporation corporation and who are signatories thereof.
Although performing other activities, these activities are PARTIES INVOLVED IN THE ORGANIZATION OF A
very much related or part of the other companies (e.g. CORPORATION
they are part of the supply chain perhaps). Thus, if the
owner of the company creates another corporation related Who are the persons involved in the organization of a
to the other corporation, then it can be considered sister corporation?
companies. A: They are:
(1) Incorporators
Illustration. (2) Corporators
(3) Board of Directors/Trustees
(4) Promoters
(5) Underwriters
Trucking Company (6) Founders
(Logistics
Company) INCORPORATORS
XPNs: A corporation may be bound by the contract if it makes Thus, the laws provide that for a period of 5 years or less –
the contract its own by: they have the right to vote and be voted upon. NO ONE ELSE
have the right to nominate and elect. This is used to guide the
1. Adoption or ratification of the entire contract after infant corporation.
corporation
2. Acceptance of the benefits under the contract with The certificate of the founders’ shares defines the privilege that
knowledge of the terms thereof the holders of this share shall have.
3. Performance of its obligation under the contract
SEC. 6. CLASSIFICATION OF SHARES
Note: The contract must of course be one which is within the
powers of the corporation to enter. Section 6. Classification of Shares. – The classification of
shares, their corresponding privileges, or restrictions, and their
UNDERWRITERS stated par value, if any, must be indicated in the articles of
incorporation. Each share shall be equal in all respects to every
Underwriters are mostly banking companies. other share, except as otherwise provided in the articles of
incorporation and in the certificate of stock.
As distinguished from promoters who have no commitment
since they simply promote, underwriters have commitment such The shares in stock corporations may divided into classes or
that they guarantee the sale of stocks and if these were not sold, series of shares, or both. No share may be deprived of voting
they will be the ones who will buy the shares. The underwriters rights except those classified and issued as “preferred” or
therefore assume liability. “redeemable” shares, unless otherwise provided in this Code:
Provided, That there shall always be a class or series of shares
Example: The underwriters commit that 60% of the stocks will with complete voting rights.
be bought. If they cannot sell such committed shares, they will
guarantee that they will buy such stocks themselves. Holders of nonvoting shares shall nevertheless be entitled to
vote on the following matters:
If the Corporation does not declare dividends for a long **Note: Building and loan associations are organizations with
time, what does the BIR assess? the object of accumulating money from their members. The
A: The BIR will assess the corporation for Improperly money is then collected in periodical payments into the treasury
Accumulated Earnings Tax (IAET). thereof, to be invested, from time to time, in loans to the
members upon real estate for home purposes.
PAR VALUE VS. NON-PAR VALUE SHARES
DISTINCTION BETWEEN PAR-VALUE AND NO-PAR VALUE
PAR VALUE SHARES SHARES
Par value is the minimum issue price of a share of stock which If the assets of the corporation have all been exhausted and
must be stated in the AOI and in the Certificate of Stock (COS). there are still creditors, can the creditors go after the
If the incorporators agreed to the price, that is the price at which shareholders?
the shares will be sold to the public.
Non-Par Value Par-Value
Who can issue par value shares? No – the creditors cannot go Yes – the creditors can go
A: Any stock corporation is free to issue par value shares as after such holders. The non- after the shareholders.
indicated in its AOI. par value shares are
deemed fully paid. The subscribers are liable
**NOTES: to corporate creditors for
These are shares with a stated value set out in the AOI. their unpaid subscriptions
This remains the same regardless of the profitability of
the corporation (in comparison, the market or fair value
of a share of stock fluctuates depending on the Can a corporation lower the par value of shares?
company’s profitability). This gives rise to financial A: No. This is because the value of the par value is stated in the
stability and is the reason why banks, trust AOI, and changing it will mislead the public.
corporations, insurance companies and building and
loan associations must always be organized with par The practice of selling shares for a price lower than its par value
value shares. is called watering down of stocks, and these shares are known
as “watered stocks”.
NO-PAR VALUE SHARES
WATERED STOCKS
These are shares without a stated value.
These are stocks sold or issued at a price less than the stocks’
You still have to pay for these shares, but its value is not stated par value. The value of these shares is diluted, in that the public
in the AOI and in the COS. There is no fixed value stated in the is not apprised of the real value of the corporation.
Articles of Incorporation but issued for a consideration not less
than five (5) pesos per share. Illustration.
A corporation has 100Mn authorized capital shares, each with a
**NOTES: par value of P1.00.
A no-par share does not purport to represent any
stated proportionate interest in the capital stock Normally, the public would expect that the corporation has
measured by value, but only an aliquot part of the authorized capital in the amount of P100,000,000 (100Mn
whole number of such shares of the issuing corporation shares x P1.00 par value).
(Agbayani)
No-par value shares cannot have an issue price of less Now let’s say that the corporation initially issued 99.5Mn shares
than P5.00 per share for P1.00, and issued the remaining 500k shares for P0.50 only.
Once issued, they shall be deemed fully paid and non-
assessable, and the holders of such shares shall not How much is now the authorized capital of the corporation?
be liable to the corporation or to its creditors in respect A: Still P100,000,000.
thereto.
The entire consideration received by the corporation But how much capital actually came in?
shall be treated as capital, and shall not be available A: Only P99,750,000.
for distribution as dividends.
The AOI must state the fact that the corporation issues Computation:
no-par value shares and the number of such shares 99,500,000 shares X P1.00 = P99,500,000
No-par shares cannot be issued as preferred stocks 500,000 shares X P0.50 = + 250,000
Total P99,750,000
Page 15 of 25 | EH403 2019-2020 Corporation Law
What is the effect? REDEEMABLE SHARES
A: The corporation is misleading the public. It is not fair to the
public, and does not anymore reflect the actual capital structure These are shares which permit the issuing corporation to
of the corporation redeem or purchase its shares.
What is the purpose of the founder’s shares? Atty. E.; instead of borrowing from banks, the corporation is
A: It may be given to encourage organizers and promoters to borrowing money from the public.
make large investments in the proposed corporation.
There are many ways of acquiring funds from the corporation:
Exclusive right to vote to be voted for 1. Borrow from the banks
Note: If the exclusive right to vote and be voted for in the 2. Borrow from the public
election of directors is granted, such right must be limited for a
period not exceeding five (5) years. You have heard that bonds are floated, this is just the
The limit is non-extendible. corporation issuing bonds to the public, telling the public that if
The limitation is designed to prevent possible abuse of the you buy these bonds, we will buy this back from you in 5 years
Board. A lifetime term of the Board absolutely deprives with interest or premium. Or, redeemable shares, this is an
other stockholders/members of the opportunity to option to raise more money with the public.
participate in the management of the corporation.
We distinguish redeemable shares from the bank, in that banks
What happens after the five-year limit is over? are lenders and redeemable shareholders are investors.
Founders shall have equal rights with the holders of common
shares. What is the difference?
A: Redeemable shareholders assume a risk, particularly that the
corporation will become insolvent before the expiration of the
redemption period.
Can the corporations say: please do not get our capital? However, may it still be entitled to dividends?
A: They cannot. A: No. Because if they are allowed to be entitled to dividends, it
would create a situation where the corporation would be paying
Bank says not our problem, our problem is to collect, if we itself.
cannot collect, we get properties.
However, because these are issued shares, would it have
On the other hand, when we talk about redeemable shares? the right to vote?
A: If the corporation is insolvent, the shareholder cannot A: No, because otherwise, the current board would just use
demand redemption. these to vote for themselves, because the board acts on behalf
of the corporation – manage the properties of the corporation,
So we can only demand when? since these are properties, they will use these properties to cast
A: When we have profits, then we pay. votes in their favor pertaining to these shares. So this will allow
incumbent directors to perpetuate themselves in office.
Can it be obliged to pay?
A: Yes. That was your promise. To buy back the shares with a BORROWING REDEEMABLE
premium of course. FROM A BANK SHARE
Dealing with Dealing with investors
So here’s the investor, here’s the lender. So that if the Party
lenders/creditors
investor now demands for the reacquisition of his shares involved
because the due date has arrived, can the corporation say Compel payment Demand payment on
that they will use their profits for another purpose? upon maturity the date of
A: No. date without any redemption
conditions.
This is what the law calls what? Condition: The
A: Unrestricted retained earnings. In so far as the investor can compel
creditor is to redeem only when
Can the corporation even refuse by saying we do not have concerned, once it there are profits. The
unrestricted RE? is due and corporation is obliged
A: No. demandable, the to buy back the
creditor will compel shares with a
Atty. E.: Restricted or not, if you have surplus, pay. The When
the corporation to premium.
corporation has to pay, so long as there is surplus, unrestricted demandable
pay.
or not. NOTE: Regardless
whether it is restricted
The only situation where the corporation can refuse to pay is or not, as long as
when the corporation is insolvent, otherwise, the corporation will there is surplus, it is
be touching their capital and will be violating the trust fund obliged to pay.
doctrine.
Exception:
IOW, clearly, what is the difference between the investor Corporation is
and the lender? insolvent
A: The investor takes a risk.
No assumption of The investor takes the
What is that risk? risks; risk because the
A: The corporation will not redeem the shares if the corporation corporation may or
becomes insolvent. Assumption Lender can collect may not have retained
of Risk upon arrival of the earnings
However, since he is an investor, does he enjoy anything? due date without
A: Rights to dividends during the period while he is still the any conditions
holder (before the redemption period comes), if dividends are
declared. Not entitled to During the period
dividends; only while he is still the
On the other hand, if there are such dividends declared, can paid for the holder (before the
the lender also collect on such dividends? balance + interest period comes), he is
A: No, he cannot. Distribution
an investor. Thus,
of dividends
when dividends are
So, once reacquired, what happens? declared, he is
A: The redeemable shares become treasury shares. entitled to such.
Being part of capital, the treasury shares can be sold again. As Such shares may be disposed of again for a reasonable
to how much, it is the Board that will decide. price fixed by the BOD.
Treasury shares have no voting right as long as such
Special Features of Treasury Shares shares remain in the Treasury.
Pre-emptive right of stockholders in close corporations shall
(1) Once reacquired, it shall form part of its capital as a extend to reissuance of treasury shares unless otherwise
corporate asset. provided in the AOI.
(2) They can only be reacquired if there are unrestricted Generally, is the corporation authorized to buy back all of
retained earnings. its shares?
A: No.
(3) It is not entitled to dividends because in effect, the
corporation is paying itself, which is absurd. Otherwise, Why not?
it will involve double sale for the same shares. A: It would violate the trust fund doctrine. Such that when you
keep expending funds to buy back all the shares, it would
(4) It is not entitled to the right to vote because the disadvantage creditors, because it will reach a point where the
corporation is not a stockholder. If allowed and the capital will used up.
BOD exercises such right as representative of the
corporation, it can be subject to abuses. THE TRUST FUND DOCTRINE
The Trust Fund Doctrine means that the capital stock, properties
If they are were voting shares when issued, now and other assets of a corporation are regarded as equity in trust
that they are back, who may vote? for the payment of corporate creditors.
Answer: NO ONE. Treasury shares have no voting
rights. Stated simply, the trust fund doctrine states that all funds
received by the corporation in payment of the shares of stock
If the law were to give them voting rights, since these shall be held in trust for the corporate creditors and other
treasury shares are owned by the corporation, the BOD stockholders of the corporation. Under such doctrine, no fund
necessarily will act on behalf of the corporation. If they shall be used to buy back the issued shares of the stock except
were given voting rights, the BOD will definitely vote for only in instances specifically allowed by the Code. (Boman
them all the time. Environmental Development Corporation vs. CA, G.R. No.
77860, 1988)
(5) They can only be reacquired if there are unrestricted
retained earnings. By way of exception, however?
A: If it is specifically provided for in the AOI, such as redeemable
Unrestricted retained earnings – assets shares.
less liabilities; not allocated for anything;
absolutely free; no restrictions or CONVERTIBLE SHARES
appropriations.
A type of preferred stock that the holder can exchange for a
GEN: When it comes to treasury shares, the predetermined number of common shares at a specified time.
corporation is not always free to buy back the
shares. It requires that there should be VOTING VS. NON-VOTING SHARES
unrestricted retained earnings, otherwise, the
corporation will violate the Trust Fund Doctrine GEN: No share may be deprived of voting rights.
because if they were to buy it back without XPNs:
unrestricted retained earnings, the creditors 1. Preferred non-voting shares;
cannot go after the corporation to satisfy unpaid 2. Redeemable shares;
debts because there is no more capital to speak 3. Shares as provided by the Code (treasury shares)
of.
There shall always be a class/series of shares which have
complete voting rights.
Shares that are provided with voting rights on any issue on the Issued or committed to a particular shareholder, but deposited
corporation. The voter can participate in any meeting and on any with a 3rd person or a deposit account pending the fulfilment by
issue that may be raised during the meeting. that 3rd person for which it was reserved of the conditions
expressly provided in the certificate of stocks
Reason: A shareholder is a part-owner of the corporation. Since
the shareholder cannot interfere with the management, he can Share is subject to an agreement; share is deposited with a 3rd
only exercise his ownership by voting on certain issues. As part- person to be kept by the depositary until the performance of a
owner, he has the right to protect his ownership. Hence, entitles certain condition
him to vote.
NON-VOTING SHARES
Shares that are not provided with voting rights but subject to
exceptions.
RIGHT OF APPRAISAL