PAMANTASAN NG LUNGSOD NG PASIG

Alkalde Jose, Brgy. Kapasigan, Pasig City

BUSINESS LAWS AND REGULATIONS

Name: Poldo, Roan Isabel C. Section: BSA-2A

CHAPTER XII – CLOSE CORPORATIONS

1. What is a close corporation?

A close corporation under the Revised Corporation Code of the Philippines

is one whose articles of incorporation provides that:

• All the classes of shares issued by a corporation shall be held of record

by not more than a specified number of persons, not exceeding twenty;

• All the issued stock of all classes shall be subject to one or more

specified restrictions on transfer; and

• The corporation shall not list in any stock exchange or make any public

offering of its stocks of any class.

2. What if X Corp. has a capital stock of 100,000, all with voting rights, and 70k of it is owned

by Y Corp. and the other 30k is owed by A, B, C, D, and E. Can we consider X Corp. as a

close corporation?

No, because to be considered as a close corporation if at least 2/3 of its

voting stock is owned or controlled by another corporation. Since Y Corp. owns

beyond the 2/3 of its voting stock, it cannot be deemed recognized as a close

corporation.

3. What corporations cannot be created or incorporated as a close corporation? (MS-BIPEP)

Under the Revised Corporation Code of the Philippines, any corporation may

be incorporated as a close corporation, except mining or oil companies, stock

 exchanges, banks, insurance companies, public utilities, educational institutions,

and corporations declared to be vested with public interest.

4. So, what will happen if a person who is not qualified to be a transferee of the stocks in a

close corporation, but it was sold to him?

If stocks are transferred to a person who is not qualified to be a transferee

of the stocks in a close corporation, such person is conclusively presumed to have

notice of the fact of ineligibility to be a stockholder.

5. What is the exception to the above rule?

The exception to rule is when the transfer to be valid and binding on any

purchaser, the shares must be held in good faith and must appear in the articles of

incorporation, bylaws, as well as in the certificate of stock.

6. Any action taken by the directors of a close corp. without a meeting properly called for that

purpose is deemed as VALID. But what are the requirements for it to be valid?

For a meeting unnecessary held to be valid it must:

• Before or after such action is taken, a written consent thereto is signed

by all the directors; or

• All the stockholders have actual or implied knowledge of the action and

make no prompt objection in writing; or

• The directors are accustomed to take informal action with the express or

implied acquiescence of all the stockholders; or

• All the directors have express or implied knowledge of the action in

question and none of them makes a prompt objection in writing.

7. What is the voting requirement for an amendment of the AOI which will delete or remove

a provision required for a close corporation?

 The requirement for amendment of the articles of incorporation is an

affirmative vote of at least two-thirds (2/3) of the outstanding capital stock, whether

with or without voting rights, or of such greater proportion of shares as may be

specifically provided in the articles of incorporation.

8. What will happen if there is deadlock in terms of votes for a corporate action?

If there is deadlocks in terms of votes for a corporate action, the SEC upon

written petition by any stockholder, shall have the power to arbitrate the dispute

and have the authority to make appropriate orders such as:

• cancelling or altering any provision contained in the articles of

incorporation, bylaws, or any stockholder’s agreement;

• cancelling, altering or enjoining a resolution or act of the corporation or

its board of directors, stockholders, or officers;

• directing or prohibiting any act of the corporation or its board of

directors, stockholders, officers, or other persons party to the action;

• requiring the purchase at their fair value of shares of any stockholder,

either by the corporation regardless of the availability of unrestricted

retained earnings in its books, or by the other stockholders;

• appointing a provisional director;

• dissolving the corporation; or

• granting such other relief as the circumstances may warrant.

9. What or who is a provisional director?

A provisional director shall be an impartial person who is neither a

stockholder nor a creditor of the corporation or any of its subsidiaries or affiliates,

and whose further qualifications, if any, may be determined by the SEC.

 10. What are the grounds in order that a stockholder may compel a close corporation to

dissolve?

The grounds for a stockholder may compel a close corporation to dissolve

in written petition are:

• any of acts of the directors, officers, or those in control of the corporation

is illegal, fraudulent, dishonest, oppressive, or unfairly prejudicial to the

corporation or any stockholder; or

• whenever corporate assets are being misapplied or wasted.

CHAPTER XIII – SPECIAL CORPORATION

1. How many trustees are there in a non-stock and non-profit Educational Corporation?

The trustees in a non-stock and non-profit educational corporation shall not

be less that five nor more than fifteen and always be in multiples of five.

2. What are the classifications of a religious corporation?

The classifications of a religious corporation are corporation sole and

religious societies.

3. How is a corporation sole formed?

A corporation sole may be formed by the chief archbishop, bishop, priest,

minister, rabbi, or other presiding elder of such religious denomination, sect, or

church for the purpose of administering and managing, as trustee, the affairs,

property and temporalities of any religious denomination, sect or church.

4. How are religious societies formed?

Religious societies are formed by more than one person. Unless forbidden

by competent authority, the Constitution, pertinent rules, regulations, or discipline

of the religious denomination, sect or church of which it is a part can be formed

 upon written consent or by an affirmative vote of at least 2/3 of its membership at a

meeting called for its purpose.

5. What must be indicated in the AOI of a corporation sole?

Articles of incorporation of a corporation sole must be filed to the SEC

including the following:

• The applicant represents the religious denomination, sect, or church

which desires to become a corporation sole;

• That the rules, regulations and discipline of the religious denomination,

sect or church are consistent with becoming a corporation sole and do

not forbid it;

• Such applicant elder is charged with the administration of the

temporalities and the management of the affairs, estate and properties of

the religious denomination, sect or church within the territorial

jurisdiction, so described succinctly in the articles of incorporation;

• How any vacancy occurring in the office elder is required to be filled,

according to the rules, regulations or discipline of the religious

denomination, sect or church; and

• The principal office shall be located and established within the territory

of the Philippines.

6. May a corporation sole acquire real properties? Explain.

Yes, a sole corporation may acquire real property. A corporation sole may

purchase and hold real estate and personal property for its church, charitable,

benevolent, or educational purposes, and may receive bequests or gifts for such

purposes.
 7. What are the requirements in order for a corporation sole to sell or mortgage its

property/properties?

To sell or mortgage its own properties, it must obtain an order for that

purpose from the Regional Trial Court where the property is located upon proof that

the notice of application for leave to sell or mortgage has been made through

publication or as directed by the Court and within the interest of the corporation for

it to be granted.

8. Discuss the dissolution process of a corporation sole.

It may be dissolved voluntarily by submitting to the SEC a verified

declaration of dissolution, setting forth:

• The name of the corporation;

• The reason for dissolution and winding up;

• The authorization for the dissolution of the corporation by the particular

religious denomination, sect or church; and

• The names and addresses of the persons who are to supervise the

winding up of the affairs of the corporation.

CHAPTER XIV – ONE PERSON CORPORATION (OPC)

1. What is a one-person corporation?

A one-person corporation is a corporation with a single stockholder that is

only a natural person, trust or any estate.

2. What is the term of an OPC?

The term of existence of a one-person corporation is perpetual. But for the

state of trust or estate it must be co-terminous with the existence of the trust or

estate.

3. Who are not allowed to form OPC?

 The following are not allowed to form a one person corporation:

• Banks and quasi-banks,

• pre-need,

• trust,

• insurance,

• public and publicly-listed companies,

• non-chartered government-owned and controlled corporations.

4. What are the contents of the AOI of an OPC?

The articles of incorporation of a one person corporation must contain if the

single stockholder is a trust or an estate, the name, nationality, and residence of the

trustee, administrator, executor, guardian, conservator, custodian, or other person

exercising fiduciary duties together with the proof of such authority to act on behalf

of the trust or estate and name, nationality, residence of the nominee and alternate

nominee, and the extent, coverage and limitation of the authority.

5. Who is the director and president of an OPC?

The director and president of an OPC should be the single stockholder

himself.

6. May the stockholder of an OPC be appointed as the corporate secretary?

No. Since there is only a single stockholder, the same cannot become a

secretary since he is the director and president of the corporation and the secretary

shall have the means to notify the nominee or alternate nominee.

7. What are the special functions of a corpo sec. in an OPC?

The special functions of the secretary in an OPC are:

• responsible for maintaining the minutes book and/or records of the

corporation;
 • notify the nominee or alternate nominee of the death or incapacity of the

single stockholder, which notice shall be given no later than five (5) days

from such occurrence;

• notify the SEC of the death of the single stockholder within five (5) days

from such occurrence and stating in such notice the names, residence

addresses, and contact details of all known legal heirs; and

• call the nominee or alternate nominee and the known legal heirs to a

meeting and advise the legal heirs with regard to, among others, the

election of a new director, amendment of the articles of incorporation,

and other ancillary and/or consequential matters.

8. What is the reason why the stockholder cannot be appointed as corpo. Sec.?

Since there is only a single stockholder, the same cannot become a secretary

since he is the director and president of the corporation and the secretary shall

have the means to notify the nominee or alternate nominee upon the death or

incapacity of the single-stockholder.

9. What is the purpose of designating a nominee and an alternate nominee?

To have someone to take place if the single-stockholder experience death or

incapacity to manage the corporation.

10. Discuss the term of nominee and/or alternate nominee.

The term of a nominee or alternate nominee if the single-stockholder in

incapacity, he can manage and sit as a director until the stockholder by self-

determination regains the capacity to assume duties. In the case of death or

permanent incapacity the nominee or alternate nominee can act as a director and

manage the affairs of the corporation until the legal heir of the single-stockholder

have been lawfully determined and designated to be the single-stockholder of the

one person corporation.

 11. What will be the consequence if an OPC failed to submit reportorial requirements 3 times

within a period of 5 years?

The SEC will put them in a delinquent status if a one person corporation

failed to submit reportorial requirements 3 times within a period of 5 years

12. Can the stockholder of an OPC claim limited liability?

Yes, but it has the burden of affirmatively showing that the corporation was

adequately financed.

13. What will happen if the stockholder of an OPC cannot prove that the property of the OPC

is independent from his/her own properties?

The stockholder shall be jointly and severally liable for the debts and other

liabilities of the one person corporation.

14. Can an ordinary corporation be converted to an OPC? How?

Yes, it can. When a single stockholder acquires all the stocks of an ordinary

stock corporation, the latter may apply for conversion into a One Person

Corporation, subject to the submission of such documents as the SEC may require.

When approved the SEC shall issue a certificate of filing of amended from an

ordinary stock corporation shall succeed the latter and be legally responsible for

all the latter’s outstanding liabilities as of the date of conversion.

CHAPTER XIV – DISSOLUTION

1. What is dissolution?

Dissolution means that the corporation ceases to be a judicial person and

consequently can no longer continue transacting business. But for the purpose of

winding up, its affairs and liquidating its assets remains its corporate existence for

a period of three years from such dissolution.

2. What are the methods of dissolution?

 The methods of dissolution are voluntary and involuntary. Voluntary

dissolution can be no creditors are affected, where creditors are affected and by

shortening of corporate term.

3. What is the voting requirement in voluntary dissolution when there are no creditors

affected?

If there are no creditors affected for the voluntary dissolution, the voting

requirement is majority of the board of directors or trustees and by a resolution

adopted by affirmative vote of stockholders owning at least majority of the capital

stock or majority of the members for non-stock at a meeting held upon the call of

the directors or trustees.

4. What is the voting requirement in voluntary dissolution when there are creditors affected?

For when creditors are affected, signed by a majority of the corporation’s

board pf directors or trustees plus affirmative vote of the stockholders representing

at least two-thirds of the outstanding capital stock or at least two-thirds of the

members at a meeting called for that purpose.

5. In case of voluntary dissolution when there are no creditors affected, what should the

corporation submit to the SEC?

The corporation shall submit a copy of amended articles of incorporation.

6. In case of voluntary dissolution, when should the dissolution take effect?

The dissolution shall take effect only upon the issuance by the SEC of a

certificate of dissolution.

7. Upon expiration of corporate term, is there a need for the SEC to issue certificate of

dissolution? Explain.

No, there is no need of issuance of the certificate of dissolution from the SEC

since it is amended on the articles of incorporation.

8. What is involuntary dissolution?

 An involuntary dissolution is when a corporation may be dissolved by the

SEC motu proprio or upon filing of a verified complaint by any interested party.

9. What are the grounds for involuntary dissolution?

The grounds of dissolution of a corporation are:

• Non-use of corporate charter as provided under Section 21 of this Code;

• Continuous in-operation of a corporation as provided under Section 21

of this Code;

• Upon receipt of a lawful court order dissolving the corporation;

• Upon finding by final judgment that the corporation procured its

incorporation through fraud;

• Upon finding by final judgment that the corporation was created for the

purpose of committing, concealing or aiding the commission of

securities violations, smuggling, tax evasion, money laundering, or graft

and corrupt practices, committed or aided in the commission of

securities violations, smuggling, tax evasion, money laundering, or graft

and corrupt practices, and its stockholders knew, and repeatedly and

knowingly tolerated the commission of graft and corrupt practices or

other fraudulent or illegal acts by its directors, trustees, officers, or

employees.

10. What is liquidation?

Liquidation is a necessary consequence of the dissolution of the

corporation. It is the process of settling the affairs of said corporation which

consists of adjusting the debts and claims, that is of collecting all that is due the

corporation, the settlement and adjustment of the claims against it and the payment

of its just debt.

 11. After the corporate existence has been terminated or the corporate term expired, such

corporation shall remain as a body corporate for 3 years, but only for what limited purpose?

It is for the purpose of prosecuting and defending suits by or against it and

enabling it to settle and close its affairs, dispose of and convey its property, and

distribute its assets, but not for the purpose of continuing the business for which it

was established.

12. During this 3-year period, can such corporation still engage in business?

No. The three-year period is for the purpose of prosecuting and defending

suits by or against it and enabling it to settle and close its affairs, dispose of and

convey its property, and distribute its assets not to continue the business because

what is the purpose of liquidation if you will still continue the business.

13. What will happen to any remaining assets, if any, after payment of all corporate debts and

liabilities?

After the payment of all the corporate debts, it property in trust for the benefit

of its stockholders, members, creditors and others in interest, all interest which the

corporation had in the property terminates, the legal interest vests in the trustees,

and the beneficial interest in the stockholders, members, creditors or other

persons-in-interest.

CHAPTER XV – FOREIGN CORPORATIONS

1. What is a foreign corporation?

Foreign corporation is one formed, organized or existing under laws other

than those of the Philippines’ and whose laws allow Filipino citizens and

corporations to do business in its own country or State.

2. What does “doing business” with respect to foreign corporation means? Explain.
 It implies a continuity of commercial dealings and arrangements, and

contemplates to that extent the performance of acts or works or the exercise of

some of the functions normally incident to or in progressive prosecution of the

purpose and subject of its organization.

3. What are the two tests to determine whether a foreign corporation can be considered as

doing business in the Philippines or not? Explain each.

The two tests to determine whether a foreign corporation can be considered

as doing business in the Philippines or not are substance test and continuity test.

• Substance Test - The true test for doing business, however, seems to be

whether the foreign corporation is continuing the body of the business

or enterprise for which it was organized or whether it has substantially

retired from it and turned it over to another.

• Continuity Test - The term doing business implies continuity of

commercial dealings and arrangements, and contemplates, to that

extent, the performance of acts or works or the exercise of some of the

functions normally incident to, and in the progressive prosecution of, the

purpose and object of its organization.

4. What are the requirements if a foreign corporation wants to apply for a license to transact

business in the Philippines?

The foreign corporation applying for license shall submit their copy of

articles of incorporation and bylaws, certificate in accordance with law, and their

translation to an official language of the Philippines to the SEC.

5. Who is a resident agent?

A resident agent is an individual residing in the Philippines or a domestic

corporation lawfully transacting business in the Philippines.

6. What law governs or applies to a foreign corporation doing business in the Philippines?
 A foreign corporation shall be governed by all laws, rules and regulation

applicable to domestic corporations of the same class except those which provide

for the the creation, formation, organization or dissolution of corporations or those

which fix the relations, liabilities, responsibilities, or duties of stockholders,

members, or officers of corporations to each other or to the corporation.

7. What should the foreign corp. doing business in the Philippines do if there are

amendments made to their AOI or bylaws?

If such amendments was made in the articles of incorporation, within sixty

days after it becomes effective, shall be file with the SEC and its proper cases with

the appropriate government agency a duly authenticated copy of the amended

articles of incorporation or bylaws in capital letters or underscoring the change or

changes made fully certified by the authorized official of the state of incorporation.

8. What is the effect if a foreign corp. transacts business here in the Philippines without a

license?

Such corporation is not permitted to maintain or intervene in any action, suit

or proceeding in any court or administrative agency in the Philippines but may be

sued or proceeded against before Philippine courts or administrative tribunals on

any valid cause of action recognized under Philippines laws.

9. What are the grounds for the revocation of license of a foreign corporation doing business

in the Philippines?

The grounds for revocation of license of a foreign corporation are:

• Failure to file its annual report or pay any fees as required by this Code;

• Failure to appoint and maintain a resident agent in the Philippines as

required by this Title;

• Failure, after change of its resident agent or address, to submit to the

Commission a statement of such change as required by this Title;

 • Failure to submit to the Commission an authenticated copy of any

amendment to its articles of incorporation or bylaws or of any articles of

merger or consolidation within the time prescribed by this Title;

• A misrepresentation of any material matter in any application, report,

affidavit or other document submitted by such corporation pursuant to

this Title;

• Failure to pay any and all taxes, imposts, assessments or penalties, if

any, lawfully due to the Philippine Government or any of its agencies or

political subdivisions;

• Transacting business in the Philippines outside of the purpose or

purposes for which such corporation is authorized under its license;

• Transacting business in the Philippines as agent of or acting on behalf of

any foreign corporation or entity not duly licensed to do business in the

Philippines; or

• Any other ground as would render it unfit to transact business in the

Philippines.

CHAPTER XVI – DERIVATIVE SUIT

1. In what capacities may a stockholder sue a corporation if there is wrongful or fraudulent

corporate actions?

A stockholder may sue a corporation if there is wrongful or fraudulent

corporate actions in three capacities: as an individual, part of a group or a specific

class of stock holder or a representative of the corporation.

2. What is individual suit?

An individual suit is filed when the cause of action belongs to the individual

stockholder personally and not the stockholders as a group or to the corporation.

3. What is a derivative suit?

A derivative suit is an action filed by the stockholders to enforce a corporate

action. It is filed by the stockholders in the name of the corporation to enforce a

corporate right or cause of action to set aside wrongful acts committed by its

directors and officers.

4. Who is the real party in interest in derivative suit?

In derivative suits the real party in interest is the corporation and the suing

stockholder is a mere nominal party.

5. What are the requisites for filing a derivative suit?

The Interim Ruled of procedure for Intra-Corporate Controversies has five

requisites for filing derivative suits:

1. Must be a stockholder at time of act complained of and at time of

filing of action.

2. He exerted all reasonable efforts and alleged the same with

particularity in the complaint and he exhausted all remedies

available under articles of incorporation, bylaws, laws relating to

corporation or partnership to obtain the relief he desires.

3. No appraisal rights are available for the act or acts complained of

4. The suit is not a nuisance or harassment suit

5. Must be brought in the name of the corporation or association.

6. If there is a pending derivative suit in court, may such action continue if the corporation is

dissolved during its pendency?

Yes, the dissolution of the corporation simply prohibits it from continuing its

business. However, despite such dissolution, the parties involved in the litigation
are still corporate actors. The dissolution does not automatically convert the parties

into total strangers or change their intra-corporate relationships.