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Thursday, January 26, 2017 Labels

bar questions (2)

2007-2013 Bar Questions on Corporation Laws
commercial law (2)
2007 BAR
corpo (1)
Stockholders; Appraisal Right (2007)
corpo code (1)
No.VII. In a stockholders meeting, S dissented from the corporate act converting preferred voting
shares to non-voting shares. Thereafter, S submitted his certificates of stock for notation that his
corporation law (1)
shares are dissenting. The next day, S transferred his shares are dissenting. The next day, S
transferred his shares to T to whom new certificates were issued. Now, T demands from the digests (27)
corporation the payment of the value of his shares. (10%)
election law (1)
(A) What is the meaning of a stockholder’s appraisal right?
ANSWER: Appraisal right is the right of stockholder, who dissents from a fundamental or labor law (1)
extraordinary corporate action, to demand payment of the fair value of his shares. It is the right of a
law on intellectual property (1)
stockholder to withdraw from the corporation and demand payment of the fair value of his shares
after dissenting form certain corporate acts involving fundamental changes in the corporate political law (1)
structure (Section 81, Corporation Code).
sales (2)
(B) Can T exercise the right of appraisal? Reason briefly?
ANSWER: No, T cannot exercise the right of appraisal in this case. When S transferred his shares statcon (23)
to T and T was issued new stock certificates, the appraisal right of S ceased, and T acquired all the
rights of a regular stockholder. The transfer of shares from S to T constitutes an abandonment of
statutory construction (23)
the appraisal right of S. All the T acquired from the issuance of new stock certificated was the rights
of a regular stockholders (Section 86, Corporation Code).
Blog Archive
Trust Fund Doctrine (2007)
No.VI. Discuss the trust fund doctrine. (5%) ▼ 2017 (4)
▼ January (4)
ANSWER: The trust fund doctrine means that the capital stock, properties and other assets of a
corporation are regarded as equity in trust for the payment of corporate creditors. Stated simply, the 2007-2013 Bar Questions
on Corporation Laws
trust fund doctrine states that all funds received by the corporation in payment of the shares of
stock shall be held in trust for the corporate creditors and other stockholders of the corporation. 2000-2014 Bar Questions
Under such doctrine, no fund shall be used to buy back the issued shares of stock except only in on Law on Intellectual
instances specifically allowed by the Corporation Code (Boman Environmental Development Pro...
Corporation v. Court of Appeals, 167 SCRA 540 [1988]). Pfizer v. Velasco
Sps. Romualdez v.
COMELEC

2008 BAR
► 2013 (25)
Dividends; Declaration of Dividends (2008)
No.XIV. Ace Cruz subscribed to 100,000 shares of stock of JP Development Corporation, which
ahs a par value of P1 per share. He paid P25,000 and promised to pay the balance before
December 31, 2008. JP Development Corporation declared a cash dividend on October 15, 2008,
payable on December 1, 2008 (A) For how many shares is Ace Cruz entitled to be paid cash
dividends? Explain. (2%)

ANSWER: Ace Cruz is entitled to be paid each cash dividends to the entire 100,1000 shares
subscribed, and not only to the paid-up portion thereof. The legal character of being a
“stockholder,” and therefore the entitlement to all the rights of a stockholder, are determined from
the time of “subscription” and not from payment of the subscription. Under Sec. 43 of the
Corporation Code, “a stock corporation may declare dividends out of the unrestricted retained
earnings which shall be payable in cash, in property, or in stock to all stock-holders on the basis of
outstanding stock held by them” on not on the basis on what stocks have been paid.

ALTERNATIVE ANSWER: Under Sec. 71, only when a stockholder has been declared delinquent
do his rights as stockholder become suspended. It means therefore that a stockholder who has not
paid the full subscription, provided he is not declared delinquent has complete exercise of all of his
rights, including the right to receive dividends. But any cash dividends due on delinquent stock
shall first be applied to the unpaid balance of the subscription (Sec. 43, Corporation Code).

(B) On December 1, 2008, can Ace Cruz compel JP Development Corporation to issue to him the
stock certificate corresponding to the P25,000 paid by him? (2%)
ANSWER: No, Ace Cruz cannot compel JP Development Corporation to issue him the stock
certificate for the P 25,000.00. No Certificate of Stock can be issued to a subscriber until the full
amount of his subscription together with interest and expense, if any is due, has been paid. A
Subscription is one, entire and indivisible whole contract which cannot be divided into portions. The
stockholder is not entitled to a Certificate of Stock until he has remitted the full amount of his
subscription (Sec. 64, Corporation Code; SEC Opinion [January 6, 1989]).

Piercing the Corporate Veil (2008)

No.X. Nelson owned and controlled Sonnel Construction Company. Acting for the company, Nelson
contracted the construction of a building. Without first installing a protective net atop the sidewalks
adjoining the construction site, the company proceeded with the construction work. One day a
heavy piece of lumber fell from the building. It smashed a taxicab which at that time had gone
offroad and onto the sidewalk in order to avoid traffic. The taxicab passenger died as a result.
Assume that the company had no more account and property in its name. As counsel for the heirs
of the victim, whom will you sue for damages, and what theory will you adopt? (3%)

ANSWER:
I would sue Nelson, as the person who owned and controlled Sonnel Contruction Company, under
the doctrine of “piercing the veil of corporate fiction.” Although a corporation has a juridical
personality separate and distinct from that of its stockholders, when the corporation is used merely
as an alter ego or controlled for the benefit of a stockholder, or when it is necessary to render
justice, then the courts have the right to pierce the veil of corporate fiction to hold the controlling
stockholder-officer personally liable for the corporate tort or wrong committed. The contractor
should also be held liable, since being an independent contractor it is liable for the fault or
negligence of its people.

(B) If you were the counsel for Sonnel Construction, how would you defend your client? What
would be your theory? (2%)
ANSWER:
I would use the theory that the company cannot be held liable for damages because there was no
fraud or negligence by its officers in undertaking the project for the construction of the building or
the selection of a construction company. Since a contractor is not an agent of Sonnel Construction,
the latter cannot be held liable for the contractor’s negligence. I would also argue that piercing the
veil of corporate fiction is a remedy of last resort and cannot be availed of without clear evidence
showing fraud or disrespect of the separate juridical personality of the corporation. Mere control of
equity has not been considered as sufficient basis for piercing the veil.

(C) Could the heirs hold the taxicab owner and driver liable? Explain. (2%)
ANSWER: Yes, the taxicab company can be liable for damages because it failed to comply with its
obligation as a common carrier to use extraordinary diligence in transporting the passenger, and
because at the time of death of the passenger, the cab driver was violating a traffic regulation.
Under Art. 2185 of Civil Code, it is presumed that a person driving a motor vehicle has been
negligent if at time of mishap he was violating a traffic regulation, such as when he was driving on
the wrong side of the road (Mallari, Sr. v. CA, G.R. No. 128607, 31 January 2000).

BOD; Conflict of Interest; Ratification (2008)

No.XII. Pedro was 70% of the subscribed capital stock of a company which owns an office building.
Paolo and Juan own the remaining stock equally between them. Paolo also owns a security
agency, a janitorial company and a catering business. In behalf of the office building company,
Paolo engaged his companies to render their services to the office building. Are the service
contracts valid? Explain. (4%)

Answer:
The contracts of Paolo, who owns 15% of the Outstanding Capital Stock of the office building
company is concerned if they were not approved by the Board of Directors and Paolo was not
designated to execute them on behalf of said company. On the other hand, if the contracts were
duly approved by the Board of Directors of the office building company with Paolo duly designated
as company representative, they would nevertheless be voided at the option of the company.
Under Sec. 32 of the Corporation Code. “A contract of the corporation with one or more of its
directors or trustees or officers is voidable at the option of such corporation, unless all the following
conditions are present,” (a) if Paolo as a director in the board meeting in which the contracts were
approved was not necessary to constitute a quorum for such meeting; (b) Paolo’s vote at such
meeting was not necessary for the approval of the contracts; (c) Each of the contract are fair and
reasonable under the circumstances.

If condition (a) or (b) is absent, Sec, 32 requires that the contracts must be ratified by the
shareholders representing at least two-thirds (2/3) of outstanding capital stock, provided that there
was full disclosure of
the adverse interest of Paolo to Pedro

Formation; Enactment of a Law (2008)

No.XI. (A) Since February 8, 1935, the legislature has not passed even a single law creating a
private corporation. What provision of the Constitution precludes the passage of such a law? (3%)

Answer:
Under Sec. 16, Art. XII of the 1987 Constitution, Congress cannot, except by general law, provide
for the formation, organization, or regulation of private corporations. It is only government owned or
controlled corporations that may be created or established through special charters. Consequently,
it has been held that a private corporation created pursuant to a special law is a nullity, and such
special law is void for being in violation of the Constitution (NDC v. Phil. Veterans Bank, G.R. Nos.
84132-33, 10 December 1990).

B) May the composition of the board of directors of the National Power Corporation (NPC) be
validly reduced to three (3)? Explain your answer fully. (2%)

Answer:
The NPC Board may be reduced to only three (3) members, but this would have to be affected by
legislative amendment of its charter. The National Power Corporation (NPC is a chartered
government corporation, not governed by the general provisions of the Corporation Code which
requires that Boards of Directors of private corporations shall not have less than 5 members. The
provisions of the Corporation Code are applicable to government corporations only in a suppletory
manner.

===============
2009 BAR

Derivative Suit; Jurisdiction (2009)

No.II. Atlantis Realty Corporation (ARC), a local firm engaged in real estate development, plans to
sell one of its prime assets—a three-hectare land valued at about P100-million. For this purpose,
the board of directors of ARC unanimously passed a resolution approving the sale of the property
for P75-million to Shangrila Real Estate Ventures (SREV) a rival realty firm. The resolution also
called for a special stockholders meeting at which the proposed sale would be up for ratification.
Atty. Edric, a stockholder who owns only one (1) share in ARC, wants to stop the sale. He then
commences a derivative suit for and in behalf of the corporation, to enjoin the board of directors
and the stockholders from approving the sale.

(A) Can Atty. Edric, who owns only one share in the company, initiate a derivative suit? Why or why
not? (2%)

ANSWER: Yes, Atty. Edric can initiate a derivative suit, otherwise known as the minority
stockholders’ suit. It is allowed by law to enable the minority stockholder/s to protect the interest of
the corporation against illegal or disadvantageous act/s of its officers or directors, the people who
are supposed to protect the corporation (Pascual v. Del Zaz Orozco, 19 Phil. 82 (1991)).

(B) If such a suit is commenced, would it constitute an intra-corporate dispute? If so, why and
where would such a suit be filed? If not, why not? (2%)

ANSWER:
Yes, such suit would constitute an entra-corporate dispute as it is a suit initiated by a stockholder
against other stockholders who are officers and directors of the same corporation (P.D. No. 902-A,
Sec. 5(b)). Such suit should be filed in the Regional Trial Court designated by the Supreme Court
as a corporate or commercial court.

(C) Will the suit prosper? Why or why not? (3%)

ANSWER: No. The suit will not prosper. There is no requisite demand on the officers and directors
concerned. There is, therefore, no exhaustion of administrative remedies.

Dividends; Declaration of Dividends (2009)

No.I. Dividends on shares of stocks can only be declared out of unrestricted retained earnings of
the corporation.

ANSWER: True. Dividends on shares of stock of a corporation, whether cash dividend or stock
dividend, can be validly declared only out of unrestricted retained earnings (Sec. 43, Corporation
Code). It cannot be declared out of the capital. Otherwise, such declaration of dividend will violate
the trust fund doctrine.

Dividends; Declaration of Dividends (2009)

No.XVI. On September 15, 2007, XYZ Corporation issued to Paterno eight hundred preferred
shares with the ff. terms: ―The Preferred Shares shall have the ff. rights, preferences,
qualifications, and limitations, to wit: (1) The right to receive a quarterly dividend of One per
Centum cumulative and participating; (2) These shares may be redeemed, by drawing of lots, at
any time after two years from date of issue, at the option of the Corporation; xxx Today, Paterno
sues XYZ Corporation for specific performance, for the payment of dividends on, and to compel the
redemption of , the preferred shares, under the terms and conditions provided in the stock
certificates. Will the suit prosper? Explain. (3%)

ANSWER: No. the suit will not prosper. Paterno cannot compel XYZ Corporation to pay dividends,
which have to be declared by the Board of Directors and the latter cannot do so, unless there are
sufficient unrestricted retained earnings. Otherwise, the corporation will be forced to use its capital
to make said payments in violation of the trust fund doctrine. Likewise, redemption of shares
cannot be compelled. While the certificate allws such redemption, the option and discretion to do
so are clearly vested in the corporation (Republic Planters Bank v. Agana, 269 SCRA 1 [1997]).

Stock and Transfer Book (2009)

No.XVIII. (C) What is a stock and transfer book? (1%)
ANSWER: A Stock and transfer book is a book which records all stocks in the name of the
stockholders alphabetically arranged; the installments paid or unpaid on all stocks 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 (Section 74, Corporation Code).

Stockholders; Contractual Relationship; Quorum (2009)

No.XVIII. Triple a Corporation (Triple A) was incorporated in 1960, with 500 founders’ shares and
78 common shares as its initial capital stock subscription. However, Triple A registered its stock
and transfer book only in 1978, and recorded merely 33 common shares as the corporation’s
issued and outstanding shares. (A) In 1982, Juancho, the sole heir of one of the original
incorporators filed a petition with the Securities and Exchange Commission (SEC) for the
registration of his property rights over 120 founder’s shares and 12 common shares. The petition
was supported by a copy of the Articles of Incorporation indicating the incorporator’s initial capital
stock subscription. Will the petition be granted? Why or why not? (3%)

ANSWER:
Yes. The articles of Incorporation define the charter of the corporation and the contractual
relationship between the State and the Corporation, the State and the stockholders, and between
the corporation and the stockholders. Its contents are thus binding upon both the corporation and
the stockholders, conferring on Juancho a clear right to have his stockholding recorded (Lanuza v.
Court of Appeals, 454 SCRA 54 (2005)).

(B) On May 6, 1992, a special stockholders’ meeting was held. At this meeting, what would have
constituted a quorum? Explain. (3%)
ANSWER: A quorum consists of the majority of the totality of the shares which gave been
subscribed and issued. Thus the quorum for such meeting would be 289 shares or a majority of the
576 shares issued and outstanding as indicated in the article of incorporation. This includes the 33
common shares reflected in the stock and transfer book, there being no mention or showing of any
transaction effected from the time of Triple A’s incorporation in 1960up to the said meeting (Section
52 in Relation to Section 137 of corporation Code; Lanuza v. court of Appeals, 454 SCRA 54
(2005)).

Ultra Vires Acts (2009)

When is there an ultra vires act on the part of (a) the corporation; (b) the board of directors; and (c)
the corporate officers? (3%)

(A) the corporation;

ANSWER: Under Section 45 of the Corporation Code, no corporation shall possess or exercise any
corporate power except those conferred by the Code or by its articles of incorporation and except
such as are necessary or incidental to the exercise of the powers so conferred. When a corporation
does an act or engages in an activity which is outside of its express, implied or incidental powers
set out in its articles of incorporation, the act is deemed to be ultra vires.

(B) the board of directors;

ANSWER: When the Board engages in an activity or enters into a contract without the ratificatory
vote of the stockholders in those instances where the Corporation Code so Requires such
ratificatory vote, such as when the corporation is made to invest in another corporation or engage
in a business which is not in pursuit of its primary purpose, the board resolution not ratified by
stockholders owning or representing at least two-thirds of the outstanding capital stock would make
the transaction void, as being ultra vires.

(C) the corporate officers

ANSWER: When a corporate officer enters into a contract on behalf of the corporation without
having been so expressly or impliedly authorized by the Board of Directors, even when the act or
contract falls within the corporation’s express, implied or incidental power, then the unauthorized
act of the corporate

2010 BAR

Corporation; Sole Proprietorship (2010)

No.IX. Your client Dianne approaches you for legal advice on putting up a medium-sized restaurant
business that will specialize in a novel type of cuisine. As Dianne feels that the business is a little
risky, she wonders whether she should use a corporation as the business vehicle, or just run it as a
single proprietorship. She already has an existing corporation that is producing meat products
profitably and is also considering the alternative of simply setting up the restaurant as a branch
office of the existing corporation.

(A) Briefly explain to your client what you see as the legal advantages and disadvantages of using
a separate corporation, a single proprietorship, or a branch of an existing corporation for the
proposed restaurant business. (3%)

ANSWER: If Dianne will set up a separate corporation, her liability for its obligations and losses will
be limited to the amount of her subscription in the absence of showing that there is a ground to
disregard its separate juridical personality. If she were to operate a single proprietorship, her liability
for its debts and losses will be unlimited. The formation and the operation of a corporation require a
great deal of paper work and record-keeping. This is not the situation in the case of a single
proprietorship. If Dianne will form a separate corporation, it can raise more funds for the business
than if she were to set up a single proprietorship.
If she were to set up the restaurant as a branch office an existing corporation, the corporation will
have more funds as capital than if she were to form a separate corporation. However, all the assets
of the existing corporation will be liable for the debts and losses of the restaurant business.

(B) If you advise your client to use a corporation, what officer positions must the corporation at least
have?(2%)
ANSWER: The corporation must have at least five directors (Section 14 of the Corporation Code).
It Must also have a president, a treasure, and secretary (Section 25 of the Corporation Code).

(C) What particular qualifications, if any, are these officers legally required to possess under the
Corporation Code? (2%)
ANSWER: Every director must own at least one share of the capital stock of the corporation, which
must be recorded in his name on the books of the corporation, and a majority of the directors must
be residents of the Philippines (Section 25 of the Corporation Code). The president must also be a
director. The secretary must be a resident and citizen of the Philippines (Section 25 of the
Corporation Code).

2012 BAR

BOD; Qualifications (2012)

No.VI. X is a Filipino immigrant residing in Sacramento, California. Y is a Filipino residing in
Quezon City, Philippines. Z is a resident alien residing in Makati City. GGG Corporation is a
domestic corporation - 40% owned by foreigners and 60% owned by Filipinos, with T as authorized
representative. CCC Corporation is a foreign corporation registered with the Philippine Securities
and Exchange Commission. KKK Corporation is a domestic corporation (100%) Filipino owned. S
is a Filipino, 16 years of age, arid the daughter of Y. (A) Who can be incorporators? Who can be
subscribers? (2%)

Answer:
X,Y,Z and T could all be incorporators and subscribers. Note, however, that Sec.10 of the
Corporation Code requires that there must be at least five but not more than fifteen incorporators
(who must all be natural persons) and that a majority of the incorporators must be residents of the
Philippines. S, being a minor, could neither be an incorporator nor a subscriber. GGG Corporation,
CCC Corporation, and KKK Corporation, CCC Corporation, and KKK Corporation could not be
incorporators as they are not natural persons. However, they could be subscribers.

(B) What are the differences between an incorporator and a subscriber, if there are any? (2%)

ANSWER:
Some of the differences are as follows: first, all the incorporators are required to sign and
acknowledge the Articles of Incorporation while the subscribers, as such, are not subject to the
same requirement; second, the incorporators could be either natural or juridical persons; and third,
the number of incorporators cannot exceed fifteen while the number of subscribers could be more
than fifteen (subject to compliance, in the appropriate cases, with the requirements of the
Securities Regulation Code).

(C) Who are qualified to become members of the board of directors of the corporation? (2%)

ANSWER:
X,Y,Z and T could be directors (subject to the residency requirement mentioned in (a) above and
any nationality requirement under the law governing the business of the corporation) but not GGG
Corporation, CCC Corporation, and KKK Corporation as they are not natural persons. However, the
aforementioned corporations could have their respective representatives nominated and possibly
elected as directors by the stockholders. Each director must own at least one share of the capital
stock of the corporation (Sec.23, Corporation Code).

(D) Who are qualified to act as Treasurer of the company? (2%)

ANSWER:
The Corporation Code does not impose any nationality or residency requirement in respect of the
Treasurer. Any such requirement or any other reasonable requirement may be adopted by the
corporation and reflected in its by-laws, or required by the law(s) governing the business of the
corporation or a law of general application (e.g., the Anti-Dummy Law which applies to all
nationalized businesses). Accordingly, anybody with the qualifications required under the by-laws of
the corporation or under the law(s) governing the business of the corporation, could be elected
Treasurer by the Board of Directors. Note, however, that the Treasurer could not be the President
at the same time (Sec. 25, Corporation Code).

(E) Who can be appointed Corporate Secretary? (2%)

ANSWER:
The Secretary is required to be both a resident and a citizen of the Philippines (Sec. 10,
Corporation Code). [Note: The problem does not state what kind of business the corporation would
engaged in. Neither does it state whether X,Y,Z and T are all of legal age and otherwise have the
capacity to enter into contracts. Accordingly, the Answer set out below assume that the corporation
would not be engaging in a nationalized activity and that X,Y,Z and T are all of legal age and
otherwise have the capacity to enter into contracts.]

Corporation; Dissolution (2012)

No.X. AAA Corporation is a bank. The operations of AAA Corporation as a bank was not doing
well. So, to avert any bank run, AAA Corporation, with the approval of the Monetary Board, sold all
its assets and liabilities to BBB Banking Corporation which includes all deposit accounts. In effect
then, BBB Corporation will service all deposits of all depositors of AAA Corporation.

(A) Will the sale of all assets and liabilities of AAA Corporation to BBB Banking Corporation
automatically dissolve or terminate the corporate existence of AAA Corporation? Explain your
answer. (5%)
ANSWERS: No, the sale of all the assets and liabilities of AAA Corporation to BBB Banking
Corporation will not result in the automatic dissolution of termination of the existence of the former.
A decision to dissolve AAA Corporation or to terminate its corporate existence would require a
separate approval by a majority of the Board of Directors of AAA Corporation and its stockholders
holding at least two thirds of the total outstanding capital stock, as well as the separate approval by
the Monetary Board.

(B) What are the legal requirements in order that a corporation may be dissolved? (5%)
ANSWERS: A corporation may be dissolved voluntarily under Section 118 (where no creditors are
affected) or under Section 119 (where creditors are affected), or by shortening of the corporate
term under Section 120, or involuntarily by the SEC under Section 122, all of the Corporation Code.
Dissolution under Section 118,119 and 120 require the same corporate approvals stated in (a)
above.

Note that the SEC also has the authority under Section 6 of PD 902-A to revoke the certificate of
registration of a corporation upon any of the grounds provided by law, including the aforementioned
Section 6-A Corporation;

Liabilities; BOD; Corporate Acts (2012)

No.IX. A, B, C, D, E are all duly elected members of the Board of Directors of XYZ Corporation. F,
the general manager, entered into a supply contract with an American firm. The contract was duly
approved by the Board of Directors. However, with the knowledge and consent of F, no deliveries
were made to the American firm. As a result of the non- delivery of the promised supplies, the
American firm incurred damages. The American firm would like to file a suit for damages. Can the
American firm sue:

(A) The members of the Board of Directors individually, because they approved the transaction?
(2%) ANSWERS: No. In approving the transaction, the directors were not acting their personal
capacities but rather in behalf of XYZ Corporation exercising the powers of the corporation and
conduction its business (Sec. 23, Corporation Code). The problem contains no facts that would
indicate that the directors acted otherwise.

(B) The corporation? (2%)

ANSWERS: Yes. The Board approved the supply contract and the General Manager entered into
the contract, both of them acting on behalf of the XYZ Corporation.

(C) F, the general manager, personally, because the non-delivery was with his knowledge and
consent? (2%) ANSWERS:
Yes, F could be sued in his personal capacity because he knowinglyconsented to the non-delivery
of the promised supplies contrary to the contract that was duly approved by the Board of Directors.
The problem does indicate any circumstance that would excuse or favorably explain the action of F.

(D) Explain the rules on liabilities of a corporation for the act of its corporate officers and the
liabilities of the corporate officers and Board of Directors of a corporation acting in behalf of the
corporation. (4%)
ANSWERS: A corporation would be liable for the acts of its Board of Directors and officers if the
said acts were performed by them in accordance with powers granted to them under the
Corporation Code, the articles of incorporation and by-laws of the corporation, the laws and
regulations governing the business of, or otherwise applicable to, the corporation, and, in the case
of officers, the resolutions approved by the Board of Directors.

As the directors have a personality separate from that of the corporation, they would be personally
liable only if they acted wilfully and knowingly vote for or assent to a patently unlawful act of the
corporation, or when they are guilty of gross negligence or bad faith in directing the affairs of the
corporation, or when they acquire any personal or pecuniary interest in conflict with their duty as
directors, which acts result in damages to the corporation, its stockholders or other persons, when
they agree to hold themselves personally and solidarily liable with the corporation, or when they are
made, by a specific provision of law, to personally answer for the corporate action. (Sec. 31,
Corporation Code).

2013 BAR

Derivative Suit; Expiration of Term (2013)

No.VIII. In the November 2010 stockholders meeting of Greenville Corporation, eight (8) directors
were elected to the board. The directors assumed their posts in January 2011. Since no
stockholders meeting was held in November 2011, the eight directors served in a holdover capacity
and thus continued discharging their powers. In June 2012, two (2) of Greenville Corporation’s
directors - Director A and Director B – resigned from the board. Relying on Section 29 of the
Corporation Code, the remaining six (6) directors elected two (2) new directors to fill in the vacancy
caused by the resignation of Directors A and B. Stockholder X questioned the election of the new
directors, initially, through a letter-complaint addressed to the board, and later (when his letter-
complaint went unheeded), through a derivative suit filed with the court. He claimed that he
vacancy in the board should be filled up by the vote of the stockholders of Greenville Corporation.
Greenville Corporation’s directors defended the legality of their action, claiming as well that
Stockholder X’s derivative suit was improper. Rule on the issues raised. (8%)

ANSWER:
The remaining directors cannot elect new directors to fill in the two vacancies. The board of
directors may fill up vacancy only if the ground is not due to expiration of term, removal or increase
in the number of board seats. In this case, the term of the two directors expired after one year.
They hold-over period is not part of their term. The vacancies should be filled up by election by the
stockholders (Valle Verde Country Club, Inc. v. Africa, 598 SCRA 202, 2009). The derivative suit
was improper. In a derivative suit, the corporation, not the individual stockholder, must be the
aggrieved party and that the stockholder is suing on behalf of the corporation. What stockholder X
is asserting is his individual right as a stockholder to elect the two directors. The case partakes
more of an election contest under the rules on intra-corporate controversy (Legaspi Towers 300,
Inc. v. Muer, 673 SCRA 453, 2012).

Stockholders; Preferred Shares (2013)

No.X. Bell Philippines, Inc. (BelPhil) is a public utility company, duly incorporated and registered
with the Securities and Exchange Commission. Its authorized capital stock consists of voting
common shares and non-voting preferred shares, with equal par values of P100.00/share.
Currently, the issued and outstanding capital stock of BelPhil consists only of common shares
shared between Bayani Cruz, a Filipino with 60% of the issued common shares, and Bernard Fleet,
a Canadian, with 40%. To secure additional working fund, BelPhil issued preferred shares to
Bernard Fleet equivalent to the currently outstanding common shares. A suit was filed questioning
the corporate action on the ground that the foreign equity holdings in the company would now
exceed the 40% foreign equity limit allowed under the Constitution the for public utilities. Rule on
the legality of Bernard Fleet’s current holdings. (8%)

ANSWER:
The holding of Bernard Fleet equivalent to the outstanding common shares is illegal. His holdings
of preferred shares should not exceed 40%. Since the constitutional requirement of 60% Filipino
ownership of the capital of public utilities applies not only to voting control but also to beneficial
ownership of the corporation, it should also apply to the preferred shares. Preferred shares are also
entitled to vote in certain corporated matters. (Gamboa v. Teves, 682 SCRA 397, 2012) The state
shall develop a self-reliant and independent national economy effectively controlled by Filipinos.
(Articles II, Sec. 19, 1987 Constitution) The effective control here should be mirrored across the
board on all kinds of shares.

Labels: bar questions, commercial law, corpo, corpo code, corporation law

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