Under Sec. 10 of the present RCC, the natural person and residence requirements of an incorporator had already been removed.
a. X, Y, Z, T, GGG Corporation, CCC Corporation, and KKK Corporation could be incorporators and subscribers.
S, being a minor, could neither be an incorporator nor a subscriber. Under Section 10 of the Revised Corporation Code, both natural and juridical persons may be incorporators. It likewise eliminated the residency requirement for incorporators but retained the legal age requirement for natural-persons-incorporators.
b. The difference between the two are as follows:
First is as to being a signatory in the AOI. An incorporator is a signatory while a subscriber is not.
Second is with regard to their number. The RCC limits the number of incorporators while there is none for subscribers.
Third is that all the incorporators are required to sign and acknowledge the AOI while the subscribers are not.
Fourth is that the number of incorporators for stock corporation cannot exceed 15 while the number of subscribers could be more than 15.
c. A natural person, of legal age, and who owns at least one share of stock registered in his name in the books of the corporation and must have all the qualifications and none of the disqualifications provided for by the law and AOI or the by-laws of the corporation. (Sec. 23, Corporation Code)
d. A natural person, of legal age, whether or not a Filipino citizen but under the SEC rules he must be a resident of the Philippines and provided that he is not the president of the same corporation at the same time. (SEC Opinion No. 10-24)
e. A natural person, of legal age, and a Filipino resident citizen may become a secretary of the corporation provided that he is not the president of the same corporation at the same time.
YES. The articles of incorporation defines 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.
a. On the First Article, I would suggest that the corporate name indicate the fact of incorporation by using either “Toho Marketing Corporation” or “Toho Marketing Company, Incorporated”.
b. The Third Article should indicate the City or the Municipality and the Province in the Philippines, and not merely the region or as its Board of Directors may later designate, to be its place of principal office.
c. The Seventh Article must additionally point out the number of shares into which the capital stock is divided, as well as the par value thereof or a statement that said stock or a portion thereof are without par value.
Alphabet not having been issued as yet a certificate of registration of its articles of incorporation (for its failure to meet the minimum paid-up requirement) is without any legal personality, and it cannot thus itself be made liable for the breach of contract. The rule, furthermore, is that contracts for and in behalf of a corporation prior to its incorporation are not binding on it unless and until they are approved, expressly or impliedly, by its board of directors after due incorporation.
A, B, C, D and E themselves, as a rule, would not themselves be liable for the breach of contract subject however, to their respective representations and extent thereof. Pre- incorporation expenses, in general, are for the account of the corporation and unless, in general, are for the account of the corporation and unless the corporation is fictitious, the incorporators or stockholders are not personally liable therefore.
The documents to be submitted for the issuance of a certificate of incorporation in favor of FSB Savings & Mortgage Bank, Inc. are the following:
1. Articles of incorporation
2. Treasurer's affidavit
3. Certificate of authority by the Monetary Board of BSP
4. Verification slip from the records of the SEC whether or not the proposed name has already been registered under a different entity
5. An undertaking stating that the proposed name shall be changed in case another entity has been registered under the proposed name
6. Registration sheet
7. Bank certificate of deposit covering the paid-up capital
8. Letter containing authorization to the SEC or Monetary Board or any of its duly authorized representative to inspect bank records concerning the paid-up capital
YES, the SEC should accept the Articles of Incorporation. If the Articles of Incorporation substantially comply with the statute and all other requirements are met, the SEC has no discretion, but may be compelled by mandamus to file them. The discretion exercised by SEC does not extend to the merits of an application for incorporation, although it may be exercised as to matters of form.
NO, the Articles of Incorporation may not be amended to reduce the number of directors to two. Sec. 14 of the Corporation Code requires that the Articles of Incorporation shall contain the number of directors, which shall not be less than 5 nor more than 15. Hence, the reduction of the number of directors to two, to reflect the real owners of the shares of stock, is not valid.
As Corporate Secretary of CXT, I would give the following comments on the question of validity of the various proposed amendments to the By-laws, as follows:
1. The minority stockholders may not be deprived of their right to vote in electing the members of the board of directors; hence, the proposed amendment would be invalid.
2. The President should be a director who should thus own at least one share of stock. Therefore, the suggested amendment would be invalid unless the President is excluded from the proposed amendment.
3. The director’s bonuses (total compensation) cannot exceed 10% of net income; accordingly, the proposed amendment fixing the directors’ bonuses to 10% of gross venues in any given year would be invalid.
4. While the By-laws may provide additional qualifications for directors such qualifications must not be unreasonable. A qualification requiring a director to own at least 1,000 shares, in my view, would be unreasonable and a denial of the right of representation by the minority shareholders in the Board of Directors.
5. The meetings of the Board of Directors, unlike those of the stockholders, may be held outside the Philippines; accordingly, the proposed amendment to the by-laws on the matter can be valid.
