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NOTES
BY
RACHELLE
ANNE
GUTIERREZ
(UPDATED
APRIL
3,
2014)
CORPORATION
LAW
REVIEWER
(2013-‐2014)
ATTY.
JOSE
MARIA
G.
HOFILEÑA
purpose
for
which
it
was
incorporated.
Consequently,
nowhere
is
the
consent
of
the
State
required
or
referred
to
under
Section
40
when
the
corporation
sells
or
After
such
authorization
or
approval
by
the
stockholders
or
members,
disposes
of
all
or
substantially
all
of
its
assets.
the
board
of
directors
or
trustees
may,
nevertheless,
in
its
discretion,
2. Nature
of
Transactions
Covered
2
abandon
such
sale,
lease,
exchange,
mortgage,
pledge
or
other
• Theoretically,
there
is
no
change
in
the
basic
relationship
disposition
of
property
and
assets,
subject
to
the
rights
of
third
parties
between
the
corporation
and
the
stockholders,
other
than
as
if
under
any
contract
relating
thereto,
without
further
action
or
approval
the
corporation
were
again
at
the
starting
point
of
it
business
by
the
stockholders
or
members.
life.
The
reason
why
a
stockholders'
ratification
is
required
when
the
board
sells,
disposes
or
encumbers
all
or
substantially
Nothing
in
this
section
is
intended
to
restrict
the
power
of
any
all
of
the
corporate
assets
is
that
it
recognizes
the
stockholders
corporation,
without
the
authorization
by
the
stockholders
or
right
to
the
nature
and
status
of
the
corporate
business,
as
well
members,
to
sell,
lease,
exchange,
mortgage,
pledge
or
otherwise
as
future
developments
proceeding
therefrom,
when
they
put
dispose
of
any
of
its
property
and
assets
if
the
same
is
necessary
in
the
their
investments
into
the
corporation.
When
the
corporation,
usual
and
regular
course
of
business
of
said
corporation
or
if
the
through
its
board,
attempts
to
alter
or
dispose
of
such
level,
proceeds
of
the
sale
or
other
disposition
of
such
property
and
assets
even
when
the
corporation
ends
up
with
the
same
value
be
appropriated
for
the
conduct
of
its
remaining
business.
covering
the
cash
or
other
form
of
consideration
received
for
the
sale
or
disposition,
it
must
get
the
confirmation
of
the
In
non-‐stock
corporations
where
there
are
no
members
with
voting
stockholders.
rights,
the
vote
of
at
least
a
majority
of
the
trustees
in
office
will
be
o Stockholders
have
a
common
law
proprietary
or
sufficient
authorization
for
the
corporation
to
enter
into
any
beneficial
interests
on
the
corporate
business
transaction
authorized
by
this
section.
(28
1/2a)
enterprise,
and
any
sale,
transfer,
disposition,
or
encumbrance
thereof
would
be
void
if
effected
by
the
1. Nature
of
Power
1
Board
of
Directors
without
the
appropriate
• In
other
words,
the
exercise
of
such
a
power
really
affects
the
stockholders’
approval.
business
enterprise
level
of
corporate
set-‐up,
an
area
much
left
• The
property
of
the
corporation
is
not
the
property
of
the
by
the
State
to
the
judgment
of
the
managers,
and
does
not
in
stockholders
or
members,
and
as
such,
may
not
be
sold
without
any
way
affect
or
alter
the
juridical
entity
granted
by
the
State.
1 2
Villanueva,
C.
L.,
&
Villanueva-‐Tiansay,
T.
S.
(2013).
Philippine
Corporate
Law.
Villanueva,
C.
L.,
&
Villanueva-‐Tiansay,
T.
S.
(2013).
Philippine
Corporate
Law.
(2013
ed.).
Manila,
Philippines:
Rex
Book
Store.
(2013
ed.).
Manila,
Philippines:
Rex
Book
Store.
NOTES
BY
RACHELLE
ANNE
GUTIERREZ
(UPDATED
APRIL
3,
2014)
CORPORATION
LAW
REVIEWER
(2013-‐2014)
ATTY.
JOSE
MARIA
G.
HOFILEÑA
express
authority
from
the
Board
of
Directors.
Litonjua
v.
remaining
business,
since
the
sale
or
disposition
of
"all"
assets
Eternit
Corp.,
490
SCRA
204
(2006).
or
property
means
there
is
no
remaining
business
to
conduct.2
3. Transactions
NOT
Covered
by
Ratificatory
Vote
Requirements
1
• The
Corporation
Code
defines
a
sale
or
disposition
of
• Section
40(4):
substantially
all
assets
and
property
of
a
corporation
as
one
by
a. If
it
is
necessary
in
the
usual
and
regular
course
of
which
the
corporation
“would
be
rendered
incapable
of
business
of
such
corporation;
or
continuing
the
business
or
accomplishing
the
purpose
for
which
b. If
the
proceeds
of
the
sale
or
other
disposition
of
such
it
was
incorporated”
–
any
sale
or
disposition
short
of
this
will
property
and
assets
be
appropriated
for
the
conduct
of
not
need
stockholder
ratification,
and
may
be
pursued
by
the
its
remaining
business.
majority
vote
of
the
Board
of
Directors.
Strategic
Alliance
Dev.
• There
is
a
clear
distinction
between
the
assets
of
a
corporation
Corp.
v.
Radstock
Securities
Ltd.,
607
SCRA
413
(2009).
and
its
business
enterprise
(which
is
also
termed
as
“the
going
concern”
in
other
disciplines),
which
the
author
would
equate
Strategic
Alliance
Dev.
Corp.
v.
Radstock
Securities
Ltd.,
as
the
“capability
to
earn
profit
from
the
business
activity.”
When
the
law
therefore
says
“all
or
substantially
all
of
the
Facts:
The
Construction
Development
Corporation
of
the
Philippines
assets,”
it
means
that
what
is
being
sold
or
encumbered
is
the
(CDCP)
had
a
30-‐year
franchise
to
construct,
operate
and
maintain
toll
“business
enterprise,”
because
even
if
most
assets
remain
after
facilities
in
the
North
and
South
Luzon
Tollways.
Basay
Mining
the
transaction,
the
ability
to
earn
profit
may
no
longer
be
Corporation
(an
affiliate
of
CDCP)
obtained
loans
from
Marubeni
present.
Corporation
of
Japan
amounting
to
P10
billion,
which
CDCP
guaranteed
4. Sale
or
Disposition
of
All
Corporate
Assets
or
Property
solidarily.
Thereafter,
CDCP
changed
its
corporate
name
to
PNCC
to
• Such
a
sale,
disposition
or
encumbrance
cannot
be
covered
by
reflect
the
government’s
(90.3%)
shareholding
in
the
corporation.
the
exemption
provided
in
Section
40
where
no
stockholders'
or
members'
approval
is
necessary
because
the
sale
of
all
of
the
The
money
owed
Marubeni
remained
unpaid
and
unacknowledged
for
assets
or
property
of
a
business
can
never
be
"in
the
usual
and
20
years.
But
in
October
2000,
PNCC
recognized
this
financial
obligation
regular
course
of
business
of
such
corporation,"
nor
can
it
be
to
Marubeni.
Barely
3
months
after,
Marubeni
assigned
its
entire
credit
argued
that
the
proceeds
of
the
sale
or
other
disposition
of
such
to
Radstock
Corporation
for
less
than
P100
million,
who
in
turn
sought
property
and
assets
be
appropriated
for
the
conduct
of
its
to
collect
from
PNCC.
Eventually,
Radstock
and
PNCC
entered
into
the
1 2
Villanueva,
C.
L.,
&
Villanueva-‐Tiansay,
T.
S.
(2013).
Philippine
Corporate
Law.
Villanueva,
C.
L.,
&
Villanueva-‐Tiansay,
T.
S.
(2013).
Philippine
Corporate
Law.
(2013
ed.).
Manila,
Philippines:
Rex
Book
Store.
(2013
ed.).
Manila,
Philippines:
Rex
Book
Store.
NOTES
BY
RACHELLE
ANNE
GUTIERREZ
(UPDATED
APRIL
3,
2014)