Opinions and Legal Insights

Petition Calling for Stockholder’s Meeting



Note:

This is only a sample Petition Calling for Stockholder’s Meeting.  It could be subject to modifications depending to the circumstances/basis of the petition.

REPUBLIC OF THE PHILIPPINES

Department of Finance

SECURITIES AND EXCHANGE COMMISSION (SEC)

SEC Building, EDSA Greenhills

Mandaluyong, Metro Manila

Philippines

IN THE MATTER OF

ABC, INC.

SEC Reg. No. PHL09-00143

                                                          SEC CASE NO._________   

                                                          For:   Calling a Special Meeting

XYZ, INC.

Petitioner .         

X- – – – – – – – – – – – – – – – – – – – – – -X

For Calling A Special Stockholder’s Meeting and Election of Officers

PETITIONER, YXZ INC., through counsel and unto this Honorable Commission, most respectfully states, that:

1.                Petitioner is a domestic corporation duly organized and existing under the Corporation Code and registered with Securities and Exchange Commission (SEC), with office address at 1000 Tower, Unit 456, Garnet Road, Pasig City,where it maybe served with Commission’s notices and other processes;

2.                ABC, Inc. (“ABC” for brevity ) is a duly registered stock corporation, with SEC Registration No. PHL09-00143  and has its principal office  at Unit 143, 2000 Building, Garnet Road, Pasig City;

3.                Petitioner is the developer–owner of the ABC and owns 59% of the total shares of stock of ABC.  Copy of the list of Certificate of Stock is hereto attached as Annex “A” and made an integral part of this Petition;

4.                Under the new By-Laws of ABC, the annual stockholders meeting shall be held on the last working day of April of every year.  However, the last stockholder’s meeting was held on 29 April 2008 where five directors were elected, namely: Cinderella One, Snow White Two, Fiona Three, Barbie Four and Ken Fifth.  Copy of the new By-Laws is attached as Annex “B” hereof;

5.                In 2009, ABC failed to conduct its annual stockholder’s meeting in view of the Temporary Restraining Order (TRO) issued by Branch 20 of the Regional Trial Court (RTC) of Pasig, enjoining ABC from holding its Annual Stockholders Meeting scheduled on April 30, 2009;

6.                With said TRO issued in 2009 up to this date, no stockholder’s meeting was conducted.  Thus, all its current directors are in hold-over capacities;

7.                Since  the last election of the Board of Directors was in 2008, the number of directors  standing  in the Board as of date is reduced to three (3) and two of them are facing disqualification petition before the special commercial court of Regional Trial Court of Pasig;

8.                On 12 February 2011, XYZ filed a Petition calling for a Special Stockholder’s Meeting before this Honorable Commission and which thereafter issued an Order dated 29 March 2012 directing the Corporate Secretary to send notices of the Stockholders Meeting and election of directors to all stockholders of the corporation.  Copy of said Order is hereto attached as Annex “C”;

9.                Despite the said Order of the Honorable Commission,  ABC’s Board of Directors failed to convene after notices had been duly given to all members of the Board, insisting the TRO issued by the Regional Trial Court of Pasig City ;

10.            On 28 August 2014, the Regional Trial Court of Pasig City, Branch 20 rendered a Decision in SEC Case No. 01828, entitled, “Prince Charming and Queen Amidala vs. ABC, Inc.; XYZ Inc.(Defendant-in-Intervention), denying and dismissing the Complaint for Annulment of certain provisions of Section 2, Article XVI of the new By-Laws of ABC.  Copy of said decision is hereto attached as Annex “D”;

11.           In view of the dismissal of the Complaint filed by shareholders of ABC, herein Petitioner requested ABC (for the nth time) to call for a special stockholders meeting for the purpose of electing new set of Directors.  On its letter dated 9 November 2014, Petitioner contends that with the dismissal of the Complaint filed by Prince Charming and Queen Amidala, there will be no more legal impediment for ABC to call the said meeting.   Copy of said letter is hereto attached as Annex “E”;

12.           In their reply dated 19 December  2014, ABC denied the request of the herein  Petitioner  to call for a special stockholder’s meeting in view of the  Petition for Review filed by Prince Charming.  Copy of said letter is hereto attached as Annex “F”;

13.           On 29 January 2015, XYZ, Inc.  sent another letter to ABC, reiterating its previous request to call for a special stockholder’s meeting for the purpose of electing new set of Directors.  Copy of said letter is hereto attached as Annex “G”;

14.           In view of the dismissal of the Complaint filed by Prince Charming and Queen Amidala, the calling of a Special Meeting for the purpose of electing new set of Directors notwithstanding of any appeal or petition filed Prince Charming, is proper unless restrained by the appellate court.  In the case of Spouses Daisy and Socrates Arevalo (18 April 2012) citing  Unionbank v. Court of Appeals (G.R. No. 177486, 21 December 2009), the court said:

“The present case having been heard and found dismissible as it was in fact dismissed, the writ of preliminary injunction is deemed lifted, its purpose as a provisional remedy having been served, the appeal therefrom notwithstanding.

Unionbank v. Court of Appeals enlightens:

xxx a dismissal, discontinuance or non-suit of an action in which a restraining order or temporary injunction has been granted operates as a dissolution of the restraining order or temporary injunction,” regardless of whether the period for filing a motion for reconsideration of the order dismissing the case or appeal therefrom has expired. The rationale therefor is that even in cases where an appeal is taken from a judgment dismissing an action on the merits, the appeal does not suspend the judgment, hence the general rule applies that a temporary injunction terminates automatically on the dismissal of the action. (Emphasis supplied.)

15.           Petitioner respectfully submits to the Honorable Commission that there is an urgent need for ABC to call for a special stockholder’s meeting in order to elect new set of Board of Directors considering that the present number of director is not legally sufficient to transact business requiring majority vote of the total membership of the board, not only for lack of quorum but also for want of unanimity in decision on important business matters, and thus, operations of ABC are severely hampered; and to comply with reportorial requirements of this Commission as the present officers failed to comply.

P R A Y E R         


WHEREFORE, Petitioner respectfully prays that it be authorize by this Honorable Commission, under its supervision, to immediately call a Special Stockholders Meeting of ABC for the purpose of electing its new set Board of Directors in accordance with the new By-Laws s. 2005 of ABC.

Other relief just and equitable are likewise prayed for.


Quezon City for Mandaluyong City, Philippines.

20 March 2015.

Respectfully Submitted.

ATTY. SUNSHINE BAHAGHARI

Unit 143 Love Well Building, Who Goat Road, Quezon City

Contact No. 0914-812-28-70

 IBP No. 123456/1-18-2015/Q.C.

PTR No. 2468000/1-18-2015

Roll No. 10000

MCLE  Certificate No. VII-00XXXX

VERIFICATION

I, BARBIE SHAW BLOULEVARD, under oath, do hereby state that:

1.     I am the President of XYZ INC., duly authorized to execute this Verification pursuant to my authority as evidenced by the attached Secretary’s Certificate dated __________;

2.     I have caused the preparation of the foregoing Petition and read all the allegations in the Petition.  I attest that the factual allegations therein are true and correct to the best of my own personal knowledge and based on authentic records.

3.     That I have not heretofore commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals, or any other tribunal or agency as raised in this case;

4.     That to the best of my knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals or any tribunal or agency;

5.     That if I should thereafter be aware or learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency, I will undertake to report this fact within five (5) days therefrom to this Commission.

IN WITNESS WHEREOF, I have signed this instrument on ___________, Quezon City.

                                                          BARBIE SHAW BLOULEVARD

                                                                             Affiant

JURAT

SUBSCRIBED AND SWORN to before me in the City of ___________ on this day of _____________, affiant exhibiting before me her Driving License No. __________ with an expiry date of December 18, 2015, issued by the Land Transportation Office in Quezon City, Philippines.

                                                                                      NOTARY PUBLIC

Doc. No.   ______;

Page No.  ______;

Book No.   ______;

Series of 2015.