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

and Election of Officers

XYZ, INC.

Petitioner .         

X- - - - - - - - - - - - - - - - - - - - - - -X

PETITION

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. 018-28, 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.

Contractual Employees/Job Order vs Casual Employees in Civil Service

Contractual/Job Orders and Casual employees are two distinct employment status of workers in the government based on Civil Service Commission Memorandum Circular No. 40 (s. 1998). 

Distinctions of the two terms based on CSC Memorandum Circular Nos. 40 (s. 1998) and 17-02 (s. 2002) are as follows:

Nature of Appointment	Contractual/Job Order Employees	Casual Employees
Definition	An appointment issued to a person who shall undertake a specific job for a limited period not to exceed six (6) months.	An appointment issued to a person to undertake essential and necessary services where there are not enough regular staff to meet the demands of the service.
Applicable Laws	Not covered by Civil Service law, rules and regulations, but covered by Commission on Audit (COA) rules.	Governed by the Civil Service Rules and Regulations.
Nature of Functions/Works	The contract covers particular services such as janitorial, security, or consultancy .	Performed functions that are essential and necessary to the services of the government agency where there are not enough regular staff to meet the demands of the service.
Specific Limitations/Prohibitions	1. The Contract of Service/Job Order  covers piece of work or intermittent job for a period not exceeding six months; 2. Services rendered under this appointment are not considered government service; 3. No employer-employee relationship with the government; 4. Those who are being hired to perform functions pertaining to vacant regular plantilla positions are prohibited from being hired under a contract of services and job order;	1. Casual employees perform functions of the regular employees; 2. Services rendered under this employment are considered government service; 3. There is an employer-employee relationship;
Benefits	1.  Contractual employees are not entitled to benefits entitled by the government employees, such as PERA, ACA and RATA.	1.  Casual employees are entitled to receive benefits enjoyed by regular employees such as PERA, ACA, RATA, mid/year-end bonuses, cash gift, clothing allowance, productivity incentive bonus, loyalty, award/pay, performance-based bonus, etc, and subject to guidelines thereof.
Leave Privileges		1. Entitled to all kinds of leave per CSC rules and  Memorandum Circulars.

Notarial Cancellation of the Contract to Sell

January 18, 2015

MAGANDA B AKOH

No. 123 May Bukas Pa Road,

Barangay Bagong Buhay,

City of Mandaluyong

NOTARIAL CANCELLATION OF CONTRACT TO SELL

Dear Ms. Akoh:

This refers to the house and lot that you purchased from Carmela Homes, Inc per Contract to Sell dated 21 June 2012 located No. 123 May Bukas Pa Road, Barangay Bagong Buhay, City of Mandaluyong, and covered by Transfer Certificate of Title No. 05-1234567 of the Registry of Deeds of Mandaluyong City.

As of December 31, 2014, your outstanding obligation amounted to ONE MILLION FIVE HUNDRED FIVE  THOUSAND PESOS (₱1,505,000.00).  Despite written demands and the lapsed of the grace period provided by law, your past due obligation with Carmela Homes, Inc. remains unpaid.

In view thereof, please be informed that your rights under the aforesaid Contract To Sell is hereby cancelled effective Thirty (30) days from receipt of this notice.

Very truly yours,

ATTY. DIWATA NG BAHAGHARI

Head, Legal Department

JURAT

SUBSCRIBED AND SWORN to, before me, in City of Mandaluyong, this 20^th day of January 2005, after the affiant exhibited to me her TIN No. 118-618-1228 issued on 25 January 1992, at Mandaluyong  City.

                                                                             NOTARY PUBLIC

Doc. No.  _____;

Page No. _____;

Book No.  _____;

Series of 2015.

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ACKNOWLEDGMENT

Received by:    _______________________________________

Date          :         _______________________________________

Notice to Vacate After Redemption Period

This is a sample Notice to Vacate sent after the foreclosure proceeding has been held and redemption period is lapsed.  This is one of the jurisdictional requirements in filing Writ of Possession should the occupant refused to vacate the property subject of foreclosure after notice.

(Date)                                      

_______________________________

_______________________________

_______________________________

RE:    NOTICE TO VACATE THE LAND AND ITS IMPROVEMENTS COVERED BY TCT NO. __________

Dear Mr./ Ms/Mrs. ______________:

We would like to reiterate our previous advisory to you that the redemption period for your mortgaged property identified as _______________________, with an area of ____________________________ (_____ sq.m.), located at _______________________________ and covered by Transfer Certificate of Title No. __________________ has already expired and the ownership and title to the same have already been transferred in favor of _________________________________________.

In this regard, may we request you and all persons residing therein to vacate said property and transfer the possession thereof to _________________ within fifteen (15) days from receipt of this letter.

For any inquiries, you may call ___________________.

Very Truly Yours,

________________________

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ACKNOWLEDGMENT

Received by:    _______________________________________

Date          :         _______________________________________

Deed of Sale of Motor Vehicle

This is only a sample Deed of Absolute Sale format involving sale of personal property.  It could be subject to modifications to suit the purpose/s of its execution and requirements of the parties.  It is advisable that before an execution of any legal document, one must seek legal advice or assistance from a Lawyer.

Legal Notes:

Sale - By the contract of sale one of the contracting parties obligates himself to transfer the ownership and to deliver a determinate thing, and the other to pay therefor a price certain in money or its equivalent.

A contract of sale may be absolute or conditional. (Article 1458, Civil Code of the Philippines)

DEED OF ABSOLUTE SALE OF MOTOR VEHICLE

KNOW ALL MEN BY THESE PRESENTS:

       This Deed of Absolute Sale, made and entered this ____ day of ________, 2015, in Makati City, Metro Manila, by and between:

__________________________________________________, of legal age, Filipino, single/married/widow/widower to ________________, and with residence and postal address at _____________________________, hereinafter referred to as the “SELLER”;

and

___________________________________________________, of legal age, Filipino, married, with residence and postal address at __________________________________, hereinafter referred to as the “BUYER”.

WITNESSETH: THAT

WHEREAS, the SELLER is the lawful and registered owner of a motor vehicle particularly described as follows:

MAKE
MOTOR NO.
SERIAL/CHASSIS NO.
TYPE OF BODY
YEAR MODEL
PLATE NO.
ORCR No.

WHEREAS, the BUYER is willing to buy the said motor vehicle on “AS-IS-WHERE-IS” condition.

NOW THEREFORE, For and in consideration  of the sum of  ______________________________only (Php____________________),  the receipt whereof is hereby acknowledged , do hereby  SELL, TRANSFER, CONVEY and DELIVER,  by way of  ABSOLUTE SALE,  unto  said ______________, their heirs, assigns and successors- in-interest the above described motor vehicle;

FURTHER, the SELLER hereby warrants his/her valid title to and peaceful possession of the property herein sold and conveyed and further declares that the same is free and clear of all liens and encumbrances of any kind whatsoever.

IN WITNESS WHEREOF, the parties have hereunto signed this DEED OF ABSOLUTE SALE on the date and place first above mentioned.

_____________________________

Seller

TIN No:______________________

______________________________

Buyer

TIN No:____________________

Signed in the presence of:

________________________            __________________________

ACKNOWLEDGEMENT

Republic of the Philippines)
___________, Metro Manila ) S.S.

BEFORE ME, a Notary Public for and in ____________________, Metro Manila, personally appeared the following and presented their respective Government Identification Cards:

Name	Government Issued ID	Date and Place of Issue

known to me to be the same persons who executed the foregoing document of DEED OF ABSOLUTE SALE  of MOTOR VEHICLE  and they acknowledged to me that they executed the same as their free and voluntary act and deed.

I HEREBY CERTIFY that the foregoing document consists of ____________ pages including this page, and that the parties and their witnesses signed their names on each page of this instrument.

 IN WITNESS WHEREOF, I have hereunto set may hand and affixed my notarial seal this ____ day of ____________ 20___.

                                                                        NOTARY PUBLIC

Doc. No. ____;
Page No. ____;
Book No. ____;
Series of 20___.

Compromise Agreement

This is only a sample of COMPROMISE AGREEMENT format.  It could be subject to modifications to suit the purpose/s of its execution and requirements of the parties.  It is advisable that before an execution of any legal document, one must seek legal advice or assistance from a Lawyer.

Legal Notes:

A compromise is a contract whereby the parties, by making reciprocal concessions, avoid a litigation or put an end to one already commenced. (Article 2028, Civil Code of the Philippines)

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION

REGIONAL TRIAL COURT

Branch 143, City of Manila

ILOVEFIL INC.

                                      Plaintiff;

-versus-                                                     CIVIL CASE NO. 13-122870

                                                                    For Sum of Money

DIWATA ACOH

                                      Defendant.

x-------------------------------------x

COMPROMISE AGREEMENT

 

KNOW ALL MEN BY THESE PRESENTS:

This Compromise of Agreement is executed this 14^th day of February 2015   in City of Manila, by and between:

ILOVEFIL INC. (ILOVEFIL), is a domestic corporation registered with Securities and Exchange Commission, and with principal office address at 111 Mabuhay Avenue, Barangay 123, City of Manila, represented by ATTY. BINIBINI C. MAGANDA Head, Legal Department pursuant to the resolution issued by its Board of Directors dated 24 October 2014, (copy of which is hereto attached as Annex “A” and made an integral part of this Compromise Agreement), and hereinafter referred to as the “FIRST PARTY”;

and

DIWATA B. ACOH, of legal age, married, with residence and postal address at No. 118 Diamond Road, Global City hereinafter referred to as the “SECOND PARTY”;

 WITNESSETH: THAT

WHEREAS, the FIRST PARTY is the Plaintiff in Civil Case No. 13-122870, entitled "ILOVEFIL, INC. versus DIWATA B. ACOH”, pending in the Regional Trial Court of City of Manila, Branch 143,  hereinafter referred to as the "Pending Case";

WHEREAS, all the parties are desirous of settling amicably the Pending Case in order to avoid inconvenience and costly litigation;

NOW, THEREFORE, in consideration of the foregoing premises, the parties hereby undertake as follows:

1.      The SECOND PARTY shall pay the FIRST PARTY the unpaid balance of the Loan amounting to Eight Hundred Eight  Thousand Pesos (Php808,000.00) and the interest amounting to Two Hundred Two Thousand Pesos (P202,000.00), or the aggregate amount of One Million Ten Thousand Pesos (P1,010,000.00);

2.      The SECOND PARTY shall deliver on or before 30 March 2015 to the FIRST PARTY the Ten (10) post dated checks (PDCs) in the amount of ₱101,000.00 each, payable to the FIRST PARTY (ILOVEFIL, INC).  Each check must be dated every 30^th day of the month beginning 30 March 2015 and the succeeding 9 months thereafter;

3.      In case of delay and/or default in funding the check on said dates, the whole obligation becomes due and demandable without further notice from the FIRST PARTY; 

4.      All other claims and counterclaims not included in this Agreement shall be deemed waived;

5.      This agreement shall not in any way be construed as an admission on the part of any party of any fault, negligence or liability, of whatever kind and nature, in connection with the Pending Case; and

6.      In case of material breach of the terms and conditions of this agreement, the innocent party is hereby authorized to apply for a Writ of Execution in the Pending Case for the purpose of compelling compliance with the terms and conditions of this agreement.

IN WITNESS WHEREOF, the parties have hereunto set their hand at the place and on the date written above.

First Party

ILOVEFIL, INC

by:

____________________________

ATTY. BINIBINI C. MAGANDA

Second Party

______________________

DIWATA B. ACOH

Witnessed By:

__________________________   __________________________

ACKNOWLEDGEMENT

BEFORE ME, a Notary Public for and in City of Manila, personally appeared the following and presented their Government Identification Cards:

1.           ATTY. BINIBINI C. MAGANDA

LTO Driver’s License ID No. N02-18-073109

Quezon City

Valid until 12/28/2016

2.           DIWATA B. ACOH

Driver’s License ID No. N02-09-123456

Quezon City

Valid until 11/13/2015

and they acknowledged to me that they are the same persons who executed the foregoing instrument, consisting of 4 pages, including this page; that ATTY. BINIBINI C MAGANDA is duly authorized to appear in behalf of ILOVEFIL, INC and DIWATA B ACOH, in his personal capacity as Defendant in the aforecited case; and that they executed the foregoing instrument as their own free and voluntary act and deed, in behalf of the said Principal and for herself, respectively.

                                                                   NOTARY PUBLIC

         

Doc. No. ____;
Page No. ____;
Book No. ____;
Series of 2015.