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.
