SEC En Banc Case No. 05-14-330 Ma. Daphne B. Bigcas, Rebecca B. Bernales, Christine Anne B. Tiu Respondent-Appellants, versus Teresita B. Dipon, Complainant-Appellee.

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Securities and Exchange Commission Republic of the Philippines Department of Finance Pasay City, Philippines

Ma. Daphne B. Bigcas, Rebecca B. Ber-

Anne B Tiu, nales, Roberto B. Bernales, Christine Respondent-Appellants, SEC En Banc Case No. 05-14-330 For: Appeal of CRMD's Order Cancel- ling the Certificate of Approval of

Teresita B. Dipon, versus Complainant-Appellee. Inc. Dame Oilfields Maritime Services, Increase of Capital Stock of Notre

DECISION

This resolves the Notice and Memorandum of Appeali filed on 7 May 2014 by Ma. Daphne B. Bigcas, Rebecca B. Bernales, Roberto B. Bernales, and Christine Anne B Tiu, (Appellants) against the Order dated 6 March 2014 of the Company Registration and Monitoring Decision (CRMD) for grave abuse of discretion and for serious errors.2

Notre Dame Oilfields Maritime Services, Inc. (Notre Dame) was registered

tor, stockholder and vice-president of Notre Dame holding 41.25% of its outstand with the Commission on 14 January 1992.3 Teresita B. Dipon (Appellee) is a direc-

ing capital stock.4 Appellants are also directors and officers of Notre Dame collec- tively owning 58.75% of the outstanding capital stock.5

holders of Notre Dame due to its tight financial position. Appellants allegedly pledged to infuse additional capitalization of P3,500,000.00 as present bank bal- On 27 August 2013, an emergency meeting was allegedly called by the stock-

ance was insufficient to cover the operation of the company for the next two months.7

On 5 September 2013, the infusion of additional capital that was allegedly raised in the 27 August meeting was raised and reiterated.8

On 18 October 2013, CRMD issued a Certificate of Approval of Increase of Cap ital Stock of Notre Dame.9

2 3 2 Id. Anx. 9 at 1. Id. at 2 Dated 7 May 2014. Appeal Memo. at 1.

1 1 8 O Id. Id. Anx. 1. Id. Anx. 3. Id. Id. Anx. 2.

SEC En Banc Case No. 05-14-330 Decision Page 2 of 4 Bigcas,et. al vs.Dipon

Certificate of Approval of Increase of Capital Stock of Notre Dame alleging that fraud was attendant in its registration of the increase.10 Appellee filed a complaint on 19 December 2013 seeking the cancellation of

crease of Capital Stock of Notre Dame because the approval to the increase in cap- ital stock of Notre Dame was illegally procured and thus warrants its cancella- tion.11 On 6 March 2014, CRMD released an Order cancelling the Certificate of In

Hence, this Appeal. The Appellants raises the following issues as sifted from their Memorandum of Appeal:

1. Did the alleged 27 August meeting approving the increase of capital stock

by 2/3 vote of the outstanding capital stock really exist?12 2. Was there an implied waiver of notice to the meeting by the Appellee?13 The appeal is without merit.

tember Meeting was a follow-up of the meeting on alleged 27 August attended by Answer.14 Thus, the said falsification is inexistent. Appellants also argue that both majority stockholders, was included in the Minutes attached by Dimalanta in his On the first issue, Appellants alleged that the sentence, stating that the 5 Sep.

have made comments and corrections to the final version of such meeting's Appellee and Dimalanta were absent in the alleged 27 Meeting so they could not

minutes.15 They also allege that Dimalanta presented no proof that he was forced to execute the required documents.16

ers18 nor the board of directors approve the increase in capital stock.19 there was no Minutes of the Meeting for 27 August and it was merely appended on this Appeal.17 The minutes also did not categorically state that the stockhold- Appellee in its answer alleges that the 27 August meeting did not happen

In this issue, we rule against the appellant. CRMD in its Order did not rule on the existence of the 27 August meeting. It ruled that the stockholder's meeting for

is different from the requirement that the increase be approved by majority of the 2/3 vote of the outstanding capital stock does not exist.2o This vote requirement the specifically called for the purpose of approving the increase of capital stock by

12 Id. at 4. 18 Id.T12 20 Appeal Memo. Anx. 9 at. 6-8. 10 Id. Anx. 4. 13 Id. at 5-7. 14 Id. at 4. 15 Id. 16 Id. 17 Reply Memo. 111. 11Id.Anx.9. 19 Id.113.

Decision Bigcas, et. al vs. Dipon SEC En Banc Case No. 05-14-330 Page 3 of 4

existed.22 Appellants dwelled on the circumstances of the preparation of the prove the non-existence of the stockholder's meeting.23 Board under Sec. 38 of the Corporation Code21, which the Appellants allege to have Minutes by Dimalanta, which CRMD only treated as corroborating evidence to

The allegations that the attached Minutes in Dimalanta's answer contains the

that the submitted requirements are not falsified. At best, it only proves that the Minutes of the Meeting was not falsified, and that a meeting occurred on 27 August alleged inserted sentence and that Dimalanta and Appellee is absent do not mean

with majority of the board approving the increase. It does not prove that the 2/3 vote of the outstanding capital stock was obtained as required by law. Appellee is correct to say that no Minutes of the 27 August meeting, or notice of such meeting was presented by Appellants as evidence during the proceedings before CRMD The fact that it was only presented in this instance cast doubt on its validity.

and that he knew of the legal consequences does not disprove that he was forced The allegations that Dimalanta signed his name on three separate documents

to execute the required documents. As stated by the CRMD in its Order:

[D]espite the opportunity to support their claim of regularity of the assailed doc- uments, not a single iota of evidence was adduced by [Appellants] to prove the holding of the supposed meeting of August 27, 2013, such as written notices and minutes of such meetings. Neither did they deny the statements made by Re- spondent Dominicata.24

ration aside from preservation of her percentage of ownership,25 and application On the second issue, Appellants argue that Appellee's disinterest in the corpo-

vices, Inc, constitute as waiver of notice to the stockholder's meeting.26 On this issue, we reiterate CRMD's ruling on the assailed Order, which remains to be un- for a new license for a new manning agency, Fil-Crew Maritime and Offshore Ser-

controverted by Appellants rehashed arguments:

While it may be true that notice may be waived impliedly by any stockholder, mere actuation of disinterest of a stockholder to a planned corporate action does not excuse the corporation from complying with this essential requisite. What is meant by implied notice,as referred to in Section 50 of the Corporation Code, is

poration to send written notice for this meeting.27 participation by the stockholder without any objection to the failure of the cor-

25 Appeal Memo. at 6. 21 "Section 38. Power to increase or decrease capital stock; incur, create or increase 24 Id. Anx.9 at 8. 22 Appeal Memo. at 6-7. 27 Id. at 7-8. 23 Id. at 4. 26 Id. two-thirds (2/3) of the outstanding capital stock shall favor the increase or diminu- incur, create or increase any bonded indebtedness unless approved by a majority vote of the board of directors and, at a stockholder's meeting duly called for the purpose, tion of the capital stock, or the incurring, creating or increasing of any bonded indebt- bonded indebtedness. - No corporation shall increase or decrease its capital stock or edneSS. .." CORPORATION CODE S 38.

Bigcas, et. al vs. Dipon SEC En Banc Case No. 05-14-330 Page 4 of 4 Decision

lack of merit. WHEREFORE, premises considered, the instant Appeal is hereby DENIED for

SO ORDERED.

Pasay City, Philippines, 17 August 2017.

. aC TERESITA J. HERBOSA Chairperson

Nhrmwta ANTONIETA F. IBE Commissioner ae .a EPHYRO LUIS B. AMATONG ZAWAX Commissioner

AMES RBO EMILIO B\AQUINO WM VcW

Commissioner Commissipner