Angara Concepcion Regala & Cruz

November 25, 1982 Angara Concepcion Regala & Cruz Law Offices 5th Floor, ACCRA Bldg. 122 Gamboa St.,Legaspi Vill. Makati, Metro Manila Attention : Atty . Francis H . Jardeleza RE : Request for opinion on Duplicate Proxies Gentlemen: This has reference to your letter dated October 11, 1982 requesting for the opinion of this Commission on the query posed therein. It appears from the facts therein that in the forthcoming Annual Stockholders' Meeting of Cheng Bak Yek, Inc.,some stockholders have issued two (2) different proxies to two (2) different persons, both of which proxies bear the same date of execution and do not bear any postmarked date or time. Neither of the proxies specifies the number of shares covered by each of them. You now request for our opinion on how to treat these proxies and/or the ballots cast by the conflicting proxy holders should the election to the Board of Directors be contested. In reply thereto, please be informed that this Commission in a previous opinion, has ruled that "Sec. 21 of the Corporation Law (now, Section 74 of the Corporation Code) authorizes a corporation to provide in its by-laws the mode of securing proxies of stockholders and members and the names of them. The By-laws of a corporation, therefore, would be controlling insofar as execution of proxies is concerned. ( Ltr. to Dr. Rogelio Marinez Pedro dtd. Feb. 7, 1961 ) Furthermore, this Commission has ruled that "where a corporation receives more than one proxy from the same stockholders ...and the proxies were not mailed, then the time of their actual presentation is considered. That which is presented latest is the one counted. However, should there be no sufficient time to verify the proxies, the corporate secretary must refer the matter to the presiding officer where decision will be binding or to a special committee of inspectors which is empowered to pass on the validity of proxies ( Ltr. to Neil Reyes and Associates dtd. Nov. 13, 1972 citing Corporate Secretary's Encyclopedia, p. 88) "Consequently, when two proxies are offered bearing the same names, then the proxy that appears from the evidence have been last executed will be accepted and counted under the theory that the latter i.e. more recent proxy, constituted the revocation of the former." ( Ltr. to Capitol Hills Golf Club dtd. March 15, 1974 citing Standard Power and Light Corp. vs. Investment Associates, Inc. 29 Del Ch 593 51 A (2d) The clear weight authority is to the effect that if two proxies, with inconsistent ballots attached, are presented to the judges of election, and it cannot be determined from an inspection of the proxies themselves which of them was the last given, both ballots should be rejected (5 Fletcher, Cyclopedia of the Law of Private Corporations, 2060 citing Pope v. Whitridge, 110 Md. 468, 73 A 28 I (1909). Please be guided accordingly. Very truly yours, (SGD.) JULIO A. SULIT, JR. Associate Commissioner