Roberto Q. Pagotan

December 8, 1982 Roberto Q. Pagotan Vice-President Wings Freight Forwarder, Inc. 9562 Jaime St.,Airport Village Baltao, Paraaque, Metro Manila Sir : This has reference to your letter dated October 12, 1982, requesting opinion of this Commission relative to the two-thirds (2/3) vote-requirement of the Corporation Code. It appears that the Wings Freight Forwarder, Inc.,a stock corporation, was incorporated on June 10, 1976. It has six (6) incorporators, who are likewise the only stockholders, to wit: Name No. of Shares Amount Subscribed Heidi B. Hernandez 324 P32,400.00 Eduardo S. Hernandez 10 1,000.00 Roberto Q. Pagotan 323 32,300.00 Herminia C. Pagotan 10 1,000.00 Manuel B. Lukban 323 32,300.00 Milagros E. Lukban 10 1,000.00 ____ __________ Total 1,000 P100,000.00 ==== ========== The Hernandez spouses own 334 shares. On the other hand, the remaining four (4) stockholders, namely: the Pagotan spouses and the Lukbans hold the combined shares of 666 because each couple owns 333 shares each. Based on the foregoing facts, you pose the following query: Whether the combined votes of the Pagotans and the Lukbans, totalling 666 shares are sufficient to satisfy the 2/3 vote requirement under Section 40 and similar sections of the Corporation Code. The pertinent portion of Section 40 states: "...a corporation may, by a majority vote of its Board of Directors or trustees, sell, lease, exchange, mortgage, pledge or otherwise dispose of all or substantially all of its property and assets, including its goodwill, upon such terms and conditions and for such consideration, which may be money, stocks, bonds or other instruments for the payment of money or other property or consideration, as its Board of Directors or trustees may deem expedient, when authorized by the vote of the stockholders representing at least two-thirds (2/3) of the outstanding capital stock ...." The above-mentioned corporation has a total of 1,000 shares. Two-thirds of the same is 666.666 shares. The combined shares of the Pagotans and the Lukbans, being only 666, the same is short of .666 to comply with the provision that "at least 2/3 vote of the outstanding capital stock must vote" in order to make whatever course of action binding on the corporation. This is an express provision of law and the phrase "at least" meaning, the minimum or the lowest estimate, is clear and emphatic. Although what is lacking is a mere fractional unit, the same may be treated as equal to one (1) share such that in order to muster the two-thirds-vote required under our Code, the combined shares of the Pagotans and Lukbans must be 667 shares. llcd In view of the foregoing, the answer to your query is in the negative. Very truly yours, (SGD.) JESUS J. VALDES Associate Commissioner