Business Law - Unit 3 - Company decision-making Flashcards
What is the difference between the company’s directors and shareholders roles?
Company’s directors are involved in the day-to-day running of the company.
Company shareholders are involved in a limited number of decisions. They provide the money which allows the business to operate.
What decisions do shareholders alone make?
Changing the articles of association of the company
Changing the name of the company
These are done by special resolution - 75% majority or over.
Directors can’t reverse the decision - they must ensure the correct paperwork is completed and that Companies House is notified.
What decisions do shareholders make that give the company’s directors permission to enter into certain types of contract?
One example is buying property from a director
*Note: shareholders don’t have the power to enter into these contracts themselves - they are giving permission to the directors to enter into these contracts on behalf of the company.
How do directors make collective decisions?
They make these in board meetings - these decisions are called board resolutions.
However, MA 5 gives directors the power to delegate powers as they see fit so employees would be able to make decisions as fit their job description.
Certain directors would also have specific areas of responsibility e.g. a HR director, a Finance director or Managing Director.
According to MA 9, what type of notice do directors have to give when they call a board meeting?
Reasonable notice to other directors (this will depend on the facts).
Could be a few minutes if they all work at a small company in the same building. Could be much longer for a multi-national company.
Notice for board meeting DOESN’T need to be in writing but should include the time, date and place of the meeting.
The communication method (e.g. Zoom) should also be included if they’re not meeting in person.
What is the quorum for board meetings?
According to MA 11, a quorum of 2 directors must be present at all times during a board meeting.
This means the minimum number of directors that have to be present for the meeting to be valid.
This makes the meeting quorate.
According to MA 14, can a director count in the quorum/vote if the proposed decision of the board is concerned with an actual or proposed transaction in which the director is interested?
No - they can’t count in the quorum or vote if a proposed decision of the board is concerned with an actual or proposed transaction or arrangement with the company in which a director is interested.(but this can be changed if the Articles of Association are amended).
Otherwise, if this was allowed, this runs the risk of directors voting with their personal interest in mind as opposed to the good of the company.
However, they can be counted in the quorum FOR THE PART OF MEETING WHERE OTHER RESOLUTIONS ARE BEING PASSED and can vote on other resolutions in the meeting.
When a director has a personal interest in a proposed transaction, what must they do?
Declare the nature and extent of this interest to the board of directors. ** Note: unlike MA 14, this CANNOT be disapplied.
However, exception to this is in 3 instances:
1) If it cannot reasonably be regarded as likely to give rise to a conflict of interest.
2) If, or to the extent that, other directors are already aware of it.
3) If, or to the extent that, it concerns terms of a service contract that have been or are to be considered by a meeting of directors.
Best to declare just in case.
What is the rule for voting at board meetings - how many votes are needed for a decision to be passed?
MA 7 states that board resolutions are passed by a simple majority - over half of those present must vote in favour for the board resolution to be passed.
Carried out by a show of hands and each director has one vote.
Chairman (if appointed) can have the casting vote which breaks a tie. Only needs to use if they are in favour of the decision because if there is a tie, the resolution won’t be passed.
What other methods can be used as opposed to a board meeting for directors to make decisions?
Can be in writing or any other method that effectively communicates that all are in favour.
However, when using a written resolution, ALL directors must agree otherwise the resolution will not be passed.
So board meeting = simple majority for resolution to be passed
Written resolutions = unanimous for resolution to be passed
What are the two types of shareholder resolution?
Ordinary resolutions and special resolutions. - Note: these terms are ONLY used for shareholder resolutions, not directors’ board meetings.
How many votes are needed for an ordinary resolution to be passed?
If this takes place at a shareholders’ general meeting, over half the votes must be in favour to pass an ordinary resolution.
How many votes are needed for a special resolution to be passed?
If this takes place at a shareholders’ general meeting, 75% or more of the votes cast must be in favour of the resolution.
In what way are general meetings of shareholders called?
General meetings of shareholders are called by the board of directors passing a board resolution.
The board will call a general meeting either when:
- they want the shareholders to pass a shareholders’ resolution OR
- when the shareholders have requested that the board call a meeting.
Public companies have to hold a general meeting once a year - not the case for private companies.
What are the notice requirements for calling a general meeting of shareholders?
Determined by the CA 2006.
The directors must give notice to every shareholder and every director and to the auditor if there is one.
Must be given in hard copy, electronic form or by means of a website or a combination of these means.
The notice must set out:
- The time, date and place of the meeting
- The general nature of the business to be dealt with.
- If a special resolution is proposed, the EXACT WORDING of the special resolution and
- Each shareholder’s right to appoint a proxy to attend on their behalf.
What is the notice period for a general meeting?
14 clear days - this means the day that the notice is deemed received by the shareholders and the day that the general meeting is held is NOT COUNTED.
Should be 14 days clear of anything happening between the two.
However, if the notice of the general meeting is sent out by post or email - it is deemed received 48 hours after the notice was posted or emailed. This must be added on to the 14 days.
What is the quorum and voting for a general meeting of shareholders?
Subject to the company’s articles, the quorum for a general meeting is 2 (except if the company only has 1 shareholder in which case it is 1).
Voting will be on a show of hands and each shareholder has one vote.
Generally, shareholders are not prevented from being counted in the quorum or voting if they have a personal interest in the matter - unlike directors.
What are the 2 key shareholders’ resolutions where the votes of a shareholder with a personal interest in the matter are effectively not counted?
Note: they are free to vote BUT their vote will not be counted if this is what makes the difference as to whether the resolution is passed or not.
2 resolutions are:
- A resolution to buy back some or all of a shareholder’s shares because the shareholder in question could be voting in their own interest, not the company’s AND
- An ordinary resolution to ratify a director’s breach of duty where the director in question is also a shareholder.
What is a poll vote?
A poll vote is where the shareholders vote in a general meeting on the basis of one vote for each share they own as opposed to one vote per person.
More shares = more votes - more power
A poll vote may be demanded by:
- The chair of the meeting
- The directors
- 2 or more persons having the right to vote on a resolution
- A person or persons representing not less than 1/10th of the total voting right of all the shareholders having the right to vote on the resolution.
Poll vote can be demanded before a general meeting, during the meeting, either before or after the voting takes place.
If the poll vote is called after the shareholder has already voted on a show of hands, the outcome of the poll vote will override the original vote.
What is the rule for calling a general meeting on short notice?
For a general meeting to be validly held on short notice:
- A majority in number of the company’s shareholders
- Who between them hold 90% or more of the company’s voting shares must consent.
For public companies, this must be 95%.
Once the required percentage of shareholders have consented, the general meeting can be held straight away or at a later date.
What is the procedure if shareholders want to use a written resolution instead of a general meeting?
A written resolution is only available for private companies, not public.
Instead of issuing a notice for a general meeting, the board will instead hand out, post or email a written resolution or place the resolution on a website.
This document will set out the text of the ordinary/special resolutions which the board is proposing and the shareholder will have to sign and return the written resolution if they would like to vote in favour of it.
If it’s sent by post or email, each shareholder will receive their own copy to sign and return.
The written resolution must be circulated to every eligible member (those who are entitled to vote on the resolution as of the circulation date of the resolution).
Certain info must be included on the written resolution including:
- How to signify agreement and
- The deadline for returning the written resolution (the lapse date).
The lapse date is 28 days from circulation of the written resolution (including the circulation day). This means the lapse date is generally midnight of the 28th day following circulation.
If an eligible member signifies their agreement after the lapse date, their agreement will not be counted.
When are written resolutions passed?
When the required majority of eligible members have signified agreement.
For written resolutions, each shareholder has one vote for each share they own.
This is different to the general meeting where it is one vote per shareholder - shows how you can get different results based on whether you choose a general meeting or a written resolution.
For an ordinary resolution, over half of the votes of all the company’s eligible members are needed to pass the resolution.
For a special resolution, 75% or more of all the votes of all the company’s eligible members are required in order to pass the resolution.
^ This also means that if someone doesn’t show up to a general meeting, their vote won’t be counted. However, if they don’t vote in a written resolution, then the resolution will likely not be passed as you need 50% of ALL THE COMPANY’S ELIGIBLE MEMBERS TO VOTE.
What percentage is needed for the shareholders to request a written resolution?
A shareholder/shareholders who have 5% or more of the voting rights in the company are entitled to require the company to circulate a written resolution.
This can be reduced to lower than 5% but CANNOT be increased to more than 5%.
The shareholders who have asked the company to circulate a written resolution can ask the company to circulate with it a statement of up to 1000 words on the subject matter of the resolution.
The company must then circulate a copy of the resolution and any accompanying statement to all eligible shareholders, within 21 days of the shareholders’ request.
The shareholders who requested the circulation must pay the company’s expenses in complying with the request.
What percentage is needed for the shareholders to request a general meeting?
The shareholders can require the directors to call a general meeting.
The directors are required to call the general meeting once they’ve received requests to do so from shareholders representing at least 5% of such paid up capital of the company as carries the right of voting at general meetings.
The request must state the general nature of the business to be dealt with at the general meeting.
If the shareholders exercise this right, the directors must call it within 21 days of the request. The NOTICE PERIOD should should not exceed 28 days.
This means the time from the shareholders requesting the board to call a general meeting and the general meeting itself is 7 weeks maximum.