520.The provisions in this Part replace most of Chapter 4 of Part 11 of the 1985 Act on meetings and resolutions. The changes in the law derive principally from the CLR’s consultation on «Company General Meetings and Shareholder Communications» and recommendations from Chapters 2, 6 and 7 of their «Final Report», together with two subsequent consultations; the Modernising Company Law White Paper of July 2002 and the Company Law Reform White Paper of March 2005.
521.In addition to implementing detailed policy changes, Part 13 implements two general changes.
First, the law makes the current «elective» regime the default for private companies. This means, for instance, that private companies will no longer need to «elect» to dispense with the Annual General Meeting (AGM): they will not be required to hold an AGM in the first place.
Second, the current law is drafted on the basis that the main way in which shareholder decisions are taken is in general meetings. The new provisions proceed on the basis that in future this will not be the case for many private companies. Private companies will not be required in future to hold general meetings; instead provision is made for new procedures for decisions to be taken by written resolution.
522.The law relating to decisions has been restated in a way that deals first with private companies. Additional layers of requirements for public and quoted companies holding general meetings follow in subsequent provisions. There are provisions at the end of the Part about record keeping. In general, where this Part imposes an obligation or confers a power, it will apply notwithstanding anything in the articles unless otherwise indicated.
Chapter 1: General Provisions about Resolutions
Section 281: Resolutions
523.This section provides that members’ resolutions can only be passed in accordance with the provisions of this Part. There is no equivalent in the current legislation. Subsection (1) allows a private company to pass a resolution either as a written resolution or at a meeting of the members. Subsection (2) allows a public company to pass a resolution only at a meeting of the members. Subsection (3) ensures that where a resolution is required but the type of resolution is not specified, the default will be an ordinary resolution unless the articles require a higher majority. When a provision specifies that an ordinary resolution is required, the articles will not be able to specify a higher majority. Subsection (4) preserves the common law unanimous consent rule.
Section 282: Ordinary resolutions
524.This section provides a definition of an ordinary resolution, whether of the members generally or of a class of the members and whether as a written resolution or as a resolution passed at a meeting. A simple majority – that is, over 50% – is required.
Section 283: Special resolutions
525.This section provides a definition of a special resolution, whether of the members generally or of a class of the members and whether as a written resolution or as a resolution passed at a meeting. A 75% majority is required. If a resolution is proposed as a special resolution, there is a requirement to say so, either in the written resolution text or in the meeting notice. Where a resolution is proposed as a special resolution, it can only be passed as such. The main difference from the existing definition in section 378(2) of the 1985 Act is that there is no longer a requirement for 21 days’ notice where a special resolution is to be passed at a meeting. The subject matter of section 378(3) of the 1985 Act is now dealt with in section 307(4) to (6) (notice required of general meeting), while the subject matter of section 378(4) and (6) is dealt with in sections 320 and 301 respectively.
Section 284: Votes: general rules
526.This section sets out the general rules on votes of members taken by written resolution, on a show of hands at a meeting or on a poll taken at a meeting. These are adapted from section 370 of the 1985 Act and the default regulations in Table A. Subsection (4) allows these general rules to be varied by the company’s articles.
Section 285: Votes: specific requirements
527.This section sets out specific requirements on votes of members, which the company’s articles may not override.Subsections (1) and (2) provide for entitlement to vote where proxies have been appointed and ensure that the articles do not disadvantage a member voting by proxy or proxies. Subsection (3) makes new provision for voting rights on written resolutions, reflecting the fact that they will no longer need to be passed unanimously. A member will have the same number of votes whether passing a resolution on a poll in general meeting or on a written resolution.
Section 286: Votes of joint holders of shares
528.This section puts on a statutory footing what was a default regulation under article 55 of Table A on votes of joint holders of shares. The person whose vote counts is the «senior» holder, the joint holder whose name appears first in the register of members
Section 287: Saving for provisions of articles as to determination of entitlement to vote
529.This section makes new provision to preserve the right for a company to require objections to votes to be made in accordance with procedures in their articles. If an objection is overruled, the decision will be final except in cases of fraud and certain other kinds of misconduct detailed in case law where a court may intervene. This provision preserves the current law. The provision ensures, on the one hand, certainty for company by enabling the chairman to settle matters relating to the admissibility of votes in accordance with the articles and, on the other hand, sufficient remedies for members to challenge a decision if they have suffered unfair prejudice.
Chapter 2: Written Resolutions
530.The provisions of this Chapter replace the present rules on written resolutions of private companies. A key change (apparent from sections 282 and 283) is that where the statutory procedure under the 1985 Act requires unanimity, the procedure in this Act does not. Consequently, the sections are more detailed than sections 381A to 381C of the 1985 Act and set out the procedures for decisions taken outside of a general meeting framework. The use of the expression «written resolution» does not mean that there is a requirement for «writing» in the sense of hard copy.
General provision about written resolutions
Section 288: Written resolutions of private companies
531.This section introduces the written resolution provisions of this Chapter. They apply to private companies only. Subsection (2)(a) and (b) reproduce the two exceptions currently provided for in Part 1 of Schedule 15A to the 1985 Act: a resolution to remove a director or an auditor before the expiration of his term of office may not be passed as a written resolution. These are the only two exceptions to a private company’s right to pass resolutions using the written resolution procedure.
Section 289: Eligible members
532.The eligibility of members to vote on a written resolution is fixed on the day the resolution is circulated. Subsection (2) ensures that the same shares cannot be voted more than once on the same written resolution. If the person entitled to vote changes during the course of that day, the eligible member is the person entitled to vote at the time that the first copy of the resolution is sent or submitted to a member for his agreement.
Circulation of written resolutions
Section 290: Circulation date
533.This section provides that the circulation date of a written resolution means the date on which copies are sent or submitted to members (or if copies are sent on different days, the first of those days.
Section 291: Circulation of written resolutions proposed by directors
534.This section provides for the circulation of written resolutions by directors of the company. A company must circulate a written resolution either by sending it to all eligible members at the same time or, if it can be done without undue delay, submitting the same copy of the resolution to each eligible member in turn or a combination of these. The latter two options allow companies to pass round a document or email rather than sending out several copies.
Section 292: Members’ power to require circulation of written resolution
535.This section enables members to require a written resolution to be circulated. They may also require circulation of a statement about its subject matter. Like the members’ right to require a resolution to be moved at an AGM, the percentage needed is 5% of the total voting rights (or lower if specified in the company’s articles). Subsection (2) specifies some limits on the kind of resolution that may be circulated in this way, designed to stop the power being abused.
Section 293: Circulation of written resolution proposed by members
536.This section specifies what a company has to do when it is required under section 292 to circulate a resolution and accompanying statement. It must circulate the resolution and statement by sending it to all eligible members at the same time or, if it can be done without undue delay, by submitting the same copy of the resolution and statement to each eligible member in turn or a combination of these. The latter two options would allow companies to pass round a document or email rather than sending out several copies. Subsection (3) requires that the members’ written resolution be circulated within 21 days of the company being requested to do so by those members, except that if the written resolution is circulated to members on different days, then the first copy should be dispatched not more than 21 days after the request to circulate the resolution.
Section 294: Expenses of circulation
537.This section provides that the expenses of complying with section 293 are to be paid by the members who requested the circulation of the resolution unless the company resolves otherwise. The company can require the deposit of a sum to meet its expenses before it circulates the resolution, again subject to any resolution to the contrary.
Section 295: Application not to circulate members’ statement
538.This section enables the court, on application by the company or other aggrieved person, to relieve the company of an obligation to circulate a members’ statement under section 293 if in the court’s view the right to require circulation is being abused. This mirrors section 317 in the context of general meetings.
Agreeing to written resolutions
Section 296: Procedure for signifying agreement to written resolution
539.Under this section, a member may signify agreement to a written resolution in hard copy or electronic form, although if the company does not permit electronic form communications, or is not deemed to do so by virtue of section 298, the member will have to signify his consent in hard copy (see paragraph 6 (conditions for use of communications in electronic form) of Schedule 4 (documents and information sent or supplied to a company). Once a member has signified agreement to a written resolution, he cannot withdraw his agreement. This provides certainty for the company as to when the required majority of eligible members needed to agree the resolution has been reached.
Section 297: Period for agreeing to written resolution
540.This section puts a time limit of 28 days for passing a written resolution, unless the company’s articles specify a different period. This means that there will be a definite point when the company can say that a resolution with insufficient support has not been passed.
Supplementary
Section 298: Sending documents relating to written resolutions by electronic means
541.This clause needs to be read together with the provisions about electronic communications to companies in Part 3 (communications in electronic form) of Schedule 4. Taken together, these provisions allow a member to communicate with the company by electronic means where the company has given an electronic address in a document containing or accompanying a proposed written resolution.
Section 299: Publication of written resolution on website
542.This section should be read in conjunction with the provisions about communications by means of a website by a company other than a traded company in Part 4 (communications by means of a website) of Schedule 5 (communications by a company). This clause, together with those provisions, allow a company, provided certain conditions are met, to publish a written resolution on a website rather than send it to a member individually.
Section 300: Relationship between this Chapter and provisions of company’s articles
543.This section ensures that the company’s articles cannot remove the ability of a private company and its members to propose and pass a statutory resolution using the statutory written resolutions procedures of this Chapter.
Chapter 3: Resolutions at Meetings
544.This Chapter replaces sections 368 to 377, 379 and 381 of the 1985 Act and makes provision about resolutions passed in general meeting. The provisions apply equally to private and public companies. The new provisions reflect the fact that private companies will no longer have to hold AGMs. For example, the provisions about circulation of statements in sections 376 and 377 of the 1985 Act have been separated from the provisions on circulation of resolutions prior to an AGM – which are in Chapter 4. The Act repeals section 367 of the 1985 Act which gives the Secretary of State a power to call a meeting where there is no AGM.
General provisions about resolutions at meetings
Section 301: Resolutions at general meetings
545.This is a general provision about the circumstances in which resolutions at meetings are validly passed. It extends to all resolutions the principle in section 378(6) of the 1985 Act relating to special resolutions: that passing a resolution in a meeting is not just a question of obtaining the right majority but of using the correct procedures. An important difference from the position under section 378(6) is that, under this section, a resolution must be passed in accordance with the relevant provisions of the Bill and any additional requirements imposed by the company’s articles. So, where there are mandatory provisions in the Bill (like those about proxies’ rights to vote) these cannot be avoided by making alternative provision in the articles; and where provision is made about meetings in a company’s articles, these must also be complied with.
Calling meetings
Section 302: Directors’ power to call general meetings
546.This section puts into statute part of the default regulation at article 37 of Table A which allows the directors to call a general meeting. The company’s articles will set out how the directors act collectively.
Section 303: Members’ power to require directors to call general meeting
547.This section, together with sections 304 and 305 make provision similar to that in section 368 of the 1985 Act requiring the directors to call a general meeting if requested by the members. There are three main changes.
548.First, there is a change in the threshold required for a meeting request. For public companies this remains members with voting rights holding at least 10% of the paid-up capital. For private companies the threshold is 5% or 10% of the paid-up capital (or, in a company with no share capital, 5% or 10% of the total voting rights) depending on when there was last a meeting in advance of which members had a right – equivalent to the right under this clause (see below) – to circulate resolutions. The threshold is lower if there has been no such meeting in the last twelve months. Second, as indicated above, subsection (4)(b) extends the provisions of the 1985 Act by enabling members to include the text of a resolution to be moved at the requested meeting. Subsection (5) defines what type of resolution may be properly moved. For example, if the resolution would have no effect, then it cannot be properly moved. Third, requests in electronic form are permitted.
Section 304: Directors’ duty to call meetings required by members
549.This section sets time limits within which the directors must call and hold a meeting required by members. Subsection (2) requires that if the members’ request identifies a resolution to be moved at the meeting, notice of this resolution should be included in the notice of the meeting.
Section 305: Power of members to call meeting at company’s expense
550.This section enables the members to call a meeting at the company’s expense in the event that the directors fail to call a meeting on the members’ request. Subsections (6) and (7) provide for members to be reimbursed appropriately and that the directors are penalised directly by the reimbursement being taken out of the fees or other remuneration due to them.
Section 306: Power of court to order meeting
551.This section reproduces the effect of section 371 of the 1985 Act and gives the court power to order a meeting of the company and to direct the manner in which that meeting is called, held and conducted.
Notice of meetings
Section 307: Notice required of general meeting
552.This section replaces part of section 369 of the 1985 Act. It retains the current minimum notice period requirement of 21 days for public company AGMs, with 14 days’ notice required for all other general meetings (whether public or private company general meetings). A general meeting may be called on shorter notice if the requisite majority of members agree. The key substantive change from the position under existing legislation is that the requisite majority required to agree a short notice period has been reduced for private companies from 95% to 90% of the voting rights, although the articles may specify up to 95% if the company wishes. For public companies, the majority required to agree a short notice period remains at 95% of the voting rights.
Section 308: Manner in which notice to be given
553.This section should be read in conjunction with the general requirements for companies in sending and supplying information as set out in Part 37 and Schedule 5.
Section 309: Publication of notice of meeting on website
554.This section contains some specific provisions on communications by means of a website and needs to be read with the general provisions on communications referred to above. The overall effect is similar to that of the website provisions in the current section 369 of the 1985 Act.
Section 310: Persons entitled to receive notice of meetings
555.This section puts into statute part of article 38 of Table A. The new provision ensures that notice of meetings must be sent to all members, directors and any person entitled to a share as a consequence of the death or bankruptcy (or the equivalent in Scots insolvency law) of a member. The provision is subject to any enactment and to any provision in the articles. This means that a company may, for example, make provision in its articles to stop sending notice of meeting to members for whom the company no longer has a valid address.
Section 311: Contents of notices of meetings
556.This section puts into statute another part of article 38 of Table A. The new provision ensures that the notice of meeting must include the time, date and place of the meeting and, subject to the articles, the general nature of the business to be conducted at the meeting.
Section 312: Resolution requiring special notice
557.This section replaces section 379 of the 1985 Act setting out the requirements for special notice resolutions. It makes provision only in relation to resolutions passed at meetings. This is because the resolutions for which special notice is required are either resolutions that are not capable of being passed as written resolutions (in the case of sections 168 and 510) or in relation to which written resolutions have their own special procedure (see sections 514 and 515).
558.There is no change from the existing law whereby at least 28 days’ notice must be given to the company of the intention to move a resolution requiring special notice. Where it is not practicable for the company to give members notice of such a resolution at the same time as it gives notice of the meeting at which the resolution is to be moved, the company must in future give at least 14 days’ notice either by newspaper advertisement or by any other manner allowed by the articles.
Section 313: Accidental failure to give notice of resolution or meeting
559.This section expands on article 39 of Table A. It contains the rule that an accidental failure to give notice of a resolution or a general meeting is generally disregarded. Under subsection (2), this rule can be altered by the articles in some but not all cases.
Members’ statements
Section 314: Members’ power to require circulation of statements
560.This section, together with section 315, replaces sections 376 and 377 of the 1985 Act and provides a right for members to require the company to circulate a statement of up to 1,000 words. The key policy change is that where the statement relates to a resolution or other matter to be dealt with at a public company’s AGM and is received before the company’s financial year-end, the shareholders are not required to cover the costs of circulating the statement. There are two other notable changes. The first is that the shares relied on to trigger the circulation of a statement must in each case carry rights to vote on the relevant resolution rather than just at the meeting. The second is that requests in electronic form are permitted.
Section 315: Company’s duty to circulate members’ statement
561.This section replaces the remainder of sections 376 and 377 of the 1985 Act and specifies what the company is to do when it is required to circulate a members’ statement. The statement must be circulated in the same manner as notice of the meeting and at the same time, or as soon as reasonably practicable, after the company gives notice of the meeting. Where the company fails to comply with the provisions of this section an offence is committed by every officer of the company who is in default.
Section 316: Expenses of circulating members’ statement
562.This section provides that the expenses of complying with section 315 need not be paid by the members if the meeting to which the request relates is a public company AGM and a sufficient number of requests are received before the company’s year-end. Otherwise the company’s expenses will have to be met by the members who requested the circulation of the statement unless the company resolves otherwise. In this case, the members requesting the statement must deposit a sum to cover the company’s costs (unless the company has resolved otherwise).
Section 317: Application not to circulate members’ statement
563.This section replaces section 377(3) of the 1985 Act. It enables the court on application to relieve the company of an obligation to circulate a members’ statement if in its opinion the right to require circulation is being abused.
Procedure at meetings
Section 318: Quorum at meetings
564.This section replaces sections 370(4) and 370A of the 1985 Act. It sets a quorum for a meeting of one «qualifying person» in the case of a single member company and – as a default – two «qualifying persons» in any other case. Subsections (2) and (3) ensure that a member, corporate representative or proxy present at the meeting may all be «qualifying persons», but excludes the possibility of two or more corporate representatives or proxies of the same member comprising a quorum. Under these provisions, proxies and corporate representatives do not count towards a quorum in companies with more than one member.
Section 319: Chairman of meeting
565.This section reproduces the effect of section 370(5) of the 1985 Act and provides a default provision where the company’s articles are silent, allowing any member to be elected as chairman of a general meeting by a resolution of the company passed at the meeting.
Section 320: Declaration by chairman on a show of hands
566.This section replaces section 378(4) of the 1985 Act and part of article 47 of Table A. This provision ensures that the chairman’s declaration of a vote taken on a show of hands is conclusive evidence of the resolution being passed or lost without further proof being provided, unless a poll is demanded on the resolution. There are two main differences from section 378(4), both of which are drawn from Table A. First, if the demand for a poll is withdrawn, then the chairman’s declaration will stand. Second, the minutes of the meeting also provide conclusive evidence of the chairman’s declaration. This section is intended to provide certainty by preventing members from challenging a declaration of the chairman as to the votes cast on a resolution at a meeting otherwise than by calling a poll.
Section 321: Right to demand a poll
567.This section replaces section 373 of the 1985 Act. It restricts companies’ ability, through their articles, to exclude members’ rights to call a poll. However, it allows articles to exclude the right to a poll on the election of the chairman of the meeting and the adjournment of the meeting. The section provides for three effective types of demands for a poll, including a demand made by at least 5 members with a right to vote on the resolution.
Section 322: Voting on a poll
568.This section replaces section 374 of the 1985 Act. This provision recognises that a member may hold shares on behalf of third parties and allows the member to cast votes in different ways according to instructions from his clients. The reference to class meetings in section 374 is dealt with by section 334.
Section 323: Representation of corporations at meetings
569.This section replaces section 375 of the 1985 Act. The section expressly provides for the appointment of multiple corporate representatives. This is possible under section 375 of the 1985 Act, although the effect of appointing multiple representatives under the existing law is in some cases unclear. The new section spells out the position. Any one of the corporate representatives will be entitled to vote and exercise other powers on behalf of the member at meetings, but in the event that representatives’ votes or other powers conflict, the corporation is deemed to have abstained from exercising its vote or power. If a corporation wishes to appoint people with different voting intentions or with authority to vote different blocks of shares, they should appoint proxies.
Proxies
Section 324: Rights to appoint proxies
570.This section sets out new provisions for the appointment of proxies, expanding on the existing rights given under section 372 of the 1985 Act and Table A. It puts on a statutory footing certain rights that under the 1985 Act are subject to the articles. In future, members of both private and public companies will have the right to appoint more than one proxy. All proxies will be able to attend, to speak and to vote at a meeting. As to the voting rights of a proxy on a show of hands, see sections 284(2)(b) and 285. The effect of those sections is that the default position will be that, where a member appoints more than one proxy, each proxy will have a vote. The articles will be capable of restricting the number of votes of the proxies, provided that they still have at least one vote between them.
Section 325: Notice of meeting to contain statement of rights
571.This section replaces sections 372(3) and 372(4) of the 1985 Act with changes consequential on the extended rights to appoint proxies under section 324. The new provision requires every notice calling a meeting to contain a statement informing the member of his rights to appoint one or more proxies and any more extensive rights conferred by the company’s articles. Failure to include such a statement will not invalidate the meeting, but is an offence attracting a fine for every officer of the company found in default.
Section 326: Company-sponsored invitations to appoint proxies
572.This section reproduces the effect of section 372(6) of the 1985 Act and requires a company to ensure that if it invites members to appoint a particular person or persons as proxy, such an invitation must be issued to all members entitled to vote at the meeting. Subsection (2) lists two exceptions to the requirement. Failure to comply attracts a fine for every officer in default.
Section 327: Notice required of appointment of proxy etc
573.This section replaces section 372(5) of the 1985 Act. There are two changes. The first relates to the timing required for a notice of proxy appointment. The new provision ensures that weekends, Christmas Day, Good Friday and any bank holiday are excluded from the time counting towards the minimum 48 hour notice required to appoint proxies. This means, for example, that for a meeting to be held at 3.00 pm on a Tuesday after a bank holiday Monday, the cut-off point for proxy appointment will be 3.00 pm the previous Thursday, not 3.00 pm on Sunday as under the 1985 Act. The second is that polls which are not taken immediately are covered by the rules as well as meetings and adjourned meetings.
Section 328: Chairing meetings
574.This section provides as a default rule, subject to the articles, that a proxy may be elected as chairman of a general meeting by resolution of the company passed at the meeting.
Section 329: Right of proxy to demand a poll
575.This section sets out the way in which a proxy may participate in a demand for a poll.
Section 330: Notice required of termination of proxy’s authority
576.This section provides a default regulation to replace article 63 of Table A. This ensures that, subject to the articles, an appointed proxy’s actions at a meeting are valid unless notice of termination of the proxy’s authority is given before the meeting starts. The company’s articles may specify a longer advance notice period but this cannot be more than 48 hours in advance of the meeting (excluding weekends, Christmas Day, Good Friday and bank holidays).
Section 331: Saving for more extensive rights conferred by articles
577.This section makes clear that the company’s articles may confer more extensive rights than are provided for under the provisions of the Bill on members and their proxies.
Adjourned meetings
Section 332: Resolution passed at adjourned meeting
578.This section reproduces the effect of part of section 381 of the 1985 Act as it applies to members’ meetings. It ensures that a resolution of the members of the company passed at an adjourned meeting is treated as passed on that date and not on any earlier date. The reference to class meetings in section 381 is dealt with by section 334.
Electronic communications
Section 333: Sending documents relating to meetings etc in electronic form
579.This section needs to be read together with the provisions about electronic communications to companies in Part 3 of Schedule 4. Taken together these provisions allow a member to communicate with the company by electronic means where the company has given an electronic address in a notice calling a meeting or in an instrument of proxy or proxy invitation.
Application to class meetings
Section 334: Application to class meetings
580.This section applies the provisions of this Chapter with some modifications to meetings of holders of a class of shares in companies having a share capital.
Section 335: Application to class meetings: companies without a share capital
581.This section applies the provisions of this Chapter with some modifications to meetings of classes of members of companies without a share capital.
Chapter 4: Public Companies: Additional Requirements for Agms
582.The requirements for public companies relating to annual general meetings are set out in this Chapter. The main substantive changes to the 1985 Act are, as the CLR recommended, that:
private companies will no longer be required to hold an AGM. The provisions of this Chapter therefore do not apply to private companies; and
public company AGMs must be held within six months of their financial year-end.
Section 336: Public companies: annual general meeting
583.This section replaces section 366 of the 1985 Act but will apply only to public companies since private companies are no longer to be required to hold an AGM. Where section 366 required an AGM to be held each year and not more than 15 months after the previous AGM, a public company will now be required to hold an AGM within 6 months of its financial year-end. This new requirement is intended to ensure that shareholders have a more timely opportunity to hold the directors of a public company to account.
Section 337: Public companies: notice of AGM
584.This section reproduces the effect of parts of section 369 of the 1985 Act relating to the AGM notice. The minimum notice period for calling a public company AGM is 21 days as set out in subsection (2) of section 307 or longer if provided for in the company’s articles. An AGM may be called at shorter notice if all members of the company agree.
Section 338: Public companies: members’ power to require circulation of resolutions for AGMs
585.This section, with section 339, replaces sections 376 and 377 of the 1985 Act (to the extent that they relate to resolutions proposed by members to be moved at an AGM). Members holding at least 5% voting rights or at least 100 members holding on average £100 paid-up capital have the right to propose a resolution for the AGM agenda and to require the company to circulate details of the resolution to all members. A change from the existing legislation is that the shares must in each case carry rights to vote on the relevant resolution. The key policy change is that, if the members’ request is received before the financial year-end, then the members are not required to cover the costs of circulation.
Section 339: Public companies: company’s duty to circulate members’ resolutions for AGMs
586.This section replaces the remaining parts of sections 376 and 377 of the 1985 Act (to the extent that they relate to resolutions proposed by members to be moved at an AGM). It specifies what a company has to do when it is required to circulate a members’ resolution for an AGM.
Section 340: Public companies: expenses of circulating members’ resolutions for AGM
587.This section provides that the expenses of complying with section 339 need not be paid by the members who requested the circulation of the resolution if requests sufficient to require the company to circulate it are received before the company’s year-end. Otherwise the company’s expenses will have to be met by the members who requested the circulation of the resolution unless the company resolves otherwise. In this case, the members requesting the statement must deposit a sum to cover the company’s costs (unless the company has resolved otherwise).
Chapter 5: Additional Requirements for Quoted Companies
588.This Chapter imposes new requirements on quoted companies relating to the disclosure on a website of the results of polls at general meetings, and an independent report on a poll if a sufficient number of members demand one. These two measures were recommended by the CLR (Final Report, paragraph 6.39(ii) and (iv)).
Website publication of poll results
Section 341: Results of poll to be made available on website
589.This section requires quoted companies to disclose on a website the results of all polls taken at a general meeting. Subsection (1) sets out the minimum information that must be disclosed. Companies may disclose additional information about the poll results if they wish. Subsection (4) imposes a penalty on every officer in default for non-compliance. Non-compliance however does not invalidate the poll, the resolution or other business to which the poll relates. Section 353(requirements as to website availability) sets out the requirements relating to the website on which the poll results must be published.
Independent report on poll
Section 342: Members’ power to require independent report on poll
590.This section gives members of a quoted company the right to require an independent report of any poll taken, or to be taken, at a general meeting. The minimum threshold required for the demand is the same as that for requiring the circulation of a resolution – that is members holding 5% of the voting rights or 100 members holding on average £100 of paid-up capital. The members’ request must be made within one week of the meeting where the poll is taken. This allows members to decide after a poll is taken whether they wish to require an independent report, for example on a controversial resolution or where there appears to be a problem relating to voting procedures. Members may make their request in advance of the meeting if they wish, but unless the company’s articles already require all votes to be taken on a poll, members may need to take steps to ensure that a poll is called.
Section 343: Appointment of independent assessor
591.The appointment of an independent assessor must be made within one week of the members’ request. This means that the appointment could be made either before or after the meeting depending on when the members’ request is made. The independent assessor must be independent (see section 344) and must not be someone already involved in the voting process for the company.
Section 344: Independence requirement
592.This section prevents a person acting as an independent assessor on a poll if he is too closely connected to the company or an associated undertaking of the company. The independence requirements are set out in subsection (1). They correspond to the independence requirements for a statutory auditor (see section 1214). Subsection (2) allows, but does not require, an auditor to be appointed as an assessor.
Section 345: Meaning of «associate»
593.This section defines «associate» for the purposes of the independence requirements in section 344.
Section 346: Effect of appointment of a partnership
594.This section provides for where a partnership that is not a legal person is appointed as an independent assessor on a poll.
Section 347: The independent assessor’s report
595.This section sets out the minimum information the independent assessor’s report must contain.
Section 348: Rights of independent assessor: right to attend meeting etc
596.This section gives the independent assessor rights to attend the meeting at which the poll or polls may be taken and to be provided with information relating to the meeting. He is to exercise these rights only to the extent he considers necessary for the preparation of his report.
Section 349: Rights of independent assessor: right to information
597.This section gives the independent assessor the right to access company records relating to any poll on which he is to report and to the meeting at which the poll or polls may be taken.
Section 350: Offences relating to provision of information
598.This section imposes a penalty on any person listed in subsection (2) of section 349 who fails to comply with the requirement to provide information or explanation relating to the poll on which the independent assessor is preparing a report.
Section 351: Information to be made available on website
599.This section requires the company to publish on a website the independent assessor’s report of the poll or polls and sets out the minimum information relating to the assessor’s appointment, his identity, the text of the resolution and the assessor’s report that must be made available. Subsections (3) and (4) impose a penalty on every officer in default for non-compliance with this requirement. Failure to comply, however, does not invalidate the poll or the resolution or other business to which the poll relates. Section 353 sets out the requirements relating to the website on which the independent report must be published.
Supplementary
Section 352: Application of provisions to class meetings
600.This section applies the provisions of this Chapter to meetings of holders of a class of shares of a quoted company.
Section 353: Requirements as to website availability
601.This section sets out the minimum requirements that should apply to information to be published on a quoted company’s website under section 341 and section 351. The website on which the information is made available must be maintained by or on behalf of the quoted company and must identify the company in question. This provides flexibility as to whether a website is the company’s own or one operated by a website service provider. Information published on a website must be kept available for a minimum of two years. Subsection (5) provides a let-out when a company’s failure to make the information available on a website for part of the period is wholly attributable to circumstances beyond the company’s control.
Section 354: Power to limit or extend the types of company to which provisions of this Chapter apply
602.At present the provisions of this Chapter apply to quoted companies as defined in section 385, which replaces the definition of «quoted company» in section 262 of the 1985 Act. This section confers on the Secretary of State a power to make regulations to limit or extend the types of company to which the provisions of this Chapter apply. The Parliamentary procedure that will apply to such regulations depends on whether they extend or limit the application of the Chapter.
Chapter 6: Records of Resolutions and Meetings
603.The following provisions replace sections 382, 382A, 382B and 383 of the 1985 Act relating to the records of company proceedings. They should be read in conjunction with the provisions on company records in Part 31. The main changes are the ten year minimum period for keeping records (the 1985 Act envisaged that records would be retained forever); that meetings of directors are dealt with elsewhere (in Part 10 of the Act); and that the new provisions apply to class meetings.
Section 355: Records of resolutions and meetings etc
604.This section requires all companies to maintain records comprising: copies of all resolutions passed otherwise than at general meetings (which would include all written resolutions), minutes of all proceedings of general meetings, and details of decisions of a sole member taken in accordance with section 357. All records must be kept for a minimum of 10 years. Subsections (3) and (4) impose a penalty on every officer in default for non-compliance.
Section 356: Records as evidence of resolutions etc
605.This section ensures that all records of resolutions or written resolutions and minutes of meetings, where signed off by a director or a company secretary or by the chairman in the case of a general meeting, are evidence of the passing of a resolution or the proceedings at the meeting. In legal proceedings, a litigant will have to accept that the records are accurate unless he can prove that they are not.
Section 357: Records of decisions by sole member
606.This section makes provision for the recording of decisions of a company with only one member.
Section 358: Inspection of records of resolutions and meetings
607.This section requires every company to keep its records available for inspection by members for 10 years. Subsection (5) enables a member to seek a court order to compel the company to make the records available for inspection or to provide copies of the records.
Section 359: Records of resolutions and meetings of class of members
608.This section applies the provisions of this Chapter to resolutions and meetings of holders of a class of shares in the case of a company with share capital or to classes of members in the case of a company without a share capital.
Chapter 7: Supplementary Provisions
Section 360: Computation of periods of notice etc: clear day rule
609.This is a new provision to ensure clarity and consistency in the calculation of time periods in relation to meetings and resolutions under Part 13. The section provides that in calculating periods of notice, or periods before a meeting by which a request must be received or sum deposited or tendered, the following are to be excluded –
the day of the meeting,
the day on which notice is given,
the day on which the request is received or the sum is deposited or tendered.
Section 361: Meaning of «quoted company»
610.This section provides that the definition for «quoted company» is as stated in Part 15 (Accounts and reports) of the Act.