This article provides basic information about the sorts of resolutions a company may propose.
At the most fundamental level, a company works by complying with a set of rules as set out in the Companies Acts.
The law in these acts provides the basic framework within which all companies must operate. Those rules cannot be changed. They include for example, requirements for the appointment of directors; for the filing of accounts; and for matters to be recorded at Companies House.
Within this legal framework (and subject to other law) you are free to operate as you wish. Your reference point for the more precise rules about how your own company is run is the articles of association. More simply, you could call the articles your own rule book. This document overlays the basic law in much the same way as a computer software application overlays your operating system.
On top of that is a third overlay: how you work day to day. That too is subject to the law, but you do have great freedom. You can set and follow strict corporate procedures, or work freely.
Usually, the more shareholders you have, the more useful it is to establish strict systems of administration so that everyone knows where they are. If you are a one-man band, there is no-one to argue with how you run the company.
We want to make absolutely clear here that the Registrar of Companies (Companies House) has no obligation and certainly no resources to check up on you. Not ever. So if you slip up, the problem will come to light only when some document you file at Companies House fails properly to record what has been done, or someone sues you in court. The result is that, provided you comply with the law, you do not have to worry about dotting an 'i' or crossing a 't'.
In order for everyone involved to understand the rules, you have to hold company meetings, which require notices.
Your own rules and procedures should be recorded and changed over time by votes of shareholders (also called members) in meetings. The words on which a vote is taken are called resolutions.
'that Jane Smith be appointed as Marketing Director'
'that the discretionary bonus for Jane Smith for the current year shall be £10,000,000'
'that the issued share capital of the company be increased from 1000 ordinary shares of £1 each to 10,000 ordinary shares of £1 each and that the shares be allotted as follows . . . . . '
The Companies Act 2006 requires that the minutes of every meeting of the directors are recorded. The record is usually referred to as the minutes.
The minutes are contained in a document giving the exact words used for each vote taken and the outcome. These are recorded whether the resolutions were passed or failed.
Many private companies manage quite well with no formal resolutions recorded at all. They leave it to the accountant or a solicitor to sort such formalities. As long as there are no disputes among the shareholders or directors, it works. However, there is no reason why far more detail about what the shareholders and directors have agreed should not be properly set down in minutes of meetings, if only so that everyone is working towards the same goals.
We could therefore say a resolution is a motion that is debated and lost or won. When a resolution is passed, the company and the directors are bound by it - at least until a different decision is made and recorded in the minutes.
At a meeting of shareholders, a vote is usually taken on a show of hands. A declaration by the chairman that the resolution is carried on a show of hands is all that is required for a resolution to be passed. The number of votes for or against need not be counted. However, any shareholder, no matter how few shares he votes, can demand a poll.
So a show of hands works only when there are a many shareholders with similar sized share holdings. If the vote is close, any shareholder with a large proportion of shares will want to be sure that due weight is given to they voting power. They will therefore call for a poll - a written vote, the results of which are calculated according to weight of shares.
In a private company with a small number of shareholders, everyone knows who owns how many shares, so the chairman can declare a resolution lost or won flexibly.
The bottom line is that most articles of association specify that a resolution shall be passed by 'a majority of votes' (that is shares, not people) 'of those present and voting, in person or by proxy'.
It follows that:
if a shareholder is absent and has not provided a proxy, their shares are not counted in the voting
if a shareholder is present but abstains from voting (and notifies the person counting that they are abstaining) then their shares are not counted
if a shareholder is present and does not notify the person counting that they are abstaining, then their shares effectively count against the vote
Because these default rules might not suit how you want the company to operate, they are a reason why you might change your articles from the model ones.
Any member may demand a poll unless the company's articles say otherwise.
A shareholder has an opportunity to challenge the veracity of the minutes at the beginning of the next following meeting. After that, the minutes can be challenged only on proof of inaccuracy of a fact or proof of bad faith.
Each resolution passed becomes part of the minutes of the meeting at which it was passed. Most companies circularise minutes of general meetings to shareholders.
The law requires minutes recording certain resolutions to be sent to Companies House within 15 days after it has been passed. Companies House website explains exactly how to file. Resolutions to be filed are:
- Elective resolutions, of which some are described more fully below.
- Class resolutions passed by unanimous agreement of all the members of a class of shareholders but which would otherwise have needed to be passed by a specific majority or in another manner.
- All resolutions or agreements that effectively bind all the members of any class of shareholders (though all those members may not have agreed to them).
- Directors' resolutions, as listed just below.
- Ordinary resolutions, as listed just below.
- Resolutions for voluntary winding-up.
Resolutions are passed under section 281 of the Companies Act 2006. They are explained in sections 282 and 283 of the Act. Different types of resolution will apply in different situations. What follows here is not only an explanation of the two or three categories of resolution in law, but rather an explanation of terms commonly used.
A meeting of directors is commonly referred to as a board meeting. The word board has no special meaning in law. When we refer to a board meeting we mean simply a meeting of the directors.
A directors' resolution may require either a simple majority of votes or approval by all of the directors, depending on what is laid down in the articles. A simple majority is most common. The directors can agree a resolution to fix any aspect of the management of the company.
Members’ ordinary resolutions
In most private companies, the important decisions are made by the shareholders (also called members). An ordinary resolution is used for all matters unless the Companies Act or the company's articles of association require any other type of resolution.
Members’ extraordinary resolutions
Rather confusingly, it is sometimes necessary to call an extraordinary general meeting in order to deal with something immediately. The term extraordinary means only that the meeting is not the annual general meeting. To put it another way, every meeting other than the annual general meeting, is an extraordinary meeting.
Since 2007, extraordinary resolutions have not existed, except where a company's articles of association provide for them. Nowadays, the term tends to be used to mean a special resolution.
In companies that still use them, extraordinary resolutions require a greater majority of shareholders in approvement to pass, and must be held for certain matters. An example might be modifying the rights of classes of shareholders, or winding-up the company. Usually extraordinary resolutions are passed by at least 75% of the members who vote on the motion, in person or by proxy (where allowed) at a general meeting. The length of notice required for an extraordinary resolution will depend on several factors, including the type of meeting to be held.
There are a small number of business matters that are considered so important as to require a 75% majority. They are special resolutions.
A special resolution will be effective only if: not less than 21 days notice is given to the company, and not less than 14 days given to the members; and the the intention to propose the resolution as a special one is specified. The business transactions listed below require a special resolution:
- where the article of association of the company require one
- an alteration to the articles of association
- a change of company name
- reduction of paid up or issued capital
- a sanction of an arrangement between the company and its creditors
- a voluntary winding up
When a resolution alters the articles of association of a company, a copy of the amended document must also be filed at Companies House.
Companies can be owned by shareholders who are geographically far apart. Electronic commerce has transformed the way we conduct business. To keep up with these trends, the 2006 Act provides for written resolutions - that is law-speak for virtual meetings. In other words, a meeting can take place via the Internet, or in any other way. However, what matters is that the business of the meeting is recorded and if necessary, the minutes are filed at Companies House.
A resolution need not be passed only at a meeting. A private company may resolve anything in writing too. (There is one exception: to remove a director or auditor before the end of their term of office). A meeting is not required and no prior notice is necessary. A resolution may be proposed as a written one by the directors or by the members. The company must send the proposed resolution to every eligible member either in hard copy form, in electronic form or by means of a website.
The requirements as to notice and so on, are the same as for a physical meeting.
As we have said, minutes recording the passing of certain resolutions, must be filed at Companies House. When such a resolution is put to the members, it may be put either at a physical meeting or in writing. The company may not opt out of the legal requirement to provide for in writing.
If a proposed resolution affects only one class of shareholders out of two or more, then obviously those who are unaffected have no vote. Such a resolution is a class resolution.
A class resolution is put to a class meeting. That does not mean you have to set up a different meeting physically. It just means that when the chairman has closed one meeting, he opens the next with everyone sitting where they are.