The day to day management and operation of a business is the responsibility of the directors in a company. In a proprietary (or private) company, the Shareholders own the company and appoint the directors. All of the directors collectively make up the company’s board. When decisions need to be made on behalf of the company, the directors must pass different kinds of board resolutions. The different types depend on the seriousness of the decision. This article gives you a comprehensive look at these resolutions and how they work.

Who Can Make A Resolution?

Before a company can make a decision on a matter, it needs to know whether the issue is something that needs to be considered by the board of directors or by the shareholders. The company’s constitution and the shareholders agreement should be able to give you guidance on this matter, and it’s, therefore, important you carefully consider the kinds of issues that require voting through a resolution when drafting these documents. The Corporations Act 2001 (Cth) sets out the specific matters that require certain types of resolutions, such as the requirement that a special resolution is passed (with at least 75% of the votes) to change the name of the company. Make yourself familiar with the kinds of resolutions required by Corporations Act for certain matters and how they might apply to your business.

What are Board Resolutions?

A board resolution or a directors resolution is a formal decision of the directors of a company. You must follow all the procedural requirements before, during and after a board meeting for a decision to be effective.  

Where are Board Resolutions Held?

At a board meeting, a board resolution may pass. Generally speaking, the board will meet at least once a year to vote on important issues. However, in practice, this usually occurs more often. Any director may call a board meeting by giving reasonable notice of the meeting to the other directors. It is typical for the director calling a meeting to set out an agenda so the other directors can prepare.

Provided that the board consents to a meeting, a board meeting may be held in person or using technology (including telephone, video or audiovisual communication such as Skype).  For a board meeting to be valid, a minimum number of directors will need to be present. This is known as a quorum.

The directors may elect one of the directors to chair the meeting. The chair will be responsible for the smooth running of the board meeting and properly record all procedural matters. Depending on the company, the chair may also have a casting vote. This happens if an even number of directors vote for and against a particular matter. The company’s constitution or shareholders’ agreement will normally set out the procedural matters required for an effective and valid board meeting.  

How are Board Resolutions Held?

When deciding what matters are put before the board of directors, each director normally has one vote. For the board to pass a particular matter, it will need to consider what type of resolution (or decision) needs to be used.

There are three different types of board resolutions:

Ordinary Resolution

An Ordinary Resolution is the agreement of just over half (50%) of the directors present at the board meeting.

For example, if there are ten directors, you will need the agreement of at least six directors for the matter to be decided favourably.

Special Resolution

A Special Resolution is the agreement of more than half, usually 75% of the directors present at the meeting. This percentage is, of course, negotiable and will depend on the terms of the company’s constitution and shareholders’ agreement.

For example, if there are ten directors, you will need to agree with at least eight directors for the matter to be passed through a special resolution.

Unanimous Resolution

A Unanimous Resolution is the agreement of all of the directors present at a board meeting.  That is 100% of the directors present will need to be in favour of the particular matter for it to pass.  A straight 10 out of 10 of the directors eligible to vote. The more directors that are required to vote one way, the harder the matter is to pass.

The terms of the company’s constitution, shareholders agreement or the Corporations Act will determine what type of resolution is required. As a general guide, ordinary resolutions pass the day to day decisions involved in running the company. More serious matters, such as adopting or modifying a company’s constitution will require a special resolution. It is less common to see unanimous resolutions (as this could logistically be tough for a company to make any changes at all).

For example, the board may need a unanimous resolution may in the event of shutting down the company.

When are Board Resolutions Decided?

If the board satisfies the general requirements for passing resolutions, a board resolution may pass. General requirements include that:

  1. a properly convened board meeting holds the resolution and at least the minimum number of directors are present to satisfy the quorum requirements;
  2. within one month of the directors meeting, the company’s files contain the resolutions;
  3. a nominated chair of the Board meeting must sign the board minutes at the meeting. 

If the company doesn’t comply with these procedural requirements, the resolution may not be valid.  Therefore, it is important that the company is aware of the requirements that apply.

Key Takeaways

When decisions need to be made on behalf of the company, the directors must pass different kinds of board resolutions. However, understanding the legal requirements of board resolutions can be slightly complex. It is important to understand:

  • that directors make the resolutions;
  • the complexities of board meetings;
  • the types of board resolutions; and
  • when they occur.

If you have any questions about board resolutions, contact LegalVision’s business lawyers on 1300 544 755 or fill out the form on this page.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.

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