Shareholder consent in lieu of meeting

The threshold matters

Shareholder consent rules differ sharply by jurisdiction, and confusing them is a common source of invalid corporate actions. Under DGCL § 228, a majority of voting shares can act by written consent unless the certificate of incorporation explicitly forbids it. Under the Canada Business Corporations Act s. 142, written resolutions of shareholders require unanimous signature, no exceptions. The UK Companies Act 2006 permits ordinary (50%+) or special (75%) written resolutions depending on the matter under decision.

The practical consequence: a Delaware-style majority written consent that would be valid in Wilmington is invalid in Ontario. Counsel drafting cross-border resolutions needs to know which statute governs.

Common shareholder consent items

Shareholders are asked to consent to actions that statute or the bylaws reserve to them. The most common items:

• Election or removal of directors
• Approval of articles of amendment (name change, share-structure change, transfer restrictions)
• Approval of fundamental changes (merger, amalgamation, continuance, sale of substantially all assets)
• Adoption or amendment of bylaws, where the bylaws reserve that to shareholders
• Ratification of director or officer actions, especially after the fact
• Approval of stock plans and equity incentive plans

What goes in the consent document

A clean shareholder consent includes the date, recitals establishing the facts, the operative resolutions, and signatures of the consenting shareholders showing the number and class of shares each one holds at the record date. Where unanimous consent is required, the absence of any signature voids the consent entirely. Where majority consent is permitted, the consent should track the votes carefully so that the threshold is provable from the face of the document.