[Foundation-l] Are these "majority consent agreements" even valid?

Ray Saintonge saintonge at telus.net
Tue May 1 20:54:25 UTC 2007

Anthony wrote:

>On 5/1/07, Anthony <wikilegal at inbox.org> wrote:
>>On 5/1/07, Ray Saintonge <saintonge at telus.net> wrote:
>>>"Did not vote" would be ambiguous.  The proper distinction should be
>>>between "abstain" and "absent".  "Absent" in particular states that the
>>>person was not there, and could not participate in the vote even if he
>>>wanted to.
>>That doesn't seem to be the case, though.  From the description
>>provided by Ant, this wasn't a resolution passed by vote during a
>>meeting, but rather it was an open-ended consent agreement.  There was
>>no "there" to be present or absent from.
>>Consent agreements usually have to be unanimous, but apparently
>>Florida law allows for "majority consent agreements", a term which I
>>just made up and has zero Google hits.
>Looking at the Florida law, 617.0821  Action by directors without a meeting:
>"Unless the articles of incorporation or the bylaws provide otherwise,
>action required or permitted by this act to be taken at a board of
>directors' meeting or committee meeting may be taken without a meeting
>if the action is taken by all members of the board or of the
>committee. The action must be evidenced by one or more written
>consents describing the action taken and signed by each director or
>committee member."
>The way I interpret that, the bylaws can provide that such consent
>agreements are not allowed, but it can't provide for consent
>agreements by less than a unanimous vote.
I don't read that into it.  It seems that it outlines a default 
situation for a company that has not paid attention to this.  When inly 
two of seven directors live in the jurisdiction and one of those two is 
frequently on the road travelling, your reading of the provision would 
lead to an absurdity where having proper meetings would be virtually 
impossible without great expense.  The travelling involves more than 
just travelling across the state line from Georgia.  Such expense would 
be even more rediculous if the rule were applied to committees.

>So if you asked me for my not-a-lawyer opinion, this whole majority
>consent stuff isn't proper.  A non-unanimous decision has to be made
>at a meeting, with sufficient notice provided to all board members,
>unless such notice is waived in writing.
"Proper" and "legal" are not synonymous.  I think it's sufficient to 
require that such a consent be a majority of all directors as distinct 
from a majority of only those present at a meeting.


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