Appointing a New Director

A_TV_WATCHER

Hi,

Is appoint a new director to an existing company (i.e. non the original 'new' directors on incorporation or replacing a retiring one .. basically if there was a spare seat on the board) an ordinary or special resolution based on the standard companies act(s) article/memo tables ?

I see that all business at an AGM is special other than ... appointing directors replacing directors retiring by rotation ... so I'd have thought that made it a special resolution but reading some OCDE publications they state that a new director (as above) is an ordinary resolution. Does the article re. 'the company in general meeting shall have the power from time to time to appoint additional directors or reduce the number of directors' give the right for an ordinary resolution or is there something else that defines ?

Farcear

Ordinary resolution.

You can check exactly what the procedure is. Standard memo and arts are here: http://www.irishstatutebook.ie/1963/en/act/pub/0033/sched1.html#sched1

A_TV_WATCHER

farcear.. thanks for the reply,
I've read the schedules but I can't see where it is specified..

53. All business shall be deemed special that is transacted at an extraordinary general meeting, and also all that is transacted at an annual general meeting, with the exception of declaring a dividend, the consideration of the accounts, balance sheets and the reports of the directors and auditors, the election of directors in the place of those retiring, the re-appointment of the retiring auditors and the fixing of the remuneration of the auditors.

From above i'd have thought a new director to a vacant seat is an S/R ?

Thanks

Farcear

A_TV_WATCHER wrote: »

farcear.. thanks for the reply,
I've read the schedules but I can't see where it is specified..

53. All business shall be deemed special that is transacted at an extraordinary general meeting, and also all that is transacted at an annual general meeting, with the exception of declaring a dividend, the consideration of the accounts, balance sheets and the reports of the directors and auditors, the election of directors in the place of those retiring, the re-appointment of the retiring auditors and the fixing of the remuneration of the auditors.

From above i'd have thought a new director to a vacant seat is an S/R ?

Thanks

"with the exception of" -> so replacing directors is just ord. res.

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If the spare seat arises because one director died, for example, then the board itself can fill that vacancy until the next AGM --

98. The directors shall have power at any time and from time to time to appoint any person to be a director, either to fill a casual vacancy or as an addition to the existing directors, but so that the total number of directors shall not at any time exceed the number fixed in accordance with these regulations. Any director so appointed shall hold office only until the next following annual general meeting, and shall then be eligible for re-election but shall not be taken into account in determining the directors who are to retire by rotation at such meeting.

A_TV_WATCHER

Hi Farcear,

Appreciate the reply,
From my reading it says everything is special in an AGM with the exception of ...
the election of directors in the place of those retiring ...

These seats are vacant so there is no retiring director so would that not be S/R ?

Thanks

A_TV_WATCHER

What does;

97. The company may from time to time by ordinary resolution increase or reduce the number of directors and may also determine in what rotation the increased or reduced number is to go out of office.

mean ?

This is changed in the ones I am looking at (think it's an old set of articles) and states;

The company in general meeting shall have the power from time to time and at any time to appoint additional directors, or reduce the number of directors.

Would this imply an O/R for appointments ?

Thanks

Farcear

A_TV_WATCHER wrote: »

These seats are vacant so there is no retiring director so would that not be S/R ?

Thanks

As a matter of practice, directors would almost certainly use their own power to coop someone onto the board (per Art 98 above).

However, if they didn't, the members of a company have a specific power to appoint Directors by ordinary resolution under Article 100:

100. The company may, by ordinary resolution, appoint another person in place of a director removed from office under regulation 99 and without prejudice to the powers of the directors under regulation 98 the company in general meeting may appoint any person to be a director either to fill a casual vacancy or as an additional director. A person appointed in place of a director so removed or to fill such a vacancy shall be subject to retirement at the same time as if he had become a director on the day on which the director in whose place he is appointed was last elected a director.

(On further reflection, in theory, I suppose it could be done by special resolution if: (i) it was an additional item at the AGM; and (ii) the shareholders for whatever reason decided not to invoke their power under Article 100. Can't see how/why this would happen in reality but an interesting thought experiment. )

A_TV_WATCHER wrote: »

What does;

97. The company may from time to time by ordinary resolution increase or reduce the number of directors and may also determine in what rotation the increased or reduced number is to go out of office.

mean ?

This is changed in the ones I am looking at (think it's an old set of articles) and states;

The company in general meeting shall have the power from time to time and at any time to appoint additional directors, or reduce the number of directors.

Would this imply an O/R for appointments ?

Thanks

It doesn't imply anything.

The number of directors is limited by the constitutional documents. This power allows the number to be increased. The newly created vacancy can then be filled by the directors exercising their power (as above) or the shareholders under art 100.

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Special Resolutions are generally for serious things like: (i) winding up the company; (ii) amending the company's constitutional documents.

A_TV_WATCHER

Hi,

Thanks for the reply again,

If there is no director retiring or the director retired in a previous year would the same apply ?

Basically the seat was created by increasing the number of directors permitted under the articles.

Thanks