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Amendment of Act of 2015 - new Part 5A relating to written resolutions
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54. The Act of 2015 is amended by the insertion of the following Part after Part 5:
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“PART 5A
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Written Resolutions
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Unanimous written resolutions
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91A. (1) Notwithstanding any provision to the contrary in this Act, a resolution in writing—
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(a) signed by all the members of an ICAV for the time being entitled to attend and vote on such resolution at a general meeting (or being bodies corporate by their duly appointed representatives) shall be as valid and effective for all purposes as if the resolution had been passed at a general meeting of the ICAV duly convened and held, and
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(b) if described as a special resolution shall be deemed to be a special resolution within the meaning of this Act.
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(2) For the avoidance of doubt, the reference in subsection (1) to a provision to the contrary includes a reference to a provision that stipulates that the ICAV in general meeting, or the members of the ICAV in general meeting, must have passed the resolution concerned.
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(3) A resolution passed in accordance with subsection (1) may consist of several documents in like form each signed by one or more members.
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(4) A resolution passed in accordance with subsection (1) shall be deemed to have been passed at a meeting held on the date on which it was signed by the last member to sign, and, where the resolution states a date as being the date of his or her signature thereof by any member, the statement shall be prima facie evidence that it was signed by him or her on that date.
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(5) If a resolution passed in accordance with subsection (1) is not contemporaneously signed, the ICAV shall notify the members, within 21 days after the date of delivery to it of the documents referred to in subsection (6), of the fact that the resolution has been passed.
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(6) The signatories of a resolution passed in accordance with subsection (1) shall, within 14 days after the date of its passing, procure delivery to the ICAV of the documents constituting the written resolution; without prejudice to the use of the other means of delivery generally permitted by this Act, such delivery may be effected by electronic mail or the use of a facsimile machine.
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(7) The ICAV shall retain those documents as if they constituted the minutes of the proceedings of a general meeting of the ICAV; without prejudice to the requirement (by virtue of section 88(1)) that the terms of the resolution concerned be entered in books kept for the purpose, the requirement under this subsection that the foregoing documents be retained shall be read as requiring those documents to be kept with the foregoing books.
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(8) It is immaterial, as regards the resolution’s validity, whether subsection (5), (6) or (7) is complied with.
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(9) If an ICAV fails to comply with subsection (5), the ICAV and any officer of it who is in default commits a category 4 offence.
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(10) If a signatory fails to take all reasonable steps to procure the delivery to the ICAV, in accordance with subsection (6), of the documents referred to in that subsection, the signatory commits a category 4 offence.
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(11) This section does not apply to—
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(a) a resolution to remove a director, or
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(b) a resolution to effect the removal of an auditor from office, or so as not to continue him or her in office, as mentioned in section 132(1) or 133(1)(b).
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(12) Nothing in this section affects any rule of law as to—
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(a) things done otherwise than by passing a resolution,
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(b) circumstances in which a resolution is or is not treated as having been passed, or
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(c) cases in which a person is precluded from alleging that a resolution has not been duly passed.
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Majority written resolutions
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91B. (1) Notwithstanding any provision to the contrary in this Act, a resolution in writing—
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(a) that is—
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(i) described as being an ordinary resolution, and
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(ii) signed by the requisite majority of members of the ICAV concerned,
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and
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(b) in respect of which the condition specified in subsection (7) is satisfied,
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shall be as valid and effective for all purposes as if the resolution had been passed at a general meeting of the ICAV duly convened and held.
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(2) For the avoidance of doubt, the reference in subsection (1) to a provision to the contrary includes a reference to a provision that stipulates that the ICAV in general meeting, or the members of the ICAV in general meeting, must have passed the resolution concerned.
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(3) In subsection (1) ‘requisite majority of members’ means a member or members who alone or together, at the time of the signing of the resolution concerned, represent more than 50 per cent of the total voting rights of all the members who, at that time, would have the right to attend and vote at a general meeting of the ICAV (or being bodies corporate by their duly appointed representatives).
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(4) Notwithstanding any provision to the contrary in this Act, a resolution in writing—
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(a) that is—
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(i) described as being a special resolution, and
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(ii) signed by the requisite majority of members,
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and
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(b) in respect of which the condition specified in subsection (7) is satisfied,
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shall be as valid and effective for all purposes as if the resolution had been passed at a general meeting of the ICAV duly convened and held.
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(5) For the avoidance of doubt, the reference in subsection (4) to a provision to the contrary includes a reference to a provision that stipulates that the ICAV in general meeting, or the members of the ICAV in general meeting, must have passed the resolution concerned.
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(6) In subsection (4) ‘requisite majority of members’ means a member or members who alone or together, at the time of the signing of the resolution concerned, represent at least 75 per cent of the total voting rights of all the members who, at that time, would have the right to attend and vote at a general meeting of the ICAV (or being bodies corporate by their duly appointed representatives).
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(7) The condition referred to in subsections (1)(b) and (4)(b) is that all members of the ICAV concerned entitled to attend and vote on the resolution referred to in subsection (1) or (4), as the case may be, have been circulated, by the directors or the other person proposing it, with the proposed text of the resolution and an explanation of its main purpose.
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(8) A resolution passed in accordance with subsection (1) or (4) may consist of several documents in like form each signed by one or more members.
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(9) Without prejudice to section 91C(5), a resolution passed—
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(a) in accordance with subsection (1), shall be deemed to have been passed, subject to subsection (10), at a meeting held 7 days after the date on which it was signed by the last member to sign, or
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(b) in accordance with subsection (4), shall be deemed to have been passed, subject to subsection (10), at a meeting held 21 days after the date on which it was signed by the last member to sign,
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and where the resolution states a date as being the date of his or her signature thereof by any member the statement shall be prima facie evidence that it was signed by him or her on that date.
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(10) Without prejudice to section 91C(5), if—
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(a) a date earlier than that referred to in subsection (9)(a) or (b) (not being earlier than the date on which the resolution was signed by the last member to sign) is specified in the resolution referred to in subsection (1) or (4) as the date on which it shall have been deemed to have been passed,
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(b) all members of the ICAV concerned entitled to attend and vote on that resolution state, in a written waiver signed by each of them, that the application of subsection (9) is waived, and
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(c) there accompanies the delivery to the ICAV under subsection (3) of section 91C of the documents referred to in that subsection that written waiver (which may be so delivered to the ICAV by any of the means referred to in that subsection),
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then the resolution shall be deemed to have been passed on the date specified in it.
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(11) A written waiver under subsection (10) may consist of several documents in like form each signed by one or more members.
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Supplemental provisions in relation to section 91B
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91C. (1) Section 91B does not apply to—
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(a) a resolution to remove a director, or
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(b) a resolution to effect the removal of an auditor from office, or so as not to continue him or her in office, as mentioned in section 132(1) or 133(1)(b).
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(2) Within 3 days after the date of the delivery to it of the documents referred to in subsection (3), the ICAV shall notify every member of—
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(a) the fact of the resolution concerned having been signed by the requisite majority of members (within the meaning of section 91B (3) or (6), as the case may be), and
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(b) the date that the resolution will, by virtue of section 91B, be deemed to have been passed.
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(3) The signatories of a resolution passed in accordance with section 91B(1) or (4) shall procure delivery to the ICAV of the documents constituting the written resolution; without prejudice to the use of the other means of delivery generally permitted by this Act, such delivery may be effected by electronic mail or the use of a facsimile machine.
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(4) The ICAV shall retain those documents as if they constituted the minutes of the proceedings of a general meeting of the ICAV; without prejudice to the requirement (by virtue of section 88(1)) that the terms of the resolution concerned be entered in books kept for the purpose, the requirement under this subsection that the foregoing documents be retained shall be read as requiring those documents to be kept with the foregoing books.
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(5) Unless and until subsection (3) is complied with, a resolution passed in accordance with section 91B(1) or (4) shall not have effect; however it is immaterial, as regards the resolution’s validity, whether subsection (2) or (4) is complied with.
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(6) Where subsection (10) of section 91B applies, the reference in subsection (5) to subsection (3) shall be read as including a reference to paragraph (c) of that subsection (10).
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(7) If an ICAV fails to comply with subsection (2), the ICAV and any officer of it who is in default commits a category 4 offence.”.
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