1. MANAGEMENT OF MEETINGS
THE ROLE OF ICT IN THE MANAGEMENT OF MEETINGS AND EMERGING ISSUES
CS. Kennedy M. Ontiti

3. SCOPE OF THIS PRESENTATION
The role of ICT in the Management of:
Board and Board Committee meetings;
General Meetings.

4. PROVISIONS OF THE COMPANIES ACT, 2015
Definition of address includes and electronic address for receiving information and documents. There are also definitions for “electronic address”, “electronic copy”, “electronic form”, “electronic means” etc.;
Members’ resolutions can be circulated and agreed to electronically (Part XIII);
Notice of General Meeting may be given electronically or published on website (Sec. 282 and 283);

5. PROVISIONS OF THE COMPANIES ACT, 2015 CONT.
Documents or information relating to General Meetings may be circulated electronically (Sec. 307);
Documents or information sent electronically deemed to be received 48 hours after sending , when published on website or when notice of publication is received or taken to have been received (Sec. 1016);
Seventh Schedule of Companies (General) Regulations 2015 covers electronic communication and use of the company’s website.

6. PROVISIONS OF THE COMPANIES ACT, 2015 CONT.
Notice of directors’ meeting need not be in writing [Article 9 (3) – Model Articles for private companies limited by shares];
Director participates in meeting when:
Meeting is convened and takes place in accordance with the Company’s Articles;
The director can communicate to the other directors on the business of the meeting; [Article 10 (1)– Model Articles for private companies limited by shares]

7. PROVISIONS OF THE COMPANIES ACT, 2015 CONT.
In determining whether a director is participating in a director’s meeting, it is irrelevant where the director and the other directors are located and how they communicate with each other [Article 10 (2)– Model Articles for private companies limited by shares];
Meeting regarded as taking place in whatever place any one of them is located [Article 10 (3)– Model Articles for private companies limited by shares]

8. PROVISIONS OF THE COMPANIES ACT, 2015 CONT.
In determining attendance at General Meeting, it is immaterial whether any two or more members attending are in the same place as each other [Article 38 (4)– Model Articles for private companies limited by shares]
Persons not in the same place as each other attend a General Meeting if their circumstances are such that if they have rights to speak and vote, they are able to exercise them [Article 38 (5)– Model Articles for private companies limited by shares]
Model Articles for Public Companies Limited by shares have more or less similar provisions.

9. CASE LAW
[Byng vs London Life (1990) 1 Ch 170] A shareholders’ meeting would be properly constituted where there were fully functional mutual audio visual links between the members of a company.
[Wagner vs International Health Promotions (1994) 12 ACLC 986] – Australian Appellate Court concluded that even where the articles only provide for directors to meet for the dispatch of business (and do not make provision for meetings to be held over the telephone or by audio-visual equipment), there is no necessity for directors physically to gather together, unless the articles specifically prohibit meetings held in any other way.

10. BEST PRACTICE IN HOLDING MEETINGS BY TELE OR VIDEO CONFERENCE
Company Secretary should ensure that the Company is authorized to hold meetings in this way;
An avenue can be availed for directors or members not able to attend to submit opinions, comments and votes;
Articles should be clear on where meeting is deemed to take place; Where Chairman is or where a majority of directors are? A common reason for attention to this detail is that some countries asses tax eligibility of a company if management and control is exercised within that country.

11. BEST PRACTICE IN HOLDING MEETINGS BY TELE OR VIDEO CONFERENCE CONT.
If the Articles are not clear on where the meeting is deemed to take place, the “seat” of the meeting should be where there is a quorum with the other directors being described as having joined via a tele or video link. If there is no quorum in any one place, the minutes should state that the meeting was conducted by conference call in accordance with the relevant Article of the Company.
Preferably, there should be a quorum where the Chairman is and if not possible, where a majority of the directors are so that if there is a problem with the link affecting one of the participants, the meeting is not adjourned for lack of quorum;

12. BEST PRACTICE IN HOLDING MEETINGS BY TELE OR VIDEO CONFERENCE CONT.
The quorum should be a disinterested one. Also take into account the possibility that the disinterested directors may be the ones joining the meeting via a tele or video link and if there is a problem with the link(s), it may pose a challenge in passing resolutions.
Occasionally one may find him/herself the secretary of a company with unusual quorum requirements eg. in the case of a JV company where you may have “A”, “B” and perhaps even “C” class directors. These should be strictly observed.

13. BEST PRACTICE IN HOLDING MEETINGS BY TELE OR VIDEO CONFERENCE CONT.
There should be a mechanism in which matters subjected to a vote are determined eg. the Chairman could go round asking each director whether they are for or against a certain resolution or he could ask one director to count the show of hands in each location;
Can Board meetings or members meetings be held by , google chat or whatsapp?;
It is good practice to ratify the decisions of a meeting held by teleconference in a subsequent meeting of directors or members.

14. BEST PRACTICE IN HOLDING MEETINGS BY TELE OR VIDEO CONFERENCE CONT.
Although the substantive provisions of the Companies Act are silent on notice of directors meeting and the Model Articles envision that notice can be oral, it is good practice to ensure that proper notice is given through a medium where receipt can be acknowledged or confirmed to avoid the risk of a director claiming he did not receive notice. Articles on deemed receipt of notice can serve this purpose.
Directors can waive their right to notice and hold a board meeting. A board meeting can be held under informal circumstances but the casual meeting of two directors even at the office of the Company cannot be treated as a Board meeting against the will of the other.

15. BEST PRACTICE IN HOLDING MEETINGS BY TELE OR VIDEO CONFERENCE CONT.

16. GROUP WORK
DRAFT AN ARTICLE ENABLING A BOARD MEETING TO BE HELD BY TELEPHONE OR VIDEO CONFERENCE CALL

17. EXAMPLES OF ARTICLES ENABLING MEETING TO BE HELD BY TELE OR VIDEO CONFERENCE
“A meeting of the directors or of a committee of the board may consist of a conference between directors and any alternate directors who are not all in one place, but each of whom is able (directly or by telephonic communication) to speak to each of the others, and to be heard by each of the others simultaneously. A director or an alternate director taking part in such conference shall be deemed to be present in person at the meeting and shall be entitled to vote or be counted in a quorum accordingly. Such a meeting shall be deemed to take place where the largest group of those participating in the conference is assembled, or, where there is no such group, where the chairman of the meeting then is. The word meeting in these articles shall be construed accordingly”

18. THE END