COMMENT

Source: 1984 Model Act § 8.21, amendment proposed, 56 Bus. Law. 85 (2000), adopted, 56 Bus. Law. 875 (2001).

Note to 2016 Amendment This Note to 2016 Amendment supersedes and replaces the Comment to Code Section 14-2-821 and the Note to 2004 Amendment. The 2016 amendments to Code Section 14-2-821, which were adopted for purposes of conformity with the Model Act, include revisions designed to simplify the language and for purposes of conformity with the definitions of "sign," "deliver," and "electronic transmission" set forth in Code Sections 14-2-140(29), (5), and (9), respectively that were amended or adopted in 2004. Subsection (a) was revised to clarify that while the articles or bylaws may require that some or all actions by the board of directors be taken at a meeting, action taken without a meeting by consent must be unanimous. A new subsection (b) was added to clarify the effect of a revocation of a consent by a director. A new subsection (c) was added to clarify that action taken by consent in lieu of a meeting becomes the act of the board of directors when one or more consents signed by all of the directors are delivered to the corporation.

The power of the board of directors to act unanimously without a meeting is based on the pragmatic consideration that in many situations a formal meeting is a waste of time. And, of course, if there is only a single director (as is permitted by Section 14-2-803), a written consent is the natural method of signifying director action. Consent may be signified on one or more documents if desirable and or by electronic transmission. The consent document may specify the time at which the action taken thereunder is to become effective.

The reference in the prior version subsection (a) to the inclusion of consent in the minutes or filing with the corporate records was deleted as creating unintended doubt as to whether such inclusion or filing was a prerequisite to the validity of the action taken. The deletion of this language does not affect the obligation of the corporation set forth in Section 14-2-1601(a) to keep as permanent records a record of all actions taken by the board of directors without a meeting.

Subsection (b) follows the Model Act and makes clear that a director may revoke his or her consent prior to the delivery to the corporation of unrevoked written consents signed by all the directors. This is consistent with the recognition by Section 14-2-704(d) that shareholders have a similar authority to revoke written consents with respect to shareholder action.

Cross-References Articles of incorporation, see § 14-2-202 and Article 10, Part 1. Bylaws, see § 14-2-206 and Article 10, Part 2. "Notice" defined, see § 14-2-141. Notice of meeting, see § 14-2-822. Waiver of meeting notice, see § 14-2-823.

JUDICIAL DECISIONS

RESEARCH REFERENCES