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Do Your Bylaws Make Obtaining Waivers Of Notice More Onerous?

Yesterday’s post concerned waivers of notice of shareholders’ meetings under Section 602 of the California Corporations Code.  Although not required to do so, corporate bylaws often parrot the statute.  One popular guidebook, for example, includes the following sample language concerning waivers of notice:

The transactions of any meeting of shareholders, either annual or special, however called and noticed and wherever held, will be as valid as though they were had at after regular call and notice, if a quorum is present either in person or by proxy, and if each person entitled to vote who was not present in person or by proxy, either before or after the meeting, signs a written waiver of notice or consent to holding the meeting or an approval of the minutes of the meeting.

This form of bylaw closely, but not exactly, follows the statute.  In particular, the bylaw requires that waivers of notice be signed while Section 601(e) requires that the absent person provide a written waiver of notice or consent.

A bylaw provision requiring a signed waiver can give rise to additional issues regarding the validity of shareholder action at a meeting.  A shareholder might, for example, send an email waiving notice of a meeting. The shareholder has provided a written waiver, but has the shareholder signed the waiver?  Section 17 of the Corporations Code, defining a “signature” to include a mark when the signer cannot write, doesn’t tackle email signatures.

Some might question whether an email satisfies the writing requirement of the statute.  However, there should be little room for doubt on this question.  The Corporations Code defines “writing” to include “any form of recorded message capable of comprehension by ordinary visual means”.  Cal. Corp. Code § 8.  Corporations Code Section 195 defines “written” to include facsimile, telegraphic, and other electronic communication when authorized by the Corporations Code.  In enacting Section 195, the Legislature adopted an uncodified statement of intent to meet the requirements of the federal Electronic Signatures in Global and National Commerce Act (aka the “E-Sign Act”), Cal. Stats. ch. 254 (SB 1306) § 1.

If You Think Your Family Is Dysfunctional . . .

Leo Tolstoy opens Anna Karenina with the famous observation “All happy families are alike; each unhappy family is unhappy in its own way.”  The family of the ancient Spartan queen Leda must rank as one of the most uniquely unhappy.  The misery began when Zeus, transformed into a swan, rapes Leda.  She then lays an egg (possibly two).  The result is that she has four children – Helen, Clytemnestra, Castor and Pollux.  Helen marries Menelaus and Clytemnestra marries Menelaus’ brother, Agamemnon.  Menelaus and Helen parent a daughter Hermione. Agamemnon and Clytemnestra produce daughters, Iphigenia and Electra, and a son, Orestes.  Helen cuckolds Menelaus and absconds with Paris for Troy.  Agamemnon and Menelaus take off with the Greeks to recover the errant Helen.  Along the way, Agamemnon sacrifices (or possibly not) Iphigenia to get the fleet moving.  Meanwhile, Clytemnestra keeps the home fires burning by bedding Aegisthus, who happens to be Agamemnon’s cousin.  When Agamemnon returns, Clytemnestra kills him in his bath (prefiguring Charlotte Corday and Marat).  Her children, Orestes and Electra, then kill their mother.  Orestes then kills Hermione’s affianced, Neoptolemus, who just happens to be the son of Achilles.  Orestes then marries his first cousin, Hermione.  So here’s the tally of this unhappy family’s crimes:

Rape – Zeus

Filicide or attempted filicide – Agamemnon

Conjugicide – Clytemnestra

Adultery – Helen, Clytemnestra and Aegisthus

Matricide – Orestes and Electra

Murder – Orestes

Incest – Orestes and Hermione

I would think twice before accepting any invitations to Thanksgiving dinner with Leda’s family.

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