23B.07.040 - Corporate action without meeting.

Corporate action without meeting.

(1)(a) Corporate action required or permitted by this title to be approved by a shareholder vote at a meeting may be approved without a meeting or a vote if either:

     (i) The corporate action is approved by all shareholders entitled to vote on the corporate action; or

     (ii) The corporate action is approved by shareholders holding of record or otherwise entitled to vote in the aggregate not less than the minimum number of votes that would be necessary to approve such corporate action at a meeting at which all shares entitled to vote on the corporate action were present and voted, and at the time the corporate action is approved the corporation is not a public company and is authorized to approve such corporate action under this subsection (1)(a)(ii) by a general or limited authorization contained in its articles of incorporation.

     (b) Corporate action may be approved by shareholders without a meeting or a vote by means of execution of a single consent or multiple counterpart consents by shareholders holding of record or otherwise entitled to vote in the aggregate not less than the minimum number of votes necessary under (a)(i) or (ii) of this subsection. Any such shareholder consent must: (i) Be in the form of an executed record; (ii) indicate the date of execution of the consent by each shareholder who executes it, which date must be on or after the applicable record date determined in accordance with subsection (2) of this section; (iii) describe the corporate action being approved; (iv) when delivered to each shareholder for execution, include or be accompanied by the same material that would have been required by this title to be delivered to shareholders in or accompanying a notice of meeting at which the proposed corporate action would have been submitted for shareholder approval; and (v) be delivered to the corporation for inclusion in the minutes or filing with the corporate records in accordance with subsection (4) of this section. A shareholder may withdraw an executed shareholder consent by delivering a notice of withdrawal in the form of an executed record to the corporation prior to the time when shareholder consents sufficient to approve the corporate action have been delivered to the corporation.

     (2) The record date for determining shareholders entitled to approve a corporate action without a meeting may be fixed under RCW 23B.07.030 or 23B.07.070, but if not so fixed shall be the date of execution indicated on the earliest dated shareholder consent executed under subsection (1) of this section, even though such shareholder consent may not have been delivered to the corporation on that date.

     (3)(a) Notice that shareholder consents are being sought under subsection (1)(a) of this section shall be given, by the corporation or by another person soliciting such consents, on or promptly after the record date, to all shareholders entitled to vote on the record date who have not yet executed the shareholder consent and, if this title would otherwise require that notice of a meeting of shareholders to consider the proposed corporate action be given to nonvoting shareholders, to all nonvoting shareholders as of the record date. Notice given under this subsection (3)(a) shall include or be accompanied by the same information required to be included in or to accompany the shareholder consent under subsection (1)(b)(iii) and (iv) of this section.

     (b) Notice that sufficient shareholder consents have been executed to approve the proposed corporate action under either of subsection (1)(a)(i) or (ii) of this section shall be given by the corporation, promptly after delivery to the corporation of shareholder consents sufficient to approve the corporate action in accordance with subsection (4) of this section, to all shareholders entitled to vote on the record date and, if this title would otherwise require that notice of a meeting of shareholders to consider the proposed corporate action be given to nonvoting shareholders, to all nonvoting shareholders as of the record date.

     (4) Unless the consent executed by shareholders specifies a later effective date, shareholder approval obtained under this section is effective when: (a) Executed shareholder consents sufficient to approve the proposed corporate action have been delivered to the corporation, either at an address designated by the corporation for delivery of such shareholder consents or at the corporation's registered office, or to such electronic address, location, or system as the corporation may have designated for delivery of such shareholder consents; and (b) any period of advance notice required by the corporation's articles of incorporation to be given to any nonconsenting shareholders has been satisfied. Executed shareholder consents are not effective to approve a proposed corporate action unless, within sixty days after the date of the earliest dated shareholder consent delivered to the corporation, consents executed by a sufficient number of shareholders to approve the corporate action are delivered to the corporation.

     (5) Approval of corporate action by execution of shareholder consents under this section has the effect of a meeting vote and may be described as such in any record, except that, if the corporate action requires the filing of a certificate under any other section of this title, the certificate so filed shall state, in lieu of any statement required by that section concerning any vote of shareholders, that shareholder approval has been obtained in accordance with this section and that notice to any nonconsenting shareholders has been given to the extent required by this section.

[2009 c 189 § 14; 2002 c 297 § 23; 1997 c 19 § 2; 1991 c 72 § 33; 1989 c 165 § 63.]