THE AGREEMENTS OF THE BOARD OF DIRECTORS IN WRITING AND WITHOUT A MEETING.

The Board of Directors is one of the different forms of management of a company that the partners can choose.

It is a collegiate body, that is, composed of several people, which is responsible for representing the company, and which operates by a majority system. Theoretically, the Board must meet, deliberate and adopt by majority an agreement regarding the management and representation of the company. Through the formula of agreements in writing and without a session This allows the councillors to avoid travelling, to convene meetings, to balance the councillors' agendas and all of this with the guarantee that the signature of all councillors will be included.

In my day-to-day professional practice, I believe that most companies use this system without knowing it, with the Board's deliberations often being held by telephone or email, and once an agreement has been reached, a text is circulated and signed by all the directors. Problems can arise when there is no unanimity, and one of the directors does not agree with the decision, because if an agreement is not regularly adopted, it will always be contestable.

Regulation of the agreements of the Board of Directors in writing and without a meeting, It is specified in article 248.2 of the Capital Companies Law, which tells us that “In a public limited company, voting in writing and without a meeting will only be admitted when no director opposes this procedure.”

The first question that arises is whether the system will be applicable exclusively to public limited companies or also to limited liability companies. Before the Capital Companies Act, these Board agreements without a meeting were permitted for limited companies by analogy with the provisions for public limited companies, since there are no substantial differences between the Board of Directors of the latter and that of limited companies. After the Capital Companies Act, some people think that in limited companies agreements within the Board of Directors in writing and without a meeting are not possible, since the established regulation is only and exclusively for public limited companies, which can use this system even if it is not provided for in the bylaws.

To avoid the doubts expressed, it seems reasonable to provide in the statutes of the limited liability company, this possibility of the Board's agreements in writing and without a meeting, through a clause of the following style, which I expand a little further for the possibility of advice by other non-face-to-face means.

The adoption of agreements in writing and without a meeting will be valid when no Director objects to this procedure.
Any resolutions of the Board of Directors adopted by videoconference or by multiple telephone conference shall be valid provided that none of the Directors objects to this procedure, they have the necessary means to do so, and they mutually recognise each other, which must be expressed in the minutes of the Board meeting and in the certification of the resolutions issued. In such case, the meeting of the Board of Directors shall be considered to be a single meeting and held at the place of the registered office.

Unlike an Ordinary Council, where it is not necessary (in principle) to have an agenda for the meeting, in agreements without a session an agenda must be circulated, that is, a voting proposal, so that each councillor can unequivocally state his or her position.
Normally, the president will be the one to circulate the proposal, collect the votes and make known the result of the proposal. The way in which each director sends the vote will depend on each company, which could regulate it in the statutes or in a Board Regulation. In any case, the essential thing is that a certain will can be demonstrated, and in this matter, sometimes complete certainty is at odds with speed. For this reason, it is difficult to determine which is the best system, since it will surely depend on the content of the agreement.
To give a more practical view of the subject, I will provide an example of a written agreement without a session, obtained from the forms of Francis Lefebvre, made by my fellow notaries in Madrid, the Pérez Ramos brothers, hoping that it may be useful to those who have reached my website.

MINUTES OF AGREEMENTS OF THE BOARD OF DIRECTORS OF THE ENTITY“LIMITED LIABILITY COMPANY, SRL”, ADOPTED IN WRITING AND WITHOUT A MEETING

“Name and Surname”, in his capacity as Secretary of the Board of Directors of the entity “Limited Liability Company, LLC”,

I hereby state

1. That, dated "date", the procedure for the adoption of agreements by the Board of Directors was initiated, in writing and without a meeting, through the preparation by the Chairman of the Board of various letters requesting a vote, which, together with a copy, were sent to the respective Directors in the following terms by means of a referral made on "date" by ** with respect to the following Directors:

– “Name and Surname”: to his address, according to the Registry, located at "place", the delivery of the letter being recorded on"date".

2. That the aforementioned letters, with the same content for each Councilor, contained the original and a copy of the following literal wording:

“Recipient Counselor”.

“Address of the addressee”.

“Name and surname”, Chairman of the Board of Directors of the entity “Limited Liability Company, LLC”, hereby requests that “Name and Surname of recipient”, in his capacity as a member of the Board of Directors, cast a vote in writing and without a meeting, in relation to the following literal proposals for agreements:

FIRST PROPOSAL: “text of the proposed agreement”.

VOTE: “For/against/others”

SIGNATURE:

SECOND PROPOSAL: “text of the proposed agreement”.

VOTE: “For/against/others”

SIGNATURE:

Voting shall be carried out by sending a copy of this letter to the registered office, expressing, under the respective signature and in the place indicated for that purpose, the meaning of the vote with respect to each proposed agreement.

To be valid, the vote must be sent by mail, or delivered to the registered office by any other means, within a maximum period of ten days from the date of receipt of this document.

THE EFFECTIVENESS OF THIS PROCEDURE IS SUBJECT TO THE FACT THAT, WITHIN THE MAXIMUM PERIOD INDICATED, NONE OF THE DIRECTORS STATE THEIR OPPOSITION TO IT, WHICH THEY MAY DO IN ANY FORM ACCEPTED BY LAW.

In "place", to "date".

"signature"

Signed: THE PRESIDENT OF THE COUNCIL

3. That none of the Councillors opposed this procedure of voting in writing and without a session.

4. That, after the maximum period for voting has elapsed, the following result is obtained:

– “Name of Counselor”: – Vote in favor of all proposals– Vote in favor of the first proposal, and against the remaining ones– Vote against the first proposal, and blank for the others.– There is no record of him having exercised his right to vote

5. That, as a consequence of the above, they are declared adopted by the BOARD OF DIRECTORS at the registered office, on date "date", date of receipt of the last of the votes cast, the following

Agreements

Agreement First.“content of the agreement”.

Unanimous approval:

It was approved unanimously.

 

Majority approval:

It is approved by an absolute majority.

 

“agreement number”.“content of the agreement”.

And, under the protection and in compliance with the provisions of art. 100 of the Commercial Registry Regulations, I draw up this DEED at the registered office at "date", with the approval of the - President– Vice President.

VºBº THE - PRESIDENT– VICE PRESIDENT “Name and Surname”

HE – SECRETARY– DEPUTY SECRETARY “Name and Surname”