Many companies believe that they can send documents, such as notices and written resolutions, to their shareholders using electronic methods. However, they may not be aware that in order to email shareholders or upload company information to a website, there are various requirements that need to be satisfied before it would be deemed a valid form of communication. Companies should be aware that they will still require their shareholders to provide their consent through manually signing and returning all documents.
To be able to send communications to its shareholders via email, a company will first need to have received consent from each shareholder that email can be used as a means of communication. This consent cannot be obtained by electronic means – it must be by hard copy, and the letter requesting consent is to be sent to the address the shareholder has previously provided to the company. If any shareholder refuses to use this form of communication, the company must not send a request again until one year has passed from the date of the refusal.
If a shareholder does not consent to receiving electronic communications from the company, then emails will not be a valid form of communication between the company and that shareholder.
Going forwards, it may be sensible for the company to ask all new shareholders to sign a consent letter approving email communications upon receiving shares in the company.
A company can only send or supply information to a person via a website if the shareholders have agreed to that method of communication. When requesting permission, the company should make shareholders aware that they have 28 days to respond.
The simplest way for a private company to start using a website to communicate with its shareholders is to pass a resolution, or to amend the company’s articles of association to provide for this. However, unlike with emails, even if specific shareholders do not respond to this request, they will be deemed to have consented to receiving information via the company’s website, if the requisite majority of shareholders approves the request. Public companies must also be aware that using this form of communication must be approved by general meeting.
As a practical point, every time a company sends information via its website, it must notify the shareholders of the presence of the information on the website, details of the website address and how to access the information. The documents or information must be available on the website for certain periods of time, and the company should alert the shareholders as to the time frame.
While a shareholder may have been deemed to have consented to receiving information via the company’s website, it is important to note that the form of notice alerting the shareholder to the presence of such information on the website is subject to the specific consent of a shareholder – i.e. if a shareholder has not expressly consented to receipt of communication by email as outlined above, he must be notified of the presence of information on a website by letter to his registered address.
To communicate with a company’s shareholders using electronic means will require shareholder consent and possible changes to the company’s articles of association. For many companies, having the option to send and supply documents to its shareholders electronically may lead to greater efficiencies, and be a more practical approach to adopt.
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