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Alex J.
Alex J., Litigator
Category: UK Law
Satisfied Customers: 3629
Experience:  LLB, LPC, DELF
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I have just started work with a Charity, Limited by

Customer Question

I have just started work with a Charity, Limited by Guarantee.
There is a Trustee who was aged 70 as at the date of their last AGM, in May 2015.
Their Articles require that he is re-elected annually at the AGM, once he is 70.
This did not happen, how do I rectify this problem?
Do I need to call a General Meeting and pass an Ordinary Resolution?
Thanks
Submitted: 1 year ago.
Category: UK Law
Expert:  Alex J. replied 1 year ago.

Hi, Thank you for your question and welcome. My name is ***** ***** I will assist you. Are you a director of the company as well? Does the company have Table A articles of association? Kind regards AJ

Customer: replied 1 year ago.
Hi
No, I am not a Company Director, I am taking on their Company Secretary role.The Articles make no reference to Table A.The clause I am looking at is:
A person ceases to be a Trustee if:
44.1 that person reaches his or her 70th birthday, in which case he or she shall retire from office at the end of the annual general meeting following attainment of such age. However, the Trustees may resolve to re-appoint that person (if willing to act) to continue in office until the next following annual general meeting, and may, thereafter, on an annual and ongoing basis, resolve to re-appoint that person to continue in office for a further term of one year. Any person re-appointed by the Trustees under this provision shall not be subject to the retirement by rotation provisions under Article 38;
Expert:  Alex J. replied 1 year ago.

Hi, Thank you. Do you actually want to re appoint this person or simply just ensure that due process has been complied with? Kind regards AJ

Customer: replied 1 year ago.
HiWe want to retain this Trustee, in fact he has attended a Board meeting since the AGM.
Expert:  Alex J. replied 1 year ago.

Hi, Thank you. A breach of the articles of this nature does not cause any substantive issues for the company. The most straight forward way to deal with this, is to either (i) Simply ratify the appointment of this trustee at the next board meeting by passing a board resolution or (ii) You can follow the formal process of calling an EGM, on 28 days notice, in order to have the board acknowledge that the articles were not complied with, simply to then comply with the provision detailed in the articles. Are the directors available to attend a board meeting at short notice? And will the appointment of this trustee be unanimously approved? Kind regards AJ

Customer: replied 1 year ago.
We have a Board meeting in 2 weeks, so I think the easiest way to correct this is to ratify his appointment.
Is this in effect a new appointment or a continuation of his existing role?
Do I need to minute in such a way that refers to the failure at the AGM?
Do I need to let the members know that this has happened and how we are correcting it?
Thanks
Expert:  Alex J. replied 1 year ago.

Hi, Thank you. Will the members object to what has happened?

Customer: replied 1 year ago.
I don't think the members will object but what do I need to do to ensure this does not happen?
Is it the EGM option?
Expert:  Alex J. replied 1 year ago.

Hi, Thank you. In order to be safe and ensure you are not criticised in the future, I would call an EGM and get the members to ratify the actions of the board i.e not requiring this trustee to resign and allowing him to continue as a trustee until the next AGM. How many members are there?

Customer: replied 1 year ago.
There are approx. 60 members. I will send them a proxy form, with 14 days notice, and have an EGM with a postal vote. I assume this would be an ordinary resolution, passed by majority vote. Can I insist on a postal vote rather than members arriving in person?
Expert:  Alex J. replied 1 year ago.

Hi, Thank you. You can send them a written resolution for them to sign and return ratifying this trustees continuing office. They will have to sign and return it within 28 days (or at least 31 of them would). As this relates to an appointment, an ordinary resolution is fine. Kind regards AJ

Customer: replied 1 year ago.
Thanks.
I am meeting my Chairman on Wednesday and will discuss these 2 options with him.
If this raises any other questions I will get back to you then.
Thanks, Denise
Expert:  Alex J. replied 1 year ago.

No problem. I look forward to hearing from you. Kind regards AJ

Customer: replied 1 year ago.
Hi
Am still a bit confused could you please clarify something for me - does the Companies Act require a Director, aged 70 or over, to be re-appointed, by the members, at the AGM on an annual basis?The Article that I send earlier suggests that a Director aged 70+ would retire at the AGM, then be re-elected by Trustees (NOT MEMBERS) - meaning that the Members would not be able to vote him off the Board.Thanks, Denise
Expert:  Alex J. replied 1 year ago.

Hi. Thank you. The companies act does not require directors to retire at 70. Are the trustees not members of the company as well?

Customer: replied 1 year ago.
Thanks.
So this means:
So our Articles mean that a Trustee, aged over 70, will retire each year after the AGM and then be re-elected by Trustees, the other members do not have a vote.
Expert:  Alex J. replied 1 year ago.

Hi thank you - if the articles say the trustees can reflect him then that is fine. If he chooses to articles and not retire then he should ask the Members (not the trustees) to ratify such an action. In any event it seems unnecessary not to go through the process of retiring if the trustees will relect him any event, as it will just create extra administration for the company. Kind regards AJ

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