WRITTEN CONSENT BY SHAREHOLDERS-LESS THAN UNANIMOUS CONSENT NOW AN
OPTION
By Benjamin G. Lenhart
Effective as of January 1, 2002, Oregon corporations have the option of effecting corporate
actions through the written consent of less than all of their shareholders. Before 2002, the
Oregon Business Corporation Act (“OBCA”) provided that shareholder actions without a
meeting required the unanimous written consent of all of a corporation’s shareholders. During
the last session, the Oregon legislature adopted an amendment to the OBCA, bringing Oregon
law into conformity with Delaware, Washington and other states, that permits shareholder action
upon the written consent of less than all of a corporation’s shareholders. The requisite level of
shareholder approval must be at least “the minimum number of votes that would be necessary to
take such action at a meeting at which all shareholders entitled to vote on the action were present
and voted” (i.e., typically a majority, but this may vary if a corporation’s articles of incorporation
impose higher approval requirements).
The statute, as revised, minimizes the time needed to effect corporate actions that are supported
by a majority of a corporation’s shareholders. Previously, corporations that were unable to
obtain consent from every shareholder (regardless of the number of shares held by such
shareholder) had only one option: notice and hold a shareholders meeting. The OBCA requires
at least ten days prior written notice (unless all shareholders agree to waive notice) to hold a
shareholders meeting. Any corporate actions that needed to be taken (for business or other
reasons) in ten days or less were simply delayed or not taken. The revised statute imposes no
minimum time requirement; it only requires that a corporation obtain the consent of a majority
(usually) of a corporation’s shareholders.
A corporation must “opt in” to take advantage of the revised statute. For corporations existing
prior to January 1, 2002, “opting in” means they must amend their articles of incorporation to
specifically permit action by written consent of less than all of their shareholders. Any such an
amendment would require the approval of a majority (or more, if the articles of incorporation so
specify) of a corporation’s shareholders (or, if action is taken by written consent, all of the
shareholders). For corporations formed on or after January 1, 2002, “opting in” means they must
include a provision in their articles of incorporation as originally filed with the Secretary of State
specifically permitting action by written consent of less than all of their shareholders.
Notwithstanding the flexibility the revised statute affords corporations, the rights of a
corporation’s shareholders who do not give written consent remain safeguarded. Corporations
taking action by majority written consent must give written notice of such action to all
shareholders who did not consent (and all non-shareholders, to the extent such notice is required
under the OBCA) “promptly after the action is taken.” Such notice must contain or be
accompanied by the same material the corporation would be required to provide if the
corporation took such action at a shareholders meeting (i.e., notice, a proxy statement-if
appropriate, etc.). In addition, the amended statute preserves the right of a shareholder to dissent
with respect to certain corporate actions. Shareholder action taken by majority written consent
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gives rise to dissenters’ rights to the same extent that shareholder action taken at a meeting gives
rise to dissenters’ rights.
The statute governing written consent by shareholders is codified in Section 60.211 of the
OBCA. If you are interested in additional information regarding this change to Oregon’s
corporate law, or if you would like to discuss whether such a provision might be appropriate for
your company, please contact Jeffrey C. Wolfstone or Benjamin G. Lenhart.
The author of this article, Benjamin G. Lenhart is a corporate attorney experienced with mergers and acquisitions (representing
for acquirors and targets), corporate finance and securities transactions, and representing start-up and emerging growth
companies. mailto:lenhartb@lanepowell.com
For more information on these or other business issues, please contact our Business Lawyers at:
Lane Powell Spears Lubersky LLP
(503) 778-2100 Portland
(206) 223-7000 Seattle
mailto:businesslaw@lanepowell.com
or visit our website at http://www.lanepowell.com
Because of the changing nature of this area of the law and the importance of individual facts, this information is not meant to
provide legal opinions and is not a substitute for the advice of legal counsel.
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