The importance of Proxy and its format
Yasapala Karunasinghe Attorney-at-Law
Although many a workshop, Seminar, Group Discussion etc was held on
the aftermath of the implementation of the new Companies Act, No. 7 of
2007 (from 03. 05. 2007) an important topic that has escaped the
attention of the specialists in Company Law is the proper format of the
Proxy Form used at the meetings, Annual, Extraordinary etc., of public
companies.
The word proxy connotes:
a) one who is appointed to represent another, and
b) the instrument making such an appointment.
A shareholder is entitled to appoint another person as his proxy to
attend and vote and speak (if specified) at the aforesaid meetings of a
company.
This term is also used in civil litigation where a party appoints a
lawyer to represent him in Court and the specimen form is specified in
the Civil Procedure Code. The holder of a Power of Attorney (General or
Special) is a recognised agent in litigation.
The specimen form of the instrument of proxy for company purposes has
a history:
a) Companies Ordinance No. 51 of 1938 in its First Schedule, Table A.
Regulation 61 states: An instrument appointing a proxy may be in the
following form or any other form which the directors shall approve’.
(The format is not reproduced for reasons of space).
b) Companies Act No. 17 of 1982 effective - from 02 - 07 1982 which
repealed the Ordinance had in its first schedule Table A, Rule 71:
An instrument appointing a proxy shall be in the following form or a
form as near thereto as circumstances permit’ (Format not reproduced). -
this is for the proxy to attend and vote.
Rule 72:
‘Where it is desired to afford members and opportunity of voting for
or against a resolution and/ or to speak at the meeting the instrument
appointing proxy shall be in the following form or a form as near
thereto as circumstances permit’ (Format not reproduced).
- this is for the proxy to attend, vote and speak which is called:
two-way proxy.
c) Companies Act No. 17 of 1982 was repealed by Act No. 7 of 2007
effective from 03 05 2007 and its First Schedule - Model Articles, does
not prescribe the format as in the earlier enactments. Reference to
proxies is in Article 11 in a general way.
Now let us examine the format used by companies to see whether the
formulation set out by the legislature is observed in the correct
spirit. In most companies well known and recognised as leaders of the
commercial world there is compliance while others for dubious reasons do
not comply.
They appear to be reluctant to change even after the flaw is
highlighted. In the proper design of the law, the pride of place in the
instrument shall be given to the proxy holder and not the members of the
board of directors as indulged in by the latter category.
In the best practice, the proxy’s name appears first followed by the
worlds ‘failing whom’ after which the names of the board of directors
appear in the order of precedence also followed by the words ‘failing
whom’ up to the last but one name.
In the alternative, the pride of place is given to the names of the
directors of the Company in order of precedence led by the Chairman and
followed by the words ‘failing whom’ up to the last name of the director
and only then is the precious space for the name of the Proxy, who has
perforce been relegated to the last position. This design literally
means that the proxy will be able to exercise his vote only if all the
directors had ‘failed to vote’.
It has been said that the proxy must be in the form settled by the
Articles of Association and that the names of directors may be listed
provided they are acting in good faith in the best interests of the
company, treating all members alike. The underlying principle is to
maintain transparency in related-party transactions.
But does the investor in shares be it on an initial offer on a
Prospectus or in the secondary market at the bourse have easy access to
the Articles of Association? The answer is: ‘No’. To prevent abusive
inter-party transactions the shareholders have to be vigilant, combative
and expressive of their views using their votes negatively. This can be
done only if the proxy form is in the proper format, as in the first
instance mentioned above.
The book titled ‘Principles of Modern Company Law, 1979 by CD Gower
at pp. 538/9, quoted by IG Jayasuriya in his ‘Guide to companies Act of
1982 - Vol 2’ at p.219 states; “although proxy voting gave appearance of
democratic freedom, this appearance was often deceptive and in reality
the practice helped to enhance the dictatorship of the board... two-way
proxies were a practical move towards giving greater reality to the
central by the shareholders over the directors.’
In order that the interests of the minority shareholders may be
protected, the proscription and compulsory use of the proper format of
proxy form should receive the urgent attention of relevant authorities.
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