Preparing a Notice for a Meeting of the Board of Directors

Regular and special meetings of a corporation's board of directors are usually preceded by a notice to the board (a meeting notice), in accordance with the business laws of your state of incorporation (the State Business Laws). In addition to your State Business Laws, the meeting notice must also comply with your company's organizational documents, namely its articles of incorporation (called a certificate of incorporation in some states) and bylaws. Your company's secretary — or whomever else is authorized in your company's bylaws (the responsible officer) — should be tasked with properly delivering the meeting notice to the directors.

Scheduling Meetings

Before it becomes necessary to deliver a meeting notice to the board, the responsible officer must first schedule the meeting. Before scheduling a date, time, and place for the meeting, the responsible officer should confirm that at least a quorum of directors will be available to attend. Without a quorum present, the board is prohibited from conducting any business at a meeting, and the meeting must be immediately adjourned.

For regular meetings, the responsible officer can prepare a proposed calendar for board meetings to be held during the upcoming year and then submit the calendar to the directors for comment or approval. Once the final calendar has been confirmed, the responsible officer can distribute it to the board members so that they can enter the relevant dates on their personal itineraries. This way, even if the responsible officer fails (for whatever reason) to deliver either a reminder or a formal meeting notice to the directors prior to each individual meeting, the directors will have at least been made aware of the meetings at some point.

In contrast, special meetings (by definition) are typically scheduled randomly and with little forewarning. As such, it's difficult — if not impossible — to schedule special meetings in advance.

Notice Requirements

Based on your State Business Laws, it is likely that the required statutory notice for regular meetings differs from the requisite notice for special meetings. For example, because regular meetings are planned well ahead of time, it's possible that regular meeting notices are optional, while special meeting notices usually have specified minimum delivery requirements, such as at least two days' in advance of the meeting. Note that even if your State Business Laws don't require your company to give notice for either special or regular meetings, the responsible officer always has the option of delivering a meeting reminder rather than a formal meeting notice. This gesture can be helpful to board members and is good practice, particularly if there is something controversial or important on the meeting agenda. You don't want to leave any board action open to challenge later based on invalid notice claims by board members.

Most State Business Laws allow directors to waive notice either by attending the meeting or by doing so in writing before or after the meeting. Furthermore, it's common for State Business Laws to provide that attendance at a meeting indicates a director's waiver of all aspects of how the meeting was called or convened — including the day, time, place, and purpose of the meeting — unless the director expresses an objection either at the start of the meeting or upon arrival.

In addition to your State Business Laws, your meeting notices must also comply with your corporation's bylaws, which will likely include rules for:

• whether a meeting notice is required (and for which type of meeting)
• how many days in advance notices must be given
• the proper method of delivery (mail, email, telephone, or other means), and
• waiver of notice.

Furthermore, it is standard for the responsible officer to include with the meeting notice any materials that the company plans on distributing to the board for their review in advance of a meeting. This provides the directors with 100% clarity regarding the purposes for which the meeting is being called.

Meeting Location

Your meeting notice can designate any location for the meeting, so long as it's permissible under both your company's State Business Laws and bylaws. For the sake of predictability and consistency, many companies designate either their company's headquarters or some other specified location to be the default venue for all director meetings. Sometimes companies deviate from this practice in connection with their annual stockholders meeting, which might take place at a different location. In these cases, for the sake of expense and efficiency, it often makes sense for the board to hold their scheduled meeting at the same place, particularly given the probability that some or all of the board members might also be shareholders.

Agenda Items

The meeting notice should list each item that will be discussed or voted upon at the meeting. One of the first agenda items is usually the approval of the minutes from the prior board meeting (see How to Prepare Minutes for Board Meetings). It's usually a good idea to include as the final agenda item that the board will transact any other business that properly comes before the meeting. That way the board can properly consider and act on anything that comes up at the meeting.

Remote Communication

Most (if not all) State Business Laws permit directors to participate in meetings by remote communication. This means that rather than attending the meeting in person, any board member can instead join by video conference, speakerphone, or some other medium, so long as they can actively listen to the proceedings and comment or vote thereon. Note that your company's bylaws might also provide specific rules with respect to remote participation.

Signature of an Authorized Officer and Recordkeeping

Either you or your legal counsel should review your company's State Business Laws and bylaws to determine whether or not meeting notices must be executed by an authorized officer. In any case, best record keeping practices dictate that the responsible officer should sign the meeting notice because doing so indicates who prepared the minutes and also gives the directors a point person to contact if they have any questions. The responsible officer should also keep a copy of the final meeting notice in the company's minute book, together with any relevant delivery details.

For a form of meeting notice or waiver of notice, see Nolo's The Corporate Records Handbook.