Is Nominet's Chair Accurate About Resolution 2?

EGM

Today's article in The Register makes some interesting claims. It says that Nominet's Chair Mark Wood has made statements public regarding the Boards decision to exclude the second resolution from the EGM. I can't see the justification for those statements.

Most of this blog post is based on the accuracy of The Register's article and Kieran McCarthy's reporting. I have no reason to doubt him; I just want to put that caveat in place.

The Major Issue

We have unequivocal advice that the second resolution, seeking to designate Sir Michael Lyons and Axel Pawlik as Directors is invalid and cannot be put before members

Chair Mark Wood

I've read the QC's opinion, and I can't see the place where it says that it cannot be put before members. It seems to suggest that Nominet don't need to put it before members (I'm happy to be corrected, I could have missed it). It is disputable that the 2nd resolution is invalid, but it is more worrying if the board is mistakenly propagating that legal advice says that they "Cannot" put it before members.

This is important because it seems to allow those facing removal to claim to members, or to Government, that there is no workable plan, this is of course not true. If there is no workable plan being put before members, it is because Nominet's Board are choosing to withhold that workable plan from members. 

 What Nominet's QC Wrote

18. Accordingly, in my view, resolution (2) is not a valid resolution for the purposes of section 303 of the CA 2006 and the Independent Committee is entitled to disregard it.

Andrew Thornton QC

Clarification or Correction

"Entitled" does not in anyway mean "Cannot" and I think the point is serious enough that the Chairman Mark Wood has to come out and clarify this. It has implications for the rest of the board, the Government, the members, and the company's future. 

Did Nominet's QC tell the board that they "cannot" put the second resolution to the members?

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Comments (2)

This comment was minimized by the moderator on the site

You're getting hung up over the use of the word "entitled". Really, what does it mean to put an invalid resolution to members? "Can" you do that? It follows that the vote on an invalid resolution also invalid no?

This comment was minimized by the moderator on the site

I disagree. I believe there is a duty on all sides to be accurate with what they put before members. I would say the same to the other side if they were not accurate on some of their releases.

If it isn't significant, Mark Wood should have no issues in clarifying this. One infers the board had "no choice" the other infers the board had "a choice". That's a huge difference.

If the second motion passes, but is considered invalid, the 6 remaining members of the board do not need to implement it and can argue it then, against what would probably be, at that point, a clear indication of the will of the membership. That would be their right.

For the reasons I have set out above. There is a major difference in my opinion between "cannot" and "entitled not to".

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