Such steps should include:
- making the notice calling the meeting and the support information on the resolutions to be considered at the general meeting, including the recommendations of the nomination committee, available on the company’s website no later than 21 days prior to the date of the general meeting
- ensuring that the resolutions and supporting information distributed are sufficiently detailed and comprehensive to allow shareholders to form a view on all matters to be considered at the meeting
- setting any deadline for shareholders to give notice of their intention to attend the meeting as close to the date of the meeting as possible
- the board of directors and the person chairing the meeting making appropriate arrangements for the general meeting to vote separately on each candidate nominated for election to the company’s corporate bodies
- ensuring that the members of the board of directors and the nomination committee and the auditor are present at the general meeting
- making arrangements to ensure an independent chairman for the general meeting
Shareholders who cannot attend the meeting in person should be given the opportunity to vote. The company should:
- provide information on the procedure for representation at the meeting through a proxy
- nominate a person who will be available to vote on behalf of shareholders as their proxy
- to the extent possible prepare a form for the appointment of a proxy, which allows separate voting instructions to be given for each matter to be considered by the meeting and for each of the candidates nominated for election.
Notice calling the annual general meeting
The Public Companies Act and the General Meeting Regulations stipulate deadlines for the notice calling a general meeting, the content of the notice and the availability of documents to be considered at the meeting. The Public Companies Act stipulates that at least 21 days’ notice must be given to call a general meeting. The notice calling the meeting must specify the matters to be considered by the meeting, and any proposed amendments to the articles of association must be stated. The General Meeting Regulations stipulate that the documents to be considered by the general meeting must be available on the company’s website no later than the 21st day before the date of the general meeting and up to and including the day the meeting is held. In addition to complying with these legal requirements, the company should also make the recommendations of the election committee available in the same way with the same 21 day deadline.
The General Meeting Regulations stipulate that the notice calling a general meeting and the supporting documents must be made available on the company’s website whether or not the company has taken advantage of the provision in the legislation to make the documents for the meeting available only on the website.
The recommendation that the general meeting should vote separately on each candidate for election applies to the corporate assembly, the board of directors, the nomination committee and any other corporate bodies to which members are elected by the general meeting. The effect of this recommendation is not that voting must always take place in written format.
Participation by shareholders in absentia
The Public Companies Act allows several methods for shareholders to participate in and vote at a general meeting without being present in person. Subject to satisfying the requirements in legislation for the proper and secure conduct of the general meeting, proper control of voting and authentication of the senders of electronic messages, the company should make it possible for shareholders to vote by one or more of the following means as an alternative to voting in person or making their own arrangements to appoint somebody to attend as their proxy:
- appointment of a proxy by electronic means
- participation in a meeting by electronic means, including electronic voting
- subject to the appropriate provisions in the articles of association, allowing shareholders to vote in writing, including by electronic means, during a specified period in advance of the general meeting.
The form provided by the company for shareholders to appoint a proxy should be drawn up so that separate voting instructions can be given for each matter to be considered by the meeting and each of the candidates nominated for election. In addition, it should be made clear either by instructions on the form or by reference to established guidelines how the proxy should vote in the absence of specific voting instructions on one or more matters and in the event of changes to proposed resolutions and new resolutions.
Attendance by the board of directors, nomination committee and auditor
The Public Companies Act stipulates that the chairman of the board of directors and the chairman of the corporate assembly must attend general meetings. Other members of the board are entitled to attend. The general meeting is the main meeting place for shareholders and the officers they elect, and it is therefore appropriate that all members of the board should attend general meetings. Similarly, the auditor should be present. General meetings should be organised in such a way as to facilitate dialogue between shareholders and the officers of the company.
For the same reasons, the members of the nomination committee should attend the annual general meeting in order to present their recommendations and answer any questions.
Chairman of the meeting and minutes
The Public Companies Act stipulates that a general meeting must be declared open by the chairman of the corporate assembly or the chairman of board of directors, or a person nominated by the corporate assembly/board of directors. The general meeting elects a chairman for the meeting. Alternatively, the company’s articles of association may specify who is to chair general meetings. If this is the case, the chairman of the meeting pursuant to the articles of association will also be responsible for declaring the meeting open. In practice, responsibility for resolving any questions in respect of voting rights will fall to whoever declares the meeting open.
The Code of Practice stipulates that the board of directors should make arrangements to ensure an independent chairman for the general meeting. The board should consider how the objective of an independent chairman can best be achieved given the company’s organisation and shareholder structure. It is for the board to decide whether this can best be achieved through provisions incorporated in the articles of association or by arranging for the person responsible for declaring the meeting open to put forward a specific proposal for an independent chairman for the meeting.
The Public Companies Act requires that the minutes of general meetings must be made available for inspection by shareholders at the company’s offices. These minutes must also be made available on the company’s web site no later than 15 days after the date of the general meeting.
|A shareholder is entitled to exercise rights as holder of the shares, including participating in a general meeting, if the shareholding is registered in the register of shareholders or has been reported to the company and documented without this being prevented by any provisions in the articles of association on consent, pre-emption rights in respect of change of ownership or failure to register the shareholding in the share register no later than the relevant record date, cf. Asal. § 4-2 (1), cf. § 5-2. If the company has made provision for a record date requirement in its articles of association pursuant to Asal. § 4-2 (3), this will stipulate a deadline for notifying and exercising ownership of the shares. Asal. § 5-2 also gives shareholders the right to participate through a proxy or adviser. Written and dated powers of attorney can be delivered by electronic means of communication if a satisfactory method is used to authenticate the sender. The notice convening a general meeting of a stock exchange listed company must normally be sent no later than 21 days before the meeting is to be held, unless the articles of association stipulate a longer deadline or the company is entitled to set a shorter deadline, cf. Asal. § 5-11 (b). A meeting called to consider measures adopted by way of the articles of association in respect of a takeover bid is subject to different deadlines for calling the meeting, cf. Vphl. § 6-17. The articles of association may stipulate that shareholders wishing to attend a general meeting must give the company prior notice thereof subject to a deadline that may not be set earlier than five days prior to the meeting, cf. Asal. § 5-3.
The requirements for the content of the notice calling a meeting are set out in Asal. § 5-10, § 5-11b, the Regulation of 6 July 2009 No. 983 (General Meeting Regulations) § 2 and Vphl. § 5-9, second and third paragraphs. The company must make certain information available on its website starting no later than the 21st day before the general meeting is to be held, cf. General Meeting Regulations § 3.
The chairman of the board of directors must be present at a general meeting, cf. Asal. § 5-5. Other members of the board of directors may attend a general meeting. The auditor must attend the general meeting if the business that is to be transacted is of such a nature that his or her attendance must be regarded as necessary, cf. Asal. § 7-5. The general meeting is declared open by the chairman of the board of directors or a person appointed by the board of directors, cf. Asal. § 5-12. If the company has a corporate assembly, the general meeting is declared open by the chairman of the corporate assembly or a person appointed by the corporate assembly. If the articles of association stipulate who shall be chairman of the general meeting, the general meeting is declared open by the chairman so appointed. Shareholders representing more than one twentieth of the share capital can, no later than seven days before the general meeting is to be held, demand that the county court shall appoint a person who is to open the general meeting, cf. Asal. § 5-12, second paragraph.
The board of directors can resolve pursuant to Asal. § 5-8(a) to permit electronic participation and voting at general meetings of the company. The Act stipulates condition for this to be done, namely that the meeting can be held in a satisfactory manner and that the company has systems in place to ensure that the legal requirements for a general meeting are satisfied. In addition, the systems must ensure that participation and voting can be controlled in a satisfactory manner, and that satisfactory means are used to authenticate the sender of messages. Similarly, Asal. 5-8(b) permits the company to make provision in its articles of association for voting in advance, either in writing or electronically, for a specified period prior to the general meeting. The Act stipulates that this is conditional on the use of a satisfactory means to authenticate the sender of messages.
The company must publicly disclose on its website the results of voting at the general meeting no later than 15 days after the date of the general meeting, cf. General Meeting Regulations § 4.
If the company is required to have an audit committee, the audit committee’s statement on the proposed election of the auditor must be put before the general meeting before the election, cf. Asal. § 7-1.