On 1 January 2012 shareholders of listed companies will obtain more rights by virtue of the law of 20 December 2010. Also new rules are going to be applicable for shareholders of non-listed companies. This results from the implementation of a directive into Belgian law.
This Directive contains a number of measures, which aim to enforce the rights of shareholders in listed companies and remove impediments relating to cross-border voting in the European Economic Area as much as possible.
Before discussing a number of important modifications, some reservations must be made with regard to the scope of the Law.
1. The scope of the Law
The legislator has given a broader scope to the law than the directive intends to. The law introduces a number of measures not only for listed companies but also for certain non-listed companies.
Particularly for non-listed companies a relatively large proportion of the measures introduced by the Law are optional. Due to this, non-listed companies will have the possibility to incorporate some measures in their articles of association, such as the possibility to attend a shareholders’meeting by electronic means, the possibility to cast votes “from distance”, and the conditions under which proxy can be granted to attend a shareholders’meeting.
2. The new measures
The modifications as applicable from 1 January 2012 an largely be divided into two groups of measures i.e. those relating to the preparation of the general meeting of shareholders and the measures relating to the participation in the general meeting.
2.1 Measures relating to the preparation of the general meeting of shareholders
As from 1 January 2012, the period for convocation of a general meeting of shareholders of listed companies will be a minimum of 30 days. If the attendance quorum for the first general meeting is not reached, and provided the date of the second meeting has been mentioned in the first convocation, the second general meeting of shareholders with the same agenda can be convened with a convocation period of minimal 17 days before such meeting.
It should also be noted that the currently applicable system of convocation by means of publication in the Official Gazette and in a national newspaper is complemented. As from 1 January 2012 listed companies must also issue the convocation via such media as may reasonably be relied upon for the effective dissemination of information to the public throughout the European Economic Area and which are easily accessible on a non-discriminatory basis (new Article 533 of the Belgian Companies Code).
Moreover, the law extends the mandatory content of the convocation in order to explicitly draw the attention to the (new) rights available to the shareholders. This and other information must remain accessible for the shareholders via a website to be developed, until the date of the shareholders’ meeting. Afterwards the website must remain accessible until five years after the relevant shareholders’ meeting.
Shareholders individually or collectively holding a minimum of 3% of the share capital of a listed company will as from 1 January 2012 also have the right to put items on the agenda of the general meeting of shareholders and to submit draft resolutions. The already existing threshold of 20% to require the convocation of a general meeting, which is also applicable to non-listed companies remains unaltered.
Finally, one of the most significant innovations of the Law is that the (currently optional) registration date system will be obligatory for listed companies. As from 1 January 2012 participation and voting in the general meeting of shareholders will be dependent on the accounting registration of shares of the shareholder, on the 14th day before the general meeting, at midnight (the so called “registration date”),
> either by registration of the shareholder’s name in the register of shareholders;
> either by registration on the accounts of a certified account holder or settlement institute; or
> either by presentation of the bearer shares to a financial intermediary, irrespective the amount of shares held by the shareholder.
Irrespective who holds shares after that date, the shareholders registered on the registration date may participate in the general meeting of shareholders, provided that he notifies his intention to attend the general meeting to the company or appointed person in time, in any case no later than 6 days before the general meeting concerned.
2.2 Measures relating to the participation to the general meeting
The Law establishes a detailed procedure for proxy voting for all public limited liability companies, whether or not listed. “Proxy” means the empowerment of a natural or legal person by a shareholder to exercise some or all rights of that shareholder in the general meeting in his name (new Article 547 of the Belgian Companies Code).
In addition and specifically with regard to listed companies, a new Article 547bis of the Belgian Companies Code imposes additional requirements vis-à-vis proxy voting. A shareholder of a listed company may only designate one person as proxy holder for a certain general meeting. The shareholder must designate this proxy holder in writing or by way of an electronic form and he must sign said form (electronic signature).
In addition the Law offers companies (whether or not listed) the possibility to allow their shareholders to cast their votes remotely before the general meeting of shareholders takes place. Shareholders can do this by correspondence or by electronic means. This is an optional measure that needs to be included in the company’s articles of association in order to apply. This measure applies for both listed and non-listed public limited liability companies.
Further the Law offers the possibility for shareholders of public limited liability companies (listed or not) to participate remotely in the general meeting by electronic means. However this right needs to be explicitly included in the company’s articles of association in order to apply. Besides for public limited liability companies (whether or not listed), this possibility is also introduced for private limited liability companies and the cooperative companies with limited liability.
Shareholders who take part by electronic means will be considered to attend the meeting at the location where the general assembly is being held. Also the conditions regarding the majority is deemed to be fulfilled. Voting without attending the general assembly in person by electronic means will be subject to constraints necessary for the verification of identity and the security of electronic communications. How the verification procedure will occur has to be established in the articles of incorporation, as well as the conditions on the use of the electronic means. The company has a substantial freedom to determine how the shareholders can participate by electronic means, hence it can choose the solutions, which connect best with its actual situation and it can take the relevant technological evolutions into account. The possibility to hold a general assembly with shareholders who are present by electronic means does still enforce the requirement to hold a physical meeting. The bureau, board of directors and statutory auditors are obligated to be physically present.
The Law further clarifies the conditions for the right to raise questions, a right which in the future may be exercised both orally (during the general meeting) and in writing (before the general meeting) by electronic means.
These clarifications apply to public limited liability companies, whether listed or not, as well as to private limited liability companies, cooperative companies with limited liability, Societas Europaeae and Societas Cooperativae Europaeae.
The Law confirms the principle that directors (and the statutory auditors) are obliged to answer questions raised by the shareholders, provided that the answer is not detrimental to the business interests of the company or the confidentiality to which the company, its directors or statutory auditors are bound. Formerly the criterion was that the answer may not cause serious harm to the company, its shareholders or its personnel.
The Law extends the period by which the Board of Directors may delay a general meeting of shareholders because of a notification of a major participation from 3 to 5 weeks. This extension only applies for listed companies.
The period by which the Board of Directors may postpone the approval of the annual accounts at the general shareholders’ meeting is extended to five weeks for listed companies (new Article 555 of the Belgian Companies Code).
Please note that aforementioned modifications only apply to public limited liability companies and Societas Europaeae.
Finally it should be noted that as from 1 January 2012 the minutes of the general meeting of listed companies shall establish for each resolution at least the number of shares for which votes have been validly cast, the proportion of the share capital represented by those votes, the total number of votes validly cast as well as the number of votes cast in favour of and against each resolution, and where applicable, the number of abstentions. The companies shall publish aforementioned information on their Internet site within 15 days after the general meeting.
3. The Law comes into effect on 1 January 2012.
Companies should amend their articles of association, so that they are in accordance with the provisions of the Law before 1 January 2012. These amendments of articles of association come into force in 1 January 2012.
If the articles of association are not amended in time, the provisions, which do not comply with the now applicable legislation, will be replaced by the corresponding mandatory legal provisions as from the date of entry into force of the law (i.e. 1 January 2012).
