Annual Meeting of Shareholders Procedure. Annual general meeting of shareholders: registration of preparation and holding

In what sequence should an extraordinary meeting of shareholders take place, taking into account changes in legislation?

Suppose a board of directors is appointed on November 1, with a call to hold an extraordinary meeting of shareholders on the issue of joining the union of builders. Next, within 3 days, we must send a request to the registrar with the minutes of the board of directors attached? Next, the registrar sends us a list of shareholders entitled to participate in the meeting. For that, within 20 days from the date of receipt of the list, we must hold a board of directors? From what date should this period be counted?

While we were registry holders, everything was much easier. Members of the board of directors - who is where, it is not possible to collect all the signatures from them. What to do with signatures, considering that council members are in different cities? What about a notary?

Procedure for holding an extraordinary meeting of shareholders

The procedure for convening a general meeting of shareholders is as follows:

1. The Board of Directors makes a decision to convene an extraordinary general meeting of shareholders;

2. A list of persons entitled to participate in the general meeting of shareholders is formed.

The date of drawing up the list of persons entitled to participate in the general meeting of shareholders cannot be set earlier than 10 days from the date of the decision to hold the general meeting of shareholders and more than 50 days before the date of the general meeting of shareholders.

3. Not later than 20 days (according to the general rule) a notice is made about holding a general meeting of shareholders.

Within the specified time limits, the notice of holding the General Meeting of Shareholders must be sent to each person specified in the list of persons entitled to participate by registered mail, unless the company's charter provides for another way of sending this notice in writing, or handed over to each specified person against signature, or, if it is provided for by the charter of the company, published in a printed publication determined by the charter of the company and (or) posted on the website of the company on the Internet determined by the charter of the company;

Thus, the law does not stipulate that you must hold a meeting within 20 days from the date of the decision to hold it. It is important that it be held no earlier than 20 days after you make a notification about it. In addition, the above requirements for the timing of the formation of the list of shareholders must be met.

Regarding the issue of obtaining signatures of members of the Board of Directors, the following should be noted:

The joint-stock legislation proceeds from the fact that the meeting of the Board of Directors of the company assumes the joint presence of its members to discuss the issues on the agenda. At the same time, the Charter or other internal act may provide for the possibility of absentee voting on agenda items (Article 68 of the Federal Law “On Joint Stock Companies”), therefore we advise you to think about the possibility of amending the Charter (or adopting an internal act) in order to to avoid such problems in the future.

On the this stage note that the minutes of the meeting of the Board of Directors must contain only the signature of the Chairman of the meeting, the signatures of other members may be absent (Article 68 of the Federal Law "On Joint Stock Companies").

Regarding the need to confirm the adoption of the decision by the meeting of shareholders and the composition of the meeting participants who were present at its adoption, we note that for public joint-stock companies it is carried out only by the Registrar, for non-public companies - by the Registrar acting as a counting commission, or by a notary at the choice of the Company itself, fixed in its charter or in the minutes of the general meeting of shareholders.

Photo by Evgeny Smirnov, IA Clerk.Ru

If the company is registered as a company with limited liability(LLC), then at least once a year within the time limits established by the charter, and not earlier than February 1 and not later than April 30, it is necessary to hold an annual meeting to approve the annual financial statements and consider other issues included in the agenda.

If the company is a joint-stock company (JSC), then no earlier than February 1 and no later than 6 months after the end of the reporting year, an annual meeting should be held and the annual financial statements approved.

The leaders of many organizations are under the delusion that annual meeting is their right, not their obligation. This is especially true for LLCs and JSCs with a single or a small number of shareholders. There is an opinion that "young" or not having achieved high financial results companies can also "get around" this rule, since they were created recently, there is no need to distribute profits, and therefore there is no need to hold an annual meeting. Such a position is a delusion that can lead to negative consequences, and some of them can be fatal for the company.

According to the norms of the current legislation, the following documents and issues must be approved at the annual meeting (see table).

Documents and issues to be approved at the annual meeting

Joint Stock Company (JSC)

Limited Liability Company (LLC)

Auditor (since 2014, an audit is mandatory for JSCs)

Other issues in accordance with the charter (profit distribution, composition of the board of directors, executive body, audit committee, etc.)

Accounting statements for the year

Annual report of the executive body

Other issues in accordance with the charter (profit distribution, executive body, audit commission, auditor, etc.)

Decisions taken at the annual meeting are documented in the minutes (decision) of the general meeting of shareholders or participants. It is this document that is proof that the shareholders (founders) approved the annual financial statements and were aware of its content.

Often, the CEO of a company makes management decisions at his own discretion, not considering it necessary to ask the opinion of the founders, and when he is asked to justify his decisions, he can acquire the status of an unscrupulous manager. In order to avoid negative consequences, the company must systematize its work, for which, first of all, it is necessary to develop an individual corporate calendar in accordance with its constituent documents, without resorting to excuses “this is not necessary”, “it is too early for our company”, etc. The company's activities are in a competent legal field should begin from the moment the decision to create it is made, which will positively affect the work of the company for the following main reasons:

when creating a company, the founders initially intend to develop it by using various resources, attracting both their own and borrowed funds, as well as investors' funds. An investor’s understanding that a company applies a systematic approach to documents and corporate procedures (and this indicates a competent vision of the business), as well as the transparency of the company’s activities for owners or third parties, can be decisive factors for investing in this organization;
the above corporate procedures are based on the provisions of the current legislation for JSCs and LLCs, and non-compliance with the relevant requirements is their direct violation (it is also worth remembering that a company and its officials can be fined for violating the requirements of the law for the preparation and holding of the annual meeting);
when conducting an audit of a company or Due Diligence (from the English "due diligence", i.e. the procedure for drawing up an objective view of the investment object), all documents necessary for the preparation and holding of the annual meeting, as well as documents that reflect the decision-making at this meeting are subject to mandatory submission. The absence of these documents indicates that the established procedures have not been implemented, and this is a violation of the company's operating procedures and legislation. It should be noted that the restoration of documents with current dates (or “backdating”) is impossible, since the mandatory procedures for preparing and holding the annual meeting (mandatory advance notices of convening, processing the results and disclosing this information, if the company has such duty). All documents and decisions executed in this way will be illegitimate.

In addition, one should not forget that, according to the norms of the Civil Code of the Russian Federation, the general director is obliged to compensate, at the request of the company, its founders (participants) acting for the interests of the company, the losses caused through his fault.

Note! Violation of the right to manage is expressed in the very fact of not holding the annual meeting. According to Art. 15.23.1 of the Code of Administrative Offenses of the Russian Federation illegal refusal to convene or evasion from convening a general meeting of shareholders, as well as an illegal refusal or evasion from introducing issues and (or) proposals for nominating candidates to the board of directors (supervisory board), collegial executive body, the audit commission (auditors) and the counting commission of a joint-stock company or a candidate for the position of the sole executive body of a joint-stock company shall entail the imposition of an administrative fine on citizens in the amount of 2 thousand to 4 thousand rubles, on officials - from 20 thousand to 30 thousand roubles. or disqualification for up to one year, legal entities- from 500 thousand to 700 thousand rubles.

Thus, when answering the question of whether it is necessary to hold an annual meeting, there is only one correct answer, since all the procedures associated with its preparation and holding cannot be commensurate with those negative consequences, which are possible in the event of its failure.

Changing the procedure for holding the annual meeting of JSC

Since 2016, the procedure for holding the annual meeting of shareholders has undergone some changes, mainly this directly affected the procedure for holding the meeting. The following has changed:

in order to hold a meeting of shareholders (extraordinary) on the issue of electing members of the board of directors at the initiative of the board itself, the term for holding the meeting is reduced by 20 days and amounts to 70 days from the date of the decision to convene such a meeting, however, the charter may provide for a shorter period for holding such a meeting (if the charter is not brought into line with the current norms of the law, and the charter sets a period exceeding 70 days, then the provisions of the charter should be applied);
the list of information to be determined by the board of directors in preparation for the meeting was supplemented with the following: if the agenda includes the issue of electing members of the board of directors, the exact closing date for the acceptance of candidates nominated to the board of directors must be indicated; wording of decisions on all agenda items sent by shareholders to the AO in case of ballot voting.

According to the amendments made to the law, the terms provided for the establishment of shareholders entitled to participate in the meeting on certain issues (on the formation of the board of directors, reorganization of JSC) have been reduced.

At the same time, the joint-stock company is released from the obligation to provide all interested parties with extracts from the compiled list of potential shareholders - participants in the meeting and information about shareholders not included in this list. Such obligation, in accordance with the law on the securities market, belongs exclusively to the registrar.

We remind you! On the basis of Federal Law No. 142-FZ of July 2, 2013, all joint-stock companies that independently maintain the register of shareholders are obliged to transfer the maintenance of the register to a person who has a license prescribed by law, i.e. a professional participant in the securities market who carries out activities for maintaining the register (registrar). The deadline for fulfilling this requirement expired on October 1, 2014.

With regard to certain issues on the agenda of the general meeting (re-election of members of the board of directors, appointment/dismissal of the executive body of the joint-stock company), the period for notifying shareholders of the meeting has been reduced to 50 calendar days.

One of positive results adopted amendments - approval of legal norms that significantly increase the information content of the message about the holding of meetings. Added information about the categories (types) of shares, whose owners will be able to vote on all agenda items or part of them. In addition, in cases specified by the charter, the message must indicate the address of the official website of the JSC, where the shareholder can “leave” his vote on agenda items, including the email address for the purpose of sending voting shareholders their voting ballots.

Now all joint-stock companies can provide in the charter two possible ways to notify shareholders about the holding of a general meeting:

the company may send a message about the holding of the meeting to the personal e-mail address of the shareholders;
The company may send a short text message to the personal e-mail address or personal phone number of the shareholders, indicating information on where the shareholder can get acquainted with full content notice of the meeting.

However, one should not forget that other possible ways of notification have not been canceled by law, for example, through print publications or the official website of a joint-stock company.

After amendments to the law, joint-stock companies are obliged to keep information about the method of notifying shareholders about the meeting for 5 years from the date of the general meeting. In other words, the CEO must ensure that notices sent to shareholders are kept.

In accordance with one of the amendments, joint-stock companies are allowed to hold an in-person meeting, which implies the joint presence of shareholders, remotely using information and telecommunication technologies. For example, a video call can serve as such a tool, the use of which will give the shareholder the opportunity to attend the meeting without being physically present and vote on agenda items.

At the same time, as a result of amendments to the law, the obligation to vote at an in-person meeting using ballots has been established in all public and non-public JSCs with more than 50 shareholders with voting shares.

It is important that the legislative specification of the designation of the presence of a shareholder at a face-to-face meeting has taken place. So, a shareholder is considered to be present at the meeting if:

if the shareholder has registered (in person or on the website) to participate in the meeting;
if, two days before the meeting, the shareholder handed over the completed voting ballot to the company or filled out the electronic form of the ballot on the website specified by the company for voting.

Note! In anticipation of the annual shareholder meeting period for the year-end, companies should take the following actions.

First, bring the charter and name of the company in line with the Civil Code of the Russian Federation.

Despite the fact that the amendments made to the Civil Code of the Russian Federation, according to which joint-stock companies were divided into public and non-public, came into force as early as 2014, not all JSCs have brought their names and the content of their charters in line with the new rules. However, it is necessary to make a reservation that the deadlines for the implementation of such actions are not specified in the legislation (clause 7, article 3 of the Federal Law of May 5, 2014 No. 99-FZ), and the need for them is dictated, rather, by expediency or the individual needs of society to amend the charter, which in this case must be accompanied by a full bringing of the charter in line with the Civil Code of the Russian Federation. Those companies that plan to include in the agenda of the general meeting of shareholders the issue of approving a new version of the charter (or amendments to it) must take into account the peculiarities of voting on this issue and the form of JSC.

Secondly, the agenda of the annual meeting should include the issue of approving the auditor. This need is dictated by the requirements of Art. 67.1 of the Civil Code of the Russian Federation, according to which the financial statements of any joint-stock company, regardless of its status, must be confirmed by an auditor. At the same time, it is appropriate to pay attention to the issue of the timing of the preparation of the audit report. General rules on the timing of the annual audit are contained in the said Art. 67.1 of the Civil Code of the Russian Federation, Art. 5 of the Federal Law of December 30, 2008 No. 307-FZ “On Auditing” and Art. 18 of the Federal Law of December 6, 2011 No. 402-FZ "On Accounting", the first of which obliges any JSC to conduct a mandatory audit annually, and the second - to submit a copy of the audit report to the statistical authorities within the time limits specified in this rule, but no later than December 31 following the reporting fiscal year. However, for JSCs, which are subject to the obligation to disclose information, including disclosure of annual financial statements (the proposal is not completed by the author).

Thirdly, it is necessary to make a decision to increase the authorized capital. In accordance with the provisions of Art. 26 of the Federal Law of December 26, 1995 No. 208-FZ "On Joint Stock Companies" (hereinafter - Law No. 208-FZ) regarding the size of the authorized capital of a joint-stock company (effective from July 1, 2015), the authorized capital of a public joint-stock company must be at least 100,000 rubles, non-public JSC - at least 10,000 rubles.

Now about what is also advisable to do when preparing for the annual meetings of shareholders at the end of the year:

amend the charter of the company with regard to the method of notifying shareholders of the upcoming meeting - the method used must be specified in the charter. We also draw attention to the fact that the current norms of the law allow the company to use as a method of notification of a meeting the direction of a paper message other than registered mail. The provisions of the articles of association of companies providing for precisely this method of notification of a meeting will become void, and such companies will be forced to be guided by the general rules for notification (registered letter or delivery under signature);
amend the company's charter on the method of sending voting ballots to shareholders. In the current version of the law to earlier established ways sending the ballot, the method of sending it in the form of an electronic message to the e-mail address of the relevant person specified in the register of shareholders of the company has also been added. However, the application of this method is possible only after making appropriate changes to the company's charter;
it is possible to amend the company's charter to allow the use of remote methods of participation in the meeting. As such, the following are named in the law: registration of a shareholder to participate in a meeting on a website on the Internet; sending a completed voting ballot to the public by e-mail or filling out a ballot form on a website on the Internet.

FAQ* on dividends

Dividends are the company's net profit received as a result of its activities, the right to receive which is available only to shareholders and members of the company. In practice, there are many disputes related to the procedure for deciding on the payment of dividends and their receipt, from the content of which it is possible to draw the following main conclusions:

making a decision on the payment of dividends is a right, not an obligation of the company;
the right of a shareholder to demand the payment of dividends arises only if the general meeting of shareholders makes a decision on their payment;
general meeting shareholders are not entitled to make a decision to cancel earlier decision on the payment of dividends;
a decision of the general meeting that does not contain a direct indication of the payment of dividends, their amount, term and procedure for payment, does not serve as a basis for the shareholders or participants to have the right to demand the payment of dividends;
the absence of a company's net profit, as well as an approved annual report and annual financial statements that reflect the company's losses, is not a reason for non-payment of declared dividends;
the difficult financial situation of the company is not a reason for non-payment of previously declared dividends;
the right of shareholders to demand payment of dividends to them after the improvement of the financial condition of the company arises in cases where dividends were declared in accordance with the requirements of the law;
the shareholder is not entitled to demand that the issue of the amount of dividends paid be included in the agenda of the general meeting of shareholders;
violation of the deadline for payment of declared dividends and (or) their payment not in full amount are the basis for collecting interest from the company for the use of other people's funds for the period of delay;
non-payment of declared dividends and (or) payment of them not in full within a reasonable time after the elimination of the circumstances preventing such payment, serve as the basis for collecting interest from the company for the use of other people's funds;
the company is released from liability for late payment of declared dividends, if the shareholder did not update his data in the register of shareholders;
the company is released from liability for late payment of declared dividends if it did not have information about the bank details of the shareholder;
a joint-stock company has the right to decide not to pay dividends even if there is a net profit;
if the board of directors (supervisory board) of the company did not recommend paying dividends, the general meeting of shareholders is not entitled to decide on their payment;
the sale by a shareholder of his shares after the company has made a decision to pay dividends does not release the company from the obligation to pay them to such a shareholder.

The law defines mandatory requirements for the payment of dividends in an LLC, which are based on the restrictions contained in the law, which provide for:

full payment of the authorized capital;
full payment to the withdrawing participant of his share;
excess of the value of net assets over the amount of the authorized capital and the reserve fund, including after the issuance of dividends;
absence of signs of bankruptcy, including after the issuance of dividends.

Compliance with these restrictions must take place both at the date of the decision on extradition, and at the time of payment of income. If the decision has already been made, and by the time of issuance the conditions are such that they do not allow payment, then it will be made after the disappearance of these conditions.

Each shareholder has the right to receive dividends from the net profit of the organization. It occurs when all of the following conditions are met:

at the end of the reporting period, the company received a net profit;
the board of directors or the supervisory board of the company has adopted a decision containing recommendations on the amount of dividends;
a general meeting of shareholders was held with the total number of voting shares - more than half;
the issue of payment of dividends was included in the agenda of the general meeting of shareholders;
earlier there was an announcement on the payment of dividends;
the quorum of the general meeting of shareholders voted for the payment of dividends;
compliance with the condition that the amount of dividends will not exceed that recommended by the board of directors or the supervisory board of the company;
the decisions adopted by the general meeting of shareholders were announced;
the dividend payment deadline has come;
the shareholder is in the register of persons entitled to receive dividends.

If at least one of the conditions is not met, dividends are not paid.

Note! personal income tax:

with individuals- citizens of the Russian Federation is 13% (clause 1 of article 224 of the Tax Code of the Russian Federation), for foreign citizens - 15% (clause 3 of article 224 of the Tax Code of the Russian Federation); income tax for legal entities of the Russian Federation - 13% (clause 2, clause 3, article 284 of the Tax Code of the Russian Federation), for foreign legal entities - 15% (clause 3, clause 3, article 284 of the Tax Code of the Russian Federation).

If dividends are issued to a legal entity that owns more than a 50% share in the authorized capital for at least a year, then in such cases a 0% rate can be applied (clause 1 clause 3 article 284 of the Tax Code of the Russian Federation).

From practice...

Can payments to participants from the profits of an LLC be considered dividends for tax purposes?

Yes, you can. According to paragraph 1 of Art. 43 of the Tax Code of the Russian Federation for tax purposes, dividends are any income received from an organization in the distribution of its net profit, on shares or contributions of participants in proportion to their shares. This rule is true for organizations of any form, although formally in civil law the term "dividends" is used only in relation to payments to shareholders. Limited liability companies distribute the net profit among their members. The foregoing follows from paragraph 2 of Art. 42 of Law No. 208-FZ, paragraph 1 of Art. 28 of the Federal Law of February 8, 1998 No. 14-FZ (hereinafter - Law No. 14-FZ), but for the purposes of tax accounting, such a discrepancy in terms does not matter.

Is it possible to pay dividends with property?

Yes, you can. Civil law allows you to pay dividends in kind, that is, not only in money, but also in other property. For joint stock companies, this is provided for in paragraph 2 of clause 1 of Art. 42 of Law No. 208-FZ. With regard to LLC, there is no such norm in the legislation, but there is also no prohibition on the distribution of net profit in non-monetary form. In Art. 28 of Law No. 14-FZ does not indicate the method of payment, therefore it is understood that LLC participants can receive not only money, but also other property.

Consequently, dividends can be issued both by fixed assets, and materials, and goods. The main condition for this is that this procedure be provided for by the charter of the organization.

Dividends can only be recognized as a payment from retained earnings remaining after tax. The return of the participant's or shareholder's contribution to the authorized (reserve) capital, as well as the distribution of other property, are not considered dividends. However, in this case, it is necessary to pay corporate income tax.

Is it possible to pay dividends from the profits of previous years?

Yes, you can. In both civil and tax legislation, it is only established that the source of payment of dividends is the net profit of the organization. There is no indication anywhere in which period such profit should be formed (Article 43 of the Tax Code of the Russian Federation, clause 2 of Article 42 of Law No. 208-FZ, clause 1 of Article 28 of Law No. 14-FZ).

Therefore, if the profit is not distributed based on the results of previous years, then dividends can be paid at its expense in the current year. This can happen, for example, if the net profit was not used to pay dividends or form special funds.

The legitimacy of such a conclusion was confirmed in, dated April 6, 2010, No. 03-03-06 / 1/235. Similar conclusions are contained in the resolutions of the Federal Antimonopoly Service of the North Caucasus District of January 23, 2007 No. F08-7128 / 2006, of March 22, 2006 No. F08-1043 / 2006-457A, the Federal Antimonopoly Service of the East Siberian District of August 11, 2005. No. A33-26614 / 04-S3-F02-3800 / 05-S1, Federal Antimonopoly Service of the Volga District of May 10, 2005 No. A55-9560 / 2004-43.

In addition, dividends can be paid out of the profits of previous years if the organization had no net profit in the reporting year (letter of the Federal Tax Service of Russia dated October 5, 2011 No. ED-4-3 / 16389).

By delaying the payment of dividends, the organization thereby commits administrative offense, for which JSCs can be fined from 500 thousand to 700 thousand rubles.

A fine is also provided for officials of a joint-stock company who has overdue payment - from 20 thousand to 30 thousand rubles.

If the payment is late due to errors specific people, they can also be punished, and for them the amount of the fine will be from 2000 to 3000 rubles.

These rules are provided for in Art. 15.20 Administrative Code of the Russian Federation.

If within the established period the participant, shareholder has not demanded to pay dividends to him, then he loses the right to receive them completely. An exception is the situation when a shareholder, participant did not declare his rights under the influence of violence or threat. If this was the case, and he was able to confirm this, then the claim period can be restored, that is, extended for another three years.

Dividends declared (distributed) but not claimed by shareholders, participants are again included in the company's retained earnings (clause 9, article 42 of Law No. 208-FZ, clause 4 of article 28 of Law No. 14-FZ). The distribution of such dividends is possible in a difficult financial period.

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* Frequently Asked Questions - frequently asked questions.

Maria Gracheva IFC project<Корпоративное управление в России>, executive editor of the quarterly review, Ph.D. economy Sciences, Moscow

Annual general meeting of shareholders - an important event in the life of the company. At the meeting, the results of the activities of the joint-stock company in the past year are summed up and key corporate decisions are made: the board of directors (supervisory board) and the audit commission (auditor) of the company are elected, the annual report and financial statements are approved, the amount of profit intended for payment of dividends is determined, etc. .

the federal law<Об акционерных обществах>(hereinafter referred to as the JSC Law) gives the general meeting of shareholders a special status: it is the highest management body of the company. The JSC Law states that the annual meeting must be held in the form of joint attendance of shareholders and cannot be held in the form of absentee voting. This highlights the important function of the annual meeting, which is that it is a forum for shareholders to discuss the main problems facing the company, and also provides the owners with the opportunity to communicate with managers and ask them questions. The JSC Law also determines the date of the meeting: not earlier than two months and not later than six months after the end of the financial year.

The board of directors and the management of the company accept Active participation in the preparation and holding of the general meeting, with the Board of Directors playing a key role. As a rule, in a large corporation, a special group of employees is created to organize the meeting, coordinating the interaction between the shareholder relations department and other divisions of the company. Particular importance is attached to establishing close cooperation with the mass media, disseminating information about the results achieved by the company and about the decisions taken at the meeting.

AT last years the attitude of domestic companies to the preparation and holding of annual meetings began to change noticeably. Gone are the days when there were obstacles to the participation of shareholders in meetings, the materials provided for by the JSC Law were not provided, and the votes were counted incorrectly. Of course, not everything is perfect yet, but the improvement in corporate practices in this area was a positive signal for minority shareholders. The process of organizing an annual general meeting involves solving many complex issues. In the article brought to the attention of readers, we will consider only those of them that, in our opinion, are the most important and relevant: the role of the board of directors, a detailed schedule of events, the functions of the corporate secretary, and the preparation of the company's annual report.

The role of the board of directors in the organization of the annual meeting

Igor Aksenov IFC project<Корпоративное управление в России>, consultant for legal matters, Moscow

The Board of Directors (BoD) plays a key role in the preparation and conduct of the annual general meeting of shareholders - as provided for by the JSC Law, and this is what the practice of effective corporate governance. The board of directors must organize a large number of different events, and must do so within tight deadlines and in accordance with the requirements of the JSC Law. A more detailed regulation of the procedures specified in the JSC Law is given in the Regulations of the Federal Commission for the Securities Market<О дополнительных требованиях к порядку подготовки, созыва и проведения общего собрания акционеров>, approved by the Decree of May 31, 2002 No. 17 / ps. It should be noted that the longest and most difficult process is the preparation of the annual general meeting in an open joint stock company with more than 1,000 owners of voting shares.

Let's analyze those preliminary measures that most often raise questions from both members of the Board of Directors and shareholders.

First of all, the board of directors should consider shareholders' proposals on nominating candidates to the Board of Directors, the executive body and the audit commission of the joint-stock company, as well as on putting issues on the agenda of the general meeting. In accordance with Art. 53 of the JSC Law, such proposals can only be sent by shareholders who own (individually or collectively) at least 2% of voting shares. Offers must be received by the joint-stock company no later than 30 days after the end of the financial year, i.e. no later than January 30th. When determining the deadline for submitting proposals, the following important circumstances should be borne in mind.

1. Since the JSC Law states that<...предложения должны поступить в общество...>, then sometimes it was interpreted in such a way that the date of the proposal should be considered the date of its actual receipt by the company. As a result, misunderstandings often arose. Now the procedure for sending proposals is clearly described in the FCSM Regulation No. 17/ps:<Если предложение в повестку дня общего собрания направлено почтовой связью, датой внесения такого предложения является дата, указанная на оттиске календарного штемпеля, подтверждающего дату отправки почтового отправления, а если предложение в повестку дня общего собрания вручено под роспись - дата вручения>1.

2. It should not be forgotten that the JSC Law allows shareholders to set in the charter a later deadline for submitting proposals to a joint stock company.

Further, according to the JSC Law, the board of directors must discuss the proposals received and make a decision (on the inclusion of issues on the agenda of the meeting and the nominated candidates on the list of candidates or on refusal to include) no later than five days after the deadline for submitting proposals, i.e. e. not later than either 4 February or five days after the date for submission of proposals set out in the articles of association2. Of course, proposals can be considered by the board of directors both at one meeting (in a single package) and at different meetings (as they are received), but the final decisions must be made within the time limits established by the JSC Law.

However, when analyzing the proposals received, the question often arises: what criteria should the Board of Directors be guided by when making this or that decision? An exhaustive list of grounds for refusal is set out in paragraph 5 of Art. 53 of the JSC Law and includes the following cases3:

 the deadlines established by the JSC Law were not observed (ie the proposals were received by the company after January 30 or a later date specified in the articles of association);

 shareholders are not owners of the number of voting shares of the company stipulated by the JSC Law (ie they own less than 2% of such shares);

 proposals do not meet the requirements stipulated by paragraphs 3 and 4 of Art. 53 of the JSC Law (i.e., the information that these proposals should contain is not provided). In accordance with paragraph 3, 4 of Art. 53 of the JSC Law, proposals must contain the following information about candidates:

 names (titles) of shareholders who nominated candidates;

 signatures of shareholders who nominated candidates;

 names of proposed candidates;

 Names of bodies to which they are nominated. Practice shows that the information about a candidate listed in the JSC Law may not be enough to make an unambiguous conclusion about the ability of this person to successfully perform the functions of a member of the Board of Directors and for a shareholder to make an informed decision. But paragraph 4 of Art. 53 of the JSC Law allows to correct this situation: it establishes that the proposal for nomination may contain additional information about the candidate, provided for by the charter or internal documents of the company. Therefore, in the charter or internal documents, it is possible to expand the list of information that must necessarily be stated in the proposal.

At the same time, such an expansion must be approached with caution, since the board of directors may refuse to include a candidate on the voting list if it is found that the proposal does not comply with the charter or internal documents. Thus, by introducing any minor requirements into the charter or internal documents (and, accordingly, making them mandatory for drawing up a proposal to nominate a candidate), shareholders will provide the board of directors with a reason to reject a particular candidate on grounds that are not of fundamental importance.

Sometimes the opinion is expressed that it is illegal to introduce into the charter or internal documents extended requirements that could become a reason for refusing to include a candidate on the voting list. At the same time, they refer to clause 11 of the joint Resolution of the plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation of 04/02/1997, which states that the list of grounds for refusal is contained in clause 4 of Art. 53 of the JSC Law and is exhaustive. In our opinion, this wording does not at all cancel the shareholder's right to include in the proposal to nominate a candidate additional information about this face. The absence of such information may just become the basis for refusing to include a candidate on the voting list.

Recommendations on what information about a candidate can be considered really important and additionally provided to shareholders are contained in the Code of Corporate Conduct (hereinafter referred to as the Code)4. This document advises shareholders to provide the following information about the candidate:

 age, education;

 information on membership in the Board of Directors and/or on nomination for election as members of the Board of Directors (or other elected bodies) of other societies;

 a list of positions held by the candidate in the last five years (including an indication of the position held by him at the time of nomination);

 information about whether the candidate is a participant, CEO, a member of the management body or an employee of a legal entity competing with the company (clause 2.1.2 of Chapter 3 of the Code recommends not to elect such a candidate to the board of directors in order to avoid a conflict of interest);

In accordance with the requirements of the legislation, holding the annual general meeting of shareholders is a mandatory procedure, which, at first glance, is simple. However, it includes various kinds of formalities, the violation of which can lead to significant fines. In general, the procedure for holding the annual general meeting of shareholders can be conditionally divided into several stages.

1. Preparation for the meeting of shareholders.

A meeting of the board of directors is held on the issues of holding the annual meeting of shareholders, the agenda is determined, shareholders are notified of the meeting, and shareholders are familiarized with the information (materials) provided in preparation for the general meeting of shareholders.

2. Holding a general meeting of shareholders.

The registration of arrived shareholders, the issuance of ballots (if voting is in person), the procedure for voting on agenda items, and the announcement of voting results can be carried out.

3. Registration of the results of the general meeting of shareholders.

The minutes of the counting commission on the results of voting, the voting report, the minutes of the general meeting of shareholders are drawn up.

Preparation for the annual general meeting of shareholders

The annual meeting of shareholders must be held on time. The legislation does not define a specific date for the annual meeting of shareholders (it is determined by the charter of the company). At the same time, the legislator limits the discretion of the company on the timing of the annual meeting. Thus, the annual meeting must be held no earlier than two months and no later than six months after the end of the financial year. The financial year corresponds to the calendar year and lasts from January 1 to December 31 (Article 12 of the Budget Code Russian Federation). This limitation period also applies in a situation where it does not contain a provision on the date of the annual meeting of shareholders.

Evasion from convening a general meeting of shareholders entails the imposition of an administrative fine for citizens in the amount of 2,000 to 4,000 rubles, for officials - from 20,000 to 30,000 rubles or disqualification for up to 1 (one) year, for legal entities - from 500,000 to 700,000 rubles. (Clause 1, Article 15.23.1 of the Code of Administrative Offenses of the Russian Federation).

In addition, violation of the established deadlines for holding the annual meeting of shareholders entails the termination of the powers of the board of directors (supervisory board) of the company, with the exception of the powers to prepare, convene and hold the annual general meeting of shareholders (clause 1 of article 66 of the Federal Law of December 26, 2005 No. 208-FZ "On Joint Stock Companies").

In order to prepare for the annual meeting of shareholders, a meeting of the board of directors is held, at which issues related to the form of holding the general meeting of shareholders (meeting or absentee voting) are resolved; date, place, time of the general meeting of shareholders; the date of drawing up the list of persons entitled to participate in the general meeting of shareholders; the agenda of the general meeting of shareholders; the procedure for informing shareholders about holding a general meeting of shareholders; a list of information (materials) provided to shareholders in preparation for the General Meeting of Shareholders, and the procedure for its provision; form and text of the voting ballot in case of voting by ballots.

The results of the meeting of the board of directors are documented in the relevant protocol, which details the content and sequence of the issues discussed, the content of the decision made on each of the issues, and the results of voting on each of the issues. The minutes must indicate the date and time of the meeting of the board of directors, the composition of the board of directors, the presence of a quorum.

Separate documents must also include the agenda of the annual general meeting of shareholders approved by the board of directors, the notice of the annual general meeting of shareholders, which is sent to shareholders, voting ballots for each of the items on the agenda.

The agenda should include issues that are mandatory for resolution, established by paragraph 2 of Art. 54 and p.p. 11 p. 1 art. 48 of Law No. 208-FZ. In addition to mandatory issues, the agenda may include additional issues, the resolution of which is within the competence of the general meeting of shareholders. Additional issues are put on the agenda, both by the board of directors and shareholders. Proposals to the agenda are made by shareholders who in the aggregate own at least 2% of the company's voting shares. Proposals for the agenda must be received by the company no later than 30 days after the end of the financial year, unless the company's charter establishes a later date.

A notice of the annual meeting of shareholders is sent to each shareholder who has the right to participate in the meeting. The mandatory terms for sending this message are established by law, and the procedure for sending it can be determined by the company itself. Thus, this notice must be made no later than 20 days, and the notice on holding a general meeting of shareholders, the agenda of which contains the issue of reorganizing the company, no later than 30 days before the date of its holding.

As for the procedure for sending a notice, as a general rule, a notice of a meeting is sent to a shareholder by registered mail. However, the charter of the company may provide for other requirements for sending a message. For example, in the charter it can be fixed that the message is sent by registered mail with a notification or a valuable letter with a description of the attachment, or handed over personally against signature. The articles of association may also provide for the need to publish a notice of a meeting in available means mass media, print media. In any case, the company has the right to additionally inform the shareholders about the holding of the general meeting of shareholders through other mass media (television, radio).

Violation of the procedure or deadline for sending (delivering, publishing) a notice of a general meeting of shareholders shall entail the imposition of an administrative fine. A fine is imposed on citizens in the amount of 2,000 to 4,000 rubles, on officials - from 20,000 to 30,000 rubles or disqualification for up to one year, on legal entities - from 500,000 to 700,000 rubles. (Article 15.23.1 of the Code of Administrative Offenses of the Russian Federation).

The notice of the general meeting of shareholders shall indicate the full company name of the company and its location; form of holding the general meeting of shareholders (meeting or absentee voting); date, place, time of the general meeting of shareholders; date of compilation of the list of persons entitled to participate in the general meeting of shareholders; agenda of the general meeting of shareholders; the procedure for familiarization with the information (materials) to be provided in preparation for the General Meeting of Shareholders, and the address (addresses) at which it can be familiarized. The message must be drawn up taking into account the additional requirements established by the Decree of the Federal Securities Commission of the Russian Federation of May 31, 2002 No. 17/ps (as amended on February 7, 2003).

Violation of requirements federal laws and other regulatory legal acts adopted in accordance with them to the form, date or place of the general meeting of shareholders, as well as holding the general meeting of shareholders in violation of the form, date, time or place of its holding, determined by the body of the joint-stock company or persons convening the general meeting of shareholders shall entail the imposition of an administrative fine on citizens in the amount of 2,000 to 4,000 roubles, on officials in the amount of 20,000 to 30,000 rubles or disqualification for a term of up to one year, and on legal entities in the amount of 500,000 to 700,000 roubles. (Clause 5, Article 15.23.1 of the Code of Administrative Offenses of the Russian Federation).

It is important to note that shareholders included in the list of persons entitled to participate in the general meeting are entitled to participate in the general meeting of shareholders. The list of persons entitled to participate in the general meeting of shareholders is compiled on the basis of the data of the register of shareholders of the company, either by the joint-stock company or by the person entrusted with maintaining the register. The date of compiling the list of persons entitled to participate in the General Meeting of Shareholders cannot be set earlier than the date on which the decision to hold the General Meeting of Shareholders is made. The list is valid for 50 days, and in some cases - for 85 days before the date of the general meeting of shareholders.

Violation of the requirements of federal laws and other regulatory legal acts adopted in accordance with them for compiling lists of persons entitled to participate in the general meeting of shareholders shall entail the imposition of an administrative fine on citizens in the amount of 2,000 to 4,000 roubles, on officials in the amount of 20,000 to 30,000 rubles or disqualification for a term of up to one year, and on legal entities in the amount of 500,000 to 700,000 roubles. (Article 15.23.1 of the Code of Administrative Offenses of the Russian Federation).

In the period from the date of sending the notice of the annual general meeting until the date of the meeting, the shareholders are familiarized with the information (materials) provided in preparation for the general meeting of shareholders. At the request of a person entitled to participate in the general meeting of shareholders, the company is obliged to provide him with copies of documents. The fee charged by the company for the provision of these copies may not exceed the cost of their production.

Failure to provide or violation of the deadline for providing information (materials) subject to (subject to) provision in accordance with federal laws and other regulatory legal acts adopted in accordance with them, in preparation for the General Meeting of Shareholders shall entail the imposition of an administrative fine on citizens in the amount of 2,000 to 4,000 roubles, on officials in the amount of 20,000 to 30,000 rubles or disqualification for a term of up to one year, and on legal entities in the amount of 500,000 to 700,000 roubles. (Clause 2, Article 15.23.1 of the Code of Administrative Offenses of the Russian Federation).

All of the above violations related to the compilation of a list of persons entitled to participate in the general meeting of shareholders, the notification of the meeting, the provision of relevant information (documents) to shareholders may also invalidate the decision of the annual general meeting of shareholders of the company (Decree of the Federal Antimonopoly Service of the West Siberian District of February 19 .2008 No. F04-424 / 2008 1017-A27-16, FAS of the Moscow District of February 14, 2008 No. KG-A41 / 14154-07, determination of the Supreme Arbitration Court of the Russian Federation of February 13, 2009 No. 862/09)

Holding a general meeting of shareholders

Shareholders arriving at the meeting must be registered in the relevant register of participants in the meeting and registration of ballot papers issued during the meeting. The right to participate in the general meeting of shareholders is exercised by the shareholder both personally and through his representative. The representative of the shareholder acts on the basis of a notarized power of attorney, a copy of which must be attached to the register of participants in the meeting and accounting of ballot papers issued during the meeting.

The general meeting is competent only if there is a quorum. As a general rule, the general meeting of shareholders has a quorum if it is attended by shareholders who collectively own more than half of the votes of the company's outstanding voting shares (50% of shares + 1 share). When determining the quorum, the provisions of paragraph 6 of Art. 32.1, paragraph 6 of Art. 84.2 of Law No. 208-FZ.

Holding a general meeting of shareholders in the absence of the quorum required for its holding, or consideration of certain issues on the agenda in the absence of the required quorum shall entail the imposition of an administrative fine on citizens in the amount of 2,000 to 4,000 rubles, on officials in the amount of 20,000 to 30,000 rubles or disqualification for a term of up to one year, and on legal entities in the amount of 500,000 to 700,000 rubles. (Clause 6, Article 15.23.1 of the Code of Administrative Offenses of the Russian Federation).

Voting on agenda items is carried out by ballot paper. In the practice of holding meetings of shareholders, a ballot is used even when the law allows voting by show of hands (clause 1, article 60 of Law No. 208-FZ), since the presence of a completed ballot complicates the procedure for contesting the voting results. A voting ballot is issued to each arriving participant or his representative against signature. Ballots, as already indicated, are compiled separately for each voting issue, although the law does not contain a direct prohibition on the inclusion of several issues put to the vote in the ballot. The form of the ballot must strictly comply with the requirements of the law (clause 4, article 60 of Law No. 208-FZ, Resolution of the Federal Securities Commission of Russia No. 17 / ps). Voting at the general meeting of shareholders is carried out according to the principle "one voting share of the company - one vote", with the exception of cumulative voting.

Registration of the results of the annual general meeting of shareholders

The counting of votes is carried out by the counting commission or a person replacing it. (A counting commission is created in a company with more than a hundred owners of voting shares). Based on the voting results, the counting commission or the person who performs its functions draws up a protocol on the voting results, which is signed by the members of the counting commission or the person performing its functions. The protocol on voting results is drawn up no later than 15 days after the closing of the general meeting of shareholders.

If the voting results for each of the agenda items were not announced to the shareholders after the completion of the voting procedure, it is necessary to draw up a report on the voting results. This report must be sent no later than ten days after the compilation of the protocol of voting results to each person included in the list of persons entitled to participate in the general meeting of shareholders, in the manner prescribed for the notification of the general meeting of shareholders.

Violation of the requirements of federal laws and other normative legal acts adopted in accordance with them regarding the announcement or communication to shareholders of decisions adopted by the general meeting or voting results shall entail the imposition of an administrative fine on officials in the amount of 20,000 to 30,000 rubles or disqualification for a term of up to one year, on legal entities in the amount of 500,000 to 700,000 rubles. (Clause 10, Article 15.23.1 of the Code of Administrative Offenses).

The minutes of the general meeting of shareholders are drawn up no later than 15 days after the closing of the general meeting of shareholders in two copies. Both copies are signed by the chairman of the general meeting of shareholders and the secretary of the general meeting of shareholders. The minutes of the General Meeting of Shareholders must contain information on the place and time of the General Meeting of Shareholders; the total number of votes possessed by shareholders - owners of voting shares of the company; the number of votes held by the shareholders participating in the meeting; the chairman (presidium) and the secretary of the meeting, the agenda of the meeting. The minutes of the general meeting of shareholders of the company must contain the main provisions of the speeches, the issues put to the vote and the voting results on them, the decisions adopted by the meeting (clause 2, article 63 of Law No. 208-FZ). The minutes of the general meeting must also contain the information specified in clauses 5.1, 5.7 and 5.8 of Resolution No. 17/ps of the Federal Commission for Securities of Russia.

Violation by the chairman or secretary of the general meeting of shareholders of the requirements for the content, form or deadline for drawing up the minutes of the general meeting of shareholders, as well as the evasion of these persons from signing the specified minutes shall entail the imposition of an administrative fine on citizens in the amount of 1,000 to 2,000 rubles and on officials in the amount of 10,000 to 20,000 rubles. or disqualification for up to six months.

The supreme governing body of a joint-stock company is the general meeting of its shareholders. This body is not permanent, and the possibility of making legal decisions during the meeting depends on the fulfillment of a number of conditions that the legislation has accompanied the procedure for convening and holding it. Mistakes in the procedure for convening and holding a general meeting of shareholders are fraught with corporate conflicts, often developing into lawsuits. In this article, we will consider the procedure for convening a general meeting of participants, taking into account the order of the FFMS of Russia dated 02.02.2012 No. 12-6 / pz-n “On approval of the Regulation on additional requirements for the procedure for preparing, convening and holding a general meeting of shareholders” (hereinafter referred to as the Regulation) .

Deadline

The current joint stock legislation requires a general meeting of shareholders to be held at least once a year. A mandatory meeting is called an annual meeting, and any other meeting is called extraordinary. The annual meeting of shareholders is held within the time limits established by the charter of the company. However, the current legislation () defines the boundary parameters:

not earlier than 2 months and
no later than 6 months after the end of the financial year.

In Limited Liability Companies, the deadline is even stricter than in JSCs. According to the general meeting of the company's participants, the following must be held:

not earlier than 2 months and
not later than 4 months after the end of the financial year.

This rule raises a logical question - "what is a financial year"? In world practice, there are situations when the boundaries of the financial year are determined by the organization in its local administrative acts and do not coincide with the calendar year. This discrepancy can be convenient for a number of reasons. From the desire to align the financial year with the seasonality of the business, to the desire to sum up the year at a different time than most corporations. However, in the conditions of our state, taking into account the rigid fixation of the terms for the preparation of accounting and tax reporting, the establishment of any other financial year is fraught with serious complications in the work of the company.

Therefore, in Russia, it is generally accepted in business practice to fix in the charters of joint-stock companies the financial year:

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18. Accounting and reporting in the Company...

18.2. The first financial year of the Company begins on the date of its state registration and ends on December 31 of the year of state registration of the Company. Subsequent financial years coincide with calendar years.

Thus, the annual meeting of shareholders must be held no earlier than March 1 and no later than June 30. It is worth noting that JSCs are free to determine a specific date within this period. Moreover, they have the right both to establish it in advance, by introducing appropriate provisions into the charter, and to leave a fairly wide field of possibilities for their administration. In practice, a vanishingly small number of societies are self-limiting, setting a specific date or a rigid way of determining it (the first Monday of the third month, the first Sunday of the sixth month, etc.). This is quite understandable. Such rigid frameworks often lead to errors that arise due to haste or impossibility to meet deadlines due to technical overheads. Therefore, in most cases, the statutes contain wording that duplicates the legal norm or is close to it:

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14.2. …The annual general meeting of shareholders is held no earlier than 2 (two) months and no later than 6 (six) months after the end of the Company's financial year.

So, the situation with the timing of the meeting in joint-stock companies and LLCs seems clear. And now let's add one nuance to it. In accordance with the business entities must approve the financial statements in the time and manner approved by applicable law (that is, the General Meeting of Shareholders). However, in accordance with Art. 18 of the same law and paragraph 5 of Art. 23 of the Tax Code of the Russian Federation, reporting must be submitted no later than 3 months from the end date of the reporting period (calendar year). And if the Federal Law “On Accounting” states that the reporting is provided to the statistical authorities “compiled”, and it is considered compiled from the moment it is signed by the head, then there is no such clause in the Tax Code. This means that it is understood that financial statements must be submitted to the tax authorities after they have passed all the corporate procedures for their approval. The deadlines for the provision of financial statements and their approval, provided for in the Federal Law "On Accounting", the Federal Law "On JSC" and the Federal Law "On LLC", to put it mildly, do not coincide (see Diagram 1).

Scheme 1

Terms of holding a general meeting of participants/shareholders in an LLC/JSC

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And what to do? There are several options for action:

Hold an annual meeting of shareholders in a joint-stock company by March 31 in order to submit reports to the tax authority on time (taking into account the restrictions “not earlier than two months”, the time frame is tight: you need to be in time from March 1 to March 31). In large joint-stock companies with an extensive branch network, such terms are beyond reality. Therefore, many go the second way.
Hold the annual general meeting at a convenient time, observing the terms of the Federal Law "On JSC" and the Federal Law "On LLC". And then the path forks:
- you can decide to submit reports to the tax authorities late and pay a fine of 200 rubles for each document not submitted on time (according to Article 126 of the Tax Code of the Russian Federation);
- it is possible to submit reports to the tax authorities on time (until March 31), but without its approval by the general meeting of shareholders in a JSC or participants in an LLC. It can be preliminarily approved by the Board of Directors (in accordance with paragraph 4 of article 88 of the Federal Law "On JSC"), and in his absence - by the general director. If the reporting (balance sheet, income statement) finally approved at the general meeting is still changed, then the revised reporting can then be submitted to the tax office.

Suggestions for the agenda

One shareholder or a group of shareholders owning at least 2% of the company's voting shares have the right to:

put items on the agenda of the annual general meeting and
nominate their own candidates for its governing bodies.

Moreover, the number of candidates they nominate should not exceed the number of seats in such a body. For example, if the Board of Directors consists of 7 members, then the shareholder has the right to nominate no more than 7 candidates. The same quantitative limitation applies to the collegial executive body, the audit commission and the counting commission. Naturally, only one candidate can be nominated for the position of the sole executive body.

Proposals must be made in writing and contain information about the shareholders who submitted them, their personal signatures, as well as data on the number and type of their shares.

A proposal to submit questions must contain the wording of each proposed question and may contain the wording of a decision on it.

The nomination proposal must contain:

details of the identity document (series and / or number of the document, date and place of its issue, authority that issued the document);
the name of the body for election to which he is proposed;
other information about him provided for by the charter or internal documents of the company; the proposal to nominate a candidate may be accompanied by the written consent of the candidate to nominate him.

It is especially worth dwelling on the timing of exercising the right to include issues on the agenda of the annual meeting of shareholders. The Law "On JSC" (clause 1, article 53) contains a rather unambiguous wording: . As you can see this period may be extended the charter of the company, but then its maximum limit is determined only by the deadline for notifying the meeting (taking into account the time for holding the Board of Directors and observing the deadlines for sending responses to shareholders).

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13.1. Shareholders (shareholder) of the Company, who in the aggregate own at least 2 (two) percent of voting shares of the Company, no later than 60 (sixty) days after the end of the financial year, have the right to put issues on the agenda of the annual General Meeting of Shareholders and nominate candidates to the Board of Directors and Audit Commission, the number of which cannot exceed the quantitative composition of the relevant body.

It should be noted that enough long time Clause 2.4 of the earlier Regulation, approved by the Decree of the Federal Securities Commission of the Russian Federation of May 31, 2002 No. 17 / ps, brought some confusion into the minds. The problem was that the text of the Regulations said that when proposals are sent by the Russian Post, the date of the proposal is considered to be the date indicated on the imprint of the calendar stamp confirming the date of dispatch. The problem turned out to be so serious that. The Supreme Arbitration Court in its decision drew attention to the fact that the “date of making a proposal” mentioned in the FCSM ruling has a completely different legal nature and is not directly related to the deadline for making proposals to the agenda of the meeting. This is the date on which the joint-stock company determines whether the shareholder has or does not have the subjective right to include issues on the agenda, and it does not extend the period during which these issues must be received by the JSC.

FFMS in order to withdraw this problem in the interpretation, introduced clause 2.5 into the new Regulation (approved by order of the FFMS of Russia dated 02.02.2012 No. 12-6 / pz-n), specifying that the date of receipt and the date of submission of proposals are different legal concepts. In the new Regulations, the norms on the date of sending proposals remained the same, but the concept of “receiving” a proposal on the agenda was detailed.

So, date of receipt of the proposal on the agenda general meeting is:

for ordinary letters - the date of receipt of the postal item by the addressee;
for custom - the date of delivery of the postal item to the addressee under a personal signature;
for courier services - the date of delivery by the courier;
in person - the date of delivery "under a personal signature";
if sent by electrical connection, email or in any other way provided for by the charter - the date determined by the charter of the company or other internal document of the company regulating the activities of the general meeting.

A sample written format for a proposal to include issues on the agenda is given in Example 6.

Example 6

Shareholder's proposal to include candidates for elective positions and issues on the agenda of the annual meeting of shareholders

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The board of directors of the company is obliged review proposals and decide whether to include them in the agenda no later than 5 days after the deadline for submission of proposals. That is, in the general case, the deadline for consideration is February 4.

The Board of Directors has the right to refuse to include proposed items on the agenda in a very limited number of cases:

if the shareholder missed the deadline;
if the shareholder does not have enough shares;
the formal requirements stipulated by the law or the company's internal documents for the execution of the submitted documents are violated, for example, there is no indication of the number of shares owned by the shareholder, or the data of the identity document of the candidate proposed by the shareholder is not indicated;
the issue is not referred to the competence of the general meeting of shareholders or does not comply with the requirements of the current legislation.

Motivated decision of the Board of Directors(see Examples 7 and 8) must be sent to the shareholders who submitted an issue or nominated a candidate no later than 3 days from the date of its acceptance. At the same time, the Board of Directors is not entitled to make changes to the wording of issues proposed for inclusion in the agenda of the General Meeting of Shareholders, and the wording of decisions on such issues.

Example 7

Positive decision of the Board of Directors regarding the proposals put forward for consideration at the annual general meeting of shareholders

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Example 8

Refusal of the Board of Directors to include the shareholder's proposals in the agenda (formulated according to the sample letter from Example 7 with the replacement of the text highlighted in orange)

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Agenda of the General Meeting of Shareholders

The current legislation determines that the following issues must be resolved at the annual general meeting of shareholders:

on the election of the Board of Directors (Supervisory Board) of the company;
on the election of the audit commission (auditor) of the company;
on approval of the company's auditor;
approval of annual reports;
annual financial statements, including profit and loss statements (profit and loss accounts) of the company;
distribution of profits (including the payment (announcement) of dividends) and losses of the company based on the results of the financial year.

With regard to any other issues within the competence of the general meeting of shareholders, the legislator indicated that they can be resolved at the annual general meeting. That is, their inclusion in the agenda is not mandatory. However, many joint-stock companies use annual general meetings to resolve a number of accumulated issues - from the approval of major transactions and interested party transactions, issues of company reorganization and ending with the approval of local regulations.

Shareholders should always remember that in addition to the issues proposed for inclusion in the agenda of the general meeting by shareholders, as well as in the absence of such proposals, the absence or insufficient number of candidates proposed by shareholders to form the relevant body, the Board of Directors (Supervisory Board) of the company has the right to include in the agenda of the general meeting of shareholders issues or candidates for the list of candidates at its discretion.

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Meeting Agenda:

Approval of the Company's annual report.
Approval of the annual financial statements, including the income statement (profit and loss account) of the Company.
Approval of the distribution of the Company's profit based on the results of 2011.
On the amount, terms and form of payment of dividends based on the results of 2011.
Approval of the Company's auditor.
On payment of remuneration for work on the Board of Directors (Supervisory Board) to members of the Board of Directors - non-state employees in the amount established by the internal documents of the Company.
On remuneration to members of the Audit Commission of the Company.
Approval of related-party transactions that may be entered into by OAO Gazprom in the future in the normal course of business.
Election of members of the Board of Directors of the Company.
Election of members of the Audit Commission of the Company.

List of persons entitled to participate in the meeting

The list of persons entitled to participate in the general meeting of shareholders is compiled on the basis of the data of the register of shareholders of the company as of a specific date. As we noted above, such a date is determined by the Board of Directors when deciding to hold a general meeting. It is usually referred to as the "closing date of the register of shareholders".

If an organization independently maintains a register of shareholders, then the list is compiled on the basis of an internal order, which, depending on the distribution of powers in the company, can be given by the chairman of the Board of Directors or, at his direction, by the sole executive body.

If the register of shareholders is maintained by a professional registrar, then the list is compiled by him based on the request of the company. The corresponding request must be sent to the registrar in advance, taking into account the time for the exchange of correspondence and the preparation of a response. Almost all registrars have "own" request forms approved by the annexes to the registry agreement they conclude with a joint-stock company.

The list of persons entitled to participate in the general meeting includes:

shareholders - owners of ordinary shares of the company;
shareholders - owners of preferred shares of the company, granting in accordance with its charter the right to vote, if such preferred shares were placed before January 1, 2002 or equity securities placed before January 1, 2002 converted into preferred shares were converted into such preferred shares;
shareholders - owners of preferred shares of the company and owners of cumulative preferred shares for which no decision was made to pay dividends or a decision was made to pay them partially;
shareholders - owners of preferred shares of the company, if the agenda of the general meeting includes the issue of reorganization or liquidation of the company;
shareholders - owners of preference shares, if the agenda of the general meeting includes the issue of introducing amendments or additions to the charter of the company that restrict the rights of shareholders - owners of this type of preference shares;
representatives of government agencies or a municipality if they have a "golden share";
managing companies of mutual investment funds, owners of shares;
the trustee (trustee of rights), on whose account the shares are recorded;
other persons directly named in the law;
if the company has shares accounted for as "securities of unidentified persons", the list of persons entitled to participate in the general meeting shall include information on their number.

Requirements for the form of the list are established by paragraph 3 of Art. 51 FZ "On JSC". A sample document is shown in Example 10. As mandatory columns, such a list should contain:

the name (name) of the person;
data necessary for its identification. Decree of the Federal Commission for the Securities Market of October 2, 1997 No. 27 (as amended on April 20, 1998) “On Approval of the Regulations on Maintaining the Register of Owners of Registered Securities” specifies that:
for individuals, this is the type, number, series, date and place of issue of the identity document, the authority that issued the document,
for legal entities - the state registration number (OGRN), the name of the body that carried out the registration, the date of registration;
data on the number and category (type) of shares for which it has voting rights;
postal address in the Russian Federation, which should be used to communicate with him.

For a more accurate identification of individuals, in our opinion, additional details are needed, such as the date and place of birth.

The date on which such a list is compiled is not established by the current legislation. However, Art. 51 of the Federal Law "On JSC" establishes the boundary indicators. So, date of compiling the list of persons entitled to participate in the general meeting of shareholders, cannot be set earlier than the date of the decision to hold the general meeting of shareholders and more than 50 days before the date of the general meeting of shareholders. That is, the upper limit is 50 days before the date of the meeting. The lower bound is determined naturally - it cannot be later than the date notice of the annual meeting.

In case of transfer of shares after the date of drawing up the list of persons and before the date of the general meeting, the former owner is obliged to issue a power of attorney to the new one to vote or vote at the general meeting in accordance with the instructions of the acquirer of shares. If there are several new shareholders, then the previous shareholder must, when voting, “split” the total number of shares previously owned by him in proportion to the blocks of new owners and vote in accordance with their instructions.

Shareholders included in the list of persons and having at least 1% of votes on any of the agenda items have the right to familiarize themselves with the list of persons entitled to participate in the general meeting. The familiarization procedure should be similar to the procedure for providing any other information (materials) related to the annual meeting.

Example 10

List of persons entitled to participate in the annual general meeting of shareholders, issued to the issuer by the holder of the register of shareholders

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Preparing for the meeting

The expenses for organizing a meeting of the Board of Directors can be carried out as representative expenses, saving on taxes if the documents are properly drawn up. Details in the article “Documents on hospitality expenses” magazine No. 3’ 2013

The most significant body in preparation for the annual meeting is the Board of Directors. It is he who determines all the basic questions and carries out preliminary preparations for this event. The law defines a number of mandatory issues that must be resolved before calling a meeting:

form of the general meeting of shareholders (meeting or absentee voting);
date, place, time of the general meeting of shareholders;
start time of registration of participants of the general meeting;
the date of drawing up the list of persons entitled to participate in the general meeting of shareholders;
the agenda of the general meeting of shareholders;
the type(s) of preferred shares entitled to vote on the agenda;
the procedure for notifying shareholders of the holding of a general meeting;
a list of information (materials) provided to shareholders in preparation for the General Meeting of Shareholders, and the procedure for its provision;
the form and text of the ballot paper in case they vote.

Moreover, all these issues must be resolved in advance, before the start of work on the convocation. It is worth noting that these issues are usually considered at the “final” meeting, however, before it is held, the Board of Directors has to repeatedly meet to resolve a number of issues, both of a “technical” nature and fundamental ones, for example, when shareholders receive questions for inclusion in agenda or candidates for appointment to the bodies of the JSC.

The above example clearly shows what issues are usually discussed at the Board of Directors in preparation for the meeting. In our opinion, the agenda should also include a discussion of the terms of the contract with the company's auditor. In addition, it is better to single out from the issue of approving the company's annual report the aspect of compliance by the joint-stock company with the Code of Corporate Conduct. The issue of compliance with such a Code and the preparation of a report on this issue should be considered separately due to both the high importance of the issue itself and the increased attention paid by regulatory authorities to it. Attention so close that it resulted in.

The work plan for the preparation of the general meeting of shareholders can be drawn up in the form of a schedule indicating the date of completion of each stage and specific executors for it and approved by the minutes of the Board of Directors. The Table lists the stages of preparing the annual general meeting of shareholders, indicating the deadlines and what regulates their establishment. It will help you prepare your own meeting.

Table

Deadlines for holding certain events for the preparation of the annual general meeting of shareholders

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Table note: When determining the dates for items 4, 5, 6 and 7 of Table 1, it is necessary to take into account the technical aspects related to the preparation of documents required for both the current and the next stage. In addition, it is necessary to take into account the possibility of the absence of a quorum on the Board of Directors and the need for its re-convening.

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Vladimir Matulevich, expert of the journal "Legal directory of the head"

The Ministry of Justice of Russia has registered a number of additional requirements for the procedure for the general meeting of shareholders. And not only to the order of its holding, but also to the preparatory stage (preparation and convocation). Let's figure it out together what other new points will have to be taken into account at the preparatory stage.

We are talking about the order of the Federal Service for Financial Markets (FFMS of Russia) dated 02.02.2012 No. 12-6 / pz-n, which approved the Regulation on additional requirements for the procedure for preparing, convening and holding a general meeting of shareholders (hereinafter - the Regulation; Order No. 12 -6 / pz-n). With the entry into force of the new Regulation (6 months after its official publication), the old resolution of the Federal Commission for Securities of Russia dated May 31, 2002 No. 17/ps “On approval of the Regulation on additional requirements for the procedure for preparing, convening and holding a general meeting of shareholders” fell out of law enforcement practice.

In general, the new Regulation repeats the previous rules. Meanwhile, there is something new in it. Most of all, the amendments affected the procedure for electing management bodies and the audit commission, the rules for determining the quorum, the requirements for accounting for votes on shares, etc. It is obvious that the main goal of the new Regulation is to increase the awareness of shareholders, aim them at more effective participation in corporate affairs and make voting more transparent and objective. First of all, it concerns additional information and materials to be provided to the participants of the general meeting of shareholders (see paragraph 3 of article 52 of the JSC Law and section III of Order No. 12-6/pz-n). Of course, this will require a lot of time and organizational costs from the legal, record keeping and accounting departments.

Since the agenda may be different and, therefore, different information needs to be prepared. For convenience, we present all the data in the form of a table:

It is important that any of the listed types of information and materials must be provided (clause 3.6 of the Regulations):

in the premises at the address of the sole executive body;
in other places, the addresses of which are indicated in the notice of the general meeting.

If a person entitled to participate in the General Meeting of Shareholders requires copies of documents, this must be done within 7 (previously - 5) days from the date of receipt of the request. A shorter period may be provided for by the charter or internal document regulating the activities of the general meeting. Payment for copies should not exceed the cost of their production.

Numerous requirements for the content of the company's annual report, which is submitted for approval by the general meeting, are completely excluded from the new Regulations. But do not worry: they are in the Regulation on the disclosure of information by issuers of equity securities (approved by order of the Federal Financial Markets Service of Russia dated 04.10.2011 No. 11-46 / pz-n).

A separate rule applies to the list of persons entitled to participate in the general meeting: it can be provided for review only at the request of the person (persons) included in it and possessing (possessing) at least 1% of the votes on any issue on the agenda (p. 3.7 Regulations).

Another innovation of Order No. 12-6 / pz-n, concerning preparatory phase, lies in the fact that, compared with the previous procedure, the request to hold an extraordinary meeting can be sent to the company and with the help of courier service. Each proposal must be signed personally by the shareholder or his representative. Otherwise, it is considered not received (clause 2.2 of the Regulations). Moreover, the power of attorney of the representative must be drawn up in accordance with the rules of the JSC Law (clause 1, article 57). Increased requirements are set for the power of attorney to vote.

Where to meet? The regulation (unlike the JSC Law) states that the general meeting must be held at the location of the company, i.e. in a specific settlement (city, town, village). Please note: a different place can only be determined in the charter. And in the notice of the general meeting, a specific address must be indicated (clause 3.1 of the Regulations).

The nuance with the postal address of the company is important when a shareholder can vote (fill out the ballot) at home. So: in fact, it does not matter what postal address is indicated in the notice of the general meeting. The main thing is that the ballot should be sent to the address indicated in the Unified State Register of Legal Entities or in the charter, document on the general meeting (clause 4.2 of the Regulations).

The JSC Law (clause 1, article 54) contains a closed list of general organizational issues that management must decide before the general meeting (date, place, time, agenda, lists of participants, etc.). Order No. 12-6 / pz-n added 2 more mandatory ones to them:

determine the type (types) of preferred shares that are entitled to vote on the agenda;
determine the start time for the registration of participants in the general meeting.

Thus, a kind of hierarchy of documents has been established that should guide the preparation, convening and holding of a general meeting. In the first place is the JSC Law, followed by the order of the Federal Financial Markets Service No. 12-6 / pz-n, the company's charter, internal documents regulating the activities of the general meeting. And this is not counting the clarifications of the FFMS of Russia.

Announcement of the annual meeting

The announcement of the general meeting of shareholders must be made no later than 20 days, and if the agenda of the annual meeting puts questions about the reorganization of the company, then no later than 30 days before the date of its holding. It is on this basis that the date of closing the list of persons entitled to participate in the meeting is usually determined. It should be noted that the Code of Corporate Conduct (paragraph 2, clause 1.1.2), taking into account the importance of timely notification of shareholders about the holding of a general meeting, recommends reporting it 30 days before it is held (unless a longer period is provided by law).

The notice of holding a general meeting of shareholders must be sent to each of the list of persons entitled to participate in the general meeting of shareholders. The joint-stock company is quite free in choosing the method of notification. The law (clause 1, article 52 of the Federal Law "On JSC") provides for the following possibilities:

postal item (by registered mail or other postal item);
by courier in person;
publication in a printed publication specified by the charter, and the legislator specifically emphasized that such a publication should be available to all shareholders of the company (please note that this provision of the law will change in 2014: publications in a printed publication will have to be simultaneously "duplicated" on the company's website on the Internet , moreover, a complete replacement of the publication in the printed edition with the placement of this information on the website is envisaged).

In addition, the company has the right to additionally inform shareholders about the holding of the general meeting of shareholders through other mass media (television, radio).

It is easy to understand that in AO with a large number shareholders an unsuccessful choice of notice can lead to serious financial costs. Even sending out several thousand registered letters, not to mention the cost of courier delivery, can have a rather serious impact on a company's operating costs.

Example 12

Ways of informing about the holding of a general meeting of shareholders in the charters of real companies

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“21.1. The notice of holding the General Meeting of Shareholders must be made no later than 30 days before the date of its holding…

Within the specified timeframe, the announcement of the General Meeting of Shareholders shall be published in the Rossiyskaya Gazeta and/or Tribuna newspapers. The Company has the right to additionally inform shareholders about the General Meeting of Shareholders through other mass media (television, radio)”.

“8.11. …Within the specified timeframe, the announcement of the General Meeting of Shareholders must be published in the Vybor printed publication.

form of holding the general meeting of shareholders (meeting or absentee voting);

date, place, time of holding the general meeting of shareholders (at the same time, the address where the meeting will be held must be indicated as the place of holding the general meeting), the start time of registration of persons participating in the general meeting;

date of compilation of the list of persons entitled to participate in the general meeting of shareholders;

agenda of the general meeting of shareholders;

the procedure for familiarization with the information (materials) to be provided in preparation for the General Meeting of Shareholders, and the address (addresses) at which it can be familiarized.

In addition, the data/documents necessary to provide the shareholder can be included in the list of documents attached to the notice of the meeting sent by mail or courier (unless, of course, any of these documents are confidential).

In this issue of the magazine, we reviewed the issues and problems that need to be resolved as part of the preparation of the annual general meeting of shareholders, which is mandatory for all joint-stock companies. In the next issue, we will focus your attention on the issues of holding and formalizing decisions taken at such a meeting.