The procedure for holding a general meeting of shareholders. Annual general meeting of shareholders: preparation and holding

Photo by Evgeny Smirnov, IA Clerk.Ru

If the company is registered as a limited liability company (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 on 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.

For your information! 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, for 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 the negative consequences that are possible if it is not held.

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! Based federal law dated July 2, 2013, No. 142-FZ, 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 provided for by law, i.e. a professional participant in the securities market who maintains 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 the full content of the message about the meeting.

However, it should not be forgotten that other possible ways notifications are not repealed by law, for example, through printed 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 was 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 indicated by the company for voting.

For your information! 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 the issue of approving a new version of the charter (or amendments to it) on the agenda of the general meeting of shareholders 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 31 December of the financial year following the reporting one. 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 an 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.

For your information! personal income tax:

from 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 paid to a legal entity that owns more than a 50% stake 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 issuance of dividends, the organization thereby commits an 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.

In this issue, we focus your attention on the preparation of documents in the process of registration of participants who arrived at the General Meeting of Shareholders; a ballot paper, along the way explaining the rules for ordinary and cumulative voting; the minutes of the meeting itself, as well as the minutes and report of the counting commission. We explain what design variations are possible, taking into account the latest innovations of the FFMS.

Counting Commission

In a company with more than 100 shareholders (owners of voting shares), a counting commission is created, the quantitative and personal composition of which is approved by the general meeting of shareholders. If the holder of the register is a professional registrar, he may be entrusted with the functions of the counting commission. If there are more than 500 owners of voting shares, then the functions of the counting commission must be performed by the registrar (moreover, it is the one that maintains the register of shareholders of this joint-stock company).

The counting commission must have at least 3 people. In addition, the counting commission cannot include:

members of the Board of Directors (Supervisory Board) of the company;
members of the audit commission (auditor) of the company;
members of the collegial executive body of the company;
the sole executive body of the company (usually the general director), as well as the managing organization or manager,
as well as persons nominated by candidates for the above positions.

The tasks of the counting commission include:

verification of powers and registration of persons participating in the general meeting of shareholders;
determination of the quorum of the general meeting of shareholders;
clarification of issues arising in connection with the exercise by shareholders (their representatives) of the right to vote at the general meeting;
clarification of the voting procedure;
ensuring the order of voting;
vote counting;
summing up the voting results;
drawing up a protocol on the results of voting and transferring it to the archive along with voting ballots.

The order of work, the status and powers of the counting commission in an OJSC, as a rule, are regulated by a separate local regulatory act. It is approved by the general meeting of shareholders and is one of the main documents of the organization. In our opinion, it should contain General requirements to the procedure for drawing up the protocols of the counting commission. There may be two:

the first protocol - on the results of the registration of shareholders at the general meeting (this document is needed primarily to determine the quorum on the agenda of the meeting);
and, of course (according to the requirements of Article 62 of the Federal Law “On Joint-Stock Companies”), a protocol on the results of voting, on the basis of which a report on the results of voting is drawn up. The protocol on the results of voting at the general meeting is signed by the members of the counting commission, and if the functions of the counting commission were performed by the registrar, by persons authorized by the registrar. If the number of shareholders is less than 100, then the counting commission may not be created; then such minutes are signed by the chairman of the meeting and the secretary.

Registration of shareholders and their representatives

The General Meeting of Shareholders is always preceded by the procedure for registering participants. Within the framework of this procedure, the powers of persons who have expressed their desire to participate in the General Meeting of Shareholders (GMS) are established. Registration of persons participating in the GMS must be carried out at the address of the place where this meeting is held. The registration process is essentially a process of identifying arrivals by comparing the data contained in the list of persons eligible to participate in the OCA with the data of the documents presented.

If the interests of shareholders are represented by proxies, then their powers should also be checked - the documents submitted by them are checked formally:

If we are talking about a power of attorney, then you need to establish:
- whether the term of office has expired. A power of attorney is always issued for a certain period of time. The Civil Code of the Russian Federation established the maximum period of its validity - 3 years. The term of validity in the power of attorney may not be specified, in which case it is considered valid for 1 year from the date of issue. The date of issue of the power of attorney is its mandatory requisite, without which it is invalid! A power of attorney can be issued not only for a term, but also for participation in a specific meeting of shareholders;
- whether the power of attorney contains all the necessary information. In accordance with the Federal Law "On Joint-Stock Companies", a power of attorney for voting must contain information about the person represented and the representative:
  - for an individual - the name, details of the identity document (series and (or) number of the document, date and place of its issue, the authority that issued the document),
  - for the organization - name, information about the location;
- whether the revocation of the power of attorney was previously received by the joint-stock company;
- Are the signatures properly certified? If the power of attorney to vote is issued individual then it must be notarized. If issued by a legal entity, then it is necessary to take into account the requirements of paragraph 5 of Article 185 of the Civil Code of the Russian Federation2.
If we are talking about a person acting as the sole executive body (SEO) legal entity-shareholder, in addition to his identity (by presenting a passport), it is necessary to check:
- the title of the position and powers of such official. This can be established by the charter of the shareholder organization (usually a notarized copy is presented);
- the fact that a person who came to your meeting was appointed to the position indicated in the charter as the CEO. Depending on the organizational and economic form, you can present a protocol or a decision of the authorized body (for an LLC - a general meeting of participants, for a JSC - a general meeting of shareholders or the Board of Directors, for institutions - the decision of the founder), as well as an extract from it. Additionally, you can be asked to provide an extract from the Unified State Register of Legal Entities confirming the fact that this information has been entered into it. However, it must be remembered that the register is for informational purposes only and the main document is the appointment protocol;
- if the CEO is limited in authority, then in addition to the documents confirming his authority to represent the interests of the legal entity without a power of attorney, there must also be a protocol from the higher body of the legal entity-shareholder that has the authority to make decisions. Moreover, such a protocol should contain the exact wording of the agenda items and a decision on how to vote on them.

The transfer of the shareholder’s right to participate in the GMS to a representative is fixed in the Regulations on the General Meeting of Shareholders of OJSC Kulebaksky Metal Structures Plant3

Article 28. Transfer of the right to participate in the general meeting of shareholders

1. Transfer of rights to a representative of a shareholder is carried out by issuing a written authorization - a power of attorney.

2. A shareholder has the right to issue a power of attorney both for all shares belonging to him, and for any part of them.

3. A power of attorney can be issued both for the entire range of rights provided by the share, and for any part of them<...>

8. The shareholder has the right to replace his representative at any time and personally exercise the rights granted by the share, terminating the power of attorney. The shareholder has the right, without terminating the power of attorney, to replace his representative and personally exercise the rights granted by the share<...>

If the representative's power of attorney is revoked in the specified order, he cannot be registered to participate in the general meeting of shareholders.

Samples of a general, special and one-time power of attorney, as well as a power of attorney in English with an apostille and its translation into Russian, general rules You will find the execution of this document in the article “We issue powers of attorney to represent the interests of the organization” in No. 10’ 2011 and No. 11’ 2011

Here are two samples of power of attorney:

for a simple case, when one trustee fully represents the interests of the shareholder at the GMS, without any restrictions (see Example 15), and
for a more complex one, when the transfer of powers is carried out only for a part of the shares (see Example 16).

These powers of attorney are slightly different in the way some details are placed. In both, the text is divided into semantic paragraphs, which does not correspond to the usual rules of the Russian language, but allows you to quickly find key information: who entrusted whom and what (this type of power of attorney is becoming more common).

Pay attention to the details that are used to identify the organization and individual appearing in the power of attorney.

But the law does not require the presence of a signature of an authorized person in this document (without it, the power of attorney will also be valid), just its presence will help to additionally protect against fraudulent actions, because. allows you to compare the signature sample in the power of attorney with the strokes that the representative will put on other documents.

Power of attorney to participate in the OCA - general case

Power of Attorney for the transfer of powers on part of the shares

The list of participants in a meeting held in the form of joint attendance is recorded by filling out the Participants Registration Book (Example 17). If shareholders send ballots to the company (instead of attending the meeting in person), it seems appropriate to draw up a record of registration of received ballots, which reflects the dates of their receipt (according to the last date on the postmark). In addition, a protocol of registration of participants in the general meeting of shareholders is drawn up (Example 19). The requirements for the form and content of the registration forms listed by us here are not established, therefore, each JSC is free to develop them for itself, following common sense (you can also use our samples).

We will only note a number of information that it is advisable to include in the GMS Participants Registration Journal by virtue of the Regulation on additional requirements for the procedure for preparing, convening and holding a general meeting of shareholders, approved by order of the Federal Financial Markets Service of Russia dated 02.02.2012 No. 12-6/pz-n4:

notices of the meeting must indicate the start time of registration (clause 3.1 of the Regulations). Recording in the Journal the actual start time of registration will help to confirm that registration began at the time indicated in the notice of the AGM. See note 1 in the Journal from Example 17;
according to clause 4.6 of the Regulations, “registration of persons participating in a general meeting held in the form of a meeting must be carried out at the address of the place where the general meeting is held.” The indication of this address in the Journal will serve as additional confirmation of compliance with these requirements. See note 2 in Example 17;
the fact of checking the identity documents of those who arrived at the meeting (i.e. the fulfillment of clause 4.9 of the Regulations) will additionally confirm the presence in the Journal of the completed column marked with the number 3 in Example 17;
a personal account is opened for each person registered in the register of shareholders - the owner, nominal holder, pledgee or trustee. It contains data not only about the registered person, but also about the type, quantity, category (type), state registration number of the issue, the nominal value of securities, numbers of certificates and the number of securities certified by them (in the case of a documentary form of issue), encumbrance of securities securities obligations and (or) blocking transactions, as well as transactions with securities. The procedure for assigning numbers to personal accounts is determined by the internal documents of the organization that maintains the register of shareholders. See note 4 in Example 17.

Voting ballot

If there are more than 100 owners of voting shares in a joint-stock company, then voting at the annual meeting of shareholders of the company must be carried out without fail using voting ballots. If the number of shareholders is smaller, you can do without them, but it is worth noting that if more than 7–10 people participate in the meeting, then the use of ballots, in our opinion, will already justify itself. Firstly, it speeds up the voting process itself, and secondly, it reduces the risk of shareholders confronting the company about their actual will expressed during the voting.

The current legislation (paragraph 2, clause 2, article 60 of the Federal Law “On Joint-Stock Companies”) provides that if there are more than 1,000 shareholders in a company, then ballots must be sent to them in advance. This is usually done in conjunction with the distribution of the OCA5 notice.

If there are fewer of them, then the requirement for mandatory distribution can be enshrined in the charter of the JSC. Timely mailing of ballots in small companies allows to increase the level of trust in the governing bodies, and in large companies it significantly simplifies the counting of votes. In addition, paragraph 3 of Art. 60 of the Federal Law "On JSCs" for those who distribute ballots, makes a certain indulgence: the shareholders of these JSCs will be able to take part in the meeting in person or send the completed ballots to the company for absentee voting (when determining the quorum and summing up the voting results, the votes represented by the ballots, received by the AO no later than 2 days before the date of the GMS).

In all other cases, ballots are distributed during the registration of shareholders at the GMS.

the form of the GMS (meeting or absentee voting);
date, place, time of the GMS and the postal address to which completed ballots can be sent;
wording of decisions on each issue (name of each candidate), which is voted on by this ballot6;
voting options for each item on the agenda, expressed as “for”, “against” or “abstained”. Opposite each voting option, there should be fields for putting down the number of votes cast for each voting option, or it may contain an indication of the number of votes belonging to a person entitled to participate in the general meeting (the second option is implemented in Example 18);
if there is a cumulative vote on the issue, this should be specifically noted;
a mention that the voting ballot must be signed by the shareholder (see note 1 on the ballot from Example 18);
The bulletin should explain the rules:
- ordinary voting - when only 1 answer option must be selected on the agenda item: “for”, “against” or “abstained” (see mark 2 in Example 18) and
- cumulative (if the questions put to such a vote are in the ballot) - it is used to select candidates for positions. Moreover, the number of candidates among whom votes are distributed during cumulative voting may exceed the number of persons to be elected (for example, the Board of Directors consists of 5 people, and 9 people apply for these places, and only those who get the most votes will go to this collegial body ) - mark 3 in Example 18.

Example 18 demonstrates filling out a ballot for ordinary voting (questions No. 1, 2 and 3 of the agenda) and for cumulative voting (question No. 7).

procedural issues

choose the Chairman of the meeting;
the secretary of the meeting, as a rule, is appointed by the chairman, but a different procedure may be prescribed in the charter or other document of the JSC (clause 4.14 of the Regulations);
choose a counting commission, which can operate during one meeting or, for example, a whole year; the functions of the counting commission can also be performed by the registrar maintaining the register of shareholders of this joint-stock company; Let us recall that if a JSC has less than 100 shareholders, then its functions can be performed by the chairman and secretary of the meeting.

Let us dwell separately on the problem of reflecting a number of procedural issues in the minutes of the GMS and the bulletin. The most common of these is the election of the Chairman and Secretary of the meeting. There are several options, but their choice is not the arbitrariness of the AO. It depends on the order, which is set out in its Charter.

As a general rule, the election of the Chairman, secretary of the annual GMS cannot be carried out at the meeting itself; the obligation to chair the GMS is assigned by law to the Chairman of the Board of Directors, unless otherwise provided by the Charter; and the procedure for performing the functions of the Chairman in his absence is determined by the local regulatory act of the JSC (for example, the Regulations on the Board of Directors). Thus, if there is no special clause in the Charter that the Chairman must be elected at the annual GMS, then there can be no question of any voting on his candidacy. The annual meeting is chaired either by the Chairman himself or, in his absence, by a person who performs his functions in accordance with internal local acts.

The situation with the secretary before the entry into force of the Regulations was rather confused. However, now it is clearly regulated by clause 4.14 of this document: “The secretary of the general meeting is appointed presiding at the general meeting, unless the charter or internal document of the company governing the activities of the general meeting establishes a different procedure for his appointment (election).”

If there are reservations in the Charter or local act of the JSC about the election of the Chairman and Secretary, then this issue, in our opinion, should be included in the Agenda of the meeting and voting ballots under No. 1. At the same time, it must be understood that such reservations can lead to rather problematic situations, especially in the course of corporate conflicts. The company may find itself in a situation where holding a meeting is impossible because the shareholders have not reached an agreement on candidates as part of resolving a procedural issue.

Who performs the functions of the counting commission is usually also decided before the meeting.

Because the issue of determining the quorum at the meeting is important, then to confirm the presence of a quorum, the counting commission may draw up such a procedural document as a protocol on the results of registration of shareholders at the GMS (Example 19).

Protocol on the results of registration of shareholders at the GMS

Note to Example 19: in order to speed up the work, a protocol template can be prepared in advance, while the columns “registered” and “total number of votes of registered shareholders” remain blank, which are then filled in by hand before signing the document.

As a rule, the first version of the document is drafted to be presented to the Chairman before the start of the AGM. Then such documents can be prepared immediately before the hearing of each issue (registration continues, and suddenly it was possible to gain a quorum on those issues for which it was not at the beginning of the meeting). Such a protocol is not mandatory and is quite often replaced by something like reports or memorandums signed by the chairman of the counting commission. This document contains information on the total number of shareholders and the number of shareholders registered at the time of the commencement of the AGM.

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

The regulation clearly establishes that the general meeting can be opened if there is a quorum for at least one issue from the agenda (clause 4.10). At the same time, those wishing to take part in the meeting have the opportunity to register even after the discussion of the last item on the agenda (for which there is a quorum), but before the start of voting.

If, by the time the meeting starts, there is no quorum on any of the agenda items, it is possible to postpone the opening, but for a maximum of 2 hours. A specific period can be prescribed in the charter or internal document of the JSC that regulates the activities of the GMS. If this is not done, then the opening can only be postponed for 1 hour. And to do this indefinitely will not work: the transfer is possible only 1 time.

In order to avoid corporate disputes and to achieve complete objectivity of voting, paragraph 4.20 of the Regulations provides complete list types of shares, the possession of which does not affect the quorum.

The Regulations refer to the final documents of the general meeting:

minutes of the general meeting;
protocol on voting results;
voting results report (if decisions made and the voting results were not announced during the meeting);
documents adopted or approved by decisions of the general meeting.

The FFMS in Order No. 12-6/pz-n described in some detail the requirements for each document. So, in the minutes it is enough to reproduce the main provisions of the speeches. At the same time, compared to old rules the list of information that should be in the protocol has expanded.

In recent years, the state in corporate relations has actively supported the side of shareholders as initially more disadvantaged in comparison with the "top" of the joint-stock company. An illustrative example is the appearance of article 15.23.1 in the Code of Administrative Offenses of the Russian Federation, which establishes liability, including for violating the procedure for preparing and holding general meetings of shareholders. This article provides for considerable fines, the order of numbers is as follows - from 2,000 to 700,000 rubles. (and, as an option, disqualification). Arbitration practice shows that this article is “in demand” among the courts and the Federal Financial Markets Service of Russia. So it makes sense to get to know her.

Minutes and report on voting results

The minutes of the general meeting of shareholders are drawn up no later than 3 working days after the closing of the general meeting of shareholders in 2 copies. Both copies are signed by the Chairman of the GMS and the Secretary of the GMS. The minutes of the general meeting indicate (clause 4.29 of the Regulations):

full company name and location of JSC;
type of general meeting (annual or extraordinary);
form of its holding (meeting or absentee voting);
date of compilation of the list of persons entitled to participate in the GMS;
the date of the AGM;
the location of the GMS held in the form of a meeting (the address where the meeting was held);
Agenda of the OCA;
start time and end time of registration of persons who had the right to participate in the GMS held in the form of a meeting;
the opening and closing times of the GMS held in the form of a meeting; and if the decisions adopted by the general meeting and the results of voting on them were announced at the meeting, then also the time when the counting of votes began;
the postal address(es) to which the completed voting ballots were sent during the GMS in the form of a meeting (if voting on the issues included in the agenda of the GMS could be carried out by absentee voting);
the number of votes owned by the persons included in the list of those eligible to participate in the GMS on each item on the agenda of the general meeting;
the number of votes accounted for by voting shares of the company on each agenda item;
the number of votes possessed by the persons who took part in the general meeting, indicating whether there was a quorum (separately for each item on the agenda);
the number of votes cast for each of the voting options ("for", "against" and "abstained"), for each agenda item for which there was a quorum;
the wording of decisions taken by the general meeting on each agenda item;
the main provisions of the speeches and the names of the speakers on each issue of the agenda, if the AGM was in the form of a meeting;
chairman (presidium) and secretary of the OCA;
date of drawing up the minutes of the GMS.

As you can see, the content of the protocol as one of the main corporate documents is determined by the current legislation in sufficient detail. At the same time, the form of information presentation is not regulated in any way, so they compose it in different ways:

Some AOs post material “on issues”, that is, they give a description in sequence:
- item on the agenda;
- speeches on this issue;
- decision and voting results on this issue.
Other AOs give material in logical blocks:
- agenda;
- speeches on each item on the agenda;
- decisions and voting results on all issues.

Lawyers monitor the observance of the mandatory requirements of the current corporate legislation for the content of the GMS minutes more than the rules for drawing up the minutes that we developed in the Soviet period and now have a recommendatory nature. Therefore, many go the second way. He is especially loved in large joint-stock companies, because with a large number of speakers and voting shareholders, he allows you to draw up a protocol with two independent blocks divided by time:

speeches are recorded directly following the results of the meeting on the wall or audiograms of speeches. At the same time, it is possible to work separately on each issue on the agenda, i.e. a large number of specialists can work on a document at the same time;
and the vote count is added to the protocol a little later, after the ballots have been counted.

We will give a sample of the minutes of the general meeting of shareholders in Example 20, drawn up according to the first scheme, which is more familiar to the audience of our magazine. It should be noted that in this case it is rational to use separate ballots for voting, when each issue is voted by its own ballot. This will significantly speed up the counting of votes, and in JSCs with a small number of shareholders it will even make it possible to announce the results of voting on an issue during the meeting itself.

The protocol on the results of voting at the general meeting and documents adopted or approved by the decisions of this GMS shall be attached to the minutes of the general meeting without fail.

Based on the results of voting, the counting commission draws up a protocol signed by all members of the counting commission (Example 21). It must be drawn up no later than 3 working days after the closing of the GMS. Decisions adopted by the general meeting of shareholders, as well as voting results:

are announced at the meeting itself (during which the vote was taken), or
are communicated in the same manner in which the shareholders were notified of the GMS (mailing or publication in the media) no later than 10 days after the compilation of the protocol on the voting results in the form of a report on the voting results (Example 22).

In addition, let us clarify: a protocol on the results of voting is always drawn up (this follows from paragraph 4 of article 63 of the Federal Law "On JSC" and additional clarification in paragraph 4.28 of the Regulations). And in the event that the decisions adopted by the GMS and the voting results were not announced during the meeting at which the voting was held, an additional report on the voting results is also compiled. There is also some difference in the details of the documents: the most serious difference is that the protocol is signed by the members of the counting commission, and the report is signed by the chairman and secretary of the OCA.

After drawing up and signing the protocol on the results of voting, the voting ballots are sealed by the counting commission and deposited in the archive of the company for safekeeping. At one time, the FCSM determined the period of storage of ballots: “until the joint-stock company ceases to operate”7.

Read about the storage of documents of the General Meeting of Shareholders on the website "How to store documents related to the holding of the General Meeting of Shareholders?"

The Annual General Meeting of Shareholders cannot be "absentee", it is always held in the form of an in-person meeting. Even if all the shareholders sent completed ballots and did not appear in person, from a formal point of view, this is still a face-to-face meeting with the package of documents that we are talking about in this article.

Also pay attention to the numbering and dates of the protocols: the date is a mandatory identification requisite, and the number may be missing.

Read about the design of stitching on the website "How to properly arrange the stitching of multipage documents?"

The minutes of the annual general meetings of shareholders may not be numbered at all. If a second meeting is held within a calendar year, then its minutes are immediately assigned No. 2, and the first minutes (of the annual meeting) remain without a number. Such details of the minutes as a date reflect the date of the meeting, and not the date of signing the minutes (we draw your attention to this, because these events often do not occur on the same day). At the same time, it is necessary to follow correct wording on the agenda, which reflects the year (for example, the minutes of the annual meeting in 2013 will include "Approval of the Company's annual report for 2012").

As for the protocols of the counting commission, they are numbered within the limits of the work of the counting commission in a certain composition. Usually they prefer to create / form a counting commission in one composition per meeting, then, for example:

under No. 1 there will be a protocol on the results of registration of shareholders,
under No. 2 - interim protocol on the results of voting and
under No. 3 - protocol on the results of voting.

If the counting commission is formed to work at several meetings, for example, within a year, then at the second meeting the protocol of this counting commission on the results of registration of participants will already be No. 4, and the next one on the voting results at the meeting will be No. 5, etc.

Minutes of the general meeting of shareholders

Note to Example 20: The decisions taken at the meeting are of an administrative nature and are formulated accordingly. Pay attention to their numbering: the first digit repeats the number of the issue on the agenda, and the second numerates the decisions taken on this issue. After all, there may be more than one of them, for example, under No. 9 on the agenda is the approval of a certain local regulatory act, but the shareholders, in addition to its approval, may decide to instruct specific performers to develop another document by a certain date. In such a situation, there will already be 2 decisions on one agenda item with numbers 9.1 and 9.2.

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

Annual general meeting of shareholders - significant 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 company's management take an active part 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 media, which disseminate information about the results achieved by the society and about the decisions taken at the meeting.

In recent years, the attitude of domestic companies to the preparation and holding of annual meetings has begun 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 city

The Board of Directors (BoD) plays a key role in the preparation and holding of the annual general meeting of shareholders - as provided for by the JSC Law, and this is what good corporate governance requires. 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 them) no later than five days after the deadline for submitting proposals, i.e. e. no 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 rectify 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 on whether the candidate is a member, general director, member of the management body or an employee of a legal entity competing with the company (in clause 2.1.2 of Chapter 3 of the Code it is recommended not to elect such a candidate to the board of directors in order to avoid a conflict of interest); );

By June 30, joint-stock companies are required to hold an annual general meeting of shareholders, which is the supreme governing body of a joint-stock company. On it, business co-owners resolve key issues related to the activities of the company: reorganization and liquidation of the company, amendments and additions to the charter, election of the board of directors and early termination of its powers, increase and decrease in the authorized capital, payment of dividends, etc.

The requirement that the annual general meeting of shareholders (hereinafter referred to as the meeting) must be held no earlier than two months and no later than six months after the end of the financial year is established in paragraph 1 of Art. 47 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint Stock Companies” (hereinafter referred to as the JSC Law).

Taking into account the provisions of Federal Law No. 99-FZ dated 05.05.2014 on expanding the powers of the collegial executive body, on the possibility of introducing two directors at once into the company, etc., at the meeting it is also possible to approve the charter of the JSC in a new edition, including new provisions at the discretion of the owners business.

Who initiates the convening of the meeting

The annual general meeting of shareholders is convened at the initiative of the board of directors of the company, the head of the company, or other persons, including the shareholders themselves, who collectively own at least 2% of voting shares in the authorized capital of the company.

If the company evaded convening the meeting, the shareholder who owns a block of shares in the specified amount is entitled to file a corresponding claim with the court (decree of the Arbitration Court of the West Siberian District dated March 23, 2016 in case No. A27-19348 / 2015). At the same time, even the actions taken voluntarily by the company to prepare the meeting after filing a lawsuit with the court do not exclude the possibility of its satisfaction (decree of the Central District Arbitration Court dated August 10, 2016 No. F10-2119 / 2016).

The exception is the case when the meeting actually took place, and all issues included in the agenda, including those requested by the plaintiff, were considered. In such a situation, the satisfaction of the claim entails the unenforceability of the court decision, since in fact the rights of the plaintiff were restored (decree of the Arbitration Court of the Far Eastern District of December 28, 2015 No. F03-5240 / 2015).

Meeting procedure: registrars and notaries

The meeting is held either by a registrar who maintains the register of shareholders of the company, or by a notary who works within the notary district at the location of the company.

For notaries, such an operation is relatively new, not yet worked out in detail, since the standard regulation for performing a notarial act was approved quite recently (Manual for certifying by a notary a decision by a general meeting of participants in a business company and the composition of the participants in the company who were present at its adoption, approved by the Federal Notary Chamber RF 1).

The advantage of working with a professional registrar, in addition to the fact that he has already developed the practice of holding corporate meetings, is the conclusion of a separate agreement for holding a meeting on a specific date. This removes the risk of disrupting the meeting and bringing the AO to liability, since it will be entitled to recover its losses at the expense of the registrar if the disruption of the meeting occurs through his fault. Having concluded an agreement with the registrar, the company can normally carry out work on organizing and preparing a corporate event without fear of negative consequences.

Notaries, when performing a notarial act to certify the adoption of a decision by the meeting and the composition of the shareholders who were present at its adoption, do not conclude agreements with the company. Accordingly, they also do not accept obligations to be present at the meeting on a specific date and do not bear responsibility. The notary may agree to hold a meeting and then at the very last moment, due to a change in circumstances, refuse to participate in it.

The final price of all notary services is also unknown, which may change during the event.

With the registrar, a fixed remuneration for a range of services can be set in the contract, and he will no longer be able to change it upwards without the consent of the JSC (Articles 309, 310 and 450 of the Civil Code of the Russian Federation). The registrar may be obligated in the contract to carry out all the actions that are necessary to organize the meeting, or only part of them in order to save money. For example, a joint-stock company can independently send out messages about the meeting, as well as a report on the voting results, which must be sent to all shareholders (clause 4, article 62 of the JSC Law).

When agreeing with the registrar on the date of the meeting, the JSC must first familiarize itself with the prices accepted by the registrar for this service, taking into account increasing coefficients due to the many orders coming from various issuers. If possible, it is better not to postpone the meeting until the very last moment and check with the registrar the most optimal time to carry it out.

To hold a meeting, a joint-stock company must order from the registrar a list of persons entitled to participate in the meeting of shareholders, as well as send a mailing to all shareholders about the date, time and place of the meeting, about the issues included in the agenda. This list is compiled no more than 50 days before the date of the meeting, and the notice is sent to shareholders by registered mail no earlier than 20 days before the date of the meeting (Articles 51-52 of the JSC Law).

The list of persons entitled to participate in the meeting is compiled by the registrar on the basis of the data contained in the shareholder register system. A company with a registrar is jointly and severally responsible for maintaining and storing the register of shareholders, but within the framework of holding a meeting of shareholders, it is guided by the list that the registrar prepares for it upon request. Therefore, if one of the shareholders did not get to the meeting due to the lack of information about him in the list under consideration, he must address the claims to the registrar.

The company cannot be held administratively liable for violating the procedure for holding a meeting (Article 15.23.1 of the Code of Administrative Offenses of the Russian Federation), since it is not to blame for the registrar's improper performance of his duties. In addition, the shareholders themselves bear the risk of not receiving notices at their place of residence if the register of shareholders does not contain up-to-date information (decree of the Arbitration Court of the North Caucasus District dated November 23, 2016 in case No. A53-905 / 2016).

Before ordering a list of persons entitled to participate in the meeting, it will not be superfluous to look at the terms of the agreement with the registrar for the storage and maintenance of the register. It is possible that for the annual general meeting it will provide discounts for the production of this list, or it will be provided free of charge. For example, the agreement with the registrar may contain a condition that the list can be provided free of charge once during the term of the agreement.

Notice of the meeting

In the notice of the meeting, it is necessary to indicate the date, time and place of the meeting, the date of drawing up the list of persons entitled to participate in it, the agenda, as well as the procedure for familiarizing with the materials for the meeting. During the meeting, shareholders will have to consider all agenda items and vote on them, while they are not entitled to consider issues that are not included in the agenda (Resolution of the Federal Antimonopoly Service of the Urals District dated January 17, 2012 No. F09-8843 / 11).

When specifying in the notice the place of the meeting, the JSC must be guided by the information from its charter. If the charter does not specify the place of the meeting, the meeting must be held at the location of the JSC specified in the Unified State Register of Legal Entities, in accordance with clause 2.9 of the Regulation on additional requirements for the procedure for preparing, convening and holding a general meeting of shareholders, approved. by order of the Federal Financial Markets Service of Russia dated 02.02.2012 No. 12-6/pz-n (hereinafter - Regulation No. 12-6/pz-n).

A notice of the meeting is sent to all shareholders by registered mail with a list of attachments or may be published in a printed publication or posted on the company's website on the Internet, if such a possibility is provided for by the charter. When placing a message in a printed publication, it must be taken into account that such a publication must be publicly available in the relevant locality so that shareholders have access to it (Decree of the Federal Antimonopoly Service of the East Siberian District dated September 4, 2013 in case No. A19-13535 / 2012).

The place of the meeting should be clearly indicated in the message so that the shareholders do not have any difficulties when arriving at the place. A simple indication of the address of the building without indicating the number of the premises in which the meeting of shareholders will be held is a violation (Decree of the Arbitration Court of the Volga-Vyatka District dated December 17, 2014 No. Ф01-5146 / 2014).

If one of the shareholders considers that his rights and legitimate interests have been violated by the company and he has not received notice of the meeting, the JSC will have to present an inventory of the investment, from the contents of which it will follow what letter and with what content was sent to a particular shareholder. In such a situation, the shareholder’s statement, for example, that he received an empty letter or postcard instead of a message about the meeting, will be unfounded, and the court will reject it as contradicting the case materials (decree of the Federal Antimonopoly Service of the West Siberian District dated April 26, 2013 in case No. A75 -1719/2012).

In such a situation, any reasonable shareholder, having received an empty letter, must apply to the JSC for appropriate clarifications in order to check whether an error or intentional violation of his corporate rights has occurred in order to take timely action.

When posting a notice of a meeting on the website of a joint-stock company, it is necessary to take into account such an important point as the age of shareholders. If these are mostly elderly people, using such a notification method as posting information on a website can be difficult for them, which must be taken into account by society due to the principles of good faith and reasonableness (Article 1 of the Civil Code of the Russian Federation). Therefore, it is better to use the site as an additional method of notification, and not as the main one.

Disclosures and Agenda

The information that must be disclosed to shareholders (Article 52 of the JSC Law) includes the company's financial statements, information about members of the audit commission and candidates for the board of directors, including full name, date of birth, information about education, work experience, annual report on activities societies and others Required documents and information. The agenda includes the main issues provided for in paragraph 1 of Art. 47 of the JSC Law (approval of financial statements, election of the board of directors, etc.), as well as other issues included in it by the person who convenes the meeting (for example, on the approval of major transactions or transactions with interest).

The company's annual report is approved in any form and includes the following information: the company's position in the relevant industry or industries, the main financial and economic indicators of its activities, priority areas of its activities, prospects, a description of the main risk factors associated with its activities, a list of committed major transactions and transactions with interest, information about members of the board of directors, about the head of the company, other information.

AO liability

These procedures are mandatory during the meeting. If they are not fulfilled, the JSC may be held administratively liable under Part 2 of Art. 15.23.1 of the Code of Administrative Offenses of the Russian Federation in the form of a fine in the amount of 500,000 to 700,000 rubles. The JSC will be able to reduce the fine below the lower limit only if it is proved in court that there are good reasons for its reduction based on an assessment of the nature and consequences of the violation committed, the degree of guilt of the company, its financial situation, as well as other essential for the individualization of administrative responsibility circumstances (parts 2.2 and 2.3 of article 4.1 of the Code of Administrative Offenses of the Russian Federation, resolution of the Constitutional Court of the Russian Federation of February 25, 2014 No. 4-P).

In the absence of such grounds, the amount of the fine below the lower limit is not subject to reduction (decree of the Arbitration Court of the Moscow District dated February 5, 2015 No. F05-14587 / 2014).

If the JSC has committed a violation and an administrative offense case has been initiated against it, the entire arsenal of legal remedies should be used to obtain relief from liability, such as: the expiration of the statute of limitations for holding liable (three years from the date of commission in accordance with Part 1 Article 4.5 of the Code of Administrative Offenses of the Russian Federation), violation of the procedure for the proceedings, proving the absence of an event of violation, its insignificance and insignificance. For example, sending a message about holding a meeting not 20 days in advance, but 19 days in advance (decree of the Federal Antimonopoly Service of the Volga-Vyatka District dated May 31, 2013 in case No. A79-11124 / 2012), etc.

AO, if there are grounds, must plead not guilty of committing administrative offense, as well as the fact that it has taken all reasonable and dependent measures to comply with the norms of the current legislation of the Russian Federation.

Example 1

Concluding that there was no violation of the procedure for holding a meeting in the actions of the JSC, the court proceeded from the fact that in order to hold it, the JSC could not obtain from the holder of the register a list of persons entitled to participate in the meeting, since the regulator issued an order to the registrar prohibiting the provision of information from the register to any persons, except for the regulator, judicial, investigative and other government agencies.

The joint-stock company was forced to hold an annual general meeting of shareholders without a list compiled by the registrar, since if the meeting was not held, there would be negative consequences for both the company and its shareholders. The AO was guided by the latest information it had on the composition of shareholders, to whom the messages were sent.

(Resolution of the Federal Antimonopoly Service of the Moscow District dated June 20, 2014 No. Ф05-5991/2014).

As can be seen from the above example, if there are difficulties and obstacles in holding a meeting, the AO should in any case do everything possible in the current situation, and not be inactive.

If failure to comply with the requirements to hold a meeting resulted in the imposition of a fine on the JSC, the owners of the company have the right to apply to the court in its interests with a claim against the director for damages in the amount of the fine paid, if the violation was related to his illegal actions (inaction). This possibility arises from Art. 15 of the Civil Code of the Russian Federation and art. 71 of the JSC Law. If the director is not guilty of violating the procedure for holding a meeting of shareholders and one of the company's employees is responsible for this, the owners can instruct the director to bring him to disciplinary and material liability with deprivation of the bonus in order to compensate for his property losses (Article 192, 193 and 238 of the Labor Code of the Russian Federation).

The director of the company, in the event of a claim against him for damages in the form of the amount of the administrative fine paid by the JSC, must prove that he was not guilty of what happened, as well as the absence of a direct causal relationship between his behavior and the adverse property consequences that occurred for the company (Article 65 of the Arbitration Procedure Code of the Russian Federation ).

Example 2

The director cannot be held liable for losses in the form of a fine if it is proved that the JSC does not have funds and any other property that could pay for the meeting, as well as in the case when the director was not paid a salary and he lawfully the basis of Art. 142 of the Labor Code of the Russian Federation suspended the performance of his labor duties for the entire period until the payment of the delayed amount.

(Resolution of the Federal Antimonopoly Service of the East Siberian District of December 15, 2011 in case No. A19-5972/2011).

Form of the meeting

In most cases, the meeting is held in the form of joint attendance and voting on all agenda items, about which shareholders are notified in advance by sending an information message indicating the date, time and place of the meeting, the agenda, as well as the procedure for familiarizing themselves with the documents and information that are submitted before the meeting.

If the shareholders want to get acquainted with the proposed materials before the date of the meeting, they have the right to do so by appearing at the address indicated in the received notice of the meeting. At the same time, apart from a passport or other identity document, the shareholder does not need to take anything with him. It is not necessary to take an extract from the register of shareholders confirming its status, given that by the time the documents and information are submitted for review by the shareholders, the JSC will already have a list of persons entitled to participate in the meeting.

It is undesirable to insist on the mandatory submission of an extract from the register of shareholders, given the existence of the list, since it is possible that a shareholder may complain to the Financial Markets Service of the Central Bank of the Russian Federation to initiate proceedings under Part 2 of Art. 15.23.1 of the Code of Administrative Offenses of the Russian Federation.

By the appointed time, shareholders must arrive to complete the registration procedure for participation in the meeting, where members of the counting commission appointed by the registrar of the JSC verify the identity documents of the shareholders with the data contained in the list of persons entitled to participate in the meeting. Late shareholders have the right to register until the closing of the meeting, until all issues on the agenda have been voted on (clauses 4.9, 4.10 of the Regulations on additional requirements for the procedure for preparing, convening and holding a general meeting of shareholders, approved by order of the FFMS of Russia dated 02.02. 2012 No. 12-6 / pz-n, hereinafter - Order No. 12-6 / pz-n).

Despite the fact that the procedure for registering shareholders for admission to participate in the meeting is carried out by members of the counting commission of the registrar and they also fill out the register, it will not be superfluous before the start of the meeting to check the correctness of its filling and counting the number of registrants and the total volume of their votes in order to determine the quorum, which, in order to participate in the meeting, must be more than half of the total number of all votes (clause 1, article 59 of the JSC Law).

Such a need is due to the fact that in practice, unfortunately, there are often cases of violation by the counting commission of the registrar of the procedure for registering shareholders for participation in a meeting and incorrectly determining the quorum, which is a significant violation and grounds for canceling decisions taken at such a meeting.

Example 3

Recognizing invalid the decisions of the general meeting of shareholders, the court proceeded from the following. The case file contained a protocol of the counting commission on the results of voting at the meeting. According to this document, by the time of the opening of the meeting, five shareholders took part in it, which amounted to 33.05% of the votes of the total number of shareholders. But from this protocol it was not clear which of the shareholders was present and gave a constituent number of votes. The register of shareholders or any other document evidencing the personal composition of the shareholders who arrived to participate in the meeting was not presented in the case materials. In the absence of registration data, it was impossible to draw a conclusion about the presence or absence of a quorum at the general meeting.

(Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated April 24, 2013 in case No. A43-18485/2012).

Voting at the meeting takes place by filling out ballots, which are distributed against signature to all shareholders present at the meeting, with an explanation of the procedure for filling them out. The use of voting ballots is mandatory if the number of shareholders exceeds 100 or if the meeting is held in the form of absentee voting. In the latter case, the voting ballot shall be sent by registered mail at least 20 days before the date of the meeting to each shareholder indicated in the list of persons entitled to participate in the meeting.

The implementation of this procedure is a mandatory stage of the meeting. Otherwise, the company runs the risk of facing a lawsuit filed against it to invalidate the decision of the meeting on the grounds of late submission of voting ballots.

The court is more likely to dismiss such a claim if it establishes that the voting of this shareholder could not affect the voting results, the violations committed are not significant and the decision did not cause damage to the shareholder in accordance with paragraph 7 of Art. 49 of the JSC Law (paragraph 2, paragraph 24 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 18, 2003 No. 19 “On Certain Issues of the Application of the Federal Law “On Joint Stock Companies”). However, for this, these circumstances must be present in the aggregate (Determination of the RF Armed Forces dated 10.04.2015 No. 47-PEC15), therefore it is better not to risk it.

It is also necessary to take into account that the ballot should contain the same issues as in the notice of the meeting in the form of an agenda. Since shareholders are invited to participate in the meeting with a specific agenda, they expect to vote on it, they get acquainted with a certain set of documents for participation in the meeting. If new issues appear directly at the meeting, which were not initially discussed, shareholders have the right to demand that additional information and documents be provided to them in order to make an informed decision.

In accordance with paragraph 10 of Art. 49 of the JSC Law, decisions of the meeting adopted on issues not included in the agenda (except for the case when all shareholders participated in the meeting), or in violation of the competence of the meeting, in the absence of a quorum for its holding or without the majority of votes necessary for making a decision shareholders, are not valid regardless of whether they are appealed in court. Therefore, a decision on an issue not included in the agenda of the meeting can be adopted and upheld only if the meeting has the necessary quorum - more than half of all outstanding shares in accordance with Art. 58 of the JSC Law. Otherwise, such a decision is invalid (decree of the Arbitration Court of the Moscow District of 04/07/2015 No. F05-2872 / 2015).

After the speech of the chairman of the meeting on the results of the completed financial year, the successes and achievements of the company, problems and challenges, changes competitive environment with which she faced, determining the main directions of further work, the shareholders ask clarifying questions, express possible claims and thanks based on the results of the completed year. After that, they proceed to vote on all items on the agenda.

For convenience and to minimize conflict situations during the meeting, shareholders who wish to express their claims regarding the company's activities, the quality of management and other issues can be recommended to contact them after the meeting is over so as not to increase the duration of the meeting. This will allow not only to quickly complete the meeting, but also minimize the risk of other shareholders being involved in the conflict, as well as hide possible contradictions from the registrar, who performs the functions of the counting commission at the meeting.

Despite all the evidence that voting takes place by filling out ballots, it will not be superfluous to note that the JSC Law does not provide for other ways of voting. In particular, it is not allowed to vote at the general meeting by a show of hands counting the total number of shares owned by shareholders. In such a situation, it is impossible to determine the quorum and the number of voting shares when making decisions on agenda items (Resolution of the Federal Antimonopoly Service of the Urals District dated May 30, 2007 No. F09-4071 / 07-C4), which entails the invalidity of decisions taken following the results of the meeting of shareholders.

As practice shows, many shareholders sometimes show simply miracles of ingenuity, creating themselves conflict situations for bogus reasons.

Example 4

The shareholder refused to participate in the meeting without the presence of security guards accompanying him. However, the court pointed out that the non-admission of such persons cannot be considered a violation of the shareholder's rights. The JSC Law provides for the participation in the work of meetings directly of shareholders or their authorized representatives. The shareholder did not prove that he received any threats on the fact of participation in the meeting.

(Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated November 15, 2010 in case No. A82-2168 / 2008).

Shareholders need to further explain that only one voting option should be left in the ballot, and the document itself must be signed indicating the date of the meeting. Otherwise, the ballot will be declared invalid (Resolution of the Federal Antimonopoly Service of the Far Eastern District dated April 30, 2013 No. Ф03-1309/2013), and votes on it will not be counted, except for the case when the violations do not relate to all issues on the agenda. In such a situation, the ballot will be considered valid in terms of those issues, the voting option for which is chosen correctly, provided that the document is signed (Article 61 of the JSC Law).

Important!

A ballot that is invalid in whole or in part is not excluded when counting the total number of votes to determine the quorum (clause 4.23 of Order No. 12-6 / pz-n).

When filling out the ballot, the shareholder can put his signature not only at the bottom of the document, where the corresponding column is provided for it, but also under or next to each voting option for each or in relation to several issues that he has chosen. If, for example, on the issue of approving the annual report of a JSC, a shareholder voted in favor, deleting all other options and putting a signature under the selected option, he is not obliged to put it under the other options that he crossed out, since the law does not contain such a requirement (Decree of the Federal Antimonopoly Service of the West Siberian District dated July 12, 2012 in case No. А45-16998/2011).

The columns “for”, “against” and “abstained” do not have to be put down in the ballot for voting on issues related to the election of members of the board of directors of the company, since voting on it takes place in a cumulative way: the total number of shareholder votes is multiplied by the total number of board members directors, and then they are distributed among them or given to one person at the discretion of the shareholder. With cumulative voting, the will of the shareholder must be expressed in the distribution of the total number of votes belonging to him among all candidates or one of them. The number of shares voted against a candidate to the Board of Directors or against all candidates is not taken into account when counting votes.

In case of cumulative voting, the shareholder can put his votes next to the selected candidates, and therefore the absence of the columns “for”, “against” and “abstained” in the ballot is not a violation of Art. 60 of the Law on JSC, which defines the requirements for the bulletin (Resolution of the Federal Antimonopoly Service of the North Caucasus District of February 14, 2006 No. F08-6310 / 2005). Filling in the voting ballot in a situation where the shares were alienated after compiling the list of persons entitled to participate in the meeting is distinguished by a certain specificity. In this case, the new shareholder is not indicated in this list, he votes by proxy from the former shareholder or asks him to vote in accordance with his instructions.

If the shares are alienated to several persons at once, the former shareholder shall vote with certain blocks of shares in accordance with the instructions of each of them. To do this, in the voting ballot, he puts the necessary marks on each issue of the agenda in the appropriate columns: if the instructions of the new shareholders on some issues coincide, the former shareholder chooses only one voting option, if not, he chooses different options indicating the number of votes cast for these options. It is also allowed for such a case to use several ballots signed by the same person, while, as a general rule, if a shareholder fills out several ballots with different options voting, all ballots will be considered invalid (clauses 2.16, 2.19, 4.21 of Order No. 12-6/pz-n).

Those shareholders who, for some reason, could not come to the meeting in person or could not send their representatives, have the right to write an application about this to the JSC and send the completed ballot. The fact is that on the basis of the provisions of paragraph 3 of Art. 60 of the JSC Law, when holding a meeting, persons included in the list of persons entitled to participate in the meeting (their representatives) have the right to take part in such a meeting directly or send completed ballots to the JSC.

When determining the quorum and summing up the voting results, the votes represented by voting ballots received by the JSC no later than two days before the date of the meeting are taken into account. Therefore, the shareholder may not worry about whether his votes will be taken into account when summing up the results (Resolution of the Federal Antimonopoly Service of the Urals District dated July 28, 2014 No. Ф09-3475/14). It should be taken into account that the voting ballots filled in by the shareholders are subject to storage until the termination of the activities of the JSC (Information letter of the Federal Commission for the Securities of Russia dated November 28, 2000 No. IK-07/6364 “On the periods of storage of voting ballots at general meetings of shareholders of joint-stock companies”).

Within three working days after the meeting, the JSC is obliged to draw up a protocol in two copies, which are signed by the chairman and the secretary of the meeting. This protocol indicates the date, time and place of the meeting, the agenda and results of voting on all issues, the main provisions of speeches, as well as other mandatory conditions, which are provided for in paragraph 2 of Art. 63 of the JSC Law and in clause 4.29 of Order No. 12-6 / pz-n.

If the minutes of the meeting do not contain information about the total number of votes held by the shareholders owning the voting shares of the JSC, as well as the number of votes held by the shareholders participating in the meeting, such an omission will be a material violation of the procedure for holding the meeting, since this does not make it possible to establish reliably the presence or absence of a quorum for the adoption of the contested decision (Decree of the Federal Antimonopoly Service of the Central District of July 29, 2014 in case No. A14-7725/2013).

If some of the shareholders are not satisfied with the decisions made at the meeting, they will be able to challenge them in court. To do this, the plaintiff must have the status of a shareholder, and not at the moment when he is preparing a statement of claim to the court, but at the date when the decision was made, which he is going to challenge. He must also have the status of a shareholder on the date of filing a claim with the court. Accordingly, if the plaintiff acquired the status of a shareholder after the adoption of the decision contested by him, the claim will be denied (decree of the Federal Antimonopoly Service of the Central District dated April 21, 2011 in case No. A36-2770 / 2010). In addition, shareholders who have lost this status at the time of consideration of the dispute on appealing the decision of the meeting are not entitled to appeal such a decision (Determination of the Supreme Arbitration Court of the Russian Federation dated February 22, 2008 No. 1963/08).

This legal position is now uniformly applied in the practice of all arbitration courts, so the plaintiff should take it into account. It is caused by the need to exclude the possibility of filing unfounded claims by persons whose rights and legitimate interests are not violated by the contested decision. In order to ensure proper legal protection for all participants in such a dispute, the courts refuse to consider claims to challenge the decisions of the meeting in all cases where the plaintiff has not confirmed his status as a shareholder. The filing of a claim with a court by a person who does not have a material right to claim is the basis for refusing to satisfy the claim (Determination of the Supreme Arbitration Court of the Russian Federation dated April 18, 2013 No. VAS-2416/13).

In this regard, if the decisions at the meeting are contested by persons who have not proved their status, the JSC must necessarily refer to this, indicating that the plaintiff has no right to claim in a material sense. In addition, the JSC may, in its objections to the claim, indicate that the plaintiff has chosen an improper method of protecting the right, if such a procedural violation has taken place.

As noted in this respect in judicial practice, the choice of the method of protecting the right is not carried out arbitrarily, but taking into account the nature of the violation committed. The choice and filing of a claim without taking into account these requirements are regarded as the choice of an improper method of protecting the right, which is the basis for the refusal of the claim (determinations of the Constitutional Court of the Russian Federation of 04.21.2011 No. 450-O-O, of 06.18.2006 No. - Vyatka district dated 01/22/2010 No. A43-9961 / 2009, etc.).

In relation to the situation under consideration, the proper way to protect the rights of a shareholder would be the requirement to invalidate the decision of the meeting, and not to declare the meeting itself illegal (Resolution of the Federal Antimonopoly Service of the Moscow District dated May 13, 2011 No. KG-A40 / 3751-11-1.2).

If a shareholder claims falsification of the minutes of the meeting, he must support his argument with specific documentary evidence. Proper and admissible evidence of falsification of the minutes of the meeting or other documents will be an expert opinion. Therefore, in order to verify the argument about falsification, the shareholder must file a corresponding petition with the court (Decree of the Federal Antimonopoly Service of the Moscow District dated December 30, 2008 No. KG-A41 / 12228-08-1.2).

In its objections to the shareholder’s claim, the company must also indicate in court if there are grounds that the vote of the shareholder, taking into account the number of shares owned by him, could not affect the results, the quorum of the meeting was observed, the fact of voting on agenda items was confirmed by voting ballots, protocol the registrar's counting commission, the shareholder registration log and other documents as evidence (Decree of the Federal Antimonopoly Service of the West Siberian District dated November 9, 2011 in case No. A03-11778/2010). In order to protect the strengthening of its position in the AO case, it will also not be superfluous to involve its registrar in the case, which will be able to confirm the absence of violations during the meeting.

In addition, it is possible to challenge the meeting's decision not on any formal and far-fetched grounds, but only in connection with significant violations committed.

Example 5

Failure to reflect in the minutes of the general meeting information about the main provisions of the speeches will not be a material violation. But the consideration of an issue at a meeting that was not originally included in the agenda of the meeting, failure to notify the shareholder of the date, time and place of the meeting, are significant violations, which are considered sufficient grounds for declaring the decision of the meeting invalid.

(Resolution of the Arbitration Court of the Ural District dated November 27, 2014 No. F09-6999 / 14).

When holding a meeting, a joint-stock company may also make audio or video recordings with the consent of the shareholders, which will allow it to use the materials received in court as additional evidence of its compliance with the current requirements of the legislation of the Russian Federation. The possibility of using technical means during the meeting can be provided for in the charter of the company or in another internal document.

Corporate conflicts and challenging the decision of the meeting

In the process of corporate governance, disagreements often arise between shareholders on certain issues. These disagreements can be caused by a variety of reasons. Some shareholders who are interested in the development of the company, expansion and strengthening of its business, try to accumulate all available financial resources and direct them to achieve such goals. Others, on the contrary, may not be interested in the activities of society as such, but only desire the distribution of profits. In a situation where one group of shareholders insists on refraining from distributing profits, directing it to business development, and the other group insists on distributing profits after all, conflicts are inevitable.

Often, the majority shareholders of the company try to squeeze minority shareholders who own small blocks of shares by adopting changes to the charter or approving internal documents that restrict their rights. The unwillingness to put up with this state of affairs makes dissatisfied shareholders go to court and seek protection there.

In practice, the rights of shareholders to manage the affairs of the JSC are also often violated due to the fact that they are not properly notified of the fact of holding a corporate meeting. This violation is significant, since it deprives the shareholder of the opportunity to participate in the meeting and express his opinion on the agenda items. Such situations in most cases are submitted to the permission of the court.

In order to promptly receive all the necessary information about the situation around the activities of the company, the shareholder should take part in all corporate meetings held, ensuring that he receives the correspondence sent to him by mail. To do this, the shareholder must make sure that the contact information about him contained in the register of shareholders is up-to-date and true. Periodically (say, once every six months) it will be useful to order extracts from the register of shareholders about yourself in order to track whether its shares have not been illegally written off.

Also, the shareholder should get acquainted with the information and documents constituting the activities of the company in order to be ready to immediately make the right decision and defend their interests in court. If facts of violation of their rights are discovered, the shareholder must immediately take measures to protect themselves, depending on the situation.

1 http://www.notariat.ru/prof/teorija-i-praktika/12548

The role of the board of directors in the organization of the annual meeting. Schedule of events. Functions of the corporate secretary in the preparation and conduct of the annual meeting. Company's annual report.

Annual general meeting of shareholders: preparation and holding

Maria Gracheva IFC project, executive editor of the quarterly review, Ph.D. economy Sciences, Moscow

The annual general meeting of shareholders is 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 (hereinafter - 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.

Igor Aksenov IFC project, legal consultant, Moscow

The Board of Directors (BoD) plays a key role in the preparation and holding of the annual general meeting of shareholders - as provided for by the JSC Law, and this is what good corporate governance requires. 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, approved by Resolution No. 17/ps dated May 31, 2002. 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.

1. Since the JSC Law states that, sometimes it was interpreted in such a way that the date of submission 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: 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.

 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);

 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.

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 additional information about this person in the proposal to nominate a candidate. The absence of such information may just become the basis for refusing to include a candidate on the voting list.

 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 the nature of his relations with society;

 information about its relations with affiliates and major counterparties of the company;

 other information related to the property status of the candidate or capable of influencing the performance of his duties;

 the candidate's written consent to the election, and if there is none, the candidate must personally attend the general meeting. Shareholders must be provided with information about the candidate's refusal to provide all or part of the above information5.

In addition, shareholders may include in the charter or internal documents other information about candidates that must be provided to shareholders, for example:

 information about cases of administrative disqualification;

 information on the existence of an outstanding conviction. The Code also recommends that the proposal for nomination indicate whether the candidate meets the criteria for independence (these criteria are listed in paragraph 2.2.2 of Chapter 3). In our opinion, the board of directors must at least inform the shareholders that among the proposed candidates there are none who meet the independence criteria, as well as what consequences for the company may arise in this case.

As is known, the JSC Law establishes that members of the audit commission cannot simultaneously be members of the company's board of directors6. In this regard, the question arises: what to do in those cases when members of the audit commission appear in the proposals for nominating candidates to the Board of Directors? In such proposals, in fact, the future composition of the Board of Directors and the Audit Commission is formed. At the same time, shareholders who nominate candidates do not know which of the members of the current audit commission will remain in it in next year. Therefore, the membership of a candidate for the Board of Directors in the current audit commission cannot serve as a basis for refusing to include him in the list of candidates. At the same time, the board of directors must promptly explain to shareholders the relevant requirements of the JSC Law, as well as possible consequences election of a candidate simultaneously to the Board of Directors and the Audit Commission.

Undoubtedly, the board of directors is the main actor in organizing the annual general meeting of shareholders, however, the procedure for preparing and holding the meeting includes a number of steps that must be completed by various participants in corporate relations, and in compliance with specific deadlines. In a generalized form, the activities carried out in preparation for the meeting are presented in the table.

Schedule of events

Davit Karapetyan, IFC project, Deputy Head, Ph.D. legal Sciences, Moscow

After the society and its bodies have completed all the steps to prepare for the annual AGM, this meeting must be held. It should be noted that the procedure for holding an annual meeting is not as strictly regulated by the JSC Law as the preparation procedure. Some of the activities shown in the figure follow from the requirements of regulatory legal acts, others are dictated by good corporate governance practice, and others are completely dependent on internal structure joint-stock company. Depending on when shareholders are informed about the results of voting and decisions taken at the meeting, the procedure for holding the annual AGM has two options, the differentiation of which begins with the 11th step.

To exclude the possibility of shareholders filing lawsuits to invalidate the decisions of the annual GMS, all the procedures described above should be carried out clearly and in full compliance with the requirements of regulatory legal acts. From this point of view, it is advisable to introduce in the company the position of a corporate secretary (or other employee), who, among other things, performs the duties of creating the necessary conditions for the legally impeccable organization of the annual GMS.

Functions of the corporate secretary in the preparation and holding of the annual meeting

Polina Kalnitskaya IFC project, legal consultant, Moscow

According to the Code of Corporate Conduct, the corporate secretary is a special official who the only task which is to ensure that the company complies with procedural requirements that guarantee the exercise of shareholder rights. In ch. 5 of the Code lists the main duties of this official related to the preparation and holding of the general meeting:

 preparation of a list of persons entitled to participate in the general meeting of shareholders. If the compilation of this list is carried out by an independent registrar, the secretary must be authorized by a written order of the general director or an internal document of the company to instruct the registrar to compile such a list;

 Proper notification of the holding of the general meeting of all persons entitled to participate in the meeting, preparation and distribution of voting ballots to them. The secretary also notifies all members of the board of directors of the upcoming event, CEO(managing organization, manager), members of the board, members of the audit commission (auditor) and the auditor of the company;

 formation of materials to be provided during the general meeting of shareholders. The secretary also provides access to these materials, certifies and provides copies of the relevant documents at the request of persons entitled to participate in the general meeting of shareholders;

 collection of completed voting ballots received by the company and their timely transfer to the registrar of the company performing the functions of the counting commission, if, in accordance with the requirements of the legislation, the functions of the counting commission are assigned to a specialized registrar;

 Ensuring compliance with the procedures for registering participants in the General Meeting of Shareholders, organizing the keeping of minutes of the General Meeting and drawing up a protocol on the results of voting at the General Meeting, as well as timely communication to the attention of those who are included in the list of persons entitled to participate in the General Meeting of the report on the results of voting at the general meeting of shareholders;

 formulation of answers to the questions of the participants of the general meeting, which relate to the procedure used at such meetings, and taking measures to resolve conflicts related to the procedure for preparing and holding the general meeting of shareholders. Among the materials provided for the annual OCA, an important place is occupied by the company's annual report. It is he who in a concentrated form reflects the achievements of the joint-stock company, the prospects for its development and commitment to the principles of proper corporate governance.

Annual report of the company

Galina Efremova IFC project, financial consultant, Moscow

Alexander Eliseev IFC project, financial analyst, St. Petersburg

As stated in paragraph 11 of Art. 48 of the JSC Law, the approval of the annual report falls within the competence of the annual GMS. It should be taken into account that no later than 30 days before the date of the annual GMS, this document is preliminarily approved by the company's board of directors, and in the absence of a board of directors in the company, by the person exercising the functions of the sole executive body. The reliability of the data contained in the annual report must be confirmed by the audit commission (auditor). Before the publication of the annual report, the company is obliged to engage for the annual verification and confirmation of the financial statements of an auditor who is not connected by property interests with the company or its shareholders.

The annual report is the main document that represents the company in. It usually consists of ten sections (chapters).

1. Address of the Chairman of the Board of Directors to the shareholders. It is very important to find the right general tone for this chapter: perhaps the Chairman of the Board of Directors should apologize for any shortcomings in the company's activities or admit that not all of the goals set earlier have been achieved.

2. Information about the volume of sales and characteristics of the marketing strategy. This section of the annual report should give a clear picture of what and how the company sells, as well as where and to whom. In other words, here all interested parties will be able to find out what goods or services the company uses, who is the main consumer of its products, in which regions it operates.

3. Dynamics of key financial indicators in recent years. In this chapter, the most interesting information is about the increase in profits and operating income.

4. Analysis of the market situation and the financial results achieved by the company. It is necessary to describe the main trends observed in the economy of the country and the industry over the past two years, presenting them in the report with maximum clarity and impartiality.

5. Report of the external auditor. The name of the auditor firm and the period for which the audit was carried out should be indicated, as well as the wording of the issued opinion.

6. Financial reporting. Analyzing this section, users of the report will notice a number of important relationships between various items (primarily the share of profit in revenue) and between constituent parts individual articles (for example, on specific gravity costs for Scientific research and development in the cost of production). An important part of this chapter are appendices and explanations to the financial statements.

7. List of subsidiaries, branches and representative offices. It is necessary to give a clear idea of all firms and enterprises that are in one way or another connected with society (for example, indicate offshore companies).

8. List of directors and top managers. It is very useful to tell the users of the report what changes have occurred over the past period in the composition of the board of directors and the board.

9. Dynamics of quotations of the company's shares in recent years. You should describe the main trends observed in the stock market, as well as show the dynamics of dividends paid by the company.

10. State of the corporate governance system. In accordance with the FCSM Regulation No. 17/ps, certain requirements are imposed on the annual report of a joint stock company in terms of disclosure of information on compliance with the Code of Corporate Conduct and proper principles of corporate governance.

Depending on the goals pursued by the company, the emphasis in the annual report can be placed in different ways: remove some sections, fill others with as much information as possible, add new ones.

The basis of the annual report is financial information, which discloses data characterizing the results of the company's activities for the reporting and previous periods, as well as the financial condition of the company as of the date of preparation of the document and plans for its development in the short and long term.

The preparation of the annual report combines rationalism and art. The following recent trends in this area can be noted:

 firms try to show their employees, i.е. focus on the individual;

 graphics and illustrations are stylized as;

 companies tend to talk about themselves with humor. The growth in the complexity and volume of annual reports is leading to a formation between individual shareholders and the company, as analysis of the financial position of firms becomes the exclusive prerogative of investment banks, rating agencies and the financial press. Things got to the point that some Western firms began to issue two reports: one - for individual shareholders, the other - for professional investors and analysts.

Currently, the main weakness of annual reports published by domestic companies is the lack of future development scenarios. Joint-stock companies should strive to convince all users of financial statements of the reality of their business prospects. Boards of directors are known to play the main role in developing such scenarios. It is in this area that they must demonstrate their strategic potential and make a worthy contribution to increasing the investment attractiveness of the corporations they manage.

* * *

Russian joint-stock companies have already passed the initial, most difficult stage of the journey and, in general, comply with the requirements of regulatory legal acts for the procedure for preparing and holding the annual GMS. However, they still have a lot to do to implement the main principle of the organization of the GMS: the meeting should be held in such a way as to facilitate the effective participation of shareholders in the work of this company management body.

From this point of view, modern information technologies are of great importance. An experience developed countries shows that in 2003, 83 out of 100 leading European corporations organized Internet broadcasting of various corporate events, including 27 companies used this method during their annual OCA7. Many Western firms send out notices of AGMs by email, provide shareholders with online voting, and post interactive annual reports on their Web sites. These electronic documents allow users to translate financial statements into Excel spreadsheets, as well as navigate between different sections of reports and to other pages of corporate Web sites using hypertext links. Corporations, in turn, create databases about users and the configuration of their preferences when working with reports (i.e., which sections of documents represent for them the greatest interest). All this is a very effective means of improving mutual understanding between shareholders, managers, directors and other stakeholders.

Bibliography

For the preparation of this work, materials from the site http://lib.sportedu.ru http://cfin.ru/ were used.