1. General provisions
On 28 February 2013 the Russian Federal Service for Financial Markets Order dated 02 February 2012 No. 12-6/pz-n «On the Adoption of Regulations on Supplementary Requirements to General Shareholders Meeting Preparation, Convocation and Holding Order» (hereinafter – the «Order» and the «Regulations» respectively) will come into effect. On 28 May 2012 this Order was registered by the Ministry of Justice and on 27 August 2012 it was published in “Bulletin of normative acts of federal executive bodies” subject to its enforcement within 6 months since the date of its publication.
Regulations introduces certain fundamentally new requirements to the order of preparation, convocation and holding of general shareholders meeting (the «GSM»). In particular, the status of several GSM bodies has been specified, the list of information to be included in the GSM Minutes has been expanded and rules on vote count and quorum determination have been elaborated.
The most substantial amendments affects procedure of electing the management bodies and revision committee of the company, rules on GSM quorum determination and vote count for shares outstanding outside of Russia in the form of depositary securities.
2. Main changes
2.1. Order of GSM preparation
The place of GSM, different from the registered office, may be indicated in the Charter, rather than in any other local act.
Regulations specifies requirements to the drafting of the list of persons entitled to participate in the GSM (the «List»).
Regulations stipulates that the List should contain information about the number of shares:
- held by unidentified persons;
- deposited on the account of nominal holder, who has not submitted the information regarding persons, in whose interests he holds shares.
According to Regulations preference shareholders should be included in the List (except other existing cases), if the agenda contains the issue on the exemption of the company from the information disclosure duty pursuant to the Article 30.1 of the Federal Law dated 22 April 1996 No. 39-FZ “On Securities Market”.
Other amendments in the order of GSM preparation:
- suggestions and claims regarding holding of extra-ordinary GSM, may be sent by the courier service;
- in the bulletin for cumulative voting options “for”, “against’ and “refrained” should be indicated once against all candidates being included in the bulletin. There should be a space against each candidate indicating the number of votes for this candidate. The number of candidates may exceed the number of persons to be elected to the Board of Directors (the “BoD”).
- suggestions on nomination of the candidate to company’s bodies shall contain the evidence of the candidate’s consent for nomination (written consent may be attached), if the Charter or local acts stipulate the necessity to obtain such a consent.
2.2. Order of GSM convocation
Requirements to the annual report to be approved at the GSM have been totally excluded from Regulations. Now the requirements to the annual report are stipulated in the subsection 8.2 Section VIII of Regulations on information disclosure by issuers of issuable securities (adopted by Russian Federal Service for Financial Markets Order dated 04 October 2011 No. 11-46/pz-n).
Terms of provision of information to the persons included in the List have been increased from 5 to 7 calendar days from the date when the company receives the claim on the provision with information. There have been several additions to requirements to the information to be provided to the persons included in the List during GSM preparation when the agenda includes the issue on reorganization.
2.3. Order of GSM holding
Regulations clarifies the list of documents adopted basing on GSM voting results:
- GSM Minutes;
- Minutes on voting results (the former name - Minutes of counting board on voting results);
- Report on voting results, if adopted GSM resolutions and voting results have not been announced.
Regulations states that its norms regarding persons eligible to participate in the GSM should apply to trust companies of mutual investment funds, if shares of managed company are accounted on the account of the trust company.
Regulations stipulates with regard to GSM bodies that the GSM secretary should be appointed by GSM chairman, unless otherwise is set by the Charter or local act governing the GSM activities. Regulations also provides that the registrar exercising the counting board powers is entitled to delegate them to one or several employees of the former. Moreover, when GSM holding pursuant to the court decision, the body or person, holding the GSM on the basis of court decision automatically becomes its chairman (in case of absence of statutory chairman).
In should be noted that in accordance with Regulations if there is no signature in the bulletin, votes under such bulletin should not be taken into account when determining the voting results and quorum.
Regulations sets forth that the resolution on early termination of the existing BoD should be passed prior to adoption of the resolution on election of the new BoD.
When calculating the votes regarding revision committee (internal auditor) election, shares held by candidates, elected at the same GSM into the company’s bodies, should not be taken into account. In turn, votes of members of management bodies terminated at the GSM should be accounted.