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On 20 December 2010, the Belgian Government ratified
the new Act on the exercise of shareholders' rights in listed
companies (the Act), which provides for the transposition of
Directive 2007/36/EG. The Belgian legislator did not merely
transpose this European Directive, but also introduced new, mainly
optional, measures with regard to non-listed companies. This
article will be limited to the new rules that apply to non-listed
companies. The Act will enter into effect on 1 January
2012.
Electronic participation and voting in the general meeting
The articles of association of a public limited liability
company (NV), a private limited liability
company (BVBA) or a cooperative limited
liability company (CVBA) can grant the
shareholders the possibility to participate in the general meeting
by means of electronic communication which are made available by
the company.
Companies are free to organize such electronic participation and
voting system, provided that (i) the identity and capacity of the
shareholder can be verified and (ii) an electronic communication
system is used which allows the shareholders to participate in the
discussions and deliberations and exercise their voting rights in a
direct, simultaneous and continuous manner. The shareholder who
participates electronically is then deemed to be present at the
location where the general meeting of shareholders is held.
This is thus merely an optional measure and companies who
introduce this new system will need to modify their articles of
association in accordance with the Act. The possibility for
shareholders to participate electronically in the general meeting
should be accurately and clearly described when convening the
general meeting.
The minutes of the general meeting should also indicate any
possible technical problems or issues which prevented or disrupted
the electronic participation or voting of the shareholder.
Remote voting
Prior to the general meeting, an NV can allow its shareholders
to vote remotely, by correspondence or by electronic means. This
measure is also optional and must also be provided for in the
articles of association if the company elects to allow for this
means of voting.
The NV must again be able to verify the identity and capacity of
the shareholder. The Act clearly and expressly mentions the
provisions that must be included in the form to be used for the
proxy voting (including but not limited to the name and
domicile/registered office of the shareholder, the agenda of the
meeting and the type of shares held). Furthermore, the form must
mention the time frame within which the shareholders are required
to vote, as provided in the company's articles of
association.
In addition to the NV, the aforementioned rules equally apply to
BVBA's. However, the Act only requires that a BVBA be able to
verify the identity and capacity of the shareholder and the Act
does not impose any further obligations with respect to the form to
be used for the proxy voting. The rules which apply to BVBA's
are thus more flexible than those which apply to NV's.
Right to ask questions
The right to ask questions will be extended and will thus give
the shareholders the opportunity to not only ask questions orally
(during the general meeting), but also to formulate their questions
in writing (prior to the general meeting). Although the extension
of the right to ask questions is not optional, the articles of
association must nevertheless indicate the period of time within
which the company must receive the written questions. These rules
apply equally to the NV, BVBA and CVBA.
Lastly, the Act confirms the obligation of the directors and
statutory auditors to answer the questions, provided that the
answer is not detrimental to the business interests of the company
or to the confidentiality to which the company, the directors or
the statutory auditors committed themselves.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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