Governance of Luxembourg Company

Cтатья посвящена вопросам, связанным с управлением публичными корпорациями в Люксембурге. Особое внимание уделяется общему собранию акционеров и совету директоров. Настоящая публикация интересна глубиной исследования рассмотренных вопросов и рекомендациями автора относительно правомерного поведения компаний.

Ihis article is dedicated to the issues of governance and transparency in Lux­embourg companies, which are listed on the stock exchange.

Experienced vanguard of directors

One of the most interesting is­sues is communication by directors of Luxembourg company. The best number of directors for the com­pany listed at stock exchange, open and transparent is five. The Board of Directors shall appoint from among its members a chairman at majority for a term an average of 6 years and may choose among its members one or more vice-chairmen. The Board of Directors may also choose a secre­tary (the Secretary) who need not be a Director and who may be instructed to keep the minutes of the Meetings of the Board of Directors as well as to carry out such administrative and other duties as directed from time to time by the Board of Directors.

The Board of directors shall meet upon call by the Chairman or any two Directors at the place and time indicated in the notice of meeting, the person convening the meeting setting the agenda. Written notice of any Meeting of the Board of Directors shall be given to all Directors. This notice may be waived, either pro- spectively or retrospectively by the consent in writing or by telegram or telex or telefax or e-mail of each di­rector. A separate notice shall not be required for meetings held at times and places described in a schedule previously adopted by resolution of the Board of Directors. Without prejudice, Board of Directors shall be held in the European Union.

Any Director may act at any meeting of the Board of Directors by appointing in writing or by telegram, telefax, telex or e-mail another Direc­tor as his proxy. A Director may not represent more than one of his col­leagues. The Board of directors may act validly and validity adopt resolu­tions only if at least a majority of the Directors are present or represented at a Meeting of the Board of Direc­tors. In the event, however, the Gen­eral Meeting of Shareholders has ap­pointed different classes of Director, any resolutions of the Board of Di­rectors including at least one class A and one class В Director. If a quorum is not obtained the Directors present may adjourn the meeting to a venue and at a certain time and date, set up in the Article of Associations of the Company after a notice of the ad­journed meeting is given.

The brand new Articles of Asso­ciations has the clause that the Di­rectors may participate in a Meeting of the Board of Directors by confer­ence call or similar means of com­munications equipment whereby all persons participating in the meet­ing can hear each other and partici­pating in a meeting by such means shall constitute presence in person at such meeting. Notwithstanding the foregoing, a resolution of the Board of Directors may also be passed by unanimous consent in writing which may consist of one or several docu­ments containing the resolutions and signed by each and every Direc­tor. The important point is that the date of such a resolution shall be the date of the last signature.

Vis-a -vis third parties, the Com­pany is validly bound in the case of a sole director or by the joint signature of any two Directors of the company or by the signatures of any other person to whom authority has been delegated by the Board of Directors through decision by a majority of the Directors. In the event the Gen­eral Meeting of Shareholders has ap­pointed different classes of Directors (namely class A directors and class В director (including by way of repre­sentation) or by the signature of any other person to whom authority has been delegated by the Board of Direc­tors by means of a decision of majori­ty of the Directors provided that such a decision is approved at least by one Director A and one Director B.

The Board of Directors may in general, or from time to time, del­egate the power to conduct the daily management of the Company as well as the representation of the Company in relation to such management as provided for by article 60 of the law of 10 August 1915 as amended On commercial companies to an execu­tive or other committee or commit­tees, whether formed from among its own members or not or to one or more Directors managers or other agents who may act individually or jointly. The Board of directors shall determine the scope of the powers, the conditions for withdrawal and the remuneration attached to these delegations of authority includ­ing the authority to sub-delegate. The Board of Directors may decide to set up committees to consider mat­ters submitted to them by the Board of Directors, including an audit com­mittee and an appointments, remu­neration and corporate governance committee.

The audit committee shall be composed at least from one inde­pendent member of the Board of Di­rectors.

In case of a conflict of interest involving a Director, it being under­stood that the mere fact that the Di­rector serves as a director of a Share­holder or of an associated company of a Shareholder shall not constitute a conflict of interest, such director must inform the Board of Directors of any conflict and may not take part in the vote. A director having a con­flict on any item on the agenda must declare this conflict to the Chairman before the meeting is called to order. Any Director who has a conflict due to a personal interest in a transac­tion submitted for approval to the Board of Directors conflicting with that of the company shall be obliged to inform the Board of Directors and to cause a record of his statement to be included in the minutes of the meeting. At the following Gen­eral Meeting of Shareholders, prior to any other resolution is voted on, a special report shall be made on any transactions in which any of the Directors may have a personal interest conflicting with that of the company.

Rules of General Meeting of shareholders

The General Meeting of share­holders shall represent the entire body of shareholders of the Com­pany. It has the powers conferred upon it by the Luxembourg Com­pany Law.

The General Meeting of Share­holders shall meet in Luxembourg upon the call of the Board of Direc­tors or the Sole Director as the case may be. Shareholders representing one tenth of the subscribed share capital in compliance with the law of 10 August 1915 as amended On commercial companies request the Board of Directors or the Sole Direc­tor as the case may be to call a Gen­eral Meeting of Shareholders.

The annual General Meeting shall be held in Luxembourg in ac­cordance with Luxembourg law at the registered office of the Company, or at such other place as specified in the notice of the meeting, whose date and month and time is set up in the Articles of Association of the Company. If such day is a legal or a bank holiday in Luxembourg the an­nual General Meeting shall be held on the following Business Day in Luxembourg.

Other General Meetings of Shareholders may be held at such places and times as may be specified in the respective convening notice.

General Meetings of Sharehold­ers shall be convened pursuant to a notice setting out the agenda and the time and place at which the meeting will be held, sent by registered post. In case of Shareholders of bearer shares, the said Shareholders will be convened per public notice inserted in the Luxembourg legal Gazette The Memorial and a Luxembourg of­ficial newspaper on twice occasions prior to the general meeting within an eight — day interval at least and at least for the second publication eight days prior to the holding of the general meeting. The sharehold­ers of bearer shares existing only under a global certificate issued by such global depositary or by any rel­evant central securities depositary or member of the central securities depositary system, in which such bearer shares are deposited.

If all Shareholders are present or represented and consider them­selves as being duly convened and informed of the agenda, the General Meeting may take place without no­tice of the meeting.

The General Meeting of Share­holders shall appoint a chairman and be chaired by the chairman who shall preside over the meeting. The General Meeting shall also appoint a secretary who shall be charged with keeping minutes of the meeting and a scrutineer. The minutes shall also appoint a secretary who shall be charged with keeping minutes of the meeting and a scrutineer. The min­utes shall be in English and adopted as evidence thereof and be signed by the Chairman and the Secretary of such meeting or by the next meeting. All General Meetings of Sharehold­ers shall be conducted in English.

Each share is entitled to one vote at all General Meetings of Share­holders, Blank ballot papers are con­sidered null and void. A Shareholder may act at any General Meeting of Shareholders by giving a written proxy to another person, who need not be a shareholder.

Unless otherwise provided by law or by Articles of Association, resolutions of the General Meeting are passed by a majority of more than one half of all voting rights present or represented. No business shall be transacted at the time when the meeting proceeds to business; save as herein otherwise provided, shareholders holding 40% of the to­tal votes of Shares issued as of the date of the respective General Meet­ing, presented in person or by proxy shall form a quorum.

Conclusions

Summing up the aforemen­tioned, it should be noted that Lux­embourg companies listed at stock exchanges are governed by the laws of Luxembourg and laws of the country where the company is listed. Thus, information on all reso­lutions have to be passed according to the law and be presented to the public, placed at the official site of stock exchange, published at Lux­embourg Stock Exchange website and filed with the Commission de Surveillance du Secteur Financier (CSSF) in Luxembourg. The satisfac­tion of all interests in the Company is usually regulated by the rule to appoint different classes of Director (namely class A Directors and class В Directors) and any resolutions of the Board of Directors are adopted, including the signature of at least one class A and one class В Director. The date of such a resolution shall be the date of the last signature.

Nevertheless, where the com­pany shares are listed, the annual General Meeting shall be held in Luxembourg in accordance with Luxembourg law at the registered office of the Company or at such oth­er place as specified in the notice of the meeting, whose date and month and time is established in the Arti­cles of Association of the Company. All General Meetings should be con­ducted in English.

It is important to note that one of the most important things is com­pliance with the Luxembourg Law for Transparency Requirements for issu­ers of securities of 11 January 2008. Thus, all resolutions have to be filed with Commission de Surveillance du Secteur Financier, publication in Eu­ropean Union mass media, storage with the Officially Appointed Mechanizm (OAM), otherwise the company could be fined in accordance with the norms of the aforesaid law

Автор:

Ekateryna A. SOBOLEVA

Источник:

The Ukrainian Journal of Business Law. – 2014. – № 11. – Р. 28 – 29.

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