Documents for the annual meeting of shareholders. Annual general meeting of shareholders: preparation and holding

The supreme governing body of a joint-stock company is the general meeting of its shareholders. This body is not permanent, and the possibility of making legal decisions during the meeting depends on the fulfillment of a number of conditions that the legislation has accompanied the procedure for convening and holding it. Mistakes in the procedure for convening and holding a general meeting of shareholders are fraught with corporate conflicts, often developing into trials. IN this article we will consider the procedure for convening a general meeting of participants, taking into account the order of the Federal Financial Markets Service of Russia dated 02.02.2012 No. additional requirements to the procedure for preparing, convening and holding a general meeting of shareholders” (hereinafter referred to as the Regulations).

Deadline

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

• not earlier than 2 months and
• no later than 6 months after graduation fiscal year.

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

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

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

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

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18. Accounting and reporting in the Company...

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

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

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

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

Scheme 1

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

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

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

Suggestions for the agenda

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

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

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

Offers in without fail must be in writing and contain information about the shareholders who contributed them, their personal signatures, as well as data on the number and type of their shares.

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

The nomination proposal must contain:

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

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

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

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

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

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

• For simple letters- date of receipt of the postal item by the addressee;
• for custom - the date of delivery of the postal item to the addressee under a personal signature;
• for courier services - the date of delivery by the courier;
• in person - the date of delivery "under a personal signature";
• if sent by electric communication, e-mail or in any other way provided for by the charter, - the date determined by the charter of the company or other internal document of the company regulating the activities of the general meeting.

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

Example 6

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

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

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

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

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

Example 7

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

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Example 8

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

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Agenda of the General Meeting of Shareholders

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

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

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

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

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Meeting Agenda:

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

List of persons entitled to participate in the meeting

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

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

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

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

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

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

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

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

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

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

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

Example 10

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

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Preparing for the meeting

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

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

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

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

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

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

Table

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

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

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

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

It's about an order. Federal Service on Financial Markets (FFMS of Russia) dated February 2, 2012 No. 12-6/pz-n, which approved the Regulation on additional requirements for the procedure for preparing, convening and holding a general meeting of shareholders (hereinafter - the Regulation; Order No. 12-6/pz-n ). With the entry into force of the new Regulation (6 months after its official publication), the old resolution of the Federal Commission for Securities of Russia dated May 31, 2002 No. 17 / ps “On approval of the Regulation on additional requirements for the procedure for preparing, convening and holding a general meeting of shareholders” fell out of law enforcement practice.

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

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

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

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

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

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

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

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

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

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

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

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

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

Announcement of the annual meeting

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

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

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

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

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

Example 12

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

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

Within the specified period, the notice of the General Meeting of Shareholders is published in the newspapers “ Russian newspaper and/or Tribune. The Company has the right to additionally inform shareholders about the General Meeting of Shareholders through other mass media (television, radio)”.

:

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

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

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

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

agenda of the general meeting of shareholders;

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

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

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

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;
• sole executive body of the company (usually CEO), 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 normative 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:

1. 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 for voting is issued by an 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.
2. If we are talking about a person acting as the sole executive body (SEO) of a 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 documents confirming his authority to represent the interests of a legal entity without a power of attorney, there must also be a protocol of a higher body of a 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 power of attorney of a representative is revoked in in that order, he cannot be registered to participate in the general meeting of shareholders.

Samples of general, special and one-time powers of attorney, as well as powers of attorney for English language with an apostille and its translation into Russian, you will find the general rules for issuing 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 a trustee 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).

Register of GMS participants (the shareholders themselves, proxies and representatives)

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 verification of identity documents of those who arrived at the meeting (i.e. compliance with 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 issue, par 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 with obligations and (or) blocking of 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 JSC, 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 reflection in the OCA protocol and the bulletin of a number of procedural issues. 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 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 the 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 contains a complete list of 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;
• a report on the voting results (if the 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 with the previous 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 entitled 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:

1. 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.
2. 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 obligatory 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. It is especially loved in large joint-stock companies, because with a large number of speakers and voting shareholders, it allows you to draw up a protocol in two independent blocks, separated 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 explain: the 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 the correct wording in 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 results of voting 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 can be more than one of them, for example, under No. 9 on the agenda is the approval of a certain local normative act, but the shareholders, in addition to its approval, may decide to entrust the development of another document to specific performers 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.

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 holding an 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 achieving 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 commission, 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 takes 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, in accordance with its constituent documents, an individual corporate calendar, without resorting to excuses “this is not necessary”, “it’s too early for our company”, etc. The company’s activities in a competent legal field should begin from the moment a decision is made to create it, which will positively affect the company’s work 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 violation of the legal requirements 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 "retroactive" registration) is impossible, since the mandatory procedures for preparing and holding the annual meeting (mandatory advance notices of convening, drawing up the results and disclosing this information, if the company has such duty). All documents and decisions issued In a similar way, will be illegal.

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 administrative fine for citizens in the amount of 2 thousand to 4 thousand rubles, for officials - from 20 thousand to 30 thousand rubles. 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 those negative consequences, which are possible in the event of its failure.

Changing the procedure for holding the annual meeting of JSC

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

• in order to hold a meeting of shareholders (extraordinary) on the issue of electing members of the board of directors at the initiative of the board itself, the period for holding the meeting was reduced by 20 days and is 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 has been supplemented with the following: if the agenda includes the issue of electing members of the board of directors, exact date closing the acceptance of candidates nominated to the board of directors; wording of decisions on all agenda items sent by shareholders to the AO in case of ballot voting.

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

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

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

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

One of the positive results of the adopted changes is the 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 the 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;
• to a personal email address or personal number telephone number of shareholders, the company may send a short text message indicating information on where the shareholder can get acquainted with the full content of the notice of the meeting.

However, it should not be forgotten that other possible ways notifications are not revoked by law, for example, through printed publications or the official website of the 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 specified 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 in 2014, not all joint-stock companies brought their names and the content of their charters in line with the new rules. However, at the same time, 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 individual needs companies 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 joint-stock companies, 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 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:

1. 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 notice of a meeting will become null and void, and such companies will be forced to be guided by general rules notifications (registered letter or delivery under signature);
2. amend the company's charter on the method of sending voting ballots to shareholders. In the current version of the law, in addition to the previously established methods of sending a ballot, the method of sending it in the form of an electronic message to the email address of the relevant person indicated 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;
3. 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:

1. making a decision on the payment of dividends is a right, not an obligation of the company;
2. 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;
3. the general meeting of shareholders is not entitled to decide on the cancellation earlier decision on the payment of dividends;
4. 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;
5. 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;
6. the difficult financial situation of the company is not a reason for non-payment of previously declared dividends;
7. the right of shareholders to demand payment of dividends to them after improvement financial condition a company arises in cases where dividends have been declared in accordance with the requirements of the law;
8. 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;
9. Violation of the deadline for the payment of declared dividends and (or) their payment not in full are grounds for collecting interest from the company for the use of other people's in cash for the period of delay;
10. 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;
11. 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;
12. the company is released from liability for late payment of declared dividends if it had no information about bank details shareholder;
13. a joint-stock company has the right to decide not to pay dividends even if there is a net profit;
14. 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;
15. 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 value 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 issued to a legal entity that owns more than a 50% share in the authorized capital for at least a year, then in such cases a 0% rate can be applied (clause 1 clause 3 article 284 of the Tax Code of the Russian Federation).

From practice...

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

Yes, you can. According to paragraph 1 of Art. 43 of the Tax Code of the Russian Federation for tax purposes, dividends are any income received from an organization in the distribution of its net profit, on shares or contributions of participants in proportion to their shares. This rule is true for organizations of any form, although formally in civil law the term "dividends" is used only in relation to payments to shareholders. Limited liability companies distribute the net profit among their members. The foregoing follows from paragraph 2 of Art. 42 of Law No. 208-FZ, paragraph 1 of Art. 28 of the Federal Law of February 8, 1998 No. 14-FZ (hereinafter - Law No. 14-FZ), but for the purposes 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 given order provided for by the constitution 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. Both in civil and tax legislation it is only established that the source of dividend payment 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 dated January 23, 2007 No. F08-7128 / 2006, dated March 22, 2006 No. F08-1043 / 2006-457A, the Federal Antimonopoly Service of the East Siberian District dated 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.