Procedure for convening a shareholders’ meeting in a limited liability company – mode of convening

The mode of convening a shareholders’ meeting in a limited liability company is regulated explicitly in the Code. It is generally possible to convene a shareholders’ meeting by sending an invitation by registered mail or courier service. It is also permissible to notify the shareholder by sending the invitation to an electronic delivery address or by e-mail, provided that the shareholder has given his prior written consent, indicating the relevant mailing address. The Code also indicates the minimum period of time that must elapse between, significantly, the dispatch and the shareholders’ meeting. According to Supreme Court case law, the two-week minimum period for convening a shareholders’ meeting is observed if it ends no later than the day before the day indicated in the invitation for holding the shareholders’ meeting. The risk of non-delivery of the invitation therefore rests with the addressee, but the convener of the meeting should exercise the utmost diligence in making the dispatch.

One can envisage a situation in which shareholders are otherwise effectively notified in advance of the convening of the shareholders’ meeting. In such a situation, it is not possible to categorically state that the meeting was convened defectively. However, it should be pointed out that it is accepted in doctrine that the articles of association may not introduce other forms of notification.

The invitation to the shareholders’ meeting must be sent to all shareholders, even to those whose right to vote on matters on the agenda of the meeting in question is excluded, as in the case of resolutions concerning his liability to the company on any account. Invitations must also be sent to persons who are not shareholders but who are entitled to exercise voting rights, such as a pledgee. The convener of the meeting must, with due diligence, send the invitations to the correct address. He should therefore first examine the share register. If, contrary to the obligation, there is no share register or there are reasonable grounds to question the address indicated in the register, the convener of the meeting should seek to clarify any doubts in this respect. This is important from the point of view of the possibility of challenging the resolutions adopted at the meeting.

The invitation to the shareholders’ meeting must have a specific content. It should contain the place where the planned meeting is to be held. The place should be indicated in a specific and unambiguous manner – usually a specific address is included in the invitation. Another necessary element is the starting time of the assembly. No formal activities should take place before the time indicated in the invitation. Starting the assembly late, but at the place and on the day indicated in the invitation, does not affect the correctness of its holding. Of utmost importance when formulating the content of the invitation is the agenda. The consequence of adopting a resolution outside of the agenda is that the possibility of legal action against the resolution becomes effective. The agenda should be sufficiently specific to allow the shareholder to decide on the basis of the invitation alone whether he is interested in participating in the meeting. Attention should be drawn to the situation where the articles of association are to be amended at the shareholders’ meeting. In such a case, it is not considered sufficient to merely indicate the intention to adopt a resolution on the content of the articles of association. The invitation should indicate the essential elements of the content of the proposed amendments.

Special requirements apply if the meeting is held using electronic means of communication. In such a case, the notice must contain information concerning the manner of participating in the meeting, speaking at the meeting, exercising the right to vote at the meeting and objecting to the resolution(s) adopted at the meeting.

Precise knowledge of these formal requirements and their accurate observance is crucial for the acceptance of the correctness or defectiveness of the convening of the meeting. Formal defects, also at the stage preceding the adoption of the resolution, may be an effective basis for challenging it.

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