Directors and General Meetings in Spanish Companies: Roles, Quorum, and Agenda, Resúmenes de Derecho

¡Descarga Directors and General Meetings in Spanish Companies: Roles, Quorum, and Agenda y más Resúmenes en PDF de Derecho solo en Docsity! CASE 2B Pablo Martín, Ignasi Estop, Bea Martinez, Àneu Fortuny, Jack Keller. IND EX 2. Directors/ Board of Directors (from art. 209,...) - Number of Directors - Subjective requirements. Nomination, cessation. Representation Power. Remuneration. - Directors’ duties: due diligence, avoid conflict of interest - Board of Directors: Quorum, delegation of powers, minutes 1. General Meeting - Types of General Meeting (from art. 159,..) - Notice. Calls ( art 172,...) - Quorum of constitution of General Meeting - Agenda Points (art. 160) - Deliberation and decision process (majorities for each topic) - Rights of the shareholders: attendance, to be informed,... - Minutes (art. 202,...) 2. Notices call (art.172-177) ➔ Form of the notice: The general meeting should be published in the web of the company, if they don’t have web it will announce in the Official Journal of the Mercantile and in the diary.. In the by-laws can establish that the announcement will be individual to each shareholder. ➔ Place: Unless the by-laws say the opposite the general meeting will be in the same city of the registered office. ➔ Advance notice: In limited liability companies, 15 days before. If the advice is individual the days start counting since the last shareholder is advised. ➔ First call: 25% of the capital in this call in order to start a general meeting. ➔ Second call: when there is not enough capital on the 1st call, then, the law establishes that they have to have >25%. Notice (art.172): The shareholders have to be informed, so, they make a notice: Place, date, hour, agenda points → (which points are going to decide in the general meeting on art. 160) 3. Quorum of constitution of General meetings The amount of the present capital in the first call (25%) and also in the second one are explained below. First call → there will be a quorum in the first general meeting when the shareholders present have at least twenty-five percent of the capital that can vote. The bylaws may establish a higher quorum. Second call → there will be a quorum at the general meeting, regardless of the amount of the present or represented share, unless the statutes establish a quorum, which must be less than the quorum of the first meeting. 4. Agenda points (art.160) A. Approve annual financial statements, profit distribution and corporate governance B. Appoint and dismiss directors, liquidators and the auditors of accounts and whoever carries out some responsibility against any of these persons C. Modifications to the statutes D. Capital increase and decrease E. Delete or limit the preferential subscription of rights F. Purchase, dispose or transfer to another company, any essential element G. Conversion, merger, spin-off or global allocation of assets and liabilities and transfer of registered office abroad H. Dissolve the company I. Approval of the final liquidation balance J. Any other matter stipulated by law or statutes THE GENERAL MEETING CAN DISCUSS AND DECIDE THE FOLLOWING TOPICS: 6. Deliberation and decision process ● At the general meeting, separate votes must be held for any important and independent matter ● These issues do not matter if they are at the same point they have to vote separately: a) Appoint elect or dismiss directors b) By modifying the company's statutes, any article that may be autonomous c) Any subject in the statutes of the company ● In the limited liability company,have to present at least a third of the votes of the stakes into which the capital is divided ● For all or some articles, the statutes may require a higher percentage of votes than that established by law, but not unanimity ● In addition to the proportion of votes established by law or statutes, the latter may require votes to be cast for a certain number of votes partners 7. Rights of shareholders The shareholders have three main rights, that are the following: ● Attendance ● Representation ● Voting These rights are regulated in the corporate enterprises act, we can find them in the articles from 179 until 190. 8. Minutes (art.202-203) ➔ All corporate decisions must be recorded in the minutes. ➔ The minutes will be approved by the general meeting at the end of the meeting or fifteen days later by the President and two auditors, one representing the majority and the other representing the minority. ➔ Corporate decisions can be applied from the date the minutes in which they are recorded are approved. ➔ Directors can ask a notary public to go to the general meeting and make the minutes and it will be so when they request it shareholders representing 1% of the capital, in corporations, or 5% in limited liability companies. You must request 5 days before. Decisions will only be valid if they are recorded in the minutes of the notary public. ➔ The minutes of the notary public, subject to the approval procedure, will constitute the minutes of the meeting and the decisions recorded in the minutes can be applied on the day of issue. ➔ The service of the notary public will be paid by the company. Subjective Requirements Article 215 “Registration of appointment”: ● The appointment of administrators and their application has to be presented in the Mercantile Registry, specifying the identity of the appointees and, for directors vested with powers in order to represent the company, if they can act singly or are forced to work jointly. This application has to be made within ten days of acceptance. Article 217 “Remuneration of directors”: ● The role of director in unpaid, excepting that the company by-laws provides a remuneration system; a fixed assignment, attendance fees, shares in the profits, remuneration in shares linked to the growth of the company, compensation of dismissal, any type of savings system. Director’s duties Article 229 “Duty to avoid conflict of interest”: ● This duty binds the director to refrain from: (1) completing transactions with the company (except ordinary transactions) made under such conditions and are relevant (2) using the position of director to influence the private transactions, (3) promoting the use of the company assets, (4) to take advantage of the business opportunities that have the company, (5) obtaining advantages or remunerations from third parties, which are outside the company and (6) performing activities in order to entail a current competition with the company (otherwise will place the company in permanent conflict of interest). ● The previous provisions have to be applied in the event which is a person associated with the director ( in beneficiary of prohibited acts or activities). ● Above all, the directors must inform to other directors about any situation of conflict of interest that they or any person associated with them may have with the company’s interests. Director’s duties Article 225 “Due diligence”: ● Directors have to carry out their responsibilities in accordance with the company by- laws, taking into account the nature of the directors’ role and its duties. Directors must make a good management and control of the company. They can demand the workers to give them the necessary information in order to fulfill the obligations of the directors. Minutes Article 250 “Minutes of board of directors’ meetings”: ● The board of directors discussions and decisions will be recorded in a minutes book, which will be signed by the chairperson and the secretary. General Meeting of Recycled Paper : 1) Notice of the Annual General Meeting: Recycled Paper SL, 1st of January, it is held in Barcelona at 10 a.m 2) Agenda points of the General Meeting - The Last Meeting Minutes that we had - Appointment of a new Trustee (which might not need to be done at a meeting or can be done at a special meeting) - The Annual Accounts - Any current or planned projects or current issues Explain the difference between the quorum of constitution and the majorities (for each topic) to make decisions in the General Meeting. Apply it to your company. Which is the quorum of constitution of your company in first and second call? We have decided that the constitution of our company will be based on the attendance, which has to be formed by the majority of the shareholders. And on the other hand, the votes must be more in favour than against.