LUXEMBOURG Law and Practice Contributed by: Philipp Mössner, Anna Lindner, Chara Papagiannidi and Maria Gusinski, GSK Stockmann SA
• EGMs, where special quorum requirements apply and a Luxembourg notary must be present. In an SA, an EGM shall not validly deliberate unless more than half of the company’s share capital is rep- resented. If this condition is not satisfied, a second meeting may be convened, in the manner prescribed by the articles of association of the company and the LSC. The second meeting shall validly deliberate, regardless of the proportion of the capital represented. An S.à r.l. applies a different mechanism than the SA with regards to the holding of general meetings, and does not distinguish between quorum and majority requirements. Mostly, resolutions are passed by either half or three quarters (in case of an EGM) of the corpo- rate capital (please refer also to 2.7 Types of Resolu- tions and Thresholds ). 2.7 Types of Resolutions and Thresholds With respect to the SA, the resolutions at an AGM or OGM are adopted by a simple majority of the votes validly cast by shareholders duly present or represent- ed. The holding of an EGM is necessary in case of: • any changes to the corporate object or the articles of association (Article 450-3 of the LSC); • capital increases and reductions (Articles 420-22 and 450-5 of the LSC); • the redemption of shares (Article 430-15 of the LSC); • the exclusion of shareholders’ preferential sub- scription rights and the creation of authorised share capital (Articles 420-26 (5) and 420-22 of the LSC); and • any merger (Articles 1021-3 and 1022-1 of the LSC), division (Article 1031-3 of the LSC) or liqui- dation of the company (Article 1100-2 of the LSC). Resolutions are adopted only if a quorum of 50% of the share capital is present or represented and if they are approved by at least two thirds of the votes cast. For an S.à r.l., AGM or OGM agenda items are adopt- ed by shareholders representing more than half of the corporate capital. The articles of association may even set out a higher majority requirement. The resolutions of an EGM are validly passed when adopted by share-
holders representing three quarters of the corporate capital, unless the articles of association lower this majority to more than half of the share capital (please refer also to 1.4 Variation of Shareholders’ Rights ). 2.8 Shareholder Approval Please see 2.1 Types of Meeting, Notice and Calling a Meeting and 2.7 Types of Resolutions and Thresh- olds . 2.9 Voting Requirements Shareholders can participate and vote in a general meeting in the following ways: • in person by raising their hands, unless the articles of association of the company provide for specific rules concerning the voting procedure – eg, having a secret ballot or a roll call vote; • by appointing a third person, who does not need to be a shareholder; • by electronic means, if permitted by the articles of association; or • from a remote location in advance of the general meeting, by correspondence or by electronic means, using a form made available by the com- pany and if permitted by the articles of association. In principle, one share entitles the holder to one vote, and weighted voting rights within the same share class are generally not allowed. However, Luxembourg law is flexible in structuring different share classes, profit units and the rights attached. 2.10 Shareholders’ Rights Relating to the Business of a Meeting In principle, the agenda of a general meeting is set by the company’s management. However, one or more shareholders who together hold at least 10% of the subscribed capital in an SA may request that one or more additional items be put on the agenda of the general meeting. This request shall be sent to the reg- istered office by registered mail at least five days prior to the holding of the meeting. For listed companies, the above percentage is reduced to 5%. The rules for an S.à r.l. are more flexible since only the articles of association of the company would set out the specific rules governing the convening of the
149 CHAMBERS.COM
Powered by FlippingBook