LUXEMBOURG Law and Practice Contributed by: Philipp Mössner, Anna Lindner, Chara Papagiannidi and Maria Gusinski, GSK Stockmann SA
(please see 2.10 Shareholders’ Rights Relating to the Business of a Meeting ); • request the board of directors to convene a general meeting (please see 2.3 Procedure and Criteria for Calling a General Meeting ); • request to postpone a general meeting for four weeks; • request information on management decisions with respect to operations of the company and its subsidiaries; or • bring an action against the directors (one-tier struc- ture) or the members of the management board or the supervisory board (two-tier structure), as the case may be, on behalf of the company. 2.13 Holding Through a Nominee Luxembourg legislation does not specifically govern nominee shareholding, but provides for a form of split between legal and beneficial ownership similar to a trust structure of common law countries. In particular, Luxembourg recognises a fiduciary agreement based on which a person – the settlor ( fiduciant ) – transfers the ownership of the asset to the fiduciary ( fiduciaire ), who will be in a position to exercise ownership rights and re-transfer the asset to a named person at the end of the contract. However, it is up to the fiduciary agreement to determine the conditions under which the fiduciary shall exercise any voting rights attached to shares of the settlor as well as related information Written resolutions cannot be passed in an SA. For an S.à r.l., however, the holding of a general meeting is not compulsory, unless: • such company has more than 60 shareholders; • the shareholders shall decide on the dissolution of the company; • the company’s articles of association shall be amended; or • the meeting has been convened by shareholders representing more than half of the company’s share capital. In all other cases, the shareholders can vote in writing without holding a meeting. In particular, shareholders shall receive the precise wording of the text of the obligations towards the settlor. 2.14 Written Resolutions
meeting and any shareholder’s right to add items to the agenda of a general meeting. 2.11 Challenging a Resolution Dissenting shareholders may seek to invalidate a shareholder decision that has been taken at a gen- eral meeting if: • there was a procedural irregularity that may have influenced the outcome of the decision; • there was a breach of the rules governing general meetings where there is a fraudulent intent; • the adopted decision is flawed by any other abuse of power or misuse of power; • the exercise of voting rights at a general meeting is suspended by legislation other than the LSC and where, without such unlawfully exercised voting rights, the quorum and majority requirements for decisions by a general meeting would not have been met; or • any other cause provided for by the LSC exists. The nullity of a decision by a general meeting must be declared by court order. The action for nullity shall be brought against the com- pany. The applicant may apply in summary proceed- ings for the provisional suspension of the implementa- tion of the contested resolution. The suspension order and the judgment ordering the nullity of the resolution shall become effective as from the decision ordering them. 2.12 Institutional Shareholder Groups There are no particular rights attributed to institutional shareholders or other shareholder groups, other than the standard rights granted to all shareholders – eg, the right to information (please see 2.4 Information and Documents Relating to the Meeting ). However, institutional shareholders/other shareholder groups may be granted additional rights depending on the percentage of their shareholding. For example, share- holders holding at least 10% of the company’s share capital can: • request that one or more additional items be put on the agenda of any general meeting of an SA
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