JAPAN Law and Practice Contributed by: Hiroshi Mitoma, Tomohiko Iwasaki, Kosuke Hamaguchi and Akira Komatsu, Nagashima Ohno & Tsunematsu
uled date of the shareholder meeting. In exchange, it is not legally required to send the proxy statements in printed form unless so requested by a shareholder. In the case of a closely held company with a limited number of shareholders, if all the shareholders agree to have a shareholder meeting with a shortened notice period, a shareholder meeting may be validly held in accordance with such agreement. Additionally, if all the shareholders approve the proposed agenda unanimously in writing (or by email), then the resolu - tion of a shareholder meeting will be deemed to have been made without having an actual physical meeting. Amendment to the Companies Act to introduce an alternative procedure to simplify the resolution of a shareholder meeting is now being discussed. Apart from the convocation of a shareholder meeting by the company, a shareholder holding 3% or more of the voting rights may, with the court’s permission, convene a shareholder meeting. Proposal by a Shareholder When the company convenes a shareholder meeting, within the scope of an agenda item proposed by the company, a shareholder may make a counter proposal during the meeting. For example, if the company pro - poses one individual as a director candidate, a share - holder may make a counter proposal to make another individual a director candidate during the meeting. Further, a shareholder holding 1% or more of the vot - ing rights (or holding 300 or more voting rights) may request the company add a certain agenda item for an upcoming shareholder meeting by making the request eight weeks prior to the scheduled date of the share - holder meeting. Resolution Requirement The voting/quorum requirements for a shareholder meeting resolution differ depending on the agenda item to be resolved. A super-majority vote, requiring two thirds or more of the affirmative votes among the shareholders present at the meeting, is required for some important matters such as amendments of the articles of incorporation, approval of mergers, dissolution of the company, and
others. The quorum requirement, which is the attend - ance of shareholders holding more than half of all the voting rights, may be relaxed by the articles of incor - poration. A simple majority vote, requiring more than half of the affirmative votes among the shareholders pre - sent at the meeting, applies to general matters such as the approval of financial statements, distribution of dividends, appointments of directors or statutory auditors, and others. The quorum requirement is the attendance of shareholders holding more than half of all the voting rights, which may be relaxed by the arti - cles of incorporation. There are some other resolution requirements for cer - tain exceptional matters. Disclosure of Result of Resolution In the case of a listed company, the voting results for each agenda item (ie, the number of affirmative votes, negative votes and abstentions) are required to be disclosed to the public. 4.4 Shareholder Claims A shareholder has the right to request the compa - ny institute a suit against a director by itself seek - ing indemnification of the company by the director (or statutory auditors or an accounting auditor). If the company does not bring such a suit by itself within 60 days of the demand being made by the sharehold - er, the shareholder may, on behalf of the company, bring a suit (a derivative suit) against the director (or statutory auditors or an accounting auditor). In limited circumstances satisfying the requirements under the Companies Act, a shareholder may also bring a deriv - ative suit against the directors (or statutory auditors or an accounting auditor) of a wholly owned subsidiary. A shareholder may also file an action with the court to nullify certain corporate actions taken by the com - pany, such as the issuance of new shares, merger, company split and resolution of a shareholder meet - ing, if there exist grounds for such nullification.
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