NEW ZEALAND Law and Practice Contributed by: Graeme Quigley, Ashton Goatley and Erin Hickey, Webb Henderson
• a decision to approve “major transaction” (see 3.2 Decisions Made by Particular Bod- ies ) by special resolution; • the appointment and removal of directors by ordinary resolution; and • a decision to amalgamate the company with another company (apart from members of the same wholly owned group) or to commence a voluntary solvent liquidation, each by special resolution. The chair at a shareholders’ meeting must allow a reasonable opportunity for shareholders to question, discuss or comment on the manage - ment of the company. The shareholders are entitled to pass a resolution relating to the man - agement of the company but, unless the consti - tution provides otherwise, such a resolution is not binding on the board. In addition, the company’s constitution may con - fer powers upon shareholders that would oth - erwise be exercised by the board (Section 126 (2)). A shareholder that exercises, or takes part in deciding whether to exercise, that power is deemed to be a director and subject to the direc - tors’ duties contained in Sections 131 to 138 in relation to that action. Similar provisions apply where the constitution of a company requires a director or the board to exercise or refrain from exercising a power in accordance with a deci - sion or direction by shareholders or, as men - tioned in 4.5 Rules/Requirements Concerning Independence of Directors , where a director or the board is accustomed to acting or required to act in accordance with another person’s direc - tions or instructions. 5.3 Shareholder Meetings The board of a company is required to call an annual meeting of shareholders unless:
• there is nothing required to be done at that meeting; • the board has resolved not to call or hold the annual meeting; and • the company’s constitution does not require such a meeting. The board, or any other person authorised by the constitution, may call a shareholders’ meet - ing at any time. Such a meeting must be called on the written request of shareholders holding shares carrying together not less than 5% of the voting rights. Schedule 1 to the Companies Act sets out the default rules for proceedings at shareholders’ meetings, as outlined below. Some of these may be modified by the company’s constitution. Written notice of a meeting must be given to each shareholder, director and auditor at least ten working days prior to the meeting. The notice must specify the time, the place and the nature of the business to be transacted at the meet - ing, in sufficient detail to enable a shareholder to form a reasoned judgement in relation to it. Where any special resolution is to be submitted to the meeting, the text of that resolution must be included in the notice. Shareholders may attend in person or via audio or audiovisual communication (ie, an electronic meeting). Electronic meetings have become increasingly common following the emergence of COVID-19 and are specifically provided for in the Companies Act (Schedule 1) and the List - ing Rules (Rule 2.14.3). Shareholders may also appoint a proxy to attend the meeting on their behalf or – if permitted by the constitution – cast “postal vote” , including by electronic means. The quorum requirement will be met if those attend- ing, together with those voting by proxy or by
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