belgiquelex.be - Carrefour Bank of Legislation

20 DECEMBER 2010. - Act respecting the exercise of certain rights of shareholders of listed companies (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1^er. - General provisions
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. This Act transposes Directive 2007/36/EC of the European Parliament and the Council of 11 July 2007 on the exercise of certain rights of shareholders of listed companies.
CHAPTER 2. - Amendment of the Corporate Code
Art. 3. In Article 114 of the Corporate Code, the words "listed within the meaning of Article 4" are replaced by the words "allowed to negotiations on a market referred to in Article 4".
Art. 4. In Article 143 of the same Code, the words "one month before the expiry of the legal period in which the report must be submitted under this Code. are replaced by the words "one month or, in societies whose shares are admitted to negotiations on a market referred to in Article 4, forty-five days before the date provided for in the General Assembly".
Art. 5. In the same Code, an article 270bis is inserted as follows:
"Art. 270bis. § 1^er. The statutes may provide for the possibility for associates to participate remotely in the general assembly through an electronic means of communication made available by the company. The associates who participate in this manner in the General Assembly are deemed to be present at the place where the General Assembly stands for respect for the conditions of presence and majority.
For the purposes of paragraph 1^er, the company must be able to control, through the electronic communication used, the quality and identity of the partner. The conditions under which the quality of associate and the identity of the person wishing to participate in the assembly are controlled and guaranteed are defined by the statutes or by virtue of them.
Without prejudice to paragraphs 2 and 6, the use of electronic means of communication may be subject to conditions established by or under the Statutes for the sole purpose of ensuring the security of electronic communication.
For the purposes of paragraph 1^er, without prejudice to any restrictions imposed by or under the law, the means of electronic communication must at least allow the partner, in a direct, simultaneous and continuous manner, to learn of the discussions within the assembly and, on all points on which the assembly is called to take action, to exercise the right to vote. The statutes may provide that this means of electronic communication must also allow the partner to participate in the deliberations and exercise his right to ask questions.
The convocation to the General Assembly contains a clear and precise description of statutory procedures or established under the statutes relating to remote participation. Where applicable, these procedures are made available to all on the company's website.
The terms and conditions under which it is found that an associate participates in the general assembly through electronic communication and may therefore be considered present are defined by or under the statutes.
The minutes of the General Assembly mention any technical problems and incidents that prevented or disrupted electronic participation in the General Assembly and/or the vote.
This subsection does not apply to members of the General Assembly, the Management Body and the Commissioners.
§ 2. The statutes may extend the possibility conferred on the basis of § 1^er holders of bonds or certificates issued with the collaboration of the company, taking into account the rights assigned to them.
§ 3. Section 270 is applicable where the company allows remote participation in the general assembly.
§ 4. The King may specify the nature and conditions of application of the electronic means of communication referred to in § 1^er.
§ 5. Without prejudice to section 280, the statutes may authorize any partner to vote remotely before the general assembly in electronic form, in the manner they determine.
When the company allows remote voting in electronic form, it must be able to control the quality and identity of the partner. The conditions under which the quality of partner and the identity of the person wishing to vote remotely are controlled and guaranteed are defined by the statutes or by virtue of them. »
Art. 6. In section 274 of the same Code, the following amendments are made:
1° to paragraph 1^er, the words "in assembly or in writing" are inserted between the words "by associates" and the words "in relation to";
2° to paragraph 1^er, the words ", to the extent that the disclosure of data or facts is not of a nature to seriously prejudice society, partners or employees of society. are replaced by the words ", to the extent that the disclosure of data or facts is not likely to prejudice the business interests of the company or the confidentiality commitments undertaken by the company or its managers. »;
3° in paragraph 2, first sentence, the words "in assembly or in writing" are inserted between the words "by associates" and the words "in relation to their relationship";
4° paragraph 2, first sentence, is supplemented by the words ", to the extent that the disclosure of data or facts is not of a nature to prejudice the business interests of the company or the confidentiality commitments undertaken by the company, its managers or the commissioners. »;
5° the article is supplemented by two paragraphs written as follows:
"Managers and commissioners can provide a comprehensive response to several issues with the same purpose.
The associates may, as soon as the summons is made, ask in writing the questions referred to in paragraph 1^er and 2, to which it will be answered, as the case may be, by the managers or commissioners during the meeting provided that these associates have satisfied the formalities of admission to the assembly. These questions may be addressed to the corporation electronically to the address indicated in the convocation to the meeting. The statutes set the time limit for such written questions to reach society. »
Art. 7. In Book VI, Title IV, Chapter IV, Section III, of the same Code, it is inserted, an article 295bis, as follows:
"Art. 295bis. The statutes may extend the distance participation regime referred to in section 270bis, on the same terms, to the general assembly of bonds. »
Art. 8. In the same Code, an article 382bis is inserted as follows:
"Art. 382bis. § 1^er. The statutes may provide for the possibility for associates to participate remotely in the general assembly through an electronic means of communication made available by the company. The partners who participate in this manner in the General Assembly are, for the respect of the conditions of presence and majority, deemed to be present at the place where the General Assembly is held.
For the purposes of paragraph 1^er, the company must be able to control, through the electronic communication used, the quality and identity of the partner. The conditions under which the quality of associate and the identity of the person wishing to participate in the assembly are controlled and guaranteed are defined by or under the statutes.
Without prejudice to paragraphs 2 and 6, the use of electronic means of communication may be subject to conditions established by or under the Statutes for the sole purpose of ensuring the security of electronic communication.
For the purposes of paragraph 1^er, without prejudice to any restrictions imposed by or under the law, the means of electronic communication must at least allow the partner, in a direct, simultaneous and continuous manner, to learn of the discussions within the assembly and, on all points on which the assembly is called to take action, to exercise the right to vote. The statutes may provide that this means of electronic communication must also allow the partner to participate in the deliberations and exercise his right to ask questions.
The convocation to the General Assembly contains a clear and precise description of the statutory or established procedures under the statutes relating to remote participation. Where applicable, these procedures are made available to all on the company's website.
The terms and conditions under which it is found that an associate participates in the General Assembly through an electronic means of communication and may therefore be considered present are defined by or under the Statutes.
The minutes of the General Assembly mention any technical problems and incidents that prevented or disrupted electronic participation in the General Assembly and/or the vote.
This subsection does not apply to members of the General Assembly, directors and commissioners.
§ 2. The statutes may extend the possibility conferred on the basis of § 1^er the holders of obligations, taking into account their rights.
§ 3. The King may specify the nature and conditions of application of the electronic means of communication referred to in § 1^er. »
Art. 9. In section 412 of the same Code, the following amendments are made:
1° to paragraph 1^er, the words "in assembly or in writing" are inserted between the words "by associates" and the words "in relation to";
2° to paragraph 1^er, the words ", to the extent that the disclosure of data or facts is not of a nature to seriously prejudice society, partners or employees of society. are replaced by the words ", to the extent that the disclosure of data or facts is not likely to prejudice the business interests of the corporation or the confidentiality commitments made by the corporation or its directors. »;
3° in paragraph 2, second sentence, the words "in assembly or in writing" are inserted between the words "by associates" and the words "in relation to their relationship";
4° paragraph 2, second sentence, is supplemented by the words ", to the extent that the disclosure of data or facts is not of a nature to prejudice the business interests of the company or the confidentiality commitments undertaken by the company, its directors or commissioners. »;
5° the article is supplemented by two paragraphs written as follows:
"Professionals and Commissioners can provide a comprehensive response to a number of issues with the same purpose.
The associates may, as soon as the summons is made, ask in writing the questions referred to in paragraph 1^er and 2, to which it will be answered, as the case may be, by the directors or commissioners during the meeting provided that these associates have satisfied the formalities of admission to the assembly. These questions may be addressed to the corporation electronically to the address indicated in the convocation to the meeting. The statutes set the time limit for such written questions to reach society. »
Art. 10. In section 514 of the same Code, as amended by section 37 of the Act of 2 May 2007, the words "listed within the meaning of section 4" are replaced by the words "allowed to negotiations on a market referred to in section 4".
Art. 11. In section 524 of the same Code, replaced by section 32 of the Act of 2 August 2002 and amended by the Act of 17 December 2008, the following amendments are made:
1° to § 1^erParagraph 1^er, the words "by a listed corporation" are replaced by the words "by a corporation whose shares are admitted to negotiations on a market referred to in Article 4";
2° to § 1^er, paragraph 2, the words "listed corporation" are replaced by the words "company whose shares are admitted to negotiations on a market referred to in Article 4" and the words "titles are allowed" are replaced by the words "actions are allowed";
3° in § 5, the words "Belgian society quoted" are replaced by the words "Belgian society whose actions are admitted to negotiations on a market referred to in Article 4";
4° to § 7, the words "The listed company" are replaced by the words "The company whose shares are admitted to negotiations on a market referred to in Article 4".
Art. 12. ÷ section 533 of the same Code, replaced by section 511 of the Act of 27 December 2004 and amended by section 17 of the Act of 17 December 2008 and by section 8 of the Act of 6 April 2010, the following amendments are made:
1° to paragraph 1^er(a), paragraph 2 is repealed;
2° to paragraph 1^er(b), subparagraph 1^erthe words "as well as, if any, the points mentioned in section 554, paragraphs 3 and 4," are repealed;
3° to paragraph 1^er(b), paragraph 2 is repealed;
4° paragraphs 1^er to 4, as amended, form a § 1^er;
5° a § 2 is added as follows:
“§2. By derogation from § 1^er, summonses for any general assembly of companies whose shares are admitted to negotiations on a market referred to in Article 4 are made by advertisements inserted at least thirty days before the assembly:
(a) in the Belgian Monitor;
(b) except for the ordinary general assemblies held in the commune at the place, day and hour indicated in the constitutive act, whose agenda is limited to the review of the annual accounts, the management report and the report of the commissioners, the vote on the discharge of directors and commissioners, and the vote on the items mentioned in article 554, paragraphs 3 and 4, in a national broadcast press body;
(c) in media that can reasonably be expected to effectively disseminate information to the public throughout the European Economic Area and which are accessible promptly and in a non-discriminatory manner.
If a new convocation is necessary because of the absence of the conditions of presence required for the first meeting convened and provided that it has been satisfied with this paragraph at the first convocation, that the date of the second meeting was indicated in the first convocation and that the agenda does not include any new subject matter, the time limit referred to in paragraph 1^er is raised to seventeen days at least before the assembly.
The summonses will be communicated, within the time limit referred to in paragraph 1^er or 2, to shareholders, holders of bonds or holders of a subscription right on behalf, to holders of nominative certificates issued with the collaboration of the corporation, directors and commissioners; this communication is made by ordinary letter unless the recipients have individually, expressly and in writing, agreed to receive the summons through another means of communication, without the need to be justified from the completion of this formality.
When all actions, obligations, subscription rights or certificates issued with the collaboration of the corporation are nominal, the corporation may be limited to the communication of summonses by registered letter to the position unless the recipients have individually, expressly and in writing, agreed to receive the summons by another means of communication.
The corporation may not charge specific costs to shareholders because of the application of this subsection. »
Art. 13. In the same Code, an article 533bis is inserted as follows:
"Art. 533bis. § 1^er. The summonses for any general assembly of companies whose shares are admitted to negotiations on a market referred to in Article 4 contain at least the following information:
1 the indication of the date, time and place of the general assembly;
2° the agenda containing the indication of the subjects to be dealt with and the proposals for decision without prejudice to Article 533, § 1^erParagraph 4;
3° a clear and precise description of the formalities to be performed by the shareholders in order to be admitted to the general assembly and to exercise their right to vote, including the period in which the shareholder must indicate his intention to participate in the meeting, as well as information concerning:
(a) the rights of shareholders referred to in sections 533ter and 540, as well as the time limit within which these rights may be exercised and the email address to which shareholders may apply. The convocation also indicates the final date on which a completed agenda is, if any, published in accordance with Article 533ter, § 3, paragraph 1^er. The summons may be limited to indicating these deadlines and e-mail addresses, provided that more detailed information on these rights is available on the company's website;
(b) the procedure to be followed in order to vote by proxy, including a form that may be used for the vote by proxy, the manner in which the corporation is prepared to accept notifications, electronically, of the appointment of a proxy agent and the period in which the right to vote by proxy must be exercised; and
(c) where appropriate, the procedures and deadlines established by or under the statutes, allowing for remote participation in the general assembly in accordance with Article 538bis, and for remote voting before the assembly in accordance with Article 550;
4° the indication of the date of registration as defined in Article 536, § 2, and the indication that only persons who are shareholders on that date will have the right to participate and vote in the general assembly;
5° the indication of the address where it is possible to obtain, in accordance with Article 535, paragraph 3, the full text of the documents and proposals for decision referred to in § 2, (c), (d) and (e), and of the steps to be taken to that effect;
6° the indication of the precise address of the website on which the information referred to in § 2 will be available.
§ 2. On the day of the publication of the convocation to the general assembly and in an uninterrupted manner until the day of the general assembly, companies whose shares are admitted to the negotiations on a market referred to in Article 4, make available to their shareholders on the website, which they are required to develop, at least the following information:
(a) the summons referred to in § 1^er and, where applicable, the agenda published in accordance with Article 533ter, § 3;
(b) the total number of shares and voting rights on the date of the convocation, including separate totals for each class of shares, where the capital of the corporation is divided into two or more classes of shares;
(c) documents to be submitted to the General Assembly;
(d) for each subject to be treated on the agenda of the General Assembly, a decision proposal or, where the subject to be addressed does not require the adoption of a decision, a comment from the Board of Directors. In addition, the decision proposals made by shareholders under section 533ter are added to the website as soon as possible after their receipt by the company;
(e) forms that may be used to vote by proxy and, where appropriate, to vote by mail, unless these forms are sent directly to each shareholder.
When the forms referred to in point (e) cannot be made available on the website for technical reasons, the company indicates on its website how to obtain these forms on paper. In this case, the company is required to send the forms without delay and without charge to each shareholder who makes the request, to the postal or electronic address that it will have indicated.
The information referred to in this paragraph shall remain available on the company's website for a period of five years from the date of the general meeting to which it relates. »
Art. 14. In the same Code, an article 533ter is inserted as follows:
"Art. 533ter. § 1^er. A shareholder or shareholder with at least 3% of the social capital of a corporation whose shares are admitted to negotiations on a market referred to in Article 4 may require the inclusion of topics to be dealt with on the agenda of any general meeting, as well as the filing of decision-making proposals for topics to be dealt with or to be included in the agenda. This article is not applicable in the case of a general assembly convened under Article 533, § 2, paragraph 2.
The shareholders shall, on the date of their application, establish the possession of the capital fraction required by paragraph 1^er either by a certificate recognizing the registration of the corresponding shares in the company's registered shares, or by a certificate issued by a financial intermediary certifying the number of shares to the bearer that were produced to it, or by an attestation, established by the contents of the approved accounts or the liquidation agency, certifying the registration in their name of the corresponding number of dematerialized shares.
The examination of the subjects to be dealt with and the proposed decisions to be taken under this Article shall be subject to the registration, in accordance with Article 536, § 2, of the fraction of the capital referred to in paragraph 1^er.
§ 2. Requests referred to in § 1^er are formulated in writing and are accompanied, as the case may be, by the text of the topics to be addressed and the related decision-making proposals, or by the text of the decision-making proposals to be brought to the agenda. They indicate the postal or electronic address to which the company transmits the acknowledgement of receipt of these applications.
They must reach the society no later than the twenty-second day preceding the date of the General Assembly. These requests may be sent to the company electronically to the address indicated in the summons published in accordance with Article 533bis, § 1^er. The company acknowledges receipt of the requests referred to in § 1^er within 48 hours of this reception.
§ 3. Without prejudice to Article 533bis, § 2, paragraph 1^er, d), the company publishes, in accordance with Article 533, § 2, a full agenda of the subjects to be dealt with and the related decision-making proposals to be made therein, and/or proposals of decision which alone would have been made, no later than the fifteenth day preceding the date of the General Assembly.
At the same time, the company makes available to its shareholders, on its website, forms that can be used to vote by proxy and, where applicable, to vote by correspondence, supplemented with additional topics to be processed and related decision-making proposals that would have been brought to the agenda, and/or proposals for decisions that would have been made. This paragraph is not applicable if these forms are sent directly to shareholders. Article 533bis, § 2, e), paragraph 2, is applicable.
§ 4. Voting powers notified to the corporation prior to the publication, pursuant to this provision, of a completed agenda shall remain valid for the subjects to be treated on the agenda they cover.
Derogation from paragraph 1^er, for the subjects to be treated on the agenda that are the subject of new decision proposals filed under this provision, the agent may, in a meeting, deviate from the possible instructions given by his or her principal if the execution of such instructions would jeopardize the interests of his or her principal. He must inform his principal.
The proxy must indicate whether the proxy is authorized to vote on the subjects to be treated on the agenda or if he or she is to abstain. »
Art. 15. In section 534, first sentence, of the same Code, as amended by section 58 of the Act of 18 January 2010, the words "to three weeks. are replaced by the words "to five weeks".
Art. 16. In section 535 of the same Code, as amended by section 39 of the Act of 2 August 2002, the following amendments are made:
1° to paragraph 1^er, the words "and in the same manner" are added after the words "at the same time as the convocation";
2° to paragraph 2, first sentence, the words "Except in companies whose shares are admitted to negotiations on a market referred to in Article 4" are added before the words "A copy of these documents";
3° in paragraph 3, the words "or the attestation referred to in section 474" are inserted between the words "on the production of its title" and the words "in the fifteen days" and the words "in the fifteen days before the general assembly" are replaced by the words "in the fifteen days before the assembly or, in the societies whose shares are admitted to the negotiations on a market referred to in the meeting,
Art. 17. In section 536 of the same Code, as amended by section 40 of the Act of 2 August 2002 and section 30 of the Act of 14 December 2005, the following amendments are made:
1° paragraph 3 is repealed;
2° paragraphs 1^er to 4 former,^er to 3, form a § 1^er;
3° a § 2 is added as follows:
“§2. By derogation from § 1^er, paragraph 2, the right to participate in a general assembly of a corporation whose shares are admitted to the negotiations on a market referred to in section 4, and to exercise the right to vote shall be subject to the record of the shares on behalf of the shareholder on the fourteenth day preceding the general assembly, at twenty-four hours (Belgian time), either by their registration on the register of the shares of the corporation, or by their registration in the
The day and hour referred to in paragraph 1^er is the date of registration.
The shareholder shall indicate to the corporation, or to the person designated for that purpose, its willingness to participate in the general assembly, no later than the sixth day preceding the date of the meeting.
A certificate shall be issued to the shareholder by the financial intermediary certifying the number of bearer shares produced on the date of registration, or by the registered account content or by the winding-up agency certifying the number of dematerialized shares registered on behalf of the shareholder in its accounts on the date of registration, for which the shareholder declared that he wished to participate in the general assembly.
In a register designated by the Board of Directors, it is indicated, for each of the shareholders who reported their willingness to participate in the General Assembly, its name or social name and address or head office, the number of shares that it held on the date of registration and for which it declared its intention to participate in the General Assembly, as well as the description of the documents that establish the holding of shares on that date of registration. »
Art. 18. In Book VIII, Part IV, Chapter II, Section I^re, Sub-section III of the same Code, an article 538bis is inserted, as follows:
"Art. 538bis. § 1^er. The statutes may provide for the possibility for shareholders to participate remotely in the general assembly through an electronic means of communication made available by the company. The shareholders who participate in this manner in the general assembly are deemed to be present at the place where the general assembly is held for the respect of the conditions of presence and majority.
For the purposes of paragraph 1^er, the company must be able to control, through the electronic communication used, the quality and identity of the shareholder. The conditions under which the quality of shareholder and the identity of the person wishing to participate in the assembly are controlled and guaranteed are defined by the statutes or by virtue of them.
Without prejudice to paragraphs 2 and 6, the use of electronic means of communication may be subject to conditions established by or under the Statutes for the sole purpose of ensuring the security of electronic communication.
For the purposes of paragraph 1^er, without prejudice to any restrictions imposed by or under the law, the means of electronic communication must at least allow the shareholder, in a direct, simultaneous and continuous manner, to take note of the discussions within the assembly and, on all points on which the assembly is called to vote, to exercise the right to vote. The statutes may provide that this means of electronic communication must also allow the shareholder to participate in the deliberations and exercise his right to ask questions.
Without prejudice to Article 533bis, § 1^er, 3°, c), the convocation to the general assembly contains a clear and precise description of the statutory or established procedures under the statutes relating to remote participation in the general assembly. Where applicable, these procedures are made available to all on the company's website.
The terms and conditions under which it is found that a shareholder participates in the general assembly through electronic communication and may therefore be considered present, are defined by or under the statutes.
The minutes of the General Assembly mention any technical problems and incidents that prevented or disrupted electronic participation in the General Assembly and/or the vote.
This subsection does not apply to members of the General Assembly, directors and commissioners.
§ 2. The statutes may extend the possibility conferred on the basis of § 1^er beneficiaries, taking into account their rights.
§ 3. The statutes may extend the possibility conferred on the basis of § 1^er the holders of obligations, the holders of subscription rights or certificates issued with the collaboration of the company, taking into account their rights.
§ 4. Section 536 is applicable where the company allows remote participation in the general assembly.
§ 5. The King may specify the nature and conditions of application of the electronic means of communication referred to in § 1^er. »
Art. 19. In section 540 of the same Code, the following amendments are made:
1° to paragraph 1^er, the words "in assembly or in writing" are inserted between the words "by shareholders" and the words "in relation to";
2° to paragraph 1^er, the words ", to the extent that the disclosure of data or facts is not of a nature to seriously prejudice the corporation, shareholders or employees of the corporation" are replaced by the words ", to the extent that the disclosure of data or facts is not of a nature to prejudice the business interests of the corporation or the confidentiality commitments undertaken by the corporation or its directors";
3° in paragraph 2, first sentence, the words "in assembly or in writing" are inserted between the words "by shareholders" and the words "in relation to their relationship";
4° paragraph 2, first sentence, is supplemented by the words ", to the extent that the disclosure of data or facts is not of a nature to prejudice the business interests of the company or the confidentiality commitments undertaken by the company, its directors or the commissioners";
5° the article is supplemented by two paragraphs written as follows:
"Professionals and Commissioners can provide a comprehensive response to a number of issues with the same purpose.
The shareholders may, upon publication of the summons, ask in writing the questions referred to in paragraph 1^er and 2, to which it will be answered, as the case may be, by the directors or commissioners during the meeting provided that these shareholders have satisfied the formalities of admission to the meeting referred to in section 536. These questions may be addressed to the corporation electronically to the address indicated in the convocation to the General Assembly. The statutes set the time limit for such written matters to be reached by the corporation except in companies whose shares are admitted to negotiations on a market referred to in Article 4 where written questions must reach the corporation no later than the sixth day preceding the date of the meeting. »
Art. 20. Article 546 of the same Code is supplemented by a paragraph written as follows:
"The minutes of the general assemblies of companies whose shares are admitted to the negotiations on a market referred to in Article 4 mention, for each decision, the number of shares for which votes have been validly expressed, the proportion of the social capital represented by these votes, the total number of valid votes cast, the number of votes cast for and against each decision, and, if so, the number of abstentions. This information is made public by these companies on their website within fifteen days of the general assembly. »
Art. 21. Article 547 of the same Code is supplemented by four paragraphs written as follows:
"By proxy, one must hear the power given by a shareholder to a natural or legal person to exercise on behalf of that shareholder all or part of his rights at the general assembly.
Without prejudice to Article 549, paragraph 1^er, 1°, such power may be given for one or more specified assemblies or for assemblies held for a specified period of time.
The power of attorney given for a meeting is valid for successive assemblies convened with the same agenda.
The agent enjoys the same rights as the shareholder so represented and, in particular, the right to speak, ask questions at the general assembly and exercise the right to vote. »
Art. 22. It is inserted, in the same Code, an article 547bis as follows:
"Art. 547bis. § 1^er. A shareholder of a corporation whose shares are admitted to negotiations on a market referred to in Article 4 shall not designate, for a given general meeting, only one person as an agent.
Derogation from paragraph 1^er,
(a) the shareholder may designate a separate agent in the form of shares held by the shareholder, as well as by account holders of shares of a corporation on more than one account holder;
(b) a person who is qualified as a shareholder but who acts in a professional capacity on behalf of other natural or legal persons may give power to each of these other natural or legal persons or to a third person designated by them.
In companies referred to in paragraph 1^er, are deemed to be unwritten the statutory clauses limiting the possibility for persons to be designated as agents.
Number of shareholders of a corporation referred to in paragraph 1^er that a person acting as an agent may represent is not limited. In the event that an agent holds power of attorneys from several shareholders, he may express for a given shareholder different votes from those expressed for another shareholder.
§ 2. The designation of an agent by a shareholder of a corporation referred to in § 1^er, intervenes in writing or by an electronic form and must be signed by the shareholder, if any in the form of an advanced electronic signature within the meaning of Article 4, § 4 of the Law of 9 July 2001 establishing certain rules relating to the legal framework for electronic signatures and certification services, or by an electronic signature process that meets the requirements of Article 1322 of the Civil Code.
The notification of power of attorney to society must be in writing. This notification may also be provided electronically to the address indicated in the summons published in accordance with Article 533bis, § 1^er.
The power of attorney must reach the society no later than the sixth day preceding the date of the assembly.
For the calculation of quorum and majority rules, only proxys introduced by shareholders who meet the formalities of admission to the assembly referred to in Article 536, § 2, are taken into account.
§ 3. Without prejudice to Article 549, paragraph 2, the representative shall vote in accordance with the instructions given by the shareholder of a corporation referred to in § 1^er who designated him. It must keep a record of the voting instructions for a period of at least one year and confirm, upon request of the shareholder, that the voting instructions were executed.
§ 4. In case of potential conflicts of interest between the shareholder of a corporation referred to in § 1^er and the agent he designated:
1° the agent must disclose the specific facts that are relevant to enable the shareholder to assess the risk that the agent may pursue an interest other than the interest of the shareholder;
2° the agent is authorized to exercise the right to vote on behalf of the shareholder only on the condition that it has specific voting instructions for each subject on the agenda;
For the purposes of this paragraph, there is a conflict of interest where, in particular, the agent:
1° is the corporation itself or an entity controlled by it, a shareholder who controls the corporation or is another entity controlled by such shareholder;
2° is a member of the board of directors, the management bodies of the corporation or a shareholder who controls it or a controlled entity referred to in 1°;
3° is an employee or commissioner of the corporation, or a shareholder who controls it or a controlled entity referred to in 1°;
4° has a parental connection with a natural person referred to in 1° to 3° or is the spouse or legal cohabitant of such person or a parent of such person.
§ 5. § 2, paragraphs 1^er and 2, is applicable in case of revocation of the power of attorney. »
Art. 23. Section 550 of the same Code is replaced by the following:
"Art. 550. § 1^er. The statutes may authorize any shareholder to vote remotely before the general assembly, by correspondence or in electronic form, by means of a form made available by the corporation.
When the company authorizes remote voting in electronic form, it must be able to control the quality and identity of the shareholder. The terms under which the quality of shareholder and the identity of the person wishing to vote remotely are controlled and guaranteed are defined by or under the statutes.
§ 2. Without prejudice to other references required by or under the statutes, the remote voting form must include at least the following:
1 the name or social name of the shareholder and his or her domicile or head office;
2° the number of votes the shareholder wishes to express to the General Assembly;
3° the form of the shares held;
4th the agenda of the assembly, including the proposals for decision;
5° the time limit for the remote voting form to reach the company;
6° the signature of the shareholder, if any, in the form of an advanced electronic signature within the meaning of Article 4, § 4, of the Act of 9 July 2001 establishing certain rules relating to the legal framework for electronic signatures and certification services, or by an electronic signature process that meets the requirements of Article 1322 of the Civil Code.
The forms in which the meaning of a vote or forbearance would not be mentioned are null. In the event of an amendment to a proposal for a decision on which a vote has been expressed, the vote issued is considered null.
§ 3. The correspondence form must be sent to the corporation within the time limit set by or under the statutes or, for companies whose shares are admitted to negotiations on a contract referred to in Article 4, no later than the sixth day preceding the date of the general assembly. The vote in electronic form can be expressed until the day before the assembly.
The remote voting form sent to the company for an assembly is valid for successive assemblies convened with the same agenda.
For the calculation of the quorum and majority rules, only the distance votes expressed by shareholders who meet the formalities of admission to the assembly referred to in Article 536, § 1^er, paragraph 2, or in companies whose shares are admitted to negotiations on a market referred to in Article 4, Article 536, § 2, shall be taken into account.
In companies other than those whose shares are admitted to negotiations on a market referred to in Article 4, is considered void the remote vote expressed by a shareholder who has sold its shares on the date of the general assembly.
The shareholder who has expressed his vote remotely, whether by correspondence or in electronic form, cannot choose another mode of participation in the assembly for the number of votes thus expressed.
§ 4. In companies whose shares are admitted to negotiations on a market referred to in Article 4, in the case of application of Article 533ter, § 3, paragraph 1^er, the remote, correspondence or electronic voting forms that have reached the company prior to the publication of a completed agenda remain valid for the subjects to be treated on the agenda they cover.
Derogation from paragraph 1^er, the vote on a subject to be dealt with on the agenda that is the subject of a new decision proposal pursuant to section 533ter is void. »
Art. 24. In Book VIII, Part IV, Chapter II, Section I of the same Code, a sub-section VI entitled "Subsection VI. Equal treatment".
Art. 25. In subsection VI, inserted by section 24, an article 551bis is inserted, as follows:
"Art. 551bis. In the application of this chapter, the company ensures equal treatment of all shareholders in an identical situation. »
Art. 26. In section 553, paragraph 1^er, in the same Code, the words "or, in companies whose shares are admitted to negotiations on a market referred to in Article 4, as soon as the summons is published to the assembly" are inserted between the words "before the general assembly" and the words ", shareholders".
Art. 27. In article 555 of the same Code, after the first sentence, a sentence is inserted as follows:
"In companies whose shares are admitted to negotiations on a market referred to in Article 4, this period is extended to five weeks. »
Art. 28. In Book VIII, Part IV, Chapter IV, Section III, of the same Code, an article 571bis is inserted, as follows:
"Art. 571bis. The statutes may extend the distance participation regime referred to in section 538bis, on the same terms, to the general assembly of bonds. »
Art. 29. In section 598, paragraph 2, of the same Code, as amended by section 2 of the Act of 23 January 2001, the words "listed companies" are replaced by the words "companies whose shares are admitted to negotiations on a market referred to in section 4".
Art. 30. Article 620, § 2, of the same Code is supplemented by a paragraph written as follows:
"The King sets out the rules that the CBFA exercises control over the compliance with the public information obligations set out in paragraph 3, including the conditions under which, in the event of a breach of the companies referred to in this paragraph, the CBFA may:
(a) itself, at the expense of the corporation concerned, to publish certain information;
(b) it itself makes public that the corporation concerned does not meet its obligations. »
Art. 31. The following amendments are made to section 924 of the Code:
1° the words "in assembly or in writing" are inserted between the words "by shareholders" and the words "in relation to";
2° the words ", to the extent that the communication of data or facts is not of a nature to seriously prejudice the company, its shareholders or its personnel" are replaced by the words ", to the extent that the disclosure of data or facts is not of a nature to prejudice the commercial interests of the company or the confidentiality commitments undertaken by the company or its directors";
3° the article is supplemented by two paragraphs written as follows:
"The directors, board members and members of the supervisory board may provide a comprehensive response to a number of issues with the same purpose.
Shareholders may, upon publication of the summons, ask in writing the questions referred to in paragraph 1^er, to which it will be answered, as the case may be, by directors, board members or members of the supervisory board during the meeting provided that these shareholders have satisfied the formalities of admission to the meeting. These questions may be addressed to the corporation electronically to the address indicated in the convocation to the General Assembly. The statutes set the time limit for such written questions to reach the corporation except in companies whose shares are admitted to negotiations on a market referred to in Article 4, to which written questions must be received no later than the sixth day preceding the date of the meeting. »
Art. 32. In article 927 of the same Code, a sentence as follows is inserted between the first and the second sentence:
"In companies whose shares are admitted to negotiations on a market referred to in Article 4, this period is extended to five weeks. »
Art. 33. The following amendments are made to section 988 of the Code:
1° the words ", in assembly or in writing, are inserted between the words "by shareholders" and the words "in relation to";
2° the words ", to the extent that the communication of data or facts is not of a nature to seriously prejudice the company, its shareholders or its personnel" are replaced by the words ", to the extent that the disclosure of data or facts is not of a nature to prejudice the commercial interests of the company or the confidentiality commitments undertaken by the company or its directors";
3° the article is supplemented by two paragraphs written as follows:
"The directors, board members and members of the supervisory board may provide a comprehensive response to a number of issues with the same purpose.
Shareholders may, upon publication of the summons, ask in writing the questions referred to in paragraph 1^er, to which it will be answered, as the case may be, by directors, board members or members of the supervisory board during the meeting provided that these shareholders have satisfied the formalities of admission to the meeting. These questions may be addressed to the corporation electronically to the address indicated in the convocation to the meeting. The statutes set the time limit for such written questions to reach society. »
Art. 34. In Article 533ter, § 1^er, paragraph 2, of the same Code, the words "by an attestation issued by a financial intermediary certifying the number of bearer shares that have been produced to it," are repealed.
Art. 35. In section 536 of the same Code, the following amendments are made:
1° to § 1^er, paragraph 2, the words "to the deposit of the bearer shares" are repealed;
2° to § 2, paragraph 1^er, the words "either through the production of the bearer shares to a financial intermediary" are repealed;
3° in § 2, paragraph 4, the words "by the financial intermediary certifying the number of bearer shares produced at the date of registration, or" are repealed.
CHAPTER 3. - Miscellaneous changes
Art. 36. In Article 15, § 6 of the Act of 20 July 2004 on certain forms of collective management of investment portfolios, as amended by Article 63 of the Law of 1^er April 2007, the words "533, § 2, 533bis, 533ter, 536, § 2," are inserted between the words "509", "542", and the words "546, paragraph 2, 547bis" are inserted between the words "542," and "557".
Art. 37. Section 30 of the Act of 14 December 2005 deleting bearer titles is repealed.
CHAPTER 4. - Transitional provision and entry into force
Art. 38. Corporations incorporated prior to the coming into force of this Act shall, where appropriate, adapt their statutes to ensure compliance with the mandatory provisions of this Act before 1^er January 2012 at the latest.
In the meantime, the statutory provisions that are contrary to this Act remain applicable and produce their effects. To this extent, these companies remain subject to the previous legal provisions of the Code of Societies.
Failure to comply with the statutes within the time limit specified in paragraph 1^erthe statutory provisions contrary to this Act shall be deemed unwritten and the mandatory provisions of these Acts shall apply.
Art. 39. This Act comes into force on the tenth day following its publication in the Belgian Monitor.
Derogation from paragraph 1^erArticles 34 and 35 come into force on 1^er January 2014.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 20 December 2010.
ALBERT
By the King:
Minister of Justice,
S. DE CLERCK
Minister for Business and Simplification,
VAN QUICKENBORNE
Seal of the state seal:
Minister of Justice,
S. DE CLERCK
____
Note
(1) 2010-2011 session.
House of Representatives.
Documents. - Bill, 53-421, No. 1. - Amendments, 53-421, No. 2. - Report, 53-421, No. 3. - Text adopted by the Commission, 53-421, No. 4. - Text adopted in plenary and transmitted to the Senate, 53-421, No. 5.
Full report. - 25 November 2010.
Senate.
Documents. - Project not referred to by the Senate, 5-513, No. 1.