The novelization which takes
into force on the 1st of January to the Commercial Companies and
Cooperatives Act No. 90/2012 Coll., changed the rules for voting per rollam. Given
the current situation, where in-presence general meetings are rather an
exception, it is certainly good news that some ambiguities have been removed
and the practical functioning of this type of decision-making has been
improved. Below we will describe in more detail how per rollam decision-making
will work in a limited liability company.
What does per rollam voting stand for?
Per rollam voting is the answer to the question of whether the shareholders may decide outside the general meeting. Decision-making outside the meeting is not a legal novelty, but the institute has long been known to our legal system but is much more topical at present times. Voting per rollam is regulated separately for a limited liability company and for joint stock companies and cooperatives. In many aspects the arrangement is the same, but in some fundamental points it is also different. In this article, we will only focus on limited liability companies.
Limited liability company
The law permits per rollam voting to limited liability companies in all cases. On the contrary, if the shareholders decide to exclude this type of decision-making, it must be done through Articles of Association. In the Articles it is also possible to edit the terms of this type of decision making, eg if the partners decide to allow different technical means. When making per rollam decisions, standard paper correspondence can be used, but it is also possible to choose electronic or web-based communication or various applications. In any case, the identity of the partner taking part in the voting must be verified, and therefore electronic communication will be very appropriate with a guaranteed electronic signature or, where appropriate, via a data box. If the articles of association do not exclude certain types of decisions from the scope of per rollam decision-making, all matters within the competence of the General Meeting can be decided without further ado.
In practice the authorized person, usually the executive, will send the proposal of the decision with the necessary documents in the form of annexes to the shareholders, all that in written form to their address from the list of shareholders, or by any other means and form agreed in the articles of association. It must always be ensured that the proposal of the decision was delivered to everyone concerned and that the date of delivery can be determined.
From the delivery date, the period for the statements of shareholders concerning the decision that the executive proposed begins, the period can be freely set, otherwise by law, 15 days apply. The voters will then vote for or against the decision, the possibility of abstention is excluded. If the voter expresses neither a positive nor a negative statement or misses the deadline, such a vote shall be considered as negative. It is also important to point out that the majority is calculated from the total number of all eligible voters.
The law requires a certificate by an official document for some decisions of the General Meeting. Such a procedure is required in the case of a limited liability company, for example for the amendment of a partnership agreement, certain transformations of companies or the dissolution of a company with liquidation.
In a situation where the form of a public deed would be required for such a decision of the General Meeting, the entitled person (usually the managing director) is obliged to prepare a draft decision per rollam in the form of a public deed. Copies of this public deed will be sent to individual voters. In a situation where the form of an official document would be required for such a decision of the General Meeting, the entitled person (usually the executive) is obliged to prepare a draft decision per rollam in the form of an official document. Copies of this public deed will be sent to individual voters. Copies of this official document will be sent to individual voters.
The voter's statement will then contain not only the consent or disagreement, but also the draft decision to which this statement relates. If the draft decision requires the form of an authentic instrument, the statement of the voter must have an officially certified signature. The voter's statement will then contain not only the consent or disagreement, but also the draft decision to which this statement relates. If the draft decision requires the form of an official document, the statement of the voter must have an officially certified signature.
After the end of the voting, the person to whom the individual statements are sent or, for example, provided in another electronic form, must always immediately inform all the shareholders about the results of the voting. Voting ends with the statement of the last shareholder or the expiration of the period, whether legal or proprietary. If a decision in the form of an official document is required for a decision, the decision must be drawn up per rollam in the form of a notarial certificate. This is again the responsibility of the authorized person.
Decision-making per rollam is an institute that is often used in practice today. It is therefore very beneficial that the rules have been clarified, which will also allow its use in cases where an official document is required for the decision of the General Meeting. However, this method of decision-making must be distinguished from decision-making of the General Meeting using electronic or other technical means remotely.
Author: Veronika Odrobinová
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