The principle of any meeting of the Board of Directors is that it should be an effective conversation that follows the procedure and follows the course. If you want to make an offer at such a meeting, you will need to stay within these rules so that your voice is heard and your proposals are taken seriously, regardless of their quality. This is called “put forward a proposal,” and is the official way to express your ideas. Here are the steps you will go through to get it done.
Part 1 Know What Your Organization Needs
- 1 Know the rules. Not all organizations use the same rules, or require the same level of formality. If your organization maintains written documentation of preferred methods, then read them carefully.
- 2 Learn from examples. Watch how other members of your organization make formal offers during meetings.
Part 2 Plan Your Proposal
- 1 Your proposal should be specific, unique and concise. Include all necessary details and exclude inappropriate. Be unambiguous, and leave as little room for interpretation as possible.
- 2 Make blanks. Not everyone can build a proposal exactly as it is intended, and there is nothing wrong with that. If necessary, pre-write a proposal plan in writing, and carefully consider submitting it.
- 3 Review your feed. In such situations, individual words are calculated, and the effective presentation of an idea can do its job as it is perceived and understood.
- 4 Start your sentence with the words "my offer... ", you can try to say" I want to offer "for." "Or" I want to suggest "to." "It's tantamount to saying" I propose. "
Part 3 Make Your Offer
As defined in the Robert Rules Rules at:
- 1 Get the word. Before making a proposal, you need to get the word out and you must be recognized as the presiding person. If you did not complete this step in making your suggestions, then it is less likely that you will be taken seriously.
- Wait for the word to be received or generally available.
- Refer to the chairpersons by their official names, such as “president,” “chairman,” or “moderator.” Address to men "Lord" and to women (married or unmarried) "Lady".
- 2 Make your offer. This is the moment of truth, but if you are still planning and / or practicing the promise (or you have afternoon coffee), then this is just an exchange of courtesies.
- Remember to start with "I want to offer."
- Refer your proposal to the entire council, and not just to the chairperson.
- Submit no more than one sentence at a time.
- 3 Wait for the support of your proposal. With few exceptions, all proposals must have the support of another board member. This means that the council does not waste time evaluating proposals that cost nothing, and that is why effective support is so important.
- In a formal setting, they will say something like: “I support the proposals” or even just “I support”.
- In some cases, for example, when the general opinion is obvious, the presiding officer may skip this step and move on to the next.
- 4 Allow the presiding officer to approve the question. Once your proposal has been supported, the chair will reapprove it. This is called a "question statement."
- As long as the chairperson is engaged in this, then your proposal does not formally participate in the consideration of management.
- 5 Participate in the debate. After the presiding officer has posed the issue, the Council may discuss it. As a rule, only one member of the Council has the right to speak at the same time, if there are no other “who did not speak out,” then each member can speak twice.
- You can participate in the debate.
- Other members can make secondary offers to change the primary.
- 6 Vote. After the discussion has exhausted its potential, the chair will ask who votes in favor of the proposal and count the votes.
- If the number of votes in favor indicates that the votes in the Council are equally divided, then, as a rule, the chairperson will cancel the negative votes.
- 7 Allow the presiding officer to announce the voting results. The presiding officer will announce the results, instruct the appropriate officer or member of the Council to take action, and present the next agenda item.
Some issues of nominating candidates for the board of directors of a joint stock company
The procedure for nominating shareholders to the Board of Directors by shareholders is relatively detailed in the legislation of the Russian Federation, however, in corporate governance practice questions arise that require additional answers and clarifications.
In accordance with the Federal Law “On Joint-Stock Companies” (hereinafter referred to as the JSC Law), the Board of Directors (Supervisory Board) of the JSC (hereinafter referred to as the Board of Directors) is elected by the general meeting of shareholders of the JSC (hereinafter referred to as the Meeting of Shareholders) from among the candidates whose list is being formed and approved The Board of Directors on the basis of proposals from shareholders received by the joint-stock company in preparation for the Meeting of Shareholders.
The procedure for the nomination by the shareholders of AO of candidates for the Board of Directors is regulated in detail by the legislation of the Russian Federation, however, in corporate governance practice, questions arise that require additional answers and clarifications.
The initial term for the nomination of candidates to the Board of Directors for the annual Meeting of shareholders
Proposal of candidates to the Board of Directors (hereinafter referred to as the Proposal) shall be carried out by the shareholders of the joint-stock company within certain periods, which vary with respect to the annual and extraordinary Meeting of shareholders.
A proposal for the annual Meeting of shareholders must be submitted to the joint-stock company no later than thirty days after the end of the financial year, or at a later date provided for by the charter of the joint-stock company (clause 1 of article 53 of the Law on joint-stock companies).
At the same time, the norms of the Law on AOs do not allow to determine the initial moment of the current period, which actualizes the issue of the fate of the Proposal received by the AO before the end of the reporting financial year. For example, when the Proposal for the Annual Meeting at the end of 2012 (held in 2013), the joint-stock company was received before the end of 2012.
In our opinion, such a Proposal should be considered received by AO without violating the deadline established by paragraph 1 of Article 53 of the Law on AO, based on the following argument.
The deadline for receiving the Proposal in the JSC is structured in the norm of paragraph 1 of Article 53 of the Law according to the model of the term provided for in paragraph 1 of Article 190 of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation) - by indicating the calendar date, which occurs annually (January 30). Moreover, this period does not have an initial reference point in the sense of Article 191 of the Civil Code of the Russian Federation, that is, it is not a time period.
Accordingly, a violation of the deadline for receipt of proposals for the Annual Meeting of Shareholders by the AO can occur only with respect to the deadline for accepting such an Offer (thirty days after the end of the financial year). With regard to the start date for accepting Proposals for the Annual Meeting of Shareholders, a violation is not possible, since such a date has not been established by the JSC Law.
As a result, the Board of Directors will refuse to approve candidates proposed by the shareholder for election to the Board of Directors at the annual Meeting of Shareholders, for reasons of violation of the initial deadline for sending the corresponding Proposal to the JSC delegelata illegal.
This conclusion is also supported by some researchers in the field of corporate law. In particular, O.V. Osipenko notes that if the text of the Proposal for the annual Meeting of shareholders received by the joint-stock company after the expiration of the Law on joint-stock companies established by clause 1 of article 53 does not clearly show that it was sent to the joint-stock company in order to participate in the annual meeting of shareholders based on the results of the past financial year, then it is impossible to refuse to approve candidates nominated by a shareholder to the Board of Directors - such proposals must be “preserved” and examined on the merits from January 31 to February 4 of the next year.
This recommendation is most relevant if the AO is exposed by the greenmail. Such a shareholder may not intentionally indicate in the Proposal which annual General Meeting of Shareholders it refers to in order to wait for the error of the Board of Directors and file a corresponding complaint with the regulatory state body (FFMS of Russia). As a result of such initiatives by the greenmailer, an AO can be held administratively liable under paragraph 1 of Article 15.23.1 of the Code of Administrative Offenses of the Russian Federation (hereinafter - the Code of Administrative Offenses).
Refusal to accept Proposals: right or obligation Board of Directors
In accordance with paragraph 5 of Article 53 of the Law on JSCs, the Board of Directors considers the Proposals received by JSCs and makes a decision on including or refusing to include candidates nominated by shareholders on the list of candidates for voting on elections to the Board of Directors. At the same time, the nominated candidates shall be subject to approval, unless:
▪ shareholders did not comply with the deadlines for receipt of proposals by AO,
▪ shareholders are not owners of the voting shares of the joint-stock company granting the right to the Offer,
▪ The proposal does not comply with the formal requirements of the Law on JSCs and internal documents of JSCs.
At the same time, the Law on AO does not directly indicate the legal nature (right, or obligation) of the decision by the Board of Directors to refuse the Proposal received by the AO with any of the above violations (hereinafter referred to as the Defective Proposal).
In judicial practice, there is no uniformity on this issue. In some cases, the courts indicate that the approval by the Board of Directors of the Proposals received to the JSC with a deadline is the basis for invalidating the decision of the relevant Meeting of shareholders regarding the election of the Board of Directors from among the candidates contained in the Defective Proposal (see: Determination of the Supreme Arbitration Court of the Russian Federation dated 05/17/2007 No. 5154/07 in the case No. A65-13122 / 2006-SG1-5). That is, the courts presume that the Board of Directors is obliged to refuse approval of the Defective Proposal.
In other cases, court decisions indicate that the Board of Directors is entitled, but is not required to refuse, to approve the Defective Proposal. The most indicative for the purposes of the issue under consideration is the motivation of the Resolution of the FAS of the West Siberian District of 12.28.2011 in the case No. A45-3330 / 2011 (hereinafter - the Resolution).
In the framework of the FAS case of the West Siberian District, among other things, the issue of approval by the Board of Directors of the Defective Proposal was considered, which, in violation of the requirements of the JSC Law and the charter of the JSC did not contain the necessary information about the candidates proposed by the shareholder for election to the Board of Directors (date of birth, education, place of work and position).
The court found that, despite a formal violation of the Law on the JSC and the charter of the JSC, the defective claim was rightly approved by the Board of Directors, because:
▪ in the case under review, the non-indication of certain information in the Proposal did not prevent the nomination of candidates for election to the Board of Directors,
▪ approval of the Defective Proposal is an intermediate stage in the formation of the Board of Directors, the final decision on which is within the competence of the Meeting of shareholders.
Taking into account the above, we believe that in practice in the conditions of a potential corporate conflict it is advisable to be guided by the presumption of the obligation of the Board of Directors to refuse to approve the Defective Proposal (at least in case of violation of the deadline for receipt of the Proposal in the joint-stock company). In situations where there is firm reason to believe that there is no dispute between shareholders, derogations from this presumption are possible if necessary.
Problems of written consent and the ability to elect a candidate without his consent
Currently, a common requirement of the JSC’s internal documents (charter and (or) regulation on the Meeting of Shareholders) is the requirement to attach to the Proposal the consent of the candidates nominated by shareholders for election to the Board of Directors. In the absence of the necessary consent, the Proposal is deemed inappropriate and the Board of Directors refuses to approve it with reference to paragraph 5 of Article 53 of the Law on JSCs.
In our opinion, this practice is contrary to the legislation of the Russian Federation and involves various risks for the joint-stock company.
Let us turn to the applicable laws of the Russian Federation. Paragraph 5 of Article 53 of the Law on AO contains a closed list of grounds for refusing to approve the Proposal, among which the non-compliance of the proposal to nominate candidates with the requirements provided for in paragraph 4 of Article 53 of the Law on AO is relevant.
Clause 4 of Article 53 of the Law on AO establishes that the Proposal must contain the name and data of the identity document of each proposed candidate, the name of the body for which he is proposed to be elected, as well as other information about him provided for by the charter or internal documents of the AO.
Resolution of the FCSM of Russia dated May 31, 2002 No. 17 / ps approved the Regulation on additional requirements for the procedure for preparing, convening and holding a general meeting of shareholders (hereinafter - the Regulation).
By virtue of clause 2.8 of the Regulation, when nominating candidates to the Board of Directors, a written consent of the nominated candidate may be attached to the Proposal.
According to clause 3.3 of the Regulation, information on the presence or absence of the written consent of the nominated candidates for election to the Board of Directors is mandatory for submission to persons entitled to participate in the Meeting of Shareholders.
An analysis of the applicable regulation shows that it:
▪ does not imply the mandatory consent of the candidate to be nominated for election to the Board of Directors,
▪ associates the refusal to approve the Proposal with the absence in the Proposal of mandatory information on the candidate to be nominated to the Board of Directors, but not with the absence of documents in which such information may be contained,
Thus, a legitimate requirement of an AO internal document related to the candidate’s consent to be nominated for election to the Board of Directors is solely the requirement that the Proposal indicates the presence or absence of such consent.
Accordingly, the refusal of the Board of Directors to approve the Proposal due to the lack of consent in the form of a document attached to the Proposal should delegeferenda void.
Taking into account the above, we believe that the Board of Directors, in preparation for the Meeting of Shareholders, should not refuse to approve Proposals even if they do not include the consent of candidates for election to the Board of Directors provided for in the internal document of the JSC (at least to avoid attracting the JSC administrative responsibility under paragraph 1 of Article 15.23.1 of the Code of Administrative Offenses).
At the same time, it should be borne in mind that the above arguments may lose relevance if at the level of the Supreme Arbitration Court of the Russian Federation the possibility of establishing the requirement on the mandatory consent of a candidate to be elected to the Board of Directors is confirmed by internal documents of the JSC.