The Annual General Meeting
The Annual General Meeting
Every company must hold a general meeting, designated as its annual general meeting (hereinafter, “A.G.M.”), in each year at which certain prescribed matters must be considered.
The content of this Briefing is concerned with the requirements of the A.G.M. of companies. If the word “company” appears without qualification, it is a reference to all legal forms of company.
When a Company Must Have an Annual General Meeting
Each A.G.M. must be held within 15 months of the date of the previous A.G.M. For a new company, provided it holds one within 18 months of incorporation, it is not required to hold an A.G.M. in its year of incorporation or in the year next following.
A private company limited by shares may dispense with the requirement to hold an A.G.M. in a particular year if its members unanimously sign a written special resolution acknowledging, at the date of the resolution, their receipt of the statutory financial statements which would have been laid, and resolving all matters as would have been resolved, at that A.G.M., and confirming the continuance in office of the statutory auditors of the company, if any.
Where a company fails to hold one, any member of it may apply to the Corporate Enforcement Authority to call the A.G.M., who may make all other directions as it considers expedient. Failure of the company to hold an A.G.M., including one directed to be held by the Corporate Enforcement Authority, is an offence; the maximum punishment for which is, on summary conviction, six months’ imprisonment or a €5,000.00 fine, or both.
Any director or any member, or his or her personal representative or assignee in bankruptcy, may apply to the High Court for an Order to call an A.G.M., who may make all other directions as it considers fit. However, the High Court may decline to make the Order if it is impractical or otherwise undesirable to do so.
An A.G.M. may be held within or without the State and in one or more venues. If it is held without the State in the absence of the unanimous written consent of members, the company must make all necessary arrangements to ensure its members have reasonable opportunity to participate in the A.G.M. by technological means without having to leave the State.
Persons Entitled to Notice of Annual General Meeting
Every director, secretary, member, or his or her personal representative or assignee in bankruptcy, and the statutory auditors of the company, if any, are entitled to receive notice and other communications relating to every A.G.M., and has the right to be heard at it.
In the case of joint holders of a share, giving notice to the person whose name is first named in the register is sufficient for the purpose of giving notice. In the case of the personal representative or assignee in bankruptcy of a member, if their address is unknown, the member’s address is sufficient for the purpose of giving notice.
Notification of the Annual General Meeting
The persons entitled to receive it must be given at least 21 days’ notice of the A.G.M, in which neither the day of service of the notice nor the day of the A.G.M. is counted. A period shorter than those 21 days is permissible if it is agreed to by every member and, if one is appointed, the statutory auditors of the company. Unless the constitution of the company prohibits this, the accidental omission to give, or the non-receipt of, notice of an A.G.M. does not invalidate the proceedings of it.
The notice of an A.G.M. must specify its date, time and venue; the general nature of the business to be transacted at it; and the proposed text of special resolutions or explanatory memoranda of its substance, if any. If the A.G.M. is to be held wholly or partly by technological means, the notice must also specify the platform proposed to be used; the access details for same; the time and manner by which the attendee must confirm attendance; the requirements or restrictions in place to identify the attendee; the procedure for communicating questions and comments during the A.G.M.; and the procedure for voting on resolutions proposed to be passed, if any. In the notice, there must also be a reasonably prominent statement to the effect that members are entitled to appoint proxies to attend, speak and vote in place of the appointing member; that proxies are not obliged to be members; and the date and time on which the instrument of proxy is to be received by the company.
Quorum and Proxies
For an A.G.M. to be quorate, there must be at least two members present at the time appointed for the transaction of business. However, the constitution of the company may provide for the number of members necessary to forma quorum. In the case of a single-member company, the attendance of the sole member at the A.G.M. constitutes a quorum.
Unless the constitution of the company provides for a different time limit, a quorum must assemble within 15 minutes from the time appointed for the transaction of business. If no quorum is present, the A.G.M. will stand adjourned until the same day in the next week and at the same time and place, unless the directors otherwise determine. If at the adjourned meeting there is no quorum, the members present will constitute a quorum.
Any member who is entitled to attend and vote at an A.G.M. may appoint one proxy for that purpose or, if the constitution of the company permits, more than one. Any proxy so appointed has the same rights as the member in respect of speaking and voting on a show of hands and on a poll. To appoint a proxy, the member must file an instrument appointing the proxy in writing and signed by the member. The instrument of proxy must be delivered, including electronically if permitted, to the registered office of the company, or to such other location as the notice of the A.G.M. specifies not later than 48 hours before the time for holding the A.G.M.; and failure to deliver it within these parameters may result in the instrument of proxy being treated as void. If the appointer dies after filing the instrument of proxy, the appointment and the voting instructions contained in it stand. A list of persons who may act as proxy may be sent to any member. However, if it is sent at the company’s expense, every member must receive it; alternatively, a member can request a list and the company may respond to that request.
If a member is a company or a partnership, its directors or partners, as the case may be, may authorise by majority a person to act as its representative at the A.G.M., and the person will have the same powers as a member herein described. The chairperson of the A.G.M. may require evidence of that person’s appointment; failure to provide same may entitle the chairperson to exclude the person from the A.G.M.
Business of the Annual General Meeting
The business of an A.G.M. includes the following matters:
the consideration of the company’s statutory financial statements, including the directors’ report, and, the statutory auditor’s report on same, if any;
a review of the company’s affairs by the members;
the declaration, if the constitution permits, of a dividend of an amount not exceeding that recommended by the directors;
the authorisation, if the constitution permits, by the directors to approve the remuneration of the statutory auditors, if any;
the election and re-election, if the constitution requires, of directors;
the appointment or re-appointment of the statutory auditors, if any;
the remuneration, if the constitution requires, of directors; and
the voting on special resolutions, if any.
Proceedings at Annual General Meetings
The chairperson of the board of directors presides over the A.G.M. If there is no chairperson, or if he or she is not present within 15 minutes after the time appointed or is otherwise unwilling to act, the directors may appoint one of their number to preside over the A.G.M. If the directors are likewise unwilling, the members may appoint one of their number to preside over the A.G.M. The chairperson may adjourn the A.G.M. from time-to-time and from place-to-place; but only with the consent of the members present or when requested to do so by same. When an A.G.M. is adjourned for less than 30 days, only the outstanding business may be transacted and no notice is required to be given to the members in respect of the adjourned meeting. However, if the adjournment continues for 30 or more days, a notice is required to be given to each member. Resolutions put to the vote of the A.G.M. are decided on a show of hands, and the chairperson shall declare whether the resolution has been carried unanimously, by a particular majority or lost. Where there is an equality of votes, the chairperson is entitled to a second vote. The content of this paragraph applies unless the constitution of the company otherwise provides.
Subject to rights or restrictions attaching to shares, votes on a show of hands entitle every person to have one vote; for votes on a poll, every member has one vote for each share, or one vote per €15.00 of stock. Where there are joint holders of a share, the vote of the senior joint holder is to be accepted as the joint vote; and seniority is determined by the order in which the names of joint holders are entered in the register of members in respect of that share jointly held. A member may vote by his or her committee, donee of an enduring power of attorney, receiver, guardian or other person appointed by a Court of competent jurisdiction; who may speak and vote by proxy. A member is entitled to vote only if all calls or other sums immediately payable by him or her in respect of shares have been paid. An objection as to the qualification of any vote may be made by any member and referred to the chairperson in due time; whose decision is final and conclusive. The content of this paragraph applies unless the constitution of the company otherwise provides.
At the A.G.M., a poll may be demanded in relation to any matter, and that demand may be withdrawn, by the chairperson, by any three members or their proxies, by a member or members holding at least 10 per cent of the voting rights, or by a member or member holding at least 10 per cent of paid up shares. The chairperson may direct the manner in which the poll is taken; the result of which is taken to be the resolution of the matter concerned. Polls demanded for the election of the chairperson and on the question of an adjournment must be taken forthwith. When voting on a poll, a member entitled to more than one vote, or his or her proxy, is not required to use each vote in the same way, or to use all of his or her votes.
Recording of Business
The minute of each A.G.M., and the terms of the resolutions passed at it, if any, are required to be recorded in books kept by the company for that purpose; and any minute signed by the chairperson is evidence of the proceedings. Failure to cause that minute to be made is an offence; the maximum punishment for which is, on summary conviction, a €5,000.00 fine.
