5/19/2020

Online Shareholders' Meetings, the "place" is not necessary and should not be indicated
Angelo Busani

One of the most important new features of the emergency legislation (article 106, Dl 18/2020) on the conduct of company shareholders' meeting during the epidemic is the rule that allows any company to oblige - as stated in the notice of call - those attending the meeting to hold it in total audio conference. That is to say, without any physical presence of the participants in the place chosen to hold the meeting (except for the secretary), since everyone must connect (if they wish to participate) in audio/video mode. In essence, if the notice of convocation makes full audio/video conference obligatory, no one can physically show up at the place of convocation and, if someone does show up, can be legitimately rejected. Therefore, three different meeting methods can be used: the totally analogical meeting, i.e., the meeting held only with the physical presence of the participants (in compliance, of course, with the regulations that impose social distancing and isolation of people faced with health evidence that prohibit their circulation); the partially analogical shareholders' meeting which, unlike the totally analogical meeting, offers participants the possibility to participate in an audio/video conference, regardless of the fact that it is allowed by the bylaws, which is held with (at least) the chairman and secretary in the place where the meeting is called (or, in any case, physically present in the same place, in the case of a totalitarian meeting); the new shareholders' meeting in full audio/video conference (imposed on potential participants with a notice of call drawn up in this sense) which can be attended only with audio/video connection.

In cases a) and b), therefore, the Chairman and the Secretary are necessarily in the same place. In case c), the chairman and the secretary may well be in the same place (think of the hypothesis that they are connected to the audio/video conference being both physically at the registered office); however, the law allows, "in any case", that there is "no need for the chairman, secretary or notary to be in the same place, if provided for" (and, therefore, also in derogation of statutory clauses providing for their presence in the same place). It is then a question of whether, when the meeting is (obligatorily) held online, it makes sense to ask about the place where the meeting is to be held (and who is there, of course, connected to the other participants via audio/video conference). In the Maximum no. 187 of the Milanese notaries (issued before the Dl 18/2020) and in a Faq of Assonime (issued after the Dl 18/2020) the necessity of the presence of the secretary in the place of convocation is supported. Frankly, if the shareholders' meeting is (obligatorily) entirely online, the indication in the notice of convocation of a place of convocation seems to be meaningless (and, therefore, a notice of convocation that does not mention the place of convocation appears legitimate). Therefore, it does not seem to make sense even to ask the question of the presence of the secretary of the shareholders' meeting in the place of convocation: if the meeting is online, the place of convocation is, in fact, an irrelevant factor; one cannot see what use the secretary's access to this insubstantial place of convocation is when all the participants are compulsorily online.

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