C’est une clause qui permet aux actionnaires de déroger aux règles générales de détermination des compétences attribuées respectivement à l’assemblée générale et à l’organe d’administration, en étendant les pouvoirs de l’assemblée générale et en restreignant ceux de l’organe d’administration.

Example 1

Any of the following matters, unless they are explicitly provided for in the Business Plan or in the annual budget approved by the General Meeting, require a decision of the General Meeting resolving with « X » % of the vote :

1. borrow any money, make any loan or grant any credit (other than in the ordinary course of business);
2. give a guarantee or indemnity; exceeding thirty-thousands euros (EUR 30.000);
3. create or redeem any mortgage, pledge, Encumbrance, charge, debenture, interest or other security over the Company’s assets (including a security interest – other than in the ordinary course of business);
4. transfer or dispose of the Company’s material assets, including shares in the Subsidiaries (other than in the ordinary course of business);
5. form or transfer any Subsidiary or acquire shares in any company or participate in, or terminate any participation in, any partnership or joint venture;
6. approve any “related party” transaction (to be understood as a transaction involving the Company and (at least) one (i) of its Shareholders or Directors or (ii) Affiliate or Related Individual of the Shareholders or Directors);
7. prepare and approve the annual budget and business plan;
8. draft any proposal to the Shareholders Meeting or resolution by the Board that relates to the Shareholders Reserved Matters;
9. initiate any litigation, arbitration or mediation proceedings (other than debt collection in the ordinary course of trading) exceeding thirty thousands euro (EUR 30.000);
10. enter into of any non-arm’s length contract (including the making of donations);
11. change the employment or engagement terms of any of the Shareholders;
12. appoint or remove any key employee of the Company or the Subsidiary;
13. establish or modify of any profit sharing, bonus, commission or management incentive plan by the Company or the Subsidiary;
14. establish or amend or terminate any organisational corporate governance document, internal corporate governance rules (huishoudelijk reglement/règlement d’ordre intĂ©rieur), charter or by-laws of the Company or the Subsidiary (other than the Articles of Association); and
15. grant any power of attorney with regard to any of the matters referred to in this clause.

Example 2

The following Shareholders matters require a majority of seventy-five percent (75%) of the votes:

  1. alter the Company’s articles of association;
  2. effect any merger, demerger, contribute a universality, a branch of activities of the Company (or any of its Affiliates), consolidate or enter into any other business combination
  3. transaction in share capital with any entity (other than a subsidiary of the Company);
  4. reorganise or change the nature or scope of the Company’s business;
  5. create, issue, purchase, increase or decrease or otherwise reorganise the Company’s share capital;
  6. change the legal form of the Company;
  7. pass any resolution for liquidation, dissolution or winding-up of the Company;
  8. apply for the appointment of a receiver or an administrator over the Company’s assets;
  9. appoint the Company’s statutory auditors;
  10. Approve the Business Plan;
  11. approve the annual accounts;
  12. change the accounting reference date of the Company;
  13. make any distribution or retention of dividends or reserves or (carried forward) profits of the Company;
  14. approve any “related party” transaction (to be understood as a transaction involving the Company and (at least) one (i) of its Shareholders or Directors or (ii) Affiliate or Related Individual of the Shareholders or Directors);
  15. appoint any administrator or insolvency practitioner
Example 3

By way of exception:
:
1. Annual budget
a. The adoption of the annual budget
2. Measures subject to approval, insofar as not specifically approved as part of the annual budget:
a. Any measure or transaction (or a series of connected measures or transactions) which would result in a deviation from the approved budget with respect to costs and expenses (including salaries) of more than 5.00 % of the relevant budget item and in an amount exceeding € 5,000.00 in total;
b. Issuing options, warrants, or convertible loans to future equity in the company in accordance with Article 7:177 of the Belgian Companies and Associations Code (i.e. in the framework of the authorized stock capital);
c. Adopt and establish any (virtual) employee option program or other employee incentive scheme (for the avoidance of doubt: this shall not apply to the virtual employee option program existing at the date of the adoption of these rules of procedure) or amend the terms of any (virtual) employee option program or other employee incentive scheme, in each case to the extent relating to the competences of the board of directors;
d. Grant any (virtual) options under any (virtual) option program;
e. Incurring of any financial liability in excess of € 10,000.00 (other than in the ordinary course of business);
f. Providing collateral, issuing suretyships, guarantees or joint liability, as well as entering into bills payable, except for such measures that are within the scope of ordinary business activities of the company;
g. Individual investments exceeding € 5,000.00 (excluding VAT), if not included in the budget.
h. Make any material change to the field of the business, provided that, among other things, the addition or cessation of product offerings that are related to the current field of business does not constitute such change, or the jurisdiction where it is managed and controlled;
i. Take any significant steps (such as hiring an investment bank or negotiating terms sheets or agreements for a listing) towards any listing of the company in a stock exchange;
j. Any disposal pertaining to intellectual property, as well as the conclusion and termination of patent, licensing, know-how and cooperation agreements, if and to the extent that such disposal or the conclusion or termination of such agreement exceeds the scope of ordinary business activities of the company;
k. Entering into employment or service agreements between the company and its employees, provided that (i) the annual gross payment (including variable compensation components) exceeds in an individual case € 50,000.00, or (ii) the payment comprises variable compensation components without any limitation or cap, in both cases, (i) and (ii), excluding agreements which are usual (in particular, agreements shall be considered usual, if they economically and legally correspond to employment or service agreements signed with sales employees);
l. Granting of pension or bonus commitments to employees;
m. Conduct or settle any material litigation or arbitration proceedings by the company outside the ordinary course of business when the amount claimed exceeds € 10,000.00;
n. Entering into each and any contract (or a series of connected contracts) that triggers expenses, liabilities or indebtedness for the company exceeding € 10,000.00 in the aggregate;
o. Conclusion of joint-venture agreements.
p. Any disposal, sale, pledge or transfer of company assets, if (i) such transaction individually, a series of connected transactions, or a series of transactions with a close temporal connection exceed(s) € 25,000.00 in a given financial year, or (ii) such transaction pertains to material company assets;
q. Any formation or liquidation of subsidiaries or other entities, any disposal, acquisition or sale of interests in subsidiaries or other entities, as well as any acquisition or sale of business establishments in its entirety or substantial parts thereof, regardless of whether by way of an individual transaction, a series of connected transactions or a series of transactions with a close temporal connection;
r. Any exercise of voting rights in stockholders’ meetings of subsidiaries.
s. Any formation, acquisition, closure and sale of establishments, branches, or branch offices;
t. Any disposal, acquisition, sale or encumbrance of real property, rights equivalent to real property and any other measure with equivalent effect;
u. Any transaction or agreement outside the ordinary course of business with, or for the benefit of, a stockholder, a director of the company, or any related person thereof.

 

Without prejudice to legal or statutory provisions relating to stricter majority rules, the following decisions of the general stockholders meeting shall be subject to the consent of the Investor :

a. Amendments of the articles of association (including but not limited to the change of the financial year and any changes to the composition and/or powers of the board of directors);
b. Any increase or decrease of the company’s registered stock capital and any issuance of stocks;
c. Any restructurings as set out in the Belgian Companies and Associations Code;
d. Distribution of profits;
e. Adoption of annual accounts;
f. Appointment of the statutory auditor;
g. Redemption of stocks in accordance with Article 7:215 of the Belgian Companies and Associations Code;
h. Any decision relating to the liquidation, dissolution or any other voluntary or compulsory winding-up of the company;
i. Any grant of rights or issuance of instruments with a right to convert into or exchange for stocks in the company (e. g. convertible bonds or warrants);
j. Sale or other disposal of the company’s assets as a whole or almost as a whole;
k. appointment and dismissal of members of the company’s management, conclusion, amendments and termination of their service agreements as well as the discharge of the management and of the statutory auditor.

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Publié le 08 mars 2021
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