Changes in the formation and functioning of the supervisory board: is it really easier to conduct business?

Joint-stock companies (hereinafter – JSCs) and limited liability companies are among the most popular organizational and legal forms for doing business. As of May 1, 2018, there were 14 597 JSCs.

The state constantly look for ways to ensure the proper protection of shareholders’ rights and increase transparency in the activities of JSC. To resolve this issue, Law Act No. 2210-VIII (“… on facilitating business and attracting investments by securities issuers”) of 16.11.2017 was adopted, which introduced changes to the main acts regulating the activity of JSC, including up to “On Joint Stock Companies” Law Act. So, let’s take a closer look at the points.

 


Formation of the supervisory board

The new changes define that the formation of a supervisory board (hereinafter – SB) is obligatory in:

  • Public Joint-Stock Companies (hereinafter referred to as PJSC);
  • Banks;
  • Private Joint-Stock Companies (hereinafter – PrJSC), whose number of shareholders is 10 and more;

But this rule has an exception. The formation of SB is not obligatory if every one of 10 or more shareholders without exception is affiliated.

Previously, the formation of SB was the responsibility of each JSC, which had 10 or more shareholders, regardless of the type (private or public).

As regards the period of the exercise of the authority of the SB, there were changes also. Traditionally, SB members are elected at a general meeting (hereinafter referred to as “GM”). However, if they were previously elected to the next annual meeting of JSC, now it is determined that the term of office is not more than 3 years.

For PrJSC, the legislator has established an additional opportunity to define in the charter another term of authority of SB, which does not exceed 3 years.

Guarantees were also established regarding the independence of SB. The requirement for a minimum of two independent directors in the SB was supplemented. It was determined that SB should account for 1/3 of the independent directors. And the minimum number of such directors should be equal to 2. From here it is logical to establish that the smallest number of SB members should be equal to 6 persons. Such requirements apply to PJSC, as well as state PJSC. These include:

  • PrJSC, where the state owns more than 50% of the shares;
  • PrJSC, 50% or more shares of which are in the authorized capital of state-owned companies.

New requirements for the Independent Director (Independent Member) of the SB became new. For example, it is not subject to the requirements a person who collectively been members of SB for more than 12 years, the previous 5 years were part of the management of the partnership, are shareholders (owners of the control package) or their representatives. Other restrictions are also provided. On the such member of the SB should exercise any influence of other members of the SB.

It should be noted that the restrictions imposed on the position of chairman of SB are also introduced. A member of the SB is not allowed to be chairman if he was the chairman of the collegial executive body of the JSC last year or performed the duties of such an authority alone.

 

Competence of the supervisory board

Changes significantly increased the role of SB in the management of JSC. For example, a number of issues previously defined by the charter are attributed to the management of SB, namely:

  • the shareholder’s submission of a particular way;
  • the procedure for notifying persons about the payment of dividends (date and time, size, order);
  • a way to get acquainted with the information on the conduct of the JSC’s and the dispatch of the agenda by the initiator of the convocation.

Now GM JSC does not solve issues belonging to the management of SB. However, this does not affect the PrJSC, whose charters provide that the JSCs have the right to resolve issues that fall within the competence of the SB. Also, SB has the right to submit any issue that is subject to consideration by SB for consideration by the JSC of the JSC.
In addition, there are cases where SB gives consent to commit a significant transaction.

 

Committees of the Supervisory Board

The increase in the importance of SB in the management of JSC legislator compensated for an increase in the role of its committees, primarily in public and public JSCs.

From now on, in addition to the charters of the JSC, which are customary to us, and the provisions on the SB, the formation and activities of the SB committees are also regulated by the provisions on the committees approved by the SB. It also provided for the powers of the committees that must be created.

As for the composition of the committees, they must consist of a minimum of 3 members. However, there may be another number of internal documents. Meetings are open to other persons, including executive members and experts, but only at the invitation of the committee.

The changes introduced were more specific for the decision-making of the SB on the proposals of its committees. In particular, in the absence of a committee’s proposal on matters that are being prepared for consideration by SB, the latter has no right to make decisions on such matters independently. Thus, the legislator, along with the granting of wider powers of the SB, has set certain restrictions for it.

Also, in order to increase the effectiveness of the SB committees, funding is allocated to them. Due to the funds allocated, SB’s committees are able to involve lawyers, economists and financial experts to provide professional advice.

Simultaneously with the increased powers of the SB committees, the reporting requirements are also increasing. Committees report at least once a year on the work done. The exception is the audit committee, which reports once every six months.

 

Report of the supervisory board and evaluation of its activity

Every year, SB PJSC, as well as at the request of SB, PrJSC prepares a report on the work done. Such a report is a separate part of the general annual report of the JSC, and therefore it applies the requirements regarding the procedure and terms for the publication of the general annual report.

The report should reflect the assessment of SB activities. Such an assessment should include:

  • evaluation as a collegial body of SB (structure, composition and activity);
  • assessment of each SB member (efficiency, competence);
  • evaluation of the independence of each independent director;
  • evaluation of SB committees (competence, efficiency, composition, number of meetings, description of key issues);
  • assessment of achievement of the set goals.

In addition, the report should contain the procedures for the decision-making of SB, as well as the relationship between the council’s activities and changes in the financial and economic state of the company.

 

Acceptance changes are still more plus or minus?

Already from the very title of the Law Act one could understand the achievement of which goal it was aimed at. By providing much wider powers to the supervisory board, in effect, an effective system of checks and balances was created. Thus, the influence of the majority shareholder has been substantially reduced and, accordingly, the position of minority shareholders has been strengthened, and conditions have been created for attracting investments.

 

You may like
A new law on virtual assets: the picture is formed, but without details. On September 8, 2021, the Verkhovna Rada has finally adopted the long-awaited law "On Virtual Assets", which clarified many ambiguous points. This is especially true for the status of cryptocurrency and the rules of its circulation in the country. Let`s take a closer look at novelties. An ambiguous term Let's start with what the legislator actually means by "virtual assets". There are the following features:  they are an intangible good (cannot be represented on tangible media)  fall under the list of objects of civil rights (that is, they can be owned and be disposed of)  represent an electronic form of a set of data (essentially, they are blocks of information put in order);  the existence and circulation of assets are due to software tools (specific electronic environment). From these features we can draw the following conclusion: virtual assets are not limited to cryptocurrency. Digital currency is part of the concept, but other instruments, such as tokens, NFTs, or even in-game items, fall under the definition. Actually, the actual existence of most digital products, having a certain value, is due to the software environment (ecosystem), either it is blockchain technology, a trading platform, or an online game server. It should be noted that the attempt to define virtual assets was already made in the adopted Law of Ukraine in counteracting money laundering. In this act, they understand it as digital means of payment, which goes against the new definition. As a result, there are now two different explanations for virtual assets, which causes significant confusion not only in regulation but also in interpretation. It is definitely necessary to expect clarifications from competent state bodies. Let's return to the new law. Its application covers legal relations in which the "Ukrainian element" is present:  provider or recipient of services represented in Ukraine;  an agreement according to which the turnover of virtual assets is carried out in accordance with Ukrainian legislation;  the acquirer of assets (or both counterparties) is a resident(s) of Ukraine. The law also introduces an interesting division of all virtual assets into two groups: secured and unsecured. Here again, there is a problem of interpretation. The first category includes products exchanged for (state) currency, the second category includes instruments that can be exchanged only for other digital assets. There is an alternative opinion: that the turnover of secured assets is supported by real goods (money or other property), while unsecured ones are not supported by anything. The latter interpretation is the most credible, as the new law stipulates that virtual assets are NOT means of payment. Moreover, they cannot be exchanged for real goods, be they property, services or money. This significantly narrows the potential for the use of virtual assets not only for commercial but also for civilian purposes. About obligatory licensing The new law states that in some cases, the use of virtual assets will require licensing. The 4 types of activity are mentioned:  storage and management of virtual assets (or its` keys)  servicing of exchange operations with virtual assets (both for other analogues and for real goods);  translation of digital assets;  any intermediary services. A list is quite impressive, but there are some important exclusions:  if your service works with cryptocurrency wallet (it means users can dispose of accumulations into cryptocurrency independently);  If your service works on smart contracts or decentralized protocol, based on which internal transfers are performed. As to intermediary services, everything is more compicated. Actually, any mediation is based on the public share offering. That is why it is subject to licensing. How to get a license? A company that wishes on legal grounds to engage in virtual assets must satisfy legislative requirements. The key role is played by the minimum amount of the statutory capital, which equals 1,19 million hryvnyas (for non-residents it is 5,95 million hryvnyas) in case of storage and administration. For other types of activity (trading, translation and mediation services) the minimum size of the statutory capital amounts to 595 thousand hryvnyas (for non-residents is 2,98 million hryvnyas). The order of the registration of license:  to compose an application and prepare documents.  to pay state fee (68-136 thousand hryvnyas for residents and 340-680 thousand hryvnyas is for non-residents).  to pend review of the request (30 days).  to get a license. The duration of the license is 1 year. No norms about the continuation of legal force of permission are set (we are expecting amendments or explanations from the Ministry of Digital transformation of Ukraine). Notably that non-residents must pay a far greater sum, than domestic companies. The Ukrainian legislator obviously encourages an internal market, getting rid of a strong foreign presence (that, in fact, coincide with modern politics of the state on the whole). Together with an application, the following documents must be prepared: The access code to the copy of the Statute of the company (or the foundation agreement) kept in an electronic file in the database of the Unified State Register of Enterprises and Organizations (USREO);  Funding sources of the statutory capital (where the money are taken from);  confirmation of the actual injection of money;  information about beneficiaries (special attention must be paid to business reputation);  the information about the director and founders;  the check about payment of state fee;  the internal regulations, in accordance with which ones, the privacy policy rules are regulated. In the terms of volume of necessary documentation of licensing is very alike with complete registration of legal entity. It is understood that the state wants the severe adjusting of activity of organizations that will engage in virtual assets. Is it already possible to get a license? The adoption of the law by the parliament is a significant step forward in adjusting and legal market of virtual assets creation in Ukraine. However, the new rules haven`t come into effect yet - their term of introduction depends on making amendments in the Internal Revenue Code. It is yet unknown, when a legislator will decide to enter the renewed system of taxation for such assets. Being "IT-hub" and territory, where cryptocurrency enjoys large popularity, the question of taxes must be decided maximally safely. Despite the presence of obvious gaps in interpretation, a new law on virtual assets gives the official narrative of what takes place and that, how the legal relationships related to cryptocurrency will be regulated. It is to be hoped that in the nearest time the Ministry of digital information will give out the detailed explanations concerning debatable norms.
20/01/2022

We will
call you