File : Drawing up minutes for a General Meeting

Part 2

How to draw up a minutes of general meeting?

General Meeting minutes

Stating what was said and done during during a general meeting is a basic rule, i.e., for drafting, which is shared by the different major types of companies, however there are also numerous special rules.

What legal form for the minutes of an general meeting?

The 'private instruments' (still referred to as "actes sous signature privée") must be distinguished from so called "authentic" instruments.

The two main differences between these categories of instruments are as follows:
"The author: this is a state official, such as a notary public for an authentic instrument and any other person for a private instrument;
"The strength of evidence of the instrument: the statements of an authentic instrument are authentic until falsified, while the statements of a private deed are authentic until evidence to the contrary is provided.

In principle, irrespective of the legal form of the companies, the minutes of general meetings are always prepared as a private instrument, i.e. without calling on a state official, such as a notary public. Private instruments are therefore defined as instruments drawn up by the parties themselves (for company minutes, these will be members of their executive body, including their legal representative) or by a third parties, an author who is internal (for example, a lawyer who is an employee) or external to the company (usually a lawyer, to whom the members of the executive body have entrusted the role of preparing the minutes).

However, in some cases (for example, specific real estate transactions: the deliberations of general meetings prior and subsequent to the contribution of assets or real property rights to a company or by a company; deliberations of general meetings on the borders or demarcation of several adjacent plots), it may be necessary, or even obligatory, to draw up the minutes in the form of authentic instruments, i.e., drawn up by a state official, such as a notary public.

Good to know: When the record is drawn up by a notary public, the document consists exclusively 'dans la minute' (a legal term for the references, numbered in chronological order, of the document) kept in the archives of this legal officer: given that the statements of an authentic instrument are authentic until falsified, this filing method is sufficient.

 

What should be included in the minutes of general meetings?

The content of the minutes of general meeting can vary depending on the company's legal form. The rules applicable to the SARL, SA and the SNC are presented below.

For an SARL:

The minutes of the general meeting should include the following information:

- the date and place of the meeting;
- the surname, forename and job title of the general meeting's chairman;
- the surname and forename of partners present (or deemed present, when they participate in the general meeting using electronic telecommunication) or represented (by proxies, i.e. people with a proxy, therefore authorised to represent the partner concerned), the number of shares held by each of them.

Good to know: Whenever, within the limits set by law, the articles of association permit it, the partners are considered to be present at any general meeting when they participate remotely in debates and vote during the meeting via digital means (including videoconferencing). However, this assumption of presence is totally excluded for general meetings that deliberate on annual accounts (annual and/or consolidated), given that for this type of general meeting, any participation by electronic means is, itself, excluded.

- the documents and reports submitted to the general meeting;
- A faithful and objective summary of all the debates, this therefore excludes any analysis of the discussions that preceded the adoption of decisions;
- the text of the resolutions put to the vote, on the understanding that it is necessary to reproduce not only the resolutions definitively adopted but also those that have been rejected;
- the result of the votes.
- any technical transmission difficulties that disrupted the proceedings of the general meeting, if partners participate in the general meeting by digital means.

In the SA, one of the most common 'joint stock' companies:

The minutes of the general meeting should include the following information:

- the date and place of the meeting;
- the invitation method;
- the agenda, i.e., the clear statement of various items submitted to the general meeting, 
- the composition of the committee, i.e., the identity of the chairman of the and the two scrutineers and the secretary of the meeting;
- the number of shares participating in the vote;
-the quorum reached (i.e., the number of shareholders actually present or represented in relation to the minimum number of shareholders present or represented for the meeting to continue validly);
- the list of documents and reports submitted to the general meeting;
- a faithful and objective summary of the entire proceedings. This summary will notably exclude any analysis of the discussions that preceded the adoption of decisions. On the other hand, it includes:
• the chairman's speech;
• any new information communicated to the general meeting other than documents previously provided;
• each of the comments of the shareholders in the form of oral or written questions and the answers;
• all comments from shareholders who have requested that they appear in the minutes, except if the general meeting objects due to conflicting interests with the company (but in this case, the report shall, at least, report this objection);
- the text of the resolutions put to the vote, (including not only the resolutions definitively adopted but also those that were rejected);
- the result of the votes.
- any technical transmission difficulties that disrupted the proceedings of the general meeting, if partners participate in the general meeting by digital means.

In the SNC, one of the most common 'partnership' companies:

The minutes of the general meeting should include the following information:

- the date and place of the meeting; 
- the full name of the shareholders present (or represented by proxy, provided that this is permitted by the articles of association);
- the documents and reports submitted for discussion;
- a faithful and objective summary of all the debates, this therefore excludes any analysis of the discussions that preceded the adoption of decisions;
- the text of the resolutions put to the vote, (including not only the resolutions definitively adopted but also those that were rejected);
- the result of the votes.

 

Who should draw up the minutes of assembly and in what time frame?

In principle, it is up to the members of the executive bodies, chair(s) or manager(s) of the companies to draw up the minutes of their general meetings:

- In the SARL (which are companies with a mixed character, i.e. formed both by considering both capital contributions and the legal personality of the partners), this role therefore falls to the manager(s).

- In the so-called capitalised or joint stock companies (i.e. in companies formed mainly by capital contributions and whose capital is divided into shares) the most common type, such as the SA, drawing up the minutes of general meeting falls to the chief executive officer or members of the executive body, namely:
    - For SAs with a board of directors: the chairman of the board of directors or the board directors;
    - For SAs with an executive board and supervisory board: the chairman of the executive board or to the members of this body;

- In partnerships (i.e. in companies formed mainly by partners), in the most common types, such as the SNC, this role falls to the manager(s). We should remember that the manager(s) may be appointed by the articles of association or by a subsequent instrument. However, when this is not specified in the articles of association, all partners are managers of the company.  

In practice, the minutes are often entrusted by the executive body of the company to another author, such as:

- The secretary of the general meeting, for an SA and SNC, provided that this person has been specifically appointed by the general meeting;

- Any internal person in the company, considered capable of writing such an instrument (for example, an employee in an administrative role within the company, such as a company lawyer or a company secretary) or a third party outside the company, who is legally competent, i.e., a lawyer.

However, if the minutes are prepared by an author other than the director or the other members of the company's executive body, this produces the following consequences:

- The director or the other members of the company's executive body (regardless of the company's legal form) are not exempt from being held civilly liable (subject to proof that real prejudice has been suffered) if they fail to fulfil their obligation to record decisions of any general meeting by minutes that, moreover, have been drawn up in proper and due form ;

- The director of the company may nevertheless be subject to a petition, including by any partner or shareholder, before the presiding judge of the commercial court, ruling in summary proceedings, to issue an injunction to issue the minutes under penalty of fines (this includes the minutes for the last three financial years, since the limit for nullity proceedings is three years);

- The company may nevertheless, regardless of its legal form, be forced to void the general meeting in question due to its failure to record its decisions in minutes. This is the case, in particular, if this failure to record minutes could be considered as the breach of the mandatory right of partners and shareholders to be kept permanently informed, a right which includes, among other things, the right to receive copies of the minutes for the last three financial years.

Good to know : It is strongly recommended to entrust the drafting of the minutes to experienced lawyers, whether they are internal (employees) or external (lawyers) to the company.

In addition, irrespective of the legal form of companies, there is no requirement to draw up the minutes of their general meetings on the spot.

However, in practice, it is recommended to draft them as quickly as possible after holding the general meeting or, at least in certain circumstances (technical discussions, heated atmosphere, etc., ), after a meeting, by producing draft to be signed by the chairman of the general meeting and by a partner present in order to attempt exclude any subsequent dispute over the final minutes.

 

What should sign and initial the minutes of general meetings?

The signature is different from initialling the minutes of a general meeting:

Signing the minutes represents the handwritten mark that identifies the person(s) formally authorised by the company to draw up this document and/or, where appropriate, to ensure that the general meeting is conducted properly (especially by ensuring that the votes of the proposed resolutions are properly conducted).
Getting the minutes signed by this (these) person(s) is intended to attest to the truthfulness (admittedly, only until evidence to the contrary is produced) of the content of this document. Therefore, if, for example, the minutes include the statement of obligations, the signature carries with it the commitment, in the form of resolutions (the term for the various decisions taken one after the other by the partners or shareholders during the general meeting) of all (unanimously) or part (the majority) of the persons concerned by this instrument, namely, the partners or shareholders who adopted these decisions.

Initialling the minutes represents the abbreviated signature of the minutes. Usually, these are written in the form of the initials of the forename and surname of each of the persons officially authorised by the company to sign this document.  
- The initials must appear on each of the different pages of the minutes with the exception, in principle, of the last page where only the signature(s) appear.
- The initials must appear beside each correction, crossing out and alteration in the text.
- The initials are intended to prevent any fraud on the authenticity of the pages of the minutes (for example, replacing an original sheet with a falsified sheet) and/or corrections, crossings out, alteration in the text; only those initialled by each of the persons authorised to sign the minutes are accepted.

The persons authorised to sign and initial the minutes of the general meetings differ depending on the legal form of companies.

- For an SARL:
Any minutes of a general meeting must, in principle, be signed and initialled by:

    - The managing partner or one of the managing partners, when there are more than one;
Good to know: if the manager(s) is (are) not partner(s), the minutes of general meeting must be signed not only by the manager (non-partner manager) or one of them when there are more than one, but also by the partner acting as the chairman of the general meeting. In fact, the chairman of the general meeting will then be: the partner present who owns or represents the largest number of shares and accepts the role of chairman of the general meeting, or the older of the two partners willing to take on the role of chairman, when both have or represent the same number of shares and accept to chair the general meeting.

    - Any person who has accepted a corporate role or has been specially appointed by the company for a specific role (for example, authorised to represent the company to sign an important instrument; for the purposes of controlling the company's annual accounts, such as is the case for auditors, etc.).

Good to know: In an SARL with few partners, it is recommended to get the minutes signed and initialled by all the partners present in order to avoid any subsequent dispute on the content of this document.


In the SA, one of the most common 'joint stock' companies:
Any minutes of the general meeting must, in principle, be signed and initialled by the members of the committee of the general meeting, i.e.,:

- The chairman of the board of directors (in SAs with boards of directors) or the supervisory board (for SAs with executive board), who is, by rights, the chairman of the general meeting. However, when the chairman of the board of directors or the supervisory board is not present, the minutes will be signed by a meeting chairman appointed by the articles of association or a person specifically appointed by the general meeting, if the articles of association say nothing on this matter;

- The "scrutineers", who are, in principle, the two members of the general meeting with the greatest number of votes and accept this role;

- The secretary of the general meeting appointed by the general meeting from the shareholders, in principle.

- The minutes must also by signed and initialled by any person who has accepted a corporate role or has been specially appointed by the company for a specific role (for example, authorised to represent the company to sign an important instrument; for the purposes of controlling the company's annual accounts, as is the case for auditors, etc. ).

For an SNC:
Any minutes of a general meeting must, in general, be signed and initialled by:
    - Each of the partners present ;
    - Any person who has accepted a corporate role or has been specially appointed by the company for a specific role (for example, authorised to represent the company to sign an important instrument; for the purposes of controlling the company's annual accounts, as is the case for auditors, etc.).

 

How to correct the minutes of general meetings?

The only corrections tolerated are additions, deletions or corrections that can be made in the text on the sheets of the minutes.

To this effect, it is usual to comply with the applicable rules for correcting instruments drawn up in the authentic form (i.e,, primarily, instruments prepared by a state official, such as a notary public, whose statements are authentic until falsified), which are rigorous in nature, since there is no specific rule in the business law.

Therefore, to correct words or parts of erroneous phrases:
- They must first be scored through and the number of invalid words listed, then put a footnote in the margin and include in this margin or at the bottom of the page, the words or parts of sentences corrected;
- Then these crossed out words and corrections must be initialled by the same persons, who are signatories of the minutes and, at the end of minutes, indicate the total number of words scored through, voided, and added and get the same people to sign underneath.

To add omitted paragraphs, it is appropriate to apply the same procedure as that described above. If there is not enough place, the reference should be added to the last page of the minutes and include the missing text with the same details as mentioned above.

Good to know: Corrections (crossings out and additions) which are not carried out according to these correction rules for authentic instruments are not deemed null and void (this sanction only concerns the breach of correction rules for instruments drawn up in the authentic form). In fact, there is no rule, at least in business law, for correcting private instruments (i.e., instruments other than authentic instruments), consequently, in the event of a dispute, the judge alone has the power to assess the validity of the corrections to the minutes of a general meeting.

However, under penalty of criminal sanctions, it is strictly prohibited to add, delete, substitute or transpose the loose sheets in the archived copies of the minutes of the general meetings.