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Holding board meetings per capsulam is relatively common, and is used when you don’t actually hold the meeting, but first agree on a decision, for example through phone calls, and then let the entire board sign the meeting minutes.
But it also possible to hold a shareholders’ meeting (EGM or AGM) per capsulam, even though it is not as common. When done this way, every single shareholder needs to sign the meeting minutes. If you use the StartupTools platform, this is simple and automatically get all shareholders included and can easily send it out for e-sign; for more information, see this article.
Since all shareholders will sign the meeting minutes, no physical meeting is held. For that reason, it is important to inform everyone of what is going on, so that they understand. It is best if you have the opportunity to talk to all shareholders before, or at least to send out an email before the signing, explaining what is happening. It is not however appropriate to send a formal meeting summons, since that could be give the impression that an actual physical meeting will be held.
When is it appropriate to hold a shareholders’ meeting per capsulam?
There are two main cases when it is appropriate to hold a shareholders’ meeting per capsulam:
- When you need to make a decision quickly. Since all shareholders sign the meeting minutes, you can disregard the summoning time
- When you want to make sure all shareholders understand that they have supported a decision
At a regular shareholders’ meeting, the chairperson and one or more verifiers sign the meeting minutes. But the other participants normally do not sign it. Thus, a participant who is not signing may object to the wording of the minutes. If on the other hand all shareholders sign the meeting minutes, it is not possible to object to the decisions afterwards – a shareholder cannot object to a decision that they themselves signed off on.
The big drawback to holding a shareholders’ meeting per capsulam is precisely this: All shareholders must sign. Thus, it suitable only for companies where the number of shareholders is so small that one can be sure to get signatures from everyone. It is also only suitable for decisions that everyone agrees to. While it is in theory possible to make a decision which is not supported by all shareholders, it is very easy for a single shareholder to block a decision simply by not signing the meeting minutes. As long as everyone has not signed the meeting minutes, the decisions are not valid.
Last but not least: A comment about the date of the meeting. Previously, the Swedish Company Registration Office (Sw. Bolagsverket) had a peculiar interpretation of the date of the decision. They assumed the date to be the last date at which the meeting minutes were signed. This was highly inconvenient, since it would not be possible to know what date the meeting would be considered to have been held on when producing the materials. This in turn made it easy to create formal errors. If for example, the shareholders’ meeting decided to issue shares on June 30, and had set the last day to subscribe for shares to July 5, and the last shareholder would sign the meeting minutes on July 6. Then Bolagsverket would have interpreted the meeting as having been held on July 6, and thus the last day to subscribe would be before the meeting, which is not allowed.
Luckily, Bolagsverket has now changed their interpretation, and will assume the date which is written on the protocol as the date of the meeting.
