The Companies (Miscellaneous Provisions (Covid-19)) Act 2020 brought about a major change in how most companies conducted their General Meetings, in that it allowed the company to conduct the meetings wholly or partly by the use of Electronic Communications Technology, as long as all attendees have a reasonable opportunity to participate in the meeting as outlined below:
174A. (6) (a) A company may provide for participation in a general meeting by providing or facilitating, for that purpose, the use of electronic communications technology, including a mechanism for casting votes by a member, whether before or during the meeting.
(b) The mechanism referred to in paragraph (a) shall not require the member to be physically present at the general meeting or require the member to appoint a proxy who is to be physically present at the meeting
If a Company elects to use an Electronic Platform for their general meeting the platform that they choose must allow for the following under S.174A(9) CA2014;
• All attendees have a reasonable opportunity to participate in the meeting
• A mechanism for casting votes by a member, either before or during the meeting
• A system for identifying attendees and security of the technology, minimises data corruption and provides certainty as to the source of the electronic communications
• In the case of failure or disruption to the technology, the failure or disruption is remedied as soon as practicable.
• Enables the attendee to hear what is said by the chairperson and any person introduced by the chairperson
• Allows the attendee to speak and submit questions and comments during the meeting to the chairperson to the extent that the attendee is entitled to do so under the constitution of the company.
What are the guidelines for holding a General Meeting via Electronic Means?
The necessary guidelines for the practicable use of Virtual Meetings and the participation by the attendees are outlined as follows:
• Guarantees the security of the communication by the attendees,
• Minimise the risk of data corruption,
• Minimise the risk of unauthorised access,
• Provides certainty as to the source of the electronic communication.
It is important to note that the Company is not responsible for any technological failings or disruptions relating to the equipment of the attendees and any such event does not invalidate the meeting. We recommend that any Company that utilises virtual meetings, that they test extensively ahead of the meeting the chosen electronic platform to ensure they are happy with the technology as well as the audio and audio-visual components. In the event of any technological failings or disruptions on the Company’s behalf, these should be attempted to be remedied as soon as possible.
Attendees must be allowed to speak and submit questions and comments during the meeting, to the extent they are entitled to. In this way, a provision must be made to allow the submission of questions, whether this be during the meeting or ahead of time by email, text message, messaging applications or any similar software ensuring that all forms of communication are secure
With regards to voting, the company must identify a manner in which the Chairperson can identify votes cast by the individual members, especially in the case where there are large numbers of members to ensure that those who are entitled to vote can do so and it is clearly identifiable by the Chair
A suggested method for this can be that an identification code is established for each member entitled to vote. This code is posted to the address supplied for the members, or included in the Meeting. On the day of the meeting, the member can then give the number for which they were supplied and this can be verified by the Secretary as being that of the member or proxy. The Chairperson can then clearly identify the member casting such a vote.
The benefits of Virtual Meetings
Virtual Meetings as included in the Companies (Miscellaneous Provisions (Covid-19)) Act 2020 addressed operational issues Companies were facing during Covid to hold their general meetings and ensure they do not breach the Companies Act 2014. As well as this Virtual Meetings streamline the event for Shareholders or Director resident outside of the state, to be able to join General Meetings without the need for the use of proxies or significant travel expenses.
Will these provisions be here to stay?
The Public Consultation on proposals to enhance the Companies Act 2014 introduced by The Department of Enterprise, Trade and Employment, has asked stakeholders to provide feedback on the use and efficiency of Virtual Meetings, or whether they should be prohibited.
While many companies welcome the continuation of virtual meetings the InternationalCorporateGovernance Network (ICGN) released a statement in April 2023 flagging some concerns regarding virtual meetings including that there may be limitations to shareholder’s ability to participate directly, ask questions, view materials and make statements.
From this, the ICGN have ten recommendations for virtual meetings; including;
- A hybrid format is the optimal AGM format allowing for the in-person presence of shareholders whilst also accommodating access to the meeting via electronic or virtual means.
- The date of the AGM should be coordinated with other company AGMs,
- AGM materials should be published at least one month ahead of the meeting,
- Reliable technology must be used to allow democratic, secure, and efficient access for all participants to the AGM,
- Robust procedures must be established to verify shareholder identification,
- Shareholder questions should be permitted in advance or during the AGM,
- Shareholders’ proposals that have appeared on the ballot or agreed in advance must be permitted and recognised on the AGM agenda,
- Vote execution deadlines,
- Voting results must be published promptly, and
- The meeting minutes, including all proposals, any questions and answers must be recorded.
Companies (Miscellaneous Provisions (Covid-19)) Act 2020 has extended the use of virtual general meetings to 31 December 2023 and it looks likely that some form of virtual meetings will be amended into the Companies Act 2014. It is important that those who are taking advantage of wholly or partial virtual meetings review their processes now to ensure just and even participation.
The contents of this article are meant as a guide only and are not a substitute for professional advice. The authors accept no responsibility for any action taken, or refrained from, as a result of the material contained in this document. Specific advice should be obtained before acting or refraining from acting, in connection with the matters dealt with in this article.