Extension of COVID-19 company law measures
The "interim period" of the Companies (Miscellaneous Provisions) (Covid-19) Act 2020 (the 2020 Act) has been extended to 9 June 2021. The Act makes temporary amendments to the Companies Act 2014 and the Industrial and Provident Societies Act 1893 to address issues arising as a result of COVID-19.
S.I. No. 672/2020, Companies Act 2014 (Section 12A(1)) (Covid-19) Order 2020, was signed on 15 December to extend the interim period of the 2020 Act until 9 June 2021 in respect of the following matters:
- Execution of documents by counterpart
- General meetings conducted wholly or partly by electronic means
- Voting on resolutions at general meeting, including where technology is used
- Extension of the period of protection from creditors up to 150 days
- Increase of winding up debt threshold to €50,000 for both individual and aggregate debts
- Creditors' meetings conducted wholly or partly by electronic means
The operation of section 10 of the 2020 Act on the withdrawal or amendment of dividend resolutions is not contingent on an extension of the interim period. It remains an option where the directors form an opinion based on "the actual or perceived consequences of Covid-19 on the affairs of the company".
This provision is designed to allow a company to adapt its dividend resolution to its changing financial circumstances in light of the pandemic, without affecting the valid convening of a general meeting. However, as we noted previously, the power is very limited in application, as it may only be exercised subject to agreement in writing by all the members of the company.
The provision allowing for the postponement of a company's AGM until 31 December 2020 has not been extended into 2021. This means that companies must comply with the statutory requirement to hold an AGM within 15 months of the last one and not later than nine months after the company's financial year end.
Industrial and Provident Societies
Amendments to the Industrial and Provident Societies Act 1893 effected by the 2020 Act have been extended to 9 June 2021 by way of a separate SI - S.I. No. 671/2020, the Industrial and Provident Societies Act 1893 (Section 14A(1)) (Covid-19) Order 2020.
Virtual AGM Season 2021
As well as the welcome continuation of the insolvency measures, the extension of provisions concerning virtual AGMs is a very welcome development. As well as fully virtual meetings, hybrid meetings (a blend of physical and virtual participation) have proven to be an attractive option for many companies and we expect this to continue to be the case in 2021.
Many of the large PLCs had already conducted their AGMs by the time the 2020 Act was introduced, so many of these will be availing of the 2020 Act for the first time this year. Under the 2020 Act, a company arguably has greater obligations with regards to shareholder engagement in general meetings where technology is involved, as all attendees must "have a reasonable opportunity to participate in the meeting".
What is appropriate may depend on the nature and size of the company, the number of participants and budgetary constraints. Some of the key elements of virtual meetings, as prescribed by the Act, include:
- Real time, two-way communication: For the purposes of the 2020 Act, the technology used must enable "real time transmission and real time, two-way audio-visual or audio communication enabling attendees as a whole with a reasonable opportunity to participate in the meeting".
- How this requirement can be satisfied in practice, particularly for meetings with a high volume of participants, remains to be seen. For example, where an attendee has a right (under the company's constitution) to speak at a general meeting, it is unclear whether facilitating comments and questions via a chat box or other Q&A tool would be sufficient. Larger companies may decide to invest in bespoke online meeting tools or platforms, but all organisations, regardless of the methods employed, should have clear terms and conditions governing how virtual meetings are to be conducted.
- Access and security: Any technology used by the company must, "as far as practicable", be secure, minimise the risk of data corruption and unauthorised access, and provide certainty as to the source of the communications.
- Disruption or failure of technology: Any failure or disruption of technology must be "remedied as soon as practicable" and, according to the 2020 Act, shall not invalidate the meeting. However, it is unclear what degree of disruption will be acceptable for reliance on this provision. Where transmission of the meeting is significantly impacted, a company may come under pressure from shareholders to adjourn the meeting.
- Voting: A company may provide a "mechanism" for casting votes either before or during the meeting. Any such mechanism must not necessitate physical presence by a member or a proxy at the meeting.
We will be following developments in this area with interest and expect clearer practice to emerge as the 2020 Act is relied upon more widely in the months ahead.
For more information on this topic please contact any member of A&L Goodbody's Corporate and M&A team.
Date published: 12 January 2021