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Virtual AGM Considerations - TSX TRUST
The global COVID-19/coronavirus pandemic has forced businesses of all sizes and in all industries to fundamentally rethink how they operate. Many have implemented strict social distancing measures aimed at slowing the spread of COVID-19. This has included working from home and severe restrictions on large in-person events.
With Annual General Meeting (AGM) season around the corner, COVID-19 promises to make this year’s AGMs unlike any in recent past. Virtual, online-only meetings are already receiving significant attention. Issuers have to carefully balance their regulatory and legal obligations to investors with the public health considerations that have been thrust upon them by the outbreak. Some have already announced plans to cancel in-person AGMs and move them online.
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The COVID-19 outbreak means that it is no longer business as usual for issuers of all sizes and in all industries, but we are here to support you and ensure you continue to maintain strong shareholder engagement and that you meet your legal and regulatory obligations. Please reach out to your TSX Trust relationship manager today to discuss your AGM, or for general inquiries, contact us
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Getting the Right Advice and Guidance
Engage Your Legal Counsel
The first step before making any decisions regarding your AGM is to seek advice from your legal team regarding the duties and obligations you have to your shareholders. This should include a careful review of your corporate by-laws to ensure that they allow electronic attendance and participation.
You should also check your company’s governing legislation to ensure there are no restrictions. To our knowledge, it is acceptable federally under the Canada Business Corporations Act as well as provincially in Ontario and Alberta. B.C. appears to restrict fully virtual meetings, but we would note Telus recently obtained an exemption through the courts.
The same steps should be performed in the event you’re considering a hybrid meeting, with physical components in addition to using a virtual platform. We would also note that health authorities’ guidance regarding physical meetings continues to get more and more stringent.
Guidance From Proxy Advisory Firms
Both ISS and Glass Lewis, the two largest proxy advisory firms, have indicated they will relax their policies with regard to virtual-only meetings this year. ISS will be "very reasonable" with caution about virtual-only meetings, while Glass Lewis will provide leniency to companies that clearly disclose that a virtual meeting option was chosen because of the COVID-19/coronavirus outbreak.
Shareholder Engagement
Same, But Virtual
In planning a virtual meeting, whether in part or in whole, issuers have to ensure that shareholders will be afforded the same rights and opportunities to participate in the AGM as they would at an in-person meeting.
We would note that for companies opting to hold their annual meeting virtually, and without the option of attending in person, Glass Lewis plans to examine the company’s disclosure of its virtual meeting procedures and may recommend voting against the members of the governance committee if the disclosure does not ensure that shareholders will be afforded the same rights and opportunities to participate as they would at an in-person meeting.
Rules of Engagement
In planning a virtual or hybrid meeting, it’s important to consider the basics first. These questions include:
- Will the meeting be a conference call with slides or a live video webcast?
- How will the technology used allow for adequate communication between shareholders and the company?
- What level of participation will guests, shareholders and appointees be expecting at the meeting, and what will be allowed?
- Who can ask questions? Will all questions be shown to attendees? Are all questions going to be answered at the meeting or will answers be posted online at a later time?
- Are all of the decisions resulting from these considerations accurately and clearly described in the proxy circular being mailed to shareholders in advance?
The Mechanics and Cost of a Virtual Meeting
When compared to an in-person AGM, a virtual meeting offers a number of pros and cons with respect to cost and demand on resources. For example, the number of technology providers that are able to host a virtual AGM is relatively small, thereby making virtual AGMs costly. On the other hand, issuers hosting a virtual meeting will save the significant expense of booking a venue and paying for travel and accommodations. This also has related time savings and can actually lead to greater shareholder engagement because the time investment required is much less onerous.
Timelines of virtual AGMs do not generally change compared to in-person meetings. Relevant disclosure language has to be included in the circular. This includes notice that the meeting will be virtual, the URL address at which the meeting can be accessed, relevant login credentials and other related details.
TSX Trust will mail out a form of proxy to registered shareholders with a unique control number, which will allow each shareholder to vote online and also be able to access the meeting and vote virtually on the meeting date. If an individual is appointed shares, they will have to reach out to the transfer agent directly to receive the unique control number.
If you’re considering or have decided on a virtual AGM, you should reach out to TSX Trust as early as possible to develop the specific language and instructions that will need to be included in the shareholder mailing.
During the AGM itself, the script of the business of the meeting will need to include clear instructions on how to vote by proxy, in-person or virtually as applicable. Matters to be voted on at the meeting will all be conducted by way of ballot. Registered shareholders attending virtually will be prompted to cast their vote in real-time, much like at an in-person meeting. Results are then reflected in the scrutineer’s report, and the reports on ballot.
TSX Trust has partnered with Lumi Global, a leading provider of virtual meetings, to help Canadian issuers deliver meetings virtually. Given the COVID-19 outbreak, demand for virtual meetings is very high, so we would strongly advise you to confirm with us your plans to host a virtual meeting and we can then work with Lumi directly to secure a date.
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TSX Trust has prepared this document to equip you with some of the most pressing decisions you should be considering as you get set for your organization's AGM.
Lumi Technologies
Our Virtual Meeting Partner
WEBINAR: Moving to Virtual AGMs in the age of COVID-19
Tanya Rowntree, speaks with Jacob Gofman, Capital Markets Partner, Blakes, Fraser Monkman, VP Business Development, TSX Trust, and Lara Donaldson, Chief Operating Officer, TSX Trust, about which companies make good candidates for virtual meetings and the proper technology to make shareholders feel virtually there.
Podcast: Season 2, Episode 3 - Virtually There