Following the recent expiry of the temporary electronic signing, virtual meetings, and continuous disclosure provisions, ASIC has adopted a temporary 'no-action' position for convening and holding virtual meetings. Here, Kristy McCluskey explains ASIC's position.
- The no-action position supports holding meetings using appropriate technology, facilitates electronic notice of meetings, including supplementary notices, and allows more public companies an additional two months to hold their AGM.
- Legislation introduced to extend these virtual meeting provisions, as well as the electronic execution and continuous disclosure measures, is currently awaiting debate in the Senate. The Senate is not scheduled to consider this legislation again until August.
- ASIC's no-action position does not provide any guidance on the continuous disclosure measures.
- ASIC's no-action position does not apply to or extend any measures relating to electronic execution of company documents.
We discuss these developments in more detail below.
For background information about these recent developments please see our alert Electronic execution, virtual meetings, and continuous disclosure in doubt.
ASIC's no-action position on virtual meetings is subject to the following conditions:
- The technology used to hold the meeting must provide members a reasonable opportunity to participate. This includes ensuring members participating remotely can ask questions and make comments at the meeting.
- Voting at the meeting must occur by a poll rather than a show of hands.
- Each person entitled to vote must be given the opportunity to participate in the vote in real time (and where practicable, voting should also be available in advance of the meeting).
- The notice of meeting must include information about how those entitled to attend can participate in the meeting (including how they can vote, ask questions, make comments, or otherwise speak at the meeting to the extent they are entitled to do so).
In addition to the no-action position, ASIC has updated its guidelines for investor meetings using virtual technology.
Convening meetings electronically
ASIC's no-action position for virtual meetings is subject to the following conditions:
- Notice of the meeting or supplementary information for the meeting, whether given electronically or otherwise, must either include the contents of the notice or details of an online location where the contents of the notice can be viewed or downloaded.
- Where electronic addresses have not been nominated by those entitled to receive notice of the meeting, notice of how to access the contents of the notice must still be given personally or by post.
- Supplementary instructions for on-line participation in the meeting must be given at least two business days before the meeting is held by—
- electronic message (if the member has provided the relevant details)
- a notice on the entity's website, and
- a market announcement if the entity is listed on a market.
ASIC's no-action position on convening meetings using virtual technology applies to meetings held between 21 March 2021 and 31 October 2021, or the earlier date measures are passed by Parliament.
Deferral of AGMs
The two-month deferral of AGMs applies to entities with financial years ending up to 7 April 2021. ASIC is not extending the class relief for financial reports to entities with financial years ending between 8 January 2021 and 7 April 2021. However, entities may apply to ASIC for individual financial reporting relief if necessary.
We will keep you up to date with further developments. If you need help understanding how this impacts you and what steps you need to take, then please contact us. We can help.