Looking to Change Your Meeting Because of COVID-19? CSA Says Go For It!

March 20, 2020

The Canadian Securities Administrators (CSA) have provided guidance for issuers considering changes or alternatives to their in-person annual general meetings.

  • Issuers looking to change the date, time, location and/or format of an annual general meeting (AGM) do not need to mail additional soliciting materials or update proxy-related materials, provided they appropriately inform shareholders and others of the change(s).
  • Issuers are reminded to review their corporate law obligations and constating documents before changing the format of their AGM.
  • This CSA guidance applies to AGM matters and some others. Issuers involved in proxy contests or holding special meetings for M&A or related party transactions should contact their principal regulators to discuss appropriate measures.

How to Change Your AGM?

According to CSA guidance, issuers seeking to change the date, time, location or format of their AGMs during the 2020 proxy season can do so by promptly:

  • Issuing a news release announcing the change and filing it on SEDAR; and
  • Taking all reasonable steps necessary to inform all the parties involved in the proxy voting infrastructure of the change.

While the CSA have not explicitly stated that issuers are required to file an amended notice of meeting or to mail additional or amended proxy materials to their securityholders, they also note that the conduct of AGMs is primarily subject to applicable corporate law and the issuer’s constating documents, which do not fall under the jurisdiction of securities regulators. As we discussed in our previous post, while fact specific, it may still be advisable to file an amended notice, which may also assist in taking steps to inform the parties involved in the proxy voting infrastructure (including transfer agents, intermediaries and service providers). Changes to AGMs should be made promptly regardless of whether an issuer is holding an in-person, hybrid or virtual meeting.

With respect to compliance with National Instrument 54-101 Communication with Beneficial Owners of Securities of a Reporting Issuer, the guidance states that no exemptive relief from section 2.15 is required by reporting issuers that are considering changes or alternatives to their AGMs as long as their registered holders and beneficial owners are treated equally and receive the same information. Section 2.15 of NI 54-101 requires that a reporting issuer that sends a notice of adjournment or other change related to an AGM to registered holders of its securities is required to concurrently send the notice to its beneficial owners

As we previously discussed, Issuers are also reminded of the corporate law and other considerations that may impact their decisions to hold a virtual-only meeting. 

Virtual Meetings

For Issuers planning to hold fully virtual or hybrid AGMs, the CSA expect issuers to notify securityholders, the parties involved in the proxy voting infrastructure, and other market participants of such plans in a timely manner and to disclose clear directions on the logistical details of the virtual or hybrid AGM, including how securityholders can remotely access, participate in, and vote. Where proxy-related materials have yet to be filed, these details should be included. However, where an issuer changes a meeting to virtual after materials have been filed, the steps set out above can be used to notify shareholders and others of the change to a virtual or hybrid AGM.

Proxy Contests and Other Special Meetings 

The CSA note that their guidance applies to all business transacted at AGMs, and lists as examples, matters such as the election of directors and amendments to equity incentive plans. However, it also cautions that reporting issuers involved in proxy contests, holding special meetings for merger and acquisition transactions, or obtaining securityholder approval for transactions under Multilateral Instrument 61-101 Protection of Minority Securityholders in Special Transactions should contact their principal regulator to discuss what steps would be appropriate in those circumstances. Determination of whether a meeting involves special business is ultimately a determination to be made under corporate law. Special matters such as amendments to incentive plans are also subject to compliance with applicable stock exchange requirements. As we have noted in our previous guidance, however, given the circumstances and other considerations relating to the COVID-19 outbreak, there should be ample flexibility for issuers to address those concerns provided reasonable processes are followed.

DISCLAIMER: This publication is intended to convey general information about legal issues and developments as of the indicated date. It does not constitute legal advice and must not be treated or relied on as such. Please read our full disclaimer at www.stikeman.com/legal-notice.

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