Every company must hold an Annual General Meeting (“AGM”) in each calendar year. The first AGM must be held within 18 months of its incorporation and thereafter no more than 15 months can separate one AGM and the next. It is also important to note that every company must hold their AGM within 9 months of their Financial Year End.
The Companies (Miscellaneous Provisions) (Covid-19) Act 2020 (the “Covid-19 Act”), has amended the Companies Act 2014. For an interim period ending on the 31 December 2020, unless extended, a company may hold its 2020 AGM at any time before 31 December 2020. Thus the AGM will not be determined as being held late if held either after nine months has elapsed since the year end or fifteen months has elapsed since holding the last AGM, provided it is held before 31 December 2020.
A single member or multi-member Irish private limited company (LTD) and other single member companies (DAC’s, PLC’s, ULC’s and CLG’s) do not necessarily have to hold an AGM. In the case of these companies it is possible in lieu of an AGM, for all members of the company that are entitled to attend and vote at an AGM to sign a written resolution confirming:
It is important to note that the written resolution must be a unanimous written resolution and the waiver must be in place before the latest date for holding the AGM. The Covid-19 Act does not permit a company to avail of this option if the time for holding the AGM under the Companies Act 2014 has elapsed.
What are the consequences of not holding an AGM?
Where a company fails to hold an AGM, a member may apply to the Director of Corporate Enforcement to call or direct the calling of the AGM. The company and any officers of it are liable to a category three offence. If convicted of a category 3 offence, a director faces a Class A fine (up to €5,000) and/or a maximum term of imprisonment of 6 months.
Can a company delay its Annual General Meeting?
Yes, a company can delay holding its AGM. The Covid-19 Act provides that companies will not need to hold their AGM within the nine-month period required for laying the accounts or fifteen month period since the last AGM, under the Companies Act 2014, provided it is held before 31 December 2020. The Covid-19 Act also provides that this period maybe extended.
Can a company cancel its Annual General Meeting?
The Covid-19 Act allows, during the interim period, directors to cancel a meeting, change the venue or change the means of holding the meeting (e.g. from a physical to a virtual meeting), if it is deemed necessary to do so to comply with public health guidance.
Where can a company’s Annual General Meeting be held?
A company should review its Constitution to ascertain if there are any specific provisions relating to where general meetings should be held. The Constitution may specify a particular location in Ireland or may allow meetings to take place outside of Ireland. The Constitution may also contain provisions on how members participate via electronic means.
If the Constitution is silent on the location of general meetings, then, subject to conditions, an AGM may be held anywhere either inside or outside of Ireland. During the interim period, the Covid-19 Act enables companies to hold fully or partial virtual meetings, so no physical venue is required.
What additional information should a Company include in the Notice where the AGM is held virtually?
The notice should also contain the electronic platform to be used for the meeting and details of how to access that platform. The date by which the attendees should confirm their intention to attend the meeting and a contact email should also be provided for members to confirm their attendance. Any requirements or restrictions that the company has put in place to identify attendees should be included. The company should also include a procedure for attendees to communicate questions and comments during the meeting, such as all questions should be raised through the chat feature in zoom and the procedure for voting on resolutions to be passed at the meeting.
What is the quorum for an Annual General Meeting?
A company’s constitution may specify a minimum number of members present for a valid meeting to take place. However, if the constitution does not specify a number then the Companies Act 2014 states that the minimum requirement is two for a multi member company and one member for a single member company. A member may also appoint a proxy to attend in their place and the proxy’s presence will count towards the quorum. The Covid-19 Act allows members and proxies participating via electronic means to be counted as part of the quorum of the meeting.
Do the attendees have to be present in the same room for there to be a quorum?
It is not clear whether the Companies Act 2014 permits general meetings without either a physical venue and/or a quorum being present in the same physical location. However, during the interim period, the Covid-19 Act provides that a member who participates in a general meeting by use of electronic means shall be counted in the quorum for the meeting.
Can a company hold an Annual General Meeting virtually?
The Covid-19 Act has amended the existing legislation to allow, during the interim period, companies to hold fully or partial virtual general meetings.
Can a company’s Annual General Meeting be held semi-virtually?
Yes, AGM’s can be held in two or more venues at the same time whereby members participate by electronic means. Additionally, during the interim period, the Covid-19 Act allows fully electronic or hybrid meetings, thereby removing any doubt about such meetings during the interim period.
Can I nominate somebody to attend the Annual General Meeting in my place?
Yes, all members entitled to attend and vote at an AGM may appoint a proxy to attend, vote and speak in their place. Reference should also be made to the company’s constitution as there may be specific requirements governing proxies contained in the constitution.
Can I be prevented from attending the Annual General Meeting?
There is no provision within Irish company law that gives a company powers to prevent a member from attending an AGM. However, directors may seek to limit attendance in accordance with current Government advice with regard to groups of people gathering indoors.
In all of the above answers it is important to take the specific circumstances of the relevant company into account such as number of shareholders and regulations contained in the constitution. If you require any professional advice on the regulations contained in your constitution or how you may hold and AGM in 2020, please do not hesitate to contact any member of the KPMG Legal Services Company Secretarial Team.