Many AIM companies will now be starting to prepare for their 2021 AGM and their FY2020 annual reports. This note summarises some of the key agenda items and our expectations for this year.
AGMs and Reporting: What's on the agenda for AIM companies in 2021?
Format of meeting and shareholder engagement
One of the key decisions companies will be making this year is the format of their AGM. The provisions of the Corporate Insolvency and Governance Act 2020 ("CIGA") which grant flexibility in relation to the holding of general meetings have been extended to cover general meetings held on or before 30 March 2021. Until this date, CIGA permits companies to hold entirely (or partially) virtual meetings, or to limit the number of attendees to the required quorum, irrespective of the wording in their articles of association.
Whether they opt for a closed meeting with an interactive element, a hybrid meeting or a fully virtual meeting, it is evident that companies must make shareholder engagement a key focus. In October 2020 the FRC published AGMs: An opportunity for change. The paper includes a review of the 2020 AGM season, which was heavily impacted by COVID-19, notes the varying levels of shareholder engagement throughout the AGM season and contains suggestions for improvement. As 2021 AGMs will continue to be affected by the COVID-19 restrictions, the FRC recommends that companies take the following steps:
- prepare now, and consider what changes might need to be made;
- if additional technology is needed, speak to the providers now to assess the options and costs;
- discuss the options with their registrar;
- consider how shareholders will be able to ask questions; and
- set up an area of the investor relations website dedicated to AGMs and keep it regularly updated so shareholders can access the latest information.
The GC100's note The 2020 AGM season – a catalyst for change? suggests, in the current circumstances, promoting shareholder engagement at AGMs by live streaming the meeting, posting a recording of it on the website, posting transcripts of the Chair and CEO's statements on the website and holding separate shareholder engagement sessions before the AGM.
The International Corporate Governance Network ("ICGN") has published its views on general meetings. The Viewpoint encourages companies to make arrangements for hybrid meetings and explains what best-practice virtual shareholder meetings look like. The ICGN also encourages companies to see this period as an opportunity to reframe and improve their dialogue with shareholders more generally.
Glass Lewis acknowledges, in its 2021 Proxy Paper Guidelines, the likelihood of meetings having limited in-person attendance in 2021 and notes its expectation that company disclosures should confirm:
- when, where, and how shareholders will have an opportunity to ask questions relating to the business of the meeting, including a timeline for submitting questions, types of appropriate questions, and rules for how questions and comments will be recognised and disclosed to shareholders;
- in particular where there are restrictions on the ability of shareholders to question the board during the meeting - the manner in which appropriate questions received during the meeting will be addressed by the board; this should include a commitment that questions which meet the board’s guidelines are answered in a format that is accessible by all shareholders, such as on the company’s AGM webpage or investor relations website;
- the procedure and requirements to participate in the meeting and access the meeting platform; and
- technical support that is available to shareholders prior to and during the meeting.
While this section of the 2021 Proxy Paper Guidelines does not directly apply to AIM companies, it is important nonetheless as it sets a best practice standard.
Articles of association
There is some legal uncertainty as to whether virtual shareholder meetings are valid under the Companies Act 2006, which requires the notice to state the "place" of the meeting. This has been interpreted as requiring a physical place. Institutional shareholder bodies have also voiced their concerns about the nature of virtual meetings and, in December 2017, the Investment Association (the "IA") stated that it would not support changes to articles allowing virtual-only meetings. However, in recent years, companies have been amending their articles to permit hybrid meetings, being meetings with both a physical place and electronic participation.
While the majority of companies chose to hold closed, rather than hybrid, meetings in 2020, companies are continuing to update their articles to permit hybrid meetings to ensure they have more flexibility going forwards. Ahead of their 2021 AGMs, companies which do not already have hybrid provisions in their articles should consider proposing these amendments.
In AGMs: An opportunity for change, the FRC encourages investors to support amendments to articles of association which permit hybrid meetings.
Diversity remains an area that all listed companies should be considering but of particular note for AIM companies is that ISS will recommend a vote against the chair of the nomination committee of AIM companies with a market capitalisation of over £500m if there is not at least one woman on the board.
Pre-Emption Group guidelines
During the COVID-19 pandemic, the Pre-Emption Group ("PEG") had recommended that investors apply additional flexibility in considering issuances of shares of up to 20 per cent of a company's issued share capital on a non-pre-emptive basis. This flexibility ended on 30 November 2020 and PEG has announced that companies must revert to only seeking the authorities set out in the Statement of Principles. Although the Principles apply to Official List companies, AIM companies are encouraged to adopt them.
2021 dividend procedure timetable
The LSE has published its 2021 dividend procedure timetable – see here.
While the IA guidance detailed below is primarily aimed at main market companies, it demonstrates best practice and so remains relevant for AIM companies.
Principles of Remuneration
The IA has published its 2021 Principles of Remuneration and Letter to Chairs of Remuneration Committees of FTSE 350 Companies. Changes to the Principles include that remuneration reports will be "red-topped" where the remuneration committee has not disclosed a credible action plan to align directors' pension contributions to the majority of the workforce rate by the end of 2022 and the pension contribution received by an executive director is 15% or more of their salary. As with last year, remuneration policies will also be "red-topped" where they do not explicitly state that the pension contributions for new executive directors will be aligned with the wider workforce. These two factors are also considered important by ISS in determining whether to recommend remuneration policies.
Further, a proportion of the entire bonus should be deferred when the bonus opportunity is greater than 100% of salary and the Principles now reflect the range of non-financial performance metrics (strategic, personal and ESG) expected by shareholders in variable remuneration.
The IA has published its Guidance on Shareholder Expectations during the COVID-19 Pandemic in which it acknowledges that remuneration committees have to take each company's individual circumstances into account. However, companies must balance the need to incentivise against the experience of other stakeholders.
The IA emphasises that directors should not be isolated from the impact of COVID-19 and sets out a number of circumstances in which it expects the impact on investors and employees to be reflected in the executives' remuneration. For example, where the company received direct government support (such as through the Coronavirus Job Retention Scheme) or raised additional capital, the IA would not expect any annual bonuses to be paid to executives for FY2020 or FY2020/21 unless the circumstances are truly exceptional. In addition, where a dividend was suspended or cancelled in FY2019 or FY2019/20, the IA states that shareholders would expect this to have a corresponding impact on remuneration outcomes.
Further, the IA states that performance conditions for "in-flight" annual bonus or long-term incentive awards should not be adjusted to take account of the impact of COVID-19. Remuneration reports will be expected to set out the approach and factors the remuneration committee will or have considered when judging if there have been windfall gains from long-term incentive awards granted in 2020. Remuneration committees in companies significantly affected by COVID-19 are discouraged from making substantial changes to their remuneration policies until there is clarity on the future of the market.
Remuneration Committee Guide
The Quoted Companies Alliance ("QCA") has published The Remuneration Committee Guide for AIM companies advising on all aspects of remuneration from running the committee to the reporting obligations. In particular, communication with shareholders is considered key in establishing effective remuneration structures.
Section 172 statements
While section 172 statements are not new for 2021, there continues to be commentary on the topic and we expect that the statements will evolve as market practice develops.
There have been several FRC publications which comment on section 172 statements:
- The FRC Lab published advice on how to make section 172 statements more useful to investors and other stakeholders. Tips include presenting the information in a way that makes sense, building in the most useful content and having good processes in place throughout the year.
- The FRC Lab has also stated in its subsequent newsletter that it will also be looking more broadly at how companies have reported stakeholder issues across different communication channels.
- In its recent Review of Corporate Governance Reporting, the FRC notes that companies are failing to provide sufficient information for investors and broader stakeholders in their s.172 statements.
- The FRC's end of year letter to CEOs, CFOs and audit committee chairs notes the lack of disclosure on the two-way dialogue with stakeholders and how their feedback has affected decision making.
The Chartered Governance Institute has published updated guidance on directors' duties. Although this is a guide to general directors' duties, it provides additional practical guidance on section 172 reporting requirements, including examples of the issues that may be considered relevant in relation to each of the factors listed in section 172; the methods for stakeholder engagement; and the effect on company decisions and strategies.
FRC end of year letter
The FRC has published a letter to CEOs, CFOs and audit committee chairs which sets out the topics that the FRC expects to scrutinise this year and its expectations of companies (which is relevant for AIM companies who choose to comply with the 2018 UK Corporate Governance Code (the "Code")). Topics the letter covers include: COVID-19, Brexit, climate change, section 172 statements, chair tenure and workforce engagement reporting.
Corporate Governance Disclosures
The FRC has published its Review of Corporate Governance Reporting which highlights both areas of best practice and areas for improvement in corporate governance disclosures relating to the Code (which is relevant to those AIM companies who choose to comply with it). Overall, the FRC was disappointed by the response to the Code and too many companies are still regarding Code compliance as a tick box exercise. Rather than offering vague explanations, the FRC encourages companies to declare non-compliance and explain why this approach is right for the company and, if necessary, what actions it has taken to mitigate the impact of not following the Code. The review lists a number of areas in which the FRC expects reporting to be improved in 2021, being:
- having a well-defined purpose (not simply a marketing slogan) and clearly showing the progress towards achieving it;
- a discussion of the issues raised, topics considered, and feedback received during engagement with shareholders and employees;
- showing the impact of engagement with stakeholders, including shareholders, on decision-making, strategy and long-term success;
- increasing focus on assessing and monitoring culture, including consideration of methods and metrics used;
- increasing attention on, and better reporting of, succession planning, diversity and board evaluation;
- clearly showing the impact of engagement with shareholders on remuneration policy and outcomes;
- clearing showing the impact of the engagement within the workforce in relation to the executive remuneration policy; and
- improved clarity by using signposting, linking elements of the report and including clear references to the Code.
The FRC has published updated Guidance for companies on Corporate Governance and Reporting encouraging companies to make use of the extension for publication of audited financial reports (which for AIM companies is from 6 months to 9 months), demanding full disclosure around the qualifications and assumptions made in connection with viability statements and explaining the material uncertainties to be disclosed in relation to going concern statements, as well as discussing the approach to take to interim reports.
Workforce engagement and culture
While the workforce engagement mechanisms are not new for 2021 (for those AIM companies who choose to comply with the Code), they are an area which received criticism in the FRC's Review of Corporate Governance Reporting. The FRC has also commissioned a research project into workforce engagement, with the findings to be published early this year. When considering the effectiveness of their current workforce engagement mechanisms in 2021, and when preparing their FY2020 annual reports, companies should note that the FRC expects them to "fully explain why their method of employee engagement is effective", for example, by reporting examples of discussions in relation to the impact of the engagement on decision making. In addition, the dialogue with the workforce needs to be explained clearly and effectively. The FRC's letter to CEOs, CFOs and audit committee chairs also focuses on improved disclosures in this area, for example clearer explanation on what basis employee-related issues and concerns are elevated to the board.
In the Code, for the first time, there is an expectation that the remuneration committee will also engage with the workforce. While many companies stated that they had taken workforce remuneration, workforce related policies and the alignment of incentives and rewards into account when setting the policy for executive remuneration, few companies provided further detail and the FRC notes that they were unable to find any companies who described any feedback that was received from employees by the remuneration committee, and any follow-up actions. The FRC has, therefore, noted that it expects to see an improvement in companies reporting on the steps that they have taken to engage their employees on their remuneration policies.
Similarly, the FRC expects companies to take a more rigorous approach to monitoring and assessing culture and its alignment with purpose, values and strategy, including setting out any actions taken in this area in line with the Code. Although the requirements around culture are not new for 2021, and reporting on culture improved compared to early adoption reporting last year, the FRC says there is still more work to do in this area.
QCA Governance Review
The QCA has published its AIM Good Governance Review 2020/21, which analyses the governance disclosures of small and mid-sized quoted companies, with a particular focus on responses to COVID-19 and expectations of investors this year in relation to environmental, social and governance, remuneration, and general governance disclosures. The QCA notes that, whilst overall there were high levels of transparency and compliance, there were a few notable low points, such as the disclosures on directors' skillsets and time commitments, on general meeting vote outcomes, and board performance evaluation.