JSE-listed companies may have to fulfil various duties under the Listings Requirements in relation to disclosures of the impact of Covid-19 on their businesses, scheduled shareholders’ meetings and changes to dividend declarations. The JSE has issued several notes to alert and guide issuers and sponsors in this situation
Over the past month, the JSE has released a number of relevant notes about the impacts of the Covid-19 pandemic. We summarise them below (in chronological order).
JSE LISTINGS REQUIREMENTS – 10 March
The JSE reminded issuers and sponsors to assess the impact, if any, that the Covid-19 outbreak may have on their business operations and disclosure obligations, particularly:
- price sensitive information (pursuant to paragraph 3.4(a) of the JSE Listings Requirements (Requirements));
- material risks in the annual report (pursuant to paragraph 8.63(s) read with paragraph 7.F.7 of the Requirements); and
- measurement and disclosure in terms of IFRS.
Issuers are encouraged to engage with their sponsors on those aspects and their disclosure obligations, as well as any impact on their ability to comply with the Requirements (specifically the timeous publication of financial results under Section 3).
ISSUER REGULATION – 17 March
JSE staff have been encouraged to work from home. Although meetings at the JSE will be avoided and held virtually instead, it will be 'business as usual' for Issuer Regulations. There is no change to the prescribed turnaround times for documents submitted in terms of the Requirements. The JSE recognises that issuers may face unusual circumstances requiring urgent consideration and it has undertaken to deal with them.
Where the JSE requires written responses (including, but not limited to, Pro-Active Monitoring and Investigations), it will favourably consider requests for additional time to respond and will attempt to deal with any unusual circumstances presented by issuers requiring urgent consideration.
IMPACT ON SHAREHOLDERS MEETINGS – 19 March
The JSE has drawn attention to shareholder meetings already called or that may be called in the near future. It reminded issuers that section 63(2) of the Companies Act, 2008 (Companies Act) allows companies to convene and hold shareholder meetings using electronic means, provided that:
- the issuer is not prohibited from doing so by its memorandum of incorporation (MOI); and
- the electronic communication used enables all persons participating in the meeting to participate in an effective manner and to communicate concurrently without an intermediary.
Issuers must ensure that shareholders' meetings comply in all respects with the Companies Act and applicable statutory provisions.
IMPACT ON REITS – 25 March
The JSE is in active discussions with the SA REIT Association, which was expected to highlight the challenges faced by the REIT sector and propose possible solutions and/or recommendations. The JSE said it would continue to work closely with the Association to determine what role the JSE can play, in line with the Requirements.
The JSE has encouraged issuers and sponsors to carefully assess the impact of the pandemic on the issuers’ businesses. They should immediately engage with the JSE if there are any concerns about their continued ability to comply with the Requirements, and how that would affect their REIT status.
These submissions, which the JSE has undertaken to deal with on an urgent basis and for which no fee will be payable, must be submitted on the web-based submission system WEBSTIR under the event type “Ruling - Continuing Obligations”. Sponsors are required to notify Annalie de Bruyn on email@example.com of the submission to WEBSTIR (using the heading “REIT Submission” in the subject line) to facilitate the process.
TRANSITIONAL PROVISIONS – 25 March
The following updated transitional provisions (according to the amendments schedule) relating to the Section 8 disclosures in the annual report, which are applicable to issuers with a year-end on or after 28 February 2020 under the current transitional provisions, will now apply to issuers with a year end on or after 31 December 2020 under the new transitional provisions:
item 2 - Public Shareholders: the provisions dealing with disclosure of securities held by the public;
item 8 – Board Diversity: the provisions dealing with the wider board diversity policy. The current policies on race and gender diversity continue to apply;
item 13 – Audit Committee: the provisions dealing with the audit committee responsibility to consider all entities included in the consolidated group IFRS financial statements in respect of financial reporting procedures; and
item 14 – CEO & Financial Director Confirmation: the provisions dealing with the CEO and financial director sign-off.
It is important to note that no changes are applicable to:
Item 4 - Compliance with Applicable Laws: the provisions dealing with (i) Social Mandate, Laws of Incorporation and MOI and (ii) Material Risks; and
Item 7 – Dealings in Securities: the provisions dealing with the disclosure of the holdings by directors which are subject to security, guarantee, collateral or otherwise.
Those two items continue to apply to issuers with a year-end on or after 28 February 2020.
In relation to sponsors, the current transitional provisions:
- allowing issuers and sponsors/designated advisers to apply the independent sponsor requirements only from 1 April 2020 have been extended to 30 June 2020; and
- requiring sponsors to update their written procedures manual to deal with sponsor independence by 1 April 2020 have been extended to 31 December 2020.
CANCELLATION, CHANGES AND POSTPONEMENT OF PAYMENT OF DIVIDENDS AFTER DECLARATION DATE – 30 March, 2 April and 21 April
The JSE advised that issuers can only cancel a dividend and the resultant payment prior to Finalisation Date (FD). Any changes to the pertinent details after FD but before the Last Day to Trade (LTD), which do not include a cancellation of the dividend or resultant payment by the issuer, will result in a cancellation of the corporate action timetable. In that case, the issuer must start the timetable afresh to provide investors with sufficient time and information to make informed investment decisions.
If an issuer decides to make a Dividend Variation, a SENS announcement must be released, stating the reasons for the variation from the dividend declaration announcement. If the dividend is being postponed or the value is being changed, the issuer must announce new declaration data on SENS, in accordance with the corporate actions timetable.
On 2 April, the JSE issued a further letter on the impact of Covid-19 on the payment of dividends, in which it states that dividend payments must at all times not only comply with the Listings Requirements but also with the provisions of the Companies Act relating to distributions. The Companies Act requires that once the board of directors of a company has resolved to declare a distribution to shareholders (Declaration Resolution), such distribution must be fully carried out. The Act does not prescribe the period within which the distribution must be completed (i.e. paid, in the case of dividends). However, the Act provides that if the company fails to pay the dividend within 120 business days after the Declaration Resolution, it is prohibited from completing the distribution until the board has passed a new resolution that the solvency and liquidity test will be satisfied immediately after completing the proposed distribution. Boards must bear in mind their obligations in relation to distributions not only in terms of the Requirements but also the Companies Act to avoid liability.
In a further letter dated 21 April, the JSE reminded issuers that if they intend to either cancel, postpone, or in any manner amend the payment of an existing declared dividend, they must immediately publish an announcement on SENS recording, in detail, the supervening circumstances and/or reasons that support the issuer’s view that it is released from its legal obligation to pay the dividend on the date that it was due and payable. In addition, issuers must also specifically consider whether the facts and circumstances relied upon to make such decision constitute price sensitive information in terms of the Requirements.