As the financial year has now ended, public companies and their boards should turn their attention to preparing for the upcoming annual general meeting (AGM). Early preparation of the AGM notice of meeting (NOM) is critical to avoid last-minute challenges and ensure compliance with both ASX and ASIC requirements. Companies are encouraged to start drafting the NOM well in advance, ideally by mid-September, to allow sufficient time for regulatory review and approval processes.
Regulatory Timelines
Listed entities must announce the AGM date and the closing date for director nominations via ASX at least five business days before nominations close.
For resolutions involving related party transactions under Chapter 2E of the Corporations Act (e.g., issuing incentive securities to directors), ASIC mandates that final NOMs be lodged at least 14 days before issuance. ASIC may grant abridgements to this period, but these are not guaranteed (especially for periods shorter than seven days) and incur additional fees.
If the NOM includes resolutions requiring Listing Rule approval, it must be submitted to ASX for review at least five business days before finalisation. Any amendments from ASX will reset this review period.
Companies seeking ASX waivers must secure them before submitting draft NOMs for review, with timelines varying depending on the type of waiver.
Best practice is to complete the ASX review before starting the ASIC process to avoid overlapping requirements and potential re-lodgement fees.
Key Resolutions to Consider
Beyond consideration of financial statements, standard board elections and approval of remuneration reports, companies should review which resolutions are necessary for their AGM, including:
ratification of prior issues of equity securities under ASX Listing Rule 7.4 to restore the company’s 15% placement capacity;
approval for an additional 10% placement capacity under ASX Listing Rule 7.1A;
approval of the number of securities to be issued under employee incentive plans every three years to maintain the exemption under ASX Listing Rule 7.2 Exception 13;
approval to increase the ‘issue cap’ of securities under employee incentive plans by amending a company’s constitution to ensure sufficient capacity to issue any anticipated incentive securities for monetary consideration;
renewal of proportional takeover provisions in the company’s constitution, if applicable, every three years by special resolution;
approvals for issuing securities to directors under ASX Listing Rules 10.11 or 10.14;
possible spill resolution if a strike was received against the previous year’s remuneration report (i.e. 25% or more voted ‘no’); and
confirmation of an auditor’s appointment (if applicable).
Recent Regulatory Focus Areas
ASX has recently emphasized compliance with Listing Rule 7.1A, particularly regarding eligibility, approval expiry, and the calculation of maximum placement capacity. NOMs must include a dilution table with multiple price and share scenarios, and detailed allocation policies for securities issued under the 7.1A mandate. Importantly, approval under 7.1A does not ratify past issuances—separate ratification is required for securities issued under Listing Rule 7.1A in the previous 12 months.
ASIC, meanwhile, has reiterated that Chapter 2E approvals must be acted upon within 15 months, despite longer periods allowed under some Listing Rules. Boards are expected to provide clear, company-focused reasons for related party recommendations, and NOMs must be lodged in final form, free of placeholders for material information.
With early thorough preparation, companies can efficiently navigate the regulatory landscape and avoid the stress of last-minute compliance issues during AGM season. For assistance with drafting or reviewing your NOM, please contact us.