Preparing for your AGM in 2023
Corporate News - 17 August 2023
With the Annual General Meeting (AGM) season nearly upon us and ASX recently releasing a compliance update reminding listed companies to give ASX sufficient time for their review, it is time for our public company clients to start thinking about preparing a notice of meeting (NOM). Some relevant considerations are set out below.
Preparing the NOM
- Meeting format – the NOM should disclose sufficient information on how shareholders can participate at the AGM depending on the chosen meeting format (physical, hybrid or wholly virtual). As a reminder, a company can only hold a wholly virtual meeting where there is an express provision in the constitution to allow this. We encourage companies to establish a dedicated AGM page on the company’s website to upload the NOM and details of the chosen meeting format so that any updates can easily be communicated to shareholders.
- Important resolutions to consider – common resolutions to consider for inclusion in a NOM include granting financial benefits to related parties, director elections and re-elections, approving the remuneration report and voting on a potential spill resolution (where applicable), issues of securities and refreshing placement capacity, adoption of new incentive plans (particularly considering the new Corporations Act relief regime which took effect in October 2022) and updates to the constitution.
- Sending NOMs and meeting documents – NOMs and meeting related documents can be sent to shareholders either physically or electronically regardless of the format of the meeting unless a member has elected (within the required timeframe under the Corporations Act) to receive those materials in a preferred format. Early engagement with the share registry to ensure that dispatch of meeting materials occurs in accordance with member elections is key. We also remind companies of the requirement each financial year to notify shareholders of their right to make these elections (this can be done via the company’s website).
- Signing proxy forms – a document relating to a meeting, such as a proxy form, may be signed electronically (if the method identifies the person signing, their intention in respect of the information recorded in the document and the method is reliable as appropriate for the purposes for which the information was recorded).
- Shareholder participation, quorum and use of technology – shareholders, as a whole, must be given a reasonable opportunity to participate (including the ability to ask questions and make comments both orally and in writing). A person who attends a meeting, whether at a physical venue or by using virtual meeting technology, is taken for all purposes to be present in person at the meeting while so attending. It is therefore important to ensure that any technology used enables recording of who is present, both oral and written engagement and real-time voting. Larger companies may consider engaging a dedicated platform provider and smaller companies may rely on free online conferencing software. In addition, the Chair should be armed with clear guidance on what is to occur in the event of technology failure.
- Substantive resolutions by poll and scrutineer – substantive resolutions for listed entities need to be conducted by way of a poll. Shareholders of a listed company with at least 5% of the votes are entitled to request to have an independent person appointed to observe the conduct of a poll, or to scrutinise the outcome of a poll, and prepare a report.
- Director nominations – listed entities need to ensure the closing date for receipt of director nominations is announced at the appropriate time in accordance with the ASX Listing Rules and the company’s constitution.
- ASX and ASIC review – any Listing Rule resolutions will need to be submitted to ASX for review before dispatching to shareholders. Typically, the ASX review period is 5 business days but complex resolutions or transactions may require additional time. If listed companies will require waivers in connection with any resolutions to be considered, additional time should be allowed to obtain the waiver as this is not incorporated in the 5 business day review period. The ASIC review period for related party resolutions is usually 14 days (although an application to shorten the review period can be made subject to a fee).
- Date of the AGM and NOM circulation – AGMs for listed and unlisted public companies with a financial year of 30 June will need to be held by 30 November 2023. This means that the NOM will need to be finalised and sent to shareholders by the end of October 2023. Listed companies must disclose the proposed date of the AGM within 5 business days before the cut-off for director nominations, which is usually done by listed companies announcing key dates around the annual reporting and meeting processes.
As always, we are happy to assist all clients with preparing or reviewing AGM materials for the upcoming season so please contact us in our Perth office or Melbourne office for further advice by clicking here.