Although it may seem that the AGM season is still some months away, for companies with a 30 June year end, the lead up to calling the AGM is fast approaching.
Set out below are some key considerations, tips and timeframes to think about when preparing for your AGM.
Corporations Act changes
This year has seen comparatively less regulatory change. Accepted market practices have now developed around disclosure of chairman, ‘key management personnel’ and proxy voting restrictions. However, practices for meeting procedures continue to evolve (including polling on the ‘remuneration report’ and in some cases, all resolutions). You should consider your preferred approach for your AGM.
New ASX Corporate Governance Principles
The Third Edition of the Corporate Governance Principles and Recommendations were recently released by the ASX Corporate Governance Council as referenced in our earlier post.
Although the new Principles and Recommendations are effective from the financial year ending 30 June 2015 (for companies with a 30 June balance date), some companies are seeking to adopt the Principles and Recommendations at an earlier date.
For early adopters, this may have repercussions for the AGM. For example, there is now a requirement that background checks be completed on new directors with the outcome of those checks to be disclosed in the notice of meeting. If applicable, you should allow sufficient time for these checks (which may include police checks) to be completed.
Key steps and timeframes
The time required for preparing a notice of meeting and coordinating the mail out to shareholders is often underestimated. The following timeline may assist as a quick reference for the relevant steps (set out in further detail below):
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- Preparing the notice Depending on the number of resolutions that are expected, a prudent approach is to allow 3 to 4 weeks to prepare the notice of meeting. Some possible resolutions to consider are summarised further below.
- Meeting venue Many public companies tend to convene their AGM toward the end of November each year, which means adequate venues can be in short supply, particularly where large numbers of shareholders are expected to attend. Brisbane based companies should also be aware that the G20 Summit in November will place additional demands on venues and accommodation. You should ensure to book an appropriate venue well in advance of the preferred meeting date to avoid disappointment.
- Auditor A company’s auditor needs to be present at the AGM and available for a reasonable time for questions from the shareholders. This means auditors will be attending a number of AGMs for other public companies in October and November. You should make arrangements with your auditor early to avoid conflicts.
- ASX review For a listed company, it is likely that the notice will need to be lodged with ASX for review before it is finalised and posted to shareholders. ASX requires a minimum of five business days for its review. ASX becomes particularly busy toward the final five to six weeks of the AGM season and lodging documents early will ensure that sufficient time is provided for the ASX review.
- ASIC review Certain matters of special business, including proposed related party benefit and/or financial assistance transactions, may require the notice and other documents to be given to ASIC for review. ASIC generally has 14 days for its review. For listed companies, an additional complicating factor is ASIC’s insistence on ‘final’ signed documents being lodged, which requires ASX’s review (5 business days) to occur before lodgment with ASIC.
- Printing and postage Sufficient time also needs to be given for printing (e.g. 3 to 5 days) and postage (e.g. 2 to 3 days) and you should make appropriate arrangements with your share registry, public relations firm or printers (as required) at an early stage.
- Notice period For a listed company, 28 clear days notice is required. For an unlisted company it is 21 clear days. For clear days you do not count the day of the mail out or the last day of the notice period (so, for example, 21 clear days is actually 23 days).
In addition to the usual resolutions (financial statements and reports, and retirement, appointment and/or re-election of directors), some other possible resolutions are:
- related party benefit and/or financial assistance approvals
- increasing the directors’ fee pool, and
- pre-approval for any termination benefits for directors or key management personnel (e.g. the issue of performance rights, where such a benefit might trigger on termination in excess limits allowed by the Corporations Act).
For listed companies, also consider resolutions for:
- adoption of the remuneration report – this resolution will vary depending on whether the company has received a strike on its remuneration report at the prior AGM
- any issue of securities above the company’s 15% placement capacity (Listing Rule 7.1) or the ratification of previous allotments to refresh this capacity (Listing Rule 7.4)
- for companies outside the S&P/ASX 300 that also have a market capitalisation of $300 million or less, whether approval is sought for the additional 10% placement capacity (Listing Rule 7.1A) - this requires a special resolution, which can only be obtained at the AGM, and
- any issue of securities to directors, which requires the approval of shareholders (Listing Rule 10.11, Listing Rule 10.14 and/or related party provisions of the Corporations Act).