Most listed entities and unlisted public companies will be holding their Annual General Meetings (AGMs) by 30 November 2023.

Key points

• Prerequisites boards should ensure are completed before convening an AGM
• When does the notice of AGM need to be send to members?
• Tips on preparing resolutions in a notice of AGM
• Documents to be lodged with ASX in connection with AGMs
• Upcoming deadlines for periodic reports

What the board needs to do before the AGM

There are a number of important prerequisites that the board should ensure are completed before convening the AGM such as:

• preparing and sending a notice of AGM to members of the company;
• preparing the annual report including the financial report and directors’ report;
• determining the directors who are required to retire at the AGM and who will stand for election or re-election at the AGM;
• considering whether some provisions in the constitution may need approval, e.g. requirements which need to be met if offers are made under a proportional takeover bid for shares as after three years, these provisions in a constitution are deemed to be deleted; and
• considering whether any special business that can be dealt with at the AGM such as amendments to the constitution to establish or increase the amount for non-executive director’s remuneration, approval for change of auditor and additional placement capacity under the ASX Listing Rules.

When does the notice of AGM need to be sent to members?

The timeline for providing the notice of AGM to members will dictate the date of the AGM.  The notice period will very much depend on statutory requirements and the company’s constitution. There is a minimum of 21 days’ notice to members of an unlisted public company and a minimum of 28 days’ notice to members of a listed company plus days required for service by post.

Tips on preparing resolutions in a notice of AGM

Resolutions in the notice of AGM should be clear, concise and accurate and where resolutions are bundled, the notice of AGM will need to clearly set out the primary purpose of the bundled resolution and the material implications of each resolution in the bundle. 

Under the ASX Listing Rules, certain categories of resolutions must be dealt with as separate items of business (and cannot be bundled) including, but not limited to, the issue of options with participation rights, approval of an issue under an employee incentive scheme, approval of a buy-back, approval of the giving of financial assistance and approval to appoint or remove directors.

Documents to be lodged with ASX in connection with AGMs

The company should lodge various documents for an AGM with the Australian Securities Exchange (ASX) including:

• a draft notice of AGM which must be reviewed by ASX before they are sent to members - ASX will ordinarily take five business days to advise whether it objects to a draft notice but may extend that deadline if it needs further time;
• the notice of AGM, a proxy form, and any other accompanying documents (which should be sent to ASX at the same time the documents are sent to members); and
• a notification of the date of the AGM at least five business days before the closing date for receipt of director nominations.

ASX recommends that listed companies allow sufficient time when they submit their draft notice of AGM to ASX for review.  This is particularly important if there are a number of resolutions or complex transactions to be considered.  If a listed company requires any waiver from an ASX Listing Rule in connection with the notice of AGM, please allow additional time to obtain the waiver.  Subject to the requirements under the specific ASX Listing Rule, ASX may waive the Listing Rule or do so on conditions.  While ASX aims to advise an applicant for a waiver of its decision within 10-20 business days, ASX may not be able to meet these timeframes.  The time it takes ASX to process an application for a waiver will depend on the quality and completeness of the application.

Upcoming deadlines for periodic reports

Listed entities should be mindful of the upcoming deadlines for periodic reports, the most pressing being:

• preliminary final reports (June year-end) – Thursday 31 August 2023
• statutory half year reports (except mining entities) (December year-end) – Thursday 31 August 2023
• an entity that has a dual listing and has CDIs issued over quoted securities must also lodge an Appendix 4A within 5 business days of the end of each month.

Listed entities that have not already done so should make sure annual listing fees have been paid to ASX for FY2024 and that relevant documents are lodged with ASX on time to avoid automatic suspension of the entity’s securities under the Listing Rules.

If you require further advice in relation to Notices of AGM, AGMs, and board responsibilities prior to the AGM or assistance drafting your Notice of AGM and any resolutions, please do not hesitate to reach out to our Dentons corporate team.