ASX recently published a Listed@ASX Compliance Update with a focus on observations and practical guidance for listed entities when preparing notices of meetings and other meeting materials. This guidance supplements ASX’s previously published observations from the 2023 AGM season.
In this article, we unpack some of the key guidance provided by ASX across both updates.
Meeting materials that contain an approval under the Listing Rules are required to be provided (in draft) to ASX for its review, with ASX generally requiring five business days to complete its review. Relevantly:
ASX has flagged that, because waivers from meeting-related requirements are often conditional on additional disclosure being made in the notice of meeting, if an entity finalises its meeting materials prior to any required waivers being granted, the entity risks being unable to comply with the conditions of the waiver (subject to making supplementary disclosure, discussed below).
Resolutions seeking approval for an issue of securities (e.g. under Listing Rule 7.1 or 7.4) generally require the persons to whom the securities were or are to be issued to be disclosed, or the basis upon which those persons were or will be identified.
Where the identity of the relevant persons is material to investors, ASX considers that their identity should be specifically disclosed (rather than identifying them by reference to a class of persons) – this will be the case particularly where the person is (or is an associate of) a related party, a member of the key management personnel, a substantial holder or an advisor, and they are being issued more than 1 per cent of the current issued capital (see Guidance Note 21).
Additional guidance on securities-related resolutions include:
Where there is a material change to information included in a notice of meeting, or materially new information arises after dispatch of the meeting materials, supplementary disclosure may be required. Both ASX and ASIC generally consider that shareholders should receive any supplementary information at least 10 days before the meeting – with anything less requiring either an adjournment or a new meeting to be called.
If, after dispatch of the meeting materials, an additional resolution under the Listing Rules is proposed (such that less than 28 days’ notice of the resolution is given), ASX will require that the entity provides it with satisfactory evidence that the new resolution will be legally valid if it is passed. At a minimum, this will require the entity to obtain advice from suitably qualified external legal advisors.
The Federal Government recently released the final report into the statutory review of the meetings and documents amendments. The review found that some stakeholders continue to have concerns that virtual-only meetings might diminish the level and effectiveness of communication between management and members, and recommended that virtual-only meetings for listed entities should continue to be allowed only if expressly permitted by the entity’s constitution.
The Government is considering its response to the recommendations – although we expect that the recommendations will generally be followed.
For assistance with meeting-related matters, including the use of hybrid or virtual-only meeting technology, contact a member of our Board Advisory & Governance team.
While all eyes have been on the recent introduction of the privacy reform Bill to Parliament, there have been a number of other updates that continue to inform the shifting patterns of opportunity,...
New legislation requiring climate-related financial disclosure (CRFD) in annual reports commenced on 18 September 2024. A “sustainability report” will now be mandatory for very large, large and...
The spring edition of our Above Board update covers need-to-know developments in corporate governance and board practice for the quarter.