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Significantly, no ASX company received a second strike. Of those who received the second strike, three then received a vote to move to a spill meeting Penrice Limited, Globe International Limited and Rey Resources Limited. However, as the entire board of Rey Resources resigned after the meeting there was no need for a spill meeting to be held.
Penrice Limited is due to hold its meeting on 25 January and Globe International Limited is scheduled to meet on 6 February By the time you read this, the results of those meetings will be known. The spill resolution must outline that another meeting the spill meeting will be held. This meeting must take place within 90 days from the date of the AGM at which the company receives the second strike. This means that companies which have received a first strike need to plan for a second strike and a spill resolution, when setting the agenda for the AGM.
The agenda must include the usual resolution to approve the remuneration report and a spill resolution. The spill resolution will be conditional upon receipt of the second strike and only needs to be put to the shareholders if a company receives the second strike. Unlike the resolutions in relation to the first and second strikes, the spill resolution requires a simple majority that is more than 50 per cent of those eligible to vote to succeed.
Of course, even if a second strike is received, it does not always follow that shareholders will vote to spill the board. This is illustrated in the case of Linc. Linc had received a first strike. On 26 October , it issued its notice of meeting for the AGM to be held on 29 November at which it could receive a second strike. On the same day, it issued a separate notice of meeting for a spill meeting that would occur if the second strike was received.
On the face it, Linc had followed the process required by the Act but it poses an interesting question: But the question bears further examination.
At the later AGM there must be put to the vote a resolution the spill resolution that:. Section W then discusses the process if the spill resolution is passed, namely, the following conditions must be complied with.
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Section W 2 The company must hold the spill meeting within 90 days after the spill resolution was passed. Section W 3 Nothing in subsection 2 authorises any person to disregard:. Does a contemporaneous notice of spill meeting fit within the legislative requirements?
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In the Linc example, the proposed spill meeting was to be held on the same day as the AGM. Section V outlines the requirements for the spill meeting resolution. The resolution contained within the notice of meeting complies with these requirements. Section W 2 states that the spill meeting must be held within 90 days after the spill resolution is passed our emphasis. It also generally does not include the date of the actual meeting.
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In practice, we suggest that companies generally allow at least 31 days from the notice date to the AGM date to ensure compliance with the Act. Failure to provide a clear 28 days notice can render the meeting invalid.
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This notice period of up to seven weeks before a general meeting acts to ensure that the company is given adequate notice from an eligible nominee setting out their nomination as a director candidate for election at that meeting. In practice, this means that a notice of meeting cannot be produced or issued until that notice period has passed.
Furthermore, for a spill meeting to be called, the shareholders must have passed the resolution to hold the spill meeting in accordance with s V of the Act. A spill meeting cannot be called until the resolution is passed. In our view, the notice period requirements would therefore be triggered by the passing of that resolution by the shareholders and be counted after the date of the notice of spill meeting.
This means that, again in our view, the spill meeting cannot be held before the appropriate notice of meeting is given, which in the case of directors nominations are least 30 business days or six weeks before the meeting. While it is strongly arguable that the legislation has unintended consequences in that unhappy shareholders are given the means to vent their displeasure about matters which may have nothing to with remuneration, we are reminded that the purpose of the two strikes reforms were to provide an additional level of accountability for directors and increased transparency for shareholders.
The Explanatory Memorandum, which accompanied the reform legislation, states that a company will need to comply with any minimum notice period so as to ensure that shareholder nominated candidates can seek endorsement at the spill meeting.
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A contemporaneous notice of spill meeting provides no opportunity for members to nominate new directors. If indeed there is the potential for confusion or a loophole in the legislation, a simple solution could be to clarify s W 2 with minor amendments to the Act. Such amendments would provide clarity in relation to time frames of providing the notice of meeting for the spill meeting as well as ensuring the appropriate level of shareholder participation and corporate transparency is ensured.
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