Preparing for the 2023 AGM and reporting season
As the 2023 AGM and reporting season gets underway, we give an overview of the key changes affecting listed and AIM companies.
Although 2022 saw a steady increase in the use of hybrid meetings (particularly by FTSE 100 companies), most companies chose to return to in person physical meetings. Alongside physical meetings, companies continue to use facilities allowing shareholders to either submit questions in advance of, or during, the meeting. This approach is encouraged in the FRC’s Good Practice Guidance for Company Meetings which aims to assist companies in improving shareholder participation in meetings. The guidance contains suggested actions and advice for broadening shareholder engagement before, during and after the meeting.
PRE-EMPTION DISAPPLICATION RESOLUTIONS
The Pre-Emption Group published a revised Statement of Principles at the end of 2022 in response to the UK Secondary Capital Raising Review. The revised Principles double the standard pre-emption disapplication thresholds from 5% of issued share capital for general purposes plus 5% in connection with an acquisition or specified capital investment to 10% for each category. They also introduce a new concept of a follow-on offer which permits companies to seek further authority to disapply pre-emption rights for follow-on offers of up to 2% of the issued share capital. The revised Principles are supported by the Pensions and Lifetime Savings Association, the Investment Association, Institutional Shareholder Services and Glass Lewis. You should also note that the Pre-Emption Group has updated its template resolutions and you should consider using these updated resolutions to take advantage of the increased routine disapplication authorities.
Diversity remains a key area of focus for shareholders with additional diversity reporting required of listed companies in respect of financial years beginning on or after 1 April 2022. Companies with accounting periods beginning on or after 1 January 2022 are, however, encouraged to meet these disclosure requirements voluntarily. The additional reporting requires companies to include a comply or explain statement on whether the company has achieved certain board diversity targets and to provide data on sex or gender identity and ethnic diversity of the company’s board and executive management team, together with an explanation of how this data was collected.
Guidance in the Listing Rules indicates that companies may also wish to include additional diversity disclosures in their annual reports including:
- a brief summary of any key policies, procedures and processes, and any wider context, that they consider contributes to improving he diversity of their board and executive management;
- any mitigating factors or circumstances which make achieving diversity more challenging;
- any risks they foresee in meeting or continuing to meet the targets in the next accounting period; and
- any plans to improve board diversity.
Also, with effect from accounting periods commencing on or after 1 April 2022, the corporate governance statement requirements regarding board diversity policy disclosures are extended to cover diversity aspects such as ethnicity, sexual orientation, disability and socio-economic background (in addition to age, gender or educational and professional background) and to require an explanation of how this policy applies to the remuneration, audit and nomination committees.
Given the current concerns regarding the cost of living, shareholders are likely to focus on directors’ remuneration in 2023. Any increases to directors’ remuneration need to be carefully balanced against remuneration increases given to the wider workforce and company performance. Investors will also pay careful attention to any discretion exercised in relation to vesting decisions relating to options awarded during the COVID-19 pandemic when share prices were lower. Investors expect a clear explanation of the consideration given to the impact of potential windfall gains in these circumstances. Other areas of focus for investors include alignment of executive and workforce pension contributions and the use of ESG performance measures for executives.
For financial years beginning on or after 6 April 2022, certain companies, including listed and AIM companies, are required by the Companies Act 2006 to include mandatory climate related disclosures in their annual reports. These reporting requirements sit alongside the Listing Rules requirements which came into force for premium list companies with effect from financial periods commencing on or after 1 January 2021 and for standard list companies a year later (meaning 2023 is the first year of reporting under these requirements for standard list companies).
Both reporting regimes are based on the TCFD’s recommendations and recommended disclosures so there is a significant amount of overlap between the requirements. BEIS’s non-binding guidance indicates that disclosure in a manner consistent with all of the TCFD recommendations and recommended disclosures in compliance with the Listing Rules is likely to satisfy the company law disclosure recommendations. The FCA has recently issued guidance on TCFD reporting in its Primary Market Bulletin 42 to assist companies with making its TCFD disclosures. IVIS will ‘amber top’ all companies that do not make adequate disclosure against all four pillars of TCFD.
Listed companies are now required to produce their annual report and accounts in XHTML web browser format. For accounting periods beginning on or after 1 January 2022, they are also required to electronically tag notes to the accounts in accordance with one of the taxonomies approved for use by the FCA.
As part of the government’s proposals to restore trust in corporate governance, the FRC proposes to issue a revised Corporate Governance Code by the end of 2023, to apply to accounting periods commencing on or after 1 January 2024, which will strengthen reporting and provide a framework for improved internal controls. The revised Code will be supplemented by updates to the FRC’s Guidance on Audit Committees, Guidance on Board Effectiveness and Guidance on Risk Management, Internal Control and Related Financial and Business Reporting.
For further information or advice on any of the matters discussed in this publication, or to obtain a copy of our annual report and accounts checklist for officially listed or AIM companies, please get in touch with your usual Corporate contact at DLA Piper.