Constitutions which make it hard for external board tilts

Arrium: the old Onesteel attempted to reduce the maximum board size to the current number on the board of 8, with provision to go above by way of casual vacancy. See p7 of the 2011 notice of meeting. This was smashed in a poll with 71.5% against which is one of the biggest rejections of a board-endorsed constitutional change ever seen in Australia. See voting results.

AWE: an attempt in 2011 to lower the maximum from 10 to the then current number of 7 and introduce some unspecified nomination requirements (see notice of meeting). Resolution was withdrawn with a majority of the proxy votes against.

Computershare: introduced a constitutional requirement that external board candidates needed support from 10% of shareholders in 2001 but this was later removed.

Endeavour Group: spells out that candidates must have received regulatory clearance before it can be put to the vote, something the Endeavour Group board did against Bill Wavish in 2023.

Healthscope: constitution outlines a range of 3-8 directors and it currently has 6 directors. Nominations must be 45-90 days before AGM and with 100 nominating shareholders like with a resolution.

Macquarie Group: adopted a new constitution in 2010 with a low cap of 10 with discretion for the board to go above but enforced the soft cap when challenged in 2015. See Crikey story. They then also ran a big fit and proper campaign against Stephen Mayne in 2015, still reserving the right not to put the resolution just minutes before the AGM. See this wrap.

Medibank Private: p17 of constitution outlines a range of 5-8 directors and it currently has 8 directors. However, Abbott Government slipped in the following barrier to entry in article 11.6 on page 18: "a person is not eligible for election as a Director at a general meeting of the Company unless not less than the number of members specified in the Corporations Act as being required to give notice of a requisitioned resolution at a general meeting of the Company have, at least 45 business days before the general meeting (but no more than 90 business days before the meeting), given the Company at its Registered Office". See Crikey piece from 2015.

MA Financial Group (formerly Moelis Australia): boutique investment bank which floated in April 2017 with a Freehills advised constitution which outlined a range of 4-7 directors and requires an external candidate for the board to gather 100 signatures or 5% of the stock.

Qantas: constitution has some unique elements on p28. Range is 3 to whatever the board sets and external candidates must have 100 signatures or 5% of the stock behind them. They've never had an external candidate for the board.

Orica: failed in an attempt to change its constitution in 2010 and withdrew the resolution 3 days before the AGM, citing objections from shareholders. The change would have introduced a board size range between 3 and 10, or any number determined by the board. This is the old no vacancy trick where a challenging candidate is told there is no room in the inn. See notice of meeting.

Regis Healthcare: constitution outlines a range of 3-8 directors and it currently has 6 directors. Nominations must be 45-90 business days before AGM and supported by at least 100 shareholders like an AGM resolution.

South32: demerged from BHP Billiton in 2015 with a constitution which requires external candidates to be supported by more than 100 shareholders or 5% of the stock, just to nominate. See Crikey story.

St Barbara Mines: reduced maximum board size to current number on the board.

The Lottery Corporation: slipped the old 100 signatures requirement into its constitution when demerged by Tabcorp in 2022. See chair Steven Gregg respond to a question about this at the inaugural 2022 AGM. Watch video via Twitter.

Toll Holdings: proposed a new constitution in 2010 which would have required candidates to be supported by more than 100 shareholders or 5% of the stock, just to nominate. See Crikey story. There was no pre-AGM withdrawal of the resolution but these proxy result show that it wasn't formally put and there was a 40% against vote, when it required approval from 75% of voted stock.

Treasury Wine Estates: was demerged by the David Crawford-chaired Foster's in 2011 with a constitution just like South32, which required any board challenger to be supported by 100 shareholders or 5% of the issued capital. See clause 26.4 of the constitution.

Wotif: founder Graeme Wood pushed through a constitutional change to reduce maximum board size from 10 to just 6. See farcical rationale on p11 of notice of meeting. Was approved with 125m proxies in favour and 30m against. No poll, just a show of hands. See results.

Copyright © 2023 The Mayne Report. All rights reserved

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