EXHIBIT 3.31
ALLEN ALLEN & HEMSLEY
DX: 105
SYDNEY NSW
Certificate of the Registration
of a Company
Corporations Law Paragraph 1274(2)(b)
This is to certify that
FORTUITY PTY. LTD.
Australian Company under 007 148 683
is taken to be registered as a company under the
Corporations Law of Victoria
The company is limited by shares.
The company is a proprietary company.
The day of commencement of registration is the sixth day of February 1989.
Issued by the
Australian Securities and Investments Commission on
this twenty-eighth day of October, 1999.
----------------------------------------------
A delegate of the Australian Securities and Investments Commission
COMPANIES (VICTORIA) CODE
COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION
OF
FORTUITY PTY LTD
1. The name of the Company is Fortuity Pty Ltd.
2. The nominal capital of the Company is $20,000,000 divided into 18,000,000
ordinary shares of one dollar each, and 2,000,000 "B" Class shares of one
dollar each.
3. The liability of the members is limited.
WE, the several persons whose names, addresses and occupations are subscribed,
are desirous of being formed into a Company in pursuance of this Memorandum of
Association, and we respectively agree to take the number of shares in the
capital on the Company set opposite our respective names:-
- --------------------------------------------------------------------------------
Names, addresses & Signatures of Subscribers No. of shares taken by
Occupation of Subscribers each Subscriber
- --------------------------------------------------------------------------------
Mark Nicholas CERCHE
8 Burnett Street
St Kilda
SOLICITOR M. Cerche One
Graeme Dean John HENSHAW
334 Wattletree Road
East Malvern
SOLICITOR G. Henshaw One
- --------------------------------------------------------------------------------
DATED this 2nd day of February 1989.
Witness to the above signatures: N. McKenna
119 Miller Street
North Fitzroy, Victoria
LAW CLERK
...................................
N. McKenna
COMPANIES (VICTORIA) CODE
COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
OF
FORTUITY PTY LTD
1. The regulations contained in Table A in Schedule 3 to the Companies
(Victoria) Code ("Table A") shall apply to the Company save insofar as
they are expressly excluded or modified by these Articles.
2. The term "regulations" when used herein or in Table A shall mean Table A
as modified hereby. Any reference to an Article by number is a reference
to the Article of that number herein and any reference to a regulation by
number is a reference to the regulation of that number in Table A.
3. a. Regulations 4(3), 21, 38, 57 to 62 (inclusive), 64, 65, 71 and 79(2)
shall be excluded.
b. Regulation 12 shall be modified by deleting therefrom ", except that
no call shall exceed one-quarter of the sum of nominal values of the
shares or be payable earlier than one month from the date fixed for
the payment of the last preceding call".
c. Regulation 41(2) shall be modified by deleting therefrom ", the
election of directors in the place of those retiring".
4. The number of directors shall not be less than two.
5. a. The first directors shall be appointed in writing by the subscribers
to the Memorandum of Association.
b. The holder or holders for the time being of a majority of the issued
shares in the capital of the Company conferring the right to vote at
all general meetings of the Company may at any time and from time to
time appoint any person to be a director to fill a casual vacancy or
as an addition to the existing directors or remove a director from
office.
c. The directors may at any time and from time to time appoint any person
to be a director to fill a casual vacancy or as an addition to the
existing directors.
d. Any appointment or removal under paragraph (b) may be made at any time
and shall be in writing signed by or on behalf of the holder or
holders for the time being of a majority
3
of the issued shares in the capital of the Company conferring the
right to vote as aforesaid. Any such appointment or removal shall take
effect immediately upon delivery of the instrument of appointment or
removal to the registered office of the Company.
e. A director need not hold any shares in the Company as a qualification
for office. A director shall be entitled to attend and be heard at
general meetings notwithstanding that he may not hold any shares in
the Company.
f. A director shall hold office subject only to Article 5(b) but his
office shall be vacated if he:-
i) ceases to be a director by virtue of the Code;
ii) becomes bankrupt or makes any arrangement or composition with
his creditors generally;
iii) becomes prohibited from being a director by reason of any order
under the Code;
iv) becomes of unsound mind or a person whose person or estate is
liable to be dealt with in any way under the laws relating to
mental health;
v) resigns his office by notice in writing to the Company.
6. A director appointed pursuant to Regulation 79(1) shall be subject to
the same provisions as to resignation and removal as the other
directors of the Company and if he shall cease to hold the office of
director for any cause whatever he shall ipso facto and immediately
cease to be a managing director.
7. a. No director shall be disqualified by his office from contracting
or entering into any arrangement with the Company either as
vendor, purchaser or otherwise nor shall any such contract or
arrangement or any contract or arrangement entered into by or on
behalf of the Company in which any director shall in any way be
interested be avoided nor shall any director so contracting or
being so interested be liable to account to the Company for any
profit realised by any such contract or arrangement by reason of
such director holding that office or of the fiduciary relation
thereby established. Every director shall observe the provisions
of Section 228 of the Code relating to the declaration of the
interests of the directors in contracts or proposed contracts with
the Company or of any office or property held by the directors
which might create duties or interests in conflict with their
duties or interests as directors. A director may as a director
vote in respect of any contract or arrangement in which he is so
interested as aforesaid.
4
b. A director may hold any other office or place of profit under the
Company (except that of auditor) in conjunction with his office of
director and on such terms as to remuneration or otherwise as the
board of directors shall approve. A director may be or become a
director of or hold any other office or place of profit under any
corporation promoted by the Company or in which it may be
interested whether as a vendor or shareholder or otherwise and no
such director shall be accountable for any benefits received as a
director or member of or holder of any other office or place or
profit under such corporation.
8. a. Regulation 86 shall be excluded and the following substituted
therefrom -
"86. 1. The directors may from time to time declare a dividend
to be paid to the members entitled thereto.
2. No dividend shall be payable except out of profits and
the declaration of the directors as to the amount of the
net profits shall be conclusive."
b. Regulation 89(1) shall be modified by deleting the word
"recommending" and substituting therefore the word "declaring".
c. Regulation 92(1) shall be excluded and the following substituted
therefor -
"92. 1. When declaring a dividend, the directors may direct
payment of such dividend wholly or in part by the
distribution of specific assets or documents of title
and, in particular, of paid up shares, debentures or
debenture stock of the Company or any other corporation
or in any one or more of such ways."
9. The Company is a proprietary company and accordingly:-
a. The right of the members to transfer shares in the Company is
restricted in that the directors may at any time in their absolute
discretion decline to register any transfer of shares.
b. The number of members of the Company counting joint holders of
shares as one person and not counting any person in the employment
of the Company or of a subsidiary of the Company or any person
who, while previously in the employment of the Company or of a
subsidiary of the Company was, and thereafter has continued to be,
a member of the Company is limited to not more than fifty.
c. Any invitation to the public to subscribe for, and any offer to
the public to accept subscriptions for, any shares in, or
debentures of, the Company is prohibited.
5
d. Any invitation to the public to deposit money with, and any offer
to the public to accept deposits of money with, the Company for
fixed periods or payable at call, whether bearing or not bearing
interest, is prohibited.
10. If at any time the capital of the Company is divided into different
classes of shares, the Board may (subject to the rights of, or any
restrictions on, the holder or holders of any shares created by or
arising under any special agreement relating to dividends) declare
dividends in respect of any such class at a different rate to those
declared in respect of any other class or to the exclusion of any
other class.
SIGNATURE OF SUBSCRIBERS:
........................................
M. Cerche
........................................
G. Henshaw
WITNESS TO THE ABOVE SIGNATURES:
N. McKenna
119 Miller Street
North Fitzroy Vic
........................................
N. McKenna
LAW CLERK
DATED this 2nd day of February 1989.
SCHEDULE 2
(Repealed by No. 108 of 1983.s.125.)
SCHEDULE 3
Sections 5 and 75
TABLE A
REGULATIONS FOR MANAGEMENT OF A COMPANY
LIMITED BY SHARES
Interpretation
1. (1) In these regulations--
"Code" means the Companies ([name of State)] Code(1)
"seal" means the common seal of the company and includes any official
seal of the company;
"secretary" means any person appointed to perform the duties of a
secretary of the company.
(2) Section 40 of the Companies and Securities (Interpretation
and Miscellaneous Provisions) ([name of State]) Code2 applies in
relation to these regulations as if they were an instrument made by an
authority under a power conferred by the Companies ([name of State])
Code3 as in force on the date on which these regulations became
binding on the company.
(3) An expression used in a particular Part or Division of the
Code4 that is given by that Part or Division a special meaning for the
purposes of that Part or Division has, in any of these regulations
that deals with a matter dealt with by that Part or Division, unless
the contrary intention appears, the same meaning as in that Part or
Division.
- ----------
(1) A.C.T.: "'Act' means the Companies Act 1981".
(2) A.C.T.: "Companies and Securities (Interpretation and Miscellaneous
Provisions) Act 1980".
(3) A.C.T.: "Companies Act 1980".
(4) A.C.T.: "Act".
7
Share Capital and Variation of Rights
2. Without prejudice to any special rights previously conferred on the
holders of any existing shares or class of shares but subject to the Code(5),
shares in the company may be issued by the directors and any such share may be
issued with such preferred, deferred or other special rights or such
restrictions, whether with regard to dividend, voting, return of capital or
otherwise, as the directors, subject to any resolution, determine.
3. Subject to the Code(6), any preference shares may, with the sanction of
a resolution, be issued on the terms that they are, or at the option of the
company are liable, to be redeemed.
4. (1) If at any time the share capital is divided into different classes
of shares, the rights attached to any class (unless otherwise provided by the
terms of issue of the shares of that class) may, whether or not the company is
being wound up, be varied with the consent in writing of the holders of
three-quarters of the issued shares of that class, or with the sanction of a
special resolution passed at a separate meeting of the holders of the shares of
the class.
(2) The provisions of these regulations relating to general meetings apply
so far as they are capable of application and mutatis mutandis to every such
separate meeting except that--
(a) a quorum is constituted by 2 persons who, between them, hold or
represent by proxy one-third of the issued shares of the class; and
(b) any holder of shares of the class, present in person or by proxy,
may demand a poll.
5. (1) The company may exercise the power to make payments by way of
brokerage or commission conferred by the Code(7) in the manner provided by the
Code(8).
(2) Payments by way of brokerage or commission may be satisfied by the
payment of cash, by the allotment of fully or partly paid shares or partly by
the payment of cash and partly by the allotment of fully or partly paid shares.
History
Reg. 5 substituted by No. 108 of 1983.s.126.
- ----------
(5) A.C.T.: "Act".
(6) A.C.T.: "Act".
(7) A.C.T.: "Act".
(8) A.C.T.: "Act".
8
6. (1) Except as required by law, the company shall not recognize a person
as holding a share upon any trust.
(2) The company is not bound by or compelled in any way to recognize
(whether or not it has notice of the interest or rights concerned) any
equitable, contingent, future or partial interest in any share or unit of a
share or (except as otherwise provided by these regulations or by law) any other
right in respect of a share except an absolute right of ownership in the
registered holder.
7. (1) A person whose name is entered as a member in the register of
members is entitled without payment to receive a certificate in respect of the
shares under the seal of the company in accordance with the Code(9) but, in
respect of a share or shares held jointly by several persons, the company is not
bound to issue more than one certificate.
(2) Delivery of a certificate for a share to one of several joint holders
is sufficient delivery to all such holders.
Lien
8. (1) The company has a first and paramount lien on every share (not
being a fully paid share) for all money (whether presently payable or not)
called or payable at a fixed time in respect of that share.
(2) The company also has a first and paramount lien on all shares (other
than fully paid shares) registered in the name of a sole holder for all money
presently payable by him or his estate to the company.
(3) The directors may at any time exempt a share wholly or in part from
the provisions of this regulation.
(4) The company's lien (if any) on a share extends to all dividends
payable in respect of the share.
9. (1) Subject to sub-regulation (2), the company may sell, in such manner
as the directors think fit, any shares on which the company has a lien.
(2) A share on which the company has a lien shall not be sold unless--
(a) a sum in respect of which the lien exists is presently payable; and
(b) the company has, not less than 14 days before the date of the sale,
given to the registered holder for the time being of the share or the
person entitled to the share by
- ----------
(9) A.C.T.: "Act".
9
reason of the death or bankruptcy of the registered holder a notice in
writing setting out, and demanding payment of, such part of the amount
in respect of which the lien exists as is presently payable.
10. (1) For the purpose of giving effect to a sale mentioned in regulation
9, the directors may authorize a person to transfer the shares sold to the
purchaser of the shares.
(2) The company shall register the purchaser as the holder of the shares
comprised in any such transfer and he is not bound to see to the applicable of
the purchase money.
(3) The title of the purchaser to the shares is not affected by any
irregularity or invalidity in connection with the sale.
11. The proceeds of a sale mentioned in regulation 9 shall be applied by
the company in payment of such part of the amount in respect of which the lien
exists as is presently payable, and the residue (if any) shall (subject to any
like lien for sums not presently payable that existed upon the shares before the
sale) be paid to the person entitled to the shares at the date of the sale.
Calls on Shares
12. (1) The directors may make calls upon the members in respect of any
money unpaid on the shares of the members (whether on account of the nominal
value of the shares or by way of premium) and not by the terms of issue of those
shares made payable at fixed times.
(2) Each member shall, upon receiving at least 14 days' notice specifying
the time or times and place of payment, pay to the company at the time or times
and place so specified the amount called on his shares.
(3) The directors may revoke or postpone a call.
13. A call shall be deemed to have been made at the time when the
resolution of the directors authorizing the call was passed and may be required
to be paid by installments.
14. The joint holders of a share are jointly and severally liable to pay
all calls in respect of the share.
15. If a sum called in respect of a share is not paid before or on the day
appointed for payment of the sum, the person from whom the sum is due shall pay
interest on the sum from the day appointed for payment of the sum to the time of
actual payment at such rate not exceeding 6% per annum as the directors
determine, but the directors may waive payment of that interest wholly or in
part.
10
16. Any sum that, by the terms of issue of a share, becomes payable on
allotment or as a fixed date, whether on account of the nominal value of the
share or by way of premium, shall for the purposes of these regulations be
deemed to be a call duly made and payable on the date on which by the terms of
issue the sum becomes payable, and, in case of non-payment, all the relevant
provisions of these regulations as to payment of interest and expenses,
forfeiture or otherwise apply as if the sum had become payable by virtue of a
call duly made and notified.
17. The directors may, on the issue of shares, differentiate between the
holders as to the amount of calls to be paid and the times of payment.
18. (1) The directors may accept from a member the whole or a part of the
amount unpaid on a share although no part of that amount has been called up.
(2) The directors may authorize payment by the company of interest
upon the whole or any part of an amount so accepted, until the amount becomes
payable, at such rate, not exceeding the prescribed rate, as is agreed upon
between the directors and the member paying the sum.
(3) For the purposes of sub-regulation (2), the prescribed rate of
interest is--
(a) if the company has, by resolution, fixed a rate -- the rate so fixed;
and
(b) in any other case -- 8% per annum.
Transfer of Shares
19. (1) Subject to these regulations, a member may transfer all or any of
his shares by instrument in writing in any usual or common form or in any other
form that the directors approve.
(2) An instrument of transfer referred to in sub-regulation (1)
shall be executed by or on behalf of both the transferor and the transferee.
(3) A transferor of shares remains the holder of the shares
transferred until the transfer is registered and the name of the transferee is
entered in the register of members in respect of the shares.
20. The instrument of transfer must be left for registration at the
registered office of the company, together with such fee (if any) not exceeding
$1.00 as the directors require, accompanied by the certificate of the shares to
which it relates and such other information as the directors properly require to
show the right of the transferor to make the transfer, and thereupon the company
shall, subject to the powers vested in the directors by these regulations,
register the transferee as a shareholder.
21. The registration of transfers may be suspended at such times and for
such periods as the directors from time to time determine not exceeding in the
whole 30 days in any year.
11
Transmission of Shares
22. In the case of the death of a member, the survivor or survivors, where
the deceased was a joint holder, and the legal personal representatives of the
deceased where he was a sole holder, shall be the only person recognized by the
company as having any title to his interest in the shares, but this regulation
does not release the estate of a deceased joint holder from any liability in
respect of a share that had been jointly held by him with other persons.
23. (1) Subject to the Bankruptcy Act 1966, a person becoming entitled to
a share in consequence of the death or bankruptcy of a member may, upon such
information being produced as is properly required by the directors, elect
either to be registered himself as holder of the share or to have some other
person nominated by him registered as the transferee of the share.
(2) If the person becoming entitled elects to be registered himself, he
shall deliver or send to the company a notice in writing signed by him stating
that he so elects.
(3) If he elects to have another person registered, he shall execute a
transfer of the share to that other person.
(4) All the limitations, restrictions and provisions of these rules
relating to the right to transfer, and the registration of transfer of, shares
are applicable to any such notice of transfer as if the death or bankruptcy of
the member had not occurred and the notice or transfer were a transfer signed by
that member.
24. (1) Where the registered holder of a share dies or becomes bankrupt,
his personal representative or the trustee of his estate, as the case may be,
is, upon the production of such information as is properly required by the
directors, entitled to the same dividends and other advantages, and to the same
rights (whether in relation to meetings of the company, or to voting or
otherwise), as the registered holder would have been entitled to if he had not
died or become bankrupt.
(2) Where 2 or more persons are jointly entitled to any share in
consequence of the death of the registered holder, they shall, for the purpose
of these regulations, be deemed to be joint holders of the share.
Forfeiture of Shares
25. (1) If a member fails to pay a call or installment of a call on the
day appointed for payment of the call or installment, the directors may, at any
time thereafter during such time as any part of the call or installment remains
unpaid, serve a notice on him requiring payment of so much of the call or
installment as is unpaid, together with any interest that has occurred.
12
(2) The notice shall name a further day (not earlier than the
expiration of 14 days from the date of service of the notice) on or before which
the payment required by the notice is to be made and shall state that, in the
event of non-payment at or before the time appointed, the shares in respect of
which the call was made will be liable to be forfeited.
26. (1) If the requirements of a notice served under regulation 26 are not
complied with, any share in respect of which the notice has been given may at
any time thereafter, before the payment required by the notice has been made, be
forfeited by a resolution of the directors to that effect.
(2) Such a forfeiture shall include all dividends declared in respect of
the forfeited shares and not actually paid before the forfeiture.
27. A forfeited share may be sold or otherwise disposed of on such terms
and in such manner as the directors think fit, and, at any time before a sale or
disposition, the forfeiture may be cancelled on such terms as the directors
think fit.
28. A person whose shares have been forfeited ceases to be a member in
respect of the forfeited shares, but remains liable to pay to the company all
money that, at the date of forfeiture, was payable by him to the company in
respect of the shares (including interest at the rate of 8% per annum from the
date of forfeiture on the money for the time being unpaid if the directors think
fit to enforce payment of the interest), but his liability ceases if and when
the company receives payment in full of all the money (including interest) so
payable in respect of the shares.
29. A statement in writing declaring that the person making the statement
is a director or a secretary of the company, and that a share in the company has
been duly forfeited on a date stated in the statement, is prima facie evidence
of the facts stated in the statement as against all persons claiming to be
entitled to the share.
30. (1) The company may receive the consideration (if any) given for a
forfeited share on any sale or disposition of the share and may execute a
transfer of the shares in favour of the person to whom the share is sold or
disposed of.
(2) Upon the execution of the transfer, the transferee shall be registered
as the holder of the share and is not bound to see to the application of any
money paid as consideration.
(3) The title of the transferee to the share is not affected by any
irregularity or invalidity in connection with the forfeiture, sale or disposal
of the share.
31. The provisions of these regulations as to forfeiture apply in the case
of non-payment of any such that, by the terms of issue of a share, becomes
payable at a fixed time, whether on account of the nominal value of the share or
by way of premium, as if that sum had been payable by virtue of a call duly made
and notified.
13
Conversion of Shares into Stock
32. The company may, by resolution, convert all or any of its paid up
shares into stock and re-convert any stock into paid up shares of any nominal
value.
33. (1) Subject to sub-regulation (2), where shares have been converted
into stock, the provisions of these rules relating to the transfer of shares
apply, so far as they are capable of applicable, to the transfer of the stock or
of any part of the stock.
(2) The directors may fix the minimum amount of stock transferable and
restrict or forbid the transfer of fractions of that minimum, but the minimum
shall not exceed the aggregate of the nominal values of the shares from which
the stock arose.
34. (1) The holders of stock have, according to the amount of the stock
held by them, the same rights, privileges and advantages as regards dividends,
voting at meetings of the company and other matters as they would have if they
held the shares from which the stock arose.
(2) No such privilege or advantage (except participation in the dividends
and profits of the company and in the property of the company on winding up)
shall be conferred by any amount of stock that would not, if existing in shares,
have conferred that privilege or advantage.
35. The provisions of these regulations that are applicable to paid up
shares apply to stock, and references in those provisions to share and
shareholder shall be read as including references to stock and stockholder,
respectively.
Alteration of Capital
36. The company may by resolution--
(a) increase its authorized share capital by the creation of new shares
of such amount as is specified in the resolution;
(b) consolidate and divide all or any of its authorized share capital
into shares of larger amount than its existing shares;
(c) subdivide all or any of its shares into shares of smaller amount
than is fixed by the memorandum but so that in the subdivision the
proportion between the amount paid and the amount (if any) unpaid on
each such share of a smaller amount is the same as it was in the
case of the share from which the share of a smaller amount is
derived; and
(d) cancel shares that, at the date of the passing of the resolution,
have not been taken or agreed to be taken by any person or have been
forfeited and reduce its authorized share capital by the amount of
the shares so cancelled.
14
37. Subject to the Code(10), the company may, by special resolution,
reduce its share capital, any capital redemption reserve fund or any share
premium account.
General Meetings
38. Any director may whenever he thinks fit convene a general meeting.
39. (1) A notice of a general meeting shall specify the place, the day and
the hour of meeting and, except as provided by sub-regulation (2), shall state
the general nature of the business to be transacted at the meeting.
(2) It is not necessary for a notice of an annual general meeting to state
that the business to be transacted at the meeting includes the declaring of a
dividend, the consideration of accounts and the reports of the directors and
auditors or the appointment and fixing of the remuneration of the auditors.
Proceedings at General Meetings
40. (1) No business shall be transacted at any general meeting unless a
quorum of members is present at the time when the meeting proceeds to business.
(2) For the purpose of determining whether a quorum is present, a person
attending as a proxy, or as representing a corporation that is a member, shall
be deemed to be a member.
41. If a quorum is not present within half an hour from the time appointed
for the meeting--
(a) where the meeting was convened upon the requisition of members -- the
meeting shall be dissolved; or
(b) in any other case--
(i) the meeting stands adjourned to such day, and at such time and
place, as the directors determine or, if no determination is
made by the directors, to the same day in the next week at the
same time and place; and
(ii) if at the adjourned meeting a quorum is not present within half
an hour from the time appointed for the meeting--
(A) 2 members constitute a quorum; or
(B) where 2 members are not present -- the meeting shall be
dissolved.
- ----------
(10) A.C.T.: "Act".
15
42. (1) If the directors have elected one of their number as chairman of
their meetings, he shall preside as chairman at every general meeting.
(2) Where a general meting is held and--
(a) a chairman has not been elected as provided by sub-regulation (1);
or
(b) the chairman is not present within 15 minutes after the time
appointed for the hold of the meeting or is unwilling to act,
the members present shall elect one of their number to be chairman of the
meeting.
43. (1) The chairman may with the consent of any meeting at which a quorum
is present, and shall if so directed by the meeting, adjourn the meeting from
time to time and from place to place, but no business shall be transacted at any
adjourned meeting other than the business left unfinished at the meeting from
which the adjournment took place.
(2) When a meeting is adjourned for 30 days or more, notice of the
adjourned meeting shall be given as in the case of an original meeting.
(3) Except as provided by sub-regulation (2), it is not necessary to give
any notice of an adjournment or of the business to be transacted at an adjourned
meeting.
44. (1) At any general meeting a resolution put to the voice of the
meeting shall be decided on a show of hands unless a poll is (before or on the
declaration of the result of the show of hands) demanded--
(a) by the chairman;
(b) by at least 3 members present in person or by proxy;
(c) by a member or members present in person or by proxy and
representing not less than one-tenth of the total voting rights of
all the members having the right to vote at the meeting; or
(d) by a member or members holding shares in the company conferring a
right to vote at the meeting being shares on which an aggregate sum
has been paid up equal to not less than one-tenth of the total sum
paid up on all the shares conferring that right.
(2) Unless a poll is so demanded, a declaration by the chairman that a
resolution has on a show of hands been carried or carried unanimously, or by a
particular majority, or lost, and an entry to that effect in the book containing
the minutes of the proceedings of the company is conclusive evidence
16
of the fact without proof of the number of proportion of the votes recorded in
favour of or against the resolution.
(3) The demand for a poll may be withdrawn.
45. (1) If a poll is duly demanded, it shall be taken in such manner and
(subject to sub-regulation (2)) either at once or after an interval or
adjournment or otherwise as the chairman directs, and the result of the poll
shall be the resolution of the meeting at which the poll was demanded.
(2) A poll demanded on the election of a chairman or on a question of
adjournment shall be taken forthwith.
46. In the case of an equality of votes, whether on a show of hands or on
a poll, the chairman of the meeting at which the show of hands takes place or at
which the poll is demanded, in addition to his deliberative vote (if any), has a
casting vote.
47. Subject to any rights or restrictions for the time being attached to
any class or classes of shares--
(a) at meetings of members or classes of members each member entitled to
vote may vote in person or by proxy or attorney; and
(b) on a show of hands every person present who is a member or a
representative of a member has one vote, and on a poll every person
present in person or by proxy or attorney has one vote for each
share he holds.
48. In the case of joint holders, the vote of the senior who tenders a
vote, whether in person or by proxy or by attorney, shall be accepted to the
exclusion of the votes of the other joint holders and, for this purpose,
seniority shall be determined by the order in which the names stand in the
register of members.
49. If a member is of unsound mind or is a person whose person or estate
is liable to be dealt with in any way under the law relating to mental health,
his committee or trustee or such other person as properly has the management of
his estate may exercise any rights of the member in relation to a general
meeting as if the committee, trustee or other person were the member.
50. A member is not entitled to vote at a general meeting unless all calls
and other sums presently payable by him in respect of shares in the company have
been paid.
51. (1) An objection may be raised to the qualification of a voter only at
the meetings or adjourned meetings at which the vote objected to is given or
tendered.
17
(2) Any such objection shall be referred to the chairman of the meeting,
whose decision is final.
(3) A vote not disallowed pursuant to such an objection is valid for all
purposes.
52. (1) An instrument appointing a proxy shall be in writing under the
hand of the appointer or of his attorney duly authorized in writing or, if the
appointer is a corporation, either under seal or under the hand of an officer or
attorney duly authorized.
(2) An instrument appointing a proxy may specify the manner in which the
proxy is to vote in respect of a particular resolution and, where an instrument
of proxy so provides, the proxy is not entitled to vote on the resolution except
as specified in the instrument.
(3) An instrument appointing a proxy shall be deemed to confer authority
to demand or join in demanding a poll.
(4) An instrument appointing a proxy shall be in the following form or in
a form that is as similar to the following form as the circumstances allow:
[Name of company]
I/we , of , being a member/members of the above-named
company, hereby appoint of or, in his absence, of
as my/our proxy to vote for me/us on my/our behalf at the (11)annual general/
(11)general meeting of the company to be held on the day of 19
and at any adjournment of that meeting.
(12)This form is to be used(11) in favour of/(11) against the resolution.
Signed this day of 19 .
53. An instrument appointing a proxy shall not be treated as valid unless
the instrument, and the power of attorney or other authority (if any) under
which the instrument is signed or a notarially certified copy of that power or
authority, is or are deposited, not less than 48 hours before the time for
holding the meeting or adjourned meeting at which the person named in the
instrument proposes to vote, or, in the case of a poll, not less than 24 hours
before the time appointed for the taking of the poll,
- ----------
(11) Strike out whichever is not desired
(12) To be inserted if desired
18
at the registered office, of the company or at such other place within the
State(13) as is specified for that purpose in the notice convening the meeting.
54. A vote given in accordance with the terms of an instrument of proxy or
of a power of attorney is valid notwithstanding the previous death or
unsoundness of mind of the principal, the revocation of the instrument (or of
the authority under which the instrument was executed) or of the power, or the
transfer of the share in respect of which the instrument or transfer has been
received by the company at the registered office before the commencement of the
meeting or adjourned meeting at which the instrument is used or the power is
exercised.
55. (1) The directors shall be paid such remuneration as is from time to
time determined by the company in general meeting.
(2) That remuneration shall be deemed to accrue from day to day.
(3) The directors may also be paid all traveling and other expenses
properly incurred by them in attending and returning from meetings of the
directors or any committee of the directors or general meetings of the company
or otherwise in connection with the business of the company.
Powers and Duties of Directors
56. (1) Subject to the Code(14) and to any other provision of these
regulations, the business of the company shall be managed by the directors, who
may pay all expenses incurred in promoting and forming the company, and may
exercise all such powers of the company as are not, by the Code15 or by these
regulations, required to be exercised by the company in general meeting.
(2) Without limiting the generality of sub-regulation (1), the directors
may exercise all the powers of the company to borrow money, to charge any
property or business of the company or all or any of its uncalled capital and to
issue debentures or give any other security for a debt, liability or obligation
of the company or of any other person.
57. (1) The directors may, by power of attorney, appoint any person or
persons to be the attorney or attorneys of the company for such purposes, with
such powers, authorities and discretions (being powers, authorities and
discretions vested in or exercisable by the directors), for such period and
subject to such conditions as they think fit.
- ----------
(13) A.C.T.: "Territory".
Tas.: For "the State" read "Tasmania".
(14) A.C.T.: "Act".
(15) A.C.T.: "Act".
19
(2) Any such power of attorney may contain such provisions for the
protection and convenience of persons dealing with the attorney as the directors
think fit and may also authorize the attorney to delegate all or any of the
powers, authorities and discretions vested in him.
58. All cheques, promissory notes, bankers drafts, bills of exchange and
other negotiable instruments, and all receipts for money paid to the company,
shall be signed, drawn, accepted, endorsed or otherwise executed, as the case
may be, by any 2 directors or in such other manner as the directors determine.
Proceedings of Directors
59. (1) The directors may meet together for the despatch of business and
adjourn and otherwise regulate their meetings as they think fit.
(2) A director may at any time, and a secretary shall on the requisition
of a director, convene a meeting of the directors.
60. (1) Subject to these regulations, questions arising at a meeting of
directors shall be decided by a majority of votes of directors present and
voting and any such decision shall for all purposes be deemed a decision of the
directors.
(2) In case of an equality of votes, the chairman of the meeting, in
addition to his deliberative vote (if any), has a casting vote.
61. (1) A director may, with the approval of the other directors, appoint
a person (whether a member of the company or not) to be an alternate director in
his place during such period as he thinks fit.
(2) An alternate director is entitled to notice of meetings of the
directors and, if the appointor is not present at such a meeting, is entitled to
attend and vote in his stead.
(3) An alternate director may exercise any powers that the appointor may
exercise and the exercise of any such power by the alternate director shall be
deemed to be the exercise of the power by the appointor.
(4) An alternate director is not required to have any share
qualifications.
(5) The appointment of an alternate director may be terminated at any time
by the appointor notwithstanding that the period of the appointment of the
alternate director has not expired, and terminates in any event if the appointor
vacates office as a director.
20
(6) An appointment, or the termination of an appointment, of an alternate
director shall be effected by a notice in writing signed by the director who
makes or made the appointment and served on the company.
62. At a meeting of directors, the number of directors whose presence is
necessary to constitute a quorum is such number as is determined by the
directors and, unless so determined, is 2.
63. In the event of a vacancy or vacancies in the office of a director or
offices of directors, the remaining directors may act but, if the number of
remaining directors is not sufficient to constitute a quorum at a meeting of
directors, they may act only for the purpose of increasing the number of
directors to a number sufficient to constitute such a quorum or of convening a
general meeting of the company.
64. (1) The directors shall elect one of their number as chairman of their
meetings and may determine the period for which he is to hold office.
(2) Where such a meeting is held and--
(a) a chairman has not been elected as provided by sub-regulation (1);
or
(b) the chairman is not present within 10 minutes after the time
appointed for the holding of the meeting or is unwilling to act,
the directors present shall elect one of their number to be a chairman of the
meeting.
65. (1) The directors may delegate any of their powers to a committee or
committees consisting of such of their number as they think fit.
(2) A committee to which any powers have been so delegated shall exercise
the powers delegated in accordance with any directions of the directors and a
power so exercised shall be deemed to have been exercised by the directors.
(3) The members of such a committee may elect one of their number as
chairman of their meetings.
(4) Where such a meeting is held and--
(a) a chairman has not been elected as provided by sub-regulation (3);
or
(b) the chairman is not present within 10 minutes after the time
appointed for the holding of the meeting or is unwilling to act,
the members present may elect one of their number to be chairman of the meeting.
21
(5) A committee may meet and adjourn as it thinks proper.
(6) Questions arising at a meeting of a committee shall be determined by a
majority of votes of the members present and voting.
(7) In the case of an equality of votes, the chairman, in addition to his
deliberative vote (if any), has a casting vote.
66. (1) If all the directors have signed a document containing a statement
that they are in favour of a resolution of the directors in terms set out in the
document, a resolution in those terms shall be deemed to have been passed at a
meeting of the directors held on the day on which the document was signed and at
the time at which the document was last signed by a director or, if the
directors signed the document on different days, on the day on which, and at the
time at which, the document was last signed by a director.
(2) For the purposes of sub-regulation (1), 2 or more separate documents
containing statements in identical terms each of which is signed by one or more
directors shall together be deemed to constitute one document containing a
statement in those terms signed by those directors on the respective days on
which they signed the separate documents.
(3) A reference in sub-regulation (1) to all the directors does not
include a reference to a director who, at a meeting of directors, would not be
entitled to vote on the resolution.
67. All acts done by any meeting of the directors or of a committee of
directors or by any persons acting as a director are, notwithstanding that it is
afterwards discovered that there was some defect in the appointment of a person
to be a director of a member of the committee, or to act as, a director, or that
a person so appointed was disqualified, as valid as if the person had been duly
appointed and was qualified to be a director or to be a member of the committee.
Managing Director
68. (1) The directors may from time to time appoint one or more of their
number to the office of managing director for such period and on such terms as
they think fit, and, subject to the terms of any agreement entered into a
particular case, may revoke any such appointment.
69. A managing director shall, subject to the terms of any agreement
entered into in a particular case, receive such remuneration (whether by way of
salary, commission or participation in profits, or partly in one way and partly
in another) as the directors determine.
70. (1) The directors may, upon such terms and conditions and with such
restrictions as they think fit, confer upon a managing director any of the
powers exercisable by them.
22
(2) Any powers so conferred may be concurrent with, or be to the exclusion
of, the powers of the directors.
(3) The directors may at any time withdraw or vary any of the powers so
conferred on a managing director.
Associate Directors
71. (1) The directors may from time to time appoint any person to be an
associate director and may from time to time terminate any such appointment.
(2) The directors may from time to time determine the powers, duties and
remuneration of any person so appointed.
(3) A person so appointed is not required to hold any shares to qualify
him for appointment but, except by the invitation and with the consent of the
directors, does not have any right to attend or vote at any meeting of
directors.
Secretary
72. A secretary of the company holds office on such terms and conditions,
as remuneration and otherwise, as the directors determine.
Seal
73. (1) The directors shall provide for the same custody of the seal.
(2) The seal shall be used only by the authority of the directors, or of a
committee of the directors authorized by the directors to authorize the use of
the seal, and every document to which the seal is affixed shall be signed by a
director and be countersigned by another director, a secretary or another person
appointed by the directors to countersign that document or a class of documents
in which that document is included.
Inspection of Records
74. The directors shall determine whether and to what extent, and at which
time and places and under what conditions, the accounting records and other
documents of the company or any of them will be open to the inspection of
members other than directors and a member other than a director does not have
the right to inspect any document of the company except as provided by law or
authorized by the directors or by the company in general meeting.
23
Dividends and Reserves
75. The directors may authorize the payment by the company to the members
of such interim dividends as appear to the directors to be justified by the
profits of the company.
76. Interest is not payable by the company in respect of any dividend.
77. (1) The directors may, before declaring any dividend, set aside out of
the profits of the company such sums as they think proper as reserves, to be
applied, at the discretion of the directors, for any purpose of which the
profits of the company may be properly applied.
(2) Pending any such application, the reserves may, at the discretion of
the directors, be used in the business of the company or be invested in such
investments as the directors think fit.
(3) The directors may carry forward so much of the profits remaining as
they consider ought not to be distributed as dividends without transferring
those profits to a reserve.
78. (1) Subject to the rights of persons (if any) entitled to shares with
special rights as in dividend, all dividends shall be declared and paid
according to the amounts paid or credited as paid on the shares in respect of
which the dividend is paid.
(2) All dividends shall be apportioned and paid proportionately to the
amounts paid or credited as paid on the shares during any portion or portions of
the period in respect of which the dividend is paid, but, if any share is issued
on terms providing that it will rank for dividends as from a particular date,
that share ranks for dividend accordingly.
(3) An amount paid or credited as paid on a share in advance of a call
shall not be taken for the purposes of this regulation to be paid or credited as
paid on the share.
79. The directors may deduct from any dividend payable to a member all
sums of money (if any) presently payable by him to the company on account of
calls or otherwise in relation to shares in the company.
80. Where a difficulty arises in regard to such a distribution, the
directors may settle the matter as they consider expedient and fix the value for
distribution of the specific assets or any part of those assets and may
determine that cash payments will be made to any members on the basis of the
value so fixed in order to adjust the rights of all parties, and may vest any
such specific assets in trustees as the directors consider expedient.
81. (1) Any dividend, interest or other money payable in cash in respect
of shares may be paid by cheque sent through the post directed to--
24
(a) the address of the holder as shown in the register of members, or in
the case of joint holders, to the address shown in the register of
members as the address of the joint holder first named in that
register; or
(b) to such other address as the holder or joint holders in writing
directs or direct.
(2) Any one of 2 or more joint holders may give effectual receipts for any
dividends, interest or other money payable in respect of the shares held by them
as joint holders.
Capitalization of Profits
82. (1) Subject to sub-regulation (2), the company in general meeting may
resolve that it is desirable to capitalize any sum, being the whole or a part of
the amount for the time being standing to the credit of any reserve account or
the profit and loss account or otherwise available for distribution to members,
and that that sum be applied, in any of the ways mentioned in sub-regulation
(3), for the benefit of members in the proportions to which those members would
have been entitled in a distribution of that sum by way of dividend.
(2) The company shall not pass a resolution as mentioned in sub-regulation
(1) unless the resolution has been recommended by the directors.
(3) The ways in which a sum may be applied for the benefit of members
under sub-regulation (1) are--
(a) in paying up any amounts unpaid on shares held by members;
(b) in paying up in full unissued shares or debentures to be issued to
members as fully paid; or
(c) partly as mentioned in paragraph (a) and partly as mentioned in
paragraph (b).
(4) The directors shall do all things necessary to give effect to the
resolution and, in particular, to the extent necessary to adjust the rights of
the members among themselves, may--
(a) issue fractional certificates or make cash payments in cases where
shares or debentures become issuable in fractions; and
(b) authorize any person to make, on behalf of all the members entitled
to any further shares or debentures upon the capitalization, an
agreement with the company providing for the issue to them, credited
as fully paid up, of any such further shares or debentures or for
the payment up by the company on their behalf of the amounts or any
part of the amounts remaining unpaid on their existing shares by the
application of their respective proportions of the sum resolved to
be capitalized,
25
and any agreement made under an authority referred to in paragraph (b) is
effective and binding on all the members concerned.
Notices
83. (1) A notice may be given by the company to any member either by
serving it on him personally or by sending it by post to him at his address as
shown in the register of members or the address supplied by him to the company
for the giving of notices to him.
(2) Where a notice is sent by post, service of the notice shall be deemed
to be effected by properly addressing, prepaying, and posting a letter
containing the notice, and to have been effected, in the case of a notice of a
meeting, on the day after the date of its posting and, in any other case, at the
time at which the letter would be delivered in the ordinary course of post.
(3) A notice may be given by the company to the joint holders of a share
by giving the notice to the joint holder first named in the register of members
in respect of the share.
(4) A notice may be given by the company to a person entitled to a share
in consequence of the death or bankruptcy of a member by serving it on him
personally or by sending it to him by post addressed to him by name, or by the
title of representative of the deceased or assignee of the bankrupt, or by any
like description, at the address (if any) within the State16 supplied for the
purpose by the person or, if such an address has not been supplied, at the
address to which the notice might have been sent if the death or bankruptcy had
not occurred.
84. (1) Notice of every general meeting shall be given in the manner
authorized by regulation 95 to--
(a) every member;
(b) every person entitled to a share in consequence of the death or
bankruptcy of a member who, but for his death or bankruptcy, would
be entitled to receive notice of the meeting; and
(c) the auditor for the time being of the company.
(2) No other person is entitled to receive notices of general meetings.
26
Winding up
85. (1) If the company is wound up, the liquidator may, with the sanction
of a special resolution, divide among the members in kind the whole or any part
of the property of the company and may for that purpose set such value as he
considers fair upon any property to be so divided and may determine how the
division is to be carried out as between the members or different classes of
members.
(2) The liquidator may, with the sanction of a special resolution, vest
the whole or any part of any such property in trustees upon such trusts for the
benefit of the contributories as the liquidator thinks fit, but so that no
member is compelled to accept any shares or other securities in respect of which
there is any liability.
Indemnity
86. Every officer, auditor or agent of the company shall be indemnified
out of the property of the company against any liability incurred by him in his
capacity as officer, auditor or agent in defending any proceedings, whether
civil or criminal, in which judgment is given in his favour or in which he is
acquitted or in connection with any application in relation to any such
proceedings in which relief is under the Code(17) granted to him by the Court.
TABLE B
REGULATIONS FOR MANAGEMENT OF A
NO LIABILITY COMPANY
Interpretation
1. (1) In these regulations--
"Code" means the Companies ([name of State]) Code(18)
"seal" means the common seal of the company and includes any
official seal of the company;
"secretary" means any person appointed to perform the duties of a
secretary of the company.
- ----------
(17) A.C.T.: "Act".
(18) A.C.T.: "'Act' means the Companies Act 1981".
27
(2) Section 40 of the Companies and Securities (Interpretation and
Miscellaneous Provisions) ([name of State]) Code(19) applies in relation
to these regulations as if they were an instrument made by an authority
under a power conferred by the Companies ([name of State]) Code(20) as in
force on the date on which these regulations became binding on the
company.
(3) An expression used in a particular Part or Division of the Code(21)
that is given by that Part or Division a special meaning for the purposes
of that Part or Division has, in any of these regulations that deals with
a matter dealt with by that Part or Division, unless the contrary
intention appears, the same meaning as in that Part or Division.
Share Capital and Variation of Rights
2. Without prejudice to any special rights previously conferred on the
holders of any existing shares or class of shares but subject to the Code(22),
shares in the company may be issued by the directors and any such share may be
issued with such preferred, deferred or other special rights or such
restrictions, whether with regard to dividend, voting, return of capital or
otherwise, as the directors, subject to any resolution, determine.
- ----------
(19) A.C.T.: "Companies and Securities (Interpretation and Miscellaneous
Provisions) Act 1980".
(20) A.C.T.: "Companies Act" 1981.
(21) A.C.T.: "Act".
(22) A.C.T.: "Act".
FORTUITY PTY LIMITED
(ACN 007 148 683)
MINUTES OF ANNUAL GENERAL MEETING OF THE SHAREHOLDERS
HELD AT THE REGISTERED OFFICE
PRINCES HIGHWAY, DANDENONG, VIC, 3175
ON TUESDAY 19 SEPTEMBER 1995
- --------------------------------------------------------------------------------
PRESENT: K A DYNON
A M GAVIN
-------------------------------------
SECRETARY: G NANKIN
-------------------------------------
The Statutory Accounts, together with the Directors' and Auditors' Reports
thereon for the 53 weeks ended 28 April 1995 were submitted.
ORDINARY RESOLUTION:
RESOLVED that the Statutory accounts of the Company and its subsidiary, as at 28
April 1995, together with the Reports of the directors and Auditors thereon be
received, approved and adopted.
SPECIAL RESOLUTION:
The Company passed the following special resolution:
RESOLVED:
"That the Articles of Association of the Company be amended as follows:
1. Insert the following immediately following Article 78 -
"78A The Board may meet either in person or by telephone or by other
means of communication by which all persons participating in the
meeting are able to hear and be heard by all other participants.
A meeting conducted by telephone or other means of communication
is deemed to be held at the place agreed upon by the Directors
attending the meeting, provided that at least one of the
Directors present at the meeting was at that place for the
duration of the meeting.
2
78B Any director may appoint by written notice any other Director to
act as his proxy at a meeting of the Board provided that a
Director may not appoint a proxy and an Alternate Director. The
appointment may be general or specific concerning the term of the
appointment and the business upon which the proxy may vote. The
Director appointing the proxy will give notice to the Company by
delivering a copy of the notice to the Office. The proxy will
take effect on delivery of the proxy to the Office. The Director
may revoke the appointment by a written notice of revocation, a
copy of which will be delivered (and take effect from the time of
delivery to) the Office. The vote of a proxy will be counted on
any vote as if the proxy was the Director who appointed the
proxy. If the same person is appointed either Alternate Director
for or the proxy of more than one Director, he will be entitled
to cast a vote at meetings of the Board for each Director by whom
he was appointed in addition to any vote to which he is entitled
in his capacity as Director."
2. Delete Regulation 98 and substitute the following -
"98. (1) The Company shall indemnify each officer of the Company and
each officer of each wholly owned subsidiary of the Company
out of the assets of the Company to the relevant extent
against any liability incurred by the officer in or arising
out of the conduct of the business of the Company or of such
wholly owned subsidiary (as the case may be) or in or arising
out of the discharge of the duties of the officer unless the
liability was incurred by the officer through his or her own
dishonesty, negligence, lack of good faith or breach of duty.
(2) In addition to paragraph (1) of this Article, an officer of
the Company and an officer of a wholly owned subsidiary of the
Company may be indemnified to the relevant extent out of the
assets of the Company against any liability incurred by the
officer in or arising out of the conduct of the business of
the Company or of such wholly owned subsidiary (as the case
may be) or in or arising out of the discharge of the duties of
the officer where the Directors consider it appropriate to do
so.
(3) Where the Directors consider it appropriate to do so, the
Company may pay amounts by way of premium in respect of any
contract effecting insurance on behalf or in respect of an
officer of the Company or an officer of a wholly owned
subsidiary of the Company against liability incurred by the
officer in or arising out of the conduct of the business of
the Company or of such wholly owned subsidiary (as the case
may be) or in or arising out of the discharge of the duties of
the officer.
3
(4) In this Article:
(a) "officer" means:
(i) (A) a director, secretary, executive officer or
employee;
or
(B) a person appointed as a trustee by, or acting as a
trustee at the express request of, the Company or
a wholly owned subsidiary of the Company; and
(ii) includes a former officer.
(b) "duties of the officer" includes duties arising by reason
of the appointment, nomination or secondment in any
capacity of an officer by the Company or any wholly owned
subsidiary of the Company to any other corporation.
(c) "to the relevant extent" means:
(i) to the extent the Company is not precluded by law
from doing so;
(ii) to the extent and for the amount that the officer
is not otherwise entitled to be indemnified and is
not actually indemnified by another person
(including, in particular, an insurer under any
insurance policy); and
(d) where the liability is incurred in or arising out of the
conduct of the business of another corporation or in the
discharge of the duties of the officer in relation to
another corporation, to the extent and for the amount that
the officer is not entitled to be indemnified and is not
actually indemnified out of the assets of that
corporation.
(e) "liability" means all costs, charges, losses, damages,
expenses, penalties and liabilities of any kind including,
in particular, legal costs (on a full indemnity basis)
incurred in defending any proceedings (whether criminal,
civil, administrative or judicial)
4
or appearing before any court, tribunal, government
authority or otherwise."."
There being no further business, the meeting was closed.
Dated: 19 September 1995
- -----------------------------------
Chairman