EXHIBIT 3.32
Form 204
BH SHELF COMPANIES PTY LTD
ATTN: JENNY BENNETT
P O BOX H6
HARRIS PARK NSW 2150
Certificate of Registration
of a Company
Corporations Law Sub-section 121(1)
This is to certify that
GUTBUSTERS PTY LTD
Australian Company Number 059 073 157
is a registered company under Division 1 of Part 2.2 of
the Corporations Law of New South Wales and
because of its registration it is an incorporated company.
The company is limited by shares.
The company is a proprietary company.
The day of commencement of registration is the
seventeenth day of February 1993.
Given under the seal of the
Australian Securities Commission
on this seventeenth day of February, 1993.
Alan Cameron
Chairman
Corporations Law
A Company Limited
by Shares
Memorandum and Articles
of Association of
Gutbusters Pty Ltd
INDEX
MEMORANDUM OF ASSOCIATION
Page
Rights, Powers and Privileges .................................................1
Share Capital .................................................................1
Subscribers ...................................................................2
Signatures ....................................................................2
ARTICLES OF ASSOCIATION
Interpretation ............................................................... 1
Preliminary ...................................................................1
Share Capital and Classes of Shares ...........................................2
Issue of Shares and Variation of Rights .......................................6
Lien ..........................................................................7
Transfer of Shares ............................................................9
Transmission of Shares .......................................................10
Forfeiture of Shares .........................................................10
Conversion of Shares into Stock ..............................................12
Alteration of Capital ........................................................12
General Meetings .............................................................13
Proceedings at General Meetings ..............................................14
Appointment, Removal and Remuneration of Directors ...........................17
Powers and Duties of Directors ...............................................18
Proceeding of Directors ......................................................19
Managing Director ............................................................22
Associate Directors ..........................................................22
Secretary ....................................................................23
Seal .........................................................................23
Inspection of Records ........................................................23
Dividends and Reserves .......................................................23
Capitalisation of Profits ....................................................26
Notices ......................................................................27
Winding up ...................................................................27
Indemnity ....................................................................28
Signatures ...................................................................29
Corporations Law
A Company Limited by Shares
MEMORANDUM OF ASSOCIATION
OF
Gutbusters Pty Ltd
1. The name of the company is Gutbusters Pty Ltd
2. Subject to the Corporations Law the company has the rights, the powers and
privileges of a natural person and without limiting the generality of the
foregoing, has power to:
(a) issue and allot fully or partly paid shares in the Company;
(b) issue debentures of the Company;
(c) give security by charging uncalled capital;
(d) distribute any of the property of the Company among the members;
(e) grant a floating charge on property of the Company and
(f) do any other act that it is authorised to do by any other law.
3. The share capital with which the Company proposes to be registered is One
Million Dollars ($1,000,000.00) divided into One Million (1,000,000)
shares (vide the Article hereof) of One Dollar ($1.00) each with power to
increase or reduce the capital and to divide the shares in the original or
increased capital for the time being into several classes and to issue any
part or parts of the original capital or increased capital for the time
being with such deferred qualified or special rights privileges or
conditions with reference to preferential guaranteed fixed fluctuating
redeemable or to other dividend or interest or with such priority in the
distribution of assets or otherwise as shall from time to time be
determined by the Company.
4. The liability of the members is limited.
5. The full names, addresses and occupations of the subscribers hereto and
the number of shares they respectively agree to take are:-
ANTONY ROBERT HARRIS
73 High Street,
Parramatta, NSW, 2150
Company Director One (1) Subscriber share
ROBERT GORDON HARVEY
73 High Street,
Parramatta, NSW, 2150
Company Director One (1) Subscriber share
The subscribers are desirous of being formed into a company in pursuance of this
memorandum and respectively agree to take the number of shares in the capital of
the company set opposite their respective names in the last preceding paragraph
hereof.
- -------------------------------------------------------------------------------
Subscribers' No of shares taken Witness' signature
Signatures by each Subscriber
- -------------------------------------------------------------------------------
/s/ A. R. Harris ONE (1) SUBSCRIBER /s/ J. Bennett
- ---------------- --------------------------
A.R. HARRIS SHARE
/s/ R.G. Harvey ONE (1) SUBSCRIBER JENNIFER LYNETTE BENNETT
- --------------- 73 High Street
R.G. HARVEY SHARE Parramatta NSW, 2150
Witness to both signatures
- -------------------------------------------------------------------------------
dated: 17/02/93 ...............
Corporations Law
A Company Limited by Shares
ARTICLES OF ASSOCIATION
OF
Gutbusters Pty Ltd
INTERPRETATION
1. 1.1 In these Articles:
"Law" means the Corporations Law;
"representative" means a person appointed as a representative of a
Company pursuant to Section 249 (3) of the Law;
"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.
1.2 Division 10 of Part 1.2 of the Law applies in relation to these
Articles as if they were an instrument made under that Law as in
force on the day when these Articles become binding on the company.
1.3 Except so far as the contrary intention appears in these Articles,
an expression has, in a provision of these Articles that deals with
a matter dealt with by a particular provision of the Law, the same
meaning as in that provision of the Law.
PRELIMINARY
2. The regulations contained in Table "A" of Schedule 1 to the Law shall not
apply to this company.
3. The company is a proprietary company and therefore:-
3.1 The number of members for the time being of the company (exclusive
of persons who are in the employment of the company or of any
subsidiary of the company and of persons who, having been formerly
in the employment of the company or of any subsidiary of the
company, were, while in that employment and have continued after
that employment to be, members of the company) is not to exceed
fifty, but where two or more persons hold one or more shares in the
company jointly, they shall for the purposes of this sub-clause be
treated as a single member.
3.2 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 and 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.
3.3 The right to transfer shares is restricted as hereinafter provided
in these Articles.
SHARE CAPITAL AND CLASSES OF SHARES
4. 4.1 The capital of the company is one million dollars ($1,000,000.00)
divided into one million (1,000,000) shares of one dollar ($1.00) each and
classified as under:
2 - Subscriber Shares
839,998 - Ordinary Shares
20,000 - "A" shares
20,000 - "B" shares
20,000 - "C" shares
20,000 - "D" shares
20,000 - "E" shares
20,000 - "F" shares
20,000 - "G" shares
10,000 - "H" redeemable preference shares
10,000 - "I" redeemable preference shares
4.2 The Subscribers' shares shall be redeemable preference shares which
shall be issued on the following terms and conditions:
(a) Subscribers' shares shall only be issued upon incorporation of
the company and shall only be issued to the subscribers to the
Memorandum and Articles of Association.
(b) Subject to the provisions of Section 192 of the Law, the next
issue of shares of any class or classes after the issue of the
Subscribers' shares and payment up in full thereof shall be
deemed to have been issued for the purposes of redeeming the
Subscribers shares provided that the number of shares so
issued is at least equal to the number of Subscribers' shares
on issue. Upon the issue of such
shares, the Subscribers' shares shall ipso facto be redeemed
at par, and the issued capital of the company shall then stand
at an amount equal to the par value of the total number of
shares which comprised the next issue of shares.
(c) (1) they shall carry no right to participate in any
distribution of surplus assets or profits;
(2) they shall rank as to repayment of capital on winding-up
of the company before any other class of shares then on
issue;
(3) they shall carry no right to dividends; and
(4) they shall carry the right at general meetings to
exercise one vote for each Subscribers' share held
(d) Upon the redemption of the Subscribers' shares in the manner
provided herein, the company shall cease to be authorised to
issue shares of this class.
4.3 Upon the redemption of the Subscribers' shares, the authorised number
of ordinary shares shall increase by such number of Ordinary shares as is
equal to the number of Subscribers' shares redeemed.
4.4 The Ordinary, "A" and "B" shares shall have the following rights and
privileges;
(a) They shall confer to the holders thereof the right to receive
notice of and to attend any general meeting and to exercise
one vote for every share held.
(b) They shall confer to the holders thereof the right to
participate in any dividends declared and payable by the
company on the class of share held.
(c) Upon a winding up of the company they shall confer to the
holders thereof the right to repayment of capital paid upon
such shares and to participate in any distribution of surplus
assets or profits of the company.
4.5 The "C" shares shall not confer on the holders thereof any right to
dividends or any right to vote at any general meeting of the company but
the holders thereof shall be entitled to notice of and to attend any
general meeting of the company. In all other respects the "C" shares shall
have the same rights and privileges and shall rank equally with the
Ordinary shares.
4.6 The "D" shares shall not confer on the holders thereof any right to
dividends or any right on a winding up of the company to participate in
any distribution of surplus assets or profits of the company. In all other
respects the "D" shares shall have the same rights and privileges and
shall rank equally with the Ordinary shares.
4.7 The "E" and "F" shares shall not confer on the holders thereof any
right to vote at any general meeting of the company but the holders
thereof shall be entitled to notice of and to
attend any general meeting of the company. The "E" and "F" shares also
shall not confer any right on a winding up of the company to participate
in any distribution of surplus assets or profits of the company. In all
other respects the "E" and "F" shares shall have the same rights and
privileges and shall rank equally with the Ordinary shares.
4.8 The "G" shares shall not confer on the holders thereof any right to
vote at any general meeting of the company but the holders thereof shall
be entitled to notice of and to attend any general meeting of the company.
In all other respects the "G" shares shall have the same rights and
privileges and shall rank equally with the Ordinary shares.
4.9 The rights, privileges and conditions attaching to the "H" redeemable
preference shares are as follows:
(a) They shall entitle the holders thereof to receive notice of
and to attend any general meeting of the Company but shall not
confer any right to vote at such meetings except in one or
more of the following circumstances:
(1) on a proposal to reduce the share capital of the
company;
(2) on a proposal that affects rights attached to the "H"
redeemable preference shares;
(3) on a proposal for the disposal of the whole property,
business and undertaking of the company;
(4) during the winding up of the company.
(b) They shall confer to the holders thereof the right to receive
from the profits of the company a non-cumulative preferential
dividend at the rate of 5% per annum on the capital for the
time being paid up thereon in priority to the payment of any
dividend on any other share in the company.
(c) Upon a reduction of capital or winding up of the company they
shall as regards return of paid up capital rank equally with
any issued "I" redeemable preference shares and in priority to
all other shares in the company, but they shall not confer any
right to participate in any distribution of surplus assets or
profits of the company.
(d) Subject to Section 192 of the Corporations Law they shall at
the option of the company be liable to be redeemed at par on
or before 30 June 2050, by giving written notice to the
holders at their respective registered addresses and each such
notice shall be accompanied by the company's cheque for the
amount payable to the holder to whom such notice is sent. The
redemption shall take place on the seventh day after the date
of posting such notice, and any "H" redeemable preference
shares not so redeemed on 30 June 2050 shall not thereafter be
capable of being redeemed.
4.10 The rights, privileges and conditions attaching to the "I" redeemable
preference shares are as follows:
(a) They shall entitle the holders thereof to receive notice of
and to attend any general meeting of the Company but shall not
confer any right to vote at such meetings except in one or
more of the following circumstances:
(1) on a proposal to reduce the share capital of the
company;
(2) on a proposal that affects rights attached to the "I"
redeemable preference shares;
(3) on a proposal for the disposal of the whole of the
property, business and undertaking of the company;
(4) during the winding up of the company.
(b) They shall confer to the holders thereof the right to
participate in any dividend declared and payable by the
company equally with the Ordinary shares.
(c) Upon a reduction of capital or a winding up of the company
they shall as regards return of paid up capital rank equally
with any issued "H" redeemable preference shares and in
priority to all other shares in the company, but they shall
not confer any right to participate in any distribution of
surplus assets or profits of the company.
(d) Subject to Section 192 of the Corporation Law they shall at
the option of the company be liable to be redeemed at par on
or before 30 June 2050, by giving written notice to the
holders at their respective registered addresses and each such
notice shall be accompanied by the company's cheque for the
amount payable to the holder to whom such notice is sent. The
redemption shall take place on the seventh day after the date
of posting such notice, and any "I" redeemable preference
shares not so redeemed on 30 June 2050 shall not thereafter be
capable of being redeemed.
ISSUE OF SHARES AND VARIATION OF RIGHTS
5. Without prejudice to any special rights previously conferred on the
holders of any existing shares or class of shares but subject to the Law,
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.
6. Subject to the Law, the company may issue preference shares which are, or
at the option of the company, are liable, to be redeemed and such power
may be exercised by the directors.
7 7.1 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.
7.2 The provisions of these Articles 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 each being a member or a proxy or
representative of a member 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 or by
representative, may demand a poll.
7.3 The rights conferred upon the holders of the shares of any class
issued with preferred or other rights shall, unless otherwise expressly
provided by the terms of issue of the shares of that class, be deemed to
be varied by the creation or issue of further shares ranking equally with
the first-mentioned shares.
8. 8.1 The company may exercise the power to make payments by the way of
brokerage or commission conferred by the Law in the manner provided by the
Law.
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.
9. 9.1 Except as required by the law, the company shall not recognise a
person holding a share upon any trust.
9.2 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 Articles or by law]
any other right in respect of a share except an absolute right of
ownership in the registered holder.
10. 10.1 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
share under the seal of the company in accordance with the Law but, in
respect of a share or shares held jointly by several persons, the company
is not bound to issue more than one certificate.
10.2 Delivery of a certificate for a share to one of several joint holders
is sufficient delivery to all such holders.
LIEN
11. 11.1 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.
11.2 The company 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.
11.3 The directors may at any time exempt a share extends to all dividends
payable in respect of the share.
12. 12.1 Subject to Article 11(2), the company may sell, in such manner as the
directors think fit, any shares on which the company has a lien.
12.2 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 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.
13. 13.1 For the purpose of giving effect to a sale mentioned in Article 12,
the directors may authorise a person to transfer the shares sold to the
purchaser of the shares.
13.2 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
application of the purchase money.
13.3 The title of the purchaser to the shares is not affected by any
irregularity or invalidity in connection with the sale.
14. The proceeds of a sale mentioned in Article 12 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
15. 15.1 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 the way of premium] and not by the terms of
issue of those shares made payable at fixed times.
15.2 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.
15.3 The directors may revoke or postpone a call.
16. A call be deemed to have been made at the time when the resolution of the
directors authorising the call was passed and may be required to be paid
by instalments.
17. The joint holders of a share are jointly and severally liable to pay all
calls in respect of the share.
18. 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 as the directors determine,
but the directors may waive payment of that interest wholly or in part.
19. Any sum that, by the terms of issue of a share, becomes payable on
allotment or at a fixed date whether on account of the nominal value of
the share or by way of premium, shall for the purposes of these Articles
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 Articles 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.
20. 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.
21. 21.1 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.
21.2 The directors may authorise 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.
21.3 For the purpose of Article 21(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
22. 22.1 Subject to these Articles, 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.
22.2 An instrument of transfer referred to in Article 22(1) shall be
executed by or on behalf of both the transferor and the transferee.
22.3 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.
23. 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 Articles, register the transferee as a shareholder.
24. 24.1 The directors in their absolute and uncontrolled discretion may
refuse to register any transfer of shares without assigning any reason
therefor.
24.2 No transfer of shares shall be registered if upon its registration
the number of members of the company would exceed the maximum number
prescribed by Article 3(1).
25. 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.
TRANSMISSION OF SHARES
26. In the case of the death of a member, the survivor where the deceased was
a joint holder, and the legal personal representative of the deceased
where he was a sole holder, shall be the only persons recognized by the
company as having any title to his interest in the shares, but this
Article 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.
27. 27.1 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 a
holder of the share or to have some other person nominated by him
registered as the transferee of the share.
27.2 If the person becoming entitled elects to be registered himself, he
shall deliver or send to the company a notice in writing signed by himself
stating that he so elects.
27.3 If he elects to have another person registered, he shall execute a
transfer of the share to that other person.
27.4 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 or 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.
28. 28.1 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 if he had
not died or become bankrupt.
28.2 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 Articles, be deemed to be joint holders of the share.
FORFEITURE OF SHARES
29. 29.1 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 to him requiring payment of so
much of the call or installment as is unpaid, together with any interest
that has accrued.
29.2 The notice shall name a further day [not earlier that the expiration
of 14 days from the date of service of the notice] on or before which
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.
30. 30.1 If the requirements of a notice served under Article 29 are not
complied with, any share in respect of which the notice has been given may
at anytime thereafter, before the payment required by the notice has been
made, be forfeited by a resolution of the directors to that effect.
30.2 Such a forfeiture shall include all dividends declared in respect of
the forfeited shares and not actually paid before the forfeiture.
31. 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 canceled on such terms as the
directors think fit.
32. 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.
33. 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 statements as against all persons
claiming to be entitled to the share.
34. 34.1 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 share in favor of the person to whom the share is sold or
disposed of.
34.2 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.
34.3 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.
35. The provisions of the Articles as to forfeiture apply in the case of
non-payment of any sum 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.
CONVERSION OF SHARES INTO STOCK
36. The company may, by resolution, convert all or any of its paid-up shares
into stock and reconvert any stock into paid-up shares of any nominal
value.
37. 37.1 Subject to Article 37(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 application, to the transfer of the
stock or of any part of the stock.
37.2 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.
38. 38.1 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.
38.2 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.
39. The provisions of these Articles 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
40. 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 canceled.
41. 41.1 Subject to any direction to the contrary that may be given by the
company in general meeting, all unissued shares shall, before issue, be
offered to members who shall be offered that proportion of the shares
which the sum of the nominal values of the shares held by them bears to
the nominal value of the issued share capital of the company, provided
that if at any time there is more than one class of share on issue,
unissued shares of any class of share shall be first offered to members
who as at the date of the offer are registered as holders of shares of
that class, and each such member shall be offered that proportion of the
shares of that class which the sum of the nominal values of the shares of
that class held by him bears to the sum of the nominal values of issued
shares of that class.
41.2 The offer shall be made by notice specifying the number of shares
offered and limiting a time within which the offer, if not accepted, will
be deemed to be declined.
41.3 After the expiration of that time or on being notified by the person
to whom the offer is made that he declines to accept the shares offered,
the directors may issue those shares in such a manner as they think most
beneficial to the company.
41.4 Where, by reason of the proportion that shares proposed to be issued
bear to shares already held, some of the first-mentioned shares cannot be
offered in accordance with Article 41(1), the directors may issue the
shares that cannot be so offered in such manner as they think most
beneficial to the company.
42. Subject to the Law, the company may, by special resolution, reduce its
share capital, any capital redemption reserve fund or any other share
premium account.
GENERAL MEETINGS
43. Any director may whenever he thinks fit convene a general meeting.
44. 44.1 A notice of a general meeting shall specify the place, the day and
the hour of meeting and, except as provided by Article 44(2), shall state
the general nature of the business to be transacted at the meeting.
44.2 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, the election of directors in the place of
those retiring or the appointment and fixing of the remuneration of the
auditors.
PROCEEDINGS AT GENERAL MEETINGS
45. 45.1 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.
45.2 Two persons each being a member or a proxy or a representative of a
member shall be a quorum for a general meeting.
46. 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;
(b) or in any other case:
(1) 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
(2) if at the adjourned meeting a quorum is not present within half an
hour from the time appointed for such adjourned meeting, then the
meeting shall be dissolved.
47. 47.1 If the directors have elected one of their number as chairman of
their meetings, he shall preside as chairman at every general meeting.
47.2 Where a general meeting is held and:
(a) a chairman has not been elected as provided by Article 47 (1); or
(b) the chairman is not present within 15 minutes after the time
appointed for the holding of the meeting or is unwilling to act,
the members present shall elect one of their number to be chairman of the
meeting.
48. 48.1 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.
48.2 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.
48.3 Except as provided by Article 48(2), it is not necessary to give any
notice of an adjournment or of the business to be transacted at an
adjourned meeting.
49. 49.1 At any general meeting a resolution put to the vote 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 persons or by proxy or by a
representative, having the right to vote at the meeting;
(c) by a member or members present in person or by proxy or by a
representative, who together are entitled to 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, present in person or by proxy or by a
representative, 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.
49.2 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 of the fact without proof of the
number of proportion of the votes recorded in favor of or against the
resolution.
49.3 The demand for a poll may be withdrawn.
50. 50.1 If a poll is duly demanded, it shall be taken in such manner and
[subject to Article 50(2)] at once after either 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.
50.2 A poll demanded on the election of a chairman or on a question of
adjournment shall be taken forthwith.
51. 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.
52. 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 by a representative or by
attorney; and
(b) on a show of hands every person present who is a member or a proxy
or an attorney or a representative of a member has one vote, and on
a poll every person present in person or by proxy or attorney or by
a representative has one vote for each share he holds.
53. 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.
54. 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.
55. A member is not entitled to vote at a general meeting unless all calls and
other sums presently payable by him respect of shares in the company have
been paid.
56. 56.1 An objection may be raised to the qualification of a voter only at
the meeting or adjourned meeting at which the vote objected to is given or
tendered.
56.2 Any such objection shall be referred to the chairman of the meeting,
whose decision is final.
56.3 A vote not disallowed pursuant to such an objection is valid for all
purposes.
57. 57.1 An instrument appointing a proxy shall be in writing under the hand
of the appointor or his attorney duly authorized in writing or, if the
appointor is a body corporate, either under seal or under the hand of an
officer or attorney duly authorized.
57.2 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 in the
resolution except as specified in the instrument.
57.3 An instrument appointing a proxy shall be deemed to confer authority
to demand or join in demanding a poll.
57.4 An instrument appointing a proxy shall be in the following form or in
a form that is 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 *annual general/ *general meeting of
the company to be held on the ____ day of _________ 19__ and at any
adjournment of that meeting.
+ This form is to be used in favor of/* against the resolution.
Signed this ____ day of _________ 19__.
* Strike out whichever is not desired.
+ To be inserted if desired.
58. 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,
at the registered office of the company or at such other place in
Australia as is specified for that purpose in the notice convening the
meeting.
59. 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 power
is given, if no intimation in writing of the death, unsoundness of mind,
revocation 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.
APPOINTMENT, REMOVAL AND REMUNERATION OF DIRECTORS
60. 60.1 The number of the directors and the names of the first directors
shall be determined in writing by the subscribers to the memorandum of
association or a majority of them.
60.2 The company may, by resolution:
(a) increase or reduce the number of directors;
(b) remove any director from office;
(c) appoint a new director to replace a director whose office has been
vacated pursuant to the articles; or
(d) appoint an additional director or additional directors.
61. 61.1 The directors may at any time appoint any person to be a director,
either to fill a casual vacancy or as an addition to the existing
directors, bu so that the total number of directors does not at any time
exceed the number determined in accordance with these Articles.
61.2 Any director so appointed holds office only until the next following
annual general meeting and is then eligible for re-election but shall not
be taken into account in determining the directors who are to retire by
rotation at that meeting.
62. 62.1 The company may by resolution remove any director before the
expiration of his period of office, and may by resolution appoint another
person in his stead.
62.2 The person so appointed is subject to retirement at the same time as
if he had become a director on the day on which the director in whose
place he is appointed was last elected a director.
63. 63.1 The directors shall be paid such remuneration as is from time to time
determined by the company in general meeting.
63.2 The remuneration shall be deemed to accrue from day to day.
63.3 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.
64. It shall not be necessary for any director to hold any share
qualification.
65. In addition to the circumstances in which the office of a director becomes
vacant by virtue of the Law, the office of a director becomes vacant if
the director:
(a) becomes of unsound mind or a person whose person or estate is liable
to be dealt with in any way under the law relating to mental health;
(b) resigns his office by notice in writing to the company;
(c) is absent without the consent of the directors from meetings of the
directors held during a period of 6 months.
POWERS AND DUTIES OF DIRECTORS
66. 66.1 Subject to the Law and to any other provision of these Articles, 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 Law or by these
Articles, required to be exercised by the company in general meeting.
66.2 Without limiting the generality of Article 66(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.
67. 67.1 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.
67.2 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.
68. All checks, promissory notes, bankers drafts, bills of exchange and other
negotiable instruments, and all receipts of 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.
PROCEEDING OF DIRECTORS
69. 69.1 The directors may meet together for the dispatch of business and
adjourn and otherwise regulate their meetings as they think fit.
69.2 A director at any time, and a secretary shall on the requisition of a
director, convene a meeting of the directors. Notice of every director's
meeting shall be given to each director and alternate director who is
within Australia.
70. 70.1 Subject to these Articles, 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.
70.2 In case of an equality of votes, the chairman of the meeting, in
addition to his deliberative vote [if any], has a casting vote.
71. No director shall be disqualified by his office from holding any other
office or place of profit under the company (other than as auditor) or
from contracting with the company, either as vendor, purchaser or
otherwise, nor shall any such contract or any contract or arrangement
entered into by or on behalf of the company in which any director shall be
in any way interested be avoided, nor shall any director be liable to
account to the company for any profit arising from such office or place of
profit or realized by any such contract or arrangement by reason only of
such director holding that office or of the fiduciary relationship thereby
established, but it is declared that the nature of his interest must be
disclosed by him in any manner required by the Law. A director may as a
director vote in respect of any contract arrangement in which he is so
interested as aforesaid. So long as the provisions of this article have
been observed by a director with regard to any contract or arrangement in
which such director shall be in any way interested, then the fact that
such director affixed the company's seal to the document evidencing such
contract or arrangement shall not in any way affect the validity of the
said document.
72. 72.1 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.
72.2 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. If the alternate director is
already a director of the company he shall be entitled to vote on his own
behalf as well as on behalf of the director appointing him, but for the
purpose of determining whether a quorum is present, he shall be counted
only once.
72.3 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.
72.4 An alternate director is not required to have any share
qualifications.
72.5 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.
72.6 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.
73. 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.
74. 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.
75. 75.1 The directors shall elect one of their number as a chairman of their
meetings and may determine the period for which he is to hold office.
75.2 Where such a meeting is held and:
(a) a chairman has not been elected as provided by Article 75(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.
76. 76.1 The directors may delegate any of their powers to a committee or
committees consisting of such of their number as they think fit.
76.2 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.
76.3 The members of such a committee may elect one of their number as
chairman of their meetings.
76.4 Where such a meeting is held and:
(a) a chairman has not been elected as provided by Article 76(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.
76.5 A committee may meet and adjourn as it thinks proper.
76.6 Questions arising at a meeting of a committee shall be determined by
a majority of votes, of the members present and voting.
76.7 In the case of an equality of votes, the chairman, in addition to his
deliberative vote [ if any], has a casting vote.
77. 77.1 If all the directors have signed a document containing a statement
that they are in favor 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.
77.2 For the purposes of Article 77(1), two 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.
77.3 A reference in Article 77(1) to all directors does not include a
reference to a director who, at a meeting of directors, would not be
entitled to vote on the resolution.
78. All acts done by any meeting of the directors or of a committee of
directors or by any person 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 or 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
79. 79.1 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 in a particular case, may revoke any such appointment.
79.2 The appointment of any such managing director shall automatically
terminate if he ceases from any cause to be a director.
80. 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.
81. 81.1 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.
81.2 Any powers so conferred may be concurrent with, or be to the
exclusion of, the powers of the directors.
81.3 The directors may at any time withdraw or vary any of the powers so
conferred on a managing director.
ASSOCIATE DIRECTORS
82. 82.1 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.
82.2 The directors may from time to time determine the powers, duties and
remuneration of any person so appointed.
82.3 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
the directors.
SECRETARY
83. A secretary of the company holds office on such terms and conditions, as
to remuneration and otherwise, as the directors determine.
SEAL
84. 84.1 The directors shall provide for the safety custody of the seal.
84.2 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
85. The directors shall determine whether and to what extent, and at what 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.
DIVIDENDS AND RESERVES
86. 86.1 The company in general meeting may declare a dividend if, and only
if, the directors have recommended a dividend.
86.2 A dividend shall not exceed the amount recommended by the directors.
86.3 Where at any time there is more than one class of share on issue,
then subject to the rights applicable to the shares concerned, dividends
whether interim or otherwise may be declared and paid at different rates
for different classes of shares and may be declared and paid on the shares
of any one or more class or classes of shares to the exclusion of the
shares of any other class or classes of shares.
87. 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.
88. Interest is not payable by the company in respect of any dividend.
89. 89.1 The directors may, before recommending 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 for which
the profits of the company may be properly applied.
89.2 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.
89.3 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.
90. 90.1 Subject to the rights of persons [if any] entitled to shares with
special rights as to 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.
90.2 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.
90.3 An amount paid or credited as paid on a share in advance of a call
shall not be taken for the purposes of this Article to be paid or credited
as paid on the share.
91. 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.
92. 92.1 Any general meeting declaring a dividend may, by resolution, direct
payment of the dividend wholly or partly by the distribution of specific
assets, including paid up shares in, or debentures of, any other
corporation, and the directors shall give effect to such a resolution.
92.2 Where a difficulty rises in regard to such a distribution, the
directors may settle the matter as they consider expedient and fix the
value for the 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.
93. 93.1 Any dividend, interest or other money payable in cash in respect of
shares may be paid by check sent through the post directed to:
(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.
93.2 Any one of 2 or more joint holders may give effectual receipts for
any dividends, interest or other money payment in respect of the shares
held by them as joint holders.
CAPITALISATION OF PROFITS
94. 94.1 Subject to Article 94(2), the company in general meeting may resolve
that it is desirable to capitalise any sum, being the whole or 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
Article 94(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.
94.2 The company shall not pass a resolution as mentioned in Article 94(1)
unless the resolution has been recommended by the directors.
94.3 The ways in which a sum may be applied for the benefit of members
under Article 94(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).
94.4 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) authorise any person to make, on behalf of all the members entitled
to any further shares or debentures upon the capitalisation, 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 capitalised;
and any agreement made under an authority referred to in paragraph (b) is
effective and binding on all the members concerned.
NOTICES
95. 95.1 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.
95.2 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.
95.3 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.
95.4 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 Australia
supplied, at the address to which the notice might have been sent if the
death or bankruptcy had not occurred.
96. 96.1 Notice of every general meeting shall be given in the manner
authorised by Article 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.
96.2 No other person is entitled to receive notices of general meetings.
WINDING UP
97. 97.1 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, subject to the rights of holders of shares
issued with special rights on winding up of the company.
97.2 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
98. 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 Law granted to him by the
Court.
We the several persons whose signatures are subscribed, being subscribers to the
memorandum of association, hereby agree to the following articles of
association.
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Subscribers' Signatures Witness' signature
- --------------------------------------------------------------------------------
/s/ A.R. Harris
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A.R. HARRIS
/s/ R.G. Harvey /s/ J. Bennett
- --------------- --------------
R.G. HARVEY JENNIFER LYNETTE BENNETT
73 High Street
Parramatta, NSW 2150
Witness to both signatures
- --------------------------------------------------------------------------------
dated: 17/02/93...........
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GUTBUSTERS PTY LTD
(ACN 059 073 157)
NOTICE OF ANNUAL GENERAL MEETING
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NOTICE IS GIVEN that the Annual General Meeting of the Company will be held at
Princes Highway, Dandenong, Victoria 3175 Australia on Tuesday, 19 September
1995 at 3:00 p.m.
AGENDA
A. Ordinary Business
To receive and adopt the Statutory Accounts of the Company as at 28 April 1995
together with Group Accounts of the Company and its subsidiaries in accordance
with the Corporations Law and the Reports of the Directors and Auditors thereon.
B. Special Business
To consider and, if thought fit, pass the following resolution which will
be proposed as a special resolution:
"That the Articles of Association of the Company be amended as follows:
1. Insert the following immediately following Regulation 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.
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 2.1 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.
2.2 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.
2.3 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.
2.4 In this Article:
(a) "officer" means:
(1) (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
(2) 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:
(1) to the extent the Company is not precluded
by law from doing so;
(2) 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) or appearing before
any court, tribunal, government authority or
otherwise."."
EXPLANATORY NOTES - SPECIAL BUSINESS
The following are Explanatory Notes setting out the reasons for the proposed
amendments to the Articles of Association.
1. Regulation 78A - Board Meetings by telephone, etc.
A new Regulation 78A is proposed to be inserted to reflect current
practices and give greater flexibility to the way in which Board meetings
may be conducted.
2. Regulation 78B - Directors' Proxies.
Similarly, a new Regulation 78B is proposed to enable a Director to
appoint a co-Director as the appointor's proxy for the purpose of one or
more Board meetings.
3. Regulation 98 - Indemnity of Directors and Officers
The Corporate Law Reform Act 1994, referred to above, relaxed the
restrictions on a company indemnifying its officers. Previously a company
was only permitted to indemnify its officers against liability arising out
of the execution of the duties of their office which is incurred by them
in defending proceedings, whether civil or criminal, in which judgment is
given in their favour. The new provisions allow additional indemnification
against liability howsoever arising, unless that liability arises out of
conduct involving a lack of good faith. The Company's present Article 142
is based on the previous law and can now be widened.
The Corporate Law Reform Act also allows a company to pay insurance
premiums in respect of policies insuring directors and officers against
liability except where that liability arises from a wilful breach of duty,
the improper use of inside information or the improper use of position.
Proxies
Note:
o A member of the Company entitled to attend and vote at the General Meeting
is entitled to appoint a proxy.
o A proxy need not be a member of the Company.
o Forms of proxy (duly completed) must be lodged at the registered office of
the Company at least 36 hours prior to the meeting.
o A form of proxy accompanies this Notice of Annual General Meeting.
BY ORDER OF THE BOARD
/s/ G. Nankin
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G. Nankin
Secretary
DATED: 28 August 1995.
cc: Fortuity Pty Ltd
Mr. K.A. Dynon
Mr. G.J. Egger
Mr. R.L. Penn
Mr. N.J. Fielke
Coopers & Lybrand
GUTBUSTERS PTY LTD
(ACN 059 073 157)
PROXY
_________________________ of _________________________ being a member of the
above-named company, hereby appoints _________________________ of
_________________________ or, or in his absence, the Chairman of the meeting as
my proxy to vote on my/its behalf at the Annual General Meeting of the Company
to be held on 19 September 1995 or at any adjournment of that meeting.
DATED: _________, 1995
_________________________
For and on behalf of