EXHIBIT 1.1
CONSTITUTION
Ansell limited
ABN 89 004 085 330
(Adopted by a special resolution of the members on 12 April 2002)
[LOGO OF FREEHILLS]
101 Collins Street Melbourne Victoria 3000 Australia
Telephone 61 3 9288 1234 Facsimile 61 3 9288 1567
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SYDNEY MELBOURNE PERTH CANBERRA BRISBANE HANOI HO CHI MINH CITY SINGAPORE
Correspondent Offices JAKARTA KUALA LUMPUR
Liability limited by the Solicitors' Limitation of Liability Scheme, approved
under the Professional Standards Act 1994 (NSW)
Reference SJW:SLS
Constitution
TABLE OF CONTENTS
Clause Page
Preliminary 1
1 Definitions and interpretation 1
2 Application of other definitions 3
3 Exercising powers 3
4 Table A and other rules do not apply 4
Share capital 4
5 Shares 4
6 Implementing changes to share capital 5
7 Joint holders of shares 5
8 Equitable and other claims 5
9 Altering rights and class meetings 6
Calls, forfeiture, indemnities and lien 7
10 Calls 7
11 Proceedings to recover calls 8
12 Payments in advance of calls 8
13 Forfeiting partly paid shares 8
14 Payments by the company 9
15 Lien on shares 10
16 Procedures after sale, reissue or other disposal of shares
by the company 11
17 General 12
Transferring and transmitting shares 12
18 Transferring shares 12
19 Power to decline to register transfers 13
20 Power to close register of members 14
21 Selling non-marketable parcels 14
22 Transmitting shares 15
General meetings 16
23 Calling general meetings 16
24 Notice of general meetings 16
25 Admission to general meetings 17
26 Quorum at general meetings 18
27 Chair of general meetings 18
28 Conduct at general meetings 19
29 Decisions at general meetings 20
30 Voting rights 21
31 Representation at general meetings 22
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Directors 24
32 Number of directors 24
33 Appointing and retirement of directors 25
34 Vacating office 26
35 Remuneration 26
36 Disclosing directors' interests 28
37 Directors may contract with the company and hold
other offices 28
38 Powers and duties of directors 29
39 Proceedings of directors 30
40 Calling meetings of directors 30
41 Quorum at meetings of directors 30
42 Chair and deputy chair of directors 31
43 Authority and decisions of directors 31
44 Circular resolutions 31
45 Alternate directors 32
46 Committees of directors 33
47 Validity of acts 33
Executive officers 34
48 Managing director and executive director 34
49 Secretary 34
50 Provisions applying to executive officers 34
Seals 35
51 Using the seal 35
52 Seal register 35
Distributions to members 35
53 Dividends 35
54 Capitalising profits 37
55 Ancillary powers 38
56 Reserves 39
57 Carrying forward profits 39
58 Distributing surplus 39
59 Dividing property 40
Records 40
60 Inspection of and access to records 40
Protection of officers and former officers 41
61 Indemnity and insurance 41
NOTICES 42
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62 Giving of Notices 42
63 Time of service 43
64 Other communications and documents 43
General 43
65 Submission to jurisdiction 43
66 Prohibition and enforceability 43
67 Transitional Provisions 44
Restricted Securities 44
68 Restricted Securities 44
Partial Takeovers 45
69 Partial Takeovers 45
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ANSELL LIMITED
ABN 89 004 085 330
A PUBLIC COMPANY LIMITED BY SHARES
CONSTITUTION
(AS ADOPTED ON 12 APRIL 2002)
PRELIMINARY
1 DEFINITIONS AND INTERPRETATION
(a) In this constitution:
Act means Corporations Act 2001 (Cth);
Exchange means Australian Stock Exchange Limited or such other
body corporate that is declared by the directors to be the
company's primary stock exchange for the purposes of this
definition;
Listing Rules means the listing rules of the Exchange as they
apply to the company from time to time;
record time means:
(1) in the case of a meeting for which the caller of the meeting
has decided, under the Act, that shares are to be taken to
be held by the persons who held them at a specified time
before the meeting, the specified time; and
(2) in any other case, the time of the relevant meeting;
representative, in relation to a member which is a body corporate
and in relation to a meeting, means a person authorised by the
body corporate in accordance with the Act (or a corresponding
previous law) to act as its representative at that meeting;
SCH means the Securities Clearing House of the Exchange;
transmission event means:
(1) for a member who is an individual:
(A) the member's death;
(B) the member's bankruptcy; or
(C) the member becoming of unsound mind or a person who, or
whose estate, is liable to be dealt with in any way
under the law relating to mental health; and
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Constitution
(2) for a member which is a body corporate, the dissolution of
the member or the succession by another body corporate to
the assets and liabilities of the member.
(b) A reference in this constitution to:
(1) a partly paid share is a reference to a share on which there
is an amount unpaid;
(2) an amount unpaid on a share includes a reference to any
amount of the issue price which is unpaid; and
(3) a call or an amount called on a share includes a reference
to a sum that, by the terms of issue of a share, becomes
payable on allotment or at a fixed date.
(c) A reference in this constitution to a member for the purposes of
a meeting of members is a reference to a registered holder of
shares as at the relevant record time.
(d) A reference in this constitution to a member present at a general
meeting is a reference to a member present in person or by proxy,
attorney or representative.
(e) A reference in this constitution in general terms to a person
holding or occupying a particular office or position is a
reference to any person who occupies or performs the duties of
that office or position.
(f) A reference in this constitution to a monetary amount is a
reference to that amount in Australian currency or such other
currency as may be determined by the directors from time to time.
(g) Unless the contrary intention appears, in this constitution:
(1) headings are only for convenience and do not affect the
meaning of this constitution;
(2) words that refer to a singular number also refer to plural
numbers, and the other way around;
(3) words that refer to a gender also refer to the other
genders;
(4) words used to refer to persons generally, or to refer to a
natural person, include a company, corporation, body
corporate, body politic, partnership, joint venture,
association, board, group or other body (whether or not the
body is incorporated);
(5) a reference to a person includes that person's successors
and legal personal representatives;
(6) a reference to a statute, regulation, proclamation,
ordinance or by-law or a provision of any of them includes
all statutes, regulations, proclamations, ordinances,
by-laws or provisions varying, consolidating or replacing
them, and a reference to a statute includes all regulations,
proclamations, ordinances and by-laws issued under that
statute;
(7) a reference to the Listing Rules or the SCH business rules
includes any variation, consolidation or replacement of
those rules and is to
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Constitution
be taken to be subject to any waiver or exemption granted to
the company (or to the benefit of which the company is
entitled) from compliance with those rules; and
(8) where a word or phrase is given a particular meaning, other
parts of speech and grammatical forms of that word or phrase
have corresponding meanings.
2 APPLICATION OF OTHER DEFINITIONS
Unless the contrary intention appears:
(a) an expression in a rule that deals with a matter dealt with by a
provision of the Act, the Listing Rules or the SCH business rules
has the same meaning as in that provision; and
(b) subject to paragraph (a), an expression in a rule that is defined
in section 9 of the Act has the same meaning as in that section.
3 EXERCISING POWERS
(a) The company may in any way the Act permits:
(1) exercise any power;
(2) take any action; or
(3) engage in any conduct or procedure,
which, under the Act a company limited by shares may exercise,
take or engage in.
(b) Where this constitution provides that a person may do a
particular act or thing and the word "may" is used, the act or
thing may be done at the person's discretion.
(c) Where this constitution confers a power to do a particular act or
thing, the power is, unless the contrary intention appears, to be
taken as including a power exercisable in the same way and
subject to the same conditions (if any) to repeal, rescind,
revoke, amend or vary that act or thing.
(d) Where this constitution confers a power to do a particular act or
thing, the power may be exercised from time to time.
(e) Where this constitution confers a power to do a particular act or
thing concerning particular matters, the power is, unless the
contrary intention appears, to be taken to include a power to do
that act or thing as to only some of those matters or as to a
particular class of those matters, and to make different
provision concerning different matters or different classes of
matters.
(f) Where this constitution confers a power to make appointments to
an office or position (except the power to appoint a director
under rule 33(a)), the power is, unless the contrary intention
appears, to be taken to include a power:
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(1) to appoint a person to act in the office or position until a
person is permanently appointed to the office or position;
(2) to remove or suspend any person appointed (without prejudice
to any rights or obligations under any contract between the
person and the company); and
(3) to appoint another person temporarily in the place of any
person removed or suspended or in the place of any sick or
absent holder of the office or position.
(g) To the extent the law permits, where this constitution gives
power to a person to delegate a function or power:
(1) the delegation may be concurrent with, or (except in the
case of a delegation by the board of directors) to the
exclusion of, the performance or exercise of that function
or power by the person;
(2) the delegation may be either general or limited in any way
provided in the terms of delegation;
(3) the delegation need not be to a specified person but may be
to any person holding, occupying or performing the duties of
a specified office or position;
(4) the delegation may include the power to delegate; and
(5) where performing or exercising that function or power
depends on that person's opinion, belief or state of mind
about a matter, that function or power may be performed or
exercised by the delegate on the delegate's opinion, belief
or state of mind about that matter.
4 TABLE A AND OTHER RULES DO NOT APPLY
The regulations contained in the Table marked "A" in the Second
Schedule to the Companies Act 1915 and any provisions of the Act that
apply (or would but for this rule apply) internal management rules to
the company as a replaceable rule are displaced by this constitution
and do not apply to the company except insofar as they are repeated in
this constitution.
SHARE CAPITAL
5 SHARES
Subject to this constitution, the directors may:
(a) issue, grant options for, or otherwise dispose of, shares in the
company; and
(b) decide:
(1) the terms on which shares are issued or options are granted;
(2) the rights and restrictions attached to those shares or
options; and
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(3) the terms on which the allotment of preference shares may be
submitted for the approval of members, to the extent
required by the Act.
6 IMPLEMENTING CHANGES TO SHARE CAPITAL
(a) The company may reduce its share capital or alter its capital
structure in any manner permitted by the Act or the Listing
Rules.
(b) Subject to any requirements in the Act, the directors may do
anything necessary or desirable to give effect to any resolution
altering the company's share capital, including, without
limitation where a member becomes entitled to a fraction of a
share on a consolidation any or all of:
(1) making cash payments;
(2) determining that all or any fractions may be disregarded;
(3) appointing a trustee to deal with any fractions on behalf of
members; and
(4) rounding up each fractional entitlement to the nearest whole
share.
7 JOINT HOLDERS OF SHARES
Where 2 or more persons are registered as the holders of a share, they
hold it as joint tenants with rights of survivorship, on the following
conditions:
(a) they are liable individually as well as jointly for all payments,
including calls, in respect of the share;
(b) subject to paragraph (a), on the death of any one of them the
survivor or survivors is/are the only person(s) the company will
recognise as having any title to the share;
(c) any one of them may give effectual receipts for any dividend,
bonus, interest or other distribution or payment in respect of
the share; and
(d) except where persons are jointly entitled to a share because of a
transmission event, or where required by the Listing Rules, the
company may limit to 3 the number of persons to be registered as
joint holders of the share.
8 EQUITABLE AND OTHER CLAIMS
Except where a law requires otherwise, the company is entitled to
treat the registered holder of a share as the absolute owner of that
share and need not:
(a) recognise a person as holding a share on any trust, even if the
company has notice of that trust; or
(b) recognise, or be bound by, any equitable, contingent, future or
partial claim to or interest in a share by any other person,
except an absolute right of
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ownership in the registered holder, even if the company has
notice of that claim or interest.
9 ALTERING RIGHTS AND CLASS MEETINGS
(a) The Company may by resolution convert or reclassify shares from
one class to another.
(b) Unless the terms of issue of a class of shares provide otherwise:
(1) all or any of the rights or privileges attached to a class
of shares which does not exist at the date this constitution
is adopted may be varied, whether or not the company is
being wound up, only with the consent in writing of the
holders of at least three-fourths of the issued shares of
that class, or with the sanction of a special resolution
passed at a separate meeting of the holders of shares of
that class;
(2) the provisions of this constitution relating to general
meetings apply, so far as they can and with such changes as
are necessary, to each separate meeting of the holders of
shares of that class; and
(3) the rights conferred upon the holders of shares of that
class are to be taken as not having been varied by the
creation or issue of further shares ranking equally with
them.
(c) The following provisions of this rule 9(c) apply to a class of
shares which exists at the date this constitution is adopted:
(1) the rights attached to a class of shares will not be varied
or abrogated and this constitution will not be altered so as
to authorise the variation or abrogation of those rights
unless consent to the variation or abrogation has first been
given either by:
(A) an instrument or instruments in writing executed by the
holders of 75% of the issued shares included in the
class; or
(B) a special resolution of the holders of the issued
shares included in the class.
(2) Nothing in this rule will derogate from or affect any right
to exercise any statutory or other power which would have
existed if this rule were omitted Provided Always that the
provisions of this rule will not apply to any variation or
abrogation of such rights as a consequence of any increase
of the capital of the company.
(3) The provisions of this constitution relating to general
meetings apply so far as they are capable of application and
with such changes as are necessary to every meeting of the
holders of the issued shares included in a class of shares
which is convened for the purpose of considering a special
resolution under this rule except that:
(A) a quorum is constituted by members present representing
25% of the issued shares included in the class; and
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(B) any holder of shares included in the class, present in
person or by proxy or attorney or, in the case of a
holder which is a corporation, by representative, may
demand a poll.
CALLS, FORFEITURE, INDEMNITIES AND LIEN
10 CALLS
(a) Subject to this constitution and to the terms on which any shares
are issued, the directors may:
(1) make calls on the members for any amount unpaid on their
shares which is not by the terms of issue of those shares
made payable at fixed times; and
(2) on the issue of shares, differentiate between members as to
the amount of calls to be paid and the time for payment.
(b) The directors may require a call to be paid by instalments.
(c) On receiving at least 14 days' notice (or any longer period
required by the Listing Rules) specifying the time and place of
payment, each member must pay to the company by the time and at
the place specified the amount called on the member's shares.
(d) A call is taken to have been made when the resolution of the
directors authorising the call is passed.
(e) The directors may revoke a call or extend the time for payment.
(f) Failure of a member to receive a notice of a call, or accidental
failure to give notice of a call to a member, does not invalidate
the call.
(g) If an amount called on a share is not paid in full by the time
specified for payment, the person from whom the amount is due
must, if the directors decide, pay:
(1) interest on the unpaid part of the amount from the date
specified for payment of the amount to the date of actual
payment, at a rate determined under rule 17; and
(2) if the share was issued after the date this constitution is
adopted, any expenses or damages the company incurs because
the amount has not been paid or has been paid late.
(h) Any amount unpaid on a share that, by the terms of issue of the
share, becomes payable on allotment or at a fixed date:
(1) must be treated for the purposes of this constitution as if
that amount were payable under a call duly made and
notified; and
(2) must be paid on the date on which it is payable under the
terms of issue of the share.
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(i) The directors may, to the extent the law permits, waive or
compromise all or part of any payment due to the company under
the terms of issue of a share or under this rule 10.
11 PROCEEDINGS TO RECOVER CALLS
(a) In an action or other proceedings to recover a call, or interest
or costs or expenses incurred because of the failure to pay or
late payment of a call, proof that:
(1) the name of the defendant is entered in the register as the
holder or one of the holders of the share on which the call
is claimed;
(2) the resolution making the call is recorded in the minute
book; and
(3) notice of the call was given to the defendant complying with
this constitution,
is conclusive evidence of the debt and it is not necessary to
prove the appointment or committee membership of the directors
who made the call or any other matter.
(b) In paragraph (a), defendant includes a person against whom the
company alleges a set-off or counterclaim, and action or other
proceedings for the recovery of a call is to be interpreted
accordingly.
12 PAYMENTS IN ADVANCE OF CALLS
(a) The directors may accept from a member the whole or a part of the
amount unpaid on a share even though no part of that amount has
been called.
(b) The directors may authorise payment by the company of interest on
the whole or a part of an amount accepted under paragraph (a),
until the amount becomes payable, at a rate agreed between the
directors and the member paying the amount.
(c) Unless a different agreement is made, the directors may repay to
a member all or a part of the amount accepted under paragraph
(a).
13 FORFEITING PARTLY PAID SHARES
(a) If a member fails to pay the whole of a call or an instalment of
a call by the time specified for payment, the directors may serve
a notice on that member:
(1) requiring payment of the unpaid part of the call or
instalment, together with any interest that has accrued and
all costs, expenses or damages that the company has incurred
because of the failure to pay;
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(2) naming a further time (at least 14 days after the date of
the notice) by which, and a place at which, the amount
payable under sub-paragraph (1) must be paid; and
(3) stating that, if the whole of the amount payable under
sub-paragraph (1) is not paid by the time and at the place
named, the shares on which the call was made will be liable
to be forfeited.
(b) If the requirements of a notice served under paragraph (a) are
not complied with, the directors may by resolution forfeit any
share concerning which the notice was given at any time after the
day named in the notice and before the payment required by the
notice is made.
(c) A forfeiture under paragraph (b) includes all dividends, interest
and other money payable by the company on the forfeited share and
not actually paid before the forfeiture.
(d) Where a share has been forfeited:
(1) notice of the resolution must be given to the member in
whose name the share stood immediately before the
forfeiture; and
(2) an entry of the forfeiture, with the date, must be made in
the register of members.
(e) Failure to give the notice or to make the entry required under
paragraph (d) does not invalidate the forfeiture.
(f) A forfeited share becomes the property of the company and the
directors may sell, reissue or otherwise dispose of the share in
the way they think fit and, in the case of reissue or other
disposal, with or without crediting as paid up any money paid on
the share by any former holder.
(g) A person whose shares have been forfeited ceases to be a member
as to the forfeited shares, but must, if the directors decide,
pay to the company:
(1) all calls, instalments, interest, costs, expenses and
damages owing on the shares at the time of the forfeiture;
and
(2) interest on the unpaid part of the amount payable under
sub-paragraph (1), from the date of the forfeiture to the
date of actual payment, at a rate determined under rule 17.
(h) The forfeiture of a share extinguishes all interest in, and all
claims and demands against the company relating to, the forfeited
share and, subject to rule 16(i), all other rights attached to
the share.
14 PAYMENTS BY THE COMPANY
If the company becomes liable for any reason under a law to make a
payment:
(a) in respect of shares held solely or jointly by a member;
(b) in respect of a transfer or transmission of shares by a member;
(c) in respect of dividends, bonuses or other money due or payable or
which may become due and payable to a member; or
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Constitution
(d) in any other way for, on account of or relating to a member,
then, in addition to any right or remedy that a law gives the company
the member or, if the member is dead, the member's legal personal
representative must:
(1) fully indemnify the company against that liability;
(2) on demand reimburse the company for any payment made; and
(3) pay interest on the unpaid part of the amount payable to the
company under sub-paragraph (2), from the date the company makes
the payment until the date the company is reimbursed in full for
that payment under sub-paragraph (2), at a rate determined under
rule 17.
15 LIEN ON SHARES
(a) The company has a first and paramount lien on:
(1) each partly paid share for all unpaid calls and instalments
due on that share;
(2) each share acquired under an employee incentive scheme for
any amount which is owed to the company for the acquisition
of that share; and
(3) each share for any amounts the company is called on by law
to pay and has paid in respect of that share.
(b) The company's lien on a share extends to all dividends payable on
the share and to the proceeds of sale of the share.
(c) The directors may sell a share on which the company has a lien in
the way they decide where:
(1) an amount for which a lien exists under this rule 15 is
presently payable; and
(2) the company has, at least 14 days before the date of the
sale, given the registered holder of the share a written
notice stating the part of the amount for which the lien
exists that is presently payable, and demanding payment of
that amount.
(d) The directors may do anything necessary or desirable under the
SCH business rules to protect any lien, charge or other right to
which the company is entitled under this constitution or a law.
(e) When the company registers a transfer of shares on which the
company has a lien without giving the transferee notice of its
claim, the company's lien is released so far as it relates to
amounts owing by the transferor or any predecessor in title on
the shares transferred.
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16 PROCEDURES AFTER SALE, REISSUE OR OTHER DISPOSAL OF SHARES BY THE COMPANY
(a) A reference in this rule 16 to a sale of a share by the company
is a reference to any sale, reissue or other disposal of a share
under rule 13(f), rule 15(c) or rule 21.
(b) After the company has sold a share, the directors may:
(1) receive the purchase money or consideration given for the
share;
(2) appoint a person to effect a transfer of the share or
execute a transfer of the share or any other document to
give effect to the sale; and
(3) register as the holder of the share the person to whom the
share is sold.
(c) A person to whom the company sells shares need not take any steps
to investigate the regularity or validity of the sale, or to see
how the purchase money or consideration on the sale is applied.
That person's title to the shares is not affected by any
irregularity by the company before the sale. A sale of a share by
the company is valid even if a transmission event occurs to the
member before the sale.
(d) Damages is the only remedy of a person who suffers any loss
because of a sale of shares by the company. The claim for damages
can only be made against the company.
(e) The proceeds of a sale, reissue or other disposal under rule
13(f) or a sale under rule 15(c) must be applied in paying:
(1) first, the expenses of the sale, reissue or other disposal;
(2) secondly, all money payable (whether presently or not) by
the former holder whose shares have been sold, reissued or
otherwise disposed of,
and any balance must be paid to the former holder on the former
holder delivering to the company such proof of title to the
shares as the directors accept.
(f) The proceeds of a sale under rule 21 must not be applied in
payment of the expenses of the sale and must be paid to the
former holder on the former holder delivering to the company such
proof of title of the shares as the directors accept.
(g) Until the proceeds of sale of a share sold by the company are
claimed or otherwise disposed of according to law, the directors
may invest or use the proceeds in any other way for the benefit
of the company.
(h) Money payable to a former holder under this rule does not bear
interest as against the company.
(i) On completion of a sale, reissue or other disposal of a share
under rule 13(f), the rights attached to the share which were
extinguished under rule 13(h) revive.
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(j) A written statement by a director or secretary of the company
that a share in the company has been:
(1) duly forfeited under rule 13(b);
(2) duly sold, reissued or otherwise disposed of under rule
13(f); or
(3) duly sold under rule 15(c) or rule 21,
on a date stated in the statement is conclusive evidence of the
facts stated as against all persons claiming to be entitled to
the share, and of the right of the company or the directors to
forfeit, sell, reissue or otherwise dispose of the share.
17 GENERAL
(a) For the purposes of rules 10(g)(1), 13(g)(2) and 14(c)(3), the
rate of interest payable to the company is:
(1) if the directors have fixed a rate, the rate as fixed; or
(2) in any other case, a rate per annum 2% higher than the rate
fixed under section 2 of the Penalty Interest Rates Act 1983
of Victoria.
(b) Interest payable under rules 10(g)(1), 13(g)(2) and 14(3) accrues
and must be calculated daily and may be capitalised at the
intervals the directors decide.
(c) The directors may:
(1) exempt a share from all or a part of rule 13, 14 or 15;
(2) waive or compromise all or a part of any payment due to the
company under rule 13, 14 or 15; and
(3) in relation to rule 13, before a forfeited share has been
sold, reissued or otherwise disposed of, cancel the
forfeiture on the conditions they decide.
TRANSFERRING AND TRANSMITTING SHARES
18 TRANSFERRING SHARES
(a) Subject to this constitution, a member may transfer any of the
member's shares by:
(1) any manner permitted by law; or
(2) a written transfer in any usual form or in any other form
approved by the directors.
(b) A transfer referred to in paragraph (a)(2) must be:
(1) signed by or on behalf of both the transferor and the
transferee unless:
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(A) the transfer relates only to fully paid shares and the
directors have dispensed with signature by the
transferee; or
(B) the transfer of the shares is effected by a document
which is, or documents which together are, a sufficient
transfer of those shares under the Act;
(2) if required by law to be stamped, duly stamped; and
(3) left for registration at the company's registered office, or
at any other place the directors decide, with any evidence
the directors require to prove the transferor's title or
right to the shares and to prove the transferee's right to
be registered as the owner of the shares.
(c) Subject to the powers vested in the directors under rules 19 and
20, where the company receives a transfer complying with
paragraph (b), the company must register the transferee named in
the transfer as the holder of the shares to which it relates.
(d) A transferor of shares remains the holder of the shares until a
proper SCH transfer has been effected or the transferee's name is
entered in the register of members as the holder of the shares.
(e) The company must not charge a fee for registering a transfer of
shares.
(f) The company may retain a registered transfer for any period the
directors decide.
(g) The directors may do anything that is necessary or desirable for
the company to participate in any computerised, electronic or
other system for facilitating the transfer of shares or operation
of the company's registers.
(h) The directors may, to the extent the law permits, waive any of
the requirements of this rule 18 and prescribe alternative
requirements instead, whether to give effect to paragraph (g) or
for another purpose.
19 POWER TO DECLINE TO REGISTER TRANSFERS
(a) The directors may decline to register, or prevent registration
of, a transfer of shares or apply a holding lock to prevent a
proper SCH transfer in accordance with the Act or the Listing
Rules where:
(1) the transfer is not in registrable form;
(2) the company has a lien on any of the shares transferred;
(3) registration of the transfer may breach a law of Australia;
(4) the transfer is paper-based and registration of the transfer
will create a new holding which, at the time the transfer is
lodged, is less than a marketable parcel;
(5) the transfer is not permitted under the terms of an employee
share plan; or
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Constitution
(6) the company is otherwise permitted or required to do so
under the Listing Rules or, except for proper SCH transfers,
under the terms of issue of the shares.
(b) If the directors decline to register a transfer, the company must
give notice of the refusal as required by the Act and the Listing
Rules. Failure to give that notice will not invalidate the
decision of the directors to decline to register the transfer.
(c) The directors may delegate their authority under this rule to the
share registrar or any other person.
20 POWER TO CLOSE REGISTER OF MEMBERS
Subject to the SCH business rules, the directors may close the
register of members or part of that register at any times and for any
periods that they decide.
21 SELLING NON-MARKETABLE PARCELS
(a) The directors may send a written notice to a member who holds on
the date of the notice less than a marketable parcel of shares in
a class of shares of the company which:
(1) explains the effect of this rule 21; and
(2) advises the holder that he or she may elect to be exempt
from the provisions of this rule. A form of election for
that purpose must be sent with the notice.
(b) If, before 5 pm Melbourne time on a date specified in the notice
which is no earlier than 6 weeks after the notice is sent:
(1) the company has not received a notice from the member
electing to be exempt from the provisions of this rule 21;
and
(2) the member has not increased his or her shareholding to a
marketable parcel,
the member is taken to have irrevocably appointed the company as
his or her agent to proceed in accordance with paragraph (c).
(c) The company may:
(1) sell the shares constituting less than a marketable parcel
as soon as practicable at a price which the directors
consider is the best price reasonably available for the
shares when they are sold; and
(2) deal with the proceeds of sale under rule 16.
(d) The costs and expenses of any sale of shares under this rule 21
(including brokerage and stamp duty, if applicable) will, if the
Act permits, be payable by the company or, if the company is not
permitted, be payable by the purchaser.
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Constitution
(e) A notice under paragraph (a) may be given to a member only once
in a 12 month period and may not be given during the offer period
of a takeover bid.
(f) If a takeover bid for the company is announced after a notice is
given but before agreement is entered into for the sale of
shares, this rule ceases to operate for those shares. However,
despite paragraph (e), a new notice under paragraph (a) may be
given after the offer period of the takeover bid closes.
(g) If the holding of a member becomes a marketable parcel after a
notice is given but before agreement is entered into for the sale
of shares, this rule ceases to operate for those shares.
(h) The directors may, before a sale is effected under this rule 21,
revoke a notice given or suspend or terminate the operation of
this rule either generally or in specific cases.
(i) Subject to the Act and the Listing Rules, the directors may sell
a share that is part of a holding that is less than a Marketable
Parcel ("relevant holding") without giving notice to the holder
of the share if the relevant holding was created by a transfer of
shares registered after the adoption of this rule.
22 TRANSMITTING SHARES
(a) Subject to paragraph (c), where a member dies, the only persons
the company will recognise as having any title to the member's
shares or any benefits accruing on those shares are:
(1) the legal personal representative of the deceased, where the
deceased was a sole holder; and
(2) the survivor or survivors, where the deceased was a joint
holder.
(b) Paragraph (a) does not release the estate of a deceased member
from any liability on a share, whether that share was held by the
deceased solely or jointly with other persons.
(c) The directors may, if the transfer complies with this
constitution, register a transfer of shares signed by a member
before the member's death, even though the company has notice of
the member's death.
(d) A person who becomes entitled to a share because of a
transmission event may, on producing any evidence the directors
require to prove that person's entitlement to the share, choose:
(1) to be registered as the holder of the share by signing and
giving the company a written notice stating that choice; or
(2) nominate some other person to be registered as the
transferee of the share by executing or effecting in some
other way a transfer of the share to that other person.
(e) The provisions of this constitution concerning the right to
transfer shares, and the registration of transfers of shares
apply, so far as they can and with
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Constitution
any necessary changes, to a notice or transfer under paragraph
(d) as if the relevant transmission event had not occurred and
the notice or transfer was a transfer executed or effected by the
registered holder of the share.
(f) For the purpose of this constitution, where 2 or more persons are
jointly entitled to a share because of a transmission event they
will, on being registered as the holders of the share, be taken
to hold the share as joint tenants and rule 7 will apply to them.
GENERAL MEETINGS
23 CALLING GENERAL MEETINGS
(a) A general meeting may only be called:
(1) by directors' resolution; or
(2) as otherwise permitted under the Act.
(b) The directors may, by notice to the Exchange, postpone or cancel
a general meeting if they consider that the meeting has become
unnecessary, or change the place for a general meeting if they
consider the meeting place would be unreasonable or impractical
or a change is necessary in the interests of conducting the
meeting efficiently, but:
(1) a meeting which is not called by directors' resolution; and
(2) a meeting which is called in accordance with a members'
requisition under the Act,
may not be postponed or cancelled without the prior written
consent of the person or persons who called or requisitioned the
meeting.
24 NOTICE OF GENERAL MEETINGS
(a) Notice of a general meeting must be given to each person who is
at the time of giving the notice a member, director or auditor of
the company or entitled to a share because of a transmission
event and who has satisfied the directors of his or her right to
be registered as the holder of, or to transfer, the shares.
(b) The content of a notice of a general meeting called by the
directors is to be decided by the directors, but it must state
the general nature of the business to be transacted at the
meeting and any other matters required by the Act.
(c) Unless the Act provides otherwise:
(1) no business may be transacted at a general meeting unless
the general nature of the business is stated in the notice
calling the meeting and, if a resolution is set out in that
notice, no business may be transacted that is not in
substance the same as that resolution; and
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Constitution
(2) no person may move any amendment to a proposed resolution
the terms of which are set out in the notice calling the
meeting or to a document which relates to such a resolution
and a copy of which has been made available to members to
inspect or obtain,
except with the approval of the directors or the chair.
(d) Failure of a member to receive a notice of a general meeting or a
proxy form, or failure to give notice of a general meeting or a
proxy form to any person entitled to receive notice of a general
meeting, does not invalidate any act or thing done or resolution
passed at the general meeting if:
(1) the failure to receive or give the notice occurred by
accident or error; or
(2) before or after the meeting, the person has given or gives
the company written notice of the person's agreement to that
act, thing or resolution.
25 ADMISSION TO GENERAL MEETINGS
(a) The chair of a general meeting may take any action he or she
considers appropriate for the safety of persons attending the
meeting and the orderly conduct of the meeting and may refuse
admission to, or require to leave and remain out of, the meeting
any person:
(1) in possession of a pictorial-recording or sound-recording
device;
(2) in possession of a placard or banner;
(3) in possession of an article considered by the chair to be
dangerous, offensive or liable to cause disruption;
(4) who refuses to produce or to permit examination of any
article, or the contents of any article, in the person's
possession; or
(5) who behaves or threatens to behave in a dangerous, offensive
or disruptive way.
The chair may delegate the powers conferred by this rule to any
person as he or she thinks fit.
(b) If the person entitled to act as chair of a general meeting
considers that there is not enough room for the number of members
who wish to attend the meeting, he or she may arrange for any
person whom he or she considers cannot be seated in the main
meeting room, where the chair will be, to observe or attend the
general meeting in a separate room. Even if the members present
in the separate room are not able to participate in the conduct
of the meeting, the meeting will nevertheless be treated as
validly held in the main room.
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Constitution
26 QUORUM AT GENERAL MEETINGS
(a) No business may be transacted at any general meeting, except the
election of a chair and the adjournment of the meeting, unless a
quorum of members is present when the meeting proceeds to
business.
(b) A quorum is 5 or more members present at the meeting and entitled
to vote on a resolution at the meeting.
(c) If a quorum is not present within 30 minutes after the time
appointed for the general meeting:
(1) where the meeting was called on the requisition of members,
the meeting must be dissolved; or
(2) in any other case:
(A) the meeting stands adjourned to the day, and at the
time and place, the directors present decide or, if
they do not make a decision, to the same day in the
next week at the same time and place; and
(B) if, at the adjourned meeting, a quorum is not present
within 30 minutes after the time appointed for the
meeting, the meeting must be dissolved.
27 CHAIR OF GENERAL MEETINGS
(a) The chair of directors or, in the absence of the chair of
directors, the deputy chair of directors (if any) is entitled, if
present within 15 minutes after the time appointed for the
meeting and willing to act, to preside as chair at each general
meeting.
(b) The directors present at a general meeting may choose one of
their number to preside as chair if, at a general meeting:
(1) there is no chair or deputy chair of directors;
(2) the chair or deputy chair of directors is not present within
15 minutes after the time appointed for the meeting; or
(3) the chair or deputy chair of directors is present within
that time but is not willing to act as chair of the meeting.
(c) If the directors do not choose a chair under paragraph (b), the
members present must elect as chair of the meeting:
(1) another director who is present and willing to act; or
(2) if no other director willing to act is present at the
meeting, a member who is present and willing to act.
(d) A chair of a general meeting may, for any item of business or
discrete part of the meeting, vacate the chair in favour of
another person nominated by him or her.
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Constitution
28 CONDUCT AT GENERAL MEETINGS
(a) The chair of a general meeting is responsible for the general
conduct of the meeting and for the procedures to be adopted at
the meeting. The chair may:
(1) at any time the chair considers it necessary or desirable
for the proper and orderly conduct of the meeting, demand
the cessation of debate or discussion on any business,
question, motion or resolution being considered by the
meeting and require the business, question, motion or
resolution to be put to a vote of the members present; and
(2) require any procedures to be adopted which are in the
chair's opinion necessary or desirable for casting or
recording votes at the meeting, whether on a show of hands
or on a poll, in a proper and orderly way, including the
appointment of scrutineers.
(b) A decision by a chair under paragraph (a) is final.
(c) A person present at a general meeting at the request of the
directors or the chair is entitled to speak at the meeting if the
chair allows.
(d) The person entitled to act as chair of a general meeting may
postpone the meeting before it has started, whether or not a
quorum is present, if, at the time and place appointed for the
meeting, he or she considers that:
(1) there is not enough room for the number of members who wish
to attend the meeting; or
(2) a postponement is necessary in light of the behaviour of
persons present or for any other reason so that the business
of the meeting can properly be carried out.
(e) A postponement under paragraph (d) will be to another time, which
may be on the same day as the meeting, and may be to another
place (and the new time and place will be taken to be the time
and place for the meeting as if specified in the notice which
called the meeting originally).
(f) The chair of a general meeting may, without seeking approval of
the members present at any time during the course of the meeting:
(1) adjourn from time to time and place to place the meeting or
any business, motion, question or resolution being
considered or remaining to be considered by the meeting or
any debate or discussion;
(2) adjourn or defer any business, motion, question, resolution,
debate or discussion either to a later time at the same
meeting or to an adjourned meeting; and
(3) for the purpose of allowing any poll to be taken or
determined, suspend the proceedings of the meeting for such
period or periods as he or she decides without effecting an
adjournment.
(g) Only unfinished business may be transacted at a meeting resumed
after an adjournment.
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Constitution
(h) Where a meeting is postponed or adjourned for more than 24 hours
under this rule 28, notice of the postponed or adjourned meeting
must be given to the Exchange, but need not be given to any other
person.
(i) Where a meeting is postponed or adjourned, the directors may, by
notice to the Exchange, postpone, cancel or change the place of
the postponed or adjourned meeting.
(j) If a separate meeting place is linked to the main place of a
general meeting by an instantaneous audio-visual communication
device which, by itself or in conjunction with other
arrangements:
(1) gives the general body of members in the separate meeting
place a reasonable opportunity to participate in proceedings
in the main place;
(2) enables the chair to be aware of proceedings in the other
place; and
(3) enables the members in the separate meeting place to vote on
a show of hands or on a poll,
a member present at the separate meeting place is taken to be
present at the general meeting and entitled to exercise all
rights as if he or she was present at the main place.
(k) If the communication device encounters a technical difficulty,
whether before or during the meeting, which results in the
matters required by sub-paragraphs (j)(1), (2) or (3) at the
separate meeting place not being satisfied, the meeting may still
be held or continue in the main place (and any other place which
is linked under paragraph (1)) and transact business, even if the
members in the separate meeting place are unable to participate.
No member may object to the meeting being held or continuing.
However, if the effect of this paragraph (k) has not been
referred to in the notice calling the meeting, the business the
meeting may conduct is limited to adjourning the meeting.
(l) Nothing in this rule 28 or in rule 25 is to be taken to limit the
powers conferred on the chair by law.
29 DECISIONS AT GENERAL MEETINGS
(a) Except where a resolution requires a special majority, questions
arising at a general meeting must be decided by a majority of
votes cast by the members present at the meeting. A decision made
in this way is for all purposes a decision of the members.
(b) If the votes are equal on a proposed resolution, the chair of the
meeting has a casting vote, in addition to his or her
deliberative vote.
(c) A resolution put to the vote of a general meeting must be decided
on a show of hands unless a poll is demanded:
(1) before the show of hands is held;
(2) before the result of the show of hands is declared; or
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Constitution
(3) immediately after the result of the show of hands is
declared.
(d) A poll may be demanded by:
(1) the chair of the meeting; or
(2) members in accordance with the Act.
(e) A demand for a poll does not prevent a general meeting continuing
to transact any business except the question on which the poll is
demanded.
(f) Unless a poll is duly demanded, a declaration by the chair of a
general meeting that a resolution has on a show of hands been
carried or carried unanimously, or carried 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 or
proportion of the votes recorded for or against the resolution.
(g) If a poll is duly demanded at a general meeting, it must be taken
in a way and either at once or after an interval or adjournment
or otherwise as the chair of the meeting directs. The result of
the poll as declared by the chair is the resolution of the
meeting at which the poll was demanded.
(h) A poll cannot be demanded at a general meeting on the election of
a chair of the meeting.
(i) The demand for a poll may be withdrawn.
30 VOTING RIGHTS
(a) Subject to this constitution and to any rights or restrictions
attached to any shares or class of shares, at a meeting:
(1) on a show of hands, every member present has one vote; and
(2) on a poll, every member present has one vote for each share
held as at the record time by the member and in respect of
which the member is entitled to vote, except for partly paid
shares, each of which confers on a poll only the fraction of
one vote which the amount paid (not credited) on the share
bears to the total amounts paid and payable (excluding
amounts credited) on the share. An amount paid in advance of
a call will be disregarded for this purpose.
(b) If a person present at a general meeting represents personally or
by proxy, attorney or representative more than one member, on a
show of hands the person is entitled to one vote only, even
though he or she represents more than one member.
(c) A joint holder may vote at a meeting either personally or by
proxy, attorney or representative as if that person was the sole
holder. If more than one joint holder tenders a vote in respect
of the relevant shares, the vote of the holder named first in the
register who tenders a vote, whether in person or by proxy,
attorney or representative, must be accepted to the exclusion of
the votes of the other joint holders.
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Constitution
(d) A person entitled to a share because of a transmission event may
vote at a general meeting in respect of those shares in the same
way as if that person were the registered holder of those shares
if, at least 48 hours before the meeting, the directors have:
(1) admitted that person's right to vote at that meeting in
respect of those shares; or
(2) been satisfied of that person's right to be registered as
the holder of, or to transfer, those shares.
Any vote duly tendered by that person must be accepted and the
vote of the registered holder of those shares must not be
counted.
(e) Where a member holds a share on which a call or other amount
payable to the company has not been duly paid:
(1) that member is only entitled to be present at a general
meeting and vote if that member holds, as at the relevant
record time, other shares on which no money is then due and
payable; and
(2) on a poll, that member is not entitled to vote in respect of
those shares but may vote in respect of any shares that
member holds, as at the record time, on which no money is
then due and payable.
(f) An objection to the validity of a vote tendered at a general
meeting must be:
(1) raised before or immediately after the result of the motion
is declared; and
(2) referred to the chair of the meeting, whose decision is
final.
(g) A vote tendered, but not disallowed by the chair of a meeting
under paragraph (f), is valid for all purposes, even if it would
otherwise not have been valid.
31 REPRESENTATION AT GENERAL MEETINGS
(a) Subject to this constitution, each member entitled to vote at a
general meeting may vote:
(1) in person or, where the member is a body corporate, by
representative;
(2) by not more than 2 proxies; or
(3) by not more than 1 attorney.
(b) A proxy, attorney or representative may, but need not, be a
member of the company.
(c) An appointment of a proxy or attorney must be in writing and:
(1) in the case of a natural person, signed by the appointor or
his or her attorney; or
(2) in the case of a body corporate, executed under the seal of
the appointor or under the hand of a duly authorised officer
or agent.
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Constitution
(d) An instrument appointing a proxy must satisfy the requirements of
the Act and may be in any usual form or any other form (including
electronic) approved by the directors.
(e) Unless the instrument or resolution appointing a proxy, attorney
or representative provides differently, the appointment is taken
to give the relevant person the same rights to speak, demand a
poll, join in demanding a poll or act generally at the meeting as
the member would have had if he or she was present.
(f) A proxy form issued by the company must allow for the insertion
of the name of the person to be primarily appointed as proxy and
may provide that, in circumstances and on conditions specified in
the form that are not inconsistent with this constitution, the
chair of the relevant meeting (or another person specified in the
form) is appointed as proxy.
(g) An instrument appointing a proxy or attorney is not effective in
relation to a meeting or adjourned meeting or in relation to a
poll taken subsequently to the date of a meeting or adjourned
meeting unless it, and the original (or a certified copy) of the
power of attorney or any other instrument under which it is
signed or executed, are received by the company at least 48 hours
(or, in the case of an adjournment or postponement of a meeting,
including an adjourned meeting, any lesser time that the
directors or chair of the meeting decides) before the time for
holding the meeting or adjourned meeting or taking the poll, as
applicable.
(h) An instrument is received by the company under paragraph (g) when
it is received in accordance with the Act and, to the extent
permitted by the Act, if the instrument is produced or the
transmission of the instrument is otherwise verified to the
company in the way specified in the notice of meeting.
(i) The appointment of a proxy or attorney is not revoked by the
appointor attending and taking part in the general meeting but if
the appointor votes on a resolution, the person acting as proxy
or attorney for the appointor is not entitled to vote, and must
not vote, as the appointor's proxy or attorney on the resolution.
(j) Where, otherwise than in accordance with paragraph (f), a member
appoints 2 proxies to vote at the same general meeting:
(1) subject to sub-paragraph (2), the appointment is of no
effect and a proxy may not vote unless each proxy is
appointed to represent a specified proportion or number of
the member's votes;
(2) if the Act precludes the company from treating as invalid an
appointment of 2 proxies which fails to specify the
proportion or number of votes that each may exercise, each
person appointed may exercise half the member's votes;
(3) on a show of hands, a proxy may not vote if more than one
proxy attends; and
(4) on a poll, each proxy may only exercise votes in respect of
those shares or voting rights the proxy represents.
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Constitution
(k) Unless written notice of the matter has been received at the
company's registered office (or at another place specified for
lodging an appointment of a proxy for the meeting) at least 48
hours before the time for holding the meeting, adjourned meeting
or poll at which a proxy or attorney votes, a vote cast by the
proxy or attorney is valid even if, before the vote is cast:
(1) a transmission event occurs to the member; or
(2) the member revokes the appointment of the proxy or attorney
or revokes the authority under which a third party appointed
the proxy or attorney.
(l) Where authority is given to a proxy, attorney or representative
concerning a meeting to be held on or before a specified date or
at a specified place and that meeting is postponed to a later
date or the meeting place is changed, the authority is taken to
include authority to act at the re-scheduled meeting unless the
member granting the authority gives the company notice to the
contrary under paragraph (g).
(m) The chair of a meeting may permit a person claiming to be a
representative to exercise the powers of a representative, even
though the person is unable to produce written evidence to show
that he or she has been validly appointed.
(n) The chair of a meeting may require a person acting as a proxy,
attorney or representative to establish to the chair's
satisfaction that the person is the person duly appointed to act.
If the person fails to satisfy the requirement, the chair may
exclude the person from attending or voting at the meeting.
(o) The chair may delegate his or her powers under paragraphs (m) and
(n) to the share registrar or any other person.
DIRECTORS
32 NUMBER OF DIRECTORS
(a) The minimum number of directors is 4.
(b) The maximum number of directors is to be fixed by the directors,
but may not be more than 8 unless the company in general meeting
resolves otherwise.
(c) Until otherwise determined by the company in general meeting, no
more than half the number of directors in office at the date of
appointment of a new director may be executive directors and any
nomination of a person pursuant to rule 33(h) which may result in
a breach of this rule 32(c) will be ineffective.
(d) The directors must not at any time determine a maximum which is
less than the number of directors in office at the time the
determination takes effect.
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Constitution
33 APPOINTING AND RETIREMENT OF DIRECTORS
(a) The directors may appoint a person as a director, either in
addition to the existing directors or to fill a casual vacancy,
but so that:
(1) the total number of directors does not exceed the maximum
number fixed under this constitution; and
(2) the number of executive directors in office following the
appointment is not more than half the number of directors in
office at that time.
(b) A director appointed under paragraph (a), who is not a managing
director, holds office only until the next annual general meeting
following his or her appointment.
(c) At every annual general meeting of the company, after excluding:
(1) a director who is a managing director;
(2) a director appointed under paragraph (a) and standing for
election; and
(3) a director who is required to vacate office as a result of
having attained the maximum age prescribed by law,
one third of those directors (disregarding any fractions) must
retire from office. No director who is not the managing director
may hold office without re-election beyond the third annual
general meeting following the meeting at which the director was
last elected or re-elected. A director due to retire under this
paragraph (c) at a particular meeting retains office until the
conclusion of the meeting. If there is more than one managing
director, the directors must, where required by the Listing
Rules, nominate one of them to not be subject to vacation of
office under paragraph (b) or retirement under paragraph (c).
(d) The directors to retire under paragraph (c) are those directors
who elect to retire and not offer themselves for re-election and,
so far as is necessary to obtain the number required, those who
have been longest in office since the date of their last election
or appointment. As between directors who were last elected or
appointed on the same date, those to retire must, unless they
agree among themselves, be decided by lot.
(e) The directors to retire under paragraph (c) (both as to number
and identity) is to be decided having regard to the composition
of the board of directors at the date of the notice calling the
annual general meeting. A director is not required to retire and
is not relieved from retiring because of a change in the number
or identity of the directors after the date of the notice but
before the meeting closes.
(f) The company may by resolution at an annual general meeting fill
an office vacated by a director under paragraphs (b) or (c) by
electing or re-electing an eligible person to that office.
(g) If at a general meeting at which an election of directors ought
to take place and no such election is made, the retiring
directors or those retiring
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Constitution
directors whose position on the board has not been filled, may,
if willing to act, continue in office until the next annual
general meeting of the company.
(h) A person is eligible for election to the office of a director at
a general meeting only if:
(1) the person is in office as a director immediately before
that meeting;
(2) the person has been nominated by the directors for election
at that meeting;
(3) where the person is a member, he or she has, at least 35
business days (or such other period as may be stipulated for
this purpose under the Listing Rules) before the meeting,
given the company a notice signed by him or her stating his
or her desire to be a candidate for election at that
meeting; or
(4) where the person is not a member, a member intending to
nominate him or her for election at that meeting has, at
least 35 business days (or such other period as may be
stipulated for this purpose under the Listing Rules) before
the meeting, given the company a notice signed by the member
stating the member's intention to nominate the person for
election, and a notice signed by the person and stating his
or her consent to the nomination.
34 VACATING OFFICE
In addition to the circumstances prescribed by the Act and this
constitution, the office of a director becomes vacant if the director:
(a) becomes of unsound mind or a person who is, or whose estate is,
liable to be dealt with in any way under the law relating to
mental health;
(b) fails to attend meetings of the directors for more than 3
consecutive months without leave of absence from the directors
and a majority of the other directors have resolved that his or
her office is vacated; or
(c) resigns or retires by written notice to the company.
35 REMUNERATION
(a) Each director (excluding any director who is an executive) is
entitled to such fees from the company for his or her services as
a director as the directors decide, but the total amount provided
to all such directors for their services as directors in any
year, excluding any amounts paid under paragraphs (e), (f), (g)
or (h) and under rule 61 (subject to any limitations in these
provisions), must not exceed in aggregate the amount fixed by the
company in general meeting, which at the date of adoption of this
constitution is $750,000 per annum. In calculating the total
amount provided in any year, no regard will be had to:
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Constitution
(1) any amount payable by the company or any related body
corporate to a superannuation retirement or pension fund for
a director in respect of a superannuation guarantee charge
or similar statutory charge; or
(2) any insurance premium paid or agreed to be paid under rule
61.
(b) Fees under paragraph (a) will be provided in such manner
(including by way of non cash benefit, such as, but not limited
to, a contribution to a superannuation fund or by way of salary
sacrifice) that the directors decide.
(c) Fees are taken to accrue from day to day.
(d) The remuneration of a director must not include a commission on,
or percentage of, profits or operating revenue.
(e) The directors are also entitled to be paid out of the funds of
the company all travelling and other expenses they properly incur
concerning the company's affairs, including attending and
returning from general meetings of the company or meetings of the
directors or of committees of the directors.
(f) If a director, with the concurrence of the directors, performs
extra services or makes any special exertions for the benefit of
the company, the directors may cause that director to be paid out
of the funds of the company such special and additional
remuneration in addition to that provided for under paragraph (a)
as the directors decide is appropriate having regard to the value
to the company of the extra services or special exertions.
(g) The directors may, to the extent permitted by law or as otherwise
approved by members:
(1) at any time after a director dies or ceases to hold office
as a director for any other reason, pay or provide to the
director or a legal personal representative, spouse,
relative or dependant of the director, in addition to the
remuneration of that director under paragraph (a), a pension
or benefit for past services rendered by that director; and
(2) cause the company to enter into a contract with the director
or a legal personal representative, spouse, relative or
dependant of the director to give effect to such a payment
or provide for such benefit.
(h) The directors may establish, maintain and support or aid the
establishment, maintenance or support of funds and trusts
calculated to benefit directors or former directors, employees or
ex-employees of the company or the dependants of those persons
and grant pensions and allowances to those persons or their
dependants (or both) either by periodic payment or lump sum.
(i) Nothing in this rule 35 limits or diminishes the terms of any
retirement benefit conferred or agreement to provide a retirement
benefit existing at the date of adopting this constitution.
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Constitution
36 DISCLOSING DIRECTORS' INTERESTS
(a) In addition to any disclosures required under the Act or the
Listing Rules, the directors may make rules requiring disclosure
of interests that a director, and any person deemed by the
directors to be related to the director, may have in any matter
that relates to the affairs of the company or a related body
corporate or in any other matter. The extent to which, and the
conditions on which, disclosure is required will be determined by
the directors. Any rules made under this paragraph will bind all
directors.
(b) No act, transaction, agreement, instrument, resolution or other
thing is invalid or voidable only because a person fails to
comply with any requirement for disclosure under the Act or with
any rules made under paragraph (a).
37 DIRECTORS MAY CONTRACT WITH THE COMPANY AND HOLD OTHER OFFICES
(a) A director is not disqualified from contracting or entering into
an arrangement with the company as vendor, purchaser or in
another capacity, merely because the director holds office as a
director or because of the fiduciary obligations arising from
that office.
(b) A contract or arrangement entered into by or on behalf of the
company in which a director is in any way interested is not
invalid, avoided or rendered voidable merely because the director
holds office as a director or because of the fiduciary
obligations arising from that office.
(c) A director who is interested in any arrangement involving the
company is not liable to account to the company for any profit
realised by or under the arrangement merely because the director
holds office as a director or because of the fiduciary
obligations arising from that office.
(d) A director may hold any other office or place of profit (except
auditor) in the company or any related body corporate in
conjunction with his or her directorship and may be appointed to
that office or place on the terms as to remuneration, tenure of
office and otherwise as the directors decide.
(e) A director may be or become a director or other officer of, or
interested in, any related body corporate or any other body
corporate promoted by the company or in which the company may be
interested as a shareholder or in any other way, and need not
account to the company for any remuneration or other benefits the
director receives as a director or officer of, or from having an
interest in, that body corporate.
(f) A director who has an interest in a matter that is being
considered at a meeting of directors may, despite that interest,
vote, be present and be counted in a quorum at the meeting,
unless that is prohibited by the Act. No act, transaction,
agreement, instrument, resolution or other thing is invalid or
voidable only because a director fails to comply with that
prohibition.
(g) The directors may exercise the voting rights given by shares in
any corporation held or owned by the company in any way and in
all respects
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Constitution
as the directors decide. This includes voting for any resolution
appointing a director as a director of that corporation or voting
for the payment of remuneration to the directors of that
corporation. A director may, if the law permits, vote for the
exercise of those voting rights even though he or she is, or may
be about to be appointed, a director of that other corporation
and, in that capacity, interested in the exercise of those voting
rights.
(h) A director who is interested in any contract or arrangement may
despite that interest witness the fixing of the seal to any
document evidencing or otherwise connected with that contract or
arrangement.
38 POWERS AND DUTIES OF DIRECTORS
(a) The management and control of the company's business and affairs
are vested in the directors, who may exercise all powers and do
all things that are within the company's power and are not
expressly required by the Act or this constitution to be
exercised by the company in general meeting.
(b) The directors may exercise all the powers of the company:
(1) to borrow or raise money in any other way;
(2) to charge any of the company's property or business or any
amount unpaid on its shares; and
(3) to issue debentures or give any other security for a debt,
liability or obligation of the company or of any other
person.
(c) Debentures or other securities may be issued on the terms and at
prices decided by the directors, including bearing interest or
not, with rights to subscribe for, or exchange into, shares or
other securities in the company or a related body corporate or
with special privileges as to redemption, participating in share
issues, attending and voting at general meetings and appointing
directors.
(d) The directors may decide how cheques, documents, promissory
notes, banker's drafts, bills of exchange or other negotiable
instruments must be signed, drawn, accepted, endorsed or
otherwise executed, as applicable, by or on behalf of the
company.
(e) The directors may:
(1) appoint or employ any person (including a person identified
only as one of a fluctuating body or class of persons) as an
officer, agent or attorney of the company for the purposes
and with the powers, discretions and duties (including
powers, discretions and duties vested in or exercisable by
the directors), for any period and on any conditions they
decide;
(2) authorise an officer, agent or attorney to delegate any of
the powers, discretions and duties vested in the officer,
agent or attorney; and
(3) without prejudice to any rights or obligations under any
agreement entered into with the relevant person or under any
law, remove or
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Constitution
dismiss any officer, agent or attorney of the company at any
time, with or without cause.
(f) A power of attorney may contain any provisions for the protection
and convenience of the attorney or persons dealing with the
attorney that the directors decide.
(g) Nothing in this rule 38 limits the general nature of paragraph
(a).
39 PROCEEDINGS OF DIRECTORS
(a) The directors may meet together to attend to business and adjourn
and regulate their meetings as they decide.
(b) The contemporaneous linking together by telephone or other method
of audio or audio visual communication of a sufficient number of
the directors to constitute a quorum, constitutes a meeting of
the directors. All the provisions in this constitution relating
to meetings of the directors apply, as far as they can and with
any necessary changes, to meetings of the directors by telephone
or audio or audio visual communication.
(c) A director taking part in a meeting by telephone or audio or
audio visual communication is to be taken to be present in person
at the meeting.
(d) If, before or during the meeting, any technical difficulty occurs
whereby one or more directors cease to participate, the chair
may, where a quorum of directors remains present, continue with
the meeting.
40 CALLING MEETINGS OF DIRECTORS
(a) A director may, whenever he or she thinks fit, call a meeting of
the directors.
(b) A secretary must, on the requisition of a director, call a
meeting of the directors.
41 QUORUM AT MEETINGS OF DIRECTORS
(a) No business may be transacted at a meeting of directors unless a
quorum of directors is present at the time the business is dealt
with.
(b) Until the directors decide differently, 3 directors constitute a
quorum.
(c) If there is a vacancy in the office of a director, the remaining
directors may act. But, if their number is not sufficient to
constitute a quorum, they may act only in an emergency or to
increase the number of directors to a number sufficient to
constitute a quorum or to call a general meeting of the company.
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Constitution
42 CHAIR AND DEPUTY CHAIR OF DIRECTORS
(a) The directors may elect a director to the office of chair of
directors and may elect one or more directors to the office of
deputy chair of directors. The directors may decide the period
for which those offices will be held.
(b) The chair of directors is entitled (if present within 10 minutes
after the time appointed for the meeting and willing to act) to
preside as chair at each meeting of directors.
(c) If at a meeting of directors:
(1) there is no chair of directors;
(2) the chair of directors is not present within 10 minutes
after the time appointed for holding the meeting; or
(3) the chair of directors is present within that time but is
not willing or declines to act as chair of the meeting or of
part of the meeting,
the director present having been longest in office will chair the
meeting or part of it.
(d) Subject to rule 42(e), an executive director (including a
managing director) is ineligible to be elected as chair or deputy
chair of directors.
(e) An executive director (including a managing director) may act as
chair at a meeting of directors in relation to any particular
item of business to be considered by the meeting of directors.
43 AUTHORITY AND DECISIONS OF DIRECTORS
(a) A meeting of directors at which a quorum is present may exercise
all the authorities, powers and discretions vested in or
exercisable by the directors generally or under this
constitution.
(b) Questions arising at a meeting of directors must be decided by a
majority of votes cast by the directors present and entitled to
vote on the matter. The decision is for all purposes a decision
of the directors.
(c) If the votes are equal on a proposed resolution, the chair of the
meeting has a casting vote, in addition to his or her
deliberative vote.
44 CIRCULAR RESOLUTIONS
A written resolution signed or consented to by all the directors,
being directors who would at a meeting duly called constitute a
quorum, but excluding any director:
(1) on leave of absence approved by the directors; or
(2) who is not able to be contacted using reasonable means; or
(3) who has participated in a recommendation made to the Board by a
duly constituted committee, where it is inappropriate for the
director to vote; or
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Constitution
(4) who, at a meeting of directors, would be prohibited by the Act
from voting on the resolution,
is as valid as if it had been passed at a meeting of directors duly
called. A director may consent to a resolution by:
(a) signing the document containing the resolution (or a copy of that
document);
(b) giving to the company at its registered office a written notice
(including by facsimile or other electronic transmission)
addressed to the secretary or to the chair of directors
signifying assent to the resolution and either setting out its
terms or otherwise clearly identifying them; or
(c) communicating with the chair of directors, or in his or her
absence, the secretary and signifying assent to the resolution
and clearly identifying its terms.
45 ALTERNATE DIRECTORS
(a) A director may, with the approval of a majority of his or her
co-directors, appoint a person to be the director's alternate
director for such period as the director decides.
(b) An alternate director may, but need not, be a member or a
director of the company.
(c) An alternate director does not require any share qualification.
(d) One person may act as alternate director to more than one
director.
(e) An alternate director is entitled to exercise all powers (except
the power to appoint an alternate director) and perform all
duties of a director, insofar as the director by whom he or she
was appointed had not exercised or performed them.
(f) An alternate director is entitled, if the appointor does not
attend a meeting of directors, to attend and vote in place of and
on behalf of the appointor.
(g) An alternate director is entitled to a separate vote for each
director the alternate director represents in addition to any
vote the alternate director may have as a director in his or her
own right.
(h) An alternate director, whilst acting as a director, is
responsible to the company for his or her own acts and defaults
and is not to be taken to be the agent of the director by whom he
or she was appointed.
(i) The office of an alternate director is vacated if and when the
appointor vacates office as a director.
(j) The appointment of an alternate director may be terminated or
suspended at any time by the appointor or by a majority of the
other directors.
(k) An appointment, or the termination or suspension of an
appointment of an alternate director must be in writing signed
and takes effect only when the company has received notice in
writing of the appointment, termination or suspension.
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Constitution
(l) An alternate director is not to be taken into account in
determining the minimum or maximum number of directors allowed or
the rotation of directors under this constitution.
(m) An alternate director is to be counted for the purpose of
determining whether a quorum is present at a meeting of directors
attended by the alternate director at which the alternate
director is entitled to vote.
(n) An alternate director is not entitled to receive any remuneration
as a director from the company otherwise than out of the
remuneration of the director appointing the alternate director
but is entitled to travelling, hotel and other expenses
reasonably incurred for the purpose of attending any meeting of
directors at which the appointer is not present and at which the
alternate director is entitled to vote.
46 COMMITTEES OF DIRECTORS
(a) The directors may delegate any of their powers to committees
comprising any director or directors they decide.
(b) A committee to which any powers have been delegated must exercise
the powers delegated in accordance with any directions of the
directors.
(c) The provisions of this constitution applying to meetings and
resolutions of directors apply, so far as they can and with any
necessary changes, to meetings and resolutions of a committee of
directors, except to the extent they are contrary to any
direction given under paragraph (b).
(d) Membership of a committee of directors may, if the directors so
decide in circumstances where the role of the committee is
limited to a specific task or discrete project, be treated as an
extra service or special exertion performed by the members for
the purposes of rule 35(f).
47 VALIDITY OF ACTS
An act done by a meeting of directors, a committee of directors or a
person acting as a director is not invalidated by:
(a) a defect in the appointment of a person as a director, a member
of a committee or to act as a director; or
(b) a person so appointed being disqualified, having vacated office
or not being entitled to vote,
if that circumstance was not known by the directors, committee or
person when the act was done.
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Constitution
EXECUTIVE OFFICERS
48 MANAGING DIRECTOR AND EXECUTIVE DIRECTOR
(a) The directors may appoint one or more persons as managing
director who must be a director or who, if not already a
director, must be appointed a director within 2 months after his
or her appointment.
(b) Subject to rules 32(c) and 42(d), the directors may also appoint
one or more persons as executive director.
(c) A managing director's appointment automatically terminates if he
or she does not become a director within 2 months of his or her
appointment or, unless the directors decide differently, at any
time ceases to be a director.
(d) Unless the directors decide differently, an executive director's
appointment automatically terminates if he or she at any time
ceases to be a director.
(e) A managing director or other executive director may be referred
to by any title the directors decide on.
49 SECRETARY
(a) The directors must appoint at least one secretary and may appoint
additional secretaries.
(b) The directors may appoint one or more assistant secretaries.
50 PROVISIONS APPLYING TO EXECUTIVE OFFICERS
(a) The appointment of a managing director, executive director or
secretary (each in this rule an executive officer) may be for the
period, at the remuneration and on the conditions the directors
decide.
(b) The remuneration payable by the company to a managing director or
an executive director must not include a commission on, or
percentage of, operating revenue.
(c) The directors may:
(1) delegate to or give an executive officer any powers,
discretions and duties they decide;
(2) withdraw, suspend or vary any of the powers, discretions and
duties given to an executive officer; and
(3) authorise the executive officer to delegate any of the
powers, discretions and duties given to the executive
officer.
(d) Unless the directors decide differently, the office of a director
who is employed by the company or by a subsidiary of the company
becomes vacant if the director ceases to be so employed.
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Constitution
(e) An act done by a person acting as an executive officer is not
invalidated by a defect in the person's appointment as an
executive officer, the person being disqualified to be an
executive officer or having vacated office if he or she did not
know that circumstance when the act was done.
SEALS
51 USING THE SEAL
Without limiting the ways in which the company can execute documents
in accordance with the Act, if the company has a common seal the
directors may determine whatever procedures they consider appropriate
for the use of the seal.
52 SEAL REGISTER
(a) The company must, for so long as it has a seal, keep a seal
register and, on affixing the seal to any document (except a
certificate for securities of the company), must enter in the
register particulars of the document, giving in each case a short
description of the document.
(b) Failure to comply with paragraph (a) does not invalidate any
document to which the seal is properly affixed.
DISTRIBUTIONS TO MEMBERS
53 DIVIDENDS
(a) The directors may pay any interim and final dividends that, in
their judgment, the financial position of the company justifies.
The directors may rescind a decision to pay a dividend if they
decide at any time before the company's shares are quoted by the
Exchange on an ex-dividend basis in relation to the dividend.
(b) The directors may pay any dividend required to be paid under the
terms of issue of a share.
(c) Paying a dividend does not require confirmation by a general
meeting.
(d) Subject to any rights or restrictions attached to any shares or
class of shares:
(1) all dividends must be paid equally on all shares, except
that a partly paid share does not confer an entitlement to a
greater proportion of the dividend than the proportion which
the amount paid (not credited) is of the total amounts paid
and payable (excluding amounts credited);
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Constitution
(2) all dividends must be apportioned and paid proportionately
to the amounts so paid or credited during any portion of the
period for which the dividend is paid;
(3) a dividend may be paid at a rate per annum for a specified
period;
(4) for the purposes of sub-paragraphs (1) and (2), unless the
directors decide differently, an amount paid or credited as
paid on a share in advance of a call is to be taken as not
having been credited as paid on the share until it becomes
payable; and
(5) interest is not payable by the company on any dividend.
(e) A decision of the directors as to the amount of the net profits
of the company is conclusive.
(f) Subject to the SCH business rules, the directors may fix a books
closing date or record date for a dividend, with or without
suspending the registration of transfers from that date under
rule 20.
(g) Subject to the SCH business rules, a transfer of shares does not
pass the right to any dividend to be paid on the shares unless
the transfer is registered or left with the company for
registration under rule 18(b):
(1) where the directors have fixed a books closing date or
record date for the dividend, on or before that date or
before the company's shares are quoted by the Exchange on an
ex-dividend basis in relation to the dividend; or
(2) where the directors have not fixed a books closing date or
record date for that dividend, on or before the date the
dividend is paid.
(h) The directors when resolving to pay a dividend may:
(1) direct payment of the dividend wholly or partly by the
distribution of specific assets, including paid-up shares or
other securities of the company or of another body
corporate, either generally or to specific members; and
(2) unless prevented by the Listing Rules, direct payment of the
dividend to particular shareholders wholly or partly out of
any particular fund or reserve or out of profits derived
from any particular source, and to the other shareholders
wholly or partly out of any other particular fund or reserve
or out of profits derived from any other particular source.
(i) The directors may retain from any dividend payable to a member
any money presently payable by the member to the company in
relation to shares in the company, whether on account of calls or
for any other reason, and apply the amount retained in or towards
satisfaction of the money owing.
(j) Without affecting any other method of payment the directors may
adopt (including by cheque), any dividend, interest or other
money payable in cash in respect of shares may be paid by
electronic or other means approved by the directors directly to
an account with a financial institution nominated in writing by
the member being:
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Constitution
(1) an account of the member or the joint holders;
(2) an account of which the member or a joint holder is a joint
account holder;
(3) an account of which a joint holder is the sole account
holder; or
(4) any other account which the company in its absolute
discretion determines is acceptable for the purposes of this
rule.
Any payment made under paragraph (j) is made at the member's
risk.
54 CAPITALISING PROFITS
(a) Subject to the Listing Rules, any rights or restrictions attached
to any shares or class of shares and any special resolution of
the company in general meeting, the directors may capitalise and
distribute among those members who would be entitled to receive
dividends, and in the same proportions, any amount:
(1) forming part of the company's undivided profits;
(2) representing profits arising from an ascertained accretion
to capital or from a revaluation of the company's assets;
(3) arising from the realisation of any of the company's assets;
or
(4) available for distribution as a dividend for any other
reason.
(b) The directors may resolve that any part of the capitalised amount
is to be applied:
(1) in paying up in full, at an issue price decided by the
resolution, any unissued shares in or other securities of
the company;
(2) in paying up any amounts unpaid on shares or other
securities held by the members; or
(3) partly as specified in sub-paragraph (1) and partly as
specified in sub-paragraph (2).
The members entitled to share in the distribution must accept
that application in full satisfaction of their interests in the
capitalised amount.
(c) Rules 53(f) and (g) apply, so far as they can and with any
necessary changes, to capitalising an amount under this rule 54
as if references in those rules to:
(1) a dividend were references to capitalising an amount; and
(2) the date a dividend is declared were references to the date
the directors resolve to capitalise the amount under this
rule 54.
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Constitution
55 ANCILLARY POWERS
(a) To give effect to any resolution to satisfy a dividend as set out
in rule 53(h)(1) or by capitalising any amount under rule 54, the
directors may:
(1) settle as they think expedient any difficulty that arises in
making the distribution or capitalisation and, in
particular:
(A) make cash payments in cases where shares or other
securities in the company become issuable in fractions;
and
(B) decide that amounts or fractions of less than a
particular value decided by the directors may be
disregarded in order to adjust the rights of all
parties;
(2) fix the value for distribution of any specific assets;
(3) pay cash or issue shares or other securities to any member
in order to adjust the rights of all parties;
(4) vest any of those specific assets, cash, shares or other
securities in a trustee on the trusts for the persons
entitled to the dividend or capitalised amount that seem
expedient to the directors; and
(5) authorise any person to make, on behalf of all the members
entitled to any further shares or other securities as a
result of the distribution or capitalisation, an agreement
with the company or another body corporate which provides,
as appropriate:
(A) for the issue to them of those further shares or other
securities credited as fully paid up; or
(B) for payment by the company on their behalf of the
amounts or any part of the amounts remaining unpaid on
their existing shares or other securities by applying
their respective proportions of the sum resolved to be
capitalised.
Any agreement made under an authority referred to in this
sub-paragraph (5) is effective and binds all members concerned.
(b) If the company distributes to members (either generally or to
specific members) securities in the company or in another body
corporate or trust (whether as a dividend or otherwise and
whether or not for value), each of those members appoints the
company as his or her agent to do anything needed to give effect
to that distribution, including agreeing to become a member of
that other body corporate.
(c) The directors may:
(1) determine that any dividend payable to some or all of the
members will be paid in a currency other than Australian
currency;
(2) determine or provide for the determination of the exchange
rate or exchanges rates at which the amount of dividend in
Australian currency will be converted into the other
currency or currencies for the purpose of payment; and
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Constitution
(3) settle any difficulty arising in regard to any payment of a
dividend in a currency or currencies other than Australian
currency, as they consider expedient.
(d) Payment in another currency or currencies of the amount of any
dividend converted pursuant to this paragraph (c) is deemed
between the company and any member to whom payment is made, and
as against all other members, to be an adequate and proper
payment of the amount of the dividend.
56 RESERVES
(a) Subject to this constitution, the directors may set aside out of
the company's profits any reserves or provisions for any purposes
they decide.
(b) The directors may appropriate to the company's profits any amount
previously set aside as a reserve or provision.
(c) Setting aside an amount as a reserve or provision does not
require the directors to keep the amount separate from the
company's other assets or prevent the amount being used in the
company's business or being invested in any investments the
directors decide.
57 CARRYING FORWARD PROFITS
The directors may carry forward any part of the profits remaining that
they consider should not be distributed as dividends or capitalised,
without transferring those profits to a reserve or provision.
58 DISTRIBUTING SURPLUS
(a) If the company is wound up and the surplus assets are
insufficient to repay the whole of the paid up capital, the
surplus assets must be distributed so that, as nearly as may be,
the losses are borne by the members in proportion to the capital
paid up or which ought to have been paid up on the shares held by
them at the commencement of the winding up.
(b) If in a winding up the assets available for distribution among
the members are more than sufficient to repay the whole of the
capital paid up at the commencement of the winding up, the excess
must be distributed among the members in proportion to the
capital paid up or which ought to have been paid up on the shares
held by them at the commencement of the winding up.
(c) Paragraphs (a) and (b) are subject to the rights of the holders
of shares issued upon special terms and conditions.
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Constitution
59 DIVIDING PROPERTY
(a) If the company is wound up, the liquidator may, with the sanction
of a special resolution:
(1) divide among the members the whole or any part of the
company's property; and
(2) decide how the division is to be carried out as between the
members or different classes of members.
..
(b) A division under paragraph (a) need not accord with the legal
rights of the members and, in particular, any class may be given
preferential or special rights or may be excluded altogether or
in part.
(c) Where a division under paragraph (a) does not accord with the
legal rights of the members, a member is entitled to dissent and
to exercise the same rights as if the special resolution
sanctioning that division were a special resolution passed under
section 507 of the Act.
(d) If any of the property to be divided under paragraph (a) includes
securities with a liability to calls, any person entitled under
the division to any of the securities may, within 10 days after
the special resolution referred to in paragraph (a) is passed, by
written notice direct the liquidator to sell the person's
proportion of the securities and to account for the net proceeds.
The liquidator must, if practicable, act accordingly.
(e) Nothing in this rule 59 takes away from or affects any right to
exercise any statutory or other power which would have existed if
this rule were omitted.
(f) Rule 55 applies, so far as it can and with any necessary changes,
to a division by a liquidator under paragraph (a) as if
references in rule 55 to:
(1) the directors were references to the liquidator; and
(2) a distribution or capitalisation were references to the
division under paragraph (a).
RECORDS
60 INSPECTION OF AND ACCESS TO RECORDS
(a) A person who is not a director does not have the right to inspect
any of the board papers, books, records or documents of the
company, except as provided by law, this constitution or as
authorised by the directors or by a resolution of the members.
(b) The company may enter into contracts with its directors agreeing
to provide continuing access for a specified period after they
cease to be a director to board papers, books, records and
documents of the company which relate to the period during which
the director was a director on such
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Constitution
terms and conditions as the directors think fit and which are not
inconsistent with this rule 60.
(c) The company may procure that its subsidiaries provide similar
access to board papers, books, records or documents as that set
out in paragraphs (a) and (b).
PROTECTION OF OFFICERS AND FORMER OFFICERS
61 INDEMNITY AND INSURANCE
(a) Rule 61 applies:
(1) to each person who is or has been a director, secretary or
executive officer of the company; and
(2) to such other officers or former officers of the company or
of its related bodies corporate as the directors in each
case determine.
(b) The company will indemnify on a full indemnity basis and to the
full extent permitted by law, each person to whom this rule 61
applies for all losses or liabilities incurred by the person as
an officer of the company, a related body corporate or trustee of
a company sponsored superannuation fund.
(c) The company may, to the extent permitted by law:
(1) purchase and maintain insurance; or
(2) pay or agree to pay a premium for insurance,
for any person to whom this rule 61 applies against any liability
incurred by the person as an officer of the company or of a
related body corporate.
(d) Nothing in this rule 61:
(1) affects any other right or remedy that a person may have in
respect of any loss or liability referred to in those rules;
or
(2) limits the capacity of the company to indemnify or provide
insurance for any person to whom those rules do not apply;
or
(3) limits or diminishes the terms of any indemnity conferred or
agreement to indemnify entered into prior to the adopting of
this constitution.
(e) The company may enter into a deed with any person to whom this
rule 61 applies to give effect to the rights conferred by this
rule or the exercise of a discretion under this rule on such
terms as the directors think fit which are not inconsistent with
this rule 61.
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Constitution
NOTICES
62 GIVING OF NOTICES
(a) Any notice which must be given under this constitution may be
given by:
(1) personal delivery;
(2) prepaid post;
(3) sending it by facsimile or electronic transmission,
to the address notified by the intended recipient, as the case
may be, for that purpose.
(b) The company may give a notice to the joint holders of a share by
giving the notice in the way authorised by paragraph (a) to the
joint holder who is named first in the register of members for
the share.
(c) The company may give a notice to a person entitled to a share
because of a transmission event by delivering it or sending it in
the way authorised by paragraph (a) addressed to the name or
title of the person, to:
(1) the address that person has supplied to the company for
giving notices to that person; or
(2) if that person has not supplied an address, to the address
to which the notice might have been sent if that
transmission event had not occurred.
(d) A notice given to a member under paragraphs (a) or (b) is, even
if a transmission event has occurred and whether or not the
company has notice of that occurrence:
(1) duly given for any shares registered in that person's name,
whether solely or jointly with another person; and
(2) sufficiently served on any person entitled to the shares
because of the transmission event.
(e) A notice given to a person who is entitled to a share because of
a transmission event is sufficiently served on the member in
whose name the share is registered.
(f) A person who, because of a transfer of shares, becomes entitled
to any shares registered in the name of a member, is taken to
have received every notice which, before that person's name and
address is entered in the register of members for those shares,
is given to the member complying with this rule 62.
(g) A signature to any notice given by the company to a member under
this rule 62 may be in writing or a facsimile printed or affixed
by some mechanical or other means.
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Constitution
63 TIME OF SERVICE
(a) Where a notice (including notice of a general meeting) is sent by
post, the notice is to be taken as served if the notice is
properly addressed and placed in the post with postage paid and
to have been served on the day after the date it is posted.
(b) A certificate signed by a secretary or officer of the company to
the effect that a notice was duly posted under this constitution
is conclusive evidence of that fact.
(c) Where a notice is sent by facsimile or electronic transmission,
the notice is to be taken as served when:
(1) the correct facsimile number appears on the facsimile
transmission report produced by the sender's facsimile
machine; or
(2) a message indicating receipt has been received by the
sender,
and to have been served at the time the facsimile or electronic
transmission is sent.
(d) Where a given number of days' notice or notice extending over any
other period must be given, the day of service is not to be
counted in the number of days or other period, unless this
constitution provides differently.
64 OTHER COMMUNICATIONS AND DOCUMENTS
Rules 62 and 63 apply, so far as they can and with any necessary changes,
to serving any communication or document.
GENERAL
65 SUBMISSION TO JURISDICTION
Each member submits to the jurisdiction of the Supreme Court of
Victoria and the courts which may hear appeals from that court.
66 PROHIBITION AND ENFORCEABILITY
(a) Any provision of, or the application of any provision of, this
constitution which is prohibited in any place is, in that place,
ineffective only to the extent of that prohibition.
(b) If any provision of this constitution is unlawful or
unenforceable, the unlawfulness or unenforceability of that
provision does not affect the lawfulness, enforceability,
operation, construction or interpretation of any other provision
of this constitution, with the intent that the unlawful or
unenforceable provision shall be treated for all purposes as
severable from this constitution.
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Constitution
67 TRANSITIONAL PROVISIONS
This constitution must be interpreted in such a way that:
(a) every director, managing director and secretary in office in that
capacity immediately before this constitution is adopted
continues in office subject to, and is taken to have been
appointed or elected under, this constitution;
(b) the directors are taken, immediately after this constitution is
adopted, to have decided under rule 32 a number which is equal to
the number of persons in office as directors immediately after
this constitution is adopted;
(c) any register maintained by the company immediately before this
constitution is adopted is taken to be a register maintained
under this constitution;
(d) any seal adopted by the company immediately before this
constitution is adopted is taken to be a seal which the company
has under a relevant authority given by this constitution; and
(e) unless a contrary intention appears in this constitution, all
persons, things, agreements and circumstances appointed, approved
or created by or under the constitution of the company in force
before this constitution is adopted continue to have the same
status, operation and effect after this constitution is adopted.
RESTRICTED SECURITIES
68 RESTRICTED SECURITIES
Where at any time any of the share capital of the company is
classified by the Exchange as "restricted securities" despite any
other provision of this constitution:
(a) the restricted securities must not be disposed of during the
escrow period except as permitted by the Listing Rules or the
Exchange;
(b) the company must refuse to acknowledge a disposal (including
registering a transfer) of the restricted securities during the
escrow period except as permitted by the Listing Rules or the
Exchange; and
(c) during a breach of the Listing Rules relating to restricted
securities, or a breach of a restriction agreement, the holder of
the restricted securities is not entitled to any dividend or
distribution, or voting rights, in respect of the restricted
securities.
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Constitution
PARTIAL TAKEOVERS
69 PARTIAL TAKEOVERS
(a) Unless the context otherwise indicates or requires, expressions
in this rule 69 have the meaning given to them by the Act.
(b) Where offers have been made under a proportional takeover bid for
securities of the company:
(1) the registration of a transfer giving effect to a takeover
contract for the bid is prohibited unless and until a
resolution to approve the bid (in this rule 69 referred to
as "an approving resolution") is passed in accordance with
the provisions of this rule 69;
(2) a person (other than the bidder or an associate of the
bidder) who, as at the end of the day on which the first
offer under the bid was made, held bid class securities is
entitled to vote on an approving resolution;
(3) an approving resolution must be voted on at a meeting,
convened by the company, of the person entitled to vote on
the resolution; and
(4) an approving resolution that has been voted on is taken to
have been passed if the proportion that the number of votes
in favour of the resolution bears to the total number of
votes on the resolution is greater than 50% and otherwise is
taken to have been rejected.
(c) The provisions of this constitution that apply in relation to a
general meeting of members apply, with such modifications as the
circumstances require, in relation to a meeting that is convened
under this rule 69 as if the last-mentioned meeting were a
general meeting of members.
(d) This rule 69 ceases to have effect on 31 December 2004.
(rule 69 replaced
12 April 2002)
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