CORPORATIONS ACT 2001
COMPANY LIMITED BY SHARES
CONSTITUTION
OF
INTERSTAR SECURITISATION MANAGEMENT PTY LTD
PRELIMINARY
1. DEFINITIONS AND INTERPRETATION
1.1 In this Constitution, unless the contrary intention appears:
'ALTERNATE DIRECTOR' means a person appointed as an alternate
director under CLAUSE 63;
'AUDITOR' means the Company's auditor, if any;
'BUSINESS DAY' has the same meaning as in the Corporations Act 2001;
'COMPANY' means Interstar Securitisation Management Pty Ltd ACN 100
346 898;
'CONSTITUTION' means the constitution of the Company as amended from
time to time;
'DIRECTOR' includes any person occupying the position of director of
the Company and, where appropriate, includes an Alternate Director;
'DIRECTORS' means all or some of the Directors acting as a board;
'DIVIDEND' includes bonus;
'EXECUTIVE DIRECTOR' means a person appointed as an executive
director under CLAUSE 71;
'MANAGING DIRECTOR' means a person appointed as managing director
under CLAUSE 71.1;
'MEMBER' means a person whose name is entered for the time being on
the Register or any branch register as the holder of one or more
Shares;
'OFFICE' means the Company's registered office;
'REGISTER' means the register of Members of the Company;
'REGISTERED ADDRESS' means the last known address of a Member as
noted in the Register;
'REPRESENTATIVE' means a person appointed by a Member to act as its
representative under CLAUSE 48.1 or under section 250D of the
Corporations Act 2001;
'SEAL' means the Company's common seal (if any);
'SECRETARY' means any person appointed by the Directors to perform
any of the duties of a secretary of the Company;
2
'SHARES' means shares of the Company.
1.2 In this Constitution, unless the contrary intention appears:
(a) the singular includes the plural and vice versa and words
importing a gender include other genders;
(b) words importing natural persons include corporations;
(c) words and expressions defined in the Corporations Act 2001 have
the same meaning in this Constitution;
(d) headings are for ease of reference only and do not affect the
construction of this Constitution; and
(e) a reference to the Corporations Act 2001 is a reference to the
Corporations Act 2001 as modified or amended from time to time.
1.3 An expression in a provision of this Constitution has the same
meaning as in a provision of the Corporations Act 2001 that deals
with the same matter as the provision, unless the contrary intention
appears in this Constitution.
1.4 To the extent permitted by law, the replaceable rules in the
Corporations Act 2001 do not apply to the Company.
SHARES
2. RIGHTS
Subject to this Constitution and to the terms of issue of Shares, all
Shares attract the following rights, privileges and conditions:
(a) the right to receive notice of and to attend and vote at all
general meetings of the Company at one vote per Share;
(b) the right to receive dividends;
(c) in a winding up, the right to participate equally in the
distribution of the assets of the Company (both capital and
surplus), subject only to any amounts unpaid on the Share.
3. ISSUE OF SHARES AND OTHER SECURITIES
3.1 Subject to this Constitution and the Corporations Act 2001, the
Directors may issue or dispose of Shares or other securities to
persons:
(a) on terms determined by the Directors;
(b) at the issue price that the Directors determine; and
(c) at the time that the Directors determine.
3
3.2 The Directors' power under CLAUSE 3.1 includes the power to:
(a) grant options to have Shares issued; and
(b) to issue Shares with:
(i) any preferential, deferred or special rights, privileges or
conditions;
(ii) any restrictions in regard to dividend, voting, return of
capital or otherwise; or
(c) issue preference shares that are liable to be redeemed.
4. BUY-BACKS
Subject to the Corporations Act 2001, the Company may buy back Shares
on terms and at times determined by the Directors in their
discretion.
5. COMMISSION AND BROKERAGE
Any brokerage or commission which may be paid by the Company may be
made in cash, by the issue of Shares, by the grant of options over
Shares, or by a combination of any of those methods or otherwise.
6. TRUSTS NOT RECOGNISED
6.1 Except as required by law or as otherwise provided by this
Constitution, the Company will not recognise any person as holding a
Share on trust and the Company will not recognise any equitable,
contingent, future or partial interest or any other right in respect
of a Share except the registered holder's absolute right of
ownership.
6.2 Subject to the other clauses, this CLAUSE 6 applies even if the
Company has notice of the relevant trust, interest or right.
7. JOINT HOLDERS
7.1 If two or more persons are registered as the holders of a Share, they
are taken to hold the Share as joint tenants with benefits of
survivorship and the person whose name appears first on the Register
is the only joint holder entitled to receive notices from the
Company.
7.2 Any one of the joint holders of a Share may give effectual receipts
for any dividend or return of capital payable to the joint holders.
8. RIGHT TO CERTIFICATE
8.1 Subject to the conditions of issue of any Shares or any class of
Shares:
(a) every Member is entitled free of charge to one certificate for
all Shares registered in its name; and
4
(b) a Member may request several certificates in reasonable
denominations for different portions of its holding.
8.2 (a) Subject to the conditions of issue of any Shares or any class of
Shares, joint holders are entitled to a single certificate in
their joint names in respect of each portion of their holding.
(b) The certificate will be sent to the joint holder whose name
appears first in the Register.
8.3 The Company must issue a replacement certificate for Shares in
accordance with the Corporations Act 2001 if:
(a) the holder of the Shares is entitled to a certificate for those
Shares;
(b) satisfactory evidence has been received by the Company that the
certificate for Shares previously issued has been stolen, lost
or destroyed and has not been pledged, charged, sold or
otherwise disposed of; and
(c) the Member has undertaken in writing to the Company to return
the certificate to the Company if it is found or received by the
Member.
8.4 Every certificate for Shares must be issued and despatched in
accordance with the Corporations Act 2001.
9. REPLACEMENT OF CERTIFICATE
The Directors may order worn out or defaced certificates to be
cancelled and replaced by new certificates.
10. VARIATION OF CLASS RIGHTS
10.1 The rights attached to any Shares in a class of Shares may, unless
their terms of issue state otherwise, be varied or cancelled by a
special resolution of the Company and:
(a) with the written consent of the holders of 75% of the Shares of
the class; or
(b) with the sanction of a special resolution and passed at a
separate meeting of the holders of Shares of that class.
10.2 The provisions of this Constitution relating to general meetings
apply, with necessary changes, to separate class meetings as if they
were general meetings except that:
(a) a quorum is two persons holding or representing by proxy,
attorney or Representative at least one-third of the Shares of
the class or, if there is one holder of Shares in a class, that
holder or person representing by proxy, attorney or
Representative that holder; and
(b) any holder of Shares of the class, present in person or by
proxy, attorney or Representative may demand a poll.
10.3 The rights conferred on the holders of Shares of any class will not
be taken to be varied by:
5
(a) the issue of more Shares; or
(b) the conversion of securities to new securities,
which rank equally with or in priority to those Shares, unless
expressly provided by their respective terms of issue or the
Corporations Act 2001.
CALLS
11. CALLS
11.1 Subject to the Corporations Act 2001 and the terms on which partly
paid Shares are issued, the Directors may make calls on the holders
of the Shares for any money unpaid on them.
11.2 A call is made when the resolution of the Directors authorising it is
passed.
11.3 The Directors may require it to be paid by instalments.
11.4 The Directors may revoke or postpone a call before its due date for
payment.
11.5 At least 10 business days before the due date for payment of a call
the Company must send to Members on whom the call is made a notice
specifying:
(a) the amount of the call;
(b) the due date for payment; and
(c) the place for payment.
11.6 A Member to whom notice of a call is given in accordance with this
CLAUSE 11 must pay to the Company the amount called in accordance
with the notice.
11.7 Failure to send a notice of a call to any Member or the non-receipt
of a notice by any Member does not invalidate the call.
11.8 Joint holders of Shares are jointly and severally liable to pay all
calls in respect of their Shares.
12. INSTALMENTS
If:
(a) the Directors require a call to be paid by instalments; or
(b) an amount becomes payable by the terms of issue of Shares, or at
a time or in circumstances specified in the terms of issue,
then:
(c) every instalment or the amount payable under the terms of the
issues of Shares is payable as if it were a call made by the
Directors and as if they had given notice of it; and
6
(d) the consequences of late payment or non-payment of an instalment
or the amount payable under the terms of issue of Shares are the
same as the consequences of late payment or non-payment of a
call.
13. INTEREST AND EXPENSES ON CALLS
If an amount called is not paid on or before the due date, the person
liable to pay the amount must also pay:
(a) interest on the amount from the due date to the time of actual
payment at a rate determined by the Directors (not exceeding 20%
per annum); and
(b) all expenses incurred by the Company as a consequence of the
non-payment,
but the Directors may waive payment of the interest and expenses in
whole or in part.
14. RECOVERY OF AMOUNTS DUE
On the hearing of any action for the recovery of money due for any
call, proof that:
(a) the name of the person sued was, when the call was made, entered
in the Register as a holder or the holder of Shares in respect
of which the call was made;
(b) the resolution making the call is duly recorded in the
Directors' minute book; and
(c) notice of the call was given to the person sued,
will be conclusive evidence of the debt.
15. DIFFERENTIATION
The Directors may, on the issue of Shares, differentiate between the
holders as to the amount of calls to be paid and the times of
payment.
16. PAYMENT OF CALLS IN ADVANCE
16.1 The Directors may accept from a Member the whole or part of the
amount unpaid on a Share before the amount accepted has been called.
16.2 The Company may:
(a) pay interest on any amount accepted, until the amount is payable
under a call and at a rate (not exceeding 20% per annum) agreed
between the Member and the Directors; and
(b) subject to any contract between the Company and the Member,
repay all or any of the amount accepted in excess of the amount
called on the Share.
16.3 Payment of an amount in advance of a call does not entitle the paying
Member to any dividend, benefit or advantage, other than the payment
of interest under this CLAUSE 16,
7
to which the Member would not have been entitled if it had paid the
amount when it became due.
LIEN AND FORFEITURE
17. LIEN
17.1 The Company has a first and paramount lien on every partly paid Share
for all money:
(a) due and unpaid to the Company at a fixed time, in respect of the
Share;
(b) presently payable by the holder of the Share, or the holder's
estate, to the Company in respect of the Share; or
(c) which the Company is required by law to pay in respect of the
Share.
17.2 The Company's lien extends to all dividends payable in respect of the
Share.
17.3 Unless the Directors determine otherwise, the registration of a
transfer of a Share operates as a waiver of the Company's lien on the
Share.
17.4 The Directors may declare a Share to be wholly or partly exempt from
a lien.
17.5 If any law for the time being of any country, state or place imposes
or purports to impose an immediate or contingent liability on the
Company to make any payment or authorises a taxing authority or
Government official to require the Company to make payment in respect
of Shares or dividends or other moneys accruing or due to the Member:
(a) the Member or, if the Member is deceased, the Member's legal
personal representative, indemnifies the Company in respect of
any such payment or liability; and
(b) subject to the Corporations Act 2001, the Company:
(i) has a lien on the Shares, dividends and other moneys payable
in respect of the Shares, whether the Shares are held by the
Member solely or jointly with another person in respect of
any payment made or liability incurred by the Company,
together with reasonable expenses and interest on any
payment made by the Company at a rate to be fixed by the
Directors not exceeding 20% per annum from the date of
payment by the Company to the date of repayment by the
Member;
(ii) may set off amounts so paid by the Company against amounts
payable by the Company to the Member as dividends or
otherwise; and
(iii) may recover as a debt due from the Member or the Member's
legal personal representative the amount of all payments
made by the Company together with reasonable expenses and
interest at the rate and for the period referred to in
CLAUSE 17.5(b)(i).
8
18. LIEN SALE
If:
(a) the Company has a lien on a Share for money presently payable;
and
(b) the Company has given the Member or the Member's executors or
administrators (as the case may be) holding the Share written
notice demanding payment of the money; and
(c) that Member fails to pay all of the money demanded,
then 14 or more days after giving the notice, the Directors may sell
the Share in any manner determined by them.
19. FORFEITURE NOTICE
19.1 The Directors may at any time after a call or instalment becomes
payable and remains unpaid by a Member, serve a notice on the Member
requiring the Member to pay all or any of the following:
(a) the unpaid amount;
(b) any interest that has accrued; and
(c) all expenses incurred by the Company as a consequence of the
non-payment.
19.2 The notice under CLAUSE 19.1 must:
(a) specify a day (not earlier than 14 days after the date of the
notice) on or before which the payment required by the notice
must be made; and
(b) state that if a Member does not comply with the notice, the
Shares in respect of which the call was made or instalment is
payable will be liable to be forfeited.
20. FORFEITURE
20.1 If a Member does not comply with a notice served under CLAUSE 19,
then any or all of the Shares in respect of which the notice was
given may be forfeited under a resolution of the Directors.
20.2 Unpaid dividends in respect of forfeited Shares will also be
forfeited.
20.3 On forfeiture, Shares become the property of the Company and
forfeited Shares may be sold, disposed of, or cancelled on terms
determined by the Directors.
20.4 The Directors may, at any time before a forfeited Share is sold,
disposed of or cancelled, annul the forfeiture of the Share on
conditions determined by them.
20.5 Promptly after a Share has been forfeited:
(a) notice of the forfeiture must be given to the Member in whose
name the Share was registered immediately before its forfeiture;
and
9
(b) the forfeiture and its date must be noted in the Register.
20.6 Omission or neglect to give notice of or to note the forfeiture as
specified in CLAUSE 20.5 will not invalidate a forfeiture.
21. LIABILITY OF FORMER MEMBER
21.1 The interest of a person who held Shares which are forfeited is
extinguished but the former Member remains liable to pay:
(a) all money (including interest and expenses) that was payable by
the Member to the Company at the date of forfeiture in respect
of the forfeited Shares; and
(b) interest from the date of forfeiture until payment at a rate
determined by the Directors (not exceeding 20% per annum).
21.2 A former Member's liability to the Company ceases if and when the
Company receives payment in full of all money (including interest and
expenses) payable by the former Member in respect of the Shares.
22. DISPOSAL OF SHARES
22.1 The Company may:
(a) receive the consideration (if any) given for a forfeited Share
on any sale or disposition of the Share, or a Share sold under a
lien sale; and
(b) execute a transfer of the Share in favour of a person to whom
the Share is sold or disposed of.
22.2 The purchaser of the Share:
(a) is not bound to check the regularity of the sale or the
application of the purchase price;
(b) obtains title to the Share despite any irregularity in the sale;
and
(c) will not be subject to complaint or remedy by the former holder
of the Share in respect of the purchase.
22.3 A statement signed by a Director and the Secretary that the Share has
been regularly forfeited and sold or re-issued, or regularly sold
without forfeiture to enforce a lien, is conclusive evidence of the
matters stated as against all persons claiming to be entitled to the
Share.
22.4 The net proceeds of any sale made to enforce a lien or on forfeiture
must be applied by the Company in the following order:
(a) in payment of the costs of the sale;
(b) in payment of all amounts secured by the lien or all money that
was payable in respect of the forfeited Share; and
(c) in payment of any surplus to the former Member whose Share was
sold.
10
TRANSFER OF SHARES
23. TRANSFER
23.1 Subject to this Constitution, a Member may transfer the Shares held
by that Member.
23.2 Shares may be transferred by:
(a) a written transfer instrument in any usual or common form; or
(b) any other form approved by the Directors.
23.3 A written transfer instrument referred to in CLAUSE 23.2 must be
executed by or on behalf of the transferor and the transferee.
23.4 (a) A transferor of Shares remains the holder of the Shares
transferred until the transfer is registered and the name of the
transferee is entered in the Register in respect of the Shares.
(b) A transfer of Shares does not pass the right to any dividends on
the Shares until such registration.
24. TRANSFER PROCEDURE
24.1 The Directors are not required to register a transfer of Shares
unless:
(a) the transfer is left at the Office or the office of the
Company's Share registrar, together with any fee set by the
Directors under CLAUSE 24.2;
(b) the transfer is accompanied by a certificate for the Shares
dealt with in the transfer, unless the Directors waive
production of the certificate on receiving satisfactory evidence
of the loss or destruction of the certificate; and
(c) the Directors have been provided with any further information
they reasonably require to establish the right of the person
transferring the Shares to make the transfer.
24.2 The Directors may from time to time determine that a fee is payable
on the registration of transfers of Shares.
24.3 Except where a determination is made under CLAUSE 24.2 or where the
issue of a certificate is to replace a lost or destroyed certificate,
the Company must register all registrable transfer forms and issue
certificates without charge.
25. RIGHT TO REFUSE REGISTRATION
25.1 The Directors may in their absolute discretion and without assigning
any reason decline to register any transfer of Shares or other
securities.
25.2 The Directors may in their absolute discretion refuse to register any
transfer of Shares or other securities on which stamp duty or other
taxes of a similar nature are payable but unpaid.
11
26. CLOSURE OF REGISTER
The transfer books and the Register may be closed for up to 30 days
in each year.
TRANSMISSION OF SHARES
27. TITLE ON DEATH
27.1 The legal personal representative of a deceased Member who was the
sole holder of Shares is the only person whom the Company will
recognise as having any title to the deceased Member's Shares.
27.2 If a deceased Member was a joint holder of Shares, the other joint
holder is the only person whom the Company will recognise as having
any title to the deceased Member's Shares.
27.3 The estate of the deceased Member will not be released from any
liability to the Company in respect of the Shares.
27.4 The Company may register a transfer to a transferee who dies before
the transfer is registered.
28. TRANSMISSION
28.1 A person who becomes entitled to a Share in consequence of the death,
lunacy or bankruptcy of a Member may, subject to producing to the
Directors evidence of its entitlement which is satisfactory to the
Directors, elect to:
(a) be registered as the holder of the Share; or
(b) transfer the Share to some other person nominated by it.
28.2 If the person who has become entitled to a Share:
(a) elects to be registered as the holder, then the person must
deliver or send to the Company a written notice of election
signed by it; or
(b) elects to transfer the Share, then the person must execute a
transfer of the Share.
28.3 An election to be registered as a holder of a Share under CLAUSE
28.1(a) or a transfer of a Share from a Member or deceased Member
under this CLAUSE 28 is subject to the same limitations, restrictions
and provisions of this Constitution as would apply if the election
were a transfer or the transfer were made by the Member or deceased
Member itself.
28.4 A person who:
(a) has become entitled to a Share by operation of law; and
(b) has produced evidence of its entitlement which is satisfactory
to the Directors,
is entitled to the dividends and other rights of the registered
holder of the Share.
12
28.5 Where two or more persons are jointly entitled to any Share in
consequence of the death of the registered holder, they will be
considered to be joint holders of the Share.
28.6 Any person who is registered under this clause must indemnify the
Company against all liabilities, costs, losses and expenses incurred
by the Company as a result of registering the person.
CHANGES TO SHARE CAPITAL
29. DEALING WITH SHARE FRACTIONS
For the purpose of giving effect to a conversion of all or any of the
Shares into a larger or smaller number of Shares, the Directors may
settle any difficulty which arises with respect to fractions of
Shares as they think expedient and in particular may:
(a) issue fractional certificates;
(b) vest any fractions of Shares in trustees on such trusts for the
persons entitled to the fractions of Shares as may seem
expedient to the Directors; or
(c) sell the Shares representing the fractions for the best price
reasonably obtainable to any person and distribute the net
proceeds of sale (subject to retention by the Company of small
amounts where the cost of distribution would be disproportionate
to the amounts involved) in due proportion among those Members
and, for such sale, any Director may execute an instrument of
transfer of the Shares to the purchaser.
GENERAL MEETINGS
30. CALLING GENERAL MEETING
30.1 Any Director may, at any time, call a general meeting.
30.2 (a) A Member may only request the Directors to call and arrange to
hold a general meeting in accordance with section 249D of the
Corporations Act 2001.
(b) A Member may not call or arrange to hold a general meeting
except under section 249E or 249F of the Corporations Act 2001.
31. NOTICE OF GENERAL MEETING
31.1 Subject to the provisions of the Corporations Act 2001 allowing
general meetings to be held with shorter notice, at least 21 days
written notice (exclusive of the day on which the notice is served or
deemed to be served and of the day for which notice is given) must be
given to Members of any general meeting.
31.2 A notice calling a general meeting:
(a) must specify the place, date and time of the meeting and, if the
meeting is to be held in two or more places, the technology that
will be used to facilitate this;
(b) must state the general nature of the business to be transacted
at the meeting; and
13
(c) may specify a place, facsimile number and electronic address for
the purposes of proxy appointment.
31.3 A notice of an annual general meeting need not state that the
business to be transacted at the meeting includes:
(a) the consideration of the annual financial report, Directors'
report and Auditor's report;
(b) the election of directors; or
(c) the appointment and fixing of the remuneration of the Auditor.
31.4 (a) The Directors may postpone or cancel any general meeting
whenever they think fit (other than a meeting called as the
result of a request under CLAUSE 30.2).
(b) The Directors must give notice of the postponement or
cancellation to all persons referred to in CLAUSE 89.1 entitled
to receive notices from the Company.
31.5 The failure or accidental omission to send a notice of a general
meeting (including a proxy appointment form) to any Member or the
non-receipt of a notice (or form) by any Member does not invalidate
the proceedings at or any resolution passed at the general meeting.
PROCEEDINGS AT GENERAL MEETINGS
32. MEMBER
In CLAUSES 33, 34, 36 and 38, 'MEMBER' includes a Member present in
person or by proxy, attorney or Representative.
33. QUORUM
33.1 No business may be transacted at a general meeting unless a quorum of
Members is present when the meeting proceeds to business.
33.2 A quorum of Members is two Members unless there is only one Member,
when a quorum is that Member.
33.3 If a quorum is not present within 30 minutes after the time appointed
for a general meeting:
(a) if the general meeting was called on the requisition of Members,
it is automatically dissolved; or
(b) in any other case:
(i) it will stand adjourned to the same time and place seven
days after the general meeting, or to another day, time and
place determined by the Directors; and
14
(ii) if at the adjourned general meeting a quorum is not present
within 30 minutes after the time appointed for the general
meeting, it is automatically dissolved.
34. CHAIRPERSON
34.1 The chairperson, or in the chairperson's absence the deputy
chairperson, of Directors' meetings will be the chairperson at every
meeting of Members.
34.2 If:
(a) there is no chairperson or deputy chairperson; or
(b) neither the chairperson nor deputy chairperson is present within
15 minutes after the time appointed for holding the general
meeting; or
(c) the chairperson and deputy chairperson are unwilling to act as
chairperson of the general meeting,
the Directors present may elect a chairperson of the general meeting
of the Members.
34.3 If no election is made under CLAUSE 34.2, then:
(a) the Members may elect one of the Directors present as
chairperson; or
(b) if no Director is present or is willing to take the chair, the
Members may elect one of the Members present as chairperson.
34.4 If there is a dispute at a general meeting about a question of
procedure, the chairperson may determine the question.
35. ADJOURNMENT
35.1 The chairperson of a general meeting at which a quorum is present:
(a) in his or her discretion may adjourn the meeting with the
meeting's consent; and
(b) must adjourn the meeting if the meeting directs him or her to do
so.
35.2 An adjourned general meeting may take place at a different venue to
the initial general meeting.
35.3 The only business that can be transacted at an adjourned general
meeting is the unfinished business of the initial general meeting.
35.4 If a general meeting has been adjourned for more than 21 days, at
least 3 days written notice (exclusive of the day on which the notice
is served or taken to be served and of the day for which notice is
given) of the adjourned meeting must be given to Members.
15
36. DECISION ON QUESTIONS
36.1 Subject to the Corporations Act 2001 in relation to special
resolutions, a resolution is carried if a majority of the votes cast
on the resolution are in favour of the resolution.
36.2 A resolution put to the vote of a meeting is decided on a show of
hands unless a poll is demanded in accordance with the Corporations
Act 2001.
36.3 The chairperson does not have a casting vote in addition to the
chairperson's votes as a Member, proxy, attorney or Representative.
36.4 Unless a poll is demanded:
(a) a declaration by the chairperson that a resolution has been
carried, carried by a specified majority, or lost; and
(b) an entry to that effect in the minutes of the meeting,
are conclusive evidence of the fact without proof of the number or
proportion of the votes in favour of or against the resolution.
36.5 The demand for a poll may be withdrawn.
36.6 A decision of a general meeting may not be impeached or invalidated
on the ground that a person voting at the meeting was not entitled to
do so.
37. TAKING A POLL
37.1 A poll will be taken when and in the manner that the chairperson
directs.
37.2 The result of the poll will be the resolution of the meeting at which
the poll was demanded.
37.3 The chairperson may determine any dispute about the admission or
rejection of a vote.
37.4 The chairperson's determination, if made in good faith, will be final
and conclusive.
37.5 A poll demanded on the election of the chairperson or the adjournment
of a general meeting must be taken immediately.
37.6 After a poll has been demanded at a general meeting, the general
meeting may continue for the transaction of business other than the
question on which the poll was demanded.
VOTES OF MEMBERS
38. ENTITLEMENT TO VOTE
38.1 Subject to this Constitution and to any rights or restrictions
attaching to any class of Shares:
(a) every Member may vote;
(b) subject to CLAUSE 43.3, on a show of hands every Member has one
vote; and
16
(c) on a poll every Member has one vote for each fully paid Share.
38.2 If a Member is of unsound mind or is a person whose estate or
property has had a personal representative, trustee or other person
appointed to administer it, the Member's personal representative,
trustee or other person with the management of the Member's estate or
property may exercise any rights of the Member in relation to a
meeting of Members as if the personal representative, trustee or
other person was a Member.
39. UNPAID CALLS
A Member is not entitled to vote or to be counted in a quorum unless
all calls and other sums payable by the Member in respect of Shares
have been paid.
40. JOINT HOLDERS
40.1 If two or more joint holders purport to vote, the vote of the joint
holder whose name appears first in the Register will be accepted, to
the exclusion of the other joint holder or holders.
40.2 For the purposes of this CLAUSE 40, several executors or
administrators of a deceased Member in whose sole name any Shares are
registered will be taken to be joint holders of those Shares.
41. OBJECTIONS
41.1 An objection to the qualification of a voter may only be raised at
the meeting or adjourned meeting at which the voter tendered its
vote.
41.2 An objection must be referred to the chairperson of the meeting,
whose decision made in good faith is final.
41.3 A vote which the chairperson does not disallow under an objection is
valid for all purposes.
42. VOTES BY OPERATION OF LAW
A person who has satisfied the Directors not less than 24 hours
before a general meeting that it is entitled to a Share by operation
of law may exercise all rights attached to the Share in relation to a
general meeting, as if the person were the registered holder of the
Share.
43. VOTES BY PROXY
43.1 A Member who is entitled to vote at a general meeting of the Company
may appoint not more than two proxies to attend and vote at the
meeting on that Member's behalf.
43.2 A proxy need not be a member.
43.3 If a Member appoints one proxy, that proxy may, subject to the
Corporations Act 2001, vote on a show of hands.
17
43.4 If a Member appoints two proxies and the appointment does not specify
the proportion or number of the Member's votes each proxy may
exercise, each proxy may exercise half the votes. However, neither
proxy may vote on a show of hands.
43.5 A proxy may demand or join in demanding a poll.
43.6 A proxy may vote or abstain as he or she chooses except where the
appointment of the proxy directs the way the proxy is to vote on a
particular resolution. If an appointment directs the way the proxy is
to vote on a particular resolution:
(a) the proxy need not vote on a show of hands, but if the proxy
does so, the proxy must vote that way;
(b) if the proxy has two or more appointments that specify different
ways to vote on the resolution - the proxy must not vote on a
show of hands;
(c) if the proxy is the chair - the proxy must vote on a poll, and
must vote that way; and
(d) if the proxy is not the chair - the proxy need not vote on a
poll, but if the proxy does so, the proxy must vote that way.
44. DOCUMENT APPOINTING PROXY
44.1 An appointment of a proxy is valid if it is signed by the Member
making the appointment and contains the information required by
subsection 250A(1) of the Corporations Act 2001. The Directors may
determine that an appointment of a proxy is valid even if it only
contains some of the information required by section 250A(1) of the
Corporations Act 2001.
44.2 For the purposes of CLAUSE 44.1, an appointment received at an
electronic address will be taken to be signed by the Member if:
(a) a personal identification code allocated by the Company to the
Member has been input into the appointment; or
(b) the appointment has been verified in another manner approved by
the Directors.
44.3 The Company may send a proxy appointment form to Members in a form
which has been approved by the Directors or by the chairperson and
the Managing Director.
44.4 A proxy's appointment is valid at an adjourned general meeting.
44.5 A proxy or attorney may be appointed for all general meetings or for
any number of general meetings or for a particular purpose.
44.6 Unless otherwise provided for in the proxy's appointment or in any
instrument appointing an attorney, the appointment of the proxy or
the attorney will be taken to confer authority:
(a) to vote on:
(i) any amendment moved to the proposed resolutions and on any
motion that the proposed resolutions not be put or any
similar motion; and
18
(ii) any procedural motion, including any motion to elect the
chairperson, to vacate the chair or to adjourn the general
meeting,
even though the appointment may specify the way the proxy or
attorney is to vote on a particular resolution; and
(b) to vote on any motion before the general meeting whether or not
the motion is referred to in the appointment.
45. PROXY IN BLANK
If a proxy appointment is signed by the Member but does not name the
proxy or proxies in whose favour it is given, the chairperson may
either act as proxy or complete the proxy appointment by inserting
the name or names of one or more Directors or the Secretary.
46. LODGMENT OF PROXY
46.1 Subject to CLAUSE 46.3, the appointment of a proxy or attorney must
be received by the Company, at least 48 hours (unless reduced in the
notice of meeting to which the appointment relates) before the
general meeting (or the resumption of an adjourned general meeting)
at which the appointee is to attend and vote.
46.2 If the appointment purports to be executed under a power of attorney
or other authority, the original document or a certified copy of it
must be forwarded with the appointment.
46.3 The Company receives an appointment of a proxy or attorney or other
authority under which it was signed when they are received at:
(a) the Office;
(b) a facsimile number at the Office; or
(c) a place, facsimile number or electronic address specified for
that purpose in the notice of general meeting.
47. VALIDITY
A vote cast in accordance with an appointment of proxy or power of
attorney is valid even if before the vote was cast the appointor:
(a) died;
(b) became of unsound mind;
(c) revoked the proxy or power; or
(d) transferred the Shares in respect of which the vote was cast,
unless any written notification of the death, unsoundness of mind,
revocation or transfer was received by the Company before the
relevant general meeting or adjourned general meeting.
19
48. REPRESENTATIVES OF CORPORATIONS
48.1 Any Member that is a corporation may appoint an individual as its
representative as provided by the Corporations Act 2001. If a
Member corporation does so:
(a) its representative may exercise at the relevant general meeting
all the powers which the Member corporation could exercise if it
were a natural person; and
(b) when its representative is present at a meeting, the Member
corporation will be considered to be personally present at the
meeting.
48.2 The chairperson of a general meeting may permit a person claiming to
be a Representative to exercise his or her powers even if he or she
has not produced a certificate evidencing his or her appointment, or
may allow the Representative to vote on the condition that he or she
subsequently establishes to the satisfaction of the chairperson of
the general meeting his or her status as a Representative within a
period prescribed by the chairperson of the general meeting.
48.3 The appointment of a Representative may set out restrictions on the
Representative's powers.
WRITTEN RESOLUTIONS
49. WRITTEN RESOLUTIONS
49.1 Subject to the Corporations Act 2001, the Company may pass a
resolution without a general meeting being held if all the Members
entitled to vote on the resolution sign a document containing a
statement that they are in favour of the resolution set out in the
document. The resolution is passed when the last Member signs.
49.2 For the purposes of CLAUSE 49.1, separate copies of a document may
be used for signing by Members if the wording is identical in each
copy.
49.3 If the Company has one Member, the Company may pass a resolution by
the Member recording it and signing the record.
49.4 Any document referred to in this clause may be in the form of a
facsimile transmission.
APPOINTMENT AND REMOVAL OF DIRECTORS
50. NUMBER OF DIRECTORS
50.1 Subject to the Corporations Act 2001, the Company may by resolution
passed at a general meeting increase the number of Directors.
50.2 Until the Company resolves otherwise there will be:
(a) a minimum of one Director; and
(b) a maximum of ten Directors.
20
51. QUALIFICATION
Neither a Director nor an Alternate Director has to hold any Shares,
but a Director (and an Alternate Director when acting as a Director)
is entitled to notice of and to attend and speak at all general
meetings and at every meeting of the holders of Shares of any class
of Shares.
52. APPOINTMENT AND REMOVAL OF DIRECTORS
52.1 The initial Directors of the Company are the persons who have
consented to act as directors and are set out in the Company's
application for registration as a company. Those persons hold office
subject to this Constitution.
52.2 The Company may by resolution passed in general meeting:
(a) remove any Director; and
(b) appoint another person in the Director's place.
52.3 (a) If the conduct or position of any Director is such that
continuance in office appears to the majority of the Directors
to be prejudicial to the interests of the Company, a majority of
Directors at a meeting of the Directors specifically called for
that purpose may suspend that Director.
(b) Within 14 days of the suspension, the Directors must call a
general meeting, at which the Members may either confirm the
suspension and remove the Director from office in accordance
with CLAUSE 52.3(a) or annul the suspension and reinstate the
Director.
53. ADDITIONAL AND CASUAL DIRECTORS
Subject to CLAUSE 50, the Directors may appoint any person as a
Director to fill a casual vacancy or as an addition to the existing
Directors.
54. PERIOD OF OFFICE
A Director will continue to hold office until he or she dies or until
his or her office is vacated under CLAUSE 55.
55. VACATION OF OFFICE
The office of a Director immediately becomes vacant if the Director:
(a) is prohibited by the Corporations Act 2001 from holding office
or continuing as a Director;
(b) cannot manage the Company because of his or her mental
incapacity and is a person whose estate or property has had a
personal representative or trustee appointed to administer it;
(c) resigns by notice in writing to the Company; or
21
(d) is removed by a resolution of the Company.
REMUNERATION OF DIRECTORS
56. REMUNERATION OF NON-EXECUTIVE DIRECTORS
56.1 The Directors (other than the Managing Director or an Executive
Director) may be paid as remuneration for their services up to the
aggregate maximum sum from time to time determined by the Company by
ordinary resolution, or, if no such aggregate maximum sum has been so
determined, $200,000 per annum.
56.2 The remuneration will be divided between the non-executive Directors
in such proportion and manner as the Directors agree and, in default
of agreement, equally.
56.3 If a non-executive Director is required to perform services for the
Company which in the opinion of the Directors are outside the scope
of the ordinary duties of a Director, then the Company may pay the
Director a fixed sum determined by the Directors in addition to or
instead of the Director's remuneration under CLAUSE 56.1.
56.4 The non-executive Directors may also be paid all travelling, hotel
and other expenses properly incurred by them in attending and
returning from meetings of the Directors or any committee of the
Directors or general meetings of the Company or otherwise in
connection with the Company's business.
56.5 The Company may also pay a premium in respect of a contract insuring
a person who is or has been a non-executive Director against a
liability incurred by the person as a Director, except in
circumstances prohibited by the Corporations Act 2001.
57. REMUNERATION OF EXECUTIVE DIRECTORS
57.1 The remuneration of a Managing Director or of an Executive Director
may from time to time be fixed by the Directors.
57.2 The Company may pay a premium in respect of a contract insuring a
person who is or has been an Executive Director against a liability
incurred by the person as a Director, except in circumstances
prohibited by the Corporations Act 2001.
58. PAYMENT TO FORMER DIRECTORS
Subject to the Corporations Act 2001, the Company may give a person a
benefit in connection with a Director's retirement from a board or
managerial office in the Company.
POWERS AND DUTIES OF DIRECTORS
59. DIRECTORS TO MANAGE COMPANY
59.1 The business of the Company is managed by the Directors who may
exercise all powers of the Company that this Constitution and the
Corporations Act 2001 do not require to be exercised by the Company
in general meeting.
22
59.2 Without limiting the generality of CLAUSE 59.1, the Directors may
exercise all the powers of the Company to:
(a) borrow money;
(b) charge any property or business of the Company or all or any of
its uncalled capital;
(c) issue debentures or give any other security for a debt,
liability or obligation of the Company or of any other person;
and
(d) guarantee or to become liable for the payment of money or the
performance of any obligation by or of any other person.
59.3 Every Director and other agent or officer of the Company must:
(a) keep secret all aspects of all transactions of the Company,
except:
(i) to the extent necessary to enable the person to perform his
or her duties to the Company;
(ii) as required by law; and
(iii) when requested to disclose information by the Directors, to
the auditors of the Company or a general meeting of the
Company; and
(b) if requested by the Directors, sign and make a declaration that
he or she will not disclose or publish any aspect of any
transaction of the Company.
59.4 Subject to the Corporations Act 2001, at any time when the Company is
a wholly owned subsidiary of another body corporate, a Director may
act in the best interests of that other body corporate.
PROCEEDINGS OF DIRECTORS
60. DIRECTORS' MEETINGS
60.1 A Director may at any time, and the Secretary must on the request of
a Director, call a Directors' meeting.
60.2 It is not necessary to give notice of a meeting of the Directors to
an Australian resident Director whom the Secretary, when giving
notice to the other Directors, reasonably believes to be temporarily
outside Australia.
60.3 (a) Subject to the Corporations Act 2001, a Directors' meeting may
be held by the Directors communicating with each other by any
technological means by which they are able simultaneously to
hear each other and to participate in discussion.
(b) The Directors need not all be physically present in the same
place for a Directors' meeting to be held.
(c) A Director who participates in a meeting held in accordance with
this CLAUSE 60.3 is taken to be present and entitled to vote at
the meeting.
23
(d) A Director can only withdraw his or her consent to the means of
communication between Directors proposed for a Directors'
Meeting if the Director does so at least 48 hours before the
meeting.
60.4 CLAUSE 60.3 applies to meetings of Directors' committees as if all
committee members were Directors.
60.5 The Directors may meet together, adjourn and regulate their meetings
as they think fit.
60.6 At a meeting of Directors, a quorum is two Directors unless the
Company has only one Director, when the quorum is that Director.
60.7 Where a quorum cannot be established for the consideration of a
particular matter at a meeting of Directors, the chairperson or the
Managing Director may call a general meeting of Members to deal with
the matter.
60.8 Notice of a meeting of Directors may be given in writing, or the
meeting may be otherwise called using any technology consented to by
all the Directors.
61. DECISION ON QUESTIONS
61.1 Subject to this Constitution, questions arising at a meeting of
Directors are to be decided by a majority of votes of the Directors
present and voting and, subject to CLAUSE 62, each Director has one
vote.
61.2 The chairperson of a meeting does not have a casting vote in addition
to his or her deliberative vote if there is an equality of votes.
61.3 (a) An Alternate Director has one vote for each Director for whom
he or she is an alternate.
(b) If the Alternate Director is a Director, he or she also has a
vote as a Director.
62. DIRECTORS' INTERESTS
62.1 As required by the Corporations Act 2001, a Director must give the
Directors notice of any material personal interest in a matter that
relates to the affairs of the Company.
62.2 A Director or a body or entity in which a Director has a direct or
indirect interest may:
(a) enter into any agreement or arrangement with the Company;
(b) hold any office or place of profit (other than auditor) in the
Company; and
(c) act in a professional capacity (other than as auditor) for the
Company,
and the Director or the body or entity can receive and keep
beneficially any remuneration, profits or benefits under any
agreement or arrangement with the Company or from holding an office
or place of profit in or acting in a professional capacity with the
Company.
62.3 The fact that a Director holds office as a director, and has
fiduciary obligations arising out of that office:
24
(a) will not void or render voidable a contract made by a Director
with the Company;
(b) will not void or render voidable a contract or arrangement
entered into by or on behalf of the Company and in which the
Director may have any interest; and
(c) will not require the Director to account to the Company for any
profit realised by or under any contract or arrangement entered
into by or on behalf of the Company and in which the Director
may have any interest.
62.4 A Director may be or become a director or other officer of, or
otherwise be interested in:
(a) any related body corporate; or
(b) any other body corporate promoted by the Company or in which the
Company may be interested as a vendor, shareholder or otherwise,
and is not accountable to the Company for any remuneration or other
benefits received by the director or officer of, or from having an
interest in, that body corporate.
62.5 A Director who has a material personal interest in a matter that is
being considered at a Director's meeting must not:
(a) be present while the matter is being considered at the meeting;
or
(b) vote on the matter,
unless permitted to do so by the Corporations Act 2001, in which case
the Director may:
(c) be counted in determining whether or not a quorum is present at
any meeting of Directors considering that contract or
arrangement or a proposed contract or arrangement;
(d) sign or countersign any document relating to that contract or
arrangement or a proposed contract or arrangement; and
(e) vote in respect of, or in respect of any matter arising out of,
the contract or arrangement or proposed contract or arrangement.
63. ALTERNATE DIRECTORS
63.1 A Director may, with the approval of a majority of the other
Directors, appoint any person as his or her alternate for a period
determined by that Director.
63.2 An Alternate Director is entitled to notice of Directors' meetings
and, if the appointor is not present at a meeting, is entitled to
attend, be counted in a quorum and vote as a Director.
63.3 An Alternate Director is an officer of the Company and is not an
agent of the appointor.
63.4 The provisions of this Constitution which apply to Directors also
apply to Alternate Directors, except that Alternate Directors are not
entitled to any remuneration from the Company.
25
63.5 (a) The appointment of an Alternate Director may be revoked at
any time by the appointor.
(b) An Alternate Director's appointment ends automatically when his
or her appointor ceases to be a Director.
63.6 Any appointment or revocation under this clause must be effected by
written notice delivered to the Secretary.
64. ASSOCIATE DIRECTORS
64.1 The Directors may appoint a person to be an associate director and
may remove a person so appointed.
64.2 The Directors may define and limit the duties and powers of associate
directors and their remuneration for their services as associate
directors.
64.3 A person appointed as an associate director is not a Director for any
of the purposes of this Constitution or of the Corporations Act 2001
and accordingly:
(a) is not a member of the board of Directors or of any committee of
Directors;
(b) is not entitled to be present at any meeting of the Directors or
of any committee of the Directors except at the request of the
Directors or of a committee of Directors; and
(c) if present at such request, may not vote or form part of a
quorum.
65. REMAINING DIRECTORS
65.1 The Directors may act even if there are vacancies on the board.
65.2 If the number of Directors is not sufficient to constitute a quorum
at a Directors' meeting, the Directors may act only to:
(a) appoint a Director; or
(b) call a general meeting.
66. CHAIRPERSON
66.1 The Directors may elect a Director as chairperson of Directors'
meetings and may determine the period for which the chairperson will
hold office.
66.2 If no chairperson is elected or if the chairperson is not present at
any Directors' meeting within 10 minutes after the time appointed for
the meeting to begin, the Directors present must elect a Director to
be chairperson of the meeting.
66.3 The Directors may elect a Director as deputy chairperson to act as
chairperson in the chairperson's absence.
26
67. DIRECTORS' COMMITTEES
67.1 The Directors may delegate any of their powers to:
(a) a committee of Directors;
(b) a Director;
(c) an employee of the Company; or
(d) any other person.
67.2 A committee or person to which any powers have been delegated must
exercise its powers in accordance with any directions of the
Directors and a power exercised in that way is taken to have been
exercised by the Directors.
67.3 A committee or person to which any powers have been delegated may be
authorised to sub-delegate all or any of the powers for the time
being vested in it.
67.4 Meetings of any committee will be governed by the provisions of this
Constitution which deal with Directors' meetings so far as they are
applicable and are not inconsistent with any directions of the
Directors.
68. WRITTEN RESOLUTIONS
68.1 The Directors may pass a resolution without a Directors' meeting
being held if all the Directors entitled to vote on the resolution
sign a document containing a statement that they are in favour of the
resolution set out in the document. The resolution is passed when the
last Director signs.
68.2 For the purposes of CLAUSE 68.1, separate copies of a document may be
used for signing by Directors if the wording of the resolution and
statement is identical in each copy.
68.3 If the Company has one Director, the Director may pass a resolution
or make a declaration by recording it and signing the record.
68.4 Any document referred to in this clause may be in the form of a
facsimile transmission or electronic notification.
68.5 This clause applies to meetings of Directors' committees as if all
members of the committee were Directors.
69. VALIDITY OF ACTS OF DIRECTORS
If it is discovered that:
(a) there was a defect in the appointment of a person as a Director,
Alternate Director or member of a Directors' committee; or
(b) a person appointed to one of those positions was disqualified,
all acts of the Directors or the Directors' committee before the
discovery was made are as valid as if the person had been duly
appointed and was not disqualified.
27
70. MINUTES AND REGISTERS
70.1 The Directors must cause minutes to be made of:
(a) the names of the Directors present at all Directors' meetings and
meetings of Directors' committees;
(b) all proceedings and resolutions of general meetings, Directors'
meetings and meetings of Directors' committees;
(c) all resolutions passed by Directors in accordance with CLAUSE 68;
(d) all orders made by the Directors and Directors' committees; and
(e) all disclosures of interests made under CLAUSE 62.
70.2 Minutes must be signed by the chairperson of the meeting or by the
chairperson of the next meeting of the relevant body, and if so
signed will as between the Directors be conclusive evidence of the
matters stated in such minutes.
MANAGING OR EXECUTIVE DIRECTOR
71. APPOINTMENT OF MANAGING OR EXECUTIVE DIRECTOR
71.1 (a) The Directors may appoint a Director to the office of
Managing Director or any other office (other than auditor) or
employment under the Company for any period (but not for life)
and on any terms as they think fit.
(b) A Director (other than a Managing Director) so appointed is
referred to in this Constitution as an Executive Director.
71.2 The Directors may, subject to the terms of a Managing Director's or
Executive Director's employment contract, suspend, remove or dismiss
him or her from that office and appoint another Director in that
place.
71.3 If a Managing or Executive Director ceases to be a Director, his or
her appointment as Managing or Executive Director terminates
automatically.
71.4 If a Managing or Executive Director is suspended from office, he or
she will not be entitled to attend or vote at any meeting of
Directors.
72. POWERS
72.1 The Directors may confer on a Managing Director or Executive Director
any powers exercisable by the Directors, subject to any terms and
restrictions determined by the Directors.
72.2 The Managing Director and other Executive Directors are authorised to
sub-delegate all or any of the powers vested in them.
72.3 Any power conferred under this clause may be concurrent with or to
the exclusion of the Directors' powers.
28
72.4 The Directors may at any time withdraw or vary any of the powers
conferred on a Managing Director or Executive Director.
LOCAL MANAGEMENT
73. LOCAL MANAGEMENT
73.1 The Directors may provide for the management and transaction of the
affairs of the Company in any places and in such manner as they think
fit.
73.2 Without limiting CLAUSE 73.1 the Directors may:
(a) establish local boards or agencies for managing any of the
affairs of the Company in a specified place and appoint any
persons to be members of those local boards or agencies; and
(b) delegate to any person appointed under CLAUSE 73.2(a) any of the
powers, authorities and discretions which may be exercised by
the Directors under this Constitution,
on any terms and subject to any conditions determined by the
Directors.
73.3 The Directors may at any time revoke or vary any delegation under
this CLAUSE 73.
74. APPOINTMENT OF ATTORNEYS AND AGENTS
74.1 The Directors may from time to time by resolution or power of
attorney executed in accordance with section 127 of the Corporations
Act 2001 appoint any person to be the agent or attorney of the
Company:
(a) for the purposes;
(b) with the powers, authorities and discretions (not exceeding
those exercisable by the Directors under this Constitution);
(c) for the period; and
(d) subject to the conditions,
determined by the Directors.
74.2 An appointment by the Directors of an attorney or agent of the
Company may be made in favour of:
(a) any member of any local board established under this
Constitution;
(b) any company;
(c) the members, directors, nominees or managers of any company or
firm; or
(d) any fluctuating body of persons whether nominated directly or
indirectly by the Directors.
29
74.3 A power of attorney may contain such provisions for the protection
and convenience of persons dealing with an attorney as the Directors
think fit.
74.4 The Directors may appoint attorneys or agents by facsimile
transmission, telegraph or cable to act for and on behalf of the
Company.
74.5 An attorney or agent appointed under this CLAUSE 74 may be authorised
by the Directors to sub-delegate all or any of the powers authorities
and discretions for the time being vested in it.
SECRETARY
75. SECRETARY
75.1 If required by the Corporations Act 2001, there must be at least one
secretary of the Company appointed by the Directors for a term and at
remuneration and on conditions determined by them.
75.2 The Secretary (if any) is entitled to attend and be heard on any
matter at all Directors' and general meetings.
75.3 The Directors may, subject to the terms of the Secretary's employment
contract, suspend, remove or dismiss the Secretary.
SEALS
76. COMMON SEAL
If the Company has a Seal:
(a) the Directors must provide for the safe custody of the Seal;
(b) the Seal must not be used without the authority of the Directors
or a Directors' committee authorised to use the Seal;
(c) subject to PARAGRAPH (d), every document to which the Seal is
affixed must be signed by a Director and be countersigned by
another Director, the Secretary or another person appointed by
the Directors to countersign the document; and
(d) if the Company has only one Director who is also the only
secretary of the Company, every document to which the Seal is
affixed must be signed by the Director but need not be
countersigned.
77. DUPLICATE SEAL
77.1 If the Company has a Seal, the Company may have one or more duplicate
Seals of the Seal each of which:
(a) must be a facsimile of the Seal with the addition on its face of
the words 'Duplicate Seal';
(b) must only be used with the authority of the Directors or a
Directors' Committee.
30
78. SHARE SEAL
78.1 If the Company has a Seal the Company may have a Share seal which may
be affixed to Share certificates.
78.2 The Share Seal (if any):
(a) must be a facsimile of the Seal with 'Share Seal' or
'Certificate Seal' on its face; and
(b) must only be used with the authority of the Directors or a
Director's Committee.
INSPECTION OF RECORDS
79. TIMES FOR INSPECTION
79.1 Except as otherwise required by the Corporations Act 2001, the
Directors may determine whether and to what extent, and at what times
and places and under what conditions, the financial records and other
documents of the Company or any of them will be open for inspection
by Members other than Directors.
79.2 A Member other than a Director does not have the right to inspect any
financial records or other documents of the Company unless the Member
is authorised to do so by a court order or a resolution of the
Directors.
DIVIDENDS AND RESERVES
80. PAYMENT OF DIVIDENDS
80.1 The Directors may:
(a) declare that the Company pay dividends; or
(b) determine that dividends are payable by the Company and fix the
amount and time for and method of payment.
80.2 Subject to the Corporations Act 2001, if the Directors determine that
a dividend is payable under CLAUSE 80.1(b), they may amend or revoke
the resolution to pay the dividend at any time before the date fixed
for payment.
81. INTEREST
The Company must not pay interest on a dividend.
82. RESERVES
82.1 The Directors may set aside out of profits an amount by way of
reserves as they think appropriate to pay a dividend.
82.2 The Directors may apply the reserves for any purpose for which
profits may be properly applied.
31
82.3 Pending any such application, the Directors may invest or use the
reserves in the business of the Company or in other investments as
they think fit.
82.4 The Directors may carry forward any undistributed profits without
transferring them to a reserve.
83. DIVIDEND ENTITLEMENT
83.1 Subject to the rights of persons (if any) entitled to Shares with
special rights as to dividend, any dividend must be paid according to
the amounts paid or credited as paid on the Shares in respect of
which the dividend is paid.
83.2 All dividends must be apportioned and paid proportionately to the
amounts paid or credited as paid on the Shares during any portion or
portions of the period in respect of which the dividend is paid, but,
if a Share is issued on terms providing that it will rank for
dividend as from a particular date, that Share ranks for dividend
accordingly.
83.3 An amount paid or credited as paid on a Share in advance of a call is
not to be taken as paid or credited as paid for the purposes of
CLAUSES 83.1 and 83.2.
83.4 A transfer of Shares does not pass the right to any dividend declared
or determined to be payable in respect of those Shares before the
registration of a transfer.
84. DEDUCTIONS FROM DIVIDENDS
The Directors may deduct from a dividend payable to a Member all sums
presently payable by the Member to the Company on account of calls or
otherwise in relation to Shares in the Company.
85. DISTRIBUTION OF ASSETS
85.1 The Directors may resolve that a dividend (interim or final) will be
paid wholly or partly by the transfer or distribution of specific
assets, including fully paid Shares in, or debentures of, any other
corporation.
85.2 If a difficulty arises in making a transfer or distribution of
specific assets, the Directors may:
(a) deal with the difficulty as they consider expedient;
(b) fix the value of all or any part of the specific assets for the
purposes of the distribution;
(c) determine that cash will be paid to any Members on the basis of
the fixed value in order to adjust the rights of all the
Members; and
(d) vest any such specific assets in trustees as the Directors
consider expedient.
85.3 If a transfer or distribution of specific assets to a particular
Member or Members is illegal or, in the Directors' opinion,
impracticable, the Directors may make a cash payment to the Member or
Members on the basis of the cash amount of the dividend instead of
the transfer or distribution of specific assets.
32
86. PAYMENT
86.1 Any dividend or other money payable in respect of Shares may be paid
by:
(a) cheque sent through the mail directed to:
(i) the address of the Member shown in the Register or to the
address of the joint holder of Shares shown first in the
Register; or
(ii) an address which the Member or joint holders has in writing
notified the Company as the address to which dividends
should be sent;
(b) electronic funds transfer to an account with a bank or other
financial institution nominated by the Member and acceptable to
the Company; or
(c) any other means determined by the Directors.
86.2 Any joint holder may give an effectual receipt for any dividend or
other money paid in respect of Shares held by holders jointly.
87. CAPITALISATION OF PROFITS
87.1 The Directors may resolve:
(a) to capitalise profits and apply the sum capitalised; and
(b) that the sum be applied, in any of the ways mentioned in CLAUSE
87.2, for the benefit of Members, or persons who have applied
for Shares, in the proportions determined by the Directors.
87.2 The ways in which a sum may be applied for the benefit of Members
under CLAUSE 87.1 are:
(a) in paying up any amounts unpaid on Shares held or to be held by
Members;
(b) in paying up in full Shares or debentures to be issued to
Members as fully paid; or
(c) partly as mentioned in PARAGRAPH (a) and partly as mentioned in
PARAGRAPH (b).
87.3 The Directors must do all things necessary to give effect to a
resolution under CLAUSE 87.1 and, in particular, to the extent
necessary to adjust the rights of the Members among themselves, may:
(a) issue fractional certificates or make cash payments in cases
where Shares or debentures become issuable in fractions; and
(b) authorise any person to make, on behalf of all the Members
entitled to a benefit on the capitalisation, an agreement with
the Company providing for:
(i) the issue to them, credited as fully paid up, of any such
further Shares or debentures; or
33
(ii) the payment by the Company on their behalf of the amount or
any part of the amount remaining unpaid on their existing
Shares by the application of their respective proportions
of the sum resolved to be capitalised,
and any agreement made under the authority of PARAGRAPH (b) is
effective and binding on all the Members concerned.
NOTICES
88. SERVICE OF NOTICES
88.1 Notice may be given by the Company to any person who is entitled to
notice under this Constitution by:
(a) serving it on the person;
(b) sending it by post, facsimile transmission or electronic
notification to the person at the person's address shown in the
Register or the address supplied by the person to the Company
for sending notices to the person; or
(c) if the notice is to a Member and the Member has no registered
address, posting it on a notice board at the Office.
88.2 A notice sent by post is taken to be served:
(a) by properly addressing, prepaying and posting a letter
containing the notice; and
(b) on the day after the day on which it was posted.
88.3 A notice sent by facsimile transmission or electronic notification is
taken to be served:
(a) by properly addressing the facsimile transmission or electronic
notification and transmitting it; and
(b) on the day after its despatch.
88.4 A notice posted on a notice board at the Office is taken to be served
24 hours after it is posted on the board.
88.5 A notice may be given by the Company to joint holders by giving the
notice to the joint holder whose name appears first in the Register.
88.6 Every person who is entitled to a Share by operation of law and who
is not registered as the holder of the Share is taken to receive any
notice served in accordance with this clause on the person from whom
it derives its title.
88.7 A Share certificate, cheque, warrant or other document may be
delivered by the Company either personally or by sending it:
(a) in the case of a Member who does not have a registered address
in Australia, by airmail post; and
(b) in any other case, by ordinary post,
34
and is at the risk of the addressee as soon as it is given or posted.
88.8 A Member whose registered address is not in Australia may specify in
writing an address in Australia as the Member's registered address
within the meaning of this clause.
88.9 A certificate in writing signed by a Director, Secretary or other
officer of the Company that a document or its envelope or wrapper was
addressed and stamped and was posted is conclusive evidence of
posting.
88.10 Subject to the Corporations Act 2001 the signature to a written
notice given by the Company may be written or printed.
88.11 All notices sent by post outside Australia must be sent by prepaid
airmail post.
89. PERSONS ENTITLED TO NOTICE
89.1 Notice of every general meeting must be given to:
(a) every Member;
(b) every Director and Alternate Director; and
(c) any Auditor.
89.2 No other person is entitled to receive notice of a general meeting.
AUDIT AND ACCOUNTS
90. COMPANY TO KEEP ACCOUNTS
The Directors must cause the Company to keep written financial
records in relation to the business of the Company in accordance with
the requirements of the Corporations Act 2001.
WINDING UP
91. WINDING UP
91.1 Nothing in this clause prejudices the rights of the holders of Shares
issued on special terms and conditions.
91.2 If the Company is wound up, the liquidator may, with the sanction of
a special resolution of the Company:
(a) divide among the Members in kind all or any of the Company's
assets; and
(b) for that purpose, determine how he or she will carry out the
division between the different classes of Members,
but may not require a Member to accept any Shares or other securities
in respect of which there is any liability.
35
91.3 The liquidator may, with the sanction of a special resolution of the
Company, vest all or any of the Company's assets in a trustee on
trusts determined by the liquidator for the benefit of the
contributories.
PAYMENTS BY THE COMPANY
92. INDEMNITY
92.1 Every Director, agent, Auditor, Secretary and other officer for the
time being of the Company shall be indemnified out of the assets of
the Company against any liability incurred by him as such Director,
agent, Auditor, Secretary or other officer in defending any
proceedings whether civil or criminal in which judgment is given in
his favour or in which he is acquitted or in connection with any
application under the Corporations Act 2001 in which relief is
granted to him by the court in respect of any negligence, default,
breach of duty or breach of trust. However, the right of indemnity
against the Company may, in certain circumstances, be limited by the
Corporations Act 2001.
92.2 To the extent permitted by law and subject to the restrictions in
section 199A of the Corporations Act 2001, the Company indemnifies
every person who is or has been an officer of the Company or a
subsidiary against reasonable legal costs incurred in defending an
action for a liability incurred by that person as such an officer of
the Company or a subsidiary.
92.3 The amount of any indemnity payable under CLAUSES Error! Reference
source not found. or 92.1 will include an additional amount ('GST
AMOUNT') equal to any GST payable by the officer being indemnified
('INDEMNIFIED OFFICER') in connection with the indemnity (less the
amount of any input tax credit claimable by the Indemnified Officer
in connection with the indemnity). Payment of any indemnity which
includes a GST Amount is conditional upon the Indemnified Officer
providing the Company with a GST tax invoice for the GST Amount.
92.4 For the purposes of this CLAUSE 92, 'OFFICER' means:
(a) a Director; or
(b) a Secretary.
- --------------------------------------------------------------------------------
SIGNATURE
- --------------------------------------------------------------------------------
We, the undersigned, being a company specified in the application for the
Company's registration as a company that consents to become a Member, agree to
the terms of this Constitution:
.......................................................
Signature of duly authorised officer of
INTERSTAR SECURITIES (AUSTRALIA) PTY LTD
ACN 087 271 109
.......................................................
Name of duly authorised officer of
INTERSTAR SECURITIES (AUSTRALIA) PTY LTD
ACN 087 271 109
Dated: 26 April 2002
CORPORATIONS ACT 2001
CONSTITUTION
OF
INTERSTAR SECURITISATION MANAGEMENT PTY LTD
ACN 100 346 898
MINTER ELLISON
Lawyers
Rialto Towers
525 Collins Street
MELBOURNE VIC 3000
DX 204 MELBOURNE
Telephone (03) 8608 2000
Facsimile (03) 8608 1000
MHL 30-3241728
TABLE OF CONTENTS
PRELIMINARY.......................................................................................................1
1. DEFINITIONS AND INTERPRETATION.........................................................................1
SHARES............................................................................................................2
2. RIGHTS.................................................................................................2
3. ISSUE OF SHARES AND OTHER SECURITIES...................................................................2
4. BUY-BACKS..............................................................................................3
5. COMMISSION AND BROKERAGE...............................................................................3
6. TRUSTS NOT RECOGNISED..................................................................................3
7. JOINT HOLDERS..........................................................................................3
8. RIGHT TO CERTIFICATE...................................................................................3
9. REPLACEMENT OF CERTIFICATE.............................................................................4
10. VARIATION OF CLASS RIGHTS..............................................................................4
CALLS.............................................................................................................5
11. CALLS..................................................................................................5
12. INSTALMENTS............................................................................................5
13. INTEREST AND EXPENSES ON CALLS.........................................................................6
14. RECOVERY OF AMOUNTS DUE................................................................................6
15. DIFFERENTIATION........................................................................................6
16. PAYMENT OF CALLS IN ADVANCE............................................................................6
LIEN AND FORFEITURE...............................................................................................7
17. LIEN...................................................................................................7
18. LIEN SALE..............................................................................................8
19. FORFEITURE NOTICE......................................................................................8
20. FORFEITURE.............................................................................................8
21. LIABILITY OF FORMER MEMBER.............................................................................9
22. DISPOSAL OF SHARES.....................................................................................9
TRANSFER OF SHARES...............................................................................................10
23. TRANSFER..............................................................................................10
ii
24. TRANSFER PROCEDURE....................................................................................10
25. RIGHT TO REFUSE REGISTRATION..........................................................................10
26. CLOSURE OF REGISTER...................................................................................11
TRANSMISSION OF SHARES...........................................................................................11
27. TITLE ON DEATH........................................................................................11
28. TRANSMISSION..........................................................................................11
CHANGES TO SHARE CAPITAL.........................................................................................12
29. DEALING WITH SHARE FRACTIONS..........................................................................12
GENERAL MEETINGS.................................................................................................12
30. CALLING GENERAL MEETING...............................................................................12
31. NOTICE OF GENERAL MEETING.............................................................................12
PROCEEDINGS AT GENERAL MEETINGS..................................................................................13
32. MEMBER................................................................................................13
33. QUORUM................................................................................................13
34. CHAIRPERSON...........................................................................................14
35. ADJOURNMENT...........................................................................................14
36. DECISION ON QUESTIONS.................................................................................15
37. TAKING A POLL.........................................................................................15
VOTES OF MEMBERS.................................................................................................15
38. ENTITLEMENT TO VOTE...................................................................................15
39. UNPAID CALLS..........................................................................................16
40. JOINT HOLDERS.........................................................................................16
41. OBJECTIONS............................................................................................16
42. VOTES BY OPERATION OF LAW.............................................................................16
43. VOTES BY PROXY........................................................................................16
44. DOCUMENT APPOINTING PROXY.............................................................................17
45. PROXY IN BLANK........................................................................................18
46. LODGMENT OF PROXY.....................................................................................18
47. VALIDITY..............................................................................................18
iii
48. REPRESENTATIVES OF CORPORATIONS.......................................................................19
WRITTEN RESOLUTIONS..............................................................................................19
49. WRITTEN RESOLUTIONS...................................................................................19
APPOINTMENT AND REMOVAL OF DIRECTORS.............................................................................19
50. NUMBER OF DIRECTORS...................................................................................19
51. QUALIFICATION.........................................................................................20
52. APPOINTMENT AND REMOVAL OF DIRECTORS..................................................................20
53. ADDITIONAL AND CASUAL DIRECTORS.......................................................................20
54. PERIOD OF OFFICE......................................................................................20
55. VACATION OF OFFICE....................................................................................20
REMUNERATION OF DIRECTORS........................................................................................21
56. REMUNERATION OF NON-EXECUTIVE DIRECTORS...............................................................21
57. REMUNERATION OF EXECUTIVE DIRECTORS...................................................................21
58. PAYMENT TO FORMER DIRECTORS...........................................................................21
POWERS AND DUTIES OF DIRECTORS...................................................................................21
59. DIRECTORS TO MANAGE COMPANY...........................................................................21
PROCEEDINGS OF DIRECTORS.........................................................................................22
60. DIRECTORS' MEETINGS...................................................................................22
61. DECISION ON QUESTIONS.................................................................................23
62. DIRECTORS' INTERESTS..................................................................................23
63. ALTERNATE DIRECTORS...................................................................................24
64. ASSOCIATE DIRECTORS...................................................................................25
65. REMAINING DIRECTORS...................................................................................25
66. CHAIRPERSON...........................................................................................25
67. DIRECTORS' COMMITTEES.................................................................................26
68. WRITTEN RESOLUTIONS...................................................................................26
69. VALIDITY OF ACTS OF DIRECTORS.........................................................................26
70. MINUTES AND REGISTERS.................................................................................27
MANAGING OR EXECUTIVE DIRECTOR...................................................................................27
iv
71. APPOINTMENT OF MANAGING OR EXECUTIVE DIRECTOR.........................................................27
72. POWERS................................................................................................27
LOCAL MANAGEMENT.................................................................................................28
73. LOCAL MANAGEMENT......................................................................................28
74. APPOINTMENT OF ATTORNEYS AND AGENTS...................................................................28
SECRETARY........................................................................................................29
75. SECRETARY.............................................................................................29
SEALS ......................................................................................................29
76. COMMON SEAL...........................................................................................29
77. DUPLICATE SEAL........................................................................................29
78. SHARE SEAL............................................................................................30
INSPECTION OF RECORDS............................................................................................30
79. TIMES FOR INSPECTION..................................................................................30
DIVIDENDS AND RESERVES...........................................................................................30
80. PAYMENT OF DIVIDENDS..................................................................................30
81. INTEREST..............................................................................................30
82. RESERVES..............................................................................................30
83. DIVIDEND ENTITLEMENT..................................................................................31
84. DEDUCTIONS FROM DIVIDENDS.............................................................................31
85. DISTRIBUTION OF ASSETS................................................................................31
86. PAYMENT...............................................................................................32
87. CAPITALISATION OF PROFITS.............................................................................32
NOTICES..........................................................................................................33
88. SERVICE OF NOTICES....................................................................................33
89. PERSONS ENTITLED TO NOTICE............................................................................34
AUDIT AND ACCOUNTS...............................................................................................34
90. COMPANY TO KEEP ACCOUNTS..............................................................................34
WINDING UP.......................................................................................................34
91. WINDING UP............................................................................................34
v
PAYMENTS BY THE COMPANY..........................................................................................35
92. INDEMNITY.............................................................................................35