Exhibit 1.1
BLAKE DAWSON WALDRON
LAWYERS
- --------------------------------------------------------------------------------
CONSTITUTION OF
PSIVIDA LIMITED
ABN 78 009 232 026
7 APRIL 2004
Level 19, Forrest Centre
221 St George's Terrace
PERTH WA 6000
Telephone: (08) 9366 8000
Fax: (08) 9366 8111
REF: DRD:LCS:1359 5530
CONTENTS
1. PRELIMINARY 1
1.1 REPLACEABLE RULES 1
1.2 DEFINITIONS 1
1.3 INTERPRETATION OF THIS DOCUMENT 3
2. LISTING RULES 4
3. DIRECTORS 4
3.1 NUMBER OF DIRECTORS 4
3.2 QUALIFICATION 4
3.3 APPOINTMENT BY THE BOARD 4
3.4 ELECTION BY GENERAL MEETING 5
3.5 ELIGIBLE CANDIDATES 5
3.6 ONE THIRD OF DIRECTORS RETIRE ANNUALLY 5
3.7 SELECTION OF DIRECTORS TO RETIRE 6
3.8 TIME OF RETIREMENT 6
3.9 CESSATION OF DIRECTOR'S APPOINTMENT 6
3.10 REMOVAL FROM OFFICE 6
3.11 TOO FEW DIRECTORS 7
4. ALTERNATE DIRECTORS 7
4.1 APPOINTMENT OF ALTERNATES 7
4.2 NOTICE OF BOARD MEETINGS 7
4.3 OBLIGATIONS AND ENTITLEMENTS OF ALTERNATES 7
4.4 TERMINATION OF APPOINTMENT 7
4.5 APPOINTMENTS AND REVOCATIONS IN WRITING 8
5. POWERS OF THE BOARD 8
5.1 POWERS GENERALLY 8
5.2 EXERCISE OF POWERS 8
5.3 SALE OF MAIN UNDERTAKING 8
6. EXECUTING NEGOTIABLE INSTRUMENTS 8
7. MANAGING DIRECTOR 8
7.1 APPOINTMENT AND POWER OF MANAGING DIRECTOR 8
7.2 RETIREMENT AND REMOVAL OF MANAGING DIRECTOR 9
7.3 MULTIPLE MANAGING DIRECTORS 9
7.4 TERMINATION OF APPOINTMENT OF MANAGING DIRECTOR 9
8. DELEGATION OF BOARD POWERS 10
8.1 POWER TO DELEGATE 10
8.2 POWER TO REVOKE DELEGATION 10
8.3 TERMS OF DELEGATION 10
8.4 PROCEEDINGS OF COMMITTEES 10
9. DIRECTOR'S DUTIES AND INTERESTS 10
9.1 COMPLIANCE WITH DUTIES UNDER THE LAW 10
9.2 DIRECTOR NOT DISQUALIFIED FROM HOLDING OTHER OFFICES ETC 10
9.3 DISCLOSURE OF INTERESTS 10
9.4 DIRECTOR INTERESTED IN A MATTER 11
9.5 AGREEMENTS WITH THIRD PARTIES 11
9.6 OBLIGATION OF SECRECY 11
9.7 DIRECTOR TO GIVE INFORMATION TO COMPANY AND ASX 11
10. DIRECTORS' REMUNERATION 12
10.1 REMUNERATION OF EXECUTIVE DIRECTORS 12
10.2 REMUNERATION OF NON-EXECUTIVE DIRECTORS 12
10.3 ADDITIONAL REMUNERATION FOR EXTRA SERVICES 12
10.4 EXPENSES OF DIRECTORS 12
10.5 DIRECTORS' RETIREMENT BENEFITS 13
11. OFFICERS' INDEMNITY AND INSURANCE 13
11.1 INDEMNITY 13
11.2 INSURANCE 13
11.3 FORMER OFFICERS 14
11.4 DEEDS 14
12. BOARD MEETINGS 14
12.1 CONVENING BOARD MEETINGS 14
12.2 NOTICE OF BOARD MEETING 14
12.3 USE OF TECHNOLOGY 14
12.4 CHAIRING BOARD MEETINGS 14
12.5 QUORUM 15
12.6 MAJORITY DECISIONS 15
12.7 PROCEDURAL RULES 15
12.8 WRITTEN RESOLUTION 15
12.9 ADDITIONAL PROVISIONS CONCERNING WRITTEN RESOLUTIONS 15
12.10 VALID PROCEEDINGS 16
13. MEETINGS OF MEMBERS 16
13.1 ANNUAL GENERAL MEETING 16
13.2 CALLING MEETINGS OF MEMBERS 16
13.3 NOTICE OF MEETING 16
13.4 POSTPONEMENT OR CANCELLATION 16
13.5 FRESH NOTICE 17
13.6 NOTICE TO JOINT HOLDERS OF SHARES 17
13.7 TECHNOLOGY 17
13.8 ACCIDENTAL OMISSION 17
13.9 CLASS MEETINGS 17
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14. PROCEEDINGS AT MEETINGS OF MEMBERS 17
14.1 MEMBER PRESENT AT MEETING 17
14.2 QUORUM 17
14.3 QUORUM NOT PRESENT 17
14.4 CHAIRING MEETINGS OF MEMBERS 18
14.5 ATTENDANCE AT MEETINGS OF MEMBERS 18
14.6 MEMBERS RIGHTS SUSPENDED WHILE CALL UNPAID 18
14.7 CHAIRMAN'S POWERS AT A MEETING OF MEMBERS 18
14.8 ADMISSION TO GENERAL MEETINGS 19
14.9 ADJOURNMENT 19
14.10 BUSINESS AT ADJOURNED MEETINGS 19
15. PROXIES, ATTORNEYS AND REPRESENTATIVES 20
15.1 APPOINTMENT OF PROXIES 20
15.2 MEMBER'S ATTORNEY 20
15.3 DEPOSIT OF PROXY FORMS AND POWERS OF ATTORNEY 20
15.4 EVIDENCE OF PROXY FORMS, POWERS OF ATTORNEY AND OTHER APPOINTMENTS 20
15.5 CORPORATE REPRESENTATIVES 21
15.6 STANDING APPOINTMENTS 21
15.7 SUSPENSION OF PROXY OR ATTORNEY'S POWERS IF MEMBER PRESENT 21
15.8 PRIORITY OF CONFLICTING APPOINTMENTS OF ATTORNEY OR REPRESENTATIVE 21
15.9 MORE THAN 2 CURRENT PROXY APPOINTMENTS 21
15.10 CONTINUING AUTHORITY 21
16. ENTITLEMENT TO VOTE 22
16.1 DETERMINING VOTING ENTITLEMENTS 22
16.2 NUMBER OF VOTES 22
16.3 CASTING VOTE OF CHAIRMAN 23
16.4 VOTES OF JOINT HOLDERS 23
16.5 VOTES OF TRANSMITTEES AND GUARDIANS 23
16.6 VOTING RESTRICTIONS 23
16.7 DECISION ON RIGHT TO VOTE 24
17. HOW VOTING IS CARRIED OUT 24
17.1 METHOD OF VOTING 24
17.2 DEMAND FOR A POLL 24
17.3 WHEN AND HOW POLLS MUST BE TAKEN 24
18. SECRETARY 25
18.1 APPOINTMENT OF SECRETARY 25
18.2 TERMS AND CONDITIONS OF OFFICE 25
18.3 CESSATION OF SECRETARY'S APPOINTMENT 25
18.4 REMOVAL FROM OFFICE 25
18.5 SECRETARY TO GIVE INFORMATION TO COMPANY 25
19. MINUTES 25
19.1 MINUTES MUST BE KEPT 25
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19.2 MINUTES AS EVIDENCE 26
19.3 INSPECTION OF MINUTE BOOKS 26
20. COMPANY SEALS 26
20.1 COMMON SEAL 26
20.2 USE OF SEALS 26
20.3 FIXING SEALS TO DOCUMENTS 26
21. FINANCIAL REPORTS AND AUDIT 27
21.1 COMPANY MUST KEEP FINANCIAL RECORDS 27
21.2 FINANCIAL REPORTING 27
21.3 AUDIT 27
21.4 CONCLUSIVE REPORTS 27
21.5 INSPECTION OF FINANCIAL RECORDS AND BOOKS 27
22. SHARES 27
22.1 ISSUE AT DISCRETION OF BOARD 27
22.2 PREFERENCE AND REDEEMABLE PREFERENCE SHARES 28
22.3 RESTRICTIONS ON ISSUE 28
22.4 BROKERAGE AND COMMISSIONS 28
22.5 SURRENDER OF SHARES 28
22.6 VARIATION OF RIGHTS 28
23. CERTIFICATES 28
23.1 UNCERTIFICATED SECURITIES 28
23.2 CERTIFICATED SHARES 29
23.3 MULTIPLE CERTIFICATES AND JOINT HOLDERS 29
23.4 LOST AND WORN OUT CERTIFICATES 29
24. REGISTER 29
24.1 JOINT HOLDERS 29
24.2 NON-BENEFICIAL HOLDERS 29
25. PARTLY PAID SHARES 30
25.1 FIXED INSTALMENTS 30
25.2 PREPAYMENT OF CALLS 30
25.3 CALLS MADE BY BOARD 30
25.4 NOTICE OF CALL 30
25.5 CLASSES OF SHARES 31
25.6 OBLIGATION TO PAY CALLS 31
25.7 CALLED AMOUNTS 31
25.8 PROOF OF CALL 31
25.9 FORFEITURE NOTICE 31
25.10 FORFEITURE 32
25.11 DISPOSAL AND RE-ISSUE OF FORFEITED SHARES 32
25.12 NOTICE OF FORFEITURE 32
25.13 CANCELLATION OF FORFEITURE 32
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25.14 EFFECT OF FORFEITURE 32
25.15 APPLICATION OF PROCEEDS 32
25.16 TITLE OF NEW HOLDER 33
25.17 MORTGAGE OF UNCALLED CAPITAL 33
26. COMPANY LIENS 33
26.1 EXISTENCE OF LIENS 33
26.2 SALE UNDER LIEN 33
26.3 PROTECTION OF LIEN 34
26.4 INDEMNITY FOR PAYMENTS REQUIRED TO BE MADE BY THE COMPANY 34
27. DIVIDENDS 34
27.1 ACCUMULATION OF RESERVES 34
27.2 DIVIDENDS MUST BE PAID OUT OF PROFITS 35
27.3 PAYMENT OF DIVIDENDS 35
27.4 AMOUNT OF DIVIDEND 35
27.5 PREPAYMENTS, PAYMENTS DURING DIVIDEND PERIOD AND CREDITS WITHOUT PAYMENT 35
27.6 DIVIDENDS IN KIND 35
27.7 SOURCE OF DIVIDENDS 36
27.8 METHOD OF PAYMENT 36
27.9 JOINT HOLDERS' RECEIPT 36
27.10 RETENTION OF DIVIDENDS BY COMPANY 36
27.11 NO INTEREST ON DIVIDENDS 36
28. SHARE PLANS 36
28.1 IMPLEMENTING SHARE PLANS 36
28.2 BOARD OBLIGATIONS AND DISCRETIONS 37
29. TRANSFER OF SHARES 37
29.1 MODES OF TRANSFER 37
29.2 MARKET OBLIGATIONS 38
29.3 DELIVERY OF TRANSFER AND CERTIFICATE 38
29.4 RESTRICTED SECURITIES 38
29.5 REFUSAL TO REGISTER TRANSFER 39
29.6 TRANSFEROR REMAINS HOLDER UNTIL TRANSFER REGISTERED 39
29.7 POWERS OF ATTORNEY 39
29A. PROPORTIONAL TAKEOVER APPROVAL 40
29A.1 SPECIAL DEFINITIONS 40
29A.2 LIMITED LIFE OF RULE 40
29A.3 RESTRICTION ON REGISTRATION OF TRANSFERS 40
29A.4 APPROVING RESOLUTION 40
29A.5 GENERAL MEETING PROVISIONS APPLY 41
29A.6 NOTICE OF MEETING OUTCOME 41
29A.7 FAILURE TO PROPOSE RESOLUTION 41
29A.8 REJECTED RESOLUTION 41
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30. TRANSMISSION OF SHARES 42
30.1 DEATH OF JOINT HOLDER 42
30.2 DEATH OF SINGLE HOLDER 42
30.3 TRANSMISSION OF SHARES ON INSOLVENCY OR MENTAL INCAPACITY 42
30.4 REFUSAL TO REGISTER HOLDER 43
31. UNMARKETABLE PARCELS 43
31.1 BOARD POWER OF SALE 43
31.2 NOTICE OF PROPOSED SALE 43
31.3 NO SALE WHERE MEMBER GIVES NOTICE 43
31.4 TERMS OF SALE 43
31.5 SHARE TRANSFERS 43
31.6 APPLICATION OF PROCEEDS 44
31.7 PROTECTIONS FOR TRANSFEREE 44
32. ALTERATION OF SHARE CAPITAL 44
32.1 CAPITALISATION OF PROFITS 44
32.2 ADJUSTMENT OF CAPITALISED AMOUNTS 44
32.3 CONVERSION OF SHARES 45
32.4 ADJUSTMENTS ON CONVERSION 45
32.5 REDUCTION OF CAPITAL 45
33. CURRENCY FOR PAYMENTS 45
33.1 BOARD MAY DECIDE CURRENCY 45
33.2 CONVERSION TO AUSTRALIAN DOLLARS 46
34. WINDING UP 46
34.1 ENTITLEMENT OF MEMBERS 46
34.2 DISTRIBUTION OF ASSETS GENERALLY 46
34.3 NO DISTRIBUTION OF LIABILITIES 46
34.4 DISTRIBUTION NOT IN ACCORDANCE WITH LEGAL RIGHTS 46
35. NOTICES 47
35.1 NOTICES BY COMPANY 47
35.2 OVERSEAS MEMBERS 47
35.3 WHEN NOTICE IS GIVEN 47
35.4 NOTICE TO JOINT HOLDERS 47
35.5 COUNTING DAYS 48
35.6 NOTICES TO "LOST" MEMBERS 48
36. UNCLAIMED MONEY 48
SCHEDULE
TERMS OF ISSUE OF PREFERENCE SHARES 49
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CONSTITUTION OF PSIVIDA LIMITED
ABN 78 009 232 026
1. PRELIMINARY
1.1 REPLACEABLE RULES
The replaceable rules referred to in section 141 do not apply to the
Company and are replaced by the rules set out in this document.
1.2 DEFINITIONS
The following definitions apply in this document.
"ALTERNATE" means an alternate Director appointed under rule 4.1.
"APPOINTOR" in relation to an Alternate, means the Director who appointed
the Alternate.
"ASX" means Australian Stock Exchange Limited.
"BOARD" means the Directors acting collectively under this document.
"BUSINESS DAY" has the meaning given by the Listing Rules.
"CALLED AMOUNT" in respect of a share means:
(a) the amount of a call on that share which is due and unpaid; and
(b) any amount the Board requires a member to pay under rule 25.7.
"COMPANY" means the company named at the beginning of this document
whatever its name is for the time being.
"DIRECTOR" means a person who is, for the time being, a director of the
Company including, where appropriate, an Alternate.
"DIVIDEND" includes bonus.
"EXECUTIVE DIRECTOR" means a Director who is an employee of the Company or
a subsidiary or acts in an executive capacity for the Company or a
subsidiary under a contract for services and includes a Managing Director.
"INTEREST RATE" means, in respect of each rule in which that term is used:
(a) the rate for the time being prescribed by the Board in respect of
that rule; or
(b) if no rate is prescribed, 15% each year.
"LAW" means the Corporations Law.
"LISTING RULES" means the Listing Rules of ASX and any other rules of ASX
which are applicable while the Company is admitted to the Official List of
ASX, each as amended or replaced from time to time, except to the extent
of any express written waiver by ASX.
"MANAGING DIRECTOR" means a managing director appointed under rule 7.1.
"MEMBER" means a person whose name is entered in the Register as the
holder of a share.
"MARKET TRANSFER" means a transfer (within the meaning of Division 3 of
Part 7.13) that:
(a) according to the SCH business rules, is a proper SCH regulated
transfer; or
(b) is a valid transfer under a computerised or electronic system
established or recognised by the Law, the Listing Rules or the SCH
business rules for the purpose of facilitating dealings in shares.
"ORDINARY RESOLUTION" means a resolution of members other than a special
resolution.
SEE SECTIONS
168, 169 AND
THE LISTING
RULES
"REGISTER" means the register of members kept as required by sections 168
and 169 and includes a computerised or electronic subregister established
and administered under the SCH business rules.
"REMUNERATION" in relation to a Director (other than an Executive
Director):
(a) includes fees, salary, bonuses, fringe benefits and superannuation
contributions provided by the Company; and
(b) excludes a payment made as compensation for loss of office or in
connection with retirement from office (which includes resignation
from office and death while in office) and an insurance premium paid
by the Company or indemnity under rule 11.
"SCH BUSINESS RULES" means the business rules (within the meaning of
Chapter 7) of the securities clearing house as they apply to the Company
for the time being.
"SECRETARY" means, during the term of that appointment, a person appointed
as a secretary of the Company in accordance with this document.
"SPECIAL RESOLUTION" has the meaning given by section 9.
"UNMARKETABLE PARCEL" means a parcel of shares of a single class
registered in the same name or the same joint names which is:
(a) less than the number that constitutes a marketable parcel of shares
of that class under the business rules of ASX; or
(b) subject to the Law, the Listing Rules and the business rules of ASX,
any other number determined by the Board from time to time.
"VOTING MEMBER" in relation to a general meeting, or meeting of a class of
members, means a member who has the right to be present and to vote on at
least 1 item of business to be considered at the meeting.
2
1.3 INTERPRETATION OF THIS DOCUMENT
Headings and marginal notes are for convenience only, and do not affect
interpretation. The following rules also apply in interpreting this
document, except where the context makes it clear that a rule is not
intended to apply.
(a) A reference to:
(i) legislation (including subordinate legislation), the Listing
Rules, the business rules of ASX, or the SCH business rules is
to that legislation or those rules as:
(A) amended, modified or waived in relation to the Company;
or
(B) re-enacted, amended or replaced
and includes any subordinate legislation or rules issued under
that legislation or those rules;
(ii) a document or agreement, or a provision of a document or
agreement, is to that document, agreement or provision as
amended, supplemented, replaced or novated;
(iii) a person includes any type of entity or body of persons,
whether or not it is incorporated or has a separate legal
identity, and any executor, administrator or successor in law
of the person; and
(iv) anything (including a right, obligation or concept) includes
each part of it.
(b) A singular word includes the plural, and vice versa.
(c) A word which suggests 1 gender includes the other genders.
(d) If a word is defined, another part of speech has a corresponding
meaning.
(e) If an example is given of anything (including a right, obligation or
concept), such as by saying it includes something else, the example
does not limit the scope of that thing.
(f) The word "AGREEMENT" includes an undertaking or other binding
arrangement or understanding, whether or not in writing.
(g) A power to do something includes a power, exercisable in the like
circumstances, to revoke or undo it.
(h) A reference to a power is also a reference to authority or
discretion.
(i) A reference to something being "WRITTEN" or "IN WRITING" includes
that thing being represented or reproduced in any mode in a visible
form.
(j) Words (other than "REMUNERATION" and those defined in rule 1.2)
which are defined by the Law have the same meaning in this document.
3
(k) A reference to a Chapter, Part, Division, or section is a reference
to a Chapter, Part, Division or section of the Law.
2. LISTING RULES
SEE LISTING
RULES 1.1
CONDITION 2
AND 15.11
If the Company is admitted to an official list of the ASX, it must comply
with the following:
(a) notwithstanding anything contained in this document, if the Listing
Rules prohibit an act being done, the act shall not be done;
(b) nothing contained in this document prevents an act being done that
the Listing Rules require to be done;
(c) if the Listing Rules require an act to be done or not to be done,
authority is given for that act to be done or not to be done (as the
case may be);
(d) if the Listing Rules require this document to contain a provision
and it does not contain such a provision, this document is deemed to
contain that provision;
(e) if the Listing Rules require this document not to contain a
provision and it contains such a provision, this document is deemed
not to contain that provision; and
(f) if any provision of this document is or becomes inconsistent with
the Listing Rules, this document is deemed not to contain that
provision to the extent of the inconsistency.
3. DIRECTORS
3.1 NUMBER OF DIRECTORS
The Board may decide the number of Directors (not counting Alternates) but
that number must be at least:
(a) 3; or
(b) the number of Directors (not counting Alternates) in office when the
decision is made,
(whichever is greater).
3.2 QUALIFICATION
A Director need not be a member. Neither the auditor of the Company for
the time being nor any partner or employee of the auditor is eligible to
act as a Director.
3.3 APPOINTMENT BY THE BOARD
REPLACES
SECTION 201H
Subject to this document, section 201E, and to the number of Directors for
the time being fixed under rule 3.1 not being exceeded, the Board may
appoint a person to be a Director at any time except during a general
meeting. Any Director so appointed:
4
(a) automatically retires at the next annual general meeting and is
eligible for re-election by that general meeting; and
(b) is not taken into account in deciding the rotation or retirement of
Directors or the number of them to retire under rule 3.6 at that
general meeting.
3.4 ELECTION BY GENERAL MEETING
REPLACES
SECTION 201G
Subject to this document, section 201E, and to the number of Directors for
the time being fixed under rule 3.1 not being exceeded, the Company may
elect Directors by ordinary resolution. A Director appointed to replace
one removed from office under rule 3.10 must retire when the Director
replaced would have been required to retire if not removed and is eligible
for re-election.
3.5 ELIGIBLE CANDIDATES
The Company in general meeting cannot validly elect a person as a Director
unless:
(a) the person retires under rule 3.3, 3.4 or 3.6 and seeks re-election;
(b) the Board recommends the appointment; or
(c) at least 35 business days (in the case of a meeting that members
have requested directors to call, 30 business days) before the
meeting at which the relevant resolution will be considered, the
Company receives both:
(i) a nomination of the person by a member (who may be the
person); and
(ii) a consent to act as a Director signed by the person;
at its registered office.
The Company must notify members of every candidate for election as a
Director at least 7 days before the relevant general meeting.
3.6 ONE THIRD OF DIRECTORS RETIRE ANNUALLY
At each annual general meeting:
(a) one third (or if that is not a whole number, the whole number
nearest to one third) of the Directors who are not:
(i) appointed, and required to retire, under rule 3.3;
(ii) Directors who vacate office under section 201C;
(iii) the Managing Director (or if there is more than 1, the 1 (if
any) nominated under rule 7.3(a)); or
(iv) Directors only because they are Alternates; and
5
(b) subject to rule 7.2 any Director who would, if that Director
remained in office until the next annual general meeting, have held
that office for more than 3 years,
must retire from office and are eligible for re-election.
3.7 SELECTION OF DIRECTORS TO RETIRE
Subject to rule 3.4, the Directors who retire under rule 3.6 are those who
have held office the longest since last being elected or appointed. If 2
or more Directors have been in office for the same period, those Directors
may agree which of them will retire. If they do not agree, they must draw
lots to decide which of them must retire.
3.8 TIME OF RETIREMENT
A Director's retirement under rule 3.3 or 3.6 takes effect at the end of
the relevant annual general meeting unless the Director is re-elected at
that meeting.
3.9 CESSATION OF DIRECTOR'S APPOINTMENT
A person automatically ceases to be a Director if the person:
(a) is not permitted by the Law (or an order made under the Law) to be a
director;
(b) becomes disqualified from managing corporations under Part 2D.6 and
is not given permission or leave to manage the Company under section
206F or 206G;
(c) becomes of unsound mind or physically or mentally incapable of
performing the functions of that office;
(d) fails to attend Board meetings (either personally or by an
Alternate) for a continuous period of 3 months without leave of
absence from the Board;
RULE 3.9(E)
REPLACES
SECTION 203A
(e) resigns by notice in writing to the Company;
(f) is removed from office under rule 3.10; or
(g) ceases to qualify as a Director under rule 3.2.
3.10 REMOVAL FROM OFFICE
Whether or not a Director's appointment was expressed to be for a
specified period:
(a) the Company by ordinary resolution; or
(b) members holding a majority of the issued shares of the Company
conferring the right to vote, by writing delivered to the Company,
may remove a Director from office.
The powers to remove a Director under this rule are in addition to section
203D.
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3.11 TOO FEW DIRECTORS
If the number of Directors is reduced below the minimum required by rule
3.1, the continuing Directors may act as the Board only:
(a) to appoint Directors up to that minimum number;
(b) to convene a meeting of members; and
(c) in emergencies.
4. ALTERNATE DIRECTORS
4.1 APPOINTMENT OF ALTERNATES
REPLACES
SECTION 201K
Subject to rule 3.2, a Director (other than an Alternate) may appoint a
person who is approved by the Board (without the vote of the Appointor) to
act as Alternate for a specified period or each time the Appointor is
unable to attend a Board meeting or act as a Director.
4.2 NOTICE OF BOARD MEETINGS
If the Appointor requests the Company to give the Alternate notice of
Board meetings, the Company must do so. Unless the Appointor has requested
it, the Company need not give notice of Board meetings to an Alternate.
4.3 OBLIGATIONS AND ENTITLEMENTS OF ALTERNATES
An Alternate:
(a) may attend and vote in place of the Appointor at a Board meeting at
which the Appointor is not present;
(b) if also a Director, has a separate right to vote as Alternate;
(c) if Alternate for more than 1 Appointor, has a separate right to vote
in place of each Appointor;
(d) when acting as Alternate, is an officer of the Company and subject
to all the duties, and entitled to exercise all the powers and
rights, of the Appointor as a Director; and
(e) is entitled to reasonable travelling, accommodation and other
expenses incurred in attending meetings of the Board or of the
Company or while otherwise engaged on the business of the Company on
the same basis as other Directors but is not entitled to any other
remuneration from the Company (but the Appointor may further
remunerate the Alternate).
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4.4 TERMINATION OF APPOINTMENT
The Appointor may at any time revoke the appointment of a person as an
Alternate whether or not that appointment is for a specified period. Any
appointment of an Alternate immediately ceases if:
(a) the Appointor ceases to be a Director; or
(b) an event occurs which would cause the Alternate to cease to be a
Director under rule 3.9 if the Alternate were a Director.
4.5 APPOINTMENTS AND REVOCATIONS IN WRITING
The Appointor must appoint, and revoke the appointment of, any Alternate
in writing. The appointment or revocation is not effective until a copy is
provided to the Company.
5. POWERS OF THE BOARD
5.1 POWERS GENERALLY
REPLACES
SECTION 198A
Except as otherwise required by the Law, any other applicable law, the
Listing Rules or this document, the Board:
(a) has power to manage the business of the Company; and
(b) subject to rule 5.3, may exercise every right, power or capacity of
the Company to the exclusion of the Company in general meeting and
the members.
5.2 EXERCISE OF POWERS
A power of the Board can be exercised only:
(a) by resolution passed at a meeting of the Board or otherwise in
accordance with rule 12; or
NOTE SECTION
109ZE(B)
(b) in accordance with a delegation of the power under rule 7, 8 or
25.17.
5.3 SALE OF MAIN UNDERTAKING
Unless otherwise permitted by the Listing Rules or the Law, the Board must
not sell or dispose of the main undertaking of the Company unless the
decision is ratified by the Company in general meeting.
6. EXECUTING NEGOTIABLE INSTRUMENTS
REPLACES
SECTION 198B
The Board must decide the manner (including the use of facsimile
signatures if thought appropriate) in which negotiable instruments can be
executed, accepted or endorsed for and on behalf of the Company. The
Company may execute, accept, or endorse negotiable instruments only in the
manner for the time being decided by the Board.
8
7. MANAGING DIRECTOR
7.1 APPOINTMENT AND POWER OF MANAGING DIRECTOR
REPLACES
SECTIONS 198C
AND 201J
The Board may appoint 1 or more Directors to be a Managing Director either
for a specified term (but not for life) or without specifying a term.
The Board may delegate any of the powers of the Board to a Managing
Director:
NOTE SECTION
109ZE(B)
(a) on the terms and subject to any restrictions the Board decides; and
(b) so as to be concurrent with, or to the exclusion of, the powers of
the Board,
and may revoke the delegation at any time.
This rule does not limit rule 8.
7.2 RETIREMENT AND REMOVAL OF MANAGING DIRECTOR
Subject to rule 7.3 a Managing Director is not:
(a) required to retire; or
(b) to be taken into account in determining the number of Directors to
retire,
by rotation under rule 3.6 but (subject to any contract between the
Company and that Managing Director) is otherwise subject to the same rules
regarding resignation, removal and retirement from office as the other
Directors.
7.3 MULTIPLE MANAGING DIRECTORS
If there are 2 or more Managing Directors at the same time:
(a) the Board may nominate one of them as the Managing Director to be
exempted from retirement by rotation under rule 3.6 and may revoke
the nomination at any time;
(b) if a Managing Director has been nominated under rule 7.3(a) and the
Board later nominates a different Managing Director under that rule,
the one first nominated must retire by rotation at the next annual
general meeting unless elected at either of the last 2 annual
general meetings; and
(c) if none of them is the subject of a current nomination under rule
7.3(a), all of them must retire by rotation under rule 3.6.
7.4 TERMINATION OF APPOINTMENT OF MANAGING DIRECTOR
REPLACES
SECTION 203F
The appointment of a Managing Director terminates if:
(a) the Managing Director ceases for any reason to be a Director; or
9
(b) the Board removes the Managing Director from the office of Managing
Director (which, subject to any contract between the Company and the
Managing Director, the Board has power to do),
whether or not the appointment was expressed to be for a specified term.
8. DELEGATION OF BOARD POWERS
8.1 POWER TO DELEGATE
The Board may delegate any of its powers as permitted by section 198D.
8.2 POWER TO REVOKE DELEGATION
The Board may revoke a delegation previously made whether or not the
delegation is expressed to be for a specified period.
8.3 TERMS OF DELEGATION
NOTE SECTION
109ZE(B)
A delegation of powers under rule 8.1 may be made:
(a) for a specified period or without specifying a period; and
(b) on the terms and subject to any restrictions the Board decides.
A document of delegation may contain the provisions for the protection and
convenience of those who deal with the delegate that the Board thinks
appropriate.
8.4 PROCEEDINGS OF COMMITTEES
Subject to the terms on which a power of the Board is delegated to a
committee, the meetings and proceedings of committees are, to the greatest
extent practical, governed by the rules of this document which regulate
the meetings and proceedings of the Board.
9. DIRECTOR'S DUTIES AND INTERESTS
9.1 COMPLIANCE WITH DUTIES UNDER THE LAW
Each Director must comply with sections 180 to 183.
9.2 DIRECTOR NOT DISQUALIFIED FROM HOLDING OTHER OFFICES ETC
A Director is not disqualified by reason only of being a Director from:
(a) holding any office or place of profit or employment other than that
of the Company's auditor;
(b) being a member or creditor of any corporation (including the
Company) or partnership other than the auditor; or
(c) entering into any agreement with the Company.
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9.3 DISCLOSURE OF INTERESTS
Each Director must comply with section 191 and any relevant general law
principles in relation to disclosure of the Director's interests.
9.4 DIRECTOR INTERESTED IN A MATTER
Each Director must comply with section 195 in relation to being present,
and voting, at a Board meeting that considers a matter in which the
Director has a material personal interest. Subject to section 195:
(a) a Director may be counted in a quorum at a Board meeting that
considers, and may vote on, any matter in which that Director has an
interest;
(b) the Company may proceed with any transaction that relates to the
interest and the Director may participate in the execution of any
relevant document by or on behalf of the Company;
(c) the Director may retain benefits under the transaction even though
the Director has the interest; and (d) the Company cannot avoid the
transaction merely because of the existence of the interest.
If the interest is required to be disclosed under rule 9.3, paragraph (c)
applies only if it is disclosed before the transaction is entered into.
9.5 AGREEMENTS WITH THIRD PARTIES
The Company cannot avoid an agreement with a third party merely because a
Director:
(a) fails to make a disclosure required by rule 9.3; or
(b) is present at, or counted in the quorum for, a Board meeting that
considers or votes on that agreement in breach of section 195.
9.6 OBLIGATION OF SECRECY
Every Director and Secretary must keep the transactions and affairs of the
Company and the state of its financial reports confidential unless
required to disclose them:
(a) in the course of duties as an officer of the Company;
(b) by the Board or the Company in general meeting; or
(c) by law or under the Listing Rules.
The Company may require a Director, Secretary, auditor, trustee, committee
member or other person engaged by it to sign a confidentiality undertaking
consistent with this rule. A Director or Secretary must do so if required
by the Company.
11
9.7 DIRECTOR TO GIVE INFORMATION TO COMPANY AND ASX
Each Director must comply with sections 205C, 205F and 205G.
10. DIRECTORS' REMUNERATION
10.1 REMUNERATION OF EXECUTIVE DIRECTORS
REPLACES
SECTION 202A
Subject to any contract with the Company and to the Listing Rules, the
Board may fix the remuneration of each Executive Director. That
remuneration may consist of salary, bonuses or any other elements but must
not be a commission on or percentage of profits or operating revenue.
10.2 REMUNERATION OF NON-EXECUTIVE DIRECTORS
The Directors (other than the Executive Directors and those who are
Directors only because they are Alternates) are entitled to be paid, out
of the funds of the Company, an amount of Remuneration which:
(a) does not:
(i) in any year exceed in aggregate the amount last fixed by
ordinary resolution; or
(ii) consist of a commission on or percentage of profits or
operating revenue; and
(b) is allocated among them:
(i) on an equal basis having regard to the proportion of the
relevant year for which each Director held office; or
(ii) as otherwise decided by the Board; and
(c) is provided in the manner the Board decides, which may include
provision of non-cash benefits.
If the Board decides to include non-cash benefits in a Director's
Remuneration, the Board must also decide the manner in which the value of
those benefits is to be calculated for the purposes of this rule.
10.3 ADDITIONAL REMUNERATION FOR EXTRA SERVICES
If a Director, at the request of the Board and for the purposes of the
Company, performs extra services or makes special exertions (including
going or living away from the Director's usual residential address), the
Company may pay that Director a fixed sum set by the Board for doing so.
Remuneration under this rule may be either in addition to or in
substitution for any remuneration to which that Director is entitled under
rule 10.1 or 10.2.
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10.4 EXPENSES OF DIRECTORS
The Company must pay a Director (in addition to any remuneration) all
reasonable expenses (including travelling and accommodation expenses)
incurred by the Director:
(a) in attending meetings of the Company, the Board, or a committee of
the Board;
(b) on the business of the Company; or
(c) in carrying out duties as a Director.
10.5 DIRECTORS' RETIREMENT BENEFITS
Subject to Division 2 of Part 2D.2 and the Listing Rules, the Company may:
(a) agree with a Director or person about to become a Director that,
when or after the person dies or otherwise ceases to be a Director,
the Company will pay a pension or lump sum benefit to:
(i) that person; or
(ii) after that person's death, any of the surviving spouse,
dependants or legal personal representatives of that person;
or
(b) pay such a pension or lump sum benefit whether or not the Company
has agreed to do so.
11. OFFICERS' INDEMNITY AND INSURANCE
11.1 INDEMNITY
Subject to and so far as permitted by the Law:
(a) the Company must, to the extent the person is not otherwise
indemnified, indemnify every officer of the Company and its wholly
owned subsidiaries and may indemnify its auditor against a Liability
incurred as such an officer or auditor to a person (other than the
Company or a related body corporate) including a Liability incurred
as a result of appointment or nomination by the Company or
subsidiary as a trustee or as an officer of another corporation,
unless the Liability arises out of conduct involving a lack of good
faith; and
(b) the Company may make a payment (whether by way of advance, loan or
otherwise) in respect of legal costs incurred by an officer or
employee or auditor in defending an action for a Liability incurred
as such an officer, employee or auditor or in resisting or
responding to actions taken by a government agency or a liquidator.
In this rule, "LIABILITY" means a liability of any kind (whether actual or
contingent and whether fixed or unascertained) and includes costs, damages
and expenses, including costs and expenses incurred in connection with any
investigation or inquiry by a government agency or a liquidator.
13
11.2 INSURANCE
Subject to the Law, the Company may enter into, and pay premiums on, a
contract of insurance in respect of any person.
11.3 FORMER OFFICERS
The indemnity in favour of officers under rule 11.1 is a continuing
indemnity. It applies in respect of all acts done by a person while an
officer of the Company or one of its wholly owned subsidiaries even though
the person is not an officer at the time the claim is made.
11.4 DEEDS
Subject to the Law, without limiting a person's rights under this rule 11,
the Company may enter into an agreement with a person who is or has been
an officer of the Company or any of the Company's subsidiaries, to give
effect to the rights of the person under this rule 11 on any terms and
conditions that the Board thinks fit.
12. BOARD MEETINGS
12.1 CONVENING BOARD MEETINGS
REPLACES
SECTION 248C
A Director may at any time, and a Secretary must on request from a
Director, convene a Board meeting.
12.2 NOTICE OF BOARD MEETING
The convenor of each Board meeting:
(a) must give reasonable notice of the meeting (and, if it is adjourned,
of its resumption) individually to:
(i) each Director who is in Australia; and
(ii) each Alternate in respect of whom the Appointor has given
notice under rule 4.2 requiring notice of Board meetings to be
given to that Alternate or whose Appointor is not given notice
due to being outside Australia; and
(b) may give that notice orally (including by telephone) or in writing,
but failure to give notice to, or non-receipt of notice by, a Director
does not result in a Board meeting being invalid.
12.3 USE OF TECHNOLOGY
A Board meeting may be held using any means of audio or audio-visual
communication by which each Director participating can hear and be heard
by each other Director participating or in any other way permitted by
section 248D. A Board meeting held solely or partly by technology is
treated as held at the place at which the greatest number of the Directors
present at the meeting is located or, if an equal number of Directors is
located in each of 2 or more places, at the place where the chairman of
the meeting is located.
14
12.4 CHAIRING BOARD MEETINGS
REPLACES
SECTION 248E
The Board may elect a Director to chair its meetings and decide the period
for which that Director holds that office. If there is no chairman of
Directors or the chairman is not present within 15 minutes after the time
for which a Board meeting is called or is unwilling to act, the Directors
present must elect a Director present to chair the meeting.
12.5 QUORUM
REPLACES
SECTION 248F
Unless the Board decides otherwise, the quorum for a Board meeting is 2
Directors and a quorum must be present for the whole meeting. An Alternate
who is also a Director or a person who is an Alternate for more than 1
Appointor may only be counted once toward a quorum. A Director is treated
as present at a meeting held by audio or audio-visual communication if the
Director is able to hear and be heard by all others attending. If a
meeting is held in another way permitted by section 248D, the Board must
resolve the basis on which Directors are treated as present.
12.6 MAJORITY DECISIONS
REPLACES
SECTION 248G
A resolution of the Board must be passed by a majority of the votes cast
by Directors entitled to vote on the resolution. If an equal number of
votes is cast for and against a resolution:
(a) the chairman of the meeting has a second or casting vote unless:
(i) only 2 Directors are entitled to vote; or
(ii) the chairman of the meeting is not entitled to vote; and
(b) if the chairman does not have a second or casting vote under rule
12.6(a), the matter is decided in the negative.
12.7 PROCEDURAL RULES
The Board may adjourn and, subject to this document, otherwise regulate
its meetings as it decides.
12.8 WRITTEN RESOLUTION
REPLACES
SECTION 248A
If all the Directors entitled to receive notice of a Board meeting and to
vote on the resolution sign a document containing a statement that they
are in favour of the resolution set out in the document, a Board
resolution in those terms is passed at the time when the last Director
signs.
12.9 ADDITIONAL PROVISIONS CONCERNING WRITTEN RESOLUTIONS
For the purpose of rule 12.8:
(a) 2 or more separate documents in identical terms, each of which is
signed by 1 or more Directors, are treated as 1 document;
15
(b) signature of a document by an Alternate is not required if the
Appointor of that Alternate has signed the document;
(c) signature of a document by the Appointor of an Alternate is not
required if that Alternate has signed the document in that capacity;
and
(d) a telex, telegram, facsimile or electronic message containing the
text of the document expressed to have been signed by a Director
that is sent to the Company is a document signed by that Director at
the time of its receipt by the Company.
12.10 VALID PROCEEDINGS
Each resolution passed or thing done by, or with the participation of, a
person acting as a Director or member of a committee is valid even if it
is later discovered that:
(a) there was a defect in the appointment of the person; or
(b) the person was disqualified from continuing in office, voting on the
resolution or doing the thing.
13. MEETINGS OF MEMBERS
13.1 ANNUAL GENERAL MEETING
The Company must hold an annual general meeting as required by section
250N.
13.2 CALLING MEETINGS OF MEMBERS
A meeting of members:
(a) may be convened at any time by the Board or a Director; and
(b) must be convened by the Board when required by section 249D or 250N
or by order made under section 249G.
13.3 NOTICE OF MEETING
Subject to rule 13.6, at least 28 days' written notice of a meeting of
members must be given individually to:
(a) each member (whether or not the member is entitled to vote at the
meeting);
(b) each Director; and
(c) to the auditor.
The notice of meeting must comply with sections 249L, 250BA and 1109N and
with the Listing Rules and may be given in any manner permitted by section
249J(3).
13.4 POSTPONEMENT OR CANCELLATION
Subject to sections 249D(5) and 250N, the Board may:
16
(a) postpone a meeting of members;
(b) cancel a meeting of members; or
(c) change the place for a general meeting,
by written notice given to ASX.
13.5 FRESH NOTICE
REPLACES
SECTION 249M
If a meeting of members is postponed or adjourned for 1 month or more, the
Company must give new notice of the resumed meeting.
13.6 NOTICE TO JOINT HOLDERS OF SHARES
REPLACES
SECTION 249J(2)
If a share is held jointly, the Company need only give notice of a meeting
of members (or of its cancellation or postponement) to the joint holder
who is named first in the Register.
13.7 TECHNOLOGY
SEE SECTION
249S
The Company may hold a meeting of members at 2 or more venues using any
technology that gives the members as a whole a reasonable opportunity to
participate.
13.8 ACCIDENTAL OMISSION
The accidental omission to give notice to, or the non-receipt of notice
by, any of those entitled to it does not invalidate any resolution passed
at a meeting of members.
13.9 CLASS MEETINGS
Rules 13 to 17 apply to a separate meeting of a class of members as far as
they are capable of application and modified as necessary.
14. PROCEEDINGS AT MEETINGS OF MEMBERS
14.1 MEMBER PRESENT AT MEETING
If a member has appointed a proxy or attorney or (in the case of a member
which is a body corporate) a representative to act at a meeting of
members, that member is taken to be present at a meeting at which the
proxy, attorney or representative is present.
14.2 QUORUM
REPLACES SECTIONS
249T(1) AND (2)
The quorum for a meeting of members is 2 Voting Members. Each individual
present may only be counted once toward a quorum. If a member has
appointed more than 1 proxy or representative only 1 of them may be
counted toward a quorum.
14.3 QUORUM NOT PRESENT
REPLACES SECTIONS
249T(3) AND (4)
If a quorum is not present within 15 minutes after the time for which a
meeting of members is called:
17
(a) if called as a result of a request of members under section 249D,
the meeting is dissolved; and
(b) in any other case:
(i) the meeting is adjourned to the day, time and place that the
Board decides and notifies to members, or if no decision is
notified before then, to the same time on the same day in the
next week at the same place; and
(ii) if a quorum is not present at the adjourned meeting, the
meeting is dissolved.
14.4 CHAIRING MEETINGS OF MEMBERS
REPLACES SECTIONS
249U(1) TO (3)
If the Board has appointed a Director to chair Board meetings, that
Director may also chair meetings of members. If:
(a) there is no Director who the Board has appointed to chair Board
meetings for the time being; or
(b) the Director appointed to chair Board meetings is not present at the
time for which a meeting of members is called or is not willing to
chair the meeting,
the Voting Members present must elect a member or Director present to
chair the meeting.
14.5 ATTENDANCE AT MEETINGS OF MEMBERS
SEE SECTION
249V
(a) Every member has the right to attend all meetings of members whether
or not entitled to vote.
(b) Every Director has the right to attend and speak at all meetings of
members whether or not a member.
(c) The auditor has the right to attend any meeting of members and to
speak on any part of the business of the meeting which concerns the
auditor in the capacity of auditor.
14.6 MEMBERS RIGHTS SUSPENDED WHILE CALL UNPAID
If a call on a share is due and unpaid, the holding of that share does not
entitle the member to be present, speak or vote at, or be counted in the
quorum for, a meeting of members.
14.7 CHAIRMAN'S POWERS AT A MEETING OF MEMBERS
(a) The chairman of a meeting of members:
(i) is responsible for the general conduct and procedures to be
adopted at the meeting;
18
(ii) may, subject to the Law, at any time terminate discussion or
debate on any matter being considered by the meeting, where
the chairman considers it necessary or desirable for the
proper and orderly conduct of the meeting;
(iii) may, subject to the Law, eject a member from the meeting, at
any time the chairman considers it is necessary or desirable
for the proper and orderly conduct of the meeting;
(iv) may require the adoption of any procedure which is in the
chairman's opinion necessary or desirable for proper and
orderly debate or discussion and the proper and orderly
casting or recording of votes at the meeting,
and a decision by the chairman under this rule is final.
(b) The chairman of a meeting may invite a person who is not a member to
attend and to speak at the meeting.
(c) Subject to rule 13.7, if the chairman considers that there are too
many persons present at a meeting to fit into the venue where the
meeting is to be held, the chairman may nominate a separate meeting
place using any technology that gives the members as a whole a
reasonable opportunity to participate.
(d) The chairman's rights under this rule 14.7 are exclusive to the
chairman.
14.8 ADMISSION TO GENERAL MEETINGS
The chairman of a meeting of members may take any action the chairman
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:
(a) possessing a pictorial-recording or sound-recording device;
(b) possessing a placard or banner;
(c) possessing an article considered by the chairman to be dangerous,
offensive or liable to cause disruption;
(d) who refuses to produce or to permit examination of any article, or
the contents of any article, in the person's possession;
(e) who behaves or threatens to behave in a dangerous, offensive or
disruptive way; or
(f) who is not entitled to receive notice of the meeting.
The chairman may delegate the powers conferred by this rule to any person.
19
14.9 ADJOURNMENT
REPLACES
SECTION
249U(4)
Subject to rule 13.5, the chairman of a meeting of members at which a
quorum is present:
(a) may; and
(b) must, if directed by ordinary resolution of the meeting,
adjourn it to another time and place.
14.10 BUSINESS AT ADJOURNED MEETINGS
REPLACES
SECTION
249W(2)
The only business that may be transacted at a meeting resumed after an
adjournment is the business left unfinished immediately before the
adjournment.
15. PROXIES, ATTORNEYS AND REPRESENTATIVES
15.1 APPOINTMENT OF PROXIES
SEE LISTING
RULE 14.2
A member may appoint not more than 2 proxies to attend and act for the
member at a meeting of members. An appointment of proxy must be made by
written notice to the Company:
(a) that complies with section 250A(1); or
(b) in any other form and mode that complies with the Listing Rules and
is (and is signed or acknowledged by the member in a manner)
satisfactory to the Board.
If a member appoints 2 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 of those votes.
15.2 MEMBER'S ATTORNEY
A member may appoint an attorney to act, or to appoint a proxy to act, at
a meeting of members. If the appointor is an individual, the power of
attorney must be signed in the presence of at least one witness.
15.3 DEPOSIT OF PROXY FORMS AND POWERS OF ATTORNEY
SEE LISTING
RULE 6.10.2
An appointment of a proxy or an attorney is not effective for a particular
meeting of members unless the instrument effecting the appointment is
received by the Company at its registered office or is transmitted to and
received at a fax number at that office (or another address including
electronic address specified for the purpose in the relevant notice of
meeting):
(a) at least 48 hours before the time for which the meeting was called;
or
(b) if the meeting has been adjourned, at least 48 hours before the
resumption of the meeting.
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15.4 EVIDENCE OF PROXY FORMS, POWERS OF ATTORNEY AND OTHER APPOINTMENTS
The Board may require evidence of:
(a) in the case of a proxy form executed by an attorney, the relevant
power of attorney or a certified copy of it;
(b) in the case of an attorney, the power of attorney or a certified
copy of it;
(c) in the case of a corporate representative, the appointment of the
representative in accordance with the Law; or
(d) in the case of any appointment under this rule 15 which is
transmitted to the Company electronically, the identity of the
person who transmitted the message containing the appointment.
15.5 CORPORATE REPRESENTATIVES
A member that is a body corporate may appoint an individual to act as its
representative at meetings of members as permitted by section 250D.
15.6 STANDING APPOINTMENTS
A member may appoint a proxy, attorney or representative to act at a
particular meeting of members or make a standing appointment and may
revoke any appointment. A proxy, attorney or representative may, but need
not, be a member.
15.7 SUSPENSION OF PROXY OR ATTORNEY'S POWERS IF MEMBER PRESENT
A proxy or attorney has no power to act for a member at a meeting at which
the member is present:
(a) in the case of an individual, in person; or
(b) in the case of a body corporate, by representative.
A proxy has no power to act for a member at a meeting at which the member
is present by attorney.
15.8 PRIORITY OF CONFLICTING APPOINTMENTS OF ATTORNEY OR REPRESENTATIVE
If more than 1 attorney or representative appointed by a member is present
at a meeting of members and the Company has not received notice of
revocation of any of the appointments:
(a) an attorney or representative appointed to act at that particular
meeting may act to the exclusion of an attorney or representative
appointed under a standing appointment; and
(b) subject to rule 15.8(a), an attorney or representative appointed
under a more recent appointment may act to the exclusion of an
attorney or representative appointed earlier in time.
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15.9 MORE THAN 2 CURRENT PROXY APPOINTMENTS
An appointment of proxy by a member is revoked (or, in the case of a
standing appointment, suspended for that particular meeting) if the
Company receives a further appointment of proxy from that member which
would result in there being more than 2 proxies of that member entitled to
act at a meeting. The appointment of proxy made first in time is the first
to be treated as revoked or suspended by this rule.
15.10 CONTINUING AUTHORITY
REPLACES
SECTION 250C(2)
An act done at a meeting of members by a proxy, attorney or representative
is valid even if, before the act is done, the appointing member:
(a) dies or becomes mentally incapacitated;
(b) becomes bankrupt or an insolvent under administration or is wound
up;
(c) revokes the appointment or the authority under which the appointment
was made by a third party; or
(d) transfers the share to which the appointment relates,
unless the Company has received written notice of the matter before the
start or resumption of the meeting at which the vote is cast.
16. ENTITLEMENT TO VOTE
16.1 DETERMINING VOTING ENTITLEMENTS
SEE LISTING
RULE 6.10.3
Subject to section 250L(4) and rule 17.2(b) which apply to a demand for a
poll, to decide, for the purposes of a particular meeting, who are members
of the Company and how many shares they hold, the Company must refer only:
(a) if the convenor of the meeting determined a specified time under
section 1109N before notice of the meeting was given, to the
Register as it stood at that time; or
(b) otherwise, to the Register as it stood 48 hours before the meeting
or at any later time required by the SCH business rules.
16.2 NUMBER OF VOTES
1. REPLACES
SECTION 250E(1)
2. SEE LISTING
RULE 6.9
Subject to section 250A(4), rules 14.6, 15, 16.4, 16.5, 16.6 and 29.4 and
terms on which shares are issued:
(a) on a show of hands:
(i) if a member has appointed 2 proxies, neither of those proxies
may vote; and
(ii) subject to paragraph (a)(i), every individual present who is a
member, or a proxy, attorney or representative of a member,
entitled to vote has 1 vote;
22
(b) on a poll every member entitled to vote who is present in person or
by proxy, attorney or representative:
(i) has 1 vote for every fully paid share held; and
(ii) subject to rule 16.2(c), in respect of each partly paid share
held has a fraction of a vote equal to the proportion which
the amount paid bears to the total issue price of the share;
and
(c) unless:
(i) permitted under the Listing Rules; and
(ii) otherwise provided in the terms on which shares are issued,
in calculating the fraction of a vote which the holder of a partly
paid share has, the Company must not count an amount:
(i) paid in advance of a call; or
(ii) credited on a partly paid share without payment in money or money's
worth being made to the Company.
16.3 CASTING VOTE OF CHAIRMAN
REPLACES
SECTION 250E(3)
If an equal number of votes is cast for and against a resolution at a
meeting of members:
(a) if the chairman of the meeting is not (or if the chairman were a
member would not be) entitled to vote, the matter is decided in the
negative; and
(b) otherwise, the chairman has a casting vote whether or not the
chairman is a member.
16.4 VOTES OF JOINT HOLDERS
If more than 1 of the joint holders of a share (including, for the
purposes of this rule, joint legal personal representatives of a dead
member) are present at a meeting of members and tender a vote in respect
of the share, the Company may only count the vote cast by the most senior
joint holder who tenders a vote. For this purpose, seniority depends on
the order in which the names of the joint holders are listed in the
Register.
16.5 VOTES OF TRANSMITTEES AND GUARDIANS
Subject to section 1091A, if the Board is satisfied at least 48 hours
before the time fixed for a meeting of members, that a person:
(a) is entitled to the transmission of a share under rule 30; or
(b) has power to manage a member's property under a law relating to the
management of property of the mentally incapable,
23
that person may vote as if registered as the holder of the share and the
Company must not count the vote (if any) of the actual registered holder.
16.6 VOTING RESTRICTIONS
If:
(a) the Law or the Listing Rules require that some members are not to
vote on a resolution, or that votes cast by some members be
disregarded, in order for the resolution to have an intended effect;
and
(b) the notice of the meeting at which the resolution is proposed states
that fact,
those members have no right to vote on that resolution and the Company
must not count any votes purported to be cast by those members. If a proxy
purports to vote in a way or in circumstances that contravene section
250A(4), on a show of hands the vote is invalid and the Company must not
count it and on a poll rule 17.3(c) applies.
16.7 DECISION ON RIGHT TO VOTE
A Voting Member or Director may challenge a person's right to vote at a
meeting of members. A challenge may only be made at the meeting. A
challenge, or any other doubt as to the validity of a vote, must be
decided by the chairman, whose decision is final.
17. HOW VOTING IS CARRIED OUT
17.1 METHOD OF VOTING
REPLACES SECTIONS
250J(1) AND (2)
A resolution put to the vote at a meeting of members must be decided on a
show of hands unless a poll is demanded under rule 17.2 either before or
on declaration of the result of the vote on a show of hands. Unless a poll
is demanded, the chairman's declaration of a decision on a show of hands
is final.
17.2 DEMAND FOR A POLL
SEE SECTION
250L
A poll may be demanded on any resolution (except a resolution concerning
the election of the chairman of a meeting) by:
(a) at least 5 members entitled to vote on the resolution; or
(b) members entitled to cast at least 5% of the votes that may be cast
on the resolution on a poll (worked out as at the midnight before
the poll is demanded); or
(c) the chairman.
The demand for a poll does not affect the continuation of the meeting for
the transaction of other business and may be withdrawn.
24
17.3 WHEN AND HOW POLLS MUST BE TAKEN
REPLACES
SECTION 250M
If a poll is demanded:
(a) if the resolution is for the adjournment of the meeting, the poll
must be taken immediately and, subject to rule 17.3(c), in the
manner that the chairman of the meeting directs;
(b) in all other cases, the poll must be taken at the time and place
and, subject to rule 17.3(c), in the manner that the chairman of the
meeting directs;
(c) votes which section 250A(4) requires to be cast in a given way must
be treated as cast in that way;
(d) a person voting who has the right to cast 2 or more votes need not
cast all those votes and may cast those votes in different ways; and
(e) the result of the poll is the resolution of the meeting at which the
poll was demanded.
18. SECRETARY
18.1 APPOINTMENT OF SECRETARY
SEE
SECTION 204D
The Board:
(a) must appoint at least 1 individual; and
(b) may appoint more than 1 individual,
to be a Secretary either for a specified term or without specifying a
term.
18.2 TERMS AND CONDITIONS OF OFFICE
REPLACES
SECTION 204F
A Secretary holds office on the terms (including as to remuneration) that
the Board decides. The Board may vary any decision previously made by it
in respect of a Secretary.
18.3 CESSATION OF SECRETARY'S APPOINTMENT
A person automatically ceases to be a Secretary if the person:
(a) is not permitted by the Law (or an order made under the Law) to be a
secretary of a company;
(b) becomes disqualified from managing corporations under Part 2D.6 and
is not given permission or leave to manage the Company under section
206F or 206G;
(c) becomes of unsound mind or physically or mentally incapable of
performing the functions of that office;
(d) resigns by notice in writing to the Company; or
25
(e) is removed from office under rule 18.4.
18.4 REMOVAL FROM OFFICE
Subject to any contract between the Company and the Secretary, the Board
may remove a Secretary from that office whether or not the appointment was
expressed to be for a specified term.
18.5 SECRETARY TO GIVE INFORMATION TO COMPANY
A Secretary must comply with section 205C.
19. MINUTES
19.1 MINUTES MUST BE KEPT
The Board must cause minutes of:
(a) proceedings and resolutions of meetings of the Company's members;
(b) the name of Directors present at each Board meeting or committee
meeting;
(c) proceedings and resolutions of Board meetings (including meetings of
a committee to which Board powers are delegated under rule 8);
(d) resolutions passed by Directors without a meeting; and (e)
disclosures made and notices given under rule 9,
to be kept in accordance with sections 191, 192, 251A and 251AA.
19.2 MINUTES AS EVIDENCE
A minute recorded and signed in accordance with sections 251A and 251AA is
evidence of the proceeding, resolution or declaration to which it relates
unless the contrary is proved.
19.3 INSPECTION OF MINUTE BOOKS
The Company must allow members to inspect, and provide copies of, the
minute books for the meetings of members in accordance with section 251B.
20. COMPANY SEALS
20.1 COMMON SEAL
The Board:
(a) may decide whether or not the Company has a common seal; and
(b) is responsible for the safe custody of that seal (if any) and any
duplicate seal it decides to adopt under section 123(2).
26
20.2 USE OF SEALS
The common seal and duplicate seal (if any) may only be used with the
authority of the Board. The Board must not authorise the use of a seal
that does not comply with section 123.
20.3 FIXING SEALS TO DOCUMENTS
The fixing of the common seal, or any duplicate seal, to a document must
be witnessed:
(a) by 2 Directors;
(b) by 1 Director and 1 Secretary; or
(c) by any other signatories or in any other way (including the use of
facsimile signatures) authorised by the Board.
21. FINANCIAL REPORTS AND AUDIT
21.1 COMPANY MUST KEEP FINANCIAL RECORDS
The Board must cause the Company to keep written financial records that:
(a) correctly record and explain its transactions (including
transactions undertaken as trustee) and financial position and
performance; and
(b) would enable true and fair financial statements to be prepared and
audited,
and must allow a Director and the auditor to inspect those records at all
reasonable times.
21.2 FINANCIAL REPORTING
The Board must cause the Company to prepare a financial report and a
directors' report that comply with Part 2M.3 and must report to members in
accordance with section 314 no later than the deadline set by section 315.
21.3 AUDIT
The Board must cause the Company's financial report for each financial
year to be audited and obtain an auditor's report. The eligibility,
appointment, removal, remuneration, rights and duties of the auditor are
regulated by sections 324 to 331 and 1278, 1280 and 1289.
21.4 CONCLUSIVE REPORTS
Audited financial reports laid before the Company in general meeting are
conclusive except as regards errors notified to the Company within 3
months after the relevant general meeting. If the Company receives notice
of an error within that period, it must immediately correct the report and
the report as corrected is then conclusive.
27
21.5 INSPECTION OF FINANCIAL RECORDS AND BOOKS
Subject to rule 19.3 and unless otherwise required by the Law, a member
who is not a Director does not have any right to inspect any document of
the Company except as authorised by the Board.
22. SHARES
22.1 ISSUE AT DISCRETION OF BOARD
Subject to section 259C and rule 22.3, the Board may, on behalf of the
Company, issue, grant options over or otherwise dispose of unissued shares
to any person on the terms, with the rights, and at the times that the
Board decides.
22.2 PREFERENCE AND REDEEMABLE PREFERENCE SHARES
The Company may issue preference shares (including preference shares that
are liable to be redeemed). The rights attached to preference shares are,
unless other rights have been approved by special resolution of the
Company, the rights set out in or determined in accordance with the
schedule.
22.3 RESTRICTIONS ON ISSUE
The Company must not issue shares or grant options if the issue or grant
would result in a breach of the Listing Rules.
22.4 BROKERAGE AND COMMISSIONS
The Company may pay brokerage or commissions to a person in respect of
that person or another person agreeing to take up shares in the Company.
22.5 SURRENDER OF SHARES
The Board may accept a surrender of shares:
(a) to compromise a question as to whether those shares have been
validly issued; or
(b) if surrender is otherwise within the Company's powers.
The Company may sell or re-issue surrendered shares in the same way as
forfeited shares.
22.6 VARIATION OF RIGHTS
If the Company issues different classes of shares, or divides issued
shares into different classes, the rights attached to shares in any class
may (subject to sections 246C and 246D) be varied or cancelled only:
(a) with the written consent of the holders of 75% of the issued shares
of the affected class; or
(b) by special resolution passed at a separate meeting of the holders of
the issued shares of the affected class.
28
Subject to the terms of issue of shares, the rights attached to a class of
shares are not treated as varied by the issue of further shares of that
class.
23. CERTIFICATES
23.1 UNCERTIFICATED SECURITIES
Unless the Listing Rules and SCH business rules allow the Company to issue
a certificate for particular securities, the Company:
(a) must not issue a certificate for those securities; and
(b) may cancel a certificate for them without issuing another
certificate.
Rules 23.3 and 23.4 apply only if there is a current certificate for
particular securities.
23.2 CERTIFICATED SHARES
SEE LISTING
RULE 8.14
Unless rule 23.1 applies, the Company must issue a certificate of title to
shares that complies with section 1087 and deliver it to the holder of
those shares in accordance with section 1096. The Company must not charge
any fee to issue a certificate.
23.3 MULTIPLE CERTIFICATES AND JOINT HOLDERS
Subject to rule 23.1, if a member requests the Company to issue several
certificates each for a part of the shares registered in the member's
name, the Company must do so. For this purpose, joint holders of shares
are a single member. The Company may issue only 1 certificate that relates
to each share registered in the names of 2 or more joint holders and may
deliver the certificate to any of those joint holders.
23.4 LOST AND WORN OUT CERTIFICATES
Subject to rule 23.1, if a certificate:
(a) is lost or destroyed and the owner of the relevant securities
applies in accordance with section 1089(2), the Company must; or
(b) is defaced or worn out and is produced to the Company, the Company
may,
issue a new certificate in its place.
24. REGISTER
24.1 JOINT HOLDERS
If the Register names 2 or more joint holders of a share, the Company must
treat the person named first in the Register in respect of that share as
the sole owner of it for all purposes (including the giving of notice)
except in relation to:
(a) delivery of certificates (to which rule 23.3 applies);
(b) the right to vote (to which rule 16.4 applies);
29
(c) the power to give directions as to payment of, or a receipt for,
dividends (to which rules 27.8 and 27.9 apply);
(d) liability for instalments or calls (which, subject to section
1091C(8), is joint and several);
(e) sale of Unmarketable Parcels under rule 31; and
(f) transfer.
24.2 NON-BENEFICIAL HOLDERS
Subject to sections 169(5) and 1091C, unless otherwise ordered by a court
of competent jurisdiction or required by statute, the Company:
(a) may treat the registered holder of any share as the absolute owner
of it; and
(b) need not recognise any equitable or other claim to or interest in a
share by any person except a registered holder.
25. PARTLY PAID SHARES
25.1 FIXED INSTALMENTS
If a share is issued on terms that some or all of the issue price is
payable by instalments, the registered holder of the share must pay every
instalment to the Company when due. If, having been given notice of the
instalment in accordance with rule 25.4, the registered holder does not
pay it when due, rules 25.7 to 25.16 apply as if the registered holder had
failed to pay a call.
25.2 PREPAYMENT OF CALLS
The Board may:
(a) accept prepayment of some or all of the amount unpaid on a share
above the sums actually called as a payment in advance of calls;
(b) agree to payment by the Company of interest at a rate no higher than
the Interest Rate on that part of the advance payment which for the
time being exceeds the aggregate amount of the calls then made on
the shares in respect of which it was paid; and
(c) unless otherwise agreed between the member and the Company, repay
the sum or part of it.
25.3 CALLS MADE BY BOARD
Subject to the terms of issue of a share and to any special resolution
passed under section 254N, the Board may:
(a) make calls on a member for some or all of the money unpaid on a
share held by that member;
30
(b) make a call payable by instalments; and
(c) revoke or postpone a call before the due date for payment.
25.4 NOTICE OF CALL
SEE LISTING
RULE 6.24 AND
APPENDIX 6A,
RULE 5
The Company must give a member on whom a call has been made or from whom
an instalment is due, written notice of the call or instalment:
(a) within the time limits; and
(b) in the form,
required by the Listing Rules.
25.5 CLASSES OF SHARES
The Board may issue shares on terms as to the amount of calls to be paid
and the time for payment of those calls which are different as between the
holders of those shares. The Board may make different calls on different
classes of shares.
25.6 OBLIGATION TO PAY CALLS
Subject to section 1091C(8), a member subject to a call must pay the
amount of the call to the payee named in the notice of call no later than
the time specified in the notice. Joint holders of a share are jointly and
severally liable for calls.
25.7 CALLED AMOUNTS
If a call is not paid on or before the day specified for payment, the
Board may require the member liable for the call to pay:
(a) interest on the amount of the call at the Interest Rate from that
day until payment is made; and
(b) all costs and expenses incurred by the Company because payment was
not made on that day.
25.8 PROOF OF CALL
If on the hearing of an action for recovery of a Called Amount it is
proved that:
(a) the minute books of the Company record the Board's resolution making
the call;
(b) notice of the call was given under rules 25.4 and 35.1; and
(c) the person sued appears in the Register as a holder of the share in
respect of which the call was made,
proof of those matters is conclusive proof of the debt.
31
25.9 FORFEITURE NOTICE
At any time until a Called Amount is paid, the Board may give the relevant
member a notice which:
(a) requires the member to pay the Called Amount;
(b) states the Called Amount at the date of the notice;
(c) specifies how to calculate the Called Amount when payment is made;
(d) specifies a date at least 14 days after the date of the notice by
which and a place at which payment must be made; and
(e) states that if payment is not made at that place on or before that
date, the share to which the call relates is liable to be forfeited.
25.10 FORFEITURE
If the requirements of a notice given under rule 25.9 are not satisfied,
the Board may forfeit the share in respect of which that notice was given
(and all dividends, interest and other money payable in respect of that
share and not actually paid before the forfeiture) by resolution passed
before the Called Amount is paid.
25.11 DISPOSAL AND RE-ISSUE OF FORFEITED SHARES
SEE LISTING
RULE 7.39
A share forfeited under rule 25.10 immediately becomes the property of the
Company. Subject to the Listing Rules, the Board, on behalf of the
Company, may:
(a) re-issue the share with or without any money paid on it by any
former holder credited as paid; or
(b) sell or otherwise dispose of the share, and execute and register a
transfer of it,
to the person and on the terms it decides.
25.12 NOTICE OF FORFEITURE
The Company must promptly:
(a) give notice of the forfeiture of a share to the member who held the
share immediately before the resolution for forfeiture was passed;
and
(b) enter the forfeiture and its date in the Register.
A written declaration that a share was forfeited on a specified date and
notice of forfeiture was given in accordance with this document signed by
a Director or Secretary is, in the absence of proof to the contrary,
evidence of those facts and of the Company's right to dispose of the
share.
32
25.13 CANCELLATION OF FORFEITURE
The Board may cancel the forfeiture of a share on any terms at any time
before it disposes of that share under rule 25.11.
25.14 EFFECT OF FORFEITURE
A person who held a share which has been forfeited under rule 25.10 ceases
to be a member in respect of that share but remains liable to pay the
Called Amount until it is paid in full. The Board may elect not to enforce
payment of an amount due to the Company under this rule.
25.15 APPLICATION OF PROCEEDS
The Company must:
(a) apply the net proceeds of any re-issue, sale or disposal of a
forfeited share under rule 25.11 (after payment of all costs and
expenses) to satisfy the Called Amount; and
(b) subject to the terms of issue of the share, pay any surplus to
the person who held the share immediately before forfeiture.
25.16 TITLE OF NEW HOLDER
The title of the new holder of a forfeited share is not affected by any
irregularity in the forfeiture or the re-issue, sale or disposal. The sole
remedy of any person previously interested in the share is damages which
may be recovered only from the Company. The new holder is not liable for
the Called Amount.
25.17 MORTGAGE OF UNCALLED CAPITAL
NOTE SECTION
109ZE(B)
If the Company grants a mortgage or charge over uncalled capital, the
Board may delegate its power to make calls to:
(a) the person in whose favour the mortgage or charge is granted; or
(b) a trustee or agent for that person,
on the terms and subject to any restrictions the Board decides. If the
Board does so, a call made in accordance with the delegation is treated as
made by the Board.
This rule does not limit rule 8.
33
26. COMPANY LIENS
26.1 EXISTENCE OF LIENS
Unless the terms of issue provide otherwise, the Company has a first and
paramount lien on each share for:
(a) all money called or payable at a fixed time in respect of that share
(including money payable under rule 25.7) that is due but unpaid;
and
(b) amounts paid by the Company for which the Company is indemnified
under rule 26.4.
The lien extends to all dividends payable in respect of the share and to
proceeds of sale of the share.
26.2 SALE UNDER LIEN
If:
(a) the Company has a lien on a share;
(b) an amount secured by the lien is due and payable;
(c) the Company has given notice to the member registered as the holder
of the share:
(i) requiring payment of the amount which is due and payable and
secured by the lien;
(ii) stating the amount due and payable at the date of the notice;
(iii) specifying how to calculate the amount due when payment is
made; and
(iv) specifying a date (at least 10 business days after the date of
the notice) by which and a place at which payment of that
amount must be made; and
(d) the requirements of the notice given under paragraph (c) are not
fulfilled,
the Company may sell the share as if it had been forfeited under rule
25.10. Rules 25.11, 25.15 and 25.16 apply, to the extent practical and
modified as necessary, as if the Called Amount in respect of that share
were the aggregate of the amount referred to in paragraph (b) and the
costs and expenses incurred by the Company because that amount was not
paid when due.
26.3 PROTECTION OF LIEN
The Company may do anything necessary or desirable under the SCH business
rules to protect a lien or other interest in shares to which it is
entitled by law or under this document.
34
26.4 INDEMNITY FOR PAYMENTS REQUIRED TO BE MADE BY THE COMPANY
If the law of any jurisdiction imposes or purports to impose any
immediate, future or possible liability on the Company, or empowers or
purports to empower any person to require the Company to make any payment,
on account of a member or referable to a share held by that member
(whether alone or jointly) or a dividend or other amount payable in
respect of a share held by that member, the Company:
(a) is fully indemnified by that member from that liability;
(b) may recover as a debt due from the member the amount of that
liability together with interest at the Interest Rate from the date
of payment by the Company to the date of repayment by the member;
and
PARAGRAPH (C)
REPLACES SECTION
1091D(3)(B)
(c) subject to rule 29.5, may refuse to register a transfer of any share
by that member until the debt has been paid to the Company.
Nothing in this document in any way prejudices or affects any right or
remedy which the Company has (including any right of set off) and, as
between the Company and the member, any such right or remedy is
enforceable by the Company.
27. DIVIDENDS
27.1 ACCUMULATION OF RESERVES
REPLACES
SECTION 254U
Before paying any dividend to members, the Board may:
(a) set aside out of profits of the Company reserves to be applied, in
the Board's discretion, for any purpose it decides and use any sum
so set aside in the business of the Company or invest it in
investments selected by the Board and vary and deal with those
investments as it decides; or
(b) carry forward any amount out of profits which the Board decides not
to distribute without transferring that amount to a reserve; or
(c) do both.
27.2 DIVIDENDS MUST BE PAID OUT OF PROFITS
The Company must not pay a dividend except out of profits of the Company
(including profits previously set aside as a reserve). The Company does
not incur a debt merely by fixing the amount or time for payment of a
dividend. A debt arises only when the time fixed for payment arrives. The
decision to pay a dividend may be revoked by the Board at any time before
then. A resolution of the Board as to the amount of the Company's profits
and the amount of them available for dividend is conclusive.
27.3 PAYMENT OF DIVIDENDS
Subject to the Law, rules 27.2, 27.4 and 27.10, and the terms of issue of
shares, the Board may resolve to pay any dividend it thinks appropriate
and fix the time for payment.
35
27.4 AMOUNT OF DIVIDEND
Subject to the terms of issue of shares, the Company may pay a dividend on
1 class of shares to the exclusion of another class. Subject to rule 27.5,
each share of a class on which the Board resolves to pay a dividend
carries the right to participate in the dividend in the same proportion
that the amount for the time being paid on the share bears to the total
issue price of the share.
27.5 PREPAYMENTS, PAYMENTS DURING DIVIDEND PERIOD AND CREDITS WITHOUT PAYMENT
For the purposes of rule 27.4:
(a) an amount paid in advance of calls is not taken into account as part
of the amount for the time being paid on a share;
(b) if an amount was paid on a share during the period to which a
dividend relates, the Board may resolve that only the proportion of
that amount which is the same as the proportion which the period
from the date of payment to the end of the period to which the
dividend relates bears to the total period to which the dividend
relates, counts as part of the amount for the time being paid on the
share; and
(c) an amount credited on a partly paid share without payment in money
or money's worth being made to the Company is not taken into account
as a part of the amount for the time being paid on a share.
27.6 DIVIDENDS IN KIND
The Board may resolve to pay a dividend (either generally or to specific
members) in cash or satisfy it by distribution of specific assets
(including shares or securities of any other corporation), the issue of
shares or the grant of options. If the Board satisfies a dividend by
distribution of assets, the Board may:
(a) fix the value of any asset distributed;
(b) make cash payments to members on the basis of the value fixed so as
to adjust the rights of members between themselves; and
(c) vest an asset in trustees.
27.7 SOURCE OF DIVIDENDS
Subject to the Listing Rules, the Board may resolve to pay a dividend to
some members out of a particular reserve or out of profit derived from a
particular source and pay the same dividend to other members entitled to
it out of other reserves or profits.
27.8 METHOD OF PAYMENT
The Company may pay any cash dividend, interest or other money payable in
respect of shares by cheque sent, and may distribute assets by sending the
certificates or other evidence of title to them, through the post directed
to:
36
(a) the address of the member (or in the case of a jointly held share,
the address of the joint holder named first in the Register); or
(b) to any other address the member (or in the case of a jointly held
share, all the joint holders) directs in writing,
or by any other method of payment or distribution the Board decides.
27.9 JOINT HOLDERS' RECEIPT
Any one of the joint holders of a share may give an effective receipt for
any dividend, interest or other money payable in relation to that share.
27.10 RETENTION OF DIVIDENDS BY COMPANY
The Company may retain the dividend payable on a share:
(a) of which a person seeks to be registered as the holder under rule
30.2 or 30.3, until that person is registered as the holder of that
share or transfers it; or
(b) on which the Company has a lien, to satisfy the liabilities in
respect of which the lien exists.
27.11 NO INTEREST ON DIVIDENDS
No member may claim, and the Company must not pay, interest on a dividend
(either in money or kind).
28. SHARE PLANS
28.1 IMPLEMENTING SHARE PLANS
The Company in general meeting may by ordinary resolution authorise the
Board to implement one or more of:
(a) a re-investment plan under which any dividend or other cash payment
in respect of a share or convertible security may, at the election
of the person entitled to it, be:
(i) retained by the Company and applied in payment for fully paid
shares issued under the plan; and
(ii) treated as having been paid to the person entitled and
simultaneously repaid by that person to the Company to be held
by it and applied in accordance with the plan;
(b) any other plan under which members or security holders may elect
that dividends or other cash payments in respect of shares or other
securities:
(i) be satisfied by the allotment of shares or other securities of
the Company or a related body corporate, or that issues of
shares or other securities of the Company or a related body
corporate be made in place of dividends or other cash
payments;
37
(ii) be paid out of a particular reserve or out of profits derived
from a particular source; or
(iii) be forgone in consideration of another form of distribution
from the Company, another body corporate or a trust; or
(c) a plan under which shares or other securities of the Company or a
related body corporate may be issued or otherwise provided for the
benefit of employees or Directors of the Company or any of its
related bodies corporate.
28.2 BOARD OBLIGATIONS AND DISCRETIONS
The Board:
(a) must do everything necessary or desirable to give effect to a plan
implemented under rule 28.1 and the rules governing it; and
(b) may:
(i) vary the rules governing; or
(ii) suspend or terminate the operation of,
a plan implemented under rule 28.1 as it thinks appropriate.
29. TRANSFER OF SHARES
29.1 MODES OF TRANSFER
Subject to this document, a member may transfer a share by:
(a) a Market Transfer; or
(b) a written document which:
(i) shows the jurisdiction of registration of the Company;
(ii) relates only to shares of 1 class; and
(iii) is a sufficient instrument of transfer of marketable
securities under section 1101 or 1102 or in any other form
approved by the Board or ASX.
The Company must not charge any fee on transfer of a share.
29.2 MARKET OBLIGATIONS
The Company:
(a) may do anything permitted by the Law, the Listing Rules and the SCH
business rules that the Board thinks necessary or desirable in
connection with the Company taking part in a computerised or
electronic system established or recognised by the Law, the Listing
Rules, or the SCH business rules for the purpose of facilitating
dealings in shares; and
38
(b) must comply with obligations imposed on it by the Listing Rules or
the SCH business rules in relation to transfers of shares.
29.3 DELIVERY OF TRANSFER AND CERTIFICATE
REPLACES
SECTION
1091D(2)
A document of transfer under rule 29.1(b) must be:
(a) delivered to the registered office of the Company or the address of
the Register last notified to members by the Company;
(b) accompanied by the certificate (if any) for the shares to be
transferred or evidence satisfactory to the Board of its loss or
destruction; and
(c) marked with payment of any stamp duty payable.
Property in and title to a document of transfer that is delivered to the
Company (but not the shares to which it relates) passes to the Company on
delivery.
29.4 RESTRICTED SECURITIES
If any securities of the Company are classified as restricted securities
under the Listing Rules:
(a) during the escrow period set by the restriction agreement required
by ASX in relation to those securities:
(i) the member who holds the restricted securities may not dispose
of them; and
(ii) the Company must not register a transfer of the restricted
securities or otherwise acknowledge a disposal of them,
except as permitted by the Listing Rules or ASX; and
(b) if there is a breach of the Listing Rules or of the relevant
restriction agreement in relation to a restricted security, the
holding of that security does not entitle a member:
(i) to be present, speak or vote at, or be counted in the quorum
for, a meeting of members; or
(ii) to receive any dividend or other distribution,
while the breach continues.
In this rule 29.4 "dispose" (and other grammatical forms of it) has the
meaning given by the Listing Rules.
39
29.5 REFUSAL TO REGISTER TRANSFER
REPLACES
SECTION
1091D(3)
The Board:
(a) may refuse to register a transfer of shares only if that refusal
would not contravene the Listing Rules or the SCH business rules;
(b) without limiting paragraph (a), subject to the Law, the Listing
Rules and the SCH business rules, may refuse to register a transfer
of shares where the registration of the transfer would create a new
holding of an Unmarketable Parcel;
(c) subject to section 259C, must not register a transfer to a
subsidiary of the Company, and
(d) must not register a transfer if the Law, the Listing Rules or the
SCH business rules forbid registration.
If the Board refuses to register a transfer, the Company must give the
lodging party notice of the refusal and the reasons for it within 5
business days after the date on which the transfer was delivered to it.
29.6 TRANSFEROR REMAINS HOLDER UNTIL TRANSFER REGISTERED
REPLACES
SECTION
1091D(1)
The transferor of a share remains the holder of it until:
(a) if the transfer is a Market Transfer, the time the SCH business
rules provide that the transfer takes effect; and
(b) otherwise, the transfer is registered and the name of the transferee
is entered in the Register in respect of it.
29.7 POWERS OF ATTORNEY
The Company may assume, as against a member, that a power of attorney
granted by that member that is lodged with or produced or exhibited to the
Company remains in force, and may rely on it, until the Company receives
express notice in writing at its registered office of:
(a) the revocation of the power of attorney; or
(b) the death, dissolution or insolvency of the member.
29A. PROPORTIONAL TAKEOVER APPROVAL
29A.1 SPECIAL DEFINITIONS
The following definitions apply in this rule.
ACCEPTED OFFER means an offer under a Proportional Takeover Bid that has
been accepted and from the acceptance of which a binding contract has not,
as at the end of the Resolution Deadline, resulted.
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APPROVING RESOLUTION means a resolution to approve the Proportional
Takeover Bid passed in accordance with rule 29A.4.
PROPORTIONAL TAKEOVER BID means a takeover bid of the type referred to in
section 618(1)(b).
RESOLUTION DEADLINE, in relation to a Proportional Takeover Bid, means the
day that is 14 days before the last day of the period during which the
offers under the Proportional Takeover Bid remain open.
A reference to AN ASSOCIATE OF another person is a reference to a person
who is an associate of the first person:
(a) if the first person is the bidder under a Proportional Takeover Bid,
because of section 9; or
(b) otherwise, because of section 11 or 15.
29A.2 LIMITED LIFE OF RULE
This rule ceases to apply by force of section 648G(1) on the third
anniversary of the date of its last adoption or renewal in accordance with
that section.
29A.3 RESTRICTION ON REGISTRATION OF TRANSFERS
The Company must not register a transfer giving effect to a contract
resulting from the acceptance of an offer made under a Proportional
Takeover Bid unless and until an Approving Resolution is passed.
29A.4 APPROVING RESOLUTION
If offers have been made under a Proportional Takeover Bid in respect of
securities in a class issued by the Company:
(a) an Approving Resolution must be voted on at a meeting, convened and
conducted by the Company, of the persons entitled to vote on the
Approving Resolution;
(b) the Board must ensure that an Approving Resolution is voted on in
accordance with this rule before the Resolution Deadline in relation
to the Proportional Takeover Bid;
(c) 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
Proportional Takeover Bid was made, held securities included in that
class is entitled to vote on an Approving Resolution and, for the
purposes of so voting, is entitled to 1 vote for each of those
securities;
(d) the bidder or an associate of the bidder is not entitled to vote on
an Approving Resolution; and
(e) 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.
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29A.5 GENERAL MEETING PROVISIONS APPLY
The rules in this constitution relating to general meetings apply,
modified as necessary, to any meeting convened under this rule.
29A.6 NOTICE OF MEETING OUTCOME
If an Approving Resolution is voted on in accordance with this rule before
the Resolution Deadline in relation to the Proportional Takeover Bid, the
Company must, on or before the Resolution Deadline give to:
(a) the bidder; and
(b) ASX and any stock exchange other than ASX on which the Company's
shares are listed,
a written notice stating that an Approving Resolution has been so voted on
and that the resolution has been passed, or has been rejected, as the case
requires.
29A.7 FAILURE TO PROPOSE RESOLUTION
If, as at the end of the day before the Resolution Deadline in relation to
a Proportional Takeover Bid, no Approving Resolution has been voted on in
accordance with this rule, an Approving Resolution is taken to have been
passed in accordance with this rule.
29A.8 REJECTED RESOLUTION
If an Approving Resolution is voted on, in accordance with this rule,
before the Resolution Deadline in relation to the Proportional Takeover
Bid and is rejected:
(a) despite section 652A, all offers under the Proportional Takeover Bid
that have not, as at the end of the Resolution Deadline, been
accepted, and all Accepted Offers are taken to be withdrawn at the
end of the Resolution Deadline;
(b) as soon as practical after the Resolution Deadline, the bidder must
return to each person who accepted an Accepted Offer any documents
that were sent by the person to the bidder with the acceptance of
the offer;
(c) the bidder may rescind, and must rescind, as soon as practical after
the Resolution Deadline, each contract resulting from the acceptance
of an offer made under the Proportional Takeover Bid; and
(d) a person who has accepted an offer made under the Proportional
Takeover Bid may rescind the contract (if any) resulting from that
acceptance. 30. TRANSMISSION OF SHARES
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30.1 DEATH OF JOINT HOLDER
The Company must recognise only the surviving joint holders as being
entitled to shares registered jointly in the names of a deceased member
and others. The estate of the deceased joint holder is not released from
any liability in respect of the shares.
30.2 DEATH OF SINGLE HOLDER
The Company must not recognise any one except the legal personal
representative of the deceased member as having any title to shares
registered in the sole name of a deceased member. If the personal
representative gives the Board the documents described in section 1091(4)
or 1091(7) or other information that satisfies the Board of the
representative's entitlement to be registered as holder of the shares:
(a) subject to rules 29.5 and 30.4 the Company must register the
personal representative as the holder of the shares as soon as
practical after receipt of a written and signed notice to the
Company from the representative requiring it to do so; and
(b) whether or not registered as the holder of the shares, the personal
representative:
(i) may, subject to rule 29, transfer the shares to another
person; and
(ii) has the same rights as the deceased member.
30.3 TRANSMISSION OF SHARES ON INSOLVENCY OR MENTAL INCAPACITY
Subject to the Bankruptcy Act 1966, if a person entitled to shares because
of the insolvency or mental incapacity of a member gives the Board the
information it reasonably requires to establish the person's entitlement
to be registered as holder of the shares:
(a) subject to rules 29.5 and 30.4 the Company must register that person
as the holder of the shares as soon as practical after receipt of a
written and signed notice to the Company from that person requiring
it to do so; and
(b) whether or not registered as the holder of the shares, that person:
(i) may, subject to rule 29, transfer the shares to another
person; and
(ii) has the same rights as the insolvent or incapable member.
If section 1091A applies, this rule is supplemental to it.
30.4 REFUSAL TO REGISTER HOLDER
The Company has the same right to refuse to register a personal
representative or person entitled to shares on the insolvency or mental
incapacity of a member as it would have if that person were the transferee
named in a transfer signed by a living, solvent, competent member.
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31. UNMARKETABLE PARCELS
31.1 BOARD POWER OF SALE
The Board may sell a share that is part of an Unmarketable Parcel if it
does so in accordance with this rule. The Board's power to sell lapses if
a takeover (as defined in the Listing Rules) is announced after the Board
gives a notice under rule 31.2 and before the Board enters into an
agreement to sell the share.
31.2 NOTICE OF PROPOSED SALE
Once in any 12 month period, the Board may given written notice to a
member who holds an Unmarketable Parcel:
(a) stating that it intends to sell the Unmarketable Parcel; and
(b) specifying a date at least 6 weeks (or any lesser period permitted
under the Law or the Listing Rules) after the notice is given by
which the member may give the Company written notice that the member
wishes to retain the holding.
If the Board's power to sell lapses under rule 31.1, any notice given by
the Board under this rule is taken never to have been given and the Board
may give a new notice after the close of the offers made under the
takeover.
31.3 NO SALE WHERE MEMBER GIVES NOTICE
The Company must not sell an Unmarketable Parcel if, in response to a
notice given by the Company under this rule 31, the Company receives a
written notice that the member wants to keep the Unmarketable Parcel.
31.4 TERMS OF SALE
A sale of shares under this rule includes all dividends payable on and
other rights attaching to them. The Company must pay the costs of the
sale. Otherwise, the Board may decide the manner, time and terms of sale.
31.5 SHARE TRANSFERS
For the purpose of giving effect to this rule each Director and Secretary
has power to:
(a) effect a Market Transfer; or
(b) execute a share transfer under rule 29.1(b),
as agent for a member who holds an Unmarketable Parcel.
31.6 APPLICATION OF PROCEEDS
The Company must:
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(a) deduct any Called Amount in respect of the shares sold under this
rule from the proceeds of sale and pay the balance into a separate
bank account it opens and maintains for the purpose only;
(b) hold that balance in trust for the previous holder of the shares
(the "DIVESTED MEMBER");
(c) as soon as practical give written notice to the Divested Member
stating:
(i) what the balance is; and
(ii) that it is holding the balance for the Divested Member while
awaiting the Divested Member's instructions and return of the
certificate (if any) for the shares sold or evidence of its
loss or destruction;
(d) if the shares sold were certificated, not pay the proceeds of sale
out of the trust account until it has received the certificate for
them or evidence of its loss or destruction; and
(e) subject to paragraph (d), deal with the amount in the account as the
Divested Member instructs.
31.7 PROTECTIONS FOR TRANSFEREE
The title of the new holder of a share sold under this rule is not
affected by any irregularity in the sale. The sole remedy of any person
previously interested in the share is damages which may be recovered only
from the Company.
32. ALTERATION OF SHARE CAPITAL
32.1 CAPITALISATION OF PROFITS
The Company may capitalise profits, reserves or other amounts available
for distribution to members. Subject to the terms of issue of shares and
rule 32.4, members are entitled to participate in a capital distribution
in the same proportions in which they are entitled to participate in
dividends.
32.2 ADJUSTMENT OF CAPITALISED AMOUNTS
The Board may settle any difficulty that arises in regard to a
capitalisation of profits as it thinks appropriate and necessary to adjust
the rights of members among themselves including:
(a) fix the value of specific assets;
(b) make cash payments to members on the basis of the value fixed for
assets or in place of fractional entitlements so as to adjust the
rights of members between themselves;
(c) disregard fractional entitlements; and
(d) vest cash or specific assets in trustees.
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32.3 CONVERSION OF SHARES
Subject to Part 2H.1, the Listing Rules and rules 22.2 and 22.6, the
Company may convert:
(a) shares into a larger or smaller number of shares;
(b) an ordinary share into a preference share; and
(c) a preference share into an ordinary share,
by resolution passed at a meeting of members (but, in the case of a
conversion of partly paid shares into a larger number of shares the
proportion between the amount paid and the amount unpaid on each share
must be the same as before the conversion).
32.4 ADJUSTMENTS ON CONVERSION
The Board may do anything it thinks appropriate and necessary to give
effect to a resolution converting shares including, if a member becomes
notionally entitled to a fraction of a share as a result of the
conversion:
(a) make a cash payment or disregard fractional entitlements so as to
adjust the rights of members between themselves; or
(b) vest fractional entitlements in a trustee to be dealt with as
determined by the Board; or
(c) round up fractional entitlements to the nearest whole share by
capitalising an amount under rule 32.1 even though not all members
participate in the capitalisation.
32.5 REDUCTION OF CAPITAL
Subject to the Listing Rules, the Company may reduce its share capital:
(a) by reduction of capital in accordance with Division 1 of Part 2J.1;
(b) by buying back shares in accordance with Division 2 of Part 2J.1;
(c) in the ways permitted by sections 258E and 258F; or
(d) in any other way for the time being permitted by the Law.
33. CURRENCY FOR PAYMENTS
33.1 BOARD MAY DECIDE CURRENCY
The Board may, with the agreement of the recipient or in accordance with
the terms of issue of a share, pay:
(a) dividends;
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(b) other amounts payable to members (including repayments of capital
and distributions of capitalised amounts); or
(c) remuneration of Directors or other officers,
in the currency of a country other than Australia.
33.2 CONVERSION TO AUSTRALIAN DOLLARS
If the Board decides to make a payment in a currency other than Australian
dollars and it is necessary, for the purposes of these rules or for any
other purpose, to calculate the Australian dollar equivalent of the
payment, the Board must fix a time (earlier than the time for payment) and
specify the buying or selling rate quoted by a particular financial
institution as the time and rate that apply for that purpose.
34. WINDING UP
34.1 ENTITLEMENT OF MEMBERS
Subject to the terms of issue of shares and this rule 34, the surplus
assets of the Company remaining after payment of its debts are divisible
among the members in proportion to the number of fully paid shares held by
them and, for this purpose, a partly paid share is counted as a fraction
of a fully paid share equal to the proportion which the amount paid on it
bears to the total issue price of the share.
34.2 DISTRIBUTION OF ASSETS GENERALLY
If the Company is wound up, the liquidator may, with the sanction of a
special resolution:
(a) divide the assets of the Company among the members in kind;
(b) for that purpose fix the value of assets and decide how the division
is to be carried out as between the members and different classes of
members; and
(c) vest assets of the Company in trustees on any trusts for the benefit
of the members as the liquidator thinks appropriate.
34.3 NO DISTRIBUTION OF LIABILITIES
The liquidator cannot compel a member to accept marketable securities in
respect of which there is a liability as part of a distribution of assets
of the Company.
34.4 DISTRIBUTION NOT IN ACCORDANCE WITH LEGAL RIGHTS
If the liquidator decides on a division or vesting of assets of the
Company under rule 34.2 which does not accord with the legal rights of the
contributories, any contributory who would be prejudiced by it may dissent
and has ancillary rights as if that decision were a special resolution
passed under section 507.
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35. NOTICES
35.1 NOTICES BY COMPANY
A notice is properly given by the Company to a person if it is:
(a) in writing signed on behalf of the Company (by original or printed
signature);
(b) addressed to the person to whom it is to be given; and
(c) either:
(i) delivered personally;
(ii) sent by prepaid mail (by airmail, if the addressee is
overseas) to that person's address; or
(iii) sent by fax to the fax number (if any) nominated by that
person; or
(iv) sent by electronic message to the electronic address (if any)
nominated by that person.
35.2 OVERSEAS MEMBERS
A member whose registered address is not in Australia may notify the
Company in writing of an address in Australia to which notices may be
sent.
35.3 WHEN NOTICE IS GIVEN
A notice to a person by the Company is regarded as given and received:
(a) if it is delivered personally or sent by fax or electronic message:
(i) by 5.00 pm (local time in the place of receipt) on a business
day - on that day; or
(ii) after 5.00 pm (local time in the place of receipt) on a
business day, or on a day that is not a business day - on the
next business day; and
(b) if it is sent by mail, 1 business day after posting.
A certificate in writing signed by a Director or Secretary stating that a
notice was sent is conclusive evidence of service.
35.4 NOTICE TO JOINT HOLDERS
Notice to joint holders of shares must be given to the joint member named
first in the Register. Every person who becomes entitled to a share is
bound by every notice in respect of that share that was properly given to
a person registered as the holder the share before the transfer or
transmission of the share was entered in the Register.
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35.5 COUNTING DAYS
If a specified period must pass after a notice is given before an action
may be taken, neither the day on which the notice is given nor the day on
which the action is to be taken may be counted in reckoning the period.
35.6 NOTICES TO "LOST" MEMBERS
If:
(a) on 2 or more consecutive occasions a notice served on a member in
accordance with this rule is returned unclaimed or with an
indication that the member is not known at the address to which it
was sent; or
(b) the Board believes on other reasonable grounds that a member is not
at the address shown in the Register or notified to the Company
under rule 35.2,
the Company may give effective notice to that member by exhibiting the
notice at the Company's registered office for at least 48 hours.
This rule ceases to apply if the member gives the Company notice of a new
address.
36. UNCLAIMED MONEY
The Company must deal with unclaimed dividends and distributions and
unclaimed proceeds of shares sold or reissued under this document in
accordance with the law relating to unclaimed money in the Company's
jurisdiction of registration.
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SCHEDULE
TERMS OF ISSUE OF PREFERENCE SHARES
1. DEFINITIONS
The following definitions apply in relation to a preference share issued
under rule 22.2.
"DIVIDEND AMOUNT" for any Dividend Period means the amount calculated as
DA = DR x N
------
365
where:
DA = Dividend Amount;
DR = Dividend Rate; and
N = number of days in the relevant Dividend Period.
"DIVIDEND DATE" means a date specified in the Issue Resolution on which a
dividend in respect of that preference share is payable.
"DIVIDEND PERIOD" means:
(a) the period that begins on and includes the Issue Date and ends on
and includes the day before the first Dividend Date after the Issue
Date; and
(b) the period that begins on and includes each Dividend Date and ends
on and includes the day before the next Dividend Date; and
(c) the period that begins on and includes the last Dividend Date and
ends on and includes the day before the Redemption Date.
"DIVIDEND RATE" means the rate specified in the Issue Resolution for the
calculation of the amount of dividend to be paid on that preference share
on any Dividend Date.
"FRANKED DIVIDEND" has the meaning given to that term by section 160APA of
the Tax Act.
"ISSUE DATE" means the date on which the share is issued.
"ISSUE RESOLUTION" means the resolution passed under clause 2 of this
schedule.
"REDEEMABLE PREFERENCE SHARE" means a preference share which the Issue
Resolution specifies is liable to be redeemed:
(a) at a fixed time or on the happening of a particular event;
(b) at the Company's option; or
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(c) at the holder's option.
"REDEMPTION AMOUNT" in relation to a redeemable preference share means the
amount specified in the Issue Resolution to be paid on redemption of that
share.
"REDEMPTION DATE" in relation to a redeemable preference share, means the
date on which the Issue Resolution requires the Company to redeem that
share.
"TAX ACT" means the Income Tax Assessment Act 1936, the Income Tax
Assessment Act 1997, or both, as applicable.
2. ISSUE RESOLUTION
If the Board resolves to issue a preference share, it must pass an Issue
Resolution which specifies:
(a) the Dividend Date;
(b) the Dividend Rate;
(c) whether dividends are cumulative or non-cumulative;
(d) the priority with respect to payment of dividends and repayment of
capital over other classes of shares;
(e) whether the share is a redeemable preference share or not, and if
so:
(i) the Redemption Amount; and
(ii) if the share is redeemable at the end of a fixed period, the
Redemption Date, or otherwise the circumstances (if any) in
which the share is redeemable at the option of the holder or
of the Company, the way in which that option must be exercised
and the way in which the resulting Redemption Date is
ascertained,
and may also specify that the dividend must be a franked dividend or must
not be a franked dividend.
3. FRANKED DIVIDENDS
If the Issue Resolution specifies that the dividend on preference shares
must be a franked dividend, it may also specify:
(a) the extent to which the dividend must be franked (within the meaning
of the Tax Act); and
(b) the consequences of the dividend not being franked, which may
include an increase of the dividend by the amount of franking credit
which would have been imputed to the holder of the share under the
Tax Act if the dividend had been franked in accordance with the
Issue Resolution.
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4. DIVIDEND ENTITLEMENT
The holder of a preference share is entitled to be paid on each Dividend
Date, in priority to any payment of dividend on any other class of shares,
a preferential dividend of the Dividend Amount for the Dividend Period
ending on the day before that Dividend Date. The dividend entitlement is
cumulative if the Issue Resolution states that it is cumulative and
otherwise is non-cumulative.
5. PRIORITY ON WINDING UP
The holder of a preference share is entitled, on a winding up, to payment
in cash of:
(a) the amount then paid up on the share; and
(b) if the Issue Resolution states that dividends are cumulative, any
arrears of dividend,
in priority to any payment to the holders of ordinary shares and any other
class of preference share over which the relevant Issue Resolution or
rights conferred under rule 22.2 give it priority, but has no right to
participate in surplus assets and profits of the Company or to vote on a
winding up.
6. VOTING
The holder of a preference share has no right to vote at any meeting of
members except:
(a) if the Issue Resolution states that dividends are cumulative, during
a period during which a dividend (or part of a dividend) on the
share is in arrears;
(b) on a proposal to reduce the Company's share capital;
(c) on a resolution to approve the terms of a buy-back agreement;
(d) on a proposal that affects rights attached to the share;
(e) on a proposal to wind up the Company;
(f) on a proposal for the disposal of the whole of the Company's
property, business and undertaking;
(g) during the winding up of the Company; and
(h) in any other circumstances as the Board determines prior to the
allotment of preference shares.
7. NOTICES AND FINANCIAL REPORTS
The Company must give the holder of a preference share notice of each
meeting of members in accordance with rule 13 and send the holder
financial reports in accordance with rule 21.2.
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8. REDEMPTION OF REDEEMABLE PREFERENCE SHARES
Subject to the Law, the Company must redeem a redeemable preference share
on the Redemption Date by paying the Redemption Amount to the holder in
cash, by cheque or in any other form that the holder agrees to in writing.
If the Company sends the holder of a redeemable preference share a cheque
for the Redemption Amount, the share is redeemed on the date on which rule
35.3(b) would treat the cheque as being received by the holder, whether or
not the holder has presented the cheque. If the holder of a redeemable
preference share does not present a cheque for the Redemption Amount
within a reasonable period after it is sent, the Company must deal with
the Redemption Amount in accordance with rule 36.
9. EQUAL RANKING ISSUES
Subject to the terms of issue of any particular class of preference share,
the issue of further preference shares that rank equally with any issued
preference shares is not taken to affect the rights of the holders of the
existing preference share whether or not the Dividend Rate for the new
preference share is the same as or different from that applicable to that
preference share.
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