7th May 2024 09:22
For immediate release
7 May 2024
NEW CONSTITUTION
European Metals Holdings Limited (ASX & AIM: EMH) ("European Metals" or the "Company") is pleased to attach a copy of its new Constitution in accordance with ASX Listing Rule 15.4.2 and further to the redomicile announcement on 7 May 2024. The new Constitution was previously approved by shareholders at the Annual General Meeting held on 22 December 2023.
This announcement has been approved for release by the Board.
CONTACT
For further information on this update or the Company generally, please visit our website at www.europeanmet.com or see full contact details at the end of this release.
WEBSITE
A copy of this announcement is available from the Company's website at www.europeanmet.com/announcements/.
ENQUIRIES:
European Metals Holdings Limited Keith Coughlan, Executive Chairman
Kiran Morzaria, Non-Executive Director
Henko Vos, Company Secretary |
Tel: +61 (0) 419 996 333 Email: [email protected]
Tel: +44 (0) 20 7440 0647
Tel: +61 (0) 400 550 042 Email: co[email protected]
|
WH Ireland Ltd (Nomad & Broker) James Joyce / Darshan Patel / Isaac Hooper (Corporate Finance) Harry Ansell (Broking)
|
Tel: +44 (0) 20 7220 1666
|
Blytheweigh (Financial PR) Tim Blythe Megan Ray
Chapter 1 Advisors (Financial PR - Aus) David Tasker
| Tel: +44 (0) 20 7138 3222
Tel: +61 (0) 433 112 936 |
The information contained within this announcement is deemed by the Company to constitute inside information under the Market Abuse Regulation (EU) No. 596/2014 ("MAR") as it forms part of UK domestic law by virtue of the European Union (Withdrawal) Act 2018 and is disclosed in accordance with the Company's obligations under Article 17 of MAR.
European Metals Holdings Limited Constitution A public company limited by shares
Adopted on 7 May 2024 | ||
|
| |
Contents
1 Preliminary........................................................................................................................ 1
2 Share Capital.................................................................................................................... 5
3 Calls, Forfeiture and Liens................................................................................................. 8
4 Transfer of Shares........................................................................................................... 15
5 Transmission of Shares................................................................................................... 17
6 Sale of Non Marketable Parcels....................................................................................... 18
7 General Meetings............................................................................................................ 19
8 Proceedings at General Meetings..................................................................................... 21
9 Proxies, Attorneys and Representatives........................................................................... 26
10 Appointment, Removal and Remuneration of Directors...................................................... 29
11 Powers and Duties of Directors....................................................................................... 31
12 Proceedings of Directors................................................................................................. 32
13 Executive Directors......................................................................................................... 38
14 Records.......................................................................................................................... 38
15 Auditor........................................................................................................................... 38
16 Dividends and Reserves.................................................................................................. 39
17 Winding Up..................................................................................................................... 43
18 Proportional Takeover Bid............................................................................................... 44
19 Notices........................................................................................................................... 45
20 Indemnity........................................................................................................................ 46
21 Security Interests............................................................................................................. 47
22 Seals.............................................................................................................................. 48
European Metals Holdings LimitedACN 154 618 989
A public company limited by shares
1 Preliminary
Definitions
1.1 In this constitution the following definitions apply:
ASX means ASX Limited ABN 98 008 624 691 or the Australian Securities Exchange, as operated by ASX Limited (as the context requires).
ASX Settlement means ASX Settlement Pty Ltd ACN 008 504 532.
ASX Settlement Operating Rules means the operating rules of ASX Settlement, and to the extent that they are applicable, the operating rules of the ASX and the operating rules of ASX Clear Pty Limited ACN 001 314 503.
Business Day has the meaning given to that term in the Listing Rules.
CHESS means the clearing house electronic sub-register system as defined in the ASX Settlement Operating Rules.
CHESS Subregister means the CHESS subregister part of the register for the Company's securities that is administered by ASX Settlement and records uncertificated holdings in accordance with the ASX Settlement Operating Rules.
Company means European Metals Holdings Limited ACN 154 618 989.
Corporations Act means the Corporations Act 2001 (Cth).
ESS Interests has the meaning under section 1100M(1) of the Corporations Act.
Executive Director means a director appointed under clauses 13.1 or 13.2.
Issuer Sponsored Subregister means that part of the Company's register for the Company's shares that is administered by the Company (and not ASX Settlement) and records uncertificated holdings of shares.
Listing Rules means the Listing Rules of the ASX and any other rules of the ASX which are applicable while the Company is admitted to the official list of the ASX, each as amended or replaced from time to time, except to the extent of any express written waiver by the ASX.
Market Transfer means:
(a) a transfer of shares pursuant to or connected with a transaction entered into on the ASX and includes a Proper ASTC Transfer; or
(b) an issue of shares as a result of the exercise of any rights, options or convertible notes where such rights, options or notes are traded on the ASX.
PPSA means the Personal Property Securities Act 2009 (Cth).
Proper ASTC Transfer has the meaning given to that term in the Corporations Regulations 2001 (Cth).
Representative means a person approved as its representative by a shareholder under section 250D of the Corporations Act.
Seal means any common seal, duplicate seal, share seal or certificate seal of the Company.
Share means a fully paid ordinary share in the capital of the Company.
Interpretation
1.1 In this constitution:
Jurisdiction and enforceability
1.2 Each shareholder submits to the non-exclusive jurisdiction of the courts of Western Australia, Australia, the Federal Court of Australia and the courts which may hear appeals from those courts.
1.3 Any provision of, or the application of any provision of, this constitution which is prohibited in any place is, in that place, ineffective only to the extent of that prohibition.
1.4 Any provision of, or the application of any provision of, this constitution which is void, illegal or unenforceable in any place does not affect the validity, legality or enforceability of that provision in any other place or of the remaining provisions in that or any other place.
Transitional provisions
1.5 This constitution must be interpreted in such a way that:
Corporations Act and Listing Rules
1.6 The replaceable rules in the Corporations Act do not apply to the Company, except so far as they are repeated in this constitution.
1.7 A word or phrase used in the Corporations Act has, unless this constitution specifically states otherwise, the same meaning in this constitution.
1.8 The provisions of this constitution are subject to the Corporations Act and any act that is permitted or prescribed in this constitution may only be carried out in accordance with and subject to the applicable requirements of the Corporations Act.
1.9 If the Company is admitted to the official list of the ASX, the following regulations apply:
2 Share Capital
Issue of securities
2.1 Subject to the Corporations Act, the Listing Rules and this constitution, the directors may allot and issue shares in the Company, or options or rights to acquire shares in the Company, to any person on such terms and with such rights as determined by the directors.
Alteration of share capital
2.2 The Company may alter its share capital in any manner permitted by the Corporations Act including:
2.3 Where fractions of shares are or would otherwise be created by an alteration of share capital under clause 2.2 the directors may do anything required to give effect to that alteration, including:
Conversion or reclassification of shares
2.4 Subject to clause 2.5, the Company may by resolution convert or reclassify shares from one class to another.
Variation of class rights
2.5 The rights attaching to any class of shares may, unless their terms of issue state otherwise, be varied:
2.6 The rights conferred on the holders of the shares of any class are taken as not having been varied by the creation or issue of further shares ranking equally with them unless otherwise expressly provided by the conditions of issue of the shares of that class.
Registered holders treated as absolute owners
2.7 The Company may treat the registered holder of a share as the absolute owner of that share and need not:
Joint holders
2.8 If two or more persons are registered as the holders of a share they are taken to hold the share as joint tenants with rights of survivorship and on the basis that:
2.9 No more than three persons are entitled to be registered as the holders of a share. The Company is not bound to issue more than one certificate or holding statement in respect of shares jointly held.
Preference shares
2.10 The directors may issue preference shares, including preference shares which are, or at the option of the Company or holder are, liable to be redeemed or convertible into ordinary shares on the basis decided by the directors under the terms of issue.
2.11 Each preference share confers on the holder a right to receive a preferential dividend, in priority to the payment of any dividend on the ordinary shares, at the rate and on the basis decided by the directors under the terms of issue.
2.12 In addition to the preferential dividend and rights on winding up, each preference share may participate with the ordinary shares in the profits and assets of the Company, including on a winding up, if and to the extent the directors decide under the terms of issue.
2.13 The preferential dividend may be cumulative only if and to the extent the directors decide under the terms of issue and will otherwise be non-cumulative.
2.14 Each preference share confers on the holder the right in a winding up and on redemption to payment in priority to the ordinary shares of:
2.15 To the extent the directors may decide under the terms of issue, a preference share may confer a right to a bonus issue or capitalisation of profits in favour of holders of those shares only.
2.16 A preference share does not confer on its holder any right to participate in the profits or assets of the Company except as set out above.
2.17 Unless otherwise decided by the directors under the terms of issue, the holders of preference shares may only vote in the following circumstances:
2.18 The holder of a preference share who is entitled to vote in respect of that share, is, on a poll, entitled to the greater of one vote per share or such other number of votes specified in, or determined in accordance with, the terms of issue for the share.
2.19 In the case of a redeemable preference share, the Company must, redeem the share, pay the amount payable on redemption of the share or otherwise deal with the redemption, in accordance with the terms of issue.
2.20 A holder of a preference share must not transfer or purport to transfer the share, and the directors, to the extent permitted by the Listing Rules, must not register a transfer of the share if the transfer would contravene any restrictions on the right to transfer the share set out in the terms of issue for the share.
Restricted securities
2.21 Notwithstanding anything else in this constitution, the Company shall comply in all respects with the requirements of the Listing Rules with respect to restricted securities and the following provisions apply in relation to securities which are classified as restricted securities by the Listing Rules or the ASX:
2.22 The Company may issue a restriction notice (in the form of Appendix 9C of the Listing Rules or in such other form as the ASX requires or permits) to a holder of restricted securities.
Brokerage and commission
2.23 The Company may pay brokerage or commissions to a person who agrees to subscribe for, or arranges for others to subscribe for, shares in the Company. It may be paid in cash, in shares of the Company, or both.
Issue cap for offers involving monetary consideration under an employee incentive scheme
2.24 For the purposes of section 1100V(2)(a) of the Corporations Act, the Company may only make an offer of ESS Interests if, at the time the offer is made, the Company reasonably believes:
does not exceed 10% of the number of Shares actually on issue as at the start of the day the offer is made.
3 Calls, Forfeiture and Liens
Power to make calls
3.1 Subject to the Corporations Act, the Listing Rules, this constitution and the terms on which the shares are on issue, the directors may make a call on any shareholder in respect of any amount unpaid on any share held by that shareholder and may differentiate between shareholders as to the amount of calls to be paid and the time for payment.
3.2 The directors may, to the extent permitted by the Corporations Act and the Listing Rules, waive or compromise all or part of any payment due under the terms of any issue of a share or under any call.
3.3 The terms on which shares are on issue may differ between shareholders as to:
3.4 Subject to the terms on which the shares are on issue, a call is made on the date the directors resolve to make a call.
3.5 The directors may require a call to be paid by instalments.
Deemed call
3.6 Any amount unpaid on a share that, by the terms of issue of that share becomes payable on issue or at a fixed date:
Liability of joint holders
3.7 The owners of a share that is held jointly are jointly and severally liable to pay all calls in respect of that share. This means that the Company may recover the call amount from any one or more of the joint holders but must not obtain more than the amount of the call from those joint holders.
Notice of call
3.8 Subject to the terms on which the shares are on issue, at least 10 Business Days' notice (or such longer period required by the Listing Rules) must be given to the shareholder of the date on which the amount of the call or the instalment of the call must be paid.
3.9 Subject to the terms on which the shares are on issue and the Listing Rules, the notice must state:
3.10 A call is not invalid by reason of any unintentional error or omission in giving notice or by non-receipt of notice.
Revocation, postponement, or extension of calls
3.11 Subject to the terms on which the shares are on issue and the Listing Rules, the directors may, by notice, revoke, postpone or extend the time for payment of the call.
Interest on unpaid calls
3.12 A shareholder must pay to the Company any called amount by the time, in the manner and at the place specified in the notice of the call.
3.13 If an amount called is not paid on or before any date specified in the notice for payment, the holder must pay interest on the amount unpaid, at the rate and in the manner specified in clause 3.54, from the date specified in the notice of the call for payment until and including the date of actual payment.
3.14 The directors may waive the right to require the payment of interest.
Suspension of privileges
3.15 Until a call (together with any interest and expenses that are payable) has been paid, the holder is not entitled to receive any dividend or other distribution or to be present and vote at any meeting (other than as proxy for another shareholder) either personally or by attorney, proxy or by Representative. The shareholder may not be counted in a quorum or exercise any other privilege as a shareholder.
Recovery of called amounts
3.16 In any proceeding to recover a call, or an amount payable due to the failure to pay a call or late payment of a call, proof that:
3.17 Any proceeding brought by the Company in accordance with clause 3.16 will be without prejudice to the right of the Company to forfeit the share the subject of the unpaid call.
3.18 In clause 3.16, a proceeding to recover a call or an amount includes a proceeding against a person whom the Company alleges a set-off or counterclaim.
Payment of calls in advance
3.19 The directors may accept from a shareholder in advance of any call, the whole or part of any amount unpaid on any share.
3.20 The directors may authorise payment by the Company of interest (in an amount determined by the directors) upon the whole or any part of any sum so accepted under clause 3.19 from the date of payment until the date on which the sum paid is payable under a call.
3.21 Any sum accepted by the Company in advance of a call is:
3.22 The directors may repay any sum accepted in advance of a call.
Notice regarding forfeiture
3.23 If any shareholder does not pay the amount of any call or instalment in respect of any share when it is due and in the manner and at the place specified for payment, the directors may give notice to the shareholder:
Forfeiture
3.24 If payment of the amount demanded is not made in full in accordance with a notice given under clause 3.23, the directors may by resolution forfeit any share the subject of the notice.
3.25 A forfeiture of any share under clauses 3.24 to 3.35 includes all dividends, interest and other amounts payable by the Company on the forfeited share and not actually paid before the forfeiture.
3.26 If any share is forfeited, notice of forfeiture will be given to the holder of that share and the date and details of the forfeiture will be recorded in the register. Failure to do so will not invalidate the forfeiture.
3.27 If the forfeited shares are entered on the CHESS Subregister, the Company may take steps to move the share to a subregister administered by the Company. The forfeiture is effective at the time the share is entered in that subregister.
3.28 Any forfeited share is the property of the Company and, subject to the Listing Rules, the directors may sell, re-issue or otherwise dispose of any forfeited share on terms and in such manner as determined by the directors.
3.29 At any time before any forfeited share is sold or otherwise disposed of, the directors may cancel the forfeiture on terms determined by it.
3.30 On forfeiture of any share, the holder of that share ceases to be a shareholder and ceases to have any right as a shareholder in respect of that forfeited share (including in respect of any dividend), but remains liable to pay the Company:
3.31 The liability of a former shareholder continues until:
3.32 The Company may receive the net proceeds from the sale, reissue or other disposal of any forfeited share and execute an instrument of transfer in respect of the forfeited share. The Company must apply the net proceeds of any sale, reissue, or other disposal of any forfeited share in or towards satisfaction of:
3.33 The Company must pay the balance (if any) of the net proceeds of sale, reissue or other disposal to the person whose forfeited share has been sold, reissued, or otherwise disposed of.
3.34 A statutory declaration signed by a director or secretary of the Company stating that the person making the declaration is a director or secretary of the Company, and specifying that particular shares in the Company have been forfeited, or sold, reissued or otherwise disposed of, on a particular date, is conclusive evidence of the facts in the statutory declaration as against all persons claiming to be entitled to the shares and of the right of the Company to forfeit, sell, reissue or otherwise dispose of the shares.
3.35 The purchaser of any forfeited share is entitled to assume that the proceeds of the sale or other disposal have been applied in accordance with this constitution and is not responsible for the application of the purchase money by the Company.
Cancellation of forfeited shares
3.36 Subject to the Corporations Act and the Listing Rules, the Company may cancel any forfeited share.
3.37 Liability for the amount called but unpaid in respect of the cancelled share may not be released or waived without the approval of the holders of ordinary shares given in accordance with the Listing Rules.
Surrender of shares
3.38 The Company may accept a surrender of a share by way of compromise of a claim.
3.39 The directors may accept the surrender of any share which may be forfeited. If the directors accept the surrender, that share will be treated as having been forfeited and may be sold, re-issued, or otherwise disposed of in the same manner as a forfeited share.
Lien on shares
3.40 The Company has a first and paramount lien:
3.41 In each case, the lien extends to all dividends from time to time payable in respect of the shares, the proceeds of sale, reissue or other disposal of the shares, and to reasonable interest (at the rate and in the manner specified in clause 3.54) and reasonable expenses incurred because the amount is not paid.
3.42 The Company may do all things necessary or appropriate for it to do to protect any lien or other right to which it may be entitled under any law or this constitution.
3.43 By notice, the directors may discharge or waive, in whole or in part, any lien or declare any share to be wholly or partly exempt from a lien, but otherwise no act or omission is to be taken as discharging, waiving, or otherwise granting an exemption from any lien.
3.44 If any share is subject to a lien and the Company registers the transfer of any share subject to a lien without giving notice of the lien to the transferee of the share, the lien is treated as waived as against the transferee.
Enforcement of lien
3.45 The directors may sell or otherwise dispose of any share the subject of a lien, if:
3.46 The terms on which and manner by which any share may be sold or otherwise disposed of are to be determined by the directors.
3.47 Interest accrues at the rate and in the manner specified in clause 3.54 on:
3.48 The Company may receive the net proceeds of the sale or other disposal of any share and execute an instrument of transfer in respect of the share. The Company must apply the net proceeds of the sale or disposal of any share in or towards satisfaction of:
3.49 The Company must pay any balance of the net proceeds of sale or other disposal to the person whose share has been sold or otherwise disposed of.
3.50 The purchaser of any share the subject of a lien is entitled to assume that the proceeds of sale or other disposal have been applied in accordance with this constitution and is not responsible for the application of the purchase money by the Company.
Shareholder's indemnity for payment required by law
3.51 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 shareholder or referable to a share held by that shareholder (whether alone or jointly) or a dividend or other amount payable in respect of a share held by that shareholder, the Company:
3.52 Nothing in this constitution 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 shareholder, any such right or remedy is enforceable by the Company.
Continuing liability
3.53 If the net proceeds from the sale or other disposal of a share under this clause 3 are less than the sum of:
(together the Shortfall) the person whose share has been sold, reissued or otherwise disposed of continues to be liable and must pay to the Company an amount equal to the Shortfall together with interest at the rate and in the manner specified in clause 3.54.
Interest payable
3.54 For the purposes of this clause 3:
4 Transfer of Shares
Participation in computerised or electronic systems
4.1 The directors may do anything they consider necessary or desirable and that is permitted under the Corporations Act and the Listing Rules to facilitate the Company's participation in any computerised or electronic system established or recognised by the Corporations Act or the Listing Rules for the purposes of facilitating dealings in shares.
Form of transfer
4.2 Subject to this constitution and to any restrictions attached to the share, a shareholder may transfer all or any of the shareholder's shares by:
4.3 If an instrument of transfer under clause 4.2(b) is used to transfer a share and the transferor or transferee is a clearing house or its nominee(s), the instrument of transfer may be executed by hand or by machine imprinted signature or by such other manner of execution as the directors may approve from time to time.
4.4 A transfer referred to in clause 4.2(b) must:
4.5 Except as provided by any applicable ASX Settlement Operating Rules, the transferor remains the holder of the shares until a Proper ASTC Transfer has been effected or the name of the transferee is entered in the register as the holder of those shares.
4.6 In the case of a Market Transfer, the Company must comply with the obligations imposed on it by the Listing Rules and the ASX Settlement Operating Rules and any applicable legislation in connection with any transfer of shares.
Registration procedure
4.7 Subject to clause 4.4 and clauses 4.10 to 4.12, upon receipt of a transfer of shares that complies with clauses 4.2 to 4.6, the Company must register the nominated transferee as the holder of the relevant shares.
4.8 The Company must not charge a fee for registering a transfer of shares unless the fee is permitted by the Listing Rules.
4.9 On registration of a transfer of shares, the Company must cancel the old certificate (if any) and any duplicate certificate.
Refusal to register
4.10 The directors may, in their absolute discretion, refuse to register any transfer of shares or request ASX Settlement to apply a holding lock to prevent a transfer of all or any of them:
4.11 If the directors request the application of a holding lock to prevent a transfer of shares or refuse to register a transfer of a share, the directors must give written notice to the holder of the share and the broker lodging the transfer, if any, of the refusal to transfer in accordance with the Listing Rules. Failure to give such notice will not invalidate any act or decision of the directors not to register the transfer.
Closure of register
4.12 Subject to the Corporations Act, the Listing Rules and the ASX Settlement Operating Rules, the register may be closed during any time, and for any periods, the directors think fit.
Instruments of transfer retained
4.13 All instruments of transfer that are registered will be retained by the Company for such period as the directors may determine.
4.14 Any instrument of transfer which the directors decline to register will, except in the case of fraud, or alleged fraud, upon demand in writing be returned to the party who delivered it.
No transfer to an infant
4.15 A transfer of any shares may not knowingly be made to an infant or to a person of unsound mind or under other legal disability.
Correction of share register
4.16 If a person is registered as the holder of any share contrary to the provisions of this constitution the directors may remove the person's name as the holder of the shares and other information relating to the person and reinstate the name of the previous holder of the shares and the information relating to that previous holder.
5 Transmission of Shares
Transmission of shares on death
5.1 On the death of a shareholder, the Company will recognise only:
5.2 A person who becomes entitled to a share upon the death of a shareholder may, having provided the directors with such evidence as they require to prove that person's entitlement to the shares of the deceased shareholder:
5.3 A trustee, executor or administrator of the estate of a deceased shareholder may be registered as the holder of any share owned by the deceased as trustee, executor or administrator of that estate.
5.4 The death of a shareholder will not release the estate of that shareholder from any liability in respect of any shares.
Transmission of shares on bankruptcy
5.5 A person who becomes entitled to a share on the bankruptcy of a holder may, having provided the directors with such evidence as it requires to prove that person's entitlement to the shares of the bankrupt holder:
5.6 A trustee or administrator of a person who is bankrupt may be registered as the holder of any share owned by that person as trustee or administrator of that person's affairs.
5.7 Clauses 5.5 and 5.6 are subject to the Bankruptcy Act 1966 (Cth).
Transmission of shares on mental incapacity
5.8 A person who becomes entitled to a share because a holder is subject to assessment or treatment under any mental health law may, having provided the directors with such evidence as it requires to prove that person's entitlement to the shares of that holder:
5.9 A trustee or administrator of a person who is mentally or physically incapable of managing their affairs, may be registered as the holder of any share owned by that person as trustee or administrator of that person's affairs.
Transmission subject to ASX Settlement Operating Rules
5.10 The provisions of clauses 5.1 to 5.9 are subject to any provisions of the ASX Settlement Operating Rules which deal with transmission on death or by operation of law.
6 Sale of Non Marketable Parcels
6.1 The Company may sell shares that constitute less than a marketable parcel by following the procedures in this clause 6.
6.2 If the directors determine that a shareholder holds less than a marketable parcel of shares in a class of shares of the Company, on a date decided by the directors, the Company may give the shareholder a notice which:
6.3 If, before 5:00pm Sydney time on a date specified in the notice which is no earlier than 6 weeks after the notice is sent:
6.4 In addition to initiating a sale by sending a notice under clause 6.2, the directors may also initiate a sale if a shareholder holds less than a marketable parcel and that holding was created by a transfer of a parcel of shares effected on or after 1 September 1999 that was less than a marketable parcel at the time that the transfer document was initiated or, in the case of a paper-based transfer document, was lodged with the Company. In that case:
6.5 The Company may:
6.6 The costs and expenses of the sale of shares arising from a notice under clause 6.2 (including brokerage and stamp duty) are payable by the purchaser or the Company.
6.7 Subject to clause 6.6, where:
6.8 Payment of any money under this clause 6 is at the risk of the shareholder to whom it is sent.
6.9 If it is a requirement of the Listing Rules, the Company must not give a notice under clause 6.2 more than once in any 12 month period (except as contemplated by clause 6.10).
6.10 If a takeover bid is announced after a notice is given but before an agreement is entered into for the sale of shares, this clause ceases to operate for those shares. However, despite clause 6.9, a new notice under clause 6.2 may be given after the offer period of the takeover bid closes.
6.11 The directors may, before a sale is effected under this clause 6, revoke a notice given or suspend or terminate the operation of this clause 6 either generally or in specific cases.
6.12 If a shareholder is registered in respect or more than one parcel of shares, the directors may treat the shareholder as a separate shareholder in respect of each of those parcels so that this clause 6 will operate as if each parcel was held by different persons.
7 General Meetings
Annual general meeting
7.1 Annual general meetings must be held in accordance with the Corporations Act.
Power to convene
7.2 A general meeting may only be called by:
Notice of general meeting
7.3 Notice of a general meeting must be given to the shareholders, directors, and auditor in accordance with the Corporations Act and Listing Rules.
7.4 The content of a notice of general meeting called by the directors is to be decided by the directors, but it must state the general nature of the business to be transacted at the meeting and any other matters required by the Corporations Act and Listing Rules.
7.5 A notice of general meeting must be accompanied by a form of proxy which satisfies the requirements of the Corporations Act and the Listing Rules and must be given in accordance with clause 19.2.
7.6 Unless the Corporations Act provides otherwise:
Use of technology at general meetings
7.7 Subject to law, the directors may determine to hold a general meeting at 2 or more locations or using one or more technologies or electronic participation facilities that give all persons entitled to attend a reasonable opportunity to participate without being physically present at the same place (including that each person entitled to vote is provided the opportunity to participate in the vote on a show of hands or on a poll), in which case:
7.8 If a general meeting is to be held in accordance with clause 7.7 and subject to law:
7.9 If the technology used in accordance with clause 7.7 encounters a technical difficulty, whether before or during the meeting, which results in a shareholder not being able to participate in the meeting, the chairperson may, subject to the Corporations Act and this constitution, allow the meeting to continue or may adjourn the meeting either for such reasonable period as may be required to fix the technology or to such other time and location as the chairperson deems appropriate. For the avoidance of doubt, where the chairperson has allowed the meeting to continue, any resolution passed at that meeting is valid.
Power to cancel or postpone
7.10 Subject to the Corporations Act, the Listing Rules and this constitution, if the directors have convened a general meeting, the directors may by notice change the place (or places) of or postpone or cancel that general meeting.
7.11 If a director has convened a general meeting, only the director who convened the general meeting may by notice change the place (or places) of the general meeting or postpone or cancel the general meeting.
7.12 If a general meeting is convened pursuant to a request by shareholders or otherwise not convened by the directors, the directors may not postpone or cancel the general meeting without the consent of the persons who called or requested the meeting.
Notice of change, postponement, or cancellation
7.13 A notice of cancellation or postponement or change of place of a general meeting must state the reason for cancellation or postponement and be:
Business at postponed meeting
7.14 The only business that may be transacted at a general meeting resumed after postponement, is the business specified in the original notice convening the meeting.
Proxy, attorney, or Representative at postponed meeting
7.15 Where by the terms of an instrument appointing a proxy, attorney or a Representative:
then, by force of this clause 7.15, that later date is substituted for and applies to the exclusion of the date specified in the instrument of proxy, power of attorney or appointment of Representative unless the shareholder appointing the proxy, attorney or Representative gives to the Company at its registered office notice in writing to the contrary not less than 48 hours before the time to which the holding of the meeting has been rescheduled, adjourned or postponed.
Omissions
7.16 The accidental omission to give any notice to, or the non-receipt of any notice by, any person entitled to receive the notice shall not invalidate any resolution passed or any proceedings at that meeting or at a postponed meeting or the cancellation or postponement of a meeting.
8 Proceedings at General Meetings
Quorum
8.1 Business may not be transacted at any general meeting unless a quorum of shareholders is present at the time when the meeting proceeds to business. Two shareholders entitled to vote on a resolution at the meeting constitute a quorum in all cases. In determining whether a quorum is present, each individual attending as a proxy, attorney or Representative is to be counted, except that where a shareholder has appointed more than one proxy, attorney or Representative, only one is to be counted.
8.2 If a quorum is present at the time the first item of business is transacted, it is taken to be present when the meeting proceeds to consider each subsequent item of business unless the chairperson of the meeting (on the chairperson's own motion or at the request of a shareholder who is present) declares otherwise.
Effect of no quorum
8.3 If a quorum is not present within 30 minutes from the notified starting time for the meeting:
Chairperson of the board of directors
8.4 The chairperson elected as chairperson of the board of directors meetings, or in that person's absence, the deputy chairperson of the board of directors (if any), shall preside as chairperson at every general meeting.
Vacancy in chairperson
8.5 Where a general meeting is held and:
the following may preside as chairperson of the meeting (in order of precedence):
Conduct of general meetings
8.6 The chairperson of a general meeting:
and a decision by the chairperson under this clause 8.6 is final.
Adjournment
8.7 The chairperson may at any time during the course of a meeting:
8.8 Subject to the Corporations Act and this constitution, the chairperson's rights under clause 8.7 are exclusive and, unless the chairperson requires otherwise, no vote may be taken or demanded by the shareholders about any postponement, adjournment, or suspension of proceedings.
8.9 The only business that can be transacted at an adjourned meeting is the unfinished business from the original meeting.
Form of notice for adjourned meeting
8.10 Except as provided by clause 8.11, it is not necessary to give any notice of an adjournment or of the business to be transacted at an adjourned meeting.
Notice where a meeting is adjourned for 30 days
8.11 When a meeting is adjourned for 30 days or more, notice of the adjourned meeting must be given in the same manner as the original meeting.
Right to discuss the management of the Company
8.12 The chairperson of a general meeting must allow a reasonable opportunity for shareholders at the meeting to question, discuss or comment on the management of the Company.
Voting on show of hands or Poll
8.13 Subject to clause 8.14, each matter submitted to a general meeting is to be decided on a show of hands of all shareholders present and entitled to vote in the first instance.
8.14 A matter will be decided on a poll without first being submitted to the general meeting to be decided on a show of hands where:
8.15 A poll may be demanded by shareholders in accordance with the Corporations Act (and not otherwise) or by the chairperson.
8.16 A demand for a poll does not prevent the continuance of the meeting for the transaction of any business other than the resolution on which the poll has been demanded.
8.17 Unless a poll is duly demanded, a declaration by the chairperson that a resolution has on a show of hands been carried or carried unanimously, or carried by a particular majority, or lost, and an entry to that effect in the book containing the minutes of the proceedings of the company is conclusive evidence of the fact without proof of the number or proportion of the votes recorded for or against the resolution.
8.18 A poll at a general meeting must be taken in a way and at the time the chairperson directs. The results of the poll as declared by the chairperson is the resolution of the general meeting at which the poll was demanded.
8.19 A poll cannot be demanded at a general meeting on the election of a chairperson.
8.20 The demand for a poll may be withdrawn with the chairperson's consent.
Chairperson's vote
8.21 If the votes are equal, whether on a show of hands or on a poll, the chairperson of the meeting at which the show of hands takes place or at which the poll is demanded is entitled to a second or casting vote.
Direct voting
8.22 The directors may determine that at any meeting of shareholders or class meeting, a shareholder who is entitled to attend and vote on a resolution at that meeting is entitled to a direct vote in respect of that resolution. A 'direct vote' includes a vote delivered to the Company by post, fax or other electronic means approved by the directors. The directors may prescribe regulations, rules, and procedures in relation to direct voting, including specifying the form, method, and timing of giving a direct vote at a meeting in order for the vote to be valid.
Votes of joint holders
8.23 If shares are held jointly, only one of the joint holders may vote. If more than one of the joint holders tenders a vote, the vote of the holder whose name in respect of those shares appears first in the register of shareholders is to be treated as the only vote in relation to those shares.
Incapacity
8.24 If a shareholder is a person whose person or estate is subject to assessment or treatment under any mental health law, the shareholder's committee or trustee or such other person as properly has the management of the shareholder's estate may exercise any rights of the shareholder in relation to a general meeting as if the committee, trustee or other person were the shareholder.
Disentitlement to vote
8.25 A shareholder is not entitled to vote at a general meeting in respect of a share held by the shareholder unless all calls and other sums presently payable by the shareholder in respect of the share have been paid.
8.26 Where a breach of the Listing Rules relating to restricted securities continues or while a breach subsists of a restriction deed entered into by the Company under the Listing Rules in relation to shares which are restricted securities, the restricted securities do not confer on the holder any dividend, distribution or voting rights. However, those restricted securities shall not be treated or taken to be a separate class of share for any purpose.
Objection to voter
8.27 An objection may be raised to the validity of a vote tendered at a general meeting only at the meeting or adjourned meeting at which the vote objected to is cast.
8.28 Any objection is to be referred to the chairperson of the meeting, whose decision is final and a vote not disallowed by the chairperson is valid for all purposes.
Voting rights
8.29 Subject to any rights or restrictions for the time being attached to any class or classes of shares:
Decisions
8.30 A decision of a general meeting may not be impeached or invalidated on the ground that a person voting at the meeting was not entitled to do so.
Admission to general meetings
8.31 The chairperson of a general meeting may take any action he or she considers appropriate for the safety of persons attending the meeting and the orderly conduct of the meeting and may refuse admission to a person or require a person to leave and not return to a meeting if the person:
Auditor's right to be heard
8.32 The auditor of the Company from time to time is entitled to:
9 Proxies, Attorneys and Representatives
Appointment of proxy or attorney
9.1 Subject to this constitution, a shareholder who is entitled to attend and to vote at a general meeting of the Company may appoint not more than 2 proxies to attend, speak and vote for that shareholder. The instrument appointing a proxy may restrict the exercise of any power.
9.2 A proxy or attorney need not be a shareholder of the Company.
9.3 A proxy or attorney is not entitled to vote if the shareholder who has appointed the proxy or attorney is present in person at the meeting.
9.4 Subject to this constitution, a shareholder may appoint not more than 2 attorneys 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.
9.5 Subject to the Corporations Act and the Listing Rules, an appointment of a proxy or an attorney must be in writing and be signed by the shareholder appointing the proxy or attorney, and state:
9.6 Where an instrument appointing a proxy is signed pursuant to a power of attorney, a copy of the power of attorney (certified as a true copy of the original) must be attached to the proxy sent to the Company.
9.7 Instruments appointing a proxy or attorney may specify the manner in which the proxy or attorney is to vote in respect of a particular resolution and in that event the proxy or attorney is not entitled to vote on the resolution except as specified in the instrument. If an instrument does not specify the manner in which the proxy or attorney is to vote, the proxy or attorney is entitled to vote on the proposed resolution as the proxy or attorney considers appropriate.
9.8 An instrument appointing a proxy or attorney is taken to confer authority to demand or join in demanding a poll.
9.9 A proxy or attorney appointment received at an electronic address specific in the notice of general meeting for the receipt of proxy or attorney appointments or otherwise received by the company in accordance with the Corporations Act is taken to have been signed or executed if the appointment:
Appointment of Representative
9.10 Subject to this constitution, if a shareholder is a body corporate, it may appoint a natural person as its Representative to exercise on its behalf any or all of the powers it may exercise:
9.11 The appointment of a Representative may be a standing one.
9.12 An appointment of a Representative must be in writing and signed by the body corporate appointing the Representative and state:
9.13 The instrument appointing the Representative may restrict the exercise of any power.
9.14 A member may revoke the appointment of a Representative appointed by it by notice to the Company stating that the appointment of the Representative is revoked or by appointing a new Representative.
Lodgement of proxy, attorney, or Representative appointment
9.15 An instrument appointing a proxy (and any power of attorney under which it is signed, or a certified copy of that power), attorney or a Representative (and any power of attorney under which it is signed or a certified copy of that power) must be received by the Company at least 48 hours before the time of the meeting or adjourned or postponed meeting. If the document is not received on time, the proxy, attorney, or Representative cannot vote at the meeting.
9.16 A document appointing a proxy, attorney or Representative is taken to be received when it is received at any of the following:
9.17 For the purposes of this clause 9, a proxy, attorney or Representative appointment received at an electronic address specified in the notice of meeting for the receipt of proxy, attorney or Representative appointments or otherwise received by the Company in accordance with the Corporations Act is taken to have been signed or executed if the appointment:
9.18 The Company is entitled to clarify with a shareholder any instruction on an instrument appointing a proxy, attorney or Representative which is received by the Company by written or verbal communication. The Company, at its discretion, is entitled to amend the contents of any instrument appointing a proxy, attorney or Representative to reflect any clarification in instruction and the shareholder at that time is taken to have appointed the Company as its attorney for this purpose.
Validity of votes of proxy or attorney
9.19 A vote cast by a proxy, attorney or Representative will be valid unless not less than 48 hours before the start of a general meeting (or, in the case of an adjourned or postponed general meeting, any lesser time that the directors or the chairperson of the meeting decide) at which a proxy, attorney or Representative votes, the Company receives notice of:
No liability
9.20 The Company is not responsible for ensuring:
10 Appointment, Removal and Remuneration of Directors
Minimum and maximum number of directors
10.1 The minimum number of directors (not including alternate directors) is three and the maximum number of directors is ten.
Change to numbers of directors
10.2 Subject to the Corporations Act, the Company may by resolution increase or decrease the minimum and maximum number of directors but the minimum must never be less than three.
Period of office
10.3 Each of the directors will hold office until the director vacates the office or is removed under this constitution.
Election and retirement by rotation
10.4 A director (excluding the managing director) must not hold office (without re-election) past the third annual general meeting following the director's appointment or three years, whichever is later.
10.5 In the event that the Company is required to hold an election of directors under the Corporations Act or Listing Rules and no director is required to submit for election or re-election under clauses 10.4 or 10.13, then the director who has been in office longest since their last election or appointment (excluding the managing director) must retire.
10.6 For the purposes of clause 10.5, if there are two or more directors who were last elected or appointed on the same day, and an agreement cannot be reached between those directors as to who will retire, the director who will retire will be determined by lot.
10.7 A retiring director is eligible for re-appointment.
10.8 If there is more than one managing director, only one of them (as nominated by the other directors) will not be subject to clause 10.4 or 10.5.
10.9 The Company may by resolution at an annual general meeting fill an office vacated by a director under clause 10.4 or clause 10.13 by electing or re-electing an eligible person to that office.
10.10 The retirement of a director from office and the re-election of a director or the election of any new director will not become effective until the end of the meeting at which the retirement and re-election or election occur.
10.11 A director is not required to retire and is not relieved from retiring because of a change in the number or identity of the directors after the date of the notice calling the relevant meeting but before the meeting closes.
10.12 A person is eligible for election to the office of a director at a general meeting only if:
Casual vacancy
10.13 The directors have power at any time to appoint any person to be a director either to fill a casual vacancy or as an addition to the existing directors. The directors must not make an appointment so that the total number of directors at any time exceeds the maximum number fixed in accordance with this constitution. If a person is appointed as a director by the directors, unless the person appointed is the managing director, the Company must confirm the appointment at the next annual general meeting. If the appointment is not confirmed, the person ceases to be a director at the conclusion of the annual general meeting.
10.14 If there is more than one managing director, only one of them is entitled to not have their appointment confirmed under clause 10.13.
Directors' remuneration
10.15 The directors are entitled to receive directors' fees for their services as directors. The Directors as a whole (other than Executive Directors) may be paid or provided remuneration for their services the total amount or value of which must not exceed the maximum amount approved by a resolution of the holders of ordinary shares in accordance with the Listing Rules. Unless otherwise directed by the resolution approving the directors' fees, the sum is to be divided among the directors in such proportions as the directors may resolve from time to time, or failing agreement, equally. If a director holds office for less than the whole of the relevant period in respect of which directors' fees are paid, that director is only entitled to receive directors' fees in proportion to the time during the period for which the director has held office.
10.16 The remuneration of a director must not include a commission on, or percentage of, operating revenue.
10.17 The directors shall also be entitled to be repaid all travelling, hotel and other expenses reasonably incurred by them respectively in connection with the performance of their duties as directors, including their expenses of travelling to and from board meetings, committee meetings or general meetings or otherwise incurred whilst engaged in the business of the Company or in the discharge of their duties as directors.
10.18 The directors may grant special remuneration to any director who performs any special or extra services for or at the request of the Company. Any special remuneration may be made payable to a director in addition to or in substitution for the director's directors' fees.
10.19 A director need not be a shareholder in the Company.
Removal of directors
10.20 The Company may remove a director by resolution at a general meeting.
10.21 Subject to the Corporations Act, at least 2 months' notice must be given to the Company of the intention to move a resolution to remove a director at a general meeting.
10.22 If notice of intention to move a resolution to remove a director at a general meeting is received by the Company, the director must be given a copy of the notice as soon as practicable.
10.23 The director must be informed that the director may:
10.24 In addition to the circumstances in which the office of a director becomes vacant under the Corporations Act and this constitution, a director ceases to hold office immediately upon any of the following happening:
11 Powers and Duties of Directors
General power of management
11.1 The business of the Company is managed by the directors who may pay all expenses incurred in promoting and forming the Company and may exercise all such powers of the Company as are not required to be exercised by the Company in general meeting.
Borrowing powers
11.2 Without limiting clause 11.1, the directors may exercise all the powers of the Company to borrow or otherwise raise money, to charge any property or business of the Company or all or any of its uncalled capital and to issue debentures or give any other security for a debt, liability or obligation of the Company or of any other person.
Negotiable instruments
11.3 The directors may decide how cheques, promissory notes, banker's drafts, bills of exchange or other negotiable instruments must be signed, drawn, accepted, endorsed or otherwise executed, as applicable, on behalf of the Company.
Ancillary Powers
11.4 The directors may:
11.5 A power of attorney may contain such provisions for the protection and convenience of the attorney or persons dealing with the attorney as the directors think fit.
12 Proceedings of Directors
Quorum
12.1 The directors may meet together for the dispatch of business and adjourn and otherwise regulate their meetings as they think fit.
12.2 No business may be transacted at a meeting of the directors unless a quorum of directors is present at the time the business is dealt with. Unless otherwise determined by the directors, two directors is a quorum.
12.3 An alternate director shall be counted for quorum purposes as a separate director unless the alternate is another director. The alternate may only be counted once if the person is an alternate for more than one director.
Convening of meetings
12.4 A director may at any time, and a secretary must at the request of a director, convene a meeting of the directors. Notice of meetings must be given to each director. Notice may be given by telephone, facsimile, electronically or by any other method agreed by the directors.
Decisions of the directors
12.5 Questions arising at any meeting of directors shall be decided by a majority of votes cast by directors present at the meeting and entitled to vote. A determination of a majority of directors is for all purposes taken to be a determination of the directors. If the votes are equal, the chairperson of the meeting will have a second or casting vote.
Written resolutions
12.6 If a document containing a statement that the signatories to it are in favour of an identified resolution is signed or consented to by at least 75% of the directors (or the members of a committee) entitled to vote on the resolution, a resolution in those terms shall be deemed to have been passed at a meeting of the board (or of the committee) held at the time at which the last director required to constitute at least 75% of the directors having signed or consented to the resolution signs or consents to that resolution, provided that the persons signing or consenting to the statement would constitute a quorum at such a meeting. For the purposes of this clause 12.6:
Telephone and electronic meetings
12.7 While the directors may regulate their meetings as they think fit, a meeting of directors or committee of directors may be held by the contemporaneous linking together by telephone or other electronic means of a sufficient number to constitute a quorum, where:
and all the provisions in this constitution relating to meetings of the directors apply, so far as they can and with such changes as are necessary, to meetings of the directors by technology.
Alternate directors
12.8 A director may, with the approval of a majority of the other directors, appoint a person to be the director's alternate director for such period as the director decides.
12.9 An alternate director may, but need not, be a member or a director of the company.
12.10 One person may act as alternate director to more than one director.
12.11 In the absence of the appointor, an alternate director may exercise any powers (except the power to appoint an alternate director) that the appointor may exercise.
12.12 An alternate director is entitled, if the appointor does not attend a meeting of the Board, to attend and vote in place of and on behalf of the appointor.
12.13 An alternate director is entitled to a separate vote for each director the alternate director represents in addition to any vote the alternate director may have as a director in their own right.
12.14 An alternate director, when acting as a director, is responsible to the company for their own acts and defaults and is not to be taken to be the agent of the director by whom he or she was appointed.
12.15 The office of an alternate director is vacated if and when the appointor vacates office as a director.
12.16 The appointment of an alternate director may be terminated or suspended at any time by the appointor or by a majority of the other directors.
12.17 An appointment, or the termination or suspension of an appointment of an alternate director, must be in writing and signed and takes effect only when the company has received notice in writing of the appointment, termination or suspension.
12.18 An alternate director is not to be taken into account in determining the minimum or maximum number of directors allowed or the rotation of directors under this constitution.
12.19 An alternate director is not entitled to receive any remuneration as a director from the company otherwise than out of the remuneration of the director appointing the alternate director but is entitled to travelling, hotel and other expenses reasonably incurred for the purpose of attending any meeting of the Board at which the appointor is not present.
12.20 An alternate director ceases to hold office immediately upon any of the following happening:
Authority to act where vacancy
12.21 If there is a vacancy in the office of a director, the remaining directors may act. If the number of remaining directors is less than the number required to constitute a quorum at a meeting of directors, the directors may, except in the case of an emergency, act only for the purpose of increasing the number of directors to a number sufficient to constitute a quorum or to convene a general meeting of the Company.
Chairperson
12.22 The directors must elect one of their number as chairperson of the board of directors and determine the period of office of the chairperson.
12.23 Where a meeting of the directors is held and:
the directors present may elect one of their number to be chairperson of the meeting.
Committee of directors
12.24 The directors may delegate any of their powers, other than powers required by law to be dealt with by the directors acting as a board, to a committee or committees of directors consisting of at least one director, or any person or persons.
12.25 A committee or person must exercise the powers delegated to it according to any directions of the directors and any power so exercised is deemed to have been exercised by the directors.
12.26 The members of such a committee may elect one of their number as chairperson of their meetings.
12.27 Where a meeting of a committee is held and:
the members present must elect one of their number to be chairperson of the meeting.
12.28 Membership of a committee may, if the directors so resolve, be treated as an extra service or special exertion performed by the directors for the purposes of clause 10.18.
12.29 A committee of the directors may meet and adjourn as it thinks fit.
12.30 A question arising at a meeting of a committee must be determined by a majority of votes of the members present and voting.
No casting vote
12.31 If the votes are equal, the chairperson of a committee shall not have a second or casting vote.
Defects in appointments
12.32 All acts done by any meeting of the directors or of a committee of directors or by any person acting as a director are deemed to be valid as if all persons had been duly appointed and were qualified to be a director or a member of the committee.
12.33 Clause 12.32 operates even if it is afterwards discovered there was some defect in the appointment of a person to be a director or a member of the committee, or to act as a director, or that person so appointed was disqualified or not being entitled to vote.
Director's personal interests
12.34 A director may be employed by, or contract with, the Company and may be employed by any other company in which the Company owns shares or has an interest. A director may be an officer of that other company. However, a director cannot be employed as the Company's or that other company's auditor. A director is not required to account to the Company for any profit or benefit arising from their employment by, or contracting with, the Company or any other such company merely because of the director holding office as a director of the Company or because of the fiduciary obligations arising out of that office.
12.35 The directors may exercise the voting rights conferred by shares in any body corporate held or owned by the Company in such manner as the directors think fit (including voting in favour of any resolution appointing a director as a director or other officer of that body corporate or voting for the payment of remuneration to the directors or other officers of that body corporate) and a director may, if permitted by law, vote in favour of the exercise of those voting rights even though he or she is or may be about to be appointed, a director or other officer of that other body corporate and, as such, interested in the exercise of those voting rights.
12.36 No contract made by a director with the Company, and no contract or arrangement entered into by or on behalf of the Company in which any director may be in any way interested, is avoided or rendered voidable merely because of the director holding office as a director of the Company or because of the fiduciary obligations arising out of that office.
12.37 A director who has a material personal interest in a matter that relates to the affairs of the Company must give the other directors notice of the interest if required to do so under the Corporations Act.
12.38 If there are not enough directors to form a quorum as a result of a director having an interest which disqualifies them from voting then one or more of the directors (including those who have the disqualifying interest in the matter) may call a general meeting of the Company and the general meeting may pass a resolution to deal with the matter.
12.39 A director's failure to make disclosure under clause 12.37 does not render void or voidable a contract or arrangement in which the director has a direct or indirect interest.
12.40 A director is deemed to be not interested in any contract or arrangement where the only personal interest of the director arises because the director is also a director of a corporation which is taken to be a related body corporate of the Company.
12.41 A director is not taken to be interested in any contract or proposed contract relating to any loan to the Company by reason only that the director has guaranteed or proposed to guarantee jointly or severally the repayment of the loan.
12.42 If, because a director is a member of a partnership, or a director or shareholder of another company, or is in a position to control another entity, he or she will be personally interested in any of the Company's contracts or arrangements with that partnership, company or entity, he or she may give the other directors a written notice declaring their relationship to that partnership, company or entity and their consequent interest in all contracts or arrangements with it. The notice is a sufficient declaration of interest in relation to any future contracts or arrangements with that partnership, company or entity.
12.43 If all other directors are aware that a director is a member of a partnership, or a director or shareholder of another company, or is in a position to control another entity, that fact has the same effect as if the director had given the other directors written notice under clause 12.42 at the time all of them as a group first became aware of it.
12.44 For the purposes of clause 12.43, entity includes a trust or other entity whether it is a legal person or not. The following are examples of a director being in a position to control an entity:
Secretary
12.45 The directors must appoint at least one secretary and may appoint additional secretaries. A secretary of the Company holds office on the conditions as to authorities, duties, powers and remuneration, as the directors determine.
Minutes of meetings
12.46 The directors must cause minutes to be made of:
12.47 The directors must cause all minutes, except resolutions in writing, to be signed by the chairperson of the meeting at which the proceedings took place or by the chairperson of the next succeeding meeting.
12.48 Any minutes shall be conclusive evidence of proceedings if they purport to be signed by the chairperson of the meeting at which the proceedings were held or by the chairperson of the next succeeding meeting. Minutes shall be kept by the Company secretary at the registered office of the Company.
12.49 The directors must comply with the provisions of the Corporations Act in regard to keeping a register of shareholders and to the production and furnishing of copies of or extracts from such register.
13 Executive Directors
Appointment
13.1 The directors may appoint one or more directors to be managing director on the terms and for the length of time that they consider appropriate. The directors may give the managing director any of the powers they can exercise. They may also impose any limitations on the exercise of those powers, and may withdraw or alter the powers they have conferred.
13.2 The directors may also appoint one or more directors to any other full-time or substantially full-time executive position in the Company on such terms as they think fit.
Cessation of appointment
13.3 An Executive Director's appointment as a director ends immediately if any of the following happen:
Remuneration
13.4 An Executive Director, subject to any agreement entered into in a particular case, may receive such remuneration as the directors determine.
Powers of managing director
13.5 Any powers of the directors conferred on the managing director may be concurrent with or to the exclusion of the powers of the directors.
14 Records
Records
14.1 The directors must determine whether and on what conditions the accounting records and other documents of the Company or any of them are open to the inspection of shareholders other than directors. A person other than a director does not have the right to inspect any document of the Company except as provided by the Corporations Act or authorised by the directors or by the Company in general meeting.
Keeping records
14.2 The directors must ensure that proper accounting and other records are kept, and all accounts and other documents are distributed in accordance with the requirements of the Corporations Act and the Listing Rules.
15 Auditor
15.1 The Company must appoint and may only remove an auditor in accordance with the Corporations Act.
16 Dividends and Reserves
Determination to pay a dividend
16.1 The directors may pay any dividends that, in their judgment, the financial position of the Company justifies.
16.2 The directors may rescind a decision to pay a dividend, or delay payment of a dividend, if they decide before the payment date, that the Company's financial position no longer justifies the payment or that it is otherwise in the best interests of the company that the dividend decision be rescinded.
16.3 The directors may pay any dividend required to be paid under the terms of issue of a share.
16.4 Payment of a dividend does not require confirmation at a general meeting.
16.5 Subject to any rights or restrictions attached to any shares or class of shares:
16.6 To the extent permitted by law, the directors may resolve to pay a dividend out of any available source.
16.7 Subject to the ASX Settlement Operating Rules, the directors may fix a record date for a dividend.
16.8 Subject to clause 4.12, a transfer of any share that has not been registered or left with the Company for registration on or before the date determined under clause 16.7 is not effective (as against the Company) to pass any right or entitlement in respect of a dividend payable to holders of shares as at that date.
Deduction from dividends of money owing
16.9 The directors may deduct from any dividend payable to a shareholder any sums of money (if any) presently payable by the shareholder to the Company and apply the amount so deducted in or towards satisfaction of the amount owing.
Payment of dividends and other amounts
16.10 A dividend (or other amount) payable to a shareholder may be paid:
16.11 A cheque payable under clause 16.10 may be made payable to bearer or to the order of the shareholder to whom it is sent or another person that the shareholder directs and is sent at the shareholder's risk.
16.12 If:
16.13 The Company does not hold any money in the Company Account as a trustee and no interest will be paid to the shareholder on monies held in the Company Account unless the directors determine otherwise.
16.14 An amount credited to the Company Account is treated as paid to the shareholder at the time it is credited to the Company Account.
16.15 If:
for more than 11 calendar months, the directors may stop the payment. The money may be used for the benefit of the Company until claimed or disposed of in accordance with the laws relating to unclaimed monies.
16.16 If the directors exercise their power to reinvest under clause 16.15 and there are residual amounts remaining, the residual amounts may be retained in the Company Account or donated to a charity on behalf of the shareholder, as the directors decide.
16.17 The Company's liability to pay the relevant dividend amount in respect of a shareholder to which clauses 16.10 to 16.19 apply, is discharged when shares are issued or transferred to that shareholder in accordance with 16.15.
16.18 The directors may do anything necessary or desirable (including executing any document) on behalf of the shareholder to effect the reinvestment under clause 16.15 or donation under clause 16.16.
16.19 The directors may determine other rules to regulate the operation of clauses 16.10 to 16.19 and may delegate their power under this rule to any person.
Transfer of assets
16.20 The directors may direct payment of the dividend wholly or partly by distribution of specific assets (including shares or securities of any body corporate or trust) to some or all of the members. The directors may determine in respect of the payment of any dividend to allow members to elect to receive the amount of the dividend to which that member is entitled in shares instead of in cash.
16.21 To give effect to any direction, the directors may do all things that they consider appropriate including:
Authority to capitalise profits
16.22 Subject to the Corporations Act, this constitution, the Listing Rules and the terms of issue of shares (or classes of shares), the directors may resolve to capitalise any amount:
16.23 If the directors exercise their powers pursuant to clause 16.22, they must not pay the amount in cash, but must use it to benefit those shareholders who are entitled to dividends in the proportions that would apply if the entire amount of the profits to be capitalised were a dividend. The benefit must be given in one (or partly in one and partly in the other) of the following ways:
16.24 The amount capitalised must be applied for the benefit of shareholders in the proportions in which the shareholders would have been entitled to dividends if the amount capitalised had been distributed as a dividend. If fractions of shares or debentures are initially allocated, the directors may, in their discretion:
16.25 To give effect to any resolution to reduce the capital of the Company, to satisfy a dividend as set out in clause 16.20 or to capitalise any amount under clause 16.22 the directors may settle as they think expedient any difficulty that arises in making the distribution or capitalisation and, in particular:
16.26 Any agreement made under an authority referred to in clause 16.25(f) is effective and binds all shareholders concerned.
16.27 If a distribution, transfer or issue of specific assets, shares or securities to a particular shareholder or shareholders is, in the directors' discretion, considered impracticable or would give rise to parcels of securities that do not constitute a marketable parcel, the directors may make a cash payment to those shareholders or allocate the assets, shares or securities to a trustee to be sold on behalf of, and for the benefit of, those shareholders, instead of making the distribution, transfer or issue to those shareholders. Any proceeds receivable by shareholders under this clause 16.27 will be net of expenses incurred by the Company and trustee in selling the relevant assets, shares or securities.
16.28 If the Company distributes to shareholders (either generally or to specific shareholders) securities in the Company or in another body corporate or trust (whether as a dividend or otherwise and whether or not for value), each of those shareholders agrees to become a shareholder or interest holder of that body corporate or trust and appoints the Company and each director as their agent to do anything needed to give effect to that distribution.
Reserves
16.29 Before determining that a dividend be paid, the directors may set aside out of the Company's profit any amount that they consider appropriate. This amount does not need to be kept separate from the Company's other assets and may be used in any way that profits can be used and can be invested or used in the Company's business in the interim. However, it must not be used to buy the Company's shares.
16.30 The directors may appropriate to the profits of the Company any amount previously set aside as a reserve or provision.
16.31 The directors may carry forward any part of the profits remaining that they consider should not be distributed as dividends or capitalised, without transferring those profits to a reserve or provision.
Dividend reinvestment plans
16.32 The directors may implement a dividend reinvestment plan on the terms they think fit under which the whole or any part of a dividend due to shareholders who participate in the plan on their shares or any class of shares may be applied in subscribing for securities of the Company or of another body corporate or trust.
16.33 The directors may amend, suspend or terminate a dividend reinvestment plan implemented by them.
Dividend selection plan
16.34 The directors may implement a dividend selection plan on the terms they think fit under which participants may elect in respect of all, or part, of their shareholdings:
16.35 The directors may amend, suspend or terminate any dividend selection plan implemented by them.
Bonus share plan
16.36 The directors may:
17 Winding Up
Division of property among shareholders
17.1 If the Company is wound up, the liquidator may, with the sanction of a special resolution, divide among the shareholders in kind the whole or any part of the property of the Company. For this purpose the liquidator may set such value as the liquidator considers fair on any property to be so divided and may determine how the division is to be carried out as between the shareholders or different classes of shareholders. A division under this clause 17.1 need not accord with the legal rights of the shareholders and, in particular, any class may be given preferential or special rights or may be excluded altogether or in part.
17.2 Where a division under clause 17.1 does not accord with the legal rights of the shareholders, a shareholder is entitled to dissent and to exercise the same rights as if the special resolution sanctioning that division were a special resolution passed under section 507 of the Corporations Act.
17.3 If any of the property to be divided under clause 17.1 includes shares with a liability to calls, any person entitled under the division to any of the shares may, within 10 days after the passing of the special resolution referred to in that clause, by written notice direct the liquidator to sell the person's proportion of the shares and to account for the net proceeds. The liquidator must, if practicable, act accordingly.
17.4 Nothing in clauses 17.1 to 17.5 takes away from or affects any right to exercise any statutory or other power which would have existed if these clauses were omitted.
17.5 Clause 16.25 applies, so far as it can and with any necessary changes, to a division by a liquidator under clause 17.1 as if references in clause 16.25 to the directors and to a distribution or capitalisation were respectively references to the liquidator and to the division under clause 17.1.
Vesting property on trustees
17.6 The liquidator may, with the sanction of a special resolution, vest the whole or any part of any property in trustees on such trusts for the benefit of contributories as the liquidator thinks fit, but so that no shareholder is compelled to accept any shares or other shares in respect of which there is any liability.
18 Proportional Takeover Bid
18.1 Registration of a transfer giving effect to a contract resulting from the acceptance of an offer made under a proportional takeover bid is prohibited unless and until an Approving Resolution approving the proportional takeover bid is passed or taken to have been passed in accordance with this clause 18.
18.2 A person (other than the bidder or an associate of the bidder) who, as at the end of the day on which the first offer under the proportional takeover bid was made, held bid class shares is entitled to:
18.3 Where offers have been made under a proportional takeover bid, the directors must ensure that an Approving Resolution is voted on at a meeting of the persons described in clause 18.2 before the Approving Resolution Deadline.
18.4 An Approving Resolution is passed if more than 50% of the votes cast on the resolution are cast in favour of the resolution and otherwise is taken to have been rejected.
18.5 The provisions of this constitution that apply to a general meeting of the Company apply, with such modifications as the circumstances require, to a meeting that is called under this clause 18 as if the meeting was a general meeting of the Company.
18.6 If an Approving Resolution to approve the proportional takeover bid is voted on in accordance with this clause 18 before the Approving Resolution Deadline, the Company must, on or before the Approving Resolution Deadline, give the bidder and ASX a written notice stating that an Approving Resolution to approve the proportional takeover bid has been voted on and whether it was passed or rejected.
18.7 If no resolution has been voted on in accordance with this clause 18 as at the end of the day before the Approving Resolution Deadline, a resolution to approve the proportional takeover bid is taken, for the purposes of this clause 18, to have been passed in accordance with this clause 18.
18.8 Under the Corporations Act, this clause 18 will automatically cease to have effect on the third anniversary of the date of its adoption or as of its most recent renewal.
18.9 In this clause 18:
Approving Resolution means an ordinary resolution passed by shareholders approving the transfer giving effect to contracts resulting from the acceptance of an offer made under a proportional takeover; and
Approving Resolution Deadline in relation to a proportional takeover bid means the day that is the 14th day before the last day of the bid period.
19 Notices
Extended meaning
19.1 In this clause 19, 'notice' includes documents and other communication, and in this constitution, a reference to a written notice includes a notice given by fax or other electronic means. A signature to a written notice need not be handwritten.
Method
19.2 Without limiting any other way in which notice may be given to a shareholder under this constitution, the Corporations Act or the Listing Rules, a notice may be given by the Company to any shareholder either by:
Deemed receipt
19.3 Where a notice is sent by post, service of the notice is deemed to be given at 10:00am on the day after the date it is posted.
19.4 Notices sent by facsimile or other electronic means are taken to be given at the time it is sent, provided in the case of facsimile, the correct facsimile number appears on the facsimile transmission report produced by the sender's facsimile machine.
19.5 A notice (including a notice of meeting given to a shareholder under section 249J(3)(c) of the Corporations Act (electronic access)) sent to a shareholder by any other means permitted by the Corporations Act relating to the giving of notices and electronic means of access to them is taken to be given on the Business Day after the day on which the shareholder is notified that the notice is available.
19.6 Where a shareholder does not have a registered address or where the Company believes that shareholder is not known at the shareholder's registered address, all notices are taken to be:
Evidence of service
19.7 A certificate in writing signed by a director or a secretary of the Company stating that a notice was sent to a shareholder by post, fax or electronic transmission on a particular date is conclusive evidence that the notice, document or other communication was sent on that date.
Notice to joint holders
19.8 A notice may be given by the Company to the joint holders of a share by giving the notice to the joint holder first named in the register of shareholders in respect of the share.
Notice in case of death or bankruptcy
19.9 A notice may be given by the Company to a person entitled to a share in consequence of the death or bankruptcy of a shareholder by serving it on the person personally or by sending it to the person by post. A notice sent by post must be addressed by name, or by the title of representative of the deceased or assignee of the bankrupt, or by any like description, at the address (if any) supplied for the purpose by the person or, if such an address has not been supplied, at the address to which the notice might have been sent if the death or bankruptcy had not occurred.
Persons entitled to notice
19.10 Notice of every general meeting must be given in the manner authorised by this constitution to:
19.11 No other person is entitled to receive a notice of general meeting.
Persons entitled to shares
19.12 A person who by operation of law, transfer or other means becomes entitled to any share is bound by every notice given in accordance with this clause 19 to the person from whom that person derives title prior to registration of that person in the register.
20 Indemnity
20.1 To the extent permitted by law and subject to the restrictions in the Corporations Act, the Company must indemnify every person who is or has been an officer of the Company or a subsidiary of the Company (where the Company requested the officer to accept that appointment) against liability (including liability for costs and expenses) incurred by that person as an officer of the Company or subsidiary as the case may be. However, this does not apply in respect of any of the following:
20.2 Without limiting clause 20.1, to the extent permitted by law and subject to the restrictions in the Corporations Act, the Company must indemnify and continually indemnify every person who is or has been an officer of the Company or a subsidiary of the Company (where the Company requested the officer to accept that appointment) against reasonable legal costs incurred in defending an action for a liability incurred or allegedly incurred by that person as an officer of the Company or subsidiary as the case may be.
20.3 The amount of any indemnity payable under clauses 20.1 and 20.2 will include an additional amount (GST Amount) equal to any GST payable by the officer being indemnified (Indemnified Officer) in connection with the indemnity (less the amount of any input tax credit claimable by the Indemnified Officer in connection with the indemnity). Payment of any indemnity which includes a GST Amount is conditional upon the Indemnified Officer providing the Company with a GST tax invoice for the GST Amount.
20.4 The directors may agree to advance to an officer an amount which it might otherwise be liable to pay to the officer under clause 20.1 on such terms as the directors think fit but which are consistent with this clause, pending the outcome of any findings of a relevant court or tribunal which would have a bearing on whether the Company is in fact liable to indemnify the officer under clause 20.1. If after the Company makes the advance, the directors form the view that the Company is not liable to indemnify the officer, the Company may recover any advance from the officer as a debt due by the officer to the Company.
Former officers
20.5 Each of the indemnities in this clause 20 are continuing indemnities which apply in respect of all acts done by a person while an officer of the Company or one of its subsidiaries even though the person is not an officer at the time the claim is made.
Insurance premiums
20.6 The Company may pay the premium on a policy of insurance in respect of a person who is or has been an officer of the Company (where the Company requested the officer to accept that appointment), to the full extent permitted by the Corporations Act.
21 Security Interests
21.1 If any provision of this constitution creates a security interest in shares or other personal property (Collateral) to which the PPSA applies:
21.2 The Company need not give the shareholder any other notice required under the PPSA (including a notice of verification statements under section 157 of the PPSA) unless the notice cannot be excluded.
22 Seals
Adoption of Common Seal
22.1 The directors may provide for the Company to have a seal or for the Company to no longer have a common seal.
22.2 Clauses 22.3 to 22.10 only apply if the Company has a common seal.
Use of Seal
22.3 The Seal must be used only by the authority of the directors or a committee of the directors authorised by the directors to authorise the use of the Seal.
22.4 The authority to use the Seal may be given before or after the Seal is used.
22.5 Subject to clauses 22.4 and 22.10, until the directors otherwise determine, the fixing of the Seal to a document must be witnessed by a director and by another director, a secretary or another person appointed by the directors to witness that document or a class of documents in which that document is included.
Duplicate seal
22.6 The Company may have for use in place of its common seal outside the state or territory where its common seal is kept one or more duplicate seals, each of which must be a facsimile of the common seal of the Company with the addition on its face of the words "duplicate seal" and the name of the place where it is to be used.
22.7 A document sealed with a duplicate seal is to be taken as having been sealed with the common seal of the Company.
Share seal or certificate seal
22.8 The Company may have for use on certificates for securities of the Company in place of its common seal one or more duplicate seals, each of which must be a facsimile of the common seal of the Company with the addition on its face of the words "share seal" or "certificate seal".
22.9 A certificate for securities of the Company sealed with a share seal or certificate seal or in the manner contemplated in clause 22.10 is to be taken as having been sealed with the common seal of the Company.
Sealing and signing of certificates
22.10 The directors may determine either generally or in a particular case that the seal and the signature of any director, secretary or other person is to be printed on or affixed to any certificates for securities in the Company by some mechanical or other means.