Amended Constitution
18/05/2022 11:08
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RNS Number : 9532L PYX Resources Limited 18 May 2022
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THIS ANNOUNCEMENT IS NOT BEING MADE, AND HAS NOT BEEN APPROVED, BY AN
AUTHORISED PERSON FOR THE PURPOSES OF SECTION 21 OF THE UK FINANCIAL SERVICES
AND MARKETS ACT 2000.
PYX Resources Limited / EPIC: PYX / Market: Standard / Sector: Mining
18 May 2022
PYX Resources Ltd
("PYX" or the ("Company")
Amended Constitution
PYX Resources Ltd (NSX: PYX | LSE: PYX) hereby advises that amendments to the
Company's Constitution were approved at PYX's Annual General Meeting held
today, 18 May 2022.
The amended constitution is attached to this announcement.
*** ENDS ***
For more information:
PYX Resources Limited T: +852 3519 2860
Oliver B. Hasler, Chairman and Chief Executive Officer E: ir@pyxresources.com
VSA Capital Limited (Financial Adviser and Broker) T: +44 (0)20 3005 5000
Andrew Raca (Corporate Finance)
Andrew Monk / David Scriven (Corporate Broking)
St Brides Partners Ltd (Financial PR) E: pyx@stbridespartners.co.uk
Ana Ribeiro / Isabel de Salis / Oonagh Reidy / Isabelle Morris
1. Replaceable
Rules..............................................................................................................
1
2.
Interpretation......................................................................................................................
1
3. Registered
Office...............................................................................................................
5
4. Issue of
Shares..................................................................................................................
5
5. Preference
Shares..............................................................................................................
5
6. Convertible
Securities.........................................................................................................
6
7. Participation of Directors in Share
issue..............................................................................
6
8. Acceptance of Constitution by
Member...............................................................................
6
9.
CHESS..............................................................................................................................
6
10. Variation of
rights...............................................................................................................
7
11. Shares held on
trust............................................................................................................
7
12. Shareholding statements and
certificates.............................................................................
8
13. Lien on
Share.....................................................................................................................
9
14. Sale of Shares subject to
lien..............................................................................................
9
15. Calls on
Shares................................................................................................................
10
16. Forfeiture of
Shares..........................................................................................................
12
17. Transfer of
Shares............................................................................................................
13
18. Transmission of
Shares.....................................................................................................
16
19. Register of
Members........................................................................................................
17
20. Alteration of
Capital..........................................................................................................
17
21. Reduction of
Capital.........................................................................................................
17
22.
Meetings..........................................................................................................................
18
23. Quorum at
Meetings..........................................................................................................
18
24. Use of technology at
Meetings..........................................................................................
19
25. Chairman at
Meetings........................................................................................................
20
26. Conduct of general
Meetings.............................................................................................
20
27. Adjournments and postponement of
Meetings................................................................... 21
28. Voting rights of
Members..................................................................................................
21
29.
Poll..................................................................................................................................
22
30. Casting
vote.....................................................................................................................
23
31.
Proxies............................................................................................................................
23
32. Powers of
attorney...........................................................................................................
25
33. Appointing instrument to be deposited with
Company........................................................ 26
34. Revocation and invalidity of
instruments............................................................................
26
35. Number of
Directors.........................................................................................................
27
36. Qualification of Directors, Alternate Directors and
Associate Directors................................ 27
37. Vacation of office of
Director............................................................................................
27
38. Appointment and removal of
Directors...............................................................................
28
39. Offices of profit in
Company.............................................................................................
28
40. Term of office of
Directors................................................................................................
29
41. Remuneration of
Directors.................................................................................................
30
42. Directorships in other
companies.......................................................................................
31
43. Alternate
Directors............................................................................................................
31
44. Associate
Directors..........................................................................................................
32
45. Managing
Director............................................................................................................
33
46. Directors'
Meetings...........................................................................................................
34
47. Defective appointment of
Directors...................................................................................
35
48. Delegation to committees of
Directors...............................................................................
35
49. Minutes of
Meetings.........................................................................................................
36
50. General powers of
Directors..............................................................................................
36
51. Borrowing powers of
Directors..........................................................................................
36
52. Interested
Directors...........................................................................................................
37
53. Directors' material personal
interests..................................................................................
38
54. Directors' financial
benefits...............................................................................................
38
55. Local
management............................................................................................................
38
56. Attorneys for
Company.....................................................................................................
39
57. Execution of documentation by
Company..........................................................................
39
58. Bills of
Exchange.............................................................................................................
40
59.
Secretary..........................................................................................................................
40
60. Public
officer....................................................................................................................
40
61.
Reserves..........................................................................................................................
40
62.
Dividends.........................................................................................................................
41
63. Election to forego cash
Dividends.....................................................................................
43
64. Dividends in
specie..........................................................................................................
43
65. Employee bonuses and employee
scheme........................................................................
44
66. Capitalisation of
profits.....................................................................................................
44
67.
Accounts..........................................................................................................................
45
68. Directors'
report................................................................................................................
45
69. Distribution of
accounts....................................................................................................
45
70. Inspection of books of
account.........................................................................................
46
71. Accounts
conclusive.........................................................................................................
47
72.
Audit................................................................................................................................
47
73. Buy-back
arrangements.....................................................................................................
47
74. Sale of less than minimum
holding....................................................................................
47
75. Fractional entitlements and
difficulties...............................................................................
50
76. Takeover approval
provisions............................................................................................
50
77. Notice to
holders..............................................................................................................
51
78. Confidential
information....................................................................................................
52
79.
Notices............................................................................................................................
53
80. Overseas
Shareholders.....................................................................................................
55
81. Indemnity and liability of directors and other
officers.......................................................... 55
82. Restricted
Securities.........................................................................................................
55
83. Winding
up.......................................................................................................................
56
84. Supply of documentation to
Exchange..............................................................................
57
85. Sale of main
undertaking...................................................................................................
57
86. Listing and ASTC Settlement
Rules....................................................................................
57
87. Foreign
listing...................................................................................................................
57
Constitution of PYX Resources Limited ACN 073 099 171
1. Replaceable Rules
The provisions of the Corporations Act relating to a company's internal
management which are described as replaceable rules do not apply to the
Company.
2. Interpretation
2.1 In this Constitution, unless a contrary intention appears:
ASIC means the Australian Securities and Investments Commission.
ASTC - Regulated Transfer has the meaning given in section 9 of the
Corporations Act.
ASTC Settlement Rules means the settlement rules of the SCH.
ASX means the Australian Securities Exchange, administered by ASX Limited.
Auditor means the auditor of the Company from time to time.
Business Days has the meaning given in the Listing Rules.
Call Notice means a notice given under Rule 16.1.
Capital or Share Capital means the Capital for the time being issued for the
purposes of the Company.
CHESS has the meaning given in the ASTC Settlement Rules.
CHESS holding has the meaning given in the ASTC Settlement Rules.
Claim means any threat, claim or proceedings brought or made by a person
against another person relating to or arising from any action, claim, Cost,
demand, Damage, debt, expense, Liability, Loss, cause of action or proceeding
of any kind, howsoever arising.
Company means Pyx Resources Limited ACN 073 099 171.
Constitution means this Constitution as amended or added to from time to time.
Corporate Representative means an individual appointed as a Representative of
a body corporate member of the Company under section 250D of the Corporations
Act.
Corporations Act means the Corporations Act 2001 (Cth).
Corporations Regulations means the Corporations Regulations 2001 (Cth).
Cost includes any cost, charge, expense, outgoing, payment or other
expenditure of any nature whatsoever including all legal fees on a full
indemnity basis, and whether calculated on a time charge basis or otherwise.
Damage includes any award, Cost, damage, expense, injunction, injury,
judgment, liability, loss and order and includes any such damage suffered,
incurred or sustained in connection with any Claim.
Debenture means debenture stock, bonds, notes and other securities and
obligations of a corporation whether constituting a charge on its assets or
not.
Debt Securities includes bonds, unsecured notes, unsecured deposit notes,
mortgage debentures, mortgage debenture stock, Debentures, debenture stock and
convertible unsecured notes as those terms are defined from time to time in
the Listing Rules.
Director means any person acting as a Director, regardless of that person's
title.
Directors or Board means the whole or any number of the Directors of the
Company for the time being assembled at a meeting of Directors, being not less
than a quorum, or such one or more of them as shall have authority to act for
the Company.
Directors' Report means a report referred to in Part 2M.3 of the Corporations
Act.
Dividend includes distribution of profit by way of a bonus issue of Shares.
Equity means the amount by which the Company's assets exceed the Company's
liabilities in accordance with section 254T of the Corporations Act.
Equity Securities means shares (including preference shares), stock, stock
units, units, and rights to or options to subscribe for any of the foregoing.
Exchange means National Stock Exchange of Australia Limited, or if the Company
is Listed on the ASX, the ASX, or any other licenced Securities Exchange
approved by the Board.
Executive Director includes any Director of the Company or of a subsidiary of
the Company who is retained or otherwise acts in an executive capacity.
Financial Report has the meaning given in section 9 of the Corporations Act.
Financial Statements has the meaning given in section 9 of the Corporations
Act.
Home Branch means a branch of the Exchange designated as such by the Exchange
for administrative purposes.
Issuer Sponsored has the meaning given in the ASTC Settlement Rules.
Joint Holders means two or more persons holding any Share in the Capital of
the Company, whatever their interest may be in that Share.
Liabilities means any and all liabilities, debts or obligations, whether
actual or contingent, present or future, qualified or unqualified or incurred
jointly or severally with any other person.
Listed means admitted to the Official List of the Exchange.
Listing Rules or LR means the Listing Rules of the Exchange and any other
rules of the Exchange which are applicable while the Company is admitted to
the Official List of the Exchange, each as amended or replaced from time to
time, except to the extent of any expressed written waiver by the Exchange.
Loss means any and all losses (including loss of profit and loss of expected
profit), claims, actions, liabilities, damages, expenses, diminution in value
or deficiencies of any kind (whether indirect, consequential or otherwise and
whether known or asserted on or before Completion) including all (on a full
indemnity basis) and other expenses reasonably incurred in connection with
investigating or defending any claims or actions and a reference to Losses has
a corresponding meaning.
Managing Director means any person appointed as such under Rule 45 and
includes any Acting Managing Director.
Marketable Parcel means marketable parcel as defined in the Listing Rules.
Meeting means a duly constituted meeting of Members, or a class of Members,
and being either:
(a) an annual general meeting; or
(b) a general meeting.
Member means a person who is registered for the time being as a shareholder or
stockholder in the Register of the Company, including the person's personal
representatives and assigns.
Month means calendar month.
Notice means any notice of a general meeting of Members or class of Members
and any explanatory memorandum or other documents accompanying any such
notice.
Office means the registered office for the time being of the Company.
Officer has the meaning given in section 9 of the Corporations Act.
Official List means the official list of the Exchange.
Ordinary Shares means ordinary Shares in the Capital of the Company.
Paid or Paid up means amounts paid and does not include amounts credited as
paid or paid up.
Prime Rate means, in relation to any interest made payable on any sum under
this Constitution, the rate charged from time to time by the bankers for the
Company on overdraft accounts in excess of $100,000.
Proper ASTC Transfer has the meaning given in regulation 1.0.02 of the
Corporations Regulations.
Register means the Register of Members kept under the Corporations Act or the
Listing Rules and, where appropriate, includes branch registers and
sub-registers.
Related Body Corporate has the meaning given in section 50 of the
Corporations Act.
Restricted Securities has the meaning given in the Listing Rules.
Rule means a provision of this Constitution as amended or added to from time
to time.
SCH Register means the facilities established by the SCH to record holdings of
Securities of the Company in accordance with the ASTC Settlement Rules and
includes both issuer sponsored and broker sponsored facilities.
Secretary means any person appointed to perform the duties of Secretary of the
Company and includes the acting Secretary where appropriate.
Securities has the meaning given in section 9 of the Corporations Act.
Securities Clearing House or SCH means any securities clearing house approved
by the ASIC in Australia.
Securities Exchange means any market licenced to enable the trading of
securities.
Shares means shares in the Capital of the Company and includes stock except
where a distinction between shares and stock is expressed or implied.
State means the State of Western Australia.
Takeover Bid has the meaning given in section 9 of the Corporations Act.
2.2 Terms used in this Constitution and not defined in Rule 2.1
have the meaning given to them in the Corporations Act or the Listing Rules,
as the case may be.
2.3 Unless the contrary intention appears, a reference in this
Constitution to:
(a) a document includes any variation or replacement of it
despite any change in the identity of the parties;
(b) one gender includes the others;
(c) the singular includes the plural and the plural includes the
singular;
(d) a person, partnership, corporation, trust, association,
joint venture, unincorporated body, government body or other entity includes
any other of them;
(e) a clause, subclause or paragraph is to a clause, subclause
or paragraph of this Constitution;
(f) a party to a document includes the party's executors,
administrators, successors, substitutes (including a person who becomes a
party by novation) and permitted assigns;
(g) any statute, ordinance, code or other law includes
regulations and other instruments under any of them and consolidations,
amendments, re-enactments or replacements of any of them;
(h) money is to Australian dollars, unless otherwise stated; and
(i) writing means printing, typewriting and all other means of
representing or reproducing words in visible form, including handwriting.
2.4 Where, by a provision of this Constitution, a document
including a notice is required to be signed, that requirement may be satisfied
in relation to an electronic communication of the document in any manner
permitted by law or by any State or Commonwealth law relating to electronic
transmissions (including electronic signature) or in any other manner approved
by the Directors.
2.5 The words include, including, such as, for example and similar
expressions are not to be construed as words of limitation.
2.6 Where a word or expression is given a particular meaning,
other parts of speech and grammatical forms of that word or expression have a
corresponding meaning.
2.7 Headings, any table of contents or index and references to
provisions of the Listing Rules and the ASTC Settlement Rules are for
convenience only and do not affect the interpretation of this Constitution.
3. Registered Office
The Directors shall determine the place of the Office.
4. Issue of Shares
4.1 Subject to the provisions of this Constitution, all matters
relating to the issue of Shares shall be under the control of the Directors
who may issue, allot or otherwise dispose of the same to such person or
persons on such terms and conditions and with such rights and privileges
attached and at such times as the Directors may think fit.
4.2 Subject to the provisions of this Constitution and any
resolution passed in accordance with Rule 20, the Directors may issue new
Shares with or without any special conditions, preferences or priority either
as to Dividends or Capital or both and with any other special rights or
advantages. In the absence of any special conditions or rights, such new
Shares when issued shall be held on the same conditions as if they had been
Ordinary Shares in the original Capital, and shall be subject to the
provisions of this Constitution that relate to Ordinary Shares in the Company.
4.3 Where the Company is Listed, any allotment of Shares or other
Securities in the Company and dispatch of certificates (or list of allotments
to the Member's uncertificated account, as the case may be) shall take place
in the manner prescribed in the Listing Rules.
4.4 Where the Company is Listed, the Company shall only be
entitled to issue such Securities as permitted under the Listing Rules.
5. Preference Shares
5.1 Subject to the Corporations Act and without prejudice to any
special rights previously conferred on the holders of any existing Shares or
classes of Shares the Directors may issue any Shares:
(a) with a preferential, deferred or qualified right to
Dividends, or in the distribution of assets of the Company, or both;
(b) subject to Rule 5.3, with a special or qualified right of
voting or without a right of voting; or
(c) with any other special privileges or advantages over or
equally with any Shares previously issued or then about to be issued,
subject to any conditions or provisions and on such terms as the Directors
shall determine. Any preference Share may be issued on the terms that it is
or at the option of the Company is liable to be redeemed.
5.2 If a Company has preference Shares on issue, the holders of
the preference Shares shall have the same rights as the holders of Ordinary
Shares to:
(a) receive notices, reports and Financial Statements; and
(b) attend Meetings of the Company.
5.3 Preference shareholders shall have no voting rights at any
Meeting of the Company other than:
(a) during a period when all or part of a Dividend in respect of
the preference Share is in arrears;
(b) on a proposal to reduce the Capital of the Company;
(c) on a resolution to approve the terms of a buy-back
agreement;
(d) on a proposal that affects rights attaching to preference
Shares;
(e) on a proposal to wind up the Company;
(f) on a proposal sanctioning a sale of the undertaking of the
Company; or
(g) during the winding up of the Company.
5.4 Where the Company is Listed, preference shareholders shall be
entitled to a Dividend determined in accordance with the Listing Rules.
5.5 Preference shareholders shall also be entitled to a return of
Capital in preference to the holders of Ordinary Shares in the Company when
the Company is wound up.
6. Convertible Securities
Without prejudice to any of the powers of the Directors conferred by Rule 4,
the Directors may create and issue any Equity Securities or Debt Securities
(Convertible Securities) on the following terms:
(a) they are or may become convertible into Ordinary Shares;
(b) the Directors may issue Ordinary Shares to the holders of
Convertible Securities under the terms of issue; and
(c) such other terms as the Directors may decide.
7. Participation of Directors in Share issue
Where the Company is Listed, a Director of the Company or any person who would
be regarded for the purposes of Division 2 of Part 1.2 of the Corporations
Act as being an associate of any Director may only participate (directly or
indirectly) in an issue by the Company of Securities with rights of conversion
to equity as permitted by the Listing Rules.
8. Acceptance of Constitution by Member
A person who becomes a Member agrees to observe and perform the provisions of
the Constitution and any regulations or by-laws which may be made under the
Constitution.
9. CHESS
9.1 The Board may at any time resolve that the Company will
participate in CHESS.
9.2 This clause 9 will apply if the Company is granted
participation in CHESS.
9.3 The Company must comply with the ASTC Settlement Rules if any
of its securities are CHESS approved securities. In particular the Company
must comply with the requirements of the ASTC Settlement Rules and Listing
Rules regarding the maintenance of registers, the issuing of holding
statements and transfers in relation to its CHESS approved securities.
9.4 If the Company's securities are CHESS approved securities, in
addition to the CHESS subregister, it must provide for an issuer sponsored
subregister, or a certificated subregister, or both (at least if the Company
has Restricted Securities on issue).
9.5 The Company must not in any way prevent, delay or interfere
with the generation or registration of a proper ASTC Settlement transfer or
the registration of a paper-based transfer in registrable form (which
satisfies the requirements of clause 17), except as permitted by the Listing
Rules or ASTC Settlement Rules.
10. Variation of rights
10.1 If at any time the share Capital is divided into different
classes of Shares, preference Capital (other than redeemable preference
Capital) shall not be repaid, and the rights attached to any class of Shares
(unless otherwise provided by the terms of issue of the Shares of that class)
shall not at any time, be varied without:
(a) the consent in writing of the holders of 75% of the issued
Shares of that class; or
(b) the sanction of a special resolution passed at a separate
Meeting of the holders of the Shares of that class (Class Meeting).
10.2 At any Class Meeting:
(a) the quorum shall be persons holding or representing by proxy
25% of the nominal amount of the varied issued Shares of the class;
(b) any holders of Shares of that class present in person or by
proxy at a Class Meeting may demand a poll,
but otherwise the provisions of this Constitution dealing with Meetings shall
apply.
10.3 The rights conferred on the holders of the Shares of any class
issued with preferred or other rights shall not unless expressly provided by
the terms of issue of the Shares of that class, be deemed to be varied by the
creation or issue of further Shares ranking equally with those Shares.
10.4 The issue of Securities ranking in priority to, or any conversion
of existing Securities to Securities ranking equally or in priority to an
existing class of preference Shares shall be deemed a variation of the rights
attached to that existing class of preference Shares.
10.5 The rights conferred on the holders of the Shares of any class
shall be deemed to be varied by any special resolution to alter Rule 9.
11. Shares held on trust
11.1 The Company will recognise the rights of the registered holder of
any Share.
11.2 Even where the Company has notice of equitable, contingent,
future, or partial interest in any Share or unit of a Share (Beneficial
Interest), no person will be recognised by the Company as holding any
Beneficial Interest and the Company will not be bound by or be compelled in
any way to recognise any Beneficial Interest except as required by:
(a) law;
(b) this Constitution;
(c) the ASTC Settlement Rules in the event that the Company is
Listed; or
(d) an order of a court of competent jurisdiction.
12. Shareholding statements and certificates
12.1 Subject to Rules 12.3 and 12.6, the Company will issue to every
person whose name is entered as a Member in the Register either a holding
statement or share certificate (as the case may be) issued in accordance with
the Corporations Act, the Listing Rules and the ASTC Settlement Rules.
12.2 Where a Share or Shares are held jointly by several persons the
Company will only be required to issue one holding statement or certificate,
and delivery of a holding statement or certificate for a Share to one of
several Joint Holders shall be sufficient delivery to all Joint Holders.
12.3 The Company shall renew any share certificate which becomes worn
out, defaced, lost or destroyed at the time and in the manner required by the
provisions of Corporations Act.
12.4 The Company shall:
(a) register all:
(1) proper ASTC Transfers; and
(2) paper-based registrable transfer forms;
(b) split certificates, renunciations and transfer forms;
(c) issue certificates and transmission receipts;
(d) effect conversions between sub-registers;
(e) mark or note transfer forms; and
(f) where the Company is Listed, do those other matters referred
to in Listing Rule 8.14 of the Listing Rules,
without charge, except where the issue of certificates is to replace those
lost or destroyed.
12.5 The Company shall issue within five Business Days a certificate
in replacement of a certificate already issued only if:
(a) the certificate to be replaced is received by the Company
for cancellation and is cancelled; or
(b) subject to Rule 12.3, satisfactory evidence has been
received by the Company that the certificate previously issued has been lost
or destroyed and has not been pledged, sold or otherwise disposed of.
A certificate issued to replace a certificate which has been lost or destroyed
shall be clearly endorsed "issued in lieu of lost or destroyed certificate".
12.6 Despite the provisions of this Rule 12, the Company shall not be
required to issue a certificate for Shares held by a Member and may cancel a
certificate without issuing a replacement certificate where:
(a) this is permitted by the Corporations Act; or
(b) where the Company is Listed this is:
(1) permitted by the Listing Rules; or
(2) permitted by the ASTC Settlement Rules.
12.7 The provisions of the Listing Rules and the ASTC Settlement Rules
shall regulate the manner in which the Company deals with the delivery up and
cancellation of certificates for the purposes of converting the Securities to
an SCH register.
13. Lien on Share
13.1 The Company shall have a first and paramount lien and charge for:
(a) unpaid calls and unpaid instalments (and reasonable interest
and expenses payable) due in respect of the specific Shares registered in the
name of each Member in respect of which such calls or instalments is or are
due and unpaid respectively and on the proceeds of sale of such Shares;
(b) amounts (and corresponding reasonable interest and expenses
payable) owed for acquiring Shares under an employee incentive scheme; and
(c) amounts (and corresponding reasonable interest and expenses
payable) required by law to be Paid that have been Paid in respect of the
Shares of a holder or a deceased former holder,
and the lien shall extend to the Shares and any Dividends from time to time
declared in respect of such Shares.
13.2 The Directors may at any time declare any Share to be wholly or
in part exempt from the provisions of this Rule.
13.3 The Company shall be entitled to take all reasonable steps
considered necessary to protect its rights to any lien or charge created under
this Rule.
13.4 Unless a contrary intention is expressly shown, the registration
of a transfer shall operate as a waiver of the Company's lien (if any) on a
Share, but notwithstanding any such waiver, the transferor shall remain liable
to pay to the Company all money which, at the date of registration of the
transfer, was payable by it to the Company in respect of the Share, but such
liability shall cease on the Company receiving payment of all money
outstanding in respect of the Share.
13.5 Where the Company is Listed, the provisions of Rule 13.1 to
Rule 13.4 inclusive shall apply subject to the provisions of the ASTC
Settlement Rules.
14. Sale of Shares subject to lien
14.1 The Company may sell in such manner as the Directors think fit,
any Shares on which the Company has a lien (Lien Sale), but no sale shall be
made unless:
(a) there is unpaid money in respect of which the lien exists;
(b) a notice in writing stating and demanding payment of such
money has been given to the registered holder for the time being of the Shares
or the person entitled to the Shares by reason of the Member's death or
bankruptcy; and
(c) a period of 14 days has elapsed since the giving of the
notice.
14.2 The following shall apply to a Lien Sale:
(a) to give effect to any such sale the Directors may authorise
any person to effect a transfer of the Shares sold to the relevant purchaser;
(b) the purchaser shall be registered as the holder of the
Shares comprised in any such transfer, and it shall not be bound to see to the
application of the purchase money, nor shall a purchaser's title to the Shares
be affected by any irregularity or invalidity in the proceedings in reference
to the sale; and
(c) the purchaser shall be deemed to hold the Share free from
all calls, instalments, interest and expenses due prior to such purchase.
14.3 Unless the Directors do not require production of a certificate
to effect the transfer, the holder of the certificate of any Share sold under
this Rule shall be bound to deliver the certificate to the Directors and if it
fails to do so the Company may, without prejudice to any of the Company's
rights against such holder, cancel the share certificate.
14.4 The proceeds of the Shares sold shall be received by the Company
and applied to the payment of all Share sale expenses and in payment of any
outstanding lien. Any residue shall be paid to the person entitled to the
Shares at the date of the sale unless another lien on the Shares has arisen in
respect of sums which were not presently payable before the sale.
15. Calls on Shares
15.1 The Directors may at any time after allotment, make calls on the
Members in respect of any money which remains unpaid on their Shares except
where the conditions of allotment in respect of the Shares made payments
payable at fixed times.
15.2 Directors may require a call to be paid in instalments.
15.3 The Directors may, on the issue of Shares, differentiate between
the holders as to the amount of calls to be paid and the times of payment.
15.4 Where the Company is Listed, the Company shall immediately notify
the Exchange of any call to be made in respect of Shares.
15.5 A Member shall pay the amount of any call made on it to the
persons and at the times and places nominated by the Directors.
15.6 Each Member on whom a call is to be made shall be given such
prior notice prescribed under the Listing Rules before the due date for
payment and such notice shall state:
(a) the name of the shareholder;
(b) the number of Shares held by the shareholder;
(c) the amount of the call;
(d) the due date for payment;
(e) the consequences of non-payment of the call;
(f) the last day for trading of the Shares on which the call is
to be made (which shall be the business day prior to the due date for
payment);
(g) the last day for acceptance at the office of the Register of
lodgements of transfers of the Shares on which the call is to be made (which
shall be no earlier than that number of Business Days prior to the due date
for payment as specified in the Listing Rules);
(h) the latest available market sale price on the Exchange of
the Shares on which the call is being made before the date of issue of the
call notice; and
(i) where the Company is Listed:
(1) the highest and lowest sale price on the Exchange of the
Shares on which the call is being made during the three Months immediately
preceding the date of issue of the call notice and the respective dates of
those sales;
(2) the latest available market sale price on the Exchange of
the Shares on which the call is being made immediately before the announcement
to the Exchange that it is intended to make a call; and
(3) where the Company has quoted Shares that are (or would be if
fully Paid) in the same class as the Shares on which the call is being made,
the information required by Rules 15.6(h), 15.6(i)(1) and 15.6(i)(2) if the
Shares the subject of the call were fully Paid.
15.7 Where the Company is Listed, Rule 15.6 shall apply subject to
the Listing Rules and the ASTC Settlement Rules.
15.8 Notwithstanding anything contained in Rule 15.6, the Directors
may by notice in writing to the Members revoke the call at any time before the
date nominated for payment of the call.
15.9 A call shall be deemed to have been made at the time when a
resolution of the Directors authorising the call was passed.
15.10 The Joint Holders of a Share shall be jointly and severally liable
to pay all instalments and calls in respect of such Share, and such several
liability shall be enforceable against the estate of any deceased Joint
Holder.
15.11 If a sum called in respect of a Share is not Paid before or on the
day appointed for payment, the person from whom the sum is due shall pay
interest on the sum from the day appointed for payment to the time of actual
payment at the rate of 1% per annum in excess of the Prime Rate but the
Directors shall have the discretion to waive payment of that interest wholly
or in part, or may accept payment of the same by instalments.
15.12 In any action by the Company against any Member for the recovery of
any money payable on any allotment of Shares or due under any call or
instalment or in respect of any Share it shall be sufficient to prove that:
(a) the name of the Member sued is entered in the Register as
the holder or one of the holders of the Shares in respect of which the debt
accrued;
(b) that the resolution making the allotment or call is duly
recorded in the minute book; and
(c) that the notice of such allotment or call was duly given to
such Member,
and the proof of these matters shall be conclusive evidence of the debt and it
shall not be necessary to prove the appointment of the Directors who made the
allotment or call or that a quorum was present at the meeting of Directors at
which the allotment or call was made, or any other matter.
15.13 Any sum which by the terms of issue of a Share becomes payable on
allotment or at any fixed date shall for the purposes of this Constitution be
deemed to be a call duly made and payable on the date on which by the terms of
issue the same becomes payable and if not Paid all the relevant provisions of
this Constitution as to payment of interest and expenses, forfeiture, lien or
otherwise shall apply as if the sum had become payable by virtue of a duly
notified call.
15.14 The Directors may if they think fit receive from any Member willing
to advance the same all or any part of the money uncalled and unpaid on any
Shares held by the Member. The Directors may pay interest on all or any part
of the money so advanced until the same would but for the advance become
payable. Interest shall be paid at such rate as the Directors and the Member
making the advance shall agree. The Company is under no obligation to repay
the same but the Directors may repay the whole or any part of such money on
giving the Member at least one Month's notice. Amounts paid on Shares and
advanced calls shall not confer the right to participate in Dividends.
16. Forfeiture of Shares
16.1 If a Member fails to pay any call or instalment of a call on the
day appointed for payment, the Directors may, at any time after the day
appointed for payment, during such time as any part of the call or instalment
remains unpaid, serve a Call Notice on the Member requiring payment of so much
of the call or instalment as is unpaid, together with any interest which may
have accrued and all expenses that may have been incurred by the Company by
reason of such non-payment.
16.2 The Call Notice shall:
(a) name a further day (not earlier than the expiration of
14 days or ten Business Days, whichever period shall be the greater, from
the date of the Call Notice) on or before which the payment required by the
Call Notice is to be made; and
(b) state that, in the event of non-payment at or before the
time appointed (Relevant Day), the Shares in respect of which the call is made
or the instalment is payable will be liable to be forfeited.
16.3 If the requirements of any such Call Notice are not complied with
by the Relevant Day, any Share in respect of which the Call Notice has been
given may at any time after the Relevant Day, before the payment required by
the notice has been made (together with all Dividends declared in respect of
the forfeited Shares and unpaid), be forfeited by a resolution of the
Directors to that effect.
16.4 When any Share is so forfeited, notice of the forfeiture shall be
given to the Member in whose name it stood immediately prior to the forfeiture
and an entry of forfeiture with the date that the Share was forfeited shall be
entered in the Register.
16.5 Any Shares forfeited in accordance with the terms of this Rule
shall be re-issued, sold or otherwise disposed of in accordance with the
provisions of the Corporations Act and, in the event the Company is Listed, in
accordance with the provisions of the Listing Rules.
16.6 A person whose Shares have been forfeited shall cease to be a
Member in respect of the forfeited Shares, but shall remain liable to pay and
shall pay to the Company all money which, at the date of forfeiture, was
payable by that person to the Company in respect of the Shares (together with
interest at the rate of 1% per annum in excess of the Prime Rate from the date
of forfeiture on the money for the time being unpaid if the Directors think
fit to enforce payment of such interest), but this liability shall cease if
and when the Company receives payment in full of all such money in respect of
the Shares.
16.7 In the event of any Share being forfeited and sold the residue of
the proceeds of such sale after the satisfaction of the money due and unpaid
in respect of such Share and accrued interest and expenses incurred by the
Company in relation to the forfeiture shall be held in trust until paid to the
Member in whose name such Share stood immediately prior to the forfeiture or
to the executors administrators or assigns of the Member, or as the Member
directs. The Company shall make such payment of the residue of the sale
proceeds within five Business Days of the receipt of the relevant share
certificate.
16.8 The Directors may at any time before any forfeited Share is sold
or otherwise disposed of with the consent of the Member in whose name the
Share stood immediately prior to the forfeiture annul the forfeiture on such
terms and conditions as they shall think fit.
16.9 A statutory declaration in writing that:
(a) the declarant is a Director or the Secretary of the Company;
(b) the call or instalment Paid in respect of any Share was made
or was due;
(c) the Call Notice was duly served;
(d) default in payment of the call or instalment was made; and
(e) a Share in the Company has been duly forfeited by a
resolution of the Directors to that effect on a date stated in the
declaration,
shall be conclusive evidence of the facts stated in the declaration as against
all persons claiming to be entitled to the Share and of the title of the
Company to dispose of the Share.
16.10 The Directors may accept a surrender of any Share by way of
compromise of any question as to the holder being properly registered in
respect of the Share. Any Shares so surrendered may be disposed of in the
same manner as forfeited Shares.
16.11 The Company may receive the consideration, if any, given for a
forfeited Share or a surrendered Share on any sale or disposition and the
Directors may authorise any person to transfer the Share to the person to whom
the Share is sold or disposed of and that person shall then be registered as
the holder of the Share, and shall not be bound to see to the application of
the purchase money, if any, nor will title to the Share be affected by any
irregularity or invalidity in the proceedings in reference to the forfeiture,
sale, surrender or disposal of the Share. The remedy of any person aggrieved
by any such sale or disposal shall lie in damages only against the Company.
16.12 To the extent that it may be necessary, the Directors are authorised
to do all acts and to take all reasonable steps to effect the sale of any
Shares the subject of this Rule 16 subject to, in the event that the Company
is Listed, the requirements of the Listing Rules or the ASTC Settlement Rules.
17. Transfer of Shares
17.1 The Company may participate in any computerised or electronic
system for market settlement, securities transfer and registration conducted
in accordance with the Corporations Act, the Listing Rules and the ASTC
Settlement Rules.
17.2 If the Company participates in a system of the kind referred to
in Rule 17.1, then notwithstanding any other provision of this Constitution,
the Company shall comply with and give effect to the ASTC Settlement Rules.
17.3 Subject to the provisions of this Rule and the Corporations Act,
Securities in the Company may be transferred as follows:
(a) In the case of an ASTC - Regulated Transfer, in any manner
required or permitted by the Listing Rules or the ASTC Settlement Rules; and
(b) in other cases, in the following form, or in common form (or
in any form approved or adopted by the Exchange, or in any form approved by
the Directors) or as near to the form as circumstances will permit:
Pyx Resources Limited ACN 073 099 171
I,
of
in consideration of the sum of
paid to me
by
(Purchaser)
of
transfer to the Purchaser the ………………………… shares numbered
……………….. to ……………………..inclusive standing in my
name in the Register of Members to hold the same unto the Purchaser absolutely
subject to the conditions on which I held the same immediately before the
execution of this form. And I, the Purchaser, agree to take the said shares
subject to such conditions.
Signed the day
of
(Signatures of transferor and transferee)
17.4 In the case of all non-ASTC - Regulated Transfers, the following
provisions shall apply:
(a) when a Share to be transferred is not distinguished by a
separate number, the instrument of transfer shall specify the total number of
Shares to be transferred and when a Share to be transferred is distinguished
by a separate number, the instrument of transfer shall, in addition to
specifying the total number of Shares to be transferred, specify the
distinguishing number or numbers of the Shares being transferred;
(b) the transferor shall be deemed to remain the holder of such
Share until the name of the transferee is entered in the Register in respect;
(c) no fee shall be charged by the Company for the registration
of a transfer of a Share;
(d) every instrument of transfer shall be left at the Office for
registration accompanied by the following:
(1) the certificate of the Share to be transferred;
(2) such other evidence to be transferred and such other
evidence as the Directors may reasonably require to prove the title of the
transferor or his right to transfer the Share, the due execution of the
transfer and the due compliance with the requirements of any law;
(e) despite Rule 17.4(d), if, in accordance with the
Corporations Act:
(1) a certificate covering Shares to be transferred has not been
issued by the Company; and
(2) the instrument of transfer covering such Share is not
required to be accompanied by a certificate,
the instrument of transfer left at the Office for registration need not be
accompanied by such a certificate;
(f) if transfer or stamp duty is payable on the transfer of
Shares, every instrument of transfer shall be presented to the Company duly
stamped, or certified in accordance with the provisions of Part 7.11
Division 2 of the Corporations Act that stamp duty has been or will be
paid. The Directors may require production of evidence that the provisions
of any other Commonwealth or State statute imposing a tax or duty on the
transfer have been complied with;
(g) the instrument of transfer, when registered, shall be
retained by the Company for such period as may be required by law, after which
it may be destroyed at any time. Any instrument of transfer which the
Directors shall decline to register shall be returned to the person lodging
it, except in the case of fraud;
(h) the Company shall dispatch within three Business Days or
(in the event that the Company is Listed), such other time as provided by the
Listing Rules, after the day of lodgement of a registrable transfer of
Securities of the Company a certificate in respect of such Securities and a
balance certificate for any remainder. Where a marking is made against a
certificate, the Company, in the absence of instructions to the contrary,
shall dispatch to the seller of those Securities or if so instructed, to the
lodging broker within three Business Days or (in the event that the Company is
Listed) such other time as laid down by the Listing Rules, from the date of
the last marking, a balance certificate for the number of Securities against
which no marking has been made;
(i) where an instrument of transfer of Shares is signed by a
Member or his attorney, and the Member was of unsound mind at the time the
Member executed the transfer or the power of attorney under which such
transfer was signed, or subsequently became of unsound mind, the Company shall
be under no liability for registering as a Member of the transferee of such
Shares if the Company had no notice of such unsoundness of mind at the time of
the registration of the transfer.
17.5 Except as required by law and subject to Rules 17.6 and 82.1,
the Company shall not refuse to register or fail to register or give effect to
any transfer of Shares in registrable form lodged with the Company.
17.6 Where the Company is listed it shall not refuse, prevent, delay
or in any way interfere with the registration of a Proper ASTC Transfer or
seek to apply a holding lock to prevent a Proper ASTC Transfer unless
permitted to do so by the Listing Rules or the ASTC Settlement Rules, as the
case may be.
17.7 If, when permitted to do so, the Directors refuse to register a
transfer of Shares or apply a holding lock, the Company shall give to the
lodging party written notice of the refusal and the precise reasons for such
action within five Business Days after the date on which the transfer was
lodged with the Company.
18. Transmission of Shares
18.1 In the case of the death of a Member, the survivor or survivors
where the deceased was a Joint Holder and the legal personal representatives
of the deceased where the Member was a sole holder, shall be the only persons
recognised by the Company as having any title to the Member's interest in the
Shares but nothing in these Rules shall release the estate of a deceased Joint
Holder from any liability in respect of any Share which had been jointly held
by the Member with other persons.
18.2 Any person becoming entitled to a Share in consequence of the
death or bankruptcy or liquidation of a Member may, on such evidence being
produced as may from time to time properly be required by the Directors and
subject to these Rules, elect either:
(a) to be registered as holder of the Share; or
(b) subject to the provisions of this Constitution, the Listing
Rules and the ASTC Settlement Rules (in the event that the Company is Listed
as the case may be) with respect to the transfer of Shares, effect a transfer
of the Shares,
but the Directors shall, in either case, have the same right to decline or
suspend registration as they would have had in the case of a transfer of the
Share by that Member before the death, bankruptcy or liquidation of the
Member.
18.3 Any person lawfully administering the estate of a Member under
the provisions of any law relating to mental health or any law relating to the
administration of estates of patients or infirm persons shall, subject to the
provisions set out in Rule 18.2, have the same rights as are set out in
Rule 18.2.
18.4 If, under Rule 18.2 or Rule 18.3, a person elects to be
registered as the holder of any Share that person shall deliver or send to the
Company a notice in writing signed by that person and confirming the election.
18.5 If, under Rule 18.2 or Rule 18.3, a person elects to transfer
the Share to another person, that person shall testify its election by
executing in favour of that person a transfer of the Share or effecting an SCH
regulated transfer of the Share to that person (as the case may be).
18.6 All limitations, restrictions and provisions of this Constitution
relating to the right to transfer and the registration of transfers of Shares
(including ASTC - Regulated Transfers) shall be applicable to any notice of
transfer referred to in Rule 18.4 or Rule 18.5 respectively as if the Member
who has died or has become bankrupt or has gone into liquidation or whose
estate is being administered as set out in Rule 18.3 has signed such notice
of transfer.
18.7 Where the registered holder of any Share dies or becomes bankrupt
its personal representative or the assignee of its estate, as the case may be,
shall on the production of such evidence as may from time to time be properly
required by the Directors in that behalf, be entitled to the same Dividends
and other advantages, and to the same rights (whether in relation to meetings
of the Company, or to voting, or otherwise), as the registered holder would
have been entitled to if the registered holder had not died or become bankrupt
and where two or more persons are jointly entitled to any Share in consequence
of the death of the registered holder they shall, for the purposes of this
Constitution, be deemed to be Joint Holders of the Share.
18.8 Until a person entitled by transmission to any Shares has proved
its title to the satisfaction of the Directors, the Company may retain any
Dividend or bonus declared on such Shares.
18.9 The provisions of this Rule 18 shall be subject to the operation
of the ASTC Settlement Rules to any Securities registered at a Securities
Clearing House.
19. Register of Members
19.1 The transfer books and the Register shall be kept by the
Secretary under the control of the Directors (or in such other manner as
permitted by the Corporations Act) and may be closed during such time as the
Directors think fit in accordance with the requirements of:
(a) the Corporations Act; and
(b) if the Company is Listed, the Listing Rules and the ASTC
Settlement Rules.
19.2 Where the Company is Listed, the Directors shall immediately
notify the Exchange of any intention to:
(a) fix a record date to determine entitlements to a reduction
of Capital stating the record date, which shall be that date specified in the
Listing Rules; and
(b) fix any other record date and the reason therefore, stating
the record date, which shall be that number of Business Days specified from
time to time in the Listing Rules or the ASTC Settlement Rules after the
notification, and the address of share registries at which documents will be
accepted for registration until 5:00pm on the record date or in the case of a
Proper ASTC Transfer, until such later time on the record date as may be
permitted by the ASTC Settlement Rules.
19.3 In the event of there being at any one time more than three
persons jointly holding Securities in the Company, the Directors may only
record the first three persons in the register and the names of all other
holders shall be disregarded for the purposes of registration.
20. Alteration of Capital
The Company in Meeting may from time to time by ordinary resolution:
(a) increase the Share Capital in such manner and to such extent
as the resolution shall prescribe;
(b) consolidate all or any of its Share Capital into Shares of
smaller number;
(c) subdivide its Shares or any of them into Shares of a larger
number and in the case of a subdivision of a partly Paid Share, the proportion
between the amount paid and the amount (if any) unpaid on each both before and
after subdivision must remain the same; or
(d) cancel Shares which at the date of the passing of the
resolution have not been taken or agreed to be taken by any person or which
have been forfeited and diminish the amount of its Share Capital by the amount
of the Shares so cancelled.
21. Reduction of Capital
21.1 Subject to Rule 9, the Company may, in accordance with the
Corporations Act, reduce its Share Capital or any Capital account in any
manner and with, and subject to, any incident, authority or consent required
by law.
21.2 The Directors may do all the things necessary and expedient to
obtain the confirmation of any reduction of Capital which the Company desires
to effect.
22. Meetings
22.1 An annual general meeting of the Company shall be held in
accordance with the provisions of the Corporations Act.
22.2 The Directors shall convene a Meeting of the Company:
(a) on the requisition of a majority of Directors;
(b) on the requisition of such other person as shall be entitled
to requisition such Meeting under the law; or
(c) on the Board so resolving,
and the Directors shall comply with any provisions of the Corporations Act
with respect to the convening of such Meetings.
22.3 Subject to the provisions of the Corporations Act relating to
special resolutions, special notice and agreements for shorter notice:
(a) where the Company is Listed, 28 days' notice; or
(b) otherwise, 21 days' notice,
at the least (exclusive of the day on which the notice is served or deemed to
be served, but inclusive of the day for which notice is given) shall be given
to such persons as are entitled to receive such notices from the Company under
this Constitution which notice shall specify the place, the day and the hour
of the Meeting and, except as provided by Rule 22.4, the general nature of
the business to be transacted at the Meeting.
22.4 It is not necessary for a notice of annual general meeting to
state that the business to be transacted at the Meeting includes the declaring
of a Dividend, the consideration of Financial Statements and the reports of
the Directors and Auditors, the election of Directors in the place of those
retiring by rotation or otherwise or the appointment and fixing of the
remuneration of the Auditors.
22.5 The accidental omission to give the notice required by this
Constitution to any of the Members or the non-receipt of such notice by any
Member shall not invalidate any resolution passed at a Meeting or adjournment
of the Meeting.
22.6 Where the Company is listed, the Company shall give the Home
Branch a copy of all documents it proposes to send to persons entitled to
receive those documents from the Company in respect of every Meeting,
immediately prior to dispatch of the same.
22.7 Every notice given to such persons as are entitled to receive
such notices from the Company under the provisions of this Constitution shall
be accompanied by a form of proxy in a form substantially in accordance with
the form set out in Rule 31 of this Constitution. The form of proxy shall be
blank as far as the person primarily to be appointed as proxy is concerned.
23. Quorum at Meetings
23.1 No business shall be transacted at any Meeting unless a quorum of
Members is present at the time when the meeting proceeds to business.
23.2 Subject to Rule 24.3, three Members present (including in
attendance in accordance with Rules 24.1 or 24.3) shall be a quorum.
23.3 If within fifteen minutes from the time appointed for the Meeting
a quorum is not present, the Meeting:
(a) if convened on the requisition of Members, shall be
dissolved; and
(b) in any other case, it shall stand adjourned to the same day
in the next week at the same time and place, but no notice of such adjournment
shall be required to be given to the Members. If at the adjourned Meeting a
quorum is not present within half an hour from the time appointed for the
Meeting, the Meeting shall proceed with whatever may be the number of Members
present, and those Members present shall be deemed to constitute a quorum.
23.4 In this Rule, Member present includes a person attending in
person, as a proxy or attorney of a Member or as a Corporate Representative of
a corporation which is a Member including in accordance with Rules 24.1 or
24.2.
24. Use of technology at Meetings
24.1 A Meeting may be held at two or more venues or at such other
place as may be determined by the Directors using any technology that gives
the Members as a whole a reasonable opportunity to participate. For the
avoidance of doubt, a general meeting may be held (subject to the relevant
law):
(a) at one or more physical venues; or
(b) at one or more physical venues and using virtual meeting
technology; or
(c) using virtual meeting technology only.
24.2 If the place of the meeting is determined by the Directors
(subject to the Corporations Act) not to be a physical location and is
facilitated by an instantaneous communication device which, by itself or in
conjunction with other arrangements:
(a) gives the general body of Members entitled to attend the
Meeting, as a whole, a reasonable opportunity to participate in the business
of the Meeting; and
(b) enables the Members to vote on a show of hands or on a poll,
a Member present at the place is taken to be present at the Meeting and is
entitled to exercise all rights of a Member present.
24.3 If a separate meeting place is linked to the main place of a
Meeting by an instantaneous communication device which, by itself or in
conjunction with other arrangements:
(a) gives the general body of Members entitled to attend the
Meeting in a separate meeting place, as a whole, a reasonable opportunity to
participate in the business of the Meeting in the main place; and
(b) enables the Members in the separate meeting place to vote on
a show of hands or on a poll,
a Member present at the separate meeting place is taken to be present at the
Meeting and entitled to exercise all rights as if he or she or they was
present at the main place.
24.4 If the technology used in accordance with Rule 24.1 encounters a
technical difficulty, whether before or during the Meeting, which results in a
Member not being able to participate in the Meeting, the Chair 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 Chairman deems
appropriate.
25. Chairman at Meetings
25.1 The Chairman of Directors or, in the absence of the Chairman of
Directors, the Deputy Chairman (if any) shall be entitled to take the chair at
every Meeting.
25.2 The Directors shall be entitled to elect a Director or any other
person as Chairman for all or part of any Meeting.
25.3 If at any Meeting:
(a) the Company has no Chairman of Directors, Deputy Chairman or
Chairman appointed in accordance with Rule 25.2;
(b) neither the Chairman of Directors, the Deputy Chairman nor
the Chairman appointed in accordance with Rule 25.2 is present within
15 minutes after the time appointed for holding the Meeting; or
(c) neither the Chairman of Directors, the Deputy Chairman nor
the Chairman appointed in accordance with Rule 25.2 is willing to act as
Chairman,
the Members present shall choose another Director as Chairman and if no other
Director is present, or if all the Directors present decline to act, then the
Members shall choose one of their number to be Chairman.
26. Conduct of general Meetings
26.1 The Chairman shall at any time prior to, at or during a Meeting
determine;
(a) the conduct of the Meeting;
(b) the security arrangements to apply to the Meeting; and
(c) the procedures to be adopted at the Meeting.
26.2 The Chairman or any person acting with the Chairman's authority
may at any meeting:
(a) require any person wishing to attend to comply with any
search or other security arrangements;
(b) refuse access to the Meeting to any person who does not
comply with the security arrangements;
(c) refuse access to the Meeting to any person who possesses a
recording or broadcasting device; or
(d) refuse access to the Meeting to any person who possesses any
item or chattel considered to be dangerous, offensive or disruptive to the
Meeting.
26.3 At any Meeting, the Chairman may, if it is considered necessary
or desirable for the proper and orderly conduct of the Meeting:
(a) stop debate or discussion on any business, resolution,
motion or question; and
(b) if appropriate, require the business, resolution, motion or
question to be voted on by the Members.
26.4 A Director shall be entitled to attend and speak at any Meeting.
27. Adjournments and postponement of Meetings
27.1 Subject to Rule 27.2, the Chairman may:
(a) with the consent of any Meeting at which a quorum is
present, adjourn the Meeting from time to time and from place to place; and
(b) without the consent of any Meeting, adjourn the Meeting from
time to time and from place to place where it appears the facilities are
inadequate to enable all persons to attend and be heard at the Meeting or it
is impossible for the Chairman to maintain order or to enable the conduct of a
poll.
27.2 Any poll duly demanded on the election of a Chairman of a
Meeting, or on any question of adjournment, shall be taken at the Meeting
without adjournment.
27.3 No business shall be transacted at any adjourned Meeting other
than the business left unfinished at the Meeting from which the adjournment
took place.
27.4 When a Meeting is adjourned for 14 days or more, seven days'
notice shall be given of the place, date and time of the adjourned Meeting but
it shall not be necessary to specify in such notice the nature of the business
to be transacted at such adjourned Meeting.
27.5 Save as provided in Rule 27.4, it shall not be necessary to give
any notice of an adjournment or of the business to be transacted at an
adjourned Meeting.
27.6 The Directors may postpone any Meeting from time to time by
giving notice to all Members of the place, date and time of the postponed
Meeting but it shall not be necessary to specify in such notice the nature of
the business to be transacted at the postponed Meeting.
28. Voting rights of Members
28.1 Subject to this Constitution, a holder of Ordinary Shares in the
Company shall be entitled to be present at any Meeting, and to vote in respect
of Ordinary Shares held by the holder. Any Member present at any Meeting may
decline to vote on any question put to that Meeting, but shall not by so doing
be considered absent from the Meeting.
28.2 Unless otherwise provided in this Constitution, every Member
present in person (including in attendance in accordance with Rules 24.1 or
24.2) or by proxy or by attorney or (in the case of a body corporate) by
Corporate Representative shall be entitled:
(a) on a show of hands, to one vote; and
(b) subject to Rule 28.7, on a poll, to one vote for each Share
of which the Member is the holder.
28.3 Except where otherwise provided by the Corporations Act or this
Constitution, every question to be decided by any Meeting shall be decided by
a majority on a show of hands by persons present who are Members, or proxies
or attorneys or Corporate Representatives entitled to act under this
Constitution, unless immediately on the declaration of the result of the show
of hands a poll be directed by the Chairman of the Meeting, or demanded in the
manner provided in Rule 29.
28.4 Unless a poll is demanded, a declaration by the Chairman that a
resolution has in a show of hands been carried or carried unanimously, or by a
particular majority, or lost, and an entry to that effect in the minutes of
the Meeting is conclusive evidence of the fact without proof of the number or
proportion of the votes recorded in favour of or against the resolution.
28.5 Where any persons are registered as Joint Holders of a Share any
one of such persons may vote at any Meeting either personally (including in
attendance in accordance with Rules 24.1 or 24.2) or by proxy or Corporate
Representative in respect of such Share as if the person was solely entitled
and if more than one Joint Holder is present at any Meeting personally or by
proxy attorney or Corporate Representative the senior of such persons shall
alone be entitled to vote in respect of the jointly held Share. Seniority
shall be determined by the order in which the names of the holders stand in
the Register.
28.6 A Member holding Shares in respect of which all sums due and
payable to the Company have not been Paid shall not be entitled to attend and
vote at Meetings in respect of such Shares but shall be entitled to attend
Meetings and vote in respect of all other Shares held in respect of which no
sums are due and payable to the Company.
28.7 Where a poll is demanded, a Member holding partly Paid Shares
shall be entitled, for each Share, to a fraction of a vote equivalent to the
proportion which the amount Paid up (not credited) bears to the total issue
price for the Share (excluding amounts credited).
28.8 A Member who is of unsound mind or whose personal estate is
liable to be dealt with in any way under the law relating to mental health may
vote, whether on a show of hands or on a poll, by his Committee or by the
Public Trustee or by such other person as properly has the management of his
estate, and such Committee, Public Trustee or other person may vote by proxy
or attorney.
28.9 No objection shall be raised to the qualification of any voter
except at the Meeting or adjourned Meeting at which the vote objected to is
given or tendered, and every vote not disallowed at such Meeting shall be
valid for all purposes. Any such objection made in due time shall be
referred to the Chairman of the Meeting whose decision shall be final and
conclusive.
28.10 Notwithstanding any other rule in this Constitution (but subject to
the Corporations Act), where the Company is listed, a resolution put to the
vote at a general meeting must be decided on a poll (and not a show of hands)
if:
(a) the notice of the meeting sets out an intention to propose
the resolution and stated the resolution; or
(b) the Company has given notice of a Members' resolution under
the Corporations Act; or
(c) a poll is demanded.
29. Poll
29.1 Subject to this Constitution, a poll may be demanded by:
(a) the Chairman, at any time;
(b) not less than five Members having the right to vote on the
resolution present in person or by proxy, attorney or Corporate Representative
(including in attendance in accordance with Rules 24.1 or 24.2); and
(c) by any one or more Members present in person or by proxy,
attorney or Corporate Representative (including in attendance in accordance
with Rules 24.1 or 24.2) holding Shares conferring a right to vote on the
resolution, being Shares on which an aggregate sum has been Paid up equal to
not less than 5% of the total sum Paid up on all the Shares conferring that
right.
29.2 Any poll demanded under this Constitution shall be taken at such
time and place and in such manner as the Chairman of the Meeting shall direct
and, subject to Rule 27.2, shall be taken either at once, or after an
interval or adjournment, and the result of the polls shall be deemed to be the
resolution of the Meeting at which the poll was demanded.
29.3 The demand of a poll shall not prevent the continuance of a
Meeting for the transaction of any business other than the question on which
the poll has been demanded.
29.4 The demand of a poll may be withdrawn at any Meeting before the
conduct of such poll.
30. Casting vote
The person in the chair at a Meeting shall not, in the case of an equality of
votes on a show of hands or on a poll, have a second or casting vote.
31. Proxies
31.1 Any person who is entitled to attend and vote at any Meeting of
the Company may appoint:
(a) where the Member is entitled to cast one vote on a poll, one
person; or
(b) where the Member is entitled to cast more than one vote on a
poll, not more than two other persons,
(whether Members or not) as the Member's proxy or proxies to attend and vote
at the Meeting on the Member's behalf.
31.2 A proxy appointed to attend and vote at a Meeting on behalf of a
Member shall have the same right as the Member to speak at the Meeting.
31.3 A Member may instruct the Member's proxy or proxies to vote for
or against any specific resolution submitted to a Meeting at which such proxy
or proxies are present.
31.4 Where a Member appoints two proxies:
(a) the appointment may specify the proportion or number of
votes that the proxy may exercise; and
(b) otherwise, each proxy may exercise half of the votes.
31.5 Despite anything to the contrary contained in this Constitution,
if a Member appoints one proxy only, that proxy shall be entitled to vote on a
show of hands, but if a Member appoints two proxies, neither proxy shall be
entitled to vote on a show of hands.
31.6 If a Member appoints:
(a) one proxy only, that proxy shall be entitled on a poll to
one vote for each Share held by the appointor Member; or
(b) two proxies, each proxy shall be entitled on a poll to that
number of votes determined in accordance with Rule 31.4.
31.7 Where a proxy and a Member who appointed such proxy both attend
at the Meeting or adjourned Meeting, or on the taking of a poll:
(a) where the proxy is appointed to represent the whole of a
Member's voting rights, the Member shall not be entitled to vote at the
Meeting or adjourned Meeting or to vote on the poll, as the case may be,
unless notice in writing of the revocation of the instrument appointing such
proxy shall have been received at the place for deposit of proxies or by the
Chairman before the Meeting or adjourned Meeting or the poll is taken; and
(b) where the proxy is appointed for a specified portion of that
Member's voting rights only, the Member shall be entitled to vote at the
Meeting or adjourned Meeting or to vote on the poll as if the Shares or the
portion of Shares in respect of which the Member has not appointed a proxy
were the only Shares held by the Member provided that in this case the proxy
shall not be entitled to vote on a show of hands.
31.8 The instrument appointing a proxy shall be in writing under the
hand of the appointor or the appointor's attorney duly authorised in writing
or if such appointor is a corporation, properly executed by the corporation
under the Corporations Act.
31.9 Despite anything else in this Constitution:
(a) where any Share is jointly held, the instrument appointing a
proxy may be signed by the Joint Holders of such Share or by any one or more
of them; and
(b) where more than one person is entitled by transmission under
Rule 18 to a Share in the Company, the instrument appointing a proxy may be
signed by all the persons so entitled or any one or more of them.
31.10 A proxy shall not remain in force for a period of more than
three Months from the date of the proxy, unless such proxy is incorporated in
a power of attorney.
31.11 Every instrument of proxy whether for a specified Meeting or
otherwise shall be in the following form or in any other form which the
Directors may approve or which may be required by the Corporations Act or (in
the event that the Company is Listed) the Listing Rules:
Pyx Resources Limited ACN 073 099 171
I,
of
appoint
of
or
(a)
of
in respect of …………. Per cent of my voting rights in the Company;
and
(b)
of
in respect of ………….. per cent of my voting rights in the Company
or failing her/him or them, the Chairman of the Meeting as my proxy or proxies
to vote for me and on my behalf at the General Meeting (or annual general
meeting as the case may be) of the Company to be held on
the day
of
and at any adjournment.
This form is to be used *in favour of the resolution
**against
Signed this day
of
...................................................................
Signature of Shareholder
*(Strike out whichever is not desired or is inapplicable)
**To be inserted if desired.
31.12 Any instrument appointing a proxy which is entitled to be used at a
Meeting at which any resolution is proposed to be passed shall clearly
indicate that the holder of the proxy is entitled to vote for or against such
resolution as directed by the Member or failing such direction, at the
discretion of the holder of the proxy.
31.13 For the purposes of Rule 31.8, a proxy appointment received at an
electronic address or provided by other electronic means will be taken to be
signed or authenticated by the appointer if:
(a) a personal identification code allocated by the Company to
the appointer has been inputed into the appointment;
(b) the appointment has been verified in another manner approved
by the Directors; or
(c) it is otherwise authenticated in accordance with the
Corporations Act.
32. Powers of attorney
32.1 Any Member may by power of attorney appoint an attorney to attend
and act and vote at any Meetings of the Company on behalf of such Member and
as his or its proxy without any special appointment other than such power of
attorney (Attorney).
32.2 An Attorney shall be appointed in writing under the hand and seal
of the Member and attested by one witness, or if the appointor is a
corporation, properly executed by the corporation under the Corporations Act.
32.3 An Attorney appointed in accordance with this Rule may, within
the limits of the relevant power of attorney and whether the Attorney is a
Member of the Company or not, appoint in writing as proxy on behalf of the
appointor, a person (whether a Member of the Company or not) who shall be
deemed to be the proxy of such appointor.
32.4 An Attorney appointed in accordance with this Rule, whether the
Attorney is a Member of the Company or not, may on behalf of the Attorney's
appointor, within the limits of the relevant power of attorney, sign any
consent which the appointor would under this Constitution be required or
entitled to sign.
32.5 Any Attorney appointed in accordance with this Rule and any
substitute Attorney or proxy appointed may attend and take part in the
proceedings of and vote at all Meetings of the Company (or any Meeting of any
class of shareholders in the Company of which such Member is a Member) so long
as the power of attorney shall remain in force in the same manner as the
Member could do if the Member was personally present. If the power of
attorney is expressed to be given for value, the votes of the Attorney or
substitute Attorney or proxy shall take precedence over the votes of the
Member or of any other proxy appointed by or claiming under the Member.
33. Appointing instrument to be deposited with Company
33.1 The following instruments shall be deposited at the Office or at
such other place as is specified for that purpose:
(a) any instrument appointing a proxy under Rule 31, together
with the power of attorney or other authority, if any, under which it is
signed; and
(b) any power of attorney under Rule 32.
33.2 Any such instrument shall be forwarded to the Company not less
than 48 hours before the time for holding the Meeting or adjourned Meeting at
which the person named in the instrument proposes to vote or, in the case of a
poll, not less than 48 hours before the time appointed for the taking of the
poll.
33.3 Any instrument which is not deposited with the Company in the
manner and within the time provided in this Rule is invalid.
33.4 Subject to the Corporations Act, a copy of any of the instruments
referred to in Rule 33.1 may be deposited at the Office if such copy has been
certified as being a true and correct copy by either a Justice of the Peace,
Solicitor or Notary Public.
33.5 Despite anything else in this Constitution, where a Corporate
Representative is appointed and:
(a) the appointment is a standing one, the certificate
appointing a Corporate Representative is not required to be produced to the
Company prior to the commencement of a Meeting at which a Corporate
Representative proposes to attend where:
(1) the certificate appointing the Corporate Representative has
been previously produced to the Company;
(2) the Corporate Representative is entitled to attend the
Meeting on the basis of the same certificate (without amendment or extension)
as the certificate referred to in Rule 33.5; and
(3) the certificate referred to in Rule 33.5 is otherwise
valid; or
(b) otherwise, a certificate appointing a Corporate
Representative must be produced to the Company prior to the commencement of a
Meeting at which a Corporate Representative proposes to attend.
34. Revocation and invalidity of instruments
A vote given in accordance with the terms of the instrument appointing a
proxy, attorney or Corporate Representative shall be valid, subject to
Rule 31, despite;
(a) the death of the principal;
(b) the unsoundness of mind of the principal;
(c) the winding up or dissolution of the principal, if a
corporate body; or
(d) the revocation of the instrument or the power of attorney
under which the instrument was executed,
so long as no intimation in writing of any such event is received at the place
for deposit of proxies or by the Chairman before the Meeting or the adjourned
Meeting takes place or the poll is taken.
35. Number of Directors
35.1 The Company may from time to time by resolution passed at a
Meeting increase or reduce the number of Directors.
35.2 Subject to Rule 35.1, the number of Directors shall be:
(a) not less than three; and
(b) no more than nine.
36. Qualification of Directors, Alternate Directors and Associate
Directors
36.1 Every Director shall be a natural person.
36.2 A Director, Alternate Director or Associate Director need not be
a shareholder.
37. Vacation of office of Director
37.1 The office of the Director shall become vacant if the Director:
(a) ceases to be a Director by virtue of the Corporations Act or
by order of any court of competent jurisdiction;
(b) becomes prohibited from being a Director by reason of any
order made under the Corporations Act;
(c) becomes bankrupt or suspends payment or makes any
arrangement or composition with his creditors generally;
(d) becomes of unsound mind or a person whose person or estate
is liable to be dealt with in any way under the law relating to mental health;
(e) resigns his office under Rule 37.2 provided that in the
case of an Executive Director holding office as such for a fixed term such
resignation and vacation of office shall be without prejudice to any claims
that the Company may have against the Executive Director for any breach of any
contract of service between the Executive Director and the Company;
(f) for a continuous period of more than six Months is absent
without the permission of the Directors from meetings of the Directors held
during that period, provided that attendance by the Alternate for the Director
shall be deemed to be attendance by the Director for the purposes of this
paragraph;
(g) is removed from office under Rule 38; or
(h) where the Director is a shareholder, fails to pay any call
within four weeks from the date such call is made payable.
37.2 A Director may resign from office on giving one Month's notice in
writing to the Company of his intention to do so and such resignation shall
take effect on the expiration of the notice, or its earlier acceptance by the
Board.
38. Appointment and removal of Directors
38.1 The Directors may at any time and from time to time appoint any
other person qualified in accordance with Rule 36 as a Director, either to
fill a casual vacancy or as an addition to the Board but only if the total
number of Directors do not at any time exceed the maximum number for the time
being allowed under this Constitution.
38.2 Any Director appointed under Rule 38.1 shall hold office only
until the next following annual general meeting of the Company, and shall then
be eligible for re-election but shall not be taken into account in determining
the Directors who are to retire by rotation at that Meeting.
38.3 Subject to the provisions of the Corporations Act, the Company at
a Meeting may by resolution:
(a) remove any Director before the expiration of the Director's
term of office;
(b) appoint another qualified person as a Director; or
(c) remove any Director before the expiration of the Director's
term of office and appoint another qualified person in the removed Director's
stead.
38.4 Any appointment of a Director proposed under Rules 38.3(b) or
38.3(c) shall be subject to prior notice having been given under Rule 40.13.
38.5 A person appointed under Rule 38.3(b) shall hold office subject
to Rule 40.
38.6 Any person appointed or re-elected under Rule 38.3(c) shall hold
office only during such time as the Director in whose place the person is
appointed or, in the case of re-election, the re‑elected Director would have
continued to hold office had the Director not been removed under this Rule.
39. Offices of profit in Company
39.1 Subject to the provisions of the Corporations Act, any Director
may hold any other office or place of profit under the Company or in
connection with the Company's business other than that of Auditor.
39.2 No person being a partner or employer or employee of any Auditor
of the Company shall be eligible to be appointed or elected as Director or
Alternate Director of the Company.
40. Term of office of Directors
40.1 At each annual general meeting of the Company, the following
Directors must retire from office:
(a) any Director required to submit to re-election because of
Rule 40.6;
(b) any Director required to submit to re-election because of
Rule 38.2;
(c) one-third of the Directors for the time being excluding:
(1) any Director to whom Rule 40.1 applies; and
(2) any Managing Director subject to Rule 45.2(a) and
Rule 45.2(b),
or if their number is not a multiple of three then the greater of:
(3) one; or
(4) the number nearest to but not exceeding one-third.
40.2 Rule 40.1 does not apply to the Managing Director but if there
is more than one Managing Director, Rule 40.1 does not apply to that Managing
Director determined in accordance with Rule 45.2(b).
40.3 The Directors to retire under Rule 40.1(c) shall be determined
according to the length of time each Director has spent in office, with those
having spent the longest time in office retiring.
40.4 Where two or more Directors have been in office an equal length
of time, the Directors to retire shall, in default of agreement between them,
be determined by lot.
40.5 The length of time a Director has been in office shall be
computed from the Director's last election or appointment where the Director
has previously vacated office.
40.6 Subject to Rule 40.2 but despite anything to the contrary in
this Constitution, a Director shall not continue in office for a period in
excess of three consecu-tive years or until the third annual general meeting
following the Director's appointment, whichever is the longer, without
submitting to re-election.
40.7 A retiring Director shall retain office until the conclusion of
the Meeting at which the retiring Director's successor is elected.
40.8 A retiring Director shall be eligible for re-election.
40.9 At any Meeting at which any Directors retire in the manner
provided for in this Rule, the Company may elect a like number of persons to
fill the vacancies left by the retiring Directors, and subject to Rule 40.13
may also fill any other vacancies.
40.10 A motion for the appointment of two or more persons as Directors by
a single resolution shall not be made unless a resolution that it be so made
has been first agreed to by the Meeting without any vote being given against
it. A resolution passed in contravention of this Rule shall be void, whether
or not it was objected to at the time the resolution was moved. For the
purposes of this Rule a motion for approving a person's appointment or for
nominating a person for appointment shall be treated as a motion for the
person's appointment. Nothing in this Rule shall be deemed to prevent the
election of two or more Directors by ballot or poll.
40.11 If at any Meeting at which an election of Directors ought to take
place, the offices of the retiring Directors or some of them are not filled,
then any vacancy created shall be deemed to be a casual vacancy capable of
being filled by the Directors under Rule 38.1.
40.12 The Company may at any Meeting from time to time:
(a) increase or reduce the number of Directors;
(b) alter the Directors' qualifications; and
(c) determine in what rotation such increased or reduced number
is to go out of office.
40.13 Nominations for election to the office of Director shall be
accepted:
(a) where the Company is Listed, up to 35 Business Days (or in
the case of meetings that members have requested Directors to call, up to
30 Business Days); or
(b) otherwise, up to 25 Business Days,
before the date of a general Meeting at which Directors will be elected or
re-elected.
41. Remuneration of Directors
41.1 Each Director shall be entitled to remuneration for the
Director's services from the date of the Director's election or appointment to
the Board.
41.2 The remuneration of the Executive Directors:
(a) shall be determined by the Board; and
(b) where the Company is Listed, must not include a commission
on or percentage of operating revenue.
41.3 The Directors are entitled to be paid all reasonable travelling,
hotel and other expenses incurred by them in:
(a) attending and returning from meetings of the Directors of
the Company;
(b) otherwise in connection with the business of the Company;
and
(c) in the execution of their duties as Directors,
but may be required to provide reasonable verification of these expenses.
41.4 The remuneration of non-Executive Directors must be a fixed sum
for each non-Executive Director.
41.5 The total amount of Director's fees payable by the Company or any
subsidiary of the Company to non-Executive Directors must:
(a) be set by resolution of the Company; and
(b) only be increased by resolution of the Company, with the
notice of Meeting relating to any proposed increase to specify the amount of
the proposed increase and the maximum sum that may be paid.
41.6 Except as provided in this Constitution, the Directors shall not
without the prior consent of the Company given in Meeting have the power to
fix or pay a salary or allowance for the a non-Executive Director that would
have the effect of exceeding the total amount of Director's fees payable
determined in accordance with Rule 41.5.
41.7 Nothing in this Constitution shall prevent the Directors
approving the payment of consulting or other professional services to any
Director. In the event of a Director ceasing to be a Director as a
consequence of dying, retiring or ceasing to hold office (Retiring Director),
the Directors may approve and make such payment to the Retiring Director, or
his legal personal representatives or dependents as permitted under
section 200F of the Corporations Act (Permitted Payment).
41.8 The Directors shall only be entitled to approve and make to a
Retiring Director a payment in excess of the Permitted Payment where:
(a) the particulars of the proposed payment referred to above
(together with such other particulars as are required by the Corporations Act
to be disclosed) shall have been disclosed to, and approved by, the Company at
a Meeting prior to the death, retirement or vacation of office of the
Director; and
(b) the Director has not ceased to be a Director under the
provisions of Rules 37.1(a) or 37.1(b).
42. Directorships in other companies
42.1 Subject to Rule 42.2, a Director may be or become a director of
any other company and no Director who is or becomes a director in another
company shall be accountable for any benefits received as a director or Member
of such other company.
42.2 A Director shall not, without the approval of the other Directors
accept, hold or retain the office of director of any other company which in
the opinion of the other Directors is for the time being in active competition
with the Company.
43. Alternate Directors
43.1 Subject to the provisions of Rule 36, any Director may appoint
any person to act as an Alternate Director in the Director's place, whether
for a stated period or periods or until the happening of a specified event or
from time to time, whenever by absence or illness or for any other reason the
Director is unable to attend to the Director's duties as a Director as
follows:
(a) with approval of a resolution of the Board; or
(b) with the approval of a majority of the other Directors.
43.2 The following provisions shall apply to any such Alternate
Director:
(a) subject to this Constitution, the Alternate Director shall
be entitled to receive notice of meetings of the Directors and to attend and
vote at meetings of Directors if the Director by whom the Alternate Director
was appointed is not present;
(b) where the Alternate Director is already a Director, the
Alternate Director shall have a separate vote on behalf of the Director the
Alternate Director is representing in addition to the Alternate Director's own
vote;
(c) the Alternate Director shall be entitled to exercise all the
powers (except the power to appoint an Alternate Director) and to perform all
the duties of a Director, insofar as the Director by whom the Alternate
Director was appointed has not exercised or performed them;
(d) the Alternate Director shall vacate office as Alternate
Director if the Director by whom the Alternate Director was appointed is
removed or otherwise ceases to hold office for any reason;
(e) the Alternate Director shall, while acting as an Alternate
Director, be responsible to the Company for the Alternate Director's own acts
and defaults and shall not be deemed to be the agent of the Director by whom
the Alternate Director was appointed;
(f) the Alternate Director shall not be entitled to receive any
remuneration from the Company as a Director except for special services which
in the opinion of the Directors are outside the range of the ordinary duties
of a Director;
(g) the Alternate Director shall not be taken into account in
determining the number of Directors but shall, if the Director by whom the
Alternative Director was appointed is not present, be taken into account for
the purpose of determining whether a quorum is present under Rule 46.7; and
(h) the Alternate Director may be removed or suspended from
office by written notice, letter, facsimile, or other form of visible
communication sent to the Company by the Director by whom the Alternate
Director was appointed.
43.3 An instrument appointing an Alternate Director may be delivered
to the Company by written notice, letter, facsimile or other form of visible
communication and shall be retained by the Company and shall be substantially
in the following form:
Pyx Resources Limited ACN 073 099 171
I,............................................................. a Director of
.........................................
in pursuance of the power contained in the Constitution of the Company
nominate
............................................................... of
.......................................................
to act as Alternate Director of the Company in my place and stead, and to
exercise and discharge all my duties and to exercise all my authorities,
prerogatives, privileges and powers as a Director of the Company during my
absence (or my illness or my inability to act or attend as a Director, as the
case may be).
Signed
this day
of
Signature: .....................................................
Witness: .....................................................
44. Associate Directors
44.1 Subject to the provisions of Rule 36, the Directors may from
time to time appoint any person to be an Associate Director and may at any
time remove from office any person so appointed.
44.2 The Directors may define and limit from time to time the duties
and powers of such Associate Directors and may fix their remuneration if any.
44.3 An Associate Director:
(a) shall not be deemed to be a Director of the Company within
the meaning of the Corporations Act or of this Constitution;
(b) and shall not be recognised in a quorum or exercise any of
the powers which are by this Constitution conferred on the Directors or in any
way share their responsibilities; and
(c) may, on the invitation of the Directors, attend those
Meetings to which the invitation extends.
45. Managing Director
45.1 The Directors may from time to time appoint one or more of the
Directors to the position of Managing Director or Assistant Managing Director
on such terms as they think fit and may from time to time remove any Director
so appointed from office and appoint another Director in place of the Director
removed from that position.
45.2 A Managing Director or Assistant Managing Director shall be
subject to the same provisions as to resignation and removal as the other
Directors of the Company and shall immediately cease to be a Managing Director
or Assistant Managing Director on ceasing to hold the office of Director from
any cause, provided that:
(a) where there is only one Managing Director, the Managing
Director shall not be subject to the provisions of this Constitution as
regards retirement by rotation, and the Managing Director shall not be taken
into account in determining the rotation or retirement of Directors;
(b) where there is more than one Managing Director, only one
Managing Director shall be entitled not to be subject to the provisions of
this Constitution as regards retirement by rotation and shall not be taken
into account in determining the retirement by rotation of Directors and as
between any two or more Managing Directors, in the absence of agreement
between them, the Managing Director to whom the exemption in this Rule 45.2
applies shall be determined by lot;
(c) after a determination has been made under Rule 45.2(b), the
exemption referred to in that Rule will not apply to any other Managing
Director until the Managing Director first determined to have the benefit of
the exemption ceases to be a Managing Director; and
(d) if, at the time a Managing Director ceases to have the
benefit of the exemption referred to in Rule 45.2(b), that Managing Director
has not submitted to re-election for a period longer than that provided in
Rule 40.6, the Managing Director shall submit to re‑election at the next
annual general meeting of the Company.
45.3 Despite Rule 41, the remuneration of a Managing Director or
Assistant Managing Director shall be fixed by the Directors from time to time
and may be by way of fixed salary or commission on profits of the Company or
of any other company in which the Company is interested or by participation in
any such profits or by any or all of these modes, but shall not be by way of
commission on or percentage of operating revenue.
45.4 The Directors may from time to time:
(a) entrust to and confer on a Managing Director or Assistant
Managing Director for the time being such of the powers exercisable under this
Constitution by the Directors as they think fit;
(b) confer such powers for such time and to be exercised for
such objects and purposes and on such terms and conditions and with such
restrictions as they think expedient; and
(c) confer such powers collaterally with, but not to the
exclusion of or in substitution for, all or any of the powers of the Directors
in that behalf and may from time to time revoke withdraw alter or vary all or
any of such powers.
45.5 This Rule 45 is subject to the provisions of any contract
between the Managing Director or Assistant Managing Director and the Company
so long as the terms of any contract between the Managing Director or
Assistant Managing Director and the Company which are inconsistent with this
Constitution, have been first approved of by the Company in general Meeting.
46. Directors' Meetings
46.1 The Directors may meet either:
(a) in person;
(b) by telephone;
(c) by audiovisual linkup; or
(d) by any other instantaneous communications medium for
conferring;
for dispatch of business, and adjourn and otherwise regulate their meetings as
they think fit.
46.2 A Director is regarded as present at a meeting where the meeting
is conducted by telephone, audiovisual linkup or other instantaneous
communications medium for conferring, if the Director is able to hear, and to
be heard by, all others attending the meeting.
46.3 A meeting conducted by telephone, audiovisual linkup or other
instantaneous communications medium for conferring, will be deemed to be held
at the place agreed upon by the Directors attending that meeting, provided
that at least 1 of the Directors present at the meeting was at that place for
the duration of the meeting. Meetings may be held outside Australia.
46.4 A Director may at any time and the Secretary upon the request of
a Director must convene a meeting of Directors.
46.5 Notice of every meeting of Directors must be given to each
Director then in Australia, but failure to give or receive that notice will
not invalidate any meeting.
46.6 The Directors may act notwithstanding any vacancy on the Board,
but if and so long as their number is below the number required for a quorum,
they must not act except in the case of emergency or for the purpose of
filling up vacancies or summoning a general meeting.
46.7 At a meeting of Directors, the number of Directors necessary to
constitute a quorum is that number as is determined by the Directors and,
unless otherwise determined, is 2.
46.8 A meeting of the Directors at which a quorum is present will be
competent to exercise all or any of the powers and discretions vested in or
exercisable by the Directors generally.
46.9 The Directors may elect a chairman and deputy chairman of their
meetings and determine the periods for which they are to hold office. If no
chairman or deputy chairman is elected or if at any meeting neither the
chairman nor the deputy chairman is present at the time appointed for the
meeting, the Directors present at the meeting may choose 1 of the Directors
present to be chairman of the meeting.
46.10 An original document, or a photocopy or facsimile copy of that
document, which is in the possession of, or has been seen by, all Directors
attending the Directors' meeting prior to, or at the time of, that meeting,
will be deemed to be a document tabled at that meeting.
46.11 Questions arising at any meeting of the Board will be decided by a
majority of votes of Directors present and voting. Subject to the Listing
Rules, in the case of an equality of votes, the chairman of the meeting will
have a second or casting vote, but the chairman will not have a second or
casting vote where there are only 2 Directors present who are competent to
vote on the question at issue.
46.12 A resolution in writing of which notice has been given to all
Directors for the time being entitled to receive notice of a meeting of the
Directors and which is signed by a majority of Directors for the time being
entitled to attend and vote at meetings of the Directors will be as valid and
effectual as if it had been passed at a meeting of the Directors duly convened
and held. That resolution may consist of several documents in like form each
signed by 1 or more of the Directors wherever they may be situated. For the
purposes of this clause, the signature of an alternate Director will be as
effective as, and may be substituted for, the signature of its appointor.
The effective date of that resolution is the date upon which the document or
any of the counterpart documents was last signed.
46.13 Any resolution properly passed at a duly convened meeting of the
Directors at which a quorum is present will be deemed to be a determination by
the Board of Directors for the purposes of this Constitution.
46.14 The Directors may delegate any of their powers to a committee of
Directors or to a sole Director as they think fit and may revoke that
delegation. Any committee can exercise the powers delegated to it in
accordance with any directions that may from time to time be imposed upon it
by the Board of Directors. The meetings and proceedings of any committee
consisting of 2 or more Directors will be governed by the provisions of this
Constitution regulating the meetings and proceedings of the Directors so far
as they are applicable and are not superseded by any direction made by the
Board of Directors under this clause.
46.15 All acts done by any meeting of the Directors or by a committee of
the Directors or by any person acting as a Director will be valid even it is
discovered afterwards that there was some defect in the appointment or
election of that Director or person acting as a Director or that any Director
was disqualified or had vacated office or was otherwise not entitled to vote
or act.
47. Defective appointment of Directors
All acts done at a meeting of the Directors or of a committee of the Directors
or by any person acting bona fide as a Director shall be as valid as if every
such person had been duly appointed or had duly continued in office and was
qualified and had continued to be a Director, regardless as to whether it is
afterwards discovered that there was some defect in the appointment or
continuance in office of any of such Directors or persons acting or that any
of them were disqualified or had vacated office.
48. Delegation to committees of Directors
48.1 The Directors may delegate any of their powers to committees
consisting of such Director or Directors of their body as they think fit and
may revoke or vary such delegation whenever they think fit.
48.2 Any committee so formed shall in the exercise of the powers so
delegated conform to any regulations that may be imposed on it from time to
time by the Directors.
48.3 The committee may meet and adjourn as it thinks proper, questions
arising at any meeting shall be determined by a majority of votes of the
Directors present and, in the case of an equality of votes, the chairman shall
have a second or casting vote.
49. Minutes of Meetings
49.1 The Directors shall cause minutes to be made of all proceedings
all Meetings of Directors and of all meetings of Directors and committees of
Directors.
49.2 The minutes shall contain details of all proceedings including:
(a) of all appointments of officers; and
(b) of names of Directors present at all Meetings and meetings
of the Directors and of any committee of the Directors,
and shall be signed by the Chairman of the meeting at which the proceedings
were held or by the Chairman of the next succeeding meeting.
49.3 The minutes of a meeting signed by the Chairman of that meeting
as provided in Rule 49.2 shall be sufficient evidence without further proof
of the facts stated in the minutes.
50. General powers of Directors
50.1 The Directors shall manage and control the business and affairs
of the Company.
50.2 The Directors may exercise all of the powers and do all acts and
things that the Company has power and authority to do, except those powers,
acts or things which may only be done by the Company in general Meeting.
50.3 The powers of the Directors under this Rule shall be subject to:
(a) any contract which may be made with a Managing Director in
which the Directors delegate certain powers; and
(b) the provisions of the Corporations Act, this Constitution,
and any regulations made from time to time by the Company at a Meeting.
50.4 The Company shall not make any regulation which would have the
effect of invalidating any prior act of the Directors which was validly made.
50.5 So far as shall be practicable and not inconsistent with the
provisions of this Constitution, any power, authority or discretion vested in
the Directors may be exercised at their discretion.
51. Borrowing powers of Directors
51.1 The Directors may, at their discretion, raise or borrow money or
other financial accommodation of any kind whatever on behalf of the Company
and do not require the consent of the Members to exercise these powers
(Borrowing Powers).
51.2 The Borrowing Powers of the Directors include power to:
(a) raise or borrow any money in any manner whatever, either
alone or jointly with another or others (including but without limitation by
way of overdraft account, letters of credit or bill acceptance and discounting
facility); and
(b) to secure the payment or repayment of such money in such
manner and on such terms and conditions in all respects as they may think fit
and, in particular, by the issue or sale of Debt Securities, bonds or other
obligations of the Company whether:
(1) perpetual or otherwise;
(2) payable to bearer or otherwise; and
(3) either:
(A) without security;
(B) secured by deposit or pledge of the Securities;
(C) secured by properties of the Company;
(D) secured by mortgages bills of exchange or promissory notes or
other instruments; or
(E) secured in any other manner.
51.3 The Directors may offer as security, in any manner whatever, any
part of the Company's property and assets including its future property and
uncalled Capital for the time being.
51.4 Any Debentures, Debt Securities, and other Securities or
obligations issued by the Company may be made assignable free from any
equities between the Company and the person who was granted or issued the
same.
51.5 Any Debentures, Debt Securities and other Securities or
obligations may be issued at a discount, premium or otherwise and with any
special privileges as to redemption, surrender, drawings, attending and voting
at general Meetings of the Company, appointment of Directors, making calls on
Members for any uncalled Capital included in such Securities and otherwise.
51.6 The Directors shall establish and maintain all proper registers
required by law to be kept of all Debentures, Debt Securities and other
Securities, mortgages and charges specifically affecting the property of the
Company.
52. Interested Directors
52.1 A Director shall be entitled to acquire or have the following
interests:
(a) an interest of the kind set out in section 191 of the
Corporations Act (Material Personal Interest);
(b) an interest of the kind set out in Chapter 2E of the
Corporations Act (Financial Benefit); and
(c) an interest of any other kind whatever permitted or
authorised by law.
53. Directors' material personal interests
53.1 A Director shall only be entitled to acquire, receive and have a
Material Personal Interest in the manner and to the extent permitted by law.
53.2 A Director holding a Material Personal Interest shall comply with
all obligations required by law including any disclosure obligations under the
Corporations Act and the Listing Rules in respect of the same.
54. Directors' financial benefits
54.1 A Director shall only be entitled to be given a Financial Benefit
in the manner and to the extent permitted by law.
54.2 A Director given or to be given a Financial Benefit shall comply
with all obligations required by law including any disclosure obligations
under the Corporations Act and the Listing Rules in respect of the Financial
Benefit.
55. Local management
55.1 The Directors may provide for the management and transaction of
the business and affairs of the Company in any place in Australia or elsewhere
to the extent permitted by law.
55.2 The Directors may from time to time establish any local boards of
directors, managers, branch offices or agencies for managing the affairs of
the Company in any locality and may:
(a) appoint any persons to be Members of such local boards of
directors or managers or agents; and
(b) fix their remuneration.
55.3 The Directors may at their discretion make regulations for the
management of any local board, branch office or agency from time to time.
The Directors may pay the expenses occasioned by any of the matters in this
Rule out of the funds of the Company, and may at their discretion from time to
time discontinue all or any of such local boards of directors, branch offices
or agencies.
55.4 All local boards of directors, branch offices, agencies, local
directors, agents, officers, clerks, servants and workmen wherever located
shall at all times be under the control of the Directors.
55.5 Except for the power of making calls which cannot be delegated,
the Directors may from time to time delegate to any person appointed under
Rule 55.2 any of the powers, authorities and discretions for the time being
vested in the Directors other than and may authorise the Members for the time
being of any local board of directors or any of them to fill any vacancies
therein and to act notwithstanding such vacancies.
55.6 Any appointment made under Rules 55.2 and 55.5 shall be made on
such terms and conditions as the Directors determine at their discretion.
55.7 The Directors may at any time:
(a) remove any person appointed under Rules 55.2 and 55.5; and
(b) annul or vary any delegation of their powers to persons so
appointed.
55.8 Any person appointed under Rules 55.2 and 55.5 may be
authorised by the Directors to sub-delegate all or any of the powers
authorities and discretions for the time being vested in that person.
55.9 Where permitted or authorised by law, the Directors may cause to
be kept in any other State or Territory of Australia, or other country in
which it transacts business a branch register of Members. The Directors may,
at their discretion, make provisions with respect to the keeping of such
branch register, and may do whatever they consider necessary to comply with
any local law.
55.10 If a Director is in any place where there is a local board of
directors, the Director shall be entitled to act and vote at all meetings of
the local directors.
56. Attorneys for Company
56.1 The Directors may, in any manner permitted and effective by law,
appoint any corporation, firm, or person or body of persons to be the attorney
or agent of the Company for such purposes and with such powers, authorities
and discretions and for such period and subject to such conditions as they may
think fit so long as the powers do not exceed those vested in or exercisable
by the Directors under this Constitution.
56.2 An appointment under Rule 56.1 may contain such provisions for
the protection and convenience of persons dealing with any such attorney or
agent as the Directors may think fit and may authorise any such attorney or
agent to delegate all or any of the powers, authorities, and discretions
vested in the attorney or agent.
56.3 The Directors may appoint local directors or agents by facsimile,
email or other form of visible communication in cases of urgency to act for
and on behalf of the Company.
57. Execution of documentation by Company
57.1 The Company shall not be required to have a common seal.
57.2 If the Company has a common seal it shall contain:
(a) the name of the Company; and
(b) its Australian Company Number or Australian Business Number.
57.3 The Directors shall provide for the safe custody of any common
seal and any duplicate of the Company as they shall think fit. No document,
writing or other material shall be executed by the Company except by the
authority of the Board of Directors or of a committee of the Directors duly
authorised or as otherwise permitted under the Corporations Act.
57.4 A Company may execute any agreement, deed, share certificate (if
any) or other document in any manner permitted by law including with or
without the use of a common seal. Every document which is executed shall be
signed by either:
(a) two Directors;
(b) a Director and the Secretary; or
(c) a Director and another authorised signatory appointed for
that purpose by the Directors.
57.5 The Directors may, by resolution, determine either generally or
in any particular case that the signature of any Director, Secretary or other
person appointed by the Directors for the purpose of signing any instruments
or documents which may need to be executed by the Company is affixed by some
mechanical, electronic or other means (to be specified in the resolution of
the Directors) provided that the use of such means is by such resolution
restricted to instruments and documents which bear evidence of examination by
the Company's Auditors.
58. Bills of Exchange
All cheques, promissory notes, drafts, bills of exchange, and other negotiable
instruments and all receipts for money paid to the Company shall be signed,
drawn, accepted, endorsed or otherwise executed, as the case may be, by any
two Directors or in such other manner as the Directors from time to time
determine.
59. Secretary
59.1 A Secretary or Secretaries of the Company must be appointed by
the Directors in accordance with the Corporations Act. At least 1 Secretary
must be ordinarily resident in Australia. The Directors may also appoint
acting and assistant Secretaries. Those appointments may be for any term, at
any remuneration and upon any conditions as the Directors think fit and any
person so appointed may be removed by the Directors.
60. Public officer
The Directors may appoint a public officer to the Company and may, if they
think fit, remove such person from office and appoint another in place of the
person removed from office.
61. Reserves
61.1 The Directors may set aside out of the profits or other surplus
assets such sums as they may think fit as reserves.
61.2 Subject to the provisions of the Corporations Act, all sums set
aside as reserves may be applied from time to time in the discretion of the
Directors for:
(a) meeting depreciation;
(b) meeting contingencies;
(c) repairing, improving or maintaining the property of the
Company;
(d) special Dividends;
(e) bonuses;
(f) equalising Dividends;
(g) paying Dividends; or
(h) such other purposes as the Directors in their absolute
discretion think proper and conducive to the interest of the Company or which
may be required by law.
61.3 The Directors may divide such reserves into separate funds as
they shall think fit.
61.4 The Directors may, pending any application of reserve sums as
provided in Rule 61.2:
(a) invest such reserve sums on such investments and Securities
(other than Shares of the Company or of its holding company) as they may think
fit;
(b) place such reserve sums or part thereof either on deposit or
at call at interest with any bank or banking institution or with any
corporation receiving money on deposit;
(c) from time to time deal with and vary any such investments
and Securities and dispose of all or any part of the investments for the
benefit of the Company; or
(d) divide the reserve fund into such special funds as they may
think fit.
61.5 The Directors may employ any asset or assets constituting the
reserves of the Company or any part of the asset or assets in the business of
the Company without being bound to keep same separate from the other assets of
the Company.
61.6 Any interest or other income derived from or accretions to such
investments or Securities shall be dealt with as profits arising from the
business of the Company.
61.7 The Directors may re-value any assets of the Company.
61.8 The Directors may carry forward so much of the profits as the
Directors consider appropriate or necessary without transferring same to a
reserve.
62. Dividends
62.1 Subject to:
(a) the provisions of Rule 61;
(b) this Constitution;
(c) the Corporations Act in relation to when a company may pay a
Dividend; and
(d) the special conditions or rights (if any) as to Dividends
attaching to any Shares,
the Directors shall be entitled to distribute the Equity of the Company by way
of Dividend and payment of Dividends on the Shares shall be in proportion to
the amounts Paid up on such Shares respectively at the date of declaration of
the Dividend.
62.2 If any Capital is Paid up on any Share in advance of calls or
otherwise on the footing that the same shall carry interest, such Capital
while carrying interest shall not confer a right to participate in Dividends.
62.3 Subject to Rules 62.1 and 62.2, all Dividends shall be
apportioned and paid proportionately to the amounts Paid on the Shares during
any portion or portions of the period in respect of which the Dividend is
declared unless any Share is issued on terms providing that it shall rank for
Dividend as from a particular date in which case it shall only rank for
Dividend from that date.
62.4 Subject to this Constitution and the Corporations Act, the
Directors may from time to time declare and pay to the Members such final
Dividends as appear to the Directors to be justified by the Equity of the
Company.
62.5 Subject to this Constitution and the Corporations Act, the
Directors may from time to time declare and pay to the Members such interim
Dividends as appear to the Directors to be justified by the Equity of the
Company.
62.6 No Dividend shall be paid otherwise than out of the Equity or
shall bear interest against the Company.
62.7 A declaration by the Directors as to the amount of Equity
available for Dividend shall be conclusive and binding on all Members of the
Company.
62.8 Subject to this Constitution and the Corporations Act, the
Directors may determine that any Dividend declared or recommended by them
shall be made payable out of any particular profits (whether current, past or
reserved profits) or otherwise as they in their discretion shall think fit,
subject however to any requirements of law in relation to amounts held in
share premium reserves, Capital redemption accounts or other special funds.
62.9 A transfer of Shares shall not pass the right to any Dividend
declared after such transfer and before the registration of the transfer.
62.10 All Dividends and interest shall belong and be paid (subject to any
lien or charge) to those Members who are on the Register at the date on which
the Dividend is declared payable, or at the date on which interest is payable
respectively, despite any subsequent transfer or transmission of Shares,
provided that the Directors may retain any Dividend payable on a Share in
respect of which any person is entitled under Rule 18 to become a Member or
which any person is entitled to transfer under that Rule, until such person
shall become a Member in respect of such Share or shall duly transfer the same
as the case may be.
62.11 The Directors may deduct from any Dividend payable to any Member all
sums of money, if any, presently payable by the Member to the Company on
account of calls or otherwise in relation to the Shares of the Company.
62.12 Any one of the several persons who are registered as the Joint
Holders of a Share may give an effectual receipt for any Dividends, payments
on account of Dividend, bonuses or other money payable in respect of the Share
so held.
62.13 Any Dividend, interest, or other money payable in cash in respect of
Shares or Debt Securities may be paid by:
(a) cheque or warrant sent through the post directed to the
registered address of the holder or, in the case of Joint Holders, to the
registered address of that one of the Joint Holders who is first named on the
Register or to such person and to such address as the holder or Joint Holders
may in writing direct and every such cheque or warrant shall be made payable
to the order of the person to whom it is sent;
(b) electronic funds transfer to an account nominated by the
holder to the Company for the purpose of receiving such payments, or in the
case of Joint Holders, to the account nominated to the Company by that Joint
Holder who is first named in the Register for the purpose of receiving such
payments; or
(c) in such other manner as the Directors determine from time to
time.
62.14 Notice of declaration of Dividend whether interim or otherwise shall
be given in the manner specified in Rule 79 to the persons entitled to share
in the Dividend.
62.15 All Dividends unclaimed after having been declared may be invested
and otherwise made use of by the Directors for the benefit of the Company
until claimed and the Company shall not be constituted a trustee in respect of
those funds. This paragraph is subject to the provisions of section 544 of
the Corporations Act and the Public Trustee Act 1978 (Qld).
63. Election to forego cash Dividends
63.1 The Board may, at its discretion and subject to the provisions of
this Rule, adopt a Dividend reinvestment plan (DRP) under which the Board may
decide (at the same time as it resolves to pay or to recommend any Dividend on
the Ordinary Shares) that each holder of Ordinary Shares to the extent that
the holder's Ordinary Shares are fully Paid shall have the option to:
(a) elect to forego the holder's right to share in such
Dividend; and
(b) to receive instead an issue of Ordinary Shares credited as
fully Paid to the extent and within the limits and on the terms and conditions
in the DRP and as set out in this Rule.
63.2 The Board shall provide a copy of the DRP and a summary of its
terms and conditions to all holders of Ordinary Shares from time to time.
63.3 If the Board resolves to allow such option in relation to any
Dividend, each holder of fully Paid Ordinary Shares conferring a right to
share in such Dividend may, by notice in writing to the Company (Notice of
Election) given in such form and within such period as the Board may from time
to time decide, elect to forego (subject to the provisions of Rule 63.4) the
Dividend which otherwise would have been paid to the holder on such of the
holder's Ordinary Shares conferring a right to share in such Dividend as the
holder shall specify in the Notice of Election and to receive in lieu Ordinary
Shares, to be allotted and issued credited as fully Paid in the manner and on
the terms determined by the Board under the DRP.
63.4 A shareholder entitled to make an election under Rule 63.3 shall
not be permitted to forego under the provisions of Rule 63.3 such amount of
Dividend per Share as the Board in its sole discretion may resolve shall not
be foregone.
63.5 Following the receipt of a duly completed Notice or Notices of
Election under Rule 63.3, the Board shall appropriate from such other reserve
or account which may be conducted by a company and from which bonus Shares may
be distributed, an amount equal to the aggregate nominal amount of the
Ordinary Shares to be allotted and credited as fully Paid to those holders of
Ordinary Shares who have given Notices of Election and shall apply the same in
paying up in full the number of Ordinary Shares required to be so allotted.
The Ordinary Shares so allotted and issued will rank pari passu with the
existing fully Paid Ordinary Shares and will rank for all Dividends on
Ordinary Shares declared after the date of such allotment.
63.6 The Board shall not exercise the power conferred on them by
Rule 63.1 unless the Company shall then have sufficient reserves to give
effect to any elections which could be made under the terms of this Rule.
63.7 The powers given to the Board by this Rule are additional to the
provisions for Capitalisation of profits provided for by this Constitution.
63.8 The Board shall not adopt a DRP or exercise the power conferred
on them by Rule 63.1 under the DRP in respect of any Dividend payment which
they resolve to make or recommend unless the Company shall, by ordinary
resolution passed at a Meeting, have approved the adoption of the DRP and the
use of that power in respect of any such payment or recommendation by the
Board under the DRP.
64. Dividends in specie
64.1 Any Meeting declaring a Dividend or bonus may direct payment of
such Dividend or bonus wholly or partly by the distribution of specific
assets, and in particular of Paid up Shares, Debentures or debenture stock of
the Company or of any other company or in any one or more of such ways and the
Directors shall give effect to such resolution.
64.2 Where any difficulty arises in relation to the distribution of
assets as provided in Rule 64.1, the Directors may settle such difficulty in
such manner as they think fit and may:
(a) fix the value for distribution of all or part of the assets;
(b) determine that cash payments shall be made to any Members on
the basis of the value so fixed or that fractions of less than $1 may be
disregarded in order to adjust the rights of all parties; and
(c) vest any such specific assets in trustees on such trusts for
the persons entitled to the Dividend as determined by the Directors at their
discretion.
65. Employee bonuses and employee scheme
65.1 The Directors may from time to time reserve out of the profits of
the Company in any year a sum or sums of money, and distribute all or any part
of the amount as a bonus or bonuses among the employees of the Company and the
subsidiaries of the Company or any of them at such time and in such amounts
and on such terms and conditions as the Directors may determine.
65.2 The Directors may at their discretion introduce an employee
scheme under which the Company may issue Securities in the Company to
employees of the Company in any manner permitted by:
(a) this Constitution, the Corporations Act and the law; and
(b) where the Company is Listed, the Listing Rules.
66. Capitalisation of profits
66.1 The Company at a Meeting may, on the recommendation of the
Directors, resolve:
(a) that any part of the undivided profits of the Company which
are available for distribution (including profits standing to the credit of
any reserve other than the Capital redemption reserve or of the profit and
loss account and profits arising from accretion in value as disclosed on
revaluation of fixed assets) shall be divided or distributed as Capital among
such of the Members as would be entitled to receive the same if distributed as
Dividends and in the same proportions; and
(b) that all or any part of the profits referred to in
Rule 66.1(a) be appropriated in or towards payment of the uncalled liability
of such Members on issued Shares or Debentures held by them, or be applied in
paying up in full previously unissued Shares or Debentures all of which shall
be distributed to the Members entitled according to their respective rights,
or partly in one way and partly in the other.
66.2 A Capital redemption reserve fund may for the purposes of this
Rule be applied only in the paying up of unissued Shares to be issued to
Members of the Company as fully Paid bonus Shares.
66.3 Whenever a resolution has been passed under the provisions of
Rule 66.1, the Directors must in accordance with such resolution:
(a) make all appropriations and applications of the undivided
profits resolved to be capitalised;
(b) make all allotments and issues of fully Paid Shares or
Debentures, if any; and
(c) do all acts and things required to give effect to the
resolution.
66.4 In carrying out their duties under Rule 66.3, the Directors have
full power to make such provision by payment in cash or otherwise as they
think fit, for the case of Shares or Debentures becoming distributable in
fractions.
66.5 Any payment or distribution of or in relation to capitalised
profits to any Members made under this Rule is binding on and accepted by such
Members in full satisfaction of their respective interests in such profits.
67. Accounts
67.1 The Directors shall cause the Company to:
(a) keep such accounting records as correctly record and explain
the transactions (including any transactions as trustee) and financial
position of the Company;
(b) keep its accounting records in such a manner as will enable
true and fair accounts of the Company to be prepared from time to time; and
(c) keep its accounting records in such manner as will enable
the accounts of the Company to be conveniently and properly audited in
accordance with the Corporations Act.
67.2 Subject to any law to the contrary, the Directors shall lay
before each annual general meeting of the Company the Financial Statements and
Financial Report made up to the end of the Company's financial year giving a
true and fair view of the state of affairs of the Company as at the end of
that financial year.
68. Directors' report
The Directors of the Company shall cause to be attached to every Financial
Report, a report made in accordance with a resolution of the Directors and
signed by not less than two of the Directors with respect to the profit and
loss of the Company for that financial year and the state of the Company's
affairs as at the end of that financial year, stating the matters required by
the Corporations Act.
69. Distribution of accounts
69.1 The Financial Report together with such other material as is
required to be sent by section 314 of the Corporations Act (Annual Report)
shall be sent direct to every person entitled to receive notice of Meetings of
the Company by the earlier of:
(a) 21 days before the next annual general meeting after the
end of the relevant financial year to which the reporting under section 314
of the Corporations Act relates (Relevant Financial Year); or
(b) four Months after the end of the Relevant Financial Year.
69.2 If the Company is Listed:
(a) Rule 69.1 is to be read subject to the requirements for
reporting to Members under the Listing Rules; and
(b) a copy of such Financial Statements, Financial Report,
Directors Report and such other material as is required to be sent by
section 314 of the Corporations Act shall be forwarded to the Home Branch at
the same time as the material is provided to shareholders (or at such other
time as may be prescribed under the Listing Rules), together with additional
copies of all such material as the Company shall be obliged to provide under
the Listing Rules.
69.3 The Company shall (when it is obliged under the Corporations Act
to lodge annual Financial Statements) provide the Home Branch with a copy of
those documents at the same time as they are lodged with the ASIC.
69.4 The Company may provide the Annual Report in any manner permitted
by the Corporations Act including, without limitation, section 314.
69.5 Notwithstanding any other Rule of this Constitution, the Annual
Report to be sent to a Member in accordance with this Constitution shall be
deemed to have been given to that Member:
(a) where the Annual Report is sent by post, on the day
following that on which the letter envelope or wrapper containing the same was
posted;
(b) where the Annual Report is sent or notified by facsimile,
service shall be deemed to have been given at the time when a transmission of
the facsimile is completed by the Company and a report is generated stating
that the transmission has been sent to the facsimile number; or
(c) where the Annual Report is sent or notified by electronic
transmission or other electronic means, service shall be deemed to have been
given when the Company receives a report confirming the transmission has been
received, or if no such report is received, on the day following that which it
was sent.
70. Inspection of books of account
70.1 The books of account and records shall be kept at the Office of
the Company or at such other place or places as the Directors think fit and
shall at all times be open to inspection by the Directors of the Company or of
any holding company of the Company.
70.2 Subject to the provisions of the Corporations Act, the Directors
shall from time to time determine whether and to what extent and at what times
and places and under what conditions or regulations the books of account and
records of the Company or any of them shall be open to the inspection of the
Members.
70.3 A Member shall only be entitled to inspect any accounts, records,
books or documents of the Company:
(a) if that Member also a Director;
(b) as provided by the Corporations Act;
(c) as authorised by the Directors under Rule 70.2; or
(d) by a resolution of the Company at a Meeting.
71. Accounts conclusive
Every account of the Company (including any consolidated accounts of the
Company and its subsidiaries or holding company if any) when audited and
approved by a Meeting shall be conclusive.
72. Audit
72.1 An Auditor or Auditors shall be appointed and his or their duties
shall be regulated in accordance with the Corporations Act.
72.2 The Auditor shall report to the Members on the Financial
Statements to be laid before the Company at a Meeting and on the Company's
accounting records relating to those Financial Statements and, if the Company
is a holding company for which group accounts are required by the Corporations
Act, the Auditor of the Company shall also report to the Members on the group
accounts.
72.3 Any person who is:
(a) a Director of the Company;
(b) an Officer of the Company;
(c) a partner, employer or employee of a Director or Officer of
the Company;
(d) a partner, employer or employee of an employee of a Director
or Officer of the Company;
(e) not a registered company auditor; or
(f) indebted in any amount exceeding $5,000 to the Company or to
a Related Body Corporate,
shall not be capable of being appointed or of acting as Auditor of the
Company.
72.4 A copy of an Auditor's qualified report must be supplied by the
Directors to the Home Branch.
72.5 The Company's Share Register and branch registers (if any) shall
be audited at such times as are required by any relevant law (if any) or the
Listing Rules (if required).
73. Buy-back arrangements
The Company may buy Securities in itself from time to time and shall be
entitled to give financial assistance to any entity for the purpose of the
same:
(a) to the extent and in the manner permitted by the
Corporations Act or by law; and
(b) if Listed, to the extent and in the manner permitted by the
Listing Rules.
74. Sale of less than minimum holding
74.1 This Rule has effect notwithstanding any other provision of this
Constitution to the contrary and shall override the same to the extent of any
inconsistency.
74.2 In this Rule:
Continuation Election Notice means a notice by a Small Holder in the form
contained on or enclosed with a Continuing Member Notice and completed and
signed in accordance with the instructions on the Continuing Member Notice,
notifying the Company that this Rule is not to apply to that Small Holder so
that that Small Holder may remain as the holder of the Securities registered
in its name.
Continuing Member Notice means a notice issued under Rule 74.3 below.
Election Deadline means 5.00pm (Australian Eastern Standard Time) on a date
specified in a Continuing Member Notice, being a date not less than six weeks
after the date of dispatch of that Continuing Member Notice.
Sale Consideration means the consideration received for the sale of any
Securities (less any unpaid calls instalments or interest (if any) accrued on
those instalments) under this Rule.
Small Holders means persons registered, either alone or jointly with any other
persons, as the holders of less than a Marketable Parcel of a class of
Securities in the Company.
74.3 Subject to the provisions of this Rule, the Board may determine
no more than once in any 12 Month period, to require all (and not merely
some) of the Small Holders of any class of Securities in the Company to elect
whether they wish to remain as the holders of the Securities of that class in
the Company registered in their name by forwarding to each such Small Holder
(including all persons registered jointly) a Continuing Member Notice
containing or enclosing:
(a) details of the Securities of that class in the company held
by the Small Holder;
(b) statements to the effect that:
(1) the Company intends to invoke the provisions of this Rule
which allows for the sale of Securities of that particular class held by all
Small Holders in that class;
(2) if the Company does not receive from any such Small Holder a
Continuation Election Notice by the Election Deadline, the Company will be,
subject to this Rule, entitled to sell the Securities of that particular class
held by those particular Small Holders in its absolute discretion; and
(3) in the case of a Member whose Securities are in a CHESS
holding, that the Company may, without further notice, after the Election
Deadline, move the Securities from the CHESS holding to an Issuer Sponsored or
certificated holding for the purpose of sale;
(c) a Continuation Election Notice;
(d) a copy of the text of this Rule; and
(e) any other information which the Directors may desire to
include.
74.4 If a Small Holder on whom a Continuing Member Notice has been
served wants to keep the Securities referred to in the Continuing Member
Notice, the Small Holder must give the Company a Continuation Election Notice
which must be received by the Company before the Election Deadline, in which
event the Company will not sell the Securities referred to in the Continuing
Member Notice.
74.5 If a Small Holder on whom a Continuing Member Notice has been
served does not give a Continuation Election Notice which is received by the
Company before the Election Deadline, the Company shall be entitled to,
subject to this Rule:
(a) if the Small Holder holds those Securities in a CHESS
Holding, move those Securities from the CHESS Holding to an Issuer Sponsored
or a certificated holding for the purpose of the sale; and
(b) in any case, sell those Securities in accordance with this
Rule,
but only if the Securities held by the Small Holder in the class of Securities
the subject of the Continuing Member Notice on the Election Date is less than
a Marketable Parcel.
74.6 Any Securities to be sold under this Rule may be sold on such
terms and conditions, in such manner, at such prices and to such persons
(including the Company itself where authorised by law) as the Board may, in
its absolute discretion, think fit and, for the purposes of such sale, each
such Small Holder shall be deemed to have:
(a) appointed the Company as its agent for sale;
(b) authorised the Company to effect on its behalf a transfer of
the Securities sold and to deal with the proceeds of the sale of the
Securities in accordance with this Rule;
(c) appointed the Company, its Directors and the Secretary at
the relevant time jointly and severally as its attorney to execute any
instrument or take such steps in its name and on its behalf as they or any of
them may consider appropriate to transfer the Securities so sold; and
(d) authorised each of the attorneys appointed under
Rule 74.6(c) to appoint an agent to do a thing referred to in Rule 74.6(c).
74.7 Any transferee of any Securities sold under this Rule shall not
be bound to see to the regularity of any procedure or to the application of
the purchase consideration in respect of such sale nor shall any transferee be
required to produce the certificates in respect of such Securities to enable
registration. Once the transferee has been registered as the holder of such
Securities the transferee's title shall not be affected by any irregularity or
invalidity in any procedure and the only remedy of any Small Holder aggrieved
by the sale of its Securities under this Rule shall be in damages only and
against the Company exclusively and shall be limited to the amount of the
relevant Sale Consideration.
74.8 The costs and expenses of any sale of Securities under this Rule
(including legal costs and disbursements, brokerage and stamp duty) shall be
borne and paid by the Company.
74.9 The Sale Consideration shall be held by the Company in trust for
the Small Holder whose Securities have been so sold.
74.10 On receipt of the Sale Consideration, the Company shall forthwith
notify such Small Holder in writing that the relevant class of Securities held
by it have been sold and that the relevant Sale Consideration is being held by
the Company pending the receipt by the Company of written instructions as to
how such money is to be dealt with. If the Small Holder has been issued with
a share certificate or certificates, the Small Holder's instructions to be
effective, must be accompanied by the share certificate or certificates in
respect of such Securities sold or, if the certificate or certificates have
been lost or destroyed, by a statement and undertaking under section 1070D(5)
of the Corporations Act.
74.11 Despite any provision of this Rule, either express or implied, to
the contrary:
(a) the Board shall not be bound to exercise the powers
conferred by this Rule and shall be entitled, at any time prior to a sale of
Securities being effected, to suspend or terminate its use by written notice
to the Small Holders affected;
(b) the accidental omission by the Company to give any notice
required under this Rule or the non-receipt of any such notice by any Small
Holder shall not invalidate any action undertaken in good faith under this
Rule;
(c) the Board may, in its absolute discretion, settle any
ambiguity, difficulty, anomaly or dispute which may arise in relation to the
operation of this Rule; and
(d) no sale of any Securities under this Rule shall be
undertaken if prior to such sale a Takeover Bid to acquire Securities of the
same class as the Securities which are to be sold under this Rule has either
been announced as being intended to be made or has been made and is still open
for acceptance.
74.12 If the Company is Listed, this Rule shall be subject to the
potential operation of the Listing Rules or the ASTC Settlement Rules (as the
case may be) to the Securities intended to be sold under this Rule.
75. Fractional entitlements and difficulties
The Board may determine, as it thinks fit, the manner in which fractional
entitlements or any difficulties relating to distribution and adjustment of
the rights of the Members themselves are to be dealt with and, without
limitation, may:
(a) specify that fractions are to be disregarded or that any
fractional entitlements are to be increased to the next whole number;
(b) make cash payments in lieu of fractional entitlements or
sell Shares not divisible by reason of fractional entitlements and account for
the net proceeds of sale to Members entitled to such fractions
proportionately;
(c) fix the value for distribution of any specific assets or any
part of those assets;
(d) vest any such cash Shares or specific assets in trustees on
trusts for the persons entitled to the Dividend or capitalised sum; or
(e) appoint a person to sign a contract, on behalf of the
Members entitled to any further Shares or Debentures on the capitalisation,
with the Company providing for the issue to them, credited as fully Paid up,
of any such further Shares or Debentures or for the payment by the Company on
their behalf of the amounts or any part of the amounts remaining unpaid on
their existing Shares by the application of their respective proportions of
the sum resolved to be capitalised.
76. Takeover approval provisions
Subject to the provisions of the Corporations Act, where offers have been made
for Shares in the Company under a Takeover Bid and each such offer relates to
a proportion of these Shares in the Company included in a class of Shares
being a proportion that is the same in respect of each offer, the Directors
shall refuse to register a transfer giving effect to a contract resulting from
the acceptance of any offer under the Takeover Bid unless the following
provisions have been complied with:
(a) the Directors shall convene a Meeting of the Company to be
held in accordance with this Constitution on a day which is not less than
15 days prior to the end of the period during which the offers made under the
Takeover Bid remain open;
(b) at the Meeting referred to the Members entitled to vote in
accordance with Rule 76(c) shall consider and vote on a resolution approving
the Takeover Bid which resolution shall be taken to have been passed if the
votes cast in favour of the resolution exceed 50% of all votes validly passed
in respect of the resolution; and
(c) for the purposes of the resolution referred to in
Rule 76(b), a person (other than the offerer under the Takeover Bid or a
person associated within the meaning of the Corporations Act with the bidder)
who, as at 5.00pm on the day on which the first offer under the Takeover Bid
was made, held Shares included in the class of Shares the subject of the
Takeover Bid is entitled to vote and despite anything contained in this
Constitution shall have one vote for each such Share held.
77. Notice to holders
77.1 Despite any other provision of this Constitution to the contrary,
a Member shall not be entitled to receive Notices in respect of a holding in
the event that the Member has returned to the Company a duly completed Request
for Suspension of Full Notice Rights as described in Rule 77.2(d) (Request
for Suspension of Full Notice Rights).
77.2 The Company shall at any time be entitled to give to a Member (in
the manner prescribed for the giving of notice of general meetings) the
documents referred to below:
(a) a written invitation to complete and return to the Company a
Request for Suspension of Full Notice Rights;
(b) an explanation that, in the event of that Member returning
to the Company a duly completed Request for Suspension of Full Notice Rights,
the Member will not be entitled to receive Notices in respect of that holding
and that such entitlement will be restored to the Member on return to the
Company of a duly completed Request for Full Notice Rights as described in
Rule 77.3 (Request for Full Notice Rights) at any time during which the
Member is a Member;
(c) an envelope, pre-printed with the address of the Registered
Office of the Company, in which the Request for Suspension of Full Notice
Rights may, should the Member so desire, be mailed to the Company free of
postage cost to the Member; and
(d) a form of Request for Suspension of Full Notice Rights as
nearly as practicable in the following form:
Pyx Resources Limited ACN 073 099 171
Request for Suspension of Full Notice Rights
I/We
(Full Name(s))
of
(Address(es))
being a Member, advise under Rule 77.2 of the Constitution of the Company
that I/we wish to cease to receive all Notices to which I/we would be entitled
were it not for the operation of Rule 77.2.
(Signature of Member(s))
(Date)
77.3 A Member who, by returning to the Company a duly completed
Request for Suspension of Full Notice Rights, has ceased to be entitled to
receive Notices shall have that right restored forthwith on the Company
receiving from that Member a duly completed Request for Full Notice Rights at
any time, and which Request for Full Notice Rights shall as nearly as
practicable be in the following form:
Pyx Resources Limited ACN 073 099 171
Request for Full Notice Rights
I/We
(Full Name(s))
of
(Address(es)
being a Member, advise under Rule 77.3 of the Constitution of the Company
that I/we wish to receive all Notices to which I/we would be entitled were it
not for the operation of Rule 77.2.
(Date) (Signature of Member(s))
77.4 On being requested to do so by a Member, the Company shall
forward a Request for Full Notice Rights to the Member in an envelope,
pre-printed with the address of the Registered Office of the Company, in which
the Request for Suspension of Full Notice Rights may, should the Member so
desire, be mailed to the Company free of postage cost to the Member.
77.5 By execution of a Request for Suspension of Full Notice Rights a
Member for the duration of any requested suspension shall not be entitled to
make any Claim against the Company in respect of non receipt of a Notice.
78. Confidential information
78.1 No Member, not being a Director, shall be entitled to require or
receive any information concerning the business, trading or customers of the
Company or any trade secret or secret process of or used by the Company.
78.2 Every Director, manager, trustee or Member of a committee of the
Company may be required by the Directors to sign a declaration pledging to
observe strict secrecy respecting all transactions of the Company. Such a
declaration may require the person so signing to pledge not to reveal any of
the matters which may come to the person's knowledge in the discharge of the
person's duties except when required to do so by the Directors or a Member of
a local board or by any Meeting of Members or by a court of law and except so
far as may be necessary in order to comply with any of the provisions in this
Constitution.
78.3 A person who ceases to be a Director of the Company shall, within
a period of seven years from the date of cessation from office, be given
access by the Company to materials referred to in Rule 78.1 (which came into
existence during the Director's term of office or arose from conduct during
that term) on the following terms and conditions:
(a) a written request is made to the Company for access by the
former Director (or that person's duly authorised representative) stating a
reasonable and lawful purpose for the access as well as particulars of the
documentation that the former Director is wishing to obtain access to;
(b) the notice in Rule 78.3(a) gives the Company a reasonable
period of time prior to when access is requested;
(c) the Company shall be entitled (acting at all times
reasonably) to reject or postpone (as the case may be) any request for access
on the basis that to provide access would impose an unreasonable burden on the
Company's resources, having regard to the circumstances of the Company at the
time;
(d) the former Director provides the Company with an undertaking
to meet all reasonable costs to be incurred by the Company in providing
access; and
(e) the former Director signs a declaration along similar terms
to that contemplated by Rule 78.2.
79. Notices
79.1 Any notice or document to be given by the Company under this
Constitution may be served on the person to be notified either personally, by
sending it through the post in a prepaid letter envelope or wrapper to the
person to be notified at his registered place of address or by sending it to
any facsimile number or electronic address notified by that person to the
Company for the purposes of the Company giving notices or documents to that
person.
79.2 Notwithstanding Rule 79.1, written notice of a meeting of the
Company and all associated documents may be given to a Member in any manner
permitted by the Corporations Act including, without limitation,
sections 249J(3) and 249J(3A).
79.3 Notwithstanding any other Rule of this Constitution, a notice of
meeting and all associated documents provided by the Company to a Member in
accordance with this Constitution shall be deemed to have been given to that
Member:
(a) where served personally, on the date of service;
(b) where the notice of meeting is sent by post, on the day
following that on which the letter envelope or wrapper containing the same was
posted;
(c) where the notice of meeting is sent or notified by
facsimile, service shall be deemed to have been given at the time when a
transmission of the facsimile is completed by the Company and a report is
generated stating that the transmission has been sent to the facsimile number;
or
(d) where the notice of meeting is sent or notified by
electronic transmission or other electronic means, service shall be deemed to
have been given when the Company receives a report confirming the transmission
has been received, or if no such report is received, on the day following that
which it was sent.
79.4 The signature to any notice to be given by the Company may be
written, typewritten or printed.
79.5 Where a non-resident Member has supplied an overseas facsimile or
other electronic address to the Secretary, the Secretary may endeavour to send
by facsimile or other means of electronic communication to the facsimile or
electronic address (as the case may be) a copy of any notice given to Members
but a failure to do so shall not affect the validity of any Meeting.
79.6 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 in
respect of the Share and notice so given shall be sufficient notice to all the
holders of such Share.
79.7 Every person who becomes entitled to any Share shall be bound by
every notice in respect of such Share which, prior to that person's name and
address being entered on the Register, has been duly given to the Member from
whom the person derives title to such Share.
79.8 Any notice or document delivered, sent or notified to a Member
under this Constitution shall, despite that such Member is then deceased and
whether or not the Company has notice of the Member's decease, be deemed to
have been duly served in respect of any Share whether held by the Member
solely or jointly with other persons, until some other person be registered in
the Member's stead as the holder or Joint Holder and such service shall for
all purposes of this Constitution be deemed a sufficient service of such
notice or document on the Member's legal personal representatives and on all
persons, if any, jointly interested with the Member in the Share.
79.9 Any notice served personally on a person shall be deemed to have
been given on the day of service.
79.10 Any notice sent by post shall be deemed to have been given on the
day following that on which the letter envelope or wrapper containing the same
was posted.
79.11 Any notice sent by facsimile shall be deemed to have been given at
the time when a transmission of the facsimile is completed by the Company and
a report is generated stating that the transmission has been sent to the
facsimile number.
79.12 Any notice sent by electronic transmission or other electronic
means, service shall be deemed to have been given when the Company receives a
report confirming the transmission has been received, or if no such report is
received, on the day following that which it was sent.
79.13 In proving service of a notice by post it shall be sufficient to
prove that the letter envelope or wrapper containing the notice was properly
addressed stamped and posted. A certificate in writing signed by any manager
Secretary or other officer of the Company that the letter envelope or wrapper
containing the notice was so addressed and posted shall in the absence of
evidence to the contrary be conclusive evidence.
79.14 Subject to Rule 79.15, any notices to be given under or in
reference to this Constitution by the Company to any Director or vice versa
may be given in accordance with Rule 79.1 and, if so given, shall be deemed
to have been given in accordance with rules 79.9, 79.10, 79.11 and 79.12.
Where a given number of days' notice or notice extending over any period is
required to be given, the day on which the notice is deemed to be served shall
be excluded but the day for which the notice is given shall be included in
calculating the number of days or other period.
79.15 Subject to any provisions with respect to service in the
Corporations Act or in the rules of any court in which proceedings are brought
by the Company or its liquidator against any Director or Member, all
summonses, notices, process, orders and judgments in relation to any such
proceedings may be served on such Director or Member by registered post and
the provisions contained in the foregoing paragraphs of this Rule shall apply
mutatis mutandis and such service shall be deemed for all purposes to be
personal service.
79.16 Subject to Rule 79.1, notice of every Meeting or, if required, any
adjournments shall be given in any manner authorised under this Rule to:
(a) every Member;
(b) every person entitled by transmission to vote under this
Constitution; and
(c) the Auditor for the time being of the Company.
80. Overseas Shareholders
80.1 On an issue of Equity Securities, the Directors may take such
steps as are authorised from time to time by the Listing Rules and as they
shall think fit to provide equitably in all the circumstances for the rights
and interests of any Overseas Shareholder.
80.2 Documents for Overseas Shareholders shall be forwarded by air, by
facsimile, by electronic transmission or in another way that ensures they will
be received quickly.
80.3 In this Rule 80, Overseas Shareholder means a Member of the
Company who has not supplied to the Company an address within Australia under
Rule 79.1 and:
(a) being an individual, the Directors have reason to believe is
not resident in Australia; or
(b) being a company, the Directors have ascertained that it is
not registered in Australia.
81. Indemnity and liability of directors and other officers
81.1 To the extent permitted by law, the Company shall:
(a) indemnify a person who is or has been an Officer of the
Company against liability incurred by the person as such an Officer to another
person (other than the Company or a Related Body Corporate); and
(b) indemnify a person who is or has been an Officer or Auditor
of the Company against liability for costs and expenses incurred by the person
in defending proceedings, whether civil or criminal, in which judgment is
given in favour of the person or in which the person is acquitted or in
connection with an application, in relation to such proceedings, in which the
Court grants relief to the person under the Corporations Act.
81.2 The Company may pay, or agree to pay, at the discretion of the
Directors, a premium in respect of a contract insuring a person who is or has
been an Officer of the Company against the liability incurred by the person as
such an Officer, except for a liability arising out of conduct involving a
wilful breach of duty in relation to the Company or a contravention of
sections 182 or 183 of the Corporations Act. In the case of a Director,
any such premium shall be paid in addition to any remuneration paid to that
Director by the Company in accordance with the Constitution.
82. Restricted Securities
82.1 Subject to Rule 17.6, the Company shall refuse to acknowledge,
deal with, accept or register any sale, assignment or transfer of Restricted
Securities which is or might be in breach of the Listing Rules or any escrow
agreement entered into by the Company under the Listing Rules in relation to
the Restricted Securities.
82.2 In the event of a breach of any escrow or restriction agreement
entered into by the Company under the Listing Rules in relation to Shares
which are Restricted Securities, the Member holding the Restricted Securities
shall to the extent permitted by law while the breach continues cease to be
entitled to any Dividends and to any voting rights in respect of those Shares.
83. Winding up
83.1 In this Rule, Surplus Assets means those assets of the Company
which, on the winding up of the Company, remain after the payment of debts and
liabilities of the Company and of the costs of winding up.
83.2 Subject to Rule 83.3, and the terms and conditions on which any
Shares have been issued, the Surplus Assets shall be distributed as follows:
(a) first, in repayment of Paid-up Capital in accordance with
the respective rights of the Members; and
(b) second, the balance then remaining shall be distributed
among the ordinary Members in proportion to the Capital Paid up or which
ought to have been Paid up at the commencement of the winding up on the
Shares held by them respectively other than amounts Paid in advance of calls.
83.3 Subject to the provisions of Rule 83.4, if the Surplus Assets
shall be insufficient to repay the whole of the Paid up Capital, such assets
shall be distributed, so that the losses shall be borne by the Members in
proportion to the Capital Paid up or which ought to have been Paid up at the
commencement of the winding up on the Shares held by them respectively, but
disregarding amounts Paid in advance of calls.
83.4 If the Company is wound up in any way, then, subject to the
rights of holders of Shares issued on special conditions, the liquidator, with
the sanction of a special resolution, may:
(a) divide in specie among the contributories of the Company any
part of the Surplus Assets; and
(b) vest any part of the Surplus Assets in trustees on such
trusts for the benefit of the contributories or any of them as the liquidator
shall think fit.
83.5 Any division by a liquidator under Rule 83.4 may be otherwise
than in accordance with the legal rights of the contributories of the Company
and in particular any class may be given preference or special rights or may
be excluded altogether or in part provided that if any division otherwise than
in accordance with the legal rights of the contributories shall be decided on,
any contributory who would be prejudiced thereby shall have a right of dissent
and ancillary rights as if such determination were a special resolution passed
under the Corporations Act.
83.6 If the Surplus Assets to be distributed under Rule 83.4 are
Shares on which there are unpaid calls, any person entitled under such
distribution to any of the said Shares may within ten days after the passing
of the special resolution by notice in writing direct the liquidator to sell
that person's proportion and pay the person the net proceeds.
83.7 Remuneration may only be paid by the Company to any Director or
liquidator on any sale or realisation of any part of the Company's undertaking
or assets except with the prior sanction of a Meeting convened by at least
seven days' notice specifying the remuneration proposed to be paid.
84. Supply of documentation to Exchange
The Company shall supply to the Exchange all documentation required by the
Listing Rules to be lodged with the Home Branch or released or issued by the
Company for the information of holders of any of the Company's Securities.
85. Sale of main undertaking
Any sale or disposal of the Company's main undertaking shall be conditional on
approval by shareholders at a Meeting who are permitted to vote on the
resolution.
86. Listing and ASTC Settlement Rules
86.1 If the Company is Listed and for so long as the Company remains
Listed, the following provisions shall apply:
(a) even if contrary to a provision in this Constitution, if the
Listing Rules prohibit an act being done, the act must not be done;
(b) no provision contained in this Constitution may prevent 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 Constitution to contain a
provision which is omitted, this Constitution is deemed to contain that
provision;
(e) if the Listing Rules require this Constitution to omit a
provision which is in this Constitution, this Constitution is deemed not to
contain that provision; and
(f) if any provision of this Constitution is or becomes
inconsistent with the Listing Rules, this Constitution is deemed not to
contain that provision to the extent of the inconsistency.
86.2 If the Company is Listed and for so long as the Company remains
Listed, this Constitution (other than Rule 86.1) is also to be read as
subject to the ASTC Settlement Rules and in the case of any inconsistency
between any Rule (other than Rule 86.1) and any provision of the ASTC
Settlement Rules, the provisions of the ASTC Settlement Rules shall prevail
and the Rule should be read down accordingly.
86.3 The provisions of Rule 86.1 shall be paramount and given full
force and effect despite any inconsistency between any Rule or any provision
of the ASTC Settlement Rules.
87. Foreign listing
If the Company is admitted to quotation on a foreign stock exchange (Foreign
Exchange) so long as the Company is listed on the Foreign Exchange it shall
comply with the rules and regulations of the Foreign Exchange (Foreign Listing
Rules) except to the extent that the Foreign Listing Rules are contrary to or
inconsistent with the Listing Rules.
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