TIDMEMH
RNS Number : 3658V
European Metals Holdings Limited
01 December 2023
European Metals Holdings Limited
ARBN 154 618 989
Notice of Annual General Meeting
The annual general meeting of the Company will be held at Ground
Floor, 41 Colin Street, West Perth, Western Australia on Friday, 22
December 2023 at 3:00pm (AWST) ( 7:00 am GMT) .
If you are unable to attend the Meeting, please complete the
Proxy Form enclosed and return it to Computershare as soon as
possible and no later than 7.00am (GMT) on 20 December 2023.
This is an important document. Please read it carefully and in
its entirety. If you do not understand it, please consult with your
financial and/or other professional adviser immediately.
Shareholders are urged to attend or vote by lodging the Proxy
Form or Voting Instruction Form attached to this Notice.
Contents
Notice of Meeting
...................................................................................................................
1
Explanatory Memorandum
..................................................................................................
4
1 Introduction ...................................................................................................................... 4
2 Resolution 1 - Re-election of Director ................................................................................ 4
3 Background to Resolutions 2, 3 and 4 ................................................................................ 4
4 Resolution 2 - Ratification of EBRD Subscription Shares ................................................... 5
5 Resolution 3 - Migration of the Company to Australia ......................................................... 7
6 Resolution 4 - Adoption of New Constitution ...................................................................... 9
7 Resolution 5 - Appointment of Auditor ............................................................................. 13
8 Resolution 6 - Approval of Employee Incentive Plan ......................................................... 14
9 Resolution 7 - Approval of 10% Placement Facility ........................................................... 15
10 Action to be taken by Shareholders .................................................................................. 19
Schedule 1 Definitions
.........................................................................................................
22
Schedule 2 Summary of Subscription Agreement
........................................................ 25
Schedule 3 Key terms of the European Metals Holdings Limited Equity Incentive Plan 26
Annexure 1 - New Constitution
Key Dates
Dispatch of notice of meeting to Shareholders 6 December 2023
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Shareholder Voting entitlement date 19 December 2023 at 6:00pm (GMT)
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Australian CDI Voting close 19 December 2023 at 3:00pm (AWST)
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Depositary Interest Voting close 19 December 2023 at 2:00pm (GMT)
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Proxy close 20 December 2023 at 7:00am (GMT)
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Annual General Meeting 22 December 2023 at 3:00pm (AWST) / 7:00am
(GMT)
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Important notices
Not investment advice
This booklet does not take into account the investment
objectives, financial situation, tax position or particular needs
of any Shareholder of the Company or any other person. This booklet
should not be relied upon as the sole basis for any decision in
relation to Shares or any other securities. Shareholders should
consider seeking independent advice before making any decision
regarding the resolutions to be put to the Meeting.
Notice of Meeting
Notice is hereby given that an annual general meeting of
Shareholders of European Metals Holdings Limited (Company) will be
held at Ground Floor, 41 Colin Street, West Perth, Western
Australia on Friday, 22 December at 3:00pm (AWST) (7.00 am GMT)
(Meeting).
The Explanatory Memorandum provides additional information on
matters to be considered at the Meeting. The Explanatory Memorandum
and the Proxy Form form part of this Notice.
The Directors have determined pursuant to Article 7.11 of its
Articles of Association that the persons eligible to vote at the
Meeting are those who are registered as Shareholders on 19 December
2023 at 6:00pm (GMT).
Terms and abbreviations used in this Notice (including the
Explanatory Memorandum) are defined in Schedule 1.
Resolution 1 - Re-election of Director - Mr Keith Coughlan
To consider and, if thought fit, to pass with or without
amendment, as an ordinary resolution the following:
"That, pursuant to and in accordance with Listing Rule 14.4 and
Article 8.6 of the Company's Articles of Association and for all
other purposes, Mr Keith Coughlan retires, and being eligible, is
re-elected as a Director on the terms and conditions in the
Explanatory Memorandum."
Resolution 2 - Ratification of EBRD Subscription Shares
To consider and, if thought fit, to pass with or without
amendment, as an ordinary resolution the following:
"That, pursuant to and in accordance with Listing Rule 7.4 and
for all other purposes, Shareholders ratify the prior issue of
12,315,213 Shares to EBRD on the terms and conditions in the
Explanatory Memorandum."
Voting Exclusion: The Company will disregard any votes cast in
favour of Resolution 2 by or on behalf of EBRD or a n associate of
EBRD.
However, this does not apply to a vote cast in favour of
Resolution 2 by:
-- a person as proxy or attorney for a person who is entitled to
vote on Resolution 2, in accordance with the directions given to
the proxy or attorney to vote on Resolution 6 in that way; or
-- the Chair as proxy or attorney for a person who is entitled
to vote on Resolution 2, in accordance with a direction given to
the Chair to vote on Resolution 2 as the Chair decides; or
-- a holder acting solely in a nominee, trustee, custodial or
other fiduciary capacity on behalf of a beneficiary provided the
following conditions are met:
o the beneficiary provides written confirmation to the holder
that the beneficiary is not excluded from voting, and is not an
associate of a person exclude from voting, on Resolution 2; and
o the holder votes on Resolution 2 in accordance with directions
given by the beneficiary to the holder to vote in that way.
Resolution 3 - Migration of the Company to Australia
To consider and, if thought fit, to pass with or without
amendment, as a special resolution the following:
"That, subject to the passing of Resolution 4 and compliance
with the requirements of each of the Corporations Act and BVI
Business Companies Act, approval is given for the Company to make
an application to the BVI Registry of Corporate Affairs for removal
from the BVI Register of Companies pursuant to the provisions of
the BVI Business Companies Act, and for registration of the Company
as a public company limited by shares with ASIC pursuant to the
provisions of section 601BC of the Corporations Act on the terms
contained in the Explanatory Memorandum."
Resolution 4 - Adoption of Constitution
To consider and, if thought fit, to pass with or without
amendment, as a special resolution the following:
"That, pursuant to and in accordance with the Articles of
Association of the Company and for all other purposes, subject to
the passing of Resolution 3 and the registration of the Company as
a public company limited by shares with ASIC, the Company adopt the
Constitution on the terms and conditions in the Explanatory
Memorandum, in substitution for the existing Articles of
Association of the Company, effective on the date that the Company
is registered with ASIC."
Resolution 5 - Appointment of Auditor
To consider and, if thought fit, to pass with or without
amendment, as an ordinary resolution the following:
"That, for all purposes, BDO Audit Pt Ltd, having consented in
writing to act in the capacity of auditor, be appointed as auditor
of the Company with effect from the end of the Meeting."
Resolution 6 - Approval of Employee Incentive Scheme
To consider and, if thought fit, to pass with or without
amendment, as an ordinary resolution the following:
"That, for the purposes of ASX Listing Rule 7.2 (Exception
13(b)), and for all other purposes, approval is given to enable the
Company to issue Equity Incentives under the employee incentive
scheme titled "European Metals Holdings Limited Equity Incentive
Plan", on the terms and conditions set out in the Explanatory
Statement."
Voting Exclusion: The Company will disregard any votes cast in
favour of Resolution 6 by or on behalf of a person who is eligible
to participate in the European Metals Holdings Equity Incentive
Plan, or an associate of that person or those persons.
However, this does not apply to a vote cast in favour of
Resolution 6 by:
-- a person as proxy or attorney for a person who is entitled to
vote on Resolution 6, in accordance with the directions given to
the proxy or attorney to vote on Resolution 6 in that way; or
-- the Chair as proxy or attorney for a person who is entitled
to vote on Resolution 6, in accordance with a direction given to
the Chair to vote on Resolution 6 as the Chair decides; or
-- a holder acting solely in a nominee, trustee, custodial or
other fiduciary capacity on behalf of a beneficiary provided the
following conditions are met:
o the beneficiary provides written confirmation to the holder
that the beneficiary is not excluded from voting, and is not an
associate of a person exclude from voting, on Resolution 6; and
o the holder votes on Resolution 6 in accordance with directions
given by the beneficiary to the holder to vote in that way.
Voting Prohibition Statement: A person appointed as a proxy must
not vote, on the basis of that appointment, on Resolution 6 if:
-- the person is either:
o a member of the Key Management Personnel; or
o a Closely Related Party of such a member; and
-- the appointment does not specify the way the proxy is to vote on Resolution 6.
However, the above prohibition does not apply if:
-- the proxy is the Chair; and
-- the appointment expressly authorises the Chair to exercise
the proxy even if Resolution 6 is connected directly or indirectly
with the remuneration of a member of the Key Management
Personnel.
Resolution 7 - Approval of 10% Placement Facility
To consider and, if thought fit, to pass with or without
amendment, as a special resolution the following:
"That, in accordance with Listing Rule 7.1A and for all other
purposes, Shareholders approve the issue of Equity Securities of up
to 10% of the issued capital of the Company (at the time of issue)
calculated in accordance with the formula prescribed in Listing
Rule 7.1A.2 and on the terms and conditions in the Explanatory
Memorandum."
Voting Exclusion: The Company will disregard any votes cast in
favour of Resolution 7 by or on behalf of a person who is expected
to participate in the 10% Placement Facility, or any person who
will obtain a material benefit as a result of, the proposed issue
(except a benefit solely by reason of being a holder of ordinary
securities in the Company) or an associate of that person or those
persons.
However, this does not apply to a vote cast in favour of
Resolution 7 by:
-- a person as proxy or attorney for a person who is entitled to
vote on Resolution 7, in accordance with the directions given to
the proxy or attorney to vote on Resolution 7 in that way; or
-- the Chair as proxy or attorney for a person who is entitled
to vote on Resolution 7, in accordance with a direction given to
the Chair to vote on Resolution 7 as the Chair decides; or
-- a holder acting solely in a nominee, trustee, custodial or
other fiduciary capacity on behalf of a beneficiary provided the
following conditions are met:
o the beneficiary provides written confirmation to the holder
that the beneficiary is not excluded from voting, and is not an
associate of a person exclude from voting, on Resolution 7; and
o the holder votes on Resolution 7 in accordance with directions
given by the beneficiary to the holder to vote in that way.
Dated: 1 December 2023
By order of the Board
Shannon Robinson
Company Secretary
Explanatory Memorandum
1 Introduction
This Explanatory Memorandum has been prepared for the
information of Shareholders in connection with the business to be
conducted at the Meeting to be held at Ground Floor, 41 Colin
Street, West Perth, Western Australia on 22 December 2023 at 3:00pm
(AWST) (7:00am GMT).
This Explanatory Memorandum together with the Proxy Form at
Annexure 1 each form a part of this Notice. This Explanatory
Memorandum contains the terms and conditions on which the
Resolutions will be voted.
2 Resolution 1 - Re-election of Director
2.1 General
Listing Rule 14.4 provides that no Director shall hold office
past the third annual general meeting following their appointment
or 3 years, whichever is longer.
In addition, Article 8.6 of the Articles of Association sets out
the requirements for determining which Directors are to retire by
rotation at an annual general meeting.
2.2 Mr Keith Coughlan
Keith Coughlan was appointed as a Director on 6 September 2013
and was last elected by Shareholders at the 2020 annual general
meeting held on 17 December 2020. In accordance with Listing Rule
14.4 and the Articles of Association, Mr Coughlan will retire and
being eligible, seeks re-election from Shareholders.
Resolution 1 is an ordinary resolution. If Resolution 1 is
passed, Mr Coughlan will be re-elected as a Director. At the time
of this Annual General Meeting, Mr Coughlan's term of office will
be approximately 10 years. Mr Coughlan is an Executive Chairman. If
Resolution 1 is not passed, Mr Coughlan will not be re-elected as a
Director.
The Board (excluding Mr Coughlan) recommends that Shareholders
vote in favour of Resolution 1.
Qualifications and other material directorships
Mr Coughlan has almost 30 years' experience in stockbroking and
funds management. He has been largely involved in the funding and
promoting of resource companies listed on ASX, AIM and TSX. He has
advised various companies on the identification and acquisition of
resource projects and was previously employed by one of Australia's
then largest funds management organisations.
Mr Coughlan is Non-Executive Chair of Doriemus Plc
(ASX:DOR).
3 Background to Resolutions 2, 3 and 4
As announced on 21 July 2023, the European Bank for
Reconstruction and Development (EBRD) agreed to invest EUR 6
million to support the Company's development of the Cinovec project
in the Czech Republic (EBRD Subscription) via the entry into a
subscription agreement (EBRD Subscription Agreement) and a project
support agreement (EBRD Project Support Agreement).
EBRD is owned by the European Union, European Investment Bank
and 71 countries, including the Czech Republic.
Pursuant to the EBRD Subscription Agreement the Company issued
12,315,213 Shares to ERBD (EBRD Subscription Shares) on 23 August
2023 (Issue Date).
Under the EBRD Project Support Agreement, the Company provided
undertakings to EBRD to comply with certain EBRD policies and
requirements and, subject to certain conditions, EBRD has been
granted rights that allow participation in future financings to
maintain its pro rata equity interest in the Company.
To facilitate further investor interest in the Company, the
Board has resolved, subject to Shareholder approval pursuant to
Resolution 3, to migrate the Company from the British Virgin
Islands to Australia (Migration). The Migration will necessitate
the adoption of new articles of association (referred to as a
constitution in Australia) which is appropriate for and compliant
with Australian law (New Constitution).
Resolutions 3 and 4 are inter-conditional. That is, one will not
pass without the other given the interrelated nature of the
approvals.
Resolution 5 is inter-conditional on Resolution 3 only. However,
Resolution 3 is not inter-conditional on the passing of Resolution
5.
4 Resolution 2 - Ratification of EBRD Subscription Shares
4.1 Background
The EBRD Subscription will support the Company's development of
the Cinovec project in the Czech Republic. The proceeds will be
used to assist in funding pre-development works and studies for the
Cinovec project including preliminary works on alternative
production processes and environmental works, and working capital
expenditures for the period up to the completion of a definitive
feasibility study.
In addition to the funds raised, the Company's relationship with
EBRD is expected to be highly strategic as the EU charts a path
towards greater supply security and sustainability. Support for the
Company's greenfield zinnwaldite lithium Cinovec project aligns
with these EU goals.
Resolution 2 is an ordinary resolution and seeks Shareholder
approval to ratify the issue of the EBRD Subscription Shares.
4.2 Listing Rule 7.4
Broadly speaking, and subject to a number of exceptions, Listing
Rule 7.1 limits the amount of equity securities that a listed
company can issue without the approval of its shareholders over any
12 month period to 15% of the fully paid ordinary securities it had
on issue at the start of that period.
The issue of the EBRD Subscription Shares do not fit within any
of these exceptions and, as it has not yet been approved by the
Company's shareholders, it effectively uses up part of the 15%
limit in Listing Rule 7.1, reducing the Company's capacity to issue
further equity securities without shareholder approval under
Listing Rule 7.1 for the 12 month period following the Issue
Date.
Listing Rule 7.4 allows the shareholders of a listed company to
approve an issue of equity securities after it has been made or
agreed to be made. If they do, the issue is taken to have been
approved under Listing Rule 7.1 and so does not reduce the
company's capacity to issue further equity securities without
shareholder approval under that rule.
The Company wishes to retain as much flexibility as possible to
issue additional equity securities into the future without having
to obtain Shareholder approval for such issues under Listing Rule
7.1.
To this end, Resolution 2 seeks Shareholder approval to issue
the EBRD Subscription Shares under and for the purposes of Listing
Rule 7.4.
If Resolution 2 is passed, the EBRD Subscription Shares will be
excluded in calculating the Company's combined 25% limit in Listing
Rules 7.1 and 7.1A, effectively increasing the number of equity
securities the Company can issue without Shareholder approval over
the 12 month period following the date of issue of the EBRD
Subscription Shares.
If Resolution 2 is not passed, the EBRD Subscription Shares will
be included in calculating the Company's combined 25% limit in
Listing Rules 7.1 and 7.1A, effectively decreasing the number of
equity securities the Company can issue without Shareholder
approval over the 12 month period following the date of issue of
the EBRD Subscription Shares.
It is noted that the Company's ability to utilise the additional
10% capacity provided for in Listing Rule 7.1A for issues of equity
securities following this Meeting remains conditional on Resolution
7 being passed at this Meeting.
4.3 Specific information required by Listing Rule 7.5
In accordance with Listing Rule 7.5, information relating to the
EBRD Subscription is as follows:
(a) the EBRD Subscription Shares were issued to European Bank
for Reconstruction and Development;
(b) 12,315,213 fully paid ordinary shares were issued utilising
the Company's 15% placement capacity under Listing Rule 7.1;
(c) the EBRD Subscription Shares are fully paid ordinary shares
and rank equally in all respects with the Company's existing
Shares;
(d) the EBRD Subscription Shares were issued on 23 August 2023;
(e) the EBRD Subscription Shares were issued at a price of GBP
0.423 per Share (being AUD 0.803 equivalent per Share). The issue
price was calculated by reference to the volume weighted average
trading price of the Company's Shares on the ASX on the five
trading days preceding the date of signing of the EBRD Subscription
Agreement;
(f) the funds raised from the issue of the EBRD Subscription
Shares will be used to assist in funding pre-development works and
studies for the establishment of mining area at the greenfield
zinnwaldite lithium Cinovec deposit located in the Krusne Hory
Mountains in Czech Republic, including the further development of a
definitive feasibility study, preliminary works on alternative
production processes and environmental works, and working capital
expenditures for the period up to the completion of the feasibility
study;
(g) the EBRD Subscription Shares were issued pursuant to the
EBRD Subscription Agreement on standard terms and conditions except
that EBRD was granted certain ongoing rights. The material terms of
those rights are summarised in Schedule 2 of this Notice; and
(h) a voting exclusion statement is included in this Notice for Resolution 2.
4.4 Director recommendation
The Board believes that Resolution 2 is in the best interests of
the Company and its Shareholders and unanimously recommend that
Shareholders vote in favour of this Resolution.
The Chairman intends to vote undirected proxies in favour of the
Resolution.
5 Resolution 3 - Migration of the Company to Australia
5.1 Background
The Company is currently registered under the BVI Business
Companies Act and registered as a foreign company under the
Corporations Act. The Company is seeking the approval of
Shareholders to migrate to Australia which involves applying to
ASIC to register as an Australian public company limited by shares
under the Corporations Act.
As noted in section 3, the Board has resolved to propose the
Company's migration from BVI to Australia as the Board is of the
view that the advantages of the migration outweigh the
disadvantages. Details of the advantages and disadvantages, as
identified by the Board, are set out in sections 5.3 and 5.4
respectively.
Resolution 3 is a special resolution and therefore requires
approval of 75% of the votes cast by Shareholder's present and
eligible to vote (in person, by proxy, by attorney or, in the case
of a corporate Shareholder, by a corporate representative).
5.2 Process
The removal of the Company (as a company limited by shares) from
the register maintained by the BVI Registrar of Corporate Affairs
under the BVI Business Companies Act and the registration of the
Company (as a public company limited by shares) under the
Corporations Act does not create a new legal entity, materially
affect the Company's existing rights or obligations or affect or
render defective any legal proceedings by or against the Company or
its Shareholders. From all practical points of view the Company
remains the same legal entity.
As between the Company and the Shareholders, those rights will
change to the extent that the Company and its relationship with
Shareholders will be governed by the Corporations Act and not by
the BVI Business Companies Act.
Further, because a new Constitution is to be adopted as part of
the process, there will be minor changes to the rights of the
Shareholders pursuant to that Constitution. The adoption of the new
Constitution is the subject of Resolution 4. For further details
see section 6.
Under the BVI Business Companies Act the transfer of
registration requires the Company's BVI registered agent to file
with the BVI Registrar of Corporate Affairs:
(a) a notice of intention to continue out of the BVI, and a
declaration that the statutory advertisement and notice
requirements have been complied with;
(b) a Director's declaration to attest compliance with the
requirements of Australian law; and
(c) certificate of continuance (or provisional certificate of
continuance) from the companies registry in the new jurisdiction
(ie ASIC),
(together the Discontinuance Documents).
Upon due filing the Discontinuance Documents, the BVI Registrar
of Corporate Affairs shall issue a certificate of discontinuance.
The certificate of discontinuance is prima facie evidence that all
the requirements of the BVI Business Companies Act in respect of
the continuation of a company under the laws of a foreign
jurisdiction have been complied with, and that the company was
discontinued on the date specified in the certificate of
discontinuance. It therefore provides the date that the redomicile
became effective.
If approved, it is expected that the migration will be
implemented in accordance with the following timetable:
Annual General Meeting 22 December 2023
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Lodge application for migration (ASIC Form 202) with ASIC Approximately 15 March 2024
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Lodge Discontinuance Documents with BVI Registrar of Corporate Approximately 9 April 2024
Affairs
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Obtain certificate of discontinuance from BVI Registrar of Approximately 30 April 2024
Corporate Affairs and effective
date of the migration
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Due to material uncertainty as to the time necessary to achieve
these steps, these dates are provided on a best efforts basis and
are subject to change. The market will be updated once these steps
have been undertaken and clarity as to timelines is provided.
5.3 Advantages of the migration
The Board considers that the migration of the Company to
Australia is in the best interests of Shareholders for the reasons
set out below.
Reputational The BVI's international reputation has
impact of association been negatively impacted by high profile
with offshore and controversial cases of tax evasion,
financial centres fraud schemes, global crime and suspected
money laundering.
Investors such as EBRD have expressed
a reluctance to invest in companies domiciled
in offshore financial centres. The Board
is of the view that moving the domicile
of the Company to Australia will unlock
a larger pool of potential investors
(in terms of both equity and debt).
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Best practice Australia has a reputation for robust
corporate governance legislation and stringent regulatory
requirements. These requirements will
ensure the Company maintains best practice
corporate governance. The Company will
continue to comply with the ASX Corporate
Governance Council's Corporate Governance
Principles and Recommendations.
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Stronger nexus The Company's head office, the majority
to Australia of its management and its advisors reside
in Australia. The majority of Shareholders
reside in Australia.
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Regulatory The Company is already registered as
a foreign company in Australia and therefore
already complies with those Australian
regulations applicable to foreign companies.
Following the redomicile, the Company
will no longer have to comply with BVI
regulations. This will save on regulatory
and legal costs and management time and
effort.
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Tax implications BVI companies are exempt from corporate
taxes and stamp duty, even if they are
administered in BVI. The parent Company
is currently an Australian resident company
for Australian tax purposes and the Company
will continue to comply with Australian
corporate taxation laws.
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5.4 Disadvantages of the migration
The Board considers the migration to Australia does not pose any
material disadvantages to Shareholders. However in making their
decision, Shareholders should consider the potential disadvantages
set out below.
Transaction The Company will incur and have to pay
costs transaction costs (including legal costs
in Australia and the BVI) associated with
effecting the redomiciliation. Management
time and effort will be expended in giving
effect to the migration. In addition,
the Company will work with its Nominated
Advisor (NOMAD) to apply for an AIM Designated
Market Route, which is intended to be
completed prior to completion of the migration
to Australia to ensure continued trading
of the Company's securities on AIM. This
process will incur minor additional costs
and is subject to AIM regulator determination.
5.5 AIM Considerations
The migration would result in the Company needing to re-apply as
a new applicant to AIM. The Company has resolved to seek such
re-admission.
Subject to Shareholder approval of Resolution 3, the Company
will seek to formally initiate the re-admission to AIM.
The Company will keep the market and Shareholder informed of its
progress throughout the re-domiciliation process and will issue
further announcements as and when appropriate.
5.6 Directors' recommendation
The Board believes, subject to the passing of Resolution 4,
Resolution 3 is in the best interests of the Company and its
Shareholders and unanimously recommend Shareholders vote in favour
of this Resolution.
The Chairman intends to vote undirected proxies in favour of the
Resolution.
6 Resolution 4 - Adoption of New Constitution
6.1 General
Resolution 4 seeks Shareholder approval for the adoption of the
New Constitution in accordance with Article 12 of the Company's
Articles of Association. Subject to the passing of Resolutions 3
and 4, the New Constitution will be effective from the date the
Company is registered with ASIC.
Resolution 4 is a special resolution and therefore requires
approval of 75% of the votes cast by Shareholders present and
eligible to vote (in person, by proxy, by attorney or, in the case
of a corporate Shareholder, by a corporate representative).
A copy of the New Constitution is attached at Appendix 2 and
will be sent to any Shareholder on request and will also be
available for inspection at the office of the Company during normal
business hours prior to the Meeting and available for inspection at
the Meeting.
6.2 Summary of New Constitution
Provision Description
Voting rights Subject to any rights or restrictions attaching
to any class or classes of shares, at a general
meeting of members every member has one vote
on a show of hands and one vote per Share
on a poll. Voting may be in person or by
proxy, attorney or representative. Where
a shareholder appoints two proxies or attorneys,
the appointment may specify the proportion
or number of votes that the proxy may exercise.
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Share transfers The Company may participate in any clearing
and settlement facility provided under the
Corporations Act, the Listing Rules and the
ASX Settlement & Transfer Corporation Pty
Ltd (ASTC) Operating Rules. Transfers through
ASTC are affected electronically in ASTC's
Clearing House Electronic Sub register System
(CHESS). For the purposes of the Company's
participation in the CHESS, the Company may
issue holding statements in lieu of share
certificates. The Company will not charge
any fee for registering a transfer of shares.
The Directors may refuse to register a transfer
of shares in the circumstances permitted
or required under the Corporations Act and
Listing Rules.
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Alterations Shares may be converted or cancelled with
of share capital Shareholder approval and the Company's share
capital may be reduced in accordance with
the requirements of the Corporations Act
and the Listing Rules.
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Dividends The Directors may pay any dividends that,
in their judgment, the financial position
of the Company justifies. The Directors may
rescind a decision to pay a dividend, or
delay payment of a dividend, if they decide
before the payment date, that the Company's
financial position no longer justifies the
payment or that it is otherwise in the best
interests of the Company that the dividend
decision be rescinded.
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Future issues Subject to the Corporations Act, the Listing
of securities Rules and the Constitution, the Directors
may allot and issue Shares in the Company,
or options or rights to acquire shares in
the Company, to any person on such terms
and with such rights as determined by the
Directors.
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Meetings and Directors, or as otherwise provided under
Notices the Corporations Act, may call a meeting
of Shareholders. Notice of a general meeting
must be given to the shareholders, Directors
and auditors in line with the Corporations
Act and Listing Rules. The content of the
general meeting is to be decided by the Directors.
A meeting may be held at two or more locations
or using one or more technologies or electronic
participation facilities. A quorum for a
meeting of Shareholders is two eligible voters.
The Company will hold annual general meetings
in accordance with the Corporations Act.
Shareholders may also call a meeting as provided
by the Corporations Act.
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Election of Unless changed by the Company at a general
Directors meeting, the minimum number of directors
is three (3) and the maximum is ten (10).
The existing Directors and the Company may
appoint a new Director to fill a casual vacancy
or as an addition to the Board. Any such
Director must retire at the next following
annual general meeting of the Company (at
which meeting he/she may be eligible for
election as director). No Director other
than the Managing Director may hold office
for longer than three (3) years without submitting
himself/herself for re-election.
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Equity Incentive For the purposes of section 1100V(2)(a) of
Plan the Corporations Act, the Company may only
make an offer of employee incentives under
the Equity Incentive Plan if the offer does
not exceed 10% of the number of Shares actually
on issue at the start of the day the offer
is made during the 3 year period.
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Proportional The Company will be bound by the proportional
takeover bids takeover provisions contained in the Corporations
Act rather than the United Kingdom City Code
of Takeovers and Mergers. Accordingly, Shareholder
approval is required in respect of any proportional
takeover bid for the shares. Subject to the
Listing Rules and ASTC Operating Rules, the
provisions enable the Directors to refuse
to register any transfer of shares made in
acceptance of a proportional takeover offer
until the requisite Shareholder approval
has been obtained. See section 6.3 below.
-----------------------------------------------------
Buy backs The Company may buy back Shares in itself
on terms and at such times determined by
the Directors.
-----------------------------------------------------
6.3 Proportional Takeover Provisions
The Corporations Act permits a company to include in its
constitution provisions requiring that a proportional or partial
takeover offer (ie an offer for less than 100% of the shares but
for the same proportion of each shareholder's shares) be approved
by a majority of shareholders, before it may proceed.
The New Constitution, the subject of this Resolution 4, contains
proportional takeover approval provisions which are set out in
clause 18 of the New Constitution. In effect, the approval of this
Resolution 4 will enable the Company to refuse to register shares
acquired under a proportional takeover bid unless that bid is
approved by a majority of Shareholders.
Pursuant to section 648G(1) of the Corporations Act,
proportional takeover provisions are required to be renewed every
three years (unless a company's constitution provides for a shorter
period). If the proportional takeover provisions are not renewed, a
company's constitution is taken to be altered by omitting the
provisions pursuant to section 648G(3) of the Corporations Act.
The following information is provided pursuant to section 648G
of the Corporations Act.
(a) Operation of the proportional takeover provisions
By inserting the proposed proportional takeover provisions into
clause 18 of the New Constitution, the registration of a transfer
of Shares acquired under a proportional takeover offer will be
prohibited unless an approving majority resolution is passed by
Shareholders in the Company in the manner provided in the proposed
proportional takeover provisions of the New Constitution.
The proportional takeover provisions do not apply to a full
takeover bid for all of the Shares of the Company.
If the proposed proportional takeover provisions are adopted and
a proportional takeover offer is subsequently made for Shares, the
Directors must seek Shareholder approval by a majority vote to
register transfers under the proportional takeover bid. The
Shareholder approval can be obtained at a general meeting of
Shareholders.
In either case, those Shareholders who are entitled to vote at
the general meeting are the Shareholders (other than the bidder and
its associates) who are recorded on the register of members at the
end of the day on which the first of the takeover offers under the
proportional takeover bid is made.
The resolution must be voted on at least 14 days before the last
day of the offer period under the proportional takeover bid. The
resolution will be passed if more than 50% of eligible votes are
cast in favour of the resolution. If no such resolution has been
voted on at least 14 days before the last day of the offer period,
then a resolution to approve the registration of transfers under
the bid is taken to have been passed.
If the resolution is not passed by a majority of the Shares
voted, then the offer will be deemed to be withdrawn and
registration of any transfer of Shares resulting from the offer
will be prohibited. Acceptances will be returned and any contracts
formed by acceptance will be rescinded. If the resolution is
approved, transfers of shares to the bidder will be registered
provided they comply with the other provisions of the
Constitution.
The proposed proportional takeover provisions will expire three
years after the date of its adoption, unless renewed by
Shareholders by special resolution.
(b) Current acquisition proposals
As at the date on which this Notice and Explanatory Memorandum
is prepared, none of the Directors of the Company is aware of a
proposal by a person to acquire, or to increase the extent of, a
substantial interest in the Company.
(c) Advantages of proportional takeover provisions to Shareholders
Potential advantages to Shareholders of the inclusion of
proportional takeover provisions in the New Constitution are set
out below:
(i) The takeover approval provisions may enable Shareholders to
act together and so avoid the coercion of Shareholders that might
otherwise arise where they believe a partial offer is inadequate,
but nevertheless accept through concern that a significant number
of other Shareholders will accept.
(ii) The takeover approval provisions may provide Shareholders
with protection against being coerced into accepting a partial bid
at a high premium where the bidder indicates its intention to mount
a subsequent bid for the remaining Shares at a much reduced price.
This puts pressure on Shareholders to accept the initial bid in
order to maximise their returns.
(iii) If a partial bid is made, the takeover approval provisions
may make it more probable that a bidder will set its offer price at
a level that will be attractive to at least a majority of
Shareholders.
(iv) The body of Shareholders may more effectively advise and
guide the Directors' response to a partial bid and knowing the view
of the majority of Shareholders may assist individual Shareholders
to assess the likely outcome of the proportional bid and decide
whether or not to accept an offer under the bid.
(v) The takeover approval provisions may make it more probable
that any takeover offer will be a full bid for the whole
shareholding of each Shareholder, so that Shareholders may have the
opportunity of disposing of all their Shares at the offer price
rather than only a proportion.
(d) Disadvantages of the proportional takeover provisions to Shareholders
Potential disadvantages to Shareholders of the inclusion of
proportional takeover provisions in the Company's New Constitution
are set out below:
(i) By placing obstacles in the way of partial offers, the
proposal may tend to discourage partial offers, thus reducing a
potential opportunity for Shareholders to sell a portion of their
holding into a partial takeover bid.
(ii) It is theoretically possible that the existence of the
takeover approval provisions might have an adverse effect on the
market value of the Company's Shares by making a partial offer less
likely thus reducing any takeover speculation element in the Share
price.
(iii) An individual Shareholder who wishes to accept a
proportional offer will be unable to sell to the bidder unless a
majority of Shareholders vote in favour of the proportional
takeover scheme (which may be viewed as an additional restriction
on the ability of individual Shareholders to deal freely in their
Shares).
(iv) If a proportional takeover offer is made, the Company will
incur the cost of calling a meeting of Shareholders.
(e) Advantages and disadvantages of the proportional takeover provisions for the Directors
Potential advantages and disadvantages to the Directors of the
inclusion of proportional takeover provisions in the Company's New
Constitution are set out below:
(i) If the Directors consider that a proportional bid should be
opposed, they will be assisted in preventing the bidder from
securing control of the Company as the bidder will need a majority
of votes to be cast in its favour by the independent Shareholders
before the bidder can succeed.
(ii) On the other hand, under the takeover approval provisions,
if a proportional takeover offer is received, the Directors must
call a meeting to seek the Shareholders' views. They must do so
even if the Directors believe that the offer should be
accepted.
(iii) At present, it is only the Directors who express any
formal view on the adequacy or otherwise of a takeover bid, on
behalf of the Company. Under the takeover approval provisions, the
most effective view on a proportional bid will become the view
expressed by the vote of the Shareholders themselves, at the
meeting.
(iv) The takeover approval provisions may make it easier for the
Directors to discharge their fiduciary and statutory duties as
directors in the event of a proportional takeover bid.
6.4 Reasons for proposing the Resolution
Having considered the advantages and disadvantages to
Shareholders and the Directors, the Directors have decided to put
this Resolution to Shareholders, to ensure the New Constitution
reflects the current provisions of the Corporations Act, Listing
Rules, AIM Rules and other legal and regulatory provisions by which
the Company is (and will be) subject to, including giving
Shareholders an opportunity to take advantage of the protections
which the takeover approval provisions offer, if a proportional
takeover offer is made.
6.5 Directors' recommendation
The Board believes, subject to the passing of Resolution 3,
Resolution 4 is in the best interests of the Company and its
Shareholders and unanimously recommend Shareholders vote in favour
of this Resolution.
The Chairman intends to vote undirected proxies in favour of
this Resolution.
7 Resolution 5 - Appointment of Auditor
The Board intends to finalise the appointment BDO Audit Pty Ltd
as the Company's auditor prior to the AGM.
As the Company is not presently an Australian company registered
under the Corporations Act, the auditor appointment is not formally
required to be ratified or approved by Shareholders. Nonetheless,
given the proposed migration of the Company pursuant to Resolution
3, the Company proposes to seeks shareholder ratification BDO Audit
Pty Ltd as auditor.
If Resolution 5 is passed BDO Audit Pty Ltd will continue to act
as auditor of the Company.
8 Resolution 6 - Approval of Employee Incentive Plan
8.1 General
The Company implemented the Equity Incentive Plan and last
obtained Shareholder approval to enable the issue of Equity
Incentives under the Plan in reliance on ASX Listing Rule 7.2
Exception 13 at its annual general meeting held on 17 December
2020.
In line with the proposed new Constitution contemplated by
Resolution 4, and pursuant to Listing Rule 7.2, Exception 13,
Resolution 6 seeks Shareholder approval to adopt the new incentive
option and performance rights plan (the Equity Incentive Plan) and
to enable Performance Rights, Options, and Shares upon exercise or
conversion of those Performance Rights and Options to be issued
under the Plan to eligible Directors, employees and contractors
(Equity Incentives) to be exempted from Listing Rule 7.1 for a
period of 3 years from the date on which Resolution 6 is
passed.
The Equity Incentive Plan is intended to assist the Company to
attract and retain key staff, whether employees or contractors. The
Board believes that grants made to eligible participants under the
Equity Incentive Plan will provide a powerful tool to underpin the
Company's employment and engagement strategy, and that the Equity
Incentive Plan will:
(a) assist in the reward, retention and motivation of Eligible Employees;
(b) link the reward of Eligible Employees to Shareholder value creation; and
(c) align the interests of Eligible Employees with Shareholders
by providing an opportunity to Eligible Employees to earn rewards
via an equity interest in the Company based on creating Shareholder
value.
8.2 ASX Listing Rules 7.1 and 7.2 Exception 13
Listing Rule 7.1 provides that a company must not (subject to
specified exceptions), without the approval of shareholders, issue
or agree to issue during any 12 month period any equity securities,
or other securities with rights to convert to equity (such as an
Option or Performance Right), if the number of those securities
exceeds 15% of the number of ordinary securities on issue at the
commencement of that 12 month period.
Listing Rule 7.2, Exception 13 provides an exception to Listing
Rule 7.1. The effect of Shareholder approval under Listing Rule
7.2, Exception 13 is that any issues of securities under the
Incentive Plan are treated as having been made with the approval of
shareholders for the purposes of Listing Rule 7.1. Approval under
Listing Rule 7.2, Exception 13 lasts for a period of three
years.
8.3 Effect of the Resolution
If Shareholders approve this Resolution, any issue of Equity
Incentives under the Equity Incentive Plan over the 3 years after
the date of the Meeting (up to the maximum number calculated as set
out in Section 8.4(c) will not use up a portion of the Company's
Placement Capacity when that issue is made. This means that the
Company will preserve its flexibility to issue equity securities
without seeking Shareholder approval if and when it grants Options
or Performance Rights under the Equity Incentive Plan.
It should be noted that if this Resolution is passed, the
Company will only be able to issue Equity Incentives under the Plan
to eligible participants who are unrelated parties without seeking
prior Shareholder approval. Any proposed issue of Equity Incentives
to a Director or related party, or any of their associates, under
the Equity Incentive Plan will require prior Shareholder approval
under ASX Listing Rule 10.14.
If Shareholders do not approve this Resolution, the Company may
still decide in future to grant Equity Incentives to eligible
employees and consultants who are unrelated parties under the
Equity Incentive Plan, but each such issue will not be exempt from
ASX Listing Rule 7.1 and will therefore use up a portion of the
Company's Placement Capacity at the relevant time the issue is made
(unless another exemption from ASX Listing Rule 7.1 is applicable
to such issue of equity securities). The issue of Equity Incentives
under the Equity Incentive Plan in those circumstances would
therefore reduce the number of equity securities that the Company
is able to issue using its Placement Capacity without seeking
shareholder approval.
8.4 Technical information required by ASX Listing Rule 7.2 Exception 13
Pursuant to and in accordance with ASX Listing Rule 7.2
Exception 13, the following information is provided in relation to
this Resolution:
(a) a summary of the Equity Incentive Plan is set out at Schedule 4;
(b) the Company has issued 9,470,000 securities under the Equity
Incentive Plan since the last approval on 17 December 2020 ;
(c) the maximum number of Equity Incentives to be issued under
the Equity Incentive Plan following approval under this Resolution
at any given time, unless otherwise approved by Shareholders, will
be 20,530,071 (being 10% of the number of the Company's fully paid
ordinary shares on issue as at the date of this Notice -
205,300,705 Shares); and
(d) a voting exclusion statement is included in this Notice for Resolution 6 .
8.5 Directors' recommendation
Approval of this Resolution will enable the Company to preserve
its flexibility under its Placement Capacity when it issues Equity
Incentives under the Equity Incentive Plan for the period of 3
years after the date of the Meeting. Directors are eligible to be
offered Equity Incentives under the Equity Incentive Plan, however,
any proposed grant of Equity Incentives to a Director or their
associates requires prior Shareholder approval under ASX Listing
Rule 10.14 before it can be issued, and the passing of this
Resolution alone will not enable the Company to issue any Equity
Incentives to a Director or their associates.
The Directors recommend that Shareholders vote in favour of this
Resolution.
9 Resolution 7 - Approval of 10% Placement Facility
9.1 General
Broadly speaking, and subject to a number of exceptions, ASX
Listing Rule 7.1 limits the amount of Equity Securities that a
listed company can issue without the approval of its shareholders
over any 12-month period to 15% of the fully paid ordinary
securities it had on issue at the start of that period.
Under ASX Listing Rule 7.1A, however, an eligible entity can
seek approval from its members, by way of a special resolution
passed at its annual general meeting, to increase this 15% limit by
an extra 10% to 25%.
An 'eligible entity' means an entity which is not included in
the S&P/ASX 300 Index, and which has a market capitalisation of
$300 million or less at the date of the Meeting. The Company is an
eligible entity for these purposes as at the date of this
Notice.
Resolution 7 seeks Shareholder approval by away of a special
resolution for the Company to have the additional 10% capacity
provided for in ASX Listing Rule 7.1A to issue Equity Securities
without Shareholder approval (10% Placement Facility).
If Resolution 7 is passed, the Company will be able to issue
Equity Securities up to the combined 25% limit in ASX Listing Rules
7.1 and 7.1A without any further Shareholder approval.
If Resolution 7 is not passed, the Company will not be able to
access the additional 10% capacity to issue Equity Securities
without Shareholder approval provided for in ASX Listing Rule 7.1A
and will remain subject to the 15% limit on issuing Equity
Securities without Shareholder approval set out in Listing Rule
7.1.
Resolution 7 is a special resolution and therefore requires
approval of 75% of the votes cast by Shareholder's present and
eligible to vote (in person, by proxy, by attorney or, in the case
of a corporate Shareholder, by a corporate representative).
The Board unanimously recommends that Shareholders vote in
favour of Resolution 7.
9.2 ASX Listing Rule 7.1A
The ability to issue Equity Securities under the 10% Placement
Facility is subject to Shareholder approval by way of a special
resolution at an annual general meeting.
Any Equity Securities issued under the 10% Placement Facility
must be in the same class as an existing quoted class of Equity
Securities of the company.
The Company, as at the date of this Notice, has on issue one
quoted class of Equity Securities, being CDIs.
9.3 Specific information required by ASX Listing Rule 7.3A
Pursuant to and in accordance with Listing Rule 7.3A,
information is provided in relation to the approval of the 10%
Placement Facility as follows:
(a) Statement of the period for which the approval will be valid (ASX Listing Rule 7.3A.1)
Shareholder approval of the 10% Placement Facility under Listing
Rule 7.1A is valid from the date of the AGM at which the approval
is obtained and expires on the earlier to occur of:
-- the date that is 12 months after the date of the AGM at which the approval is obtained;
-- the time and date of the Company's next annual general meeting; or
-- the time and date of the approval by the holders of the
Company's ordinary securities of a transaction under Listing Rule
11.1.2 (a significant change to the nature of scale of activities)
or 11.2 (disposal of main undertaking).
(10% Placement Period).
The Company will only issue and allot the Equity Securities
pursuant to the 10% Placement Facility during the 10% Placement
Period.
(b) Minimum issue price (ASX Listing Rule 7.1A.2)
Any Equity Securities issued under Listing Rule 7.1A.2 must be
in an existing quoted class of the Company's Equity Securities and
issued for cash consideration which is not less than 75% of the
volume weighted average price for securities in that class,
calculated over the 15 Trading Days on which trades in that class
were recorded immediately before:
-- the date on which the price at which the Equity Securities
are to be issued is agreed by the Company and the recipient of the
Equity Securities; or
-- if the Equity Securities are not issued within 10 Trading
Days of the date in the paragraph above, the date on which the
Equity Securities are issued.
(c) Purposes for which the funds raised may be used (ASX Listing Rule 7.3A.3)
Equity Securities issued under Listing Rule 7.1A.2 can only be
issued for cash consideration. The purpose of seeking the 10%
Placement Facility is to give the Company the flexibility to issue
Equity Securities in addition to the 15% placement capacity
afforded to the Company under Listing Rule 7.1, should the Board
identify a need and opportunity to do so.
The Company intends to use funds raised for the acquisition of
new assets or investments (including expenses associated with such
acquisition), activities associated with its current business,
including continued exploration, and scoping and feasibility study
expenditure on the Company's current assets, repayment of debt
and/or general working capital.
(d) Risk of economic and voting dilution (ASX Listing Rule 7.3A.4)
If this Resolution is approved by Shareholders and the Company
issues Equity Securities under the 10% Placement Facility, the
existing Shareholders' voting power in the Company will be diluted
as shown in the below tables (in the case of Options, only if the
Options are converted into CDIs). There is a risk that:
-- the market price for the Company's Equity Securities may be
significantly lower on the date of the issue than on the date of
the approval under Listing Rule 7.1A; and
-- the Equity Securities may be issued at a price that is at a
discount to the market price for the Company's Equity Securities on
the issue date.
The table below shows:
-- the dilution of existing Shareholders on the basis of the
current market price of Shares and the current number of ordinary
securities for variable 'A' calculated in accordance with the
formula in Listing Rule 7.1A.2 as at 27 November 2023;
-- two examples where variable "A" has increased, by 50% and
100%. Variable "A" is based on the number of ordinary securities
the Company has on issue as at 27 November 2023; and
-- two examples of where the issue price of ordinary securities
has decreased by 50% and increased by 50% as against the market
price as at 27 November 2023.
Variable 'A' in Dilution
Listing Rule 7.1A.2*
$0.303 $0.605 $0.908
50% decrease Issue Price 50% increase
in Issue in Issue Price
Price
--------------- -------------- -----------------
Current
Variable
A 10%
207,324,705 Voting
CDIs Dilution 20,732,471
----------- --------------------------------------------------
Funds
raised $6,271,572 $12,543,145 $18,814,717
--------------------------- --------------- -------------- -----------------
50% increase
in current
Variable
A 10%
310,987,058 Voting
CDIs Dilution 31,098,706
----------- --------------------------------------------------
Funds
raised $9,407,358 $18,814,717 $28,222,075
--------------------------- --------------- -------------- -----------------
100% increase
in current
Variable
A 10%
414,649,410 Voting
CDIs Dilution 41,464,941
----------- --------------------------------------------------
Funds
raised $12,543,145 $25,086,289 $37,629,434
--------------------------- --------------- -------------- -----------------
* The number of CDIs on issue (Variable A in the formula) could
increase as a result of the issue of CDIs that do not require
Shareholder approval (such as under a pro rata rights issue or
scrip issued under a takeover offer) or that are issued with
Shareholder approval under Listing Rule 7.1.
The table has been prepared on the following assumptions:
-- Shareholders approve Resolution 7.
-- The Company issues the maximum number of Equity Securities
available under the 10% Placement Facility.
-- No convertible Securities (including any issued under the 10%
Placement Facility) are exercised or converted into CDIs before the
date of the issue of the Equity Securities.
-- The 10% voting dilution reflects the aggregate percentage
dilution against the issued share capital at the time of issue.
This is why the voting dilution is shown in each example as
10%.
-- The table does not show an example of dilution that may be
caused to a particular Shareholder by reason of placements under
the 10% Placement Facility, based on that Shareholder's holding at
the date of the Meeting.
-- The table shows only the effect of issues of Equity
Securities under Listing Rule 7.1A, not under the 15% placement
capacity under Listing Rule 7.1.
-- The issue of Equity Securities under the 10% Placement
Facility consists only of CDIs. If the issue of Equity Securities
includes Options, it is assumed that those Options are exercised
into CDIs for the purpose of calculating the voting dilution effect
on existing Shareholders.
-- The issue price is $0.605 being the closing price of Shares on the ASX on 27 November 2023.
-- Variable A is equal to the number of existing CDIs on issue
as at 27 November 2023, being 207,324,705.
(e) Allocation policy (ASX Listing Rule 7.3A.5)
The Company's allocation policy is dependent on the prevailing
market conditions at the time of any proposed issue pursuant to the
10% Placement Facility. The identity of the allottees of Equity
Securities will be determined on a case-by-case basis having regard
to the factors including but not limited to the following:
(i) the methods of raising funds that are available to the
Company, including but not limited to, rights issue or other issue
in which existing security holders can participate;
(ii) the effect of the issue of the Equity Securities on the control of the Company;
(iii) financial situation and solvency of the Company; and
(iv) advice from corporate, financial, and broking advisers (if applicable).
The allottees under the 10% Placement Facility have not been
determined as at the date of this Notice but may include existing
substantial Shareholders and/or new Shareholders who are not a
related party or an associate of a related party of the
Company.
(f) Issues in the past 12 months under ASX Listing Rule 7.1A.2
The Company has not previously issued or agreed to issue Equity
Securities under Listing Rule 7.1A.2 in the 12 months preceding the
date of the Meeting.
(g) Proposed issue under ASX Listing Rule 7.1A
As at the date of this Notice, the Company is not proposing to
make an issue of Equity Securities under Listing Rule 7.1A.
10 Action to be taken by Shareholders
Shareholders should read this Notice including this Explanatory
Memorandum carefully before deciding how to vote on the
Resolution.
10.1 Shareholder attendance, voting and proxy appointment
The Directors have determined pursuant to Article 7.11 of the
Articles of Association that the persons eligible to vote at the
Meeting are those who are registered as Shareholders on 19 December
2023 at 6:00pm (GMT).
If you are a Shareholder seeking to vote in person, attend the
Meeting at the time, date and place set out above.
If you are a Shareholder seeking to vote by proxy, please
complete and sign the enclosed Proxy Form and return by one of the
methods described on the Proxy Form by 7:00am (GMT) on 20 December
2023. Proxy Forms received later than the specified time will be
invalid.
Shareholders who are unable to attend the Meeting or wish to
submit questions prior to the Meeting may submit written questions
by emailing info@europeanmet.com. In order for questions to be
appropriately considered, it is recommended that questions be
received by 3:00pm (AWST) / (7:00am GMT) on 20 December 2023.
10.2 CDI holders attendance, voting and proxy appointment
CDIs, representing beneficial interests in the Shares, have been
issued to allow trading on the electronic transfer and settlement
system operated by the ASX as the laws of the BVI, the place of
incorporation of the Company, do not recognise electronic transfer
of legal title to Shares.
A CDI holder is not a Shareholder and, under the laws of the
BVI, is not entitled to attend the Meeting unless as a proxy.
Each CDI holder has the right to:
(a) direct CDN, the legal holder of the Shares to which the CDIs
relate, how to vote the underlying Shares in respect of their CDIs
in respect of the business of the Meeting; or
(b) instruct CDN to appoint the CDI holder or a person nominated
by the CDI holder the CDI holder's proxy for the purposes of
attending and voting at the Meeting.
If you are a CDI holder and you wish to direct or instruct CDN
in the manner contemplated above, please read, complete, and sign
the enclosed CDI Voting Instruction Form and return by one of the
methods and by the deadline set out on the CDI Voting Instruction
Form.
CDI Voting Instruction Forms received later than the specified
time will be invalid.
CDI Voting Instruction Forms must be received by the Company no
later than 3:00pm (AWST) on Tuesday, 19 December 2023 (7:00am
GMT).
The CDI Voting Instruction Form provides further details on
appointing proxies and lodging Voting Forms.
10.3 DI holders attendance, voting and proxy appointment
DIs, representing beneficial interests in the Shares, have been
issued as the laws of the BVI, the place of incorporation of the
Company, do not recognise electronic transfer of legal title to
Shares and securities of foreign issuers cannot be directly
registered, transferred, or settled through CREST (which is the
electronic settlement system in the UK). DI holders are invited to
attend the Meeting but are not entitled to vote at the Meeting.
In order to have votes cast at the Meeting on their behalf, DI
holders must complete, sign and return the DI Form of Instruction
forwarded to them to the Company's agent, Computershare UK, by 19
December 2023 at 2:00pm GMT. DI Voting Instruction Forms received
later than the specified time will be invalid.
DI holders in CREST may transmit voting instructions by
utilising the CREST voting service in accordance with the
procedures described in the CREST manual. CREST personal members or
other CREST sponsored members, and those CREST members who have
appointed a voting service provider, should refer to their CREST
sponsor or voting service provider, who will be able to take
appropriate action on their behalf.
In order for instructions made using the CREST voting service to
be valid, the appropriate CREST message (a CREST Voting
Instruction) must be properly authenticated in accordance with
Euroclear's specifications and must contain the information
required for such instructions, as described in the CREST manual
(available via www.euroclear.com/CREST).
To be effective, the CREST Voting Instruction must be
transmitted so as to be received by the Company's agent (3RA50) no
later than 19 December 2023 at 2:00pm GMT. For this purpose, the
time of receipt will be taken to be the time (as determined by the
timestamp applied to the CREST Voting Instruction by the CREST
applications host) from which the Company's agent is able to
retrieve the CREST Voting Instruction by enquiry to CREST in the
manner prescribed by CREST. DI holders in CREST and, where
applicable, their CREST sponsors or voting service providers should
note that Euroclear does not make available special procedures in
CREST for any particular messages. Normal system timings and
limitations will therefore apply in relation to the transmission of
CREST Voting Instructions. It is the responsibility of the DI
holder concerned to take (or, if the DI holder is a CREST personal
member or sponsored member or has appointed a voting service
provider, to procure that the CREST sponsor or voting service
provider takes) such action as shall be necessary to ensure that a
CREST Voting Instruction is transmitted by means of the CREST
voting service by any particular time.
In this connection, DI holders and, where applicable, their
CREST sponsors or voting service providers are referred to those
sections of the CREST manual concerning practical limitations of
the CREST system and timings.
Entitlement to vote and the number of votes which may be cast
thereat will be determined by reference to the Depositary Interest
Register at close of business on 18 December 2023.
Schedule 1 Definitions
In this Notice and this Explanatory Memorandum, words importing
the singular include the plural and vice versa.
$ means Australian Dollars.
Articles of Association means the Company's Memorandum of
Association and Articles of Association, as amended and restated
from time to time.
AIM means a market of the same name as operated by the London
Stock Exchange Group plc.
AIM Rules means:
(a) the AIM Rules for Companies published by the London Stock Exchange plc;
(b) the AIM Rules for Nominated Advisers published by the London Stock Exchange plc; and
(c) any other rules or regulation which are applicable at any
time the Company's CDIs are admitted to AIM, each of them as
amended or replaced from time to time.
ASIC means the Australian Securities and Investments
Commission.
ASTC has the meaning given in section 6.2 of this Explanatory
Memorandum.
ASTC Operating Rules means the settlement operating rules of the
ASX.
ASX means ASX Limited (ACN 008 624 691) and, where the context
permits, the Australian Securities Exchange operated by ASX.
AWST means Australian Western Standard Time, being the time in
Perth, Western Australia.
Board means the board of Directors.
BVI means the British Virgin Islands.
BVI Business Companies Act means the BVI Business Companies Act,
2004 (No. 16 of 2004) (as amended).
BVI Registrar of Corporate Affairs means the registrar of
corporate affairs in BVI.
CDI means a CHESS Depository Interest representing beneficial
ownership in a Share.
CDI Voting Instruction Form means the CDI voting instruction
form for use in connection with the Meeting which accompanies this
document.
CDN means CHESS Depositary Nominees Pty Ltd.
Chairman means the person appointed to chair the Meeting, or any
part of the Meeting, convened by this Notice.
CHESS has the meaning given in section 6.2 of this Explanatory
Memorandum.
Company means European Metals Holdings Limited (ARBN 154 618
989).
Computershare UK means Computershare Investor Services PLC
(Company Number 3498808).
Constitution means the proposed constitution of the Company as
tabled at the Meeting.
Corporations Act means the Corporations Act 2001 (Cth).
CREST means the electronic settlement system in the United
Kingdom.
CREST Voting Instruction has the meaning as defined in section
10.3 of the Explanatory Memorandum.
DI means depository interest.
DI Form of Instruction means the depositary interest voting
instruction form for use in connection with the Meeting which
accompanies this document.
Director means a director of the Company.
Discontinuance Documents has the meaning given in section
5.2.
EBRD means European Bank for Reconstruction and Development, an
international organisation formed by treaty.
EBRD Subscription has the meaning given in section 3 of this
Explanatory Memorandum.
EBRD Subscription Shares has the meaning given in section 3 of
this Explanatory Memorandum
EU means the European Union.
Euroclear means Euroclear UK & International Limited.
Explanatory Memorandum means the explanatory memorandum which
forms part of this Notice.
GMT means Greenwich Mean Time.
Listing Rules means the listing rules of ASX.
Managing Director means the managing director of the
Company.
Meeting has the meaning in the introductory paragraph of this
Notice.
Notice means this Notice of meeting which comprises of this
Notice, agenda, Explanatory Memorandum and Proxy Form.
Project Company means Geomet S.R.O., a limited liability company
organised and existing under the laws of Czech Republic.
Proxy Form means the proxy form enclosed with this Notice.
Resolution means a resolution contained in this Notice.
Schedule means a schedule to this Explanatory Memorandum.
Share means a fully paid ordinary share in the capital of the
Company.
Shareholder means a shareholder of the Company.
Subscription Date has the meaning set out in Schedule 2.
Interpretation
In this Explanatory Memorandum:
-- other words and phrases have the same meaning (if any) given to them in the Corporations Act;
-- words of any gender include all genders;
-- words importing the singular include the plural and vice versa;
-- an expression importing a person includes any company,
partnership, joint venture, association, corporation or other body
corporate and vice versa;
-- a reference to a section or annexure, is a reference to a
section, or annexure, of this Explanatory Memorandum as
relevant;
-- a reference to any legislation includes all delegated
legislation made under it and amendment, consolidations, EBRD
Subscriptions or re-enactments of any of them;
-- headings and bold type are for convenience only and do not
affect the interpretation of this Explanatory Memorandum;
-- a reference to time is reference to AWST;
-- an accounting term is a reference to that term as it is used
in accounting standards under the Corporations Act, or, if not
inconsistent with those standards, in accounting principles and
practices generally accepted in Australia; and
-- the words 'include', 'including', 'for example' or 'such as'
when introducing an example do not limit the meaning of the words
to which the example relates to, that example or examples of a
similar kind.
Schedule 2 Summary of Subscription Agreement
Provision Summary
Entitlement EBRD will be issued 12,315,213 Shares representing, upon subscription and on a fully diluted
basis, up to 6% of the Company's registered capital.
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Subscription Price GBP 0.423 per share, being AUD$0.803 per share
-------------------------------------------------------------------------------------------------
Subscription Date A Business Day which shall be on a date after all the conditions precedent have been satisfied
or duly waived, which shall be not later than 60 days after the date of the Subscription
Agreement,
being 26 September 2023.
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Use of funds To assist in funding pre-development works and studies for the establishment of mining area
at the greenfield zinnwaldite lithium, tin and tungsten Cinovec deposit located in the Krusne
Hory Mountains in Czech Republic, including the further development of a definitive feasibility
study, preliminary works on alternative production processes and environmental works, and
working capital expenditures for the period up to the completion of the feasibility study
-------------------------------------------------------------------------------------------------
EBRD rights Upon being issued the Shares, EBRD will acquire various rights in respect of: -- Receipt of
information and reports in respect of environmental and social matters arising in relation
to the Company and the Project; -- Receipt of the Company's share register and information
concerning the use of proceeds of the EBRD subscription; -- Access to facilities and
construction
sites relating to the Project and accounts, records and documents relating to the Project;
and -- Participation rights in respect of issues of new securities.
-------------------------------------------------------------------------------------------------
Assignment Neither party may sell, transfer, assign, novate or otherwise dispose of all or part of its
rights or obligations under this Agreement and the other Financing Agreements without the
prior written consent of the other party
-------------------------------------------------------------------------------------------------
Schedule 3 Key terms of the European Metals Holdings Limited
Equity Incentive Plan
1 Eligible Employee: A person is eligible to participate in the
Plan (Eligible Employee) if they are an 'ESS Participant' (as that
term is defined in the Corporations Act) in relation to the Company
or an Associated Entity of the Company, where that Associated
Entity is a body corporate or if they have been determined by the
Board to be eligible to participate in the Plan from time to
time.
2 Maximum allocation: An Offer for Monetary Consideration must
comply with the applicable requirements of section 1100Q of the
Corporations Act.
The Company must reasonably believe, at the time of making an
Offer for Monetary Consideration, that:
2.1 the total number of Plan Shares that are, or are covered by,
the ESS Interests of the Company that may be issued under the
Offer; and
2.2 the total number of Plan Shares that are, or are covered by
the ESS Interests of the Company that have been issued, or could
have been issued, under Offer made in connection with the Plan at
any time during the 3 year period ending on the day the Offer is
made,
does not exceed the percentage or other relevant limit as
specified by Applicable Law.
3 Purpose: The purpose of the Plan is to:
3.1 assist in the reward, retention and motivation of Eligible Employees;
3.2 link the reward of Eligible Employees to Shareholder value creation; and
3.3 align the interests of Eligible Employees with Shareholders
by providing an opportunity to Eligible Employees to earn rewards
via an equity interest in the Company based on creating Shareholder
value.
4 Plan administration: The Plan will be administered by the
Board. The Board may exercise any power or discretion conferred on
it by the Plan Rules in its sole and absolute discretion, subject
to compliance with applicable laws and the Listing Rules. The Board
may delegate its powers and discretion.
5 Eligibility, invitation and application: The Board may from
time to time determine that an Eligible Employee may participate in
the Plan and make an invitation to that Eligible Employee to apply
for Employee Incentives on such terms and conditions as the Board
decides.
An invitation issued under the Plan will comply with the
disclosure obligations pursuant to Division 1A Part 7.12 of the
Corporations Act. On receipt of an invitation, an Eligible Employee
may apply for the Employee Initiatives the subject of the
invitation by sending a completed application form to the
Company.
The Board may accept an application from an Eligible Employee in
whole or in part. If an Eligible Employee is permitted in the
invitation, the Eligible Employee may, by notice in writing to the
Board, nominate a party in whose favour the Eligible Employee
wishes to renounce the invitation. A waiting period of at least 14
days will apply to acquisitions of Securities for monetary
consideration as required by the provisions of Division 1A Part
7.12 of the Corporations Act.
6 Grant of Employee Incentives: The Board will, to the extent
that it has accepted a duly completed Application, grant the
applicant the relevant number of Employee Incentives, subject to
the terms and conditions set out in the Offer Letter, the Plan
Rules and any ancillary documentation necessary.
7 Terms of Employee Incentives: Each Employee Incentive
represents a right to acquire one Plan Share (for example, under an
option or performance right), subject to the terms and conditions
of the Plan.
Prior to an Employee Incentives being exercised a Participant
does not have any interest (legal, equitable or otherwise) in any
Plan Share the subject of the Employee Incentives by virtue of
holding the Employee Incentives. Subject to the terms and
conditions of the Plan, a Participant may not assign, transfer,
grant a security interest over or otherwise deal with an Employee
Incentive that has been granted to them. A Participant must not
enter into any arrangement for the purpose of hedging their
economic exposure to an Employee Incentive that has been granted to
them.
8 Vesting of Employee Incentives: Any vesting conditions and/or
performance criteria applicable to the grant of Employee Incentives
will be described in the Offer Letter. If all the vesting
conditions and/or performance criteria are satisfied and/or
otherwise waived by the Board, a Vesting Notification will be sent
to the Participant by the Company informing them that the relevant
Employee Incentives have vested. Unless and until the vesting
Notification is issued by the Company, the Employee Incentives will
not be considered to have vested. For the avoidance of doubt, if
the vesting conditions and/or performance criteria relevant to
Employee Incentives are not satisfied and/or otherwise waived by
the Board, that Employee Incentives will lapse.
An Employee Incentive may not be exercised unless and until that
Convertible Security has vested in accordance with the Plan Rules,
or such earlier date as set out in the Plan Rules.
9 Exercise of Employee Incentives and cashless exercise: To
exercise an Employee Incentive, the Participant must deliver a
signed Notice of Exercise and, subject to a cashless exercise of
Employee Incentives (see below), pay the exercise price (if any) to
or as directed by the Company, at any time prior to the earlier of
any date specified in the Vesting Notification and the Expiry Date
as set out in the Letter Offer.
At the time of exercise of the Employee Incentives, the
Participant may elect to pay the Exercise Price for each Option by
setting off the total Exercise Price against the number of Plan
Shares which they are entitled to receive upon exercise. If the
Participant elects to use this cashless facility the Company will
issue to the Participant that number of Plan Shares equal in value
to the positive difference between the Market Value of the Shares
at the time of exercise and the exercise price that would otherwise
be payable to exercise those Employee Incentives.
10 Market Value means the market value of a Plan Share on the
relevant date as determined by the Board in its discretion but will
not be less than the volume weighted average price of Shares over
the 5 Business Days immediately prior to the relevant date as shown
on the official list of the ASX.
11 Delivery of Plan Shares on exercise of Eligible Incentives:
Within 20 business days after the valid exercise of an Employee
Incentives by a Participant, the Company will issue that
Participant the number of Plan Shares to which the Participant is
entitled under the Plan Rules.
12 Forfeiture of Employee Incentives: Where a Participant who
holds Employee Incentives ceases to be an Eligible Employee or
becomes insolvent, all unvested Employee Incentives will
automatically be forfeited by the Participant, unless the Board
otherwise determines in its discretion to permit some or all of the
Employee Incentives to vest.
Where the Board determines that a Participant has acted
fraudulently or dishonestly, or wilfully breached his or her duties
to the Group, the Board may in its discretion deem all unvested
Employee Incentives held by that Participant to have been
forfeited.
Unless the Board otherwise determines, or as otherwise set out
in the Plan Rules, any Employee Incentives which have not yet
vested will be forfeited immediately on the date that the Board
determines (acting reasonably and in good faith) that any
applicable vesting conditions have not been met or cannot be met by
the relevant date; and any Employee Incentives which have not yet
vested will be automatically forfeited on the expiry date specified
in the invitation.
13 Change of control: If a change of control event occurs in
relation to the Company, or the Board determines that such an event
is likely to occur:
13.1 the Participant may exercise any and all Options regardless
of whether the Vesting Conditions have been satisfied, provided
that no Option will be capable of exercise later than the Expiry
Date;
13.2 the Board may in its discretion offer to the Optionholders
on like terms as the change of control event, and if the holder has
not accepted the offer within the time period specified by the
Board, the Options, if not exercised within ten days of the end of
that offer period, shall expire; and
13.3 all granted Performance Rights which have not yet vested or
lapsed shall automatically and immediately vest, regardless of
whether any performance criteria or vesting conditions have been
satisfied.
14 Rights attaching to Plan Shares: Any Plan Shares allotted,
issued or transferred by the Company to a Participant under the
Plan will rank equally with all existing Shares, including those
Plan Shares issued, directly, under this Plan, on and from the date
of allotment, issue or transfer in respect of all rights and bonus
issues, and dividends which have a record date for determining
entitlements on or after the date of allotment, issue, or transfer
of those Plan Shares.
15 Disposal restrictions on Employee Incentives: The Board, in
its sole and absolute discretion, may determine, prior to an Offer
being made, whether there will be any restrictions on the disposal
of, the granting (or purporting to grant) of any Security Interest
in or over, or otherwise on dealing with (or purporting to dispose
or deal with), Plan Shares held by any Participants.
Plan Shares, or any beneficial or legal interest in those Plan
Shares, may not be transferred, encumbered or otherwise disposed
of, or have a Security Interest granted over them, by a Participant
unless all restrictions on the transfer, encumbrance or disposal of
the Plan Shares have been met, the Board has waived any such
restrictions, or prior consent of the Board is obtained which
consent may impose such terms and conditions on such transfer,
encumbrance or disposal as the Board sees fit.
16 Adjustment of Employee Incentives: Subject to any Applicable
Laws, the number of Employee Incentives held by a Participant under
the Plan may, in the sole and absolute discretion of the Board, be
determined to be such number as is appropriate and so that the
Participant does not suffer any material detriment following any
variation in the share capital of the Company arising from:
(a) a reduction, subdivision or consolidation of share capital;
(b) a reorganisation of share capital;
(c) a distribution of assets in specie;
(d) the payment of a dividend, otherwise than in the ordinary
course, of an amount substantially in excess of the Company's
normal distribution policy; or
(e) any issue of ordinary shares or other equity securities or
instruments which convert into ordinary shares by way of
capitalisation of profits or reserves.
If the Company makes a bonus issue of Shares or other securities
to existing Shareholders (other than an issue in lieu or in
satisfaction, of dividends or by way of dividend reinvestment), the
number of Plan Shares which must be issued on the exercise of an
Employee Incentives will be increased by the number of Plan Shares
which the Participant would have received if the Participant had
exercised the Employee Incentives before the record date for the
bonus issue.
17 Participation in new issues: A Participant who holds Employee
Incentives is not entitled to participate in any new issues of
securities offered to Shareholders during the term of the Employee
Incentives unless and until the Employee Incentives are exercised
and the Participant holds Plan Shares.
18 Amendment of Plan: Subject to the following paragraph and the
Constitution, the Board may at any time amend any provisions of the
Plan Rules, including (without limitation) the terms and conditions
upon which any employee Incentives have been issued under the Plan
and determine that any amendments to the Plan Rules be given
retrospective effect, immediate effect or future effect.
No amendment to any provision of the Plan Rules may be made if
the amendment, in the opinion of the Board, materially reduces the
rights of any Participant as they existed before the date of the
amendment, other than an amendment introduced primarily for the
purpose of complying with legislation or to correct manifest error
or mistake, amongst other things, or is agreed to in writing by the
Participant(s).
19 Plan duration: The Plan continues in operation until the
Board decides to end it. The Board may from time to time suspend
the operation of the Plan for a fixed period or indefinitely, and
may end any suspension. If the Plan is terminated or suspended for
any reason, that termination or suspension must not prejudice the
accrued rights of the Participants.
20 Employee Share Trust: The Board may in its sole and absolute
discretion use an employee share trust or other mechanism for the
purposes of holding Plan Shares for Participants under the Plan and
delivering Plan Shares to Participants upon exercise or vesting of
Employee Incentives.
Annexure 1 - New Constitution
European Metals Holdings Limited
Constitution
A public company limited by shares
Adopted on
Contents
1 Preliminary ........................................................................................................................ 1
2 Share Capital .................................................................................................................... 5
3 Calls, Forfeiture and Liens ................................................................................................. 8
4 Transfer of Shares ........................................................................................................... 15
5 Transmission of Shares ................................................................................................... 17
6 Sale of Non Marketable Parcels ....................................................................................... 18
7 General Meetings ............................................................................................................ 19
8 Proceedings at General Meetings ..................................................................................... 21
9 Proxies, Attorneys and Representatives ........................................................................... 26
10 Appointment, Removal and Remuneration of Directors ...................................................... 29
11 Powers and Duties of Directors ....................................................................................... 31
12 Proceedings of Directors ................................................................................................. 32
13 Executive Directors ......................................................................................................... 38
14 Records .......................................................................................................................... 38
15 Auditor ........................................................................................................................... 38
16 Dividends and Reserves .................................................................................................. 39
17 Winding Up ..................................................................................................................... 43
18 Proportional Takeover Bid ............................................................................................... 44
19 Notices ........................................................................................................................... 45
20 Indemnity ........................................................................................................................ 46
21 Security Interests ............................................................................................................. 47
22 Seals .............................................................................................................................. 48
European Metals Holdings Limited
ACN [TBA]
A public company limited by shares
1 Preliminary
Definitions
1.1 In this constitution the following definitions apply:
ASX means ASX Limited ABN 98 008 624 691 or the Australian
Securities Exchange, as operated by ASX Limited (as the context
requires).
ASX Settlement means ASX Settlement Pty Ltd ACN 008 504 532.
ASX Settlement Operating Rules means the operating rules of ASX
Settlement, and to the extent that they are applicable, the
operating rules of the ASX and the operating rules of ASX Clear Pty
Limited ACN 001 314 503.
Business Day has the meaning given to that term in the Listing
Rules.
CHESS means the clearing house electronic sub-register system as
defined in the ASX Settlement Operating Rules.
CHESS Subregister means the CHESS subregister part of the
register for the Company's securities that is administered by ASX
Settlement and records uncertificated holdings in accordance with
the ASX Settlement Operating Rules.
Company means European Metals Holdings Limited ACN [to be
inserted following allocation of ACN upon completion of
migration].
Corporations Act means the Corporations Act 2001 (Cth).
ESS Interests has the meaning under section 1100M(1) of the
Corporations Act.
Executive Director means a director appointed under clauses 13.1
or 13.2 .
Issuer Sponsored Subregister means that part of the Company's
register for the Company's shares that is administered by the
Company (and not ASX Settlement) and records uncertificated
holdings of shares.
Listing Rules means the Listing Rules of the ASX and any other
rules of the ASX which are applicable while the Company is admitted
to the official list of the ASX, each as amended or replaced from
time to time, except to the extent of any express written waiver by
the ASX.
Market Transfer means:
(a) a transfer of shares pursuant to or connected with a
transaction entered into on the ASX and includes a Proper ASTC
Transfer; or
(b) an issue of shares as a result of the exercise of any
rights, options or convertible notes where such rights, options or
notes are traded on the ASX.
PPSA means the Personal Property Securities Act 2009 (Cth).
Proper ASTC Transfer has the meaning given to that term in the
Corporations Regulations 2001 (Cth).
Representative means a person approved as its representative by
a shareholder under section 250D of the Corporations Act.
Seal means any common seal, duplicate seal, share seal or
certificate seal of the Company.
Share means a fully paid ordinary share in the capital of the
Company.
Interpretation
10.4 In this constitution:
(a) a reference to a partly paid share is a reference to a share
on which there is an amount unpaid;
(b) a reference to an amount unpaid on a share includes a
reference to any amount of the issue price which is unpaid;
(c) a reference to a call or an amount called on a share
includes a reference to a sum that, by the terms of issue of a
share, becomes payable on issue or at a fixed date;
(d) a reference to a shareholder present at a general meeting is
a reference to a shareholder present in person physically or by
electronic means, or by proxy, attorney or Representative or,
except in any clause that specifies a quorum or except in any
clause prescribed by the directors, a shareholder who has duly
lodged a valid direct vote in relation to the general meeting under
clause 8.22 ;
(e) a reference to a person holding or occupying a particular
office or position is a reference to any person who occupies or
performs the duties of that office or position;
(f) a reference to a director in relation to clauses applying to
meetings of the directors, includes alternate directors;
(g) a reference to time is the time in the location of the Company's registered office;
(h) where a period of time is specified and dates from a given
day or the day of an act or event, it must be calculated exclusive
of that day;
(i) a term of this constitution which has the effect of
requiring anything to be done on or by a date which is not a
Business Day must be interpreted as if it required it to be done on
or by the next Business Day;
(j) a reference to 'dollars' or '$' means Australian dollars and
all amounts payable under this constitution are payable in
Australian dollars unless the directors determine otherwise;
(k) unless the contrary intention appears:
(i) a singular word includes the plural, and vice versa;
(ii) words importing any gender include all other genders;
(iii) words used to refer to persons generally or to refer to a
natural person include a company, trust, body corporate, body
politic, partnership, joint venture, association, board, group,
governmental agency or other body (whether or not the body is
incorporated);
(iv) a reference to a person includes that person's successors
and legal personal representatives;
(v) 'writing' and 'written' includes printing, typing and other
modes of reproducing words in a visible form including, without
limitation, any representation of words in a physical document or
in an electronic communication or form or otherwise;
(vi) a reference to any law, legislation or legislative
provision is to be construed as a reference to that legislation,
any subordinate legislation or regulations issued under it, and
that legislation and subordinate legislation as modified, amended,
re-enacted or replaced for the time being;
(vii) a reference to the Listing Rules or the ASX Settlement
Operating Rules includes any variation, consolidation or
replacement of those rules and is to be taken to be subject to any
applicable waiver or exemption; and
(viii) where a word or phrase is given a particular meaning,
other parts of speech and grammatical forms of that word or phrase
are given corresponding meanings;
(l) a reference to a power is also a reference to authority or discretion;
(m) a power, an authority or a discretion given to a director,
the directors, the Company in general meeting or a shareholder may
be exercised at any time and from time to time;
(n) a power or authority to do something includes a power or
authority, exercisable in the like circumstances to revoke or undo
it;
(o) a reference to a clause, part, schedule, annexure, or
attachment is a reference to a clause, part, schedule, annexure, or
attachment of or to this constitution;
(p) a reference in this constitution to any document, instrument
or agreement is to that document, instrument or agreement as
amended, novated, supplemented or replaced;
(q) where a word or phrase is given a defined meaning, another
part of speech or other grammatical form in respect of that word or
phrase has a corresponding meaning;
(r) the word 'agreement' includes an undertaking or other
binding arrangement or understanding, whether or not in
writing;
(s) a reference to a document being 'signed' or to 'signature'
includes that document being executed under hand or under seal or
by any other method and, in the case of a communication in
electronic form, includes the document being authenticated in
accordance with the Corporations Act or any other method approved
by the board of directors;
(t) the words 'including', 'include' or 'includes' or similar
expressions are to be construed without limitation; and
(u) headings are used for convenience only and are not intended
to affect the interpretation of this constitution.
Jurisdiction and enforceability
10.5 Each shareholder submits to the non-exclusive jurisdiction
of the courts of Western Australia, Australia, the Federal Court of
Australia and the courts which may hear appeals from those
courts.
10.6 Any provision of, or the application of any provision of,
this constitution which is prohibited in any place is, in that
place, ineffective only to the extent of that prohibition.
10.7 Any provision of, or the application of any provision of,
this constitution which is void, illegal or unenforceable in any
place does not affect the validity, legality or enforceability of
that provision in any other place or of the remaining provisions in
that or any other place.
Transitional provisions
10.8 This constitution must be interpreted in such a way that:
(a) every director, chief executive officer, managing director
and secretary in office in that capacity immediately before this
constitution is adopted continues in office subject to, and is
taken to have been appointed or elected under, this
constitution;
(b) any register maintained by the Company immediately before
this constitution is adopted is taken to be a register maintained
under this constitution;
(c) any Seal adopted by the Company as a Seal immediately before
this constitution is adopted is taken to be a Seal which the
Company has under a relevant authority given by this
constitution;
(d) for the purposes of clause 16.10 , a cheque issued under the
predecessor of clause 16.10 is taken to have been issued under
clause 16.10 ;
(e) unless a contrary intention appears in this constitution,
all persons, things, agreements, and circumstances appointed,
approved, or created by or under the constitution of the Company in
force before this constitution is adopted continue to have the same
status, operation and effect after this constitution is adopted;
and
(f) the adoption of this constitution does not alter the rights
attaching to any preference shares which exist at the date this
constitution is adopted.
Corporations Act and Listing Rules
10.9 The replaceable rules in the Corporations Act do not apply
to the Company, except so far as they are repeated in this
constitution.
10.10 A word or phrase used in the Corporations Act has, unless
this constitution specifically states otherwise, the same meaning
in this constitution.
10.11 The provisions of this constitution are subject to the
Corporations Act and any act that is permitted or prescribed in
this constitution may only be carried out in accordance with and
subject to the applicable requirements of the Corporations Act.
10.12 If the Company is admitted to the official list of the
ASX, the following regulations apply:
(a) notwithstanding anything contained in this constitution, if
the Listing Rules prohibit an act being done, the act shall not be
done;
(b) nothing contained in this constitution prevents an act being
done that the Listing Rules require to be done;
(c) if the Listing Rules require an act to be done or not to be
done, authority is given for that act to be done or not to be done
(as the case may be);
(d) if the Listing Rules require this constitution to contain a
provision and it does not contain such a provision, this
constitution is deemed to contain that provision;
(e) if the Listing Rules require this constitution not to
contain a provision and it contains such a provision, 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.
11 Share Capital
Issue of securities
11.1 Subject to the Corporations Act, the Listing Rules and this
constitution, the directors may allot and issue shares in the
Company, or options or rights to acquire shares in the Company, to
any person on such terms and with such rights as determined by the
directors.
Alteration of share capital
11.2 The Company may alter its share capital in any manner
permitted by the Corporations Act including:
(a) converting all or any of its shares into a larger or smaller number of shares; and
(b) cancelling shares that, at the date of the passing of the
resolution, have not been taken or agreed to be taken by any person
or have been forfeited.
11.3 Where fractions of shares are or would otherwise be created
by an alteration of share capital under clause 2.2 the directors
may do anything required to give effect to that alteration,
including:
(a) making cash payments;
(b) deciding that fractions of shares are to be disregarded to
adjust the rights of all shareholders;
(c) appointing a trustee to deal with any fractions of shares on behalf of shareholders; or
(d) rounding (or rounding up) each fractional entitlement to the nearest whole share.
Conversion or reclassification of shares
11.4 Subject to clause 2.5 , the Company may by resolution
convert or reclassify shares from one class to another.
Variation of class rights
11.5 The rights attaching to any class of shares may, unless
their terms of issue state otherwise, be varied:
(a) with the written consent of the holders of at least 75% of
the shares issued in that class; or
(b) by a special resolution passed at a general meeting of the
holders of that class of shares. The provisions of this
constitution relating to general meetings apply, so far as they can
and with such changes as are necessary, to each separate meeting of
the holders of the issued shares of that class.
11.6 The rights conferred on the holders of the shares of any
class are taken as not having been varied by the creation or issue
of further shares ranking equally with them unless otherwise
expressly provided by the conditions of issue of the shares of that
class.
Registered holders treated as absolute owners
11.7 The Company may treat the registered holder of a share as
the absolute owner of that share and need not:
(a) recognise a person as holding a share on trust, even if the
Company has notice of a trust; or
(b) recognise, or be bound by, any equitable, contingent,
future, or partial claim to or interest in a share by any other
person, except an absolute right of ownership in the registered
holder, even if the Company has notice of that claim or
interest.
Joint holders
11.8 If two or more persons are registered as the holders of a
share they are taken to hold the share as joint tenants with rights
of survivorship and on the basis that:
(a) they or their respective legal personal representatives are
liable jointly and severally for all payments due in respect of the
share;
(b) subject to clause 2.8(a) , on the death of any one of them,
the survivor or survivors are the only person or persons whom the
Company may recognise as having any interest in the share. The
directors may require any evidence of death of any registered
holder as they think fit; and
(c) any registered holder may give an effective receipt for any
dividend or other distribution or payment in respect of the
share.
11.9 No more than three persons are entitled to be registered as
the holders of a share. The Company is not bound to issue more than
one certificate or holding statement in respect of shares jointly
held.
Preference shares
11.10 The directors may issue preference shares, including
preference shares which are, or at the option of the Company or
holder are, liable to be redeemed or convertible into ordinary
shares on the basis decided by the directors under the terms of
issue.
11.11 Each preference share confers on the holder a right to
receive a preferential dividend, in priority to the payment of any
dividend on the ordinary shares, at the rate and on the basis
decided by the directors under the terms of issue.
11.12 In addition to the preferential dividend and rights on
winding up, each preference share may participate with the ordinary
shares in the profits and assets of the Company, including on a
winding up, if and to the extent the directors decide under the
terms of issue.
11.13 The preferential dividend may be cumulative only if and to
the extent the directors decide under the terms of issue and will
otherwise be non-cumulative.
11.14 Each preference share confers on the holder the right in a
winding up and on redemption to payment in priority to the ordinary
shares of:
(a) the amount of any dividend accrued but unpaid on the share
at the time of winding up or redemption; and
(b) any other amount decided by the directors under the terms of issue.
11.15 To the extent the directors may decide under the terms of
issue, a preference share may confer a right to a bonus issue or
capitalisation of profits in favour of holders of those shares
only.
11.16 A preference share does not confer on its holder any right
to participate in the profits or assets of the Company except as
set out above.
11.17 Unless otherwise decided by the directors under the terms
of issue, the holders of preference shares may only vote in the
following circumstances:
(a) during a period during which a dividend (or part of a
dividend) in respect of the share is in arrears;
(b) on a proposal to reduce the Company's share capital;
(c) on a resolution to approve the terms of a buy-back agreement;
(d) on a proposal that affects rights attached to the share;
(e) on a proposal to wind up the Company;
(f) on a proposal for the disposal of the whole of the Company's
property, business and undertaking;
(g) during the winding up of the Company; and
(h) in any other circumstances in which the Listing Rules
require holders of preference shares to be entitled to vote.
11.18 The holder of a preference share who is entitled to vote
in respect of that share, is, on a poll, entitled to the greater of
one vote per share or such other number of votes specified in, or
determined in accordance with, the terms of issue for the
share.
11.19 In the case of a redeemable preference share, the Company
must, redeem the share, pay the amount payable on redemption of the
share or otherwise deal with the redemption, in accordance with the
terms of issue.
11.20 A holder of a preference share must not transfer or
purport to transfer the share, and the directors, to the extent
permitted by the Listing Rules, must not register a transfer of the
share if the transfer would contravene any restrictions on the
right to transfer the share set out in the terms of issue for the
share.
Restricted securities
11.21 Notwithstanding anything else in this constitution, the
Company shall comply in all respects with the requirements of the
Listing Rules with respect to restricted securities and the
following provisions apply in relation to securities which are
classified as restricted securities by the Listing Rules or the
ASX:
(a) shareholders must not dispose of, or agree or offer to
dispose of, restricted securities during the escrow period for
those securities except as permitted by the Listing Rules or
ASX;
(b) the Company will refuse to acknowledge a disposal (including
registering a transfer) of restricted securities during the escrow
period for those securities, except as permitted by the Listing
Rules or ASX;
(c) if the restricted securities are in the same class as quoted
securities, the holder will be taken to have agreed in writing that
the restricted securities are to be kept on the Issuer Sponsored
Subregister and are to have a holding lock applied for the duration
of the escrow period applicable to those securities;
(d) a holder of restricted securities will not be entitled to
participate in any return of capital on those securities during the
escrow period applicable to those securities except as permitted by
the Listing Rules or ASX; and
(e) if a holder of restricted securities breaches a restriction
deed or a provision of this constitution restricting a disposal of
those securities, the holder will not be entitled to any dividend
or distribution or to exercise any voting rights, in respect of
those restricted securities for so long as the breach
continues.
11.22 The Company may issue a restriction notice (in the form of
Appendix 9C of the Listing Rules or in such other form as the ASX
requires or permits) to a holder of restricted securities.
Brokerage and commission
11.23 The Company may pay brokerage or commissions to a person
who agrees to subscribe for, or arranges for others to subscribe
for, shares in the Company. It may be paid in cash, in shares of
the Company, or both.
Issue cap for offers involving monetary consideration under an
employee incentive scheme
11.24 For the purposes of section 1100V(2)(a) of the
Corporations Act, the Company may only make an offer of ESS
Interests if, at the time the offer is made, the Company reasonably
believes:
(a) the total number of Shares that are, or are covered by, the
ESS Interests of the Company that may be issued under the offer;
and
(b) the total number of Shares that are, or are covered by, the
ESS Interests that have been issued, or could have been issued,
under offers made under the Company's employee share scheme at any
time during the 3 year period ending on the day the offer is
made,
does not exceed 10% of the number of Shares actually on issue as
at the start of the day the offer is made.
12 Calls, Forfeiture and Liens
Power to make calls
12.1 Subject to the Corporations Act, the Listing Rules, this
constitution and the terms on which the shares are on issue, the
directors may make a call on any shareholder in respect of any
amount unpaid on any share held by that shareholder and may
differentiate between shareholders as to the amount of calls to be
paid and the time for payment.
12.2 The directors may, to the extent permitted by the
Corporations Act and the Listing Rules, waive or compromise all or
part of any payment due under the terms of any issue of a share or
under any call.
12.3 The terms on which shares are on issue may differ between shareholders as to:
(a) the amount to be paid on any call or instalment; and
(b) the date (or dates) on which payment is to be made.
12.4 Subject to the terms on which the shares are on issue, a
call is made on the date the directors resolve to make a call.
12.5 The directors may require a call to be paid by instalments.
Deemed call
12.6 Any amount unpaid on a share that, by the terms of issue of
that share becomes payable on issue or at a fixed date:
(a) is treated for the purposes of this constitution as if that
amount were payable under a call duly made and notified; and
(b) must be paid on the date on which it is payable under the terms of issue of the share.
Liability of joint holders
12.7 The owners of a share that is held jointly are jointly and
severally liable to pay all calls in respect of that share. This
means that the Company may recover the call amount from any one or
more of the joint holders but must not obtain more than the amount
of the call from those joint holders.
Notice of call
12.8 Subject to the terms on which the shares are on issue, at
least 10 Business Days' notice (or such longer period required by
the Listing Rules) must be given to the shareholder of the date on
which the amount of the call or the instalment of the call must be
paid.
12.9 Subject to the terms on which the shares are on issue and
the Listing Rules, the notice must state:
(a) the amount of the call or, as the case may be, the amount of each instalment;
(b) the date (or dates) for payment;
(c) the time (or times) for payment;
(d) the place (or places) for payment;
(e) that interest may be payable if payment is not made on or
before the date (or dates) for payment; and
(f) that a lien will arise if the amount of the call or the
instalment is not paid in accordance with the notice.
12.10 A call is not invalid by reason of any unintentional error
or omission in giving notice or by non-receipt of notice.
Revocation, postponement, or extension of calls
12.11 Subject to the terms on which the shares are on issue and
the Listing Rules, the directors may, by notice, revoke, postpone
or extend the time for payment of the call.
Interest on unpaid calls
12.12 A shareholder must pay to the Company any called amount by
the time, in the manner and at the place specified in the notice of
the call.
12.13 If an amount called is not paid on or before any date
specified in the notice for payment, the holder must pay interest
on the amount unpaid, at the rate and in the manner specified in
clause 3.54 , from the date specified in the notice of the call for
payment until and including the date of actual payment.
12.14 The directors may waive the right to require the payment of interest.
Suspension of privileges
12.15 Until a call (together with any interest and expenses that
are payable) has been paid, the holder is not entitled to receive
any dividend or other distribution or to be present and vote at any
meeting (other than as proxy for another shareholder) either
personally or by attorney, proxy or by Representative. The
shareholder may not be counted in a quorum or exercise any other
privilege as a shareholder.
Recovery of called amounts
12.16 In any proceeding to recover a call, or an amount payable
due to the failure to pay a call or late payment of a call, proof
that:
(a) the name of the person against whom proceedings are issued
is entered in the register as a holder of the shares the subject of
the unpaid call;
(b) the resolution making the call is duly recorded in the minute book of the Company; and
(c) notice of the call was given to the holder of the shares the subject of the unpaid call,
will be conclusive evidence of the obligation of the shareholder
to pay the call and it is not necessary to prove the appointment of
the directors who made the call or any other matter.
12.17 Any proceeding brought by the Company in accordance with
clause 3.16 will be without prejudice to the right of the Company
to forfeit the share the subject of the unpaid call.
12.18 In clause 3.16 , a proceeding to recover a call or an
amount includes a proceeding against a person whom the Company
alleges a set-off or counterclaim.
Payment of calls in advance
12.19 The directors may accept from a shareholder in advance of
any call, the whole or part of any amount unpaid on any share.
12.20 The directors may authorise payment by the Company of
interest (in an amount determined by the directors) upon the whole
or any part of any sum so accepted under clause 3.19 from the date
of payment until the date on which the sum paid is payable under a
call.
12.21 Any sum accepted by the Company in advance of a call is:
(a) to be treated as a loan to the Company, not as share capital
of the Company, until the date on which the sum is payable under a
call or instalment; and
(b) not to be taken into account in determining an entitlement
to vote or the amount of any dividend in respect of any share.
12.22 The directors may repay any sum accepted in advance of a call.
Notice regarding forfeiture
12.23 If any shareholder does not pay the amount of any call or
instalment in respect of any share when it is due and in the manner
and at the place specified for payment, the directors may give
notice to the shareholder:
(a) requiring payment of:
(i) the unpaid call or instalment;
(ii) any costs and expenses incurred by the Company as a result
of the non-payment of the call or instalment; and
(iii) interest that has accrued at the rate and in the manner
specified in clause 3.54 on the amount of the unpaid call or
instalment;
(b) demanding payment of those amounts within 10 Business Days after the date of the notice;
(c) stating the manner in which payment is to be made; and
(d) stating that the share and any dividend in respect of it not
yet paid are liable to be forfeited if payment of the amount
demanded is not made in full within 10 Business Days after the date
of the notice.
Forfeiture
12.24 If payment of the amount demanded is not made in full in
accordance with a notice given under clause 3.23 , the directors
may by resolution forfeit any share the subject of the notice.
12.25 A forfeiture of any share under clauses 3.24 to 3.35
includes all dividends, interest and other amounts payable by the
Company on the forfeited share and not actually paid before the
forfeiture.
12.26 If any share is forfeited, notice of forfeiture will be
given to the holder of that share and the date and details of the
forfeiture will be recorded in the register. Failure to do so will
not invalidate the forfeiture.
12.27 If the forfeited shares are entered on the CHESS
Subregister, the Company may take steps to move the share to a
subregister administered by the Company. The forfeiture is
effective at the time the share is entered in that subregister.
12.28 Any forfeited share is the property of the Company and,
subject to the Listing Rules, the directors may sell, re-issue or
otherwise dispose of any forfeited share on terms and in such
manner as determined by the directors.
12.29 At any time before any forfeited share is sold or
otherwise disposed of, the directors may cancel the forfeiture on
terms determined by it.
12.30 On forfeiture of any share, the holder of that share
ceases to be a shareholder and ceases to have any right as a
shareholder in respect of that forfeited share (including in
respect of any dividend), but remains liable to pay the
Company:
(a) all amounts payable by the former shareholder to the Company at the date of forfeiture;
(b) any and all costs or expenses incurred by the Company in respect of the forfeiture; and
(c) interest at a rate on those amounts at the rate and in the
manner specified in clause 3.54 , calculated from the date of
forfeiture until payment of amounts and accrued interest in
full.
12.31 The liability of a former shareholder continues until:
(a) the former shareholder pays all those amounts and accrued interest in full; or
(b) the Company receives and applies, as the net proceeds from
the sale or other disposal of the forfeited share, an amount which
is equal to or greater than all those amounts and accrued
interest.
12.32 The Company may receive the net proceeds from the sale,
reissue or other disposal of any forfeited share and execute an
instrument of transfer in respect of the forfeited share. The
Company must apply the net proceeds of any sale, reissue, or other
disposal of any forfeited share in or towards satisfaction of:
(a) firstly, costs and expenses paid or payable in connection
with the enforcement of the forfeiture and the sale, reissue, or
other disposal of that share; and
(b) secondly, all amounts due but unpaid and accrued interest on all those amounts.
12.33 The Company must pay the balance (if any) of the net
proceeds of sale, reissue or other disposal to the person whose
forfeited share has been sold, reissued, or otherwise disposed
of.
12.34 A statutory declaration signed by a director or secretary
of the Company stating that the person making the declaration is a
director or secretary of the Company, and specifying that
particular shares in the Company have been forfeited, or sold,
reissued or otherwise disposed of, on a particular date, is
conclusive evidence of the facts in the statutory declaration as
against all persons claiming to be entitled to the shares and of
the right of the Company to forfeit, sell, reissue or otherwise
dispose of the shares.
12.35 The purchaser of any forfeited share is entitled to assume
that the proceeds of the sale or other disposal have been applied
in accordance with this constitution and is not responsible for the
application of the purchase money by the Company.
Cancellation of forfeited shares
12.36 Subject to the Corporations Act and the Listing Rules, the
Company may cancel any forfeited share.
12.37 Liability for the amount called but unpaid in respect of
the cancelled share may not be released or waived without the
approval of the holders of ordinary shares given in accordance with
the Listing Rules.
Surrender of shares
12.38 The Company may accept a surrender of a share by way of compromise of a claim.
12.39 The directors may accept the surrender of any share which
may be forfeited. If the directors accept the surrender, that share
will be treated as having been forfeited and may be sold,
re-issued, or otherwise disposed of in the same manner as a
forfeited share.
Lien on shares
12.40 The Company has a first and paramount lien:
(a) on each partly paid share in respect of any call (including
any instalment) due and payable but unpaid;
(b) on each share in respect of any payment which the Company is
required by law to pay (and has paid) in respect of the share for
which the Company is indemnified under clause 3.51 ; and
(c) on each share acquired under an employee incentive scheme
for any money payable to the Company in relation to the share,
including any loan under an employee incentive scheme.
12.41 In each case, the lien extends to all dividends from time
to time payable in respect of the shares, the proceeds of sale,
reissue or other disposal of the shares, and to reasonable interest
(at the rate and in the manner specified in clause 3.54 ) and
reasonable expenses incurred because the amount is not paid.
12.42 The Company may do all things necessary or appropriate for
it to do to protect any lien or other right to which it may be
entitled under any law or this constitution.
12.43 By notice, the directors may discharge or waive, in whole
or in part, any lien or declare any share to be wholly or partly
exempt from a lien, but otherwise no act or omission is to be taken
as discharging, waiving, or otherwise granting an exemption from
any lien.
12.44 If any share is subject to a lien and the Company
registers the transfer of any share subject to a lien without
giving notice of the lien to the transferee of the share, the lien
is treated as waived as against the transferee.
Enforcement of lien
12.45 The directors may sell or otherwise dispose of any share the subject of a lien, if:
(a) a sum in respect of which the lien exists is due and payable but is unpaid;
(b) the Company has provided notice to the holder:
(i) setting out the amount due but unpaid;
(ii) demanding payment of that amount; and
(iii) stating that the share is liable to be sold or otherwise
disposed of if payment of that amount is not made within 10
Business Days after the date of the notice; and
(c) the amount specified in the notice is not paid in full in accordance with the notice.
12.46 The terms on which and manner by which any share may be
sold or otherwise disposed of are to be determined by the
directors.
12.47 Interest accrues at the rate and in the manner specified in clause 3.54 on:
(a) the amount due but unpaid; and
(b) costs and expenses paid in connection with the enforcement
of the lien and the sale or other disposal of the shares.
12.48 The Company may receive the net proceeds of the sale or
other disposal of any share and execute an instrument of transfer
in respect of the share. The Company must apply the net proceeds of
the sale or disposal of any share in or towards satisfaction
of:
(a) firstly, costs and expenses paid or payable in connection
with the enforcement of the lien and the sale or other disposal of
that share; and
(b) secondly, all amounts due but unpaid and accrued interest on all those amounts.
12.49 The Company must pay any balance of the net proceeds of
sale or other disposal to the person whose share has been sold or
otherwise disposed of.
12.50 The purchaser of any share the subject of a lien is
entitled to assume that the proceeds of sale or other disposal have
been applied in accordance with this constitution and is not
responsible for the application of the purchase money by the
Company.
Shareholder's indemnity for payment required by law
12.51 If the law of any jurisdiction imposes or purports to
impose any immediate, future, or possible liability on the Company,
or empowers or purports to empower any person to require the
Company to make any payment, on account of a shareholder or
referable to a share held by that shareholder (whether alone or
jointly) or a dividend or other amount payable in respect of a
share held by that shareholder, the Company:
(a) is fully indemnified by that shareholder from that liability;
(b) may recover as a debt due from the shareholder the amount of
that liability together with interest at the rate and in the manner
specified in clause 3.54 , from the date of payment by the Company
to the date of repayment by the shareholder; and
(c) subject to clauses 4.10 to 4.11 , may refuse to register a
transfer of any share by that shareholder until the debt has been
paid to the Company.
12.52 Nothing in this constitution in any way prejudices or
affects any right or remedy which the Company has (including any
right of set off) and, as between the Company and the shareholder,
any such right or remedy is enforceable by the Company.
Continuing liability
12.53 If the net proceeds from the sale or other disposal of a
share under this clause 3 are less than the sum of:
(a) the amount due but unpaid in respect of that share;
(b) the costs and expenses paid or payable in connection with
the enforcement of the lien and the sale, reissue, or other
disposal; and
(c) interest on those amounts,
(together the Shortfall) the person whose share has been sold,
reissued or otherwise disposed of continues to be liable and must
pay to the Company an amount equal to the Shortfall together with
interest at the rate and in the manner specified in clause 3.54
.
Interest payable
12.54 For the purposes of this clause 3 :
(a) the rate of interest payable to the Company is:
(i) if the directors have fixed a rate, that rate; or
(ii) in any other case, 10% per annum; and
(b) such interest accrues daily and may be capitalised monthly
or at such other intervals as the directors think fit.
13 Transfer of Shares
Participation in computerised or electronic systems
13.1 The directors may do anything they consider necessary or
desirable and that is permitted under the Corporations Act and the
Listing Rules to facilitate the Company's participation in any
computerised or electronic system established or recognised by the
Corporations Act or the Listing Rules for the purposes of
facilitating dealings in shares.
Form of transfer
13.2 Subject to this constitution and to any restrictions
attached to the share, a shareholder may transfer all or any of the
shareholder's shares by:
(a) a Proper ASTC Transfer; or
(b) an instrument of transfer in any usual or common form or in
any other form that the directors approve.
13.3 If an instrument of transfer under clause 4.2(b) is used to
transfer a share and the transferor or transferee is a clearing
house or its nominee(s), the instrument of transfer may be executed
by hand or by machine imprinted signature or by such other manner
of execution as the directors may approve from time to time.
13.4 A transfer referred to in clause 4.2(b) must:
(a) be executed by or on behalf of both the transferor and the
transferee (the directors may resolve, either generally or in any
particular case, to accept for registration an instrument of
transfer that has been executed using a machine imprinted
signature);
(b) if required by law to be stamped, be duly stamped; and
(c) be delivered to the registered address of the Company or the
share registry of the Company for registration (or such other place
the directors decide) together with the certificate (if any) for
the shares to be transferred and, subject to the Listing Rules, any
other evidence the directors (or the Company's securities registry)
may require to prove the title of the transferor to the shares and
the transferor's right to transfer the shares.
13.5 Except as provided by any applicable ASX Settlement
Operating Rules, the transferor remains the holder of the shares
until a Proper ASTC Transfer has been effected or the name of the
transferee is entered in the register as the holder of those
shares.
13.6 In the case of a Market Transfer, the Company must comply
with the obligations imposed on it by the Listing Rules and the ASX
Settlement Operating Rules and any applicable legislation in
connection with any transfer of shares.
Registration procedure
13.7 Subject to clause 4.4 and clauses 4.10 to 4.12 , upon
receipt of a transfer of shares that complies with clauses 4.2 to
4.6 , the Company must register the nominated transferee as the
holder of the relevant shares.
13.8 The Company must not charge a fee for registering a
transfer of shares unless the fee is permitted by the Listing
Rules.
13.9 On registration of a transfer of shares, the Company must
cancel the old certificate (if any) and any duplicate
certificate.
Refusal to register
13.10 The directors may, in their absolute discretion, refuse to
register any transfer of shares or request ASX Settlement to apply
a holding lock to prevent a transfer of all or any of them:
(a) where the transfer is not in registrable form;
(b) where registration of the transfer may breach a law of
Australia, including where a law relating to stamp duty prohibits
the Company from registering it;
(c) where the Company has a lien on the securities the subject of the transfer;
(d) the transfer is paper-based and registration of the transfer
will result in the creation of less than a marketable parcel;
(e) if the transfer is not permitted under this constitution;
(f) if the transfer is not permitted under the terms of an employee share plan;
(g) if the Company is served with a court order that restricts
the holder's capacity to transfer the shares; or
(h) in any circumstances permitted or required by the Listing
Rules or terms of issue of the shares.
13.11 If the directors request the application of a holding lock
to prevent a transfer of shares or refuse to register a transfer of
a share, the directors must give written notice to the holder of
the share and the broker lodging the transfer, if any, of the
refusal to transfer in accordance with the Listing Rules. Failure
to give such notice will not invalidate any act or decision of the
directors not to register the transfer.
Closure of register
13.12 Subject to the Corporations Act, the Listing Rules and the
ASX Settlement Operating Rules, the register may be closed during
any time, and for any periods, the directors think fit.
Instruments of transfer retained
13.13 All instruments of transfer that are registered will be
retained by the Company for such period as the directors may
determine.
13.14 Any instrument of transfer which the directors decline to
register will, except in the case of fraud, or alleged fraud, upon
demand in writing be returned to the party who delivered it.
No transfer to an infant
13.15 A transfer of any shares may not knowingly be made to an
infant or to a person of unsound mind or under other legal
disability.
Correction of share register
13.16 If a person is registered as the holder of any share
contrary to the provisions of this constitution the directors may
remove the person's name as the holder of the shares and other
information relating to the person and reinstate the name of the
previous holder of the shares and the information relating to that
previous holder.
14 Transmission of Shares
Transmission of shares on death
14.1 On the death of a shareholder, the Company will recognise only:
(a) where the shareholder was a sole holder, the personal
representative of the deceased holder; and
(b) where the shareholder was a joint holder, the surviving
joint holders, as being entitled to the deceased's interest in
shares of the deceased holder.
14.2 A person who becomes entitled to a share upon the death of
a shareholder may, having provided the directors with such evidence
as they require to prove that person's entitlement to the shares of
the deceased shareholder:
(a) by giving a signed notice to the Company, elect to be
registered as the holder of any share owned by the deceased; or
(b) subject to the provisions of this constitution as to
transfers, transfer any share owned by the deceased to another
person.
14.3 A trustee, executor or administrator of the estate of a
deceased shareholder may be registered as the holder of any share
owned by the deceased as trustee, executor or administrator of that
estate.
14.4 The death of a shareholder will not release the estate of
that shareholder from any liability in respect of any shares.
Transmission of shares on bankruptcy
14.5 A person who becomes entitled to a share on the bankruptcy
of a holder may, having provided the directors with such evidence
as it requires to prove that person's entitlement to the shares of
the bankrupt holder:
(a) by giving a signed notice to the Company, elect to be
registered as the holder of any share owned by the bankrupt holder;
or
(b) subject to the provisions of this Constitution as to
transfers, transfer any share owned by the bankrupt holder to
another person.
14.6 A trustee or administrator of a person who is bankrupt may
be registered as the holder of any share owned by that person as
trustee or administrator of that person's affairs.
14.7 Clauses 5.5 and 5.6 are subject to the Bankruptcy Act 1966 (Cth).
Transmission of shares on mental incapacity
14.8 A person who becomes entitled to a share because a holder
is subject to assessment or treatment under any mental health law
may, having provided the directors with such evidence as it
requires to prove that person's entitlement to the shares of that
holder:
(a) by giving a signed notice to the Company, elect to be
registered as the holder of any share owned by the holder; or
(b) subject to the provisions of this constitution as to
transfers, by giving a proper instrument of transfer to the
Company, transfer any shares owned by the holder to another
person.
14.9 A trustee or administrator of a person who is mentally or
physically incapable of managing their affairs, may be registered
as the holder of any share owned by that person as trustee or
administrator of that person's affairs.
Transmission subject to ASX Settlement Operating Rules
14.10 The provisions of clauses 5.1 to 5.9 are subject to any
provisions of the ASX Settlement Operating Rules which deal with
transmission on death or by operation of law.
15 Sale of Non Marketable Parcels
15.1 The Company may sell shares that constitute less than a
marketable parcel by following the procedures in this clause 6
.
15.2 If the directors determine that a shareholder holds less
than a marketable parcel of shares in a class of shares of the
Company, on a date decided by the directors, the Company may give
the shareholder a notice which:
(a) explains the effect of the notice under this clause 6 ;
(b) advises the shareholder that they may choose to be exempt
from the provision of this clause 6 by completing the form of
election for that purpose which must be sent with the notice.
15.3 If, before 5:00pm Sydney time on a date specified in the
notice which is no earlier than 6 weeks after the notice is
sent:
(a) the Company has not received a completed form of election
from the shareholder exempting them from this clause 6 ; and
(b) the shareholder has not increased their shareholding to a marketable parcel,
the shareholder is taken to have irrevocably appointed the
Company as their agent to do anything in clause 6.5 .
15.4 In addition to initiating a sale by sending a notice under
clause 6.2 , the directors may also initiate a sale if a
shareholder holds less than a marketable parcel and that holding
was created by a transfer of a parcel of shares effected on or
after 1 September 1999 that was less than a marketable parcel at
the time that the transfer document was initiated or, in the case
of a paper-based transfer document, was lodged with the Company. In
that case:
(a) the shareholder is taken to have irrevocably appointed the
Company as their agent to do anything in clause 6.5 ; and
(b) if the holding was created after the adoption of this clause
6 , the directors may remove or change the shareholder's rights to
vote or receive dividends in respect of those shares. Any dividends
withheld must be sent to the former shareholder after the sale when
the former shareholder delivers to the Company such proof of title
as the directors accept.
15.5 The Company may:
(a) sell the shares constituting less than a marketable parcel as soon as practicable;
(b) deal with the proceeds of sale under clause 6.7 ; and
(c) receive any disclosure document, including a financial
services guide, as agent for the shareholder.
15.6 The costs and expenses of the sale of shares arising from a
notice under clause 6.2 (including brokerage and stamp duty) are
payable by the purchaser or the Company.
15.7 Subject to clause 6.6 , where:
(a) shares constituting less than a marketable parcel are sold
by the Company on behalf of the shareholder under clause 6.5 ;
and
(b) the certificate for the shares constituting less than a
marketable parcel (unless the Company is satisfied that the
certificate has been lost or destroyed or the shares are
uncertificated securities on the Issuer Sponsored Subregister) has
been received by the Company,
the Company must, within 60 days of the completion of the sale,
pay the proceeds of sale to the shareholder entitled to those
proceeds, less any unpaid calls and interest.
15.8 Payment of any money under this clause 6 is at the risk of
the shareholder to whom it is sent.
15.9 If it is a requirement of the Listing Rules, the Company
must not give a notice under clause 6.2 more than once in any 12
month period (except as contemplated by clause 6.10 ).
15.10 If a takeover bid is announced after a notice is given but
before an agreement is entered into for the sale of shares, this
clause ceases to operate for those shares. However, despite clause
6.9 , a new notice under clause 6.2 may be given after the offer
period of the takeover bid closes.
15.11 The directors may, before a sale is effected under this
clause 6 , revoke a notice given or suspend or terminate the
operation of this clause 6 either generally or in specific
cases.
15.12 If a shareholder is registered in respect or more than one
parcel of shares, the directors may treat the shareholder as a
separate shareholder in respect of each of those parcels so that
this clause 6 will operate as if each parcel was held by different
persons.
16 General Meetings
Annual general meeting
16.1 Annual general meetings must be held in accordance with the Corporations Act.
Power to convene
16.2 A general meeting may only be called by:
(a) a directors' resolution; or
(b) as otherwise provided in the Corporations Act.
Notice of general meeting
16.3 Notice of a general meeting must be given to the
shareholders, directors, and auditor in accordance with the
Corporations Act and Listing Rules.
16.4 The content of a notice of general meeting called by the
directors is to be decided by the directors, but it must state the
general nature of the business to be transacted at the meeting and
any other matters required by the Corporations Act and Listing
Rules.
16.5 A notice of general meeting must be accompanied by a form
of proxy which satisfies the requirements of the Corporations Act
and the Listing Rules and must be given in accordance with clause
19.2 .
16.6 Unless the Corporations Act provides otherwise:
(a) no business may be transacted at a general meeting unless
the general nature of the business is stated in the notice calling
the meeting; and
(b) except with the approval of the directors or the chairperson
of the general meeting, no person may move any amendment to a
proposed resolution or to a document that relates to such a
resolution.
Use of technology at general meetings
16.7 Subject to law, the directors may determine to hold a
general meeting at 2 or more locations or using one or more
technologies or electronic participation facilities that give all
persons entitled to attend a reasonable opportunity to participate
without being physically present at the same place (including that
each person entitled to vote is provided the opportunity to
participate in the vote on a show of hands or on a poll), in which
case:
(a) all persons so participating in the meeting are taken for
the purposes (for example, quorum requirement) to be present at the
meeting while so participating;
(b) all the provisions in this constitution relating to meetings
of members apply, so far as they can and with such changes as are
necessary, to meetings of the members using that technology;
and
(c) the meeting is to be taken to be held at the place
determined by the chairperson of the general meeting as long as at
least one of the members involved was at that place for the
duration of the general meeting.
16.8 If a general meeting is to be held in accordance with clause 7.7 and subject to law:
(a) the directors may prescribe the regulations, rules, and
procedures in relation to the manner in which the meeting is to be
conducted; and
(b) the directors may communicate such regulations, rules, and
procedures (or instructions on how they can be accessed) to members
by notification to the ASX.
16.9 If the technology used in accordance with clause 7.7
encounters a technical difficulty, whether before or during the
meeting, which results in a shareholder not being able to
participate in the meeting, the chairperson may, subject to the
Corporations Act and this constitution, allow the meeting to
continue or may adjourn the meeting either for such reasonable
period as may be required to fix the technology or to such other
time and location as the chairperson deems appropriate. For the
avoidance of doubt, where the chairperson has allowed the meeting
to continue, any resolution passed at that meeting is valid.
Power to cancel or postpone
16.10 Subject to the Corporations Act, the Listing Rules and
this constitution, if the directors have convened a general
meeting, the directors may by notice change the place (or places)
of or postpone or cancel that general meeting.
16.11 If a director has convened a general meeting, only the
director who convened the general meeting may by notice change the
place (or places) of the general meeting or postpone or cancel the
general meeting.
16.12 If a general meeting is convened pursuant to a request by
shareholders or otherwise not convened by the directors, the
directors may not postpone or cancel the general meeting without
the consent of the persons who called or requested the meeting.
Notice of change, postponement, or cancellation
16.13 A notice of cancellation or postponement or change of
place of a general meeting must state the reason for cancellation
or postponement and be:
(a) published in a daily newspaper circulating in Australia; or
(b) given to the ASX; or
(c) subject to the Corporations Act and the Listing Rules, given
in any other manner determined by the directors.
Business at postponed meeting
16.14 The only business that may be transacted at a general
meeting resumed after postponement, is the business specified in
the original notice convening the meeting.
Proxy, attorney, or Representative at postponed meeting
16.15 Where by the terms of an instrument appointing a proxy, attorney or a Representative:
(a) the appointed person is authorised to attend and vote at a
general meeting or general meetings to be held on or before a
specified date; and
(b) the date for holding the meeting is rescheduled, adjourned,
or postponed to a date later than the date specified in the
instrument of proxy, power of attorney or appointment of
Representative,
then, by force of this clause 7.15 , that later date is
substituted for and applies to the exclusion of the date specified
in the instrument of proxy, power of attorney or appointment of
Representative unless the shareholder appointing the proxy,
attorney or Representative gives to the Company at its registered
office notice in writing to the contrary not less than 48 hours
before the time to which the holding of the meeting has been
rescheduled, adjourned or postponed.
Omissions
16.16 The accidental omission to give any notice to, or the
non-receipt of any notice by, any person entitled to receive the
notice shall not invalidate any resolution passed or any
proceedings at that meeting or at a postponed meeting or the
cancellation or postponement of a meeting.
17 Proceedings at General Meetings
Quorum
17.1 Business may not be transacted at any general meeting
unless a quorum of shareholders is present at the time when the
meeting proceeds to business. Two shareholders entitled to vote on
a resolution at the meeting constitute a quorum in all cases. In
determining whether a quorum is present, each individual attending
as a proxy, attorney or Representative is to be counted, except
that where a shareholder has appointed more than one proxy,
attorney or Representative, only one is to be counted.
17.2 If a quorum is present at the time the first item of
business is transacted, it is taken to be present when the meeting
proceeds to consider each subsequent item of business unless the
chairperson of the meeting (on the chairperson's own motion or at
the request of a shareholder who is present) declares
otherwise.
Effect of no quorum
17.3 If a quorum is not present within 30 minutes from the
notified starting time for the meeting:
(a) where the meeting was convened on the requisition of
shareholders, the meeting is cancelled; and
(b) in any other case, the meeting is postponed to the same
place on the same day and at the same time the following week, or
to any other time and place chosen by the directors. If a quorum is
not present within 30 minutes after the starting time of the
postponed meeting, it is cancelled.
Chairperson of the board of directors
17.4 The chairperson elected as chairperson of the board of
directors meetings, or in that person's absence, the deputy
chairperson of the board of directors (if any), shall preside as
chairperson at every general meeting.
Vacancy in chairperson
17.5 Where a general meeting is held and:
(a) no person has been elected as a chairperson of the board of directors; or
(b) neither the chairperson nor the deputy chairperson of the
board of directors is present within 15 minutes after the time
appointed for the holding of the meeting or is unwilling to
act,
the following may preside as chairperson of the meeting (in
order of precedence):
(c) a director chosen by a majority of the directors present;
(d) the only director present; or
(e) a shareholder elected by one of their number present at the meeting.
Conduct of general meetings
17.6 The chairperson of a general meeting:
(a) has charge of the general conduct of the meeting and of the
procedures to be adopted at the meeting;
(b) may require the adoption of any procedure which is in the
chairperson's opinion necessary or desirable for proper and orderly
debate or discussion (including limiting the time that a person may
speak on a motion or other item of business) and the proper and
orderly casting or recording of votes at the general meeting;
and
(c) may, having regard where necessary to the Corporations Act,
terminate discussion or debate on any matter whenever the
chairperson considers it necessary or desirable for the proper and
orderly conduct of the meeting,
and a decision by the chairperson under this clause 8.6 is
final.
Adjournment
17.7 The chairperson may at any time during the course of a meeting:
(a) adjourn the meeting or any business, motion, question, or
resolution being or to be considered by the meeting to a later time
at the same meeting or to another date, time, and place (or
places); and
(b) for the purpose of allowing any poll to be taken or
determined, suspend the proceedings of the meeting for such period
or periods as the chairperson determines.
17.8 Subject to the Corporations Act and this constitution, the
chairperson's rights under clause 8.7 are exclusive and, unless the
chairperson requires otherwise, no vote may be taken or demanded by
the shareholders about any postponement, adjournment, or suspension
of proceedings.
17.9 The only business that can be transacted at an adjourned
meeting is the unfinished business from the original meeting.
Form of notice for adjourned meeting
17.10 Except as provided by clause 8.11 , it is not necessary to
give any notice of an adjournment or of the business to be
transacted at an adjourned meeting.
Notice where a meeting is adjourned for 30 days
17.11 When a meeting is adjourned for 30 days or more, notice of
the adjourned meeting must be given in the same manner as the
original meeting.
Right to discuss the management of the Company
17.12 The chairperson of a general meeting must allow a
reasonable opportunity for shareholders at the meeting to question,
discuss or comment on the management of the Company.
Voting on show of hands or Poll
17.13 Subject to clause 8.14 , each matter submitted to a
general meeting is to be decided on a show of hands of all
shareholders present and entitled to vote in the first
instance.
17.14 A matter will be decided on a poll without first being
submitted to the general meeting to be decided on a show of hands
where:
(a) the resolution calls for a vote by poll as set out in the
notice of meeting provided to members in accordance with clause 7.3
; or
(b) any other circumstance where the chairperson of the general
meeting determines it appropriate.
17.15 A poll may be demanded by shareholders in accordance with
the Corporations Act (and not otherwise) or by the chairperson.
17.16 A demand for a poll does not prevent the continuance of
the meeting for the transaction of any business other than the
resolution on which the poll has been demanded.
17.17 Unless a poll is duly demanded, a declaration by the
chairperson that a resolution has on a show of hands been carried
or carried unanimously, or carried by a particular majority, or
lost, and an entry to that effect in the book containing the
minutes of the proceedings of the company is conclusive evidence of
the fact without proof of the number or proportion of the votes
recorded for or against the resolution.
17.18 A poll at a general meeting must be taken in a way and at
the time the chairperson directs. The results of the poll as
declared by the chairperson is the resolution of the general
meeting at which the poll was demanded.
17.19 A poll cannot be demanded at a general meeting on the election of a chairperson.
17.20 The demand for a poll may be withdrawn with the chairperson's consent.
Chairperson's vote
17.21 If the votes are equal, whether on a show of hands or on a
poll, the chairperson of the meeting at which the show of hands
takes place or at which the poll is demanded is entitled to a
second or casting vote.
Direct voting
17.22 The directors may determine that at any meeting of
shareholders or class meeting, a shareholder who is entitled to
attend and vote on a resolution at that meeting is entitled to a
direct vote in respect of that resolution. A 'direct vote' includes
a vote delivered to the Company by post, fax or other electronic
means approved by the directors. The directors may prescribe
regulations, rules, and procedures in relation to direct voting,
including specifying the form, method, and timing of giving a
direct vote at a meeting in order for the vote to be valid.
Votes of joint holders
17.23 If shares are held jointly, only one of the joint holders
may vote. If more than one of the joint holders tenders a vote, the
vote of the holder whose name in respect of those shares appears
first in the register of shareholders is to be treated as the only
vote in relation to those shares.
Incapacity
17.24 If a shareholder is a person whose person or estate is
subject to assessment or treatment under any mental health law, the
shareholder's committee or trustee or such other person as properly
has the management of the shareholder's estate may exercise any
rights of the shareholder in relation to a general meeting as if
the committee, trustee or other person were the shareholder.
Disentitlement to vote
17.25 A shareholder is not entitled to vote at a general meeting
in respect of a share held by the shareholder unless all calls and
other sums presently payable by the shareholder in respect of the
share have been paid.
17.26 Where a breach of the Listing Rules relating to restricted
securities continues or while a breach subsists of a restriction
deed entered into by the Company under the Listing Rules in
relation to shares which are restricted securities, the restricted
securities do not confer on the holder any dividend, distribution
or voting rights. However, those restricted securities shall not be
treated or taken to be a separate class of share for any
purpose.
Objection to voter
17.27 An objection may be raised to the validity of a vote
tendered at a general meeting only at the meeting or adjourned
meeting at which the vote objected to is cast.
17.28 Any objection is to be referred to the chairperson of the
meeting, whose decision is final and a vote not disallowed by the
chairperson is valid for all purposes.
Voting rights
17.29 Subject to any rights or restrictions for the time being
attached to any class or classes of shares:
(a) at meetings of shareholders or classes of shareholders each
shareholder entitled to vote may vote in person or by not more than
2 proxies, not more than 2 attorneys or by a Representative;
(b) on a show of hands every shareholder present at a general
meeting has one vote in respect of the total number of shares
carrying the right to vote held by that shareholder (even if a
proxy, attorney, or Representative represents more than one
shareholder);
(c) on a poll every shareholder present at a general meeting has
one vote for each share carrying the right to vote held by that
shareholder; and
(d) where a shareholder appoints 2 proxies or attorneys:
(i) the appointment may specify the proportion or number of
votes that the proxy or attorney may exercise. If both appointments
are silent, each proxy or attorney appointed may only exercise half
the shareholder's votes;
(ii) on a show of hands, neither proxy or attorney may vote if
more than one proxy or attorney attends; and
(iii) on a poll, each proxy or attorney may only exercise votes
in respect of those shares or voting rights the proxy or attorney
represents.
Decisions
17.30 A decision of a general meeting may not be impeached or
invalidated on the ground that a person voting at the meeting was
not entitled to do so.
Admission to general meetings
17.31 The chairperson of a general meeting may take any action
he or she considers appropriate for the safety of persons attending
the meeting and the orderly conduct of the meeting and may refuse
admission to a person or require a person to leave and not return
to a meeting if the person:
(a) refuses to permit examination of any article in the person's possession; or
(b) is in possession of an electronic recording device, placard, or banner; or
(c) is in possession of an article which the chairperson
considers to be dangerous, offensive, or liable to cause
disruption;
(d) who refused to comply with a request to turn off a mobile
telephone, personal communication device or similar device;
(e) who behaves or threatens to behave or who the chairperson
has reasonable ground to believe may behave in a dangerous,
offensive or disruptive way; or
(f) who is not entitled to receive the notice of meeting.
Auditor's right to be heard
17.32 The auditor of the Company from time to time is entitled to:
(a) attend any general meeting of the Company;
(b) be heard at any general meeting of the Company on any part
of the business of the meeting that concerns the auditor in their
capacity as auditor, even if:
(i) the auditor retires at the general meeting; or
(ii) shareholders pass a resolution to remove the auditor from office; and
(c) authorise a person in writing to attend and speak at any
general meeting as the auditor's representative.
18 Proxies, Attorneys and Representatives
Appointment of proxy or attorney
18.1 Subject to this constitution, a shareholder who is entitled
to attend and to vote at a general meeting of the Company may
appoint not more than 2 proxies to attend, speak and vote for that
shareholder. The instrument appointing a proxy may restrict the
exercise of any power.
18.2 A proxy or attorney need not be a shareholder of the Company.
18.3 A proxy or attorney is not entitled to vote if the
shareholder who has appointed the proxy or attorney is present in
person at the meeting.
18.4 Subject to this constitution, a shareholder may appoint not
more than 2 attorneys to act at a meeting of members. If the
appointor is an individual, the power of attorney must be signed in
the presence of at least one witness.
18.5 Subject to the Corporations Act and the Listing Rules, an
appointment of a proxy or an attorney must be in writing and be
signed by the shareholder appointing the proxy or attorney, and
state:
(a) the shareholder's name and address;
(b) the Company's name;
(c) the proxy or attorney's name or the name of the office held
by the proxy or attorney; and
(d) the general meeting at which the proxy or attorney may be
used, or if the appointment is a standing one, a clear statement to
that effect.
18.6 Where an instrument appointing a proxy is signed pursuant
to a power of attorney, a copy of the power of attorney (certified
as a true copy of the original) must be attached to the proxy sent
to the Company.
18.7 Instruments appointing a proxy or attorney may specify the
manner in which the proxy or attorney is to vote in respect of a
particular resolution and in that event the proxy or attorney is
not entitled to vote on the resolution except as specified in the
instrument. If an instrument does not specify the manner in which
the proxy or attorney is to vote, the proxy or attorney is entitled
to vote on the proposed resolution as the proxy or attorney
considers appropriate.
18.8 An instrument appointing a proxy or attorney is taken to
confer authority to demand or join in demanding a poll.
18.9 A proxy or attorney appointment received at an electronic
address specific in the notice of general meeting for the receipt
of proxy or attorney appointments or otherwise received by the
company in accordance with the Corporations Act is taken to have
been signed or executed if the appointment:
(a) includes or is accompanied by a personal identification code
allocated by the company to the shareholder making the
appointment;
(b) has been authorised by the shareholder in another manner
approved by the directors and specified in or with the notice of
meeting; or
(c) is otherwise authenticated in accordance with the Corporations Act.
Appointment of Representative
18.10 Subject to this constitution, if a shareholder is a body
corporate, it may appoint a natural person as its Representative to
exercise on its behalf any or all of the powers it may
exercise:
(a) at meetings of the shareholders;
(b) at meetings of creditors or debenture holders; or
(c) relating to resolution to be passed without meetings.
18.11 The appointment of a Representative may be a standing one.
18.12 An appointment of a Representative must be in writing and
signed by the body corporate appointing the Representative and
state:
(a) the shareholder's name and address;
(b) the Company's name;
(c) the Representative's name or the name of the office held by the Representative; and
(d) the general meeting at which the Representative may act, or
if the appointment is a standing one, a clear statement to that
effect.
18.13 The instrument appointing the Representative may restrict the exercise of any power.
18.14 A member may revoke the appointment of a Representative
appointed by it by notice to the Company stating that the
appointment of the Representative is revoked or by appointing a new
Representative.
Lodgement of proxy, attorney, or Representative appointment
18.15 An instrument appointing a proxy (and any power of
attorney under which it is signed, or a certified copy of that
power), attorney or a Representative (and any power of attorney
under which it is signed or a certified copy of that power) must be
received by the Company at least 48 hours before the time of the
meeting or adjourned or postponed meeting. If the document is not
received on time, the proxy, attorney, or Representative cannot
vote at the meeting.
18.16 A document appointing a proxy, attorney or Representative
is taken to be received when it is received at any of the
following:
(a) the Company's registered office;
(b) a fax number at the Company's registered office; or
(c) a place, fax number or electronic address specified for the
purpose in the notice of meeting.
18.17 For the purposes of this clause 9 , a proxy, attorney or
Representative appointment received at an electronic address
specified in the notice of meeting for the receipt of proxy,
attorney or Representative appointments or otherwise received by
the Company in accordance with the Corporations Act is taken to
have been signed or executed if the appointment:
(a) includes or is accompanied by a personal identification code
allocated by the Company to the shareholder making the
appointment;
(b) has been authorised by the shareholder in another manner
approved by the directors and specified in or with the notice of
meeting; or
(c) is otherwise authenticated in accordance with the Corporations Act.
18.18 The Company is entitled to clarify with a shareholder any
instruction on an instrument appointing a proxy, attorney or
Representative which is received by the Company by written or
verbal communication. The Company, at its discretion, is entitled
to amend the contents of any instrument appointing a proxy,
attorney or Representative to reflect any clarification in
instruction and the shareholder at that time is taken to have
appointed the Company as its attorney for this purpose.
Validity of votes of proxy or attorney
18.19 A vote cast by a proxy, attorney or Representative will be
valid unless not less than 48 hours before the start of a general
meeting (or, in the case of an adjourned or postponed general
meeting, any lesser time that the directors or the chairperson of
the meeting decide) at which a proxy, attorney or Representative
votes, the Company receives notice of:
(a) the shareholder who appointed the proxy, attorney or
Representative ceasing to be a shareholder;
(b) the revocation of the instrument appointing the proxy, attorney or Representative;
(c) the appointment of a new proxy, attorney or Representative; or
(d) the revocation of any power of attorney under which the
proxy, attorney or Representative was appointed.
No liability
18.20 The Company is not responsible for ensuring:
(a) any direction provided in the instrument appointing the
proxy or attorney or the way in which a proxy or attorney is to
vote on a particular resolution are complied with; and
(b) that the terms of appointment of a Representative are complied with,
and accordingly, is not liable if those directions or terms are
not complied with.
19 Appointment, Removal and Remuneration of Directors
Minimum and maximum number of directors
19.1 The minimum number of directors (not including alternate
directors) is three and the maximum number of directors is ten.
Change to numbers of directors
19.2 Subject to the Corporations Act, the Company may by
resolution increase or decrease the minimum and maximum number of
directors but the minimum must never be less than three.
Period of office
19.3 Each of the directors will hold office until the director
vacates the office or is removed under this constitution.
Election and retirement by rotation
19.4 A director (excluding the managing director) must not hold
office (without re-election) past the third annual general meeting
following the director's appointment or three years, whichever is
later.
19.5 In the event that the Company is required to hold an
election of directors under the Corporations Act or Listing Rules
and no director is required to submit for election or re-election
under clauses 10.4 or 10.13 , then the director who has been in
office longest since their last election or appointment (excluding
the managing director) must retire.
19.6 For the purposes of clause 10.5 , if there are two or more
directors who were last elected or appointed on the same day, and
an agreement cannot be reached between those directors as to who
will retire, the director who will retire will be determined by
lot.
19.7 A retiring director is eligible for re-appointment.
19.8 If there is more than one managing director, only one of
them (as nominated by the other directors) will not be subject to
clause 10.4 or 10.5 .
19.9 The Company may by resolution at an annual general meeting
fill an office vacated by a director under clause 10.4 or clause
10.13 by electing or re-electing an eligible person to that
office.
19.10 The retirement of a director from office and the
re-election of a director or the election of any new director will
not become effective until the end of the meeting at which the
retirement and re-election or election occur.
19.11 A director is not required to retire and is not relieved
from retiring because of a change in the number or identity of the
directors after the date of the notice calling the relevant meeting
but before the meeting closes.
19.12 A person is eligible for election to the office of a director at a general meeting only if:
(a) the person is in office as a director immediately before
that meeting and the directors have recommended the person's
election to shareholders;
(b) the person has been nominated by the directors for election at that meeting; or
(c) in any other case, not less than the number of shareholders
specified in the Corporations Act as being required to give notice
of a resolution at a general meeting of the Company have:
(i) at least 45 Business Days; or
(ii) in the case of a general meeting which the directors have
been duly requested by shareholders under the Act to call, at least
30 Business Days;
(iii) but, in each case, no more than 90 Business Days, before the meeting given the Company;
(iv) a notice signed by the relevant shareholders stating their
intention to nominate the person for election; and
(v) a notice signed by the person nominated stating their consent to the nomination.
Casual vacancy
19.13 The directors have power at any time to appoint any person
to be a director either to fill a casual vacancy or as an addition
to the existing directors. The directors must not make an
appointment so that the total number of directors at any time
exceeds the maximum number fixed in accordance with this
constitution. If a person is appointed as a director by the
directors, unless the person appointed is the managing director,
the Company must confirm the appointment at the next annual general
meeting. If the appointment is not confirmed, the person ceases to
be a director at the conclusion of the annual general meeting.
19.14 If there is more than one managing director, only one of
them is entitled to not have their appointment confirmed under
clause 10.13 .
Directors' remuneration
19.15 The directors are entitled to receive directors' fees for
their services as directors. The Directors as a whole (other than
Executive Directors) may be paid or provided remuneration for their
services the total amount or value of which must not exceed the
maximum amount approved by a resolution of the holders of ordinary
shares in accordance with the Listing Rules. Unless otherwise
directed by the resolution approving the directors' fees, the sum
is to be divided among the directors in such proportions as the
directors may resolve from time to time, or failing agreement,
equally. If a director holds office for less than the whole of the
relevant period in respect of which directors' fees are paid, that
director is only entitled to receive directors' fees in proportion
to the time during the period for which the director has held
office.
19.16 The remuneration of a director must not include a
commission on, or percentage of, operating revenue.
19.17 The directors shall also be entitled to be repaid all
travelling, hotel and other expenses reasonably incurred by them
respectively in connection with the performance of their duties as
directors, including their expenses of travelling to and from board
meetings, committee meetings or general meetings or otherwise
incurred whilst engaged in the business of the Company or in the
discharge of their duties as directors.
19.18 The directors may grant special remuneration to any
director who performs any special or extra services for or at the
request of the Company. Any special remuneration may be made
payable to a director in addition to or in substitution for the
director's directors' fees.
19.19 A director need not be a shareholder in the Company.
Removal of directors
19.20 The Company may remove a director by resolution at a general meeting.
19.21 Subject to the Corporations Act, at least 2 months' notice
must be given to the Company of the intention to move a resolution
to remove a director at a general meeting.
19.22 If notice of intention to move a resolution to remove a
director at a general meeting is received by the Company, the
director must be given a copy of the notice as soon as
practicable.
19.23 The director must be informed that the director may:
(a) submit a written statement to the Company for circulation to
the shareholders before the meeting at which the resolution is put
to a vote; and
(b) speak to the motion to remove the director at the general
meeting at which the resolution is to be put to a vote.
19.24 In addition to the circumstances in which the office of a
director becomes vacant under the Corporations Act and this
constitution, a director ceases to hold office immediately upon any
of the following happening:
(a) the director becomes bankrupt;
(b) the director is subject to assessment or treatment under any
mental health law, or the director or their affairs are made
subject to any law relating to mental health or incompetence;
(c) the director resigns by giving the Company written notice or
if the notice specifies a time at which the resignation is to be
effective, that time, whichever is later;
(d) the director becomes disqualified by law from being a director;
(e) the director is absent from meetings of directors for a
continuous period of three months and a majority of the other
directors have not, within 14 days of having been given a notice by
the secretary giving details of the absence, resolved that leave of
absence be granted; or
(f) the director is disqualified from holding office as a
director of the Company on the grounds of not being 'fit and
proper' within the meaning of any Australian legislation or any
regulatory requirement or standard made in accordance with such
legislation application to the Company.
20 Powers and Duties of Directors
General power of management
20.1 The business of the Company is managed by the directors who
may pay all expenses incurred in promoting and forming the Company
and may exercise all such powers of the Company as are not required
to be exercised by the Company in general meeting.
Borrowing powers
20.2 Without limiting clause 11.1 , the directors may exercise
all the powers of the Company to borrow or otherwise raise money,
to charge any property or business of the Company or all or any of
its uncalled capital and to issue debentures or give any other
security for a debt, liability or obligation of the Company or of
any other person.
Negotiable instruments
20.3 The directors may decide how cheques, promissory notes,
banker's drafts, bills of exchange or other negotiable instruments
must be signed, drawn, accepted, endorsed or otherwise executed, as
applicable, on behalf of the Company.
Ancillary Powers
20.4 The directors may:
(a) appoint or employ any person to be an officer, agent or
attorney of the Company for the purposes, with the powers,
discretions and duties (including those vested in or exercisable by
the directors (other than powers required by law to be dealt with
by the directors acting as a board)), for any period and on the
conditions they decide;
(b) resolve to delegate any of their powers to an officer, agent
or attorney and the officer, agent or attorney must exercise the
powers delegated in accordance with any directions of the
directors;
(c) authorise an officer, agent or attorney to delegate all or
any of the powers, discretions and duties vested in the officer,
agent or attorney; and
(d) subject to any contract between the Company and the relevant
officer, agent or attorney, remove or dismiss any officer, agent or
attorney of the Company at any time, with or without cause.
20.5 A power of attorney may contain such provisions for the
protection and convenience of the attorney or persons dealing with
the attorney as the directors think fit.
21 Proceedings of Directors
Quorum
21.1 The directors may meet together for the dispatch of
business and adjourn and otherwise regulate their meetings as they
think fit.
21.2 No business may be transacted at a meeting of the directors
unless a quorum of directors is present at the time the business is
dealt with. Unless otherwise determined by the directors, two
directors is a quorum.
21.3 An alternate director shall be counted for quorum purposes
as a separate director unless the alternate is another director.
The alternate may only be counted once if the person is an
alternate for more than one director.
Convening of meetings
21.4 A director may at any time, and a secretary must at the
request of a director, convene a meeting of the directors. Notice
of meetings must be given to each director. Notice may be given by
telephone, facsimile, electronically or by any other method agreed
by the directors.
Decisions of the directors
21.5 Questions arising at any meeting of directors shall be
decided by a majority of votes cast by directors present at the
meeting and entitled to vote. A determination of a majority of
directors is for all purposes taken to be a determination of the
directors. If the votes are equal, the chairperson of the meeting
will have a second or casting vote.
Written resolutions
21.6 If a document containing a statement that the signatories
to it are in favour of an identified resolution is signed or
consented to by at least 75% of the directors (or the members of a
committee) entitled to vote on the resolution, a resolution in
those terms shall be deemed to have been passed at a meeting of the
board (or of the committee) held at the time at which the last
director required to constitute at least 75% of the directors
having signed or consented to the resolution signs or consents to
that resolution, provided that the persons signing or consenting to
the statement would constitute a quorum at such a meeting. For the
purposes of this clause 12.6 :
(a) two or more separate documents containing statements in
identical terms each of which is signed or consented to by one or
more directors shall together be deemed to constitute one
document;
(b) a reference to the directors or committee members does not include a reference to:
(i) a director on leave of absence approved by the directors;
(ii) a director who disqualifies himself or herself from
considering the act, matter or thing in question on the grounds
that he or she is not entitled at law to do so or has a conflict of
interest;
(iii) a director who the directors reasonably believe is not
entitled to do the act, matter or thing or to vote on the
resolution in question; and
(c) a telephone call, facsimile, e-mail or communication by
other electronic means received by the Company and expressed to
have been sent for and on behalf of a director or alternate
director signifying assent to the resolution and either setting out
its terms or otherwise clearly identifying them shall be deemed to
be consent by that director or alternate director at the time of
its receipt by the Company.
Telephone and electronic meetings
21.7 While the directors may regulate their meetings as they
think fit, a meeting of directors or committee of directors may be
held by the contemporaneous linking together by telephone or other
electronic means of a sufficient number to constitute a quorum,
where:
(a) all persons participating in the meeting can communicate
with each other instantaneously whether by telephone or other form
of communication;
(b) notice of the meeting is given to all directors entitled to
notice according to the usual procedures determined by the
directors for the giving of notice and such notice does not specify
that directors are required to be present in person;
(c) if a failure in communications prevents clause 12.7(a) from
being satisfied as a result of which one or more directors cease to
participate, the chairperson may adjourn the meeting until the
difficulty is remedied or may, where a quorum of directors remains
present, continue with the meeting. If, as a result of the
technical difficulty, a quorum of directors is not present, then
the meeting is suspended until clause 12.7(a) is satisfied again.
If clause 12.7(a) is not satisfied within 15 minutes from the time
the meeting was interrupted, the meeting is deemed to have
terminated;
(d) a director participating in a meeting by technology is to be
taken to be present in person at the meeting and to have consented
to the holding of the meeting by the use of the relevant
technology; and
(e) any meeting held where any director is not physically
present is treated as held at the place specified in the notice of
meeting as long as at least a director is present there for the
duration of the meeting. If no director is so present, the meeting
is treated as held at the place where the chairperson of the
meeting is located,
and all the provisions in this constitution relating to meetings
of the directors apply, so far as they can and with such changes as
are necessary, to meetings of the directors by technology.
Alternate directors
21.8 A director may, with the approval of a majority of the
other directors, appoint a person to be the director's alternate
director for such period as the director decides.
21.9 An alternate director may, but need not, be a member or a director of the company.
21.10 One person may act as alternate director to more than one director.
21.11 In the absence of the appointor, an alternate director may
exercise any powers (except the power to appoint an alternate
director) that the appointor may exercise.
21.12 An alternate director is entitled, if the appointor does
not attend a meeting of the Board, to attend and vote in place of
and on behalf of the appointor.
21.13 An alternate director is entitled to a separate vote for
each director the alternate director represents in addition to any
vote the alternate director may have as a director in their own
right.
21.14 An alternate director, when acting as a director, is
responsible to the company for their own acts and defaults and is
not to be taken to be the agent of the director by whom he or she
was appointed.
21.15 The office of an alternate director is vacated if and when
the appointor vacates office as a director.
21.16 The appointment of an alternate director may be terminated
or suspended at any time by the appointor or by a majority of the
other directors.
21.17 An appointment, or the termination or suspension of an
appointment of an alternate director, must be in writing and signed
and takes effect only when the company has received notice in
writing of the appointment, termination or suspension.
21.18 An alternate director is not to be taken into account in
determining the minimum or maximum number of directors allowed or
the rotation of directors under this constitution.
21.19 An alternate director is not entitled to receive any
remuneration as a director from the company otherwise than out of
the remuneration of the director appointing the alternate director
but is entitled to travelling, hotel and other expenses reasonably
incurred for the purpose of attending any meeting of the Board at
which the appointor is not present.
21.20 An alternate director ceases to hold office immediately
upon any of the following happening:
(a) the director who appointed the alternate director ceases to be a director;
(b) the director who appointed the alternate director ends the
appointment by giving the alternate director and the directors a
written notice signed by the director;
(c) the period of the appointment ends; or
(d) anything happens that would result in the alternate director
ceasing to be a director if he or she were a director.
Authority to act where vacancy
21.21 If there is a vacancy in the office of a director, the
remaining directors may act. If the number of remaining directors
is less than the number required to constitute a quorum at a
meeting of directors, the directors may, except in the case of an
emergency, act only for the purpose of increasing the number of
directors to a number sufficient to constitute a quorum or to
convene a general meeting of the Company.
Chairperson
21.22 The directors must elect one of their number as
chairperson of the board of directors and determine the period of
office of the chairperson.
21.23 Where a meeting of the directors is held and:
(a) a chairperson of the board of directors has not been elected as provided; or
(b) the chairperson of the board of directors is not present
within 10 minutes after the time appointed for the holding of the
meeting or is unwilling to act;
the directors present may elect one of their number to be
chairperson of the meeting.
Committee of directors
21.24 The directors may delegate any of their powers, other than
powers required by law to be dealt with by the directors acting as
a board, to a committee or committees of directors consisting of at
least one director, or any person or persons.
21.25 A committee or person must exercise the powers delegated
to it according to any directions of the directors and any power so
exercised is deemed to have been exercised by the directors.
21.26 The members of such a committee may elect one of their
number as chairperson of their meetings.
21.27 Where a meeting of a committee is held and:
(a) a chairperson has not been elected as provided by clause 12.26 ; or
(b) the elected chairperson is not present within 10 minutes
after the time appointed for the holding of the meeting or is
unwilling to act;
the members present must elect one of their number to be
chairperson of the meeting.
21.28 Membership of a committee may, if the directors so
resolve, be treated as an extra service or special exertion
performed by the directors for the purposes of clause 10.18 .
21.29 A committee of the directors may meet and adjourn as it thinks fit.
21.30 A question arising at a meeting of a committee must be
determined by a majority of votes of the members present and
voting.
No casting vote
21.31 If the votes are equal, the chairperson of a committee
shall not have a second or casting vote.
Defects in appointments
21.32 All acts done by any meeting of the directors or of a
committee of directors or by any person acting as a director are
deemed to be valid as if all persons had been duly appointed and
were qualified to be a director or a member of the committee.
21.33 Clause 12.32 operates even if it is afterwards discovered
there was some defect in the appointment of a person to be a
director or a member of the committee, or to act as a director, or
that person so appointed was disqualified or not being entitled to
vote.
Director's personal interests
21.34 A director may be employed by, or contract with, the
Company and may be employed by any other company in which the
Company owns shares or has an interest. A director may be an
officer of that other company. However, a director cannot be
employed as the Company's or that other company's auditor. A
director is not required to account to the Company for any profit
or benefit arising from their employment by, or contracting with,
the Company or any other such company merely because of the
director holding office as a director of the Company or because of
the fiduciary obligations arising out of that office.
21.35 The directors may exercise the voting rights conferred by
shares in any body corporate held or owned by the Company in such
manner as the directors think fit (including voting in favour of
any resolution appointing a director as a director or other officer
of that body corporate or voting for the payment of remuneration to
the directors or other officers of that body corporate) and a
director may, if permitted by law, vote in favour of the exercise
of those voting rights even though he or she is or may be about to
be appointed, a director or other officer of that other body
corporate and, as such, interested in the exercise of those voting
rights.
21.36 No contract made by a director with the Company, and no
contract or arrangement entered into by or on behalf of the Company
in which any director may be in any way interested, is avoided or
rendered voidable merely because of the director holding office as
a director of the Company or because of the fiduciary obligations
arising out of that office.
21.37 A director who has a material personal interest in a
matter that relates to the affairs of the Company must give the
other directors notice of the interest if required to do so under
the Corporations Act.
21.38 If there are not enough directors to form a quorum as a
result of a director having an interest which disqualifies them
from voting then one or more of the directors (including those who
have the disqualifying interest in the matter) may call a general
meeting of the Company and the general meeting may pass a
resolution to deal with the matter.
21.39 A director's failure to make disclosure under clause 12.37
does not render void or voidable a contract or arrangement in which
the director has a direct or indirect interest.
21.40 A director is deemed to be not interested in any contract
or arrangement where the only personal interest of the director
arises because the director is also a director of a corporation
which is taken to be a related body corporate of the Company.
21.41 A director is not taken to be interested in any contract
or proposed contract relating to any loan to the Company by reason
only that the director has guaranteed or proposed to guarantee
jointly or severally the repayment of the loan.
21.42 If, because a director is a member of a partnership, or a
director or shareholder of another company, or is in a position to
control another entity, he or she will be personally interested in
any of the Company's contracts or arrangements with that
partnership, company or entity, he or she may give the other
directors a written notice declaring their relationship to that
partnership, company or entity and their consequent interest in all
contracts or arrangements with it. The notice is a sufficient
declaration of interest in relation to any future contracts or
arrangements with that partnership, company or entity.
21.43 If all other directors are aware that a director is a
member of a partnership, or a director or shareholder of another
company, or is in a position to control another entity, that fact
has the same effect as if the director had given the other
directors written notice under clause 12.42 at the time all of them
as a group first became aware of it.
21.44 For the purposes of clause 12.43 , entity includes a trust
or other entity whether it is a legal person or not. The following
are examples of a director being in a position to control an
entity:
1.1.1 the director is the appointor of a trust and has power to remove the trustee;
1.1.2 the director is the sole trustee of a trust; or
1.1.3 the trustee or trustees of a trust are accustomed to act
in accordance with the wishes of the director.
Secretary
21.45 The directors must appoint at least one secretary and may
appoint additional secretaries. A secretary of the Company holds
office on the conditions as to authorities, duties, powers and
remuneration, as the directors determine.
Minutes of meetings
21.46 The directors must cause minutes to be made of:
(a) all appointments of officers made by the directors;
(b) the names of the directors present at each meeting of the
directors and of committees formed by the board; and
(c) all resolutions and proceedings at all meetings of the
Company, the directors and any committees.
21.47 The directors must cause all minutes, except resolutions
in writing, to be signed by the chairperson of the meeting at which
the proceedings took place or by the chairperson of the next
succeeding meeting.
21.48 Any minutes shall be conclusive evidence of proceedings if
they purport to be signed by the chairperson of the meeting at
which the proceedings were held or by the chairperson of the next
succeeding meeting. Minutes shall be kept by the Company secretary
at the registered office of the Company.
21.49 The directors must comply with the provisions of the
Corporations Act in regard to keeping a register of shareholders
and to the production and furnishing of copies of or extracts from
such register.
22 Executive Directors
Appointment
22.1 The directors may appoint one or more directors to be
managing director on the terms and for the length of time that they
consider appropriate. The directors may give the managing director
any of the powers they can exercise. They may also impose any
limitations on the exercise of those powers, and may withdraw or
alter the powers they have conferred.
22.2 The directors may also appoint one or more directors to any
other full-time or substantially full-time executive position in
the Company on such terms as they think fit.
Cessation of appointment
22.3 An Executive Director's appointment as a director ends
immediately if any of the following happen:
(a) the period of the appointment ends in accordance with the
Executive Director's contract of employment; or
(b) the Executive Director ceases to be employed by the Company
or a related body corporate of the Company unless the Executive
Director's contract of employment says otherwise or the directors
determine otherwise.
Remuneration
22.4 An Executive Director, subject to any agreement entered
into in a particular case, may receive such remuneration as the
directors determine.
Powers of managing director
22.5 Any powers of the directors conferred on the managing
director may be concurrent with or to the exclusion of the powers
of the directors.
23 Records
Records
23.1 The directors must determine whether and on what conditions
the accounting records and other documents of the Company or any of
them are open to the inspection of shareholders other than
directors. A person other than a director does not have the right
to inspect any document of the Company except as provided by the
Corporations Act or authorised by the directors or by the Company
in general meeting.
Keeping records
23.2 The directors must ensure that proper accounting and other
records are kept, and all accounts and other documents are
distributed in accordance with the requirements of the Corporations
Act and the Listing Rules.
24 Auditor
24.1 The Company must appoint and may only remove an auditor in
accordance with the Corporations Act.
25 Dividends and Reserves
Determination to pay a dividend
25.1 The directors may pay any dividends that, in their
judgment, the financial position of the Company justifies.
25.2 The directors may rescind a decision to pay a dividend, or
delay payment of a dividend, if they decide before the payment
date, that the Company's financial position no longer justifies the
payment or that it is otherwise in the best interests of the
company that the dividend decision be rescinded.
25.3 The directors may pay any dividend required to be paid
under the terms of issue of a share.
25.4 Payment of a dividend does not require confirmation at a general meeting.
25.5 Subject to any rights or restrictions attached to any shares or class of shares:
(a) all dividends must be paid equally on all shares, except
that a partly paid share confers an entitlement only to the
proportion of the dividend which the amount paid (not credited) on
the share is of the total amounts paid and payable (excluding
amounts credited);
(b) an amount paid or credited as paid on a share in advance of
a call is not taken to be paid or credited as paid on the share
under clause 16.5(a) until it becomes payable; and
(c) interest is not payable by the Company on any dividend.
25.6 To the extent permitted by law, the directors may resolve
to pay a dividend out of any available source.
25.7 Subject to the ASX Settlement Operating Rules, the
directors may fix a record date for a dividend.
25.8 Subject to clause 4.12 , a transfer of any share that has
not been registered or left with the Company for registration on or
before the date determined under clause 16.7 is not effective (as
against the Company) to pass any right or entitlement in respect of
a dividend payable to holders of shares as at that date.
Deduction from dividends of money owing
25.9 The directors may deduct from any dividend payable to a
shareholder any sums of money (if any) presently payable by the
shareholder to the Company and apply the amount so deducted in or
towards satisfaction of the amount owing.
Payment of dividends and other amounts
25.10 A dividend (or other amount) payable to a shareholder may be paid:
(a) by direct payment to the shareholder's bank account;
(b) by a cheque or warrant posted to any of the following:
(i) the shareholder's registered address;
(ii) the registered address of the joint holder of shares who is
named first on the register of shareholders; or
(iii) an address and person nominated by the holder or joint holders of the shares; or
(c) by another means determined by the directors.
25.11 A cheque payable under clause 16.10 may be made payable to
bearer or to the order of the shareholder to whom it is sent or
another person that the shareholder directs and is sent at the
shareholder's risk.
25.12 If:
(a) a shareholder does not have a registered address or the
Company believes that a shareholder is not known at the
shareholder's registered address; or
(b) the directors determine that dividends will be paid by
direct payment to the shareholder's bank account in accordance with
clause 16.10(a) and:
(i) no account (of a type approved by the directors) is nominated by a shareholder; or
(ii) the direct payment into the shareholder's nominated account
is rejected or refunded, the Company may credit the amount payable
to an account of the Company (Company Account) to be held until the
shareholder claims the amount payable or nominates a valid account
into which payment may be made.
25.13 The Company does not hold any money in the Company Account
as a trustee and no interest will be paid to the shareholder on
monies held in the Company Account unless the directors determine
otherwise.
25.14 An amount credited to the Company Account is treated as
paid to the shareholder at the time it is credited to the Company
Account.
25.15 If:
(a) a cheque for an amount payable under clause 16.10(b) is not presented for payment; or
(b) an amount is held in the Company Account,
for more than 11 calendar months, the directors may stop the
payment. The money may be used for the benefit of the Company until
claimed or disposed of in accordance with the laws relating to
unclaimed monies.
25.16 If the directors exercise their power to reinvest under
clause 16.15 and there are residual amounts remaining, the residual
amounts may be retained in the Company Account or donated to a
charity on behalf of the shareholder, as the directors decide.
25.17 The Company's liability to pay the relevant dividend
amount in respect of a shareholder to which clauses 16.10 to 16.19
apply, is discharged when shares are issued or transferred to that
shareholder in accordance with 16.15 .
25.18 The directors may do anything necessary or desirable
(including executing any document) on behalf of the shareholder to
effect the reinvestment under clause 16.15 or donation under clause
16.16 .
25.19 The directors may determine other rules to regulate the
operation of clauses 16.10 to 16.19 and may delegate their power
under this rule to any person.
Transfer of assets
25.20 The directors may direct payment of the dividend wholly or
partly by distribution of specific assets (including shares or
securities of any body corporate or trust) to some or all of the
members. The directors may determine in respect of the payment of
any dividend to allow members to elect to receive the amount of the
dividend to which that member is entitled in shares instead of in
cash.
25.21 To give effect to any direction, the directors may do all
things that they consider appropriate including:
(a) fixing the value for distribution of any specific asset or
any part of any such asset; or
(b) making a cash payment to any member to adjust the value of
distributions made to members.
Authority to capitalise profits
25.22 Subject to the Corporations Act, this constitution, the
Listing Rules and the terms of issue of shares (or classes of
shares), the directors may resolve to capitalise any amount:
(a) forming part of the undivided profits of the Company;
(b) representing profits arising from an ascertained accretion
to capital or a revaluation of the assets of the Company;
(c) arising from the realisation of any assets of the Company; or
(d) otherwise available for distribution as a dividend.
25.23 If the directors exercise their powers pursuant to clause
16.22 , they must not pay the amount in cash, but must use it to
benefit those shareholders who are entitled to dividends in the
proportions that would apply if the entire amount of the profits to
be capitalised were a dividend. The benefit must be given in one
(or partly in one and partly in the other) of the following
ways:
(a) paying up the amounts unpaid on the shareholder's shares;
(b) paying up in full unissued shares to be issued to shareholders as fully paid;
(c) partly paying up any amount unpaid on any share and paying
up in full unissued shares to be issued as fully paid;
(d) issuing shares or debentures of the Company to the shareholder; or
(e) any other method permitted by law.
25.24 The amount capitalised must be applied for the benefit of
shareholders in the proportions in which the shareholders would
have been entitled to dividends if the amount capitalised had been
distributed as a dividend. If fractions of shares or debentures are
initially allocated, the directors may, in their discretion:
(a) issue fractional certificates in the case of unquoted shares;
(b) pay the shareholder the cash equivalent of the fraction; or
(c) round up or down the final allocation.
Ancillary powers
25.25 To give effect to any resolution to reduce the capital of
the Company, to satisfy a dividend as set out in clause 16.20 or to
capitalise any amount under clause 16.22 the directors may settle
as they think expedient any difficulty that arises in making the
distribution or capitalisation and, in particular:
(a) make cash payments in cases where shareholders are entitled
to fractions of shares or other securities;
(b) decide that amounts or fractions of less than a particular
value decided by the directors may be disregarded or rounded up or
down to the nearest whole share to adjust the rights of all
parties;
(c) fix the value for distribution of any specific assets;
(d) pay cash or issue shares or other securities to any
shareholder to adjust the rights of all parties;
(e) vest any of those specific assets, cash, shares or other
securities in a trustee on trust for the persons entitled to the
distribution or capitalised amount; and
(f) authorise any person to make, on behalf of all the
shareholders entitled to any specific assets, cash, shares or other
securities as a result of the distribution or capitalisation, an
agreement with the Company or another person which provides, as
appropriate, for the distribution or issue to them of shares or
other securities credited as fully paid up or for payment by the
Company on their behalf of the amounts or any part of the amounts
remaining unpaid on their existing shares or other securities by
applying their respective proportions of the amount resolved to be
distributed or capitalised.
25.26 Any agreement made under an authority referred to in
clause 16.25(f) is effective and binds all shareholders
concerned.
25.27 If a distribution, transfer or issue of specific assets,
shares or securities to a particular shareholder or shareholders
is, in the directors' discretion, considered impracticable or would
give rise to parcels of securities that do not constitute a
marketable parcel, the directors may make a cash payment to those
shareholders or allocate the assets, shares or securities to a
trustee to be sold on behalf of, and for the benefit of, those
shareholders, instead of making the distribution, transfer or issue
to those shareholders. Any proceeds receivable by shareholders
under this clause 16.27 will be net of expenses incurred by the
Company and trustee in selling the relevant assets, shares or
securities.
25.28 If the Company distributes to shareholders (either
generally or to specific shareholders) securities in the Company or
in another body corporate or trust (whether as a dividend or
otherwise and whether or not for value), each of those shareholders
agrees to become a shareholder or interest holder of that body
corporate or trust and appoints the Company and each director as
their agent to do anything needed to give effect to that
distribution.
Reserves
25.29 Before determining that a dividend be paid, the directors
may set aside out of the Company's profit any amount that they
consider appropriate. This amount does not need to be kept separate
from the Company's other assets and may be used in any way that
profits can be used and can be invested or used in the Company's
business in the interim. However, it must not be used to buy the
Company's shares.
25.30 The directors may appropriate to the profits of the
Company any amount previously set aside as a reserve or
provision.
25.31 The directors may carry forward any part of the profits
remaining that they consider should not be distributed as dividends
or capitalised, without transferring those profits to a reserve or
provision.
Dividend reinvestment plans
25.32 The directors may implement a dividend reinvestment plan
on the terms they think fit under which the whole or any part of a
dividend due to shareholders who participate in the plan on their
shares or any class of shares may be applied in subscribing for
securities of the Company or of another body corporate or
trust.
25.33 The directors may amend, suspend or terminate a dividend
reinvestment plan implemented by them.
Dividend selection plan
25.34 The directors may implement a dividend selection plan on
the terms they think fit under which participants may elect in
respect of all, or part, of their shareholdings:
(a) to receive a dividend from the Company paid wholly or partly
out of a particular fund or reserve or out of profits derived from
a particular source; or
(b) to forego a dividend from the Company in place of another
form of distribution from the Company or another body corporate or
trust.
25.35 The directors may amend, suspend or terminate any dividend
selection plan implemented by them.
Bonus share plan
25.36 The directors may:
(a) implement a bonus share plan on such terms as they think fit
under which participants may elect to forgo the whole or any part
of any dividend due to them on their shares and, in lieu of that
dividend, be issued bonus shares in the company; and
(b) amend, suspend or terminate any bonus share plan so implemented.
26 Winding Up
Division of property among shareholders
26.1 If the Company is wound up, the liquidator may, with the
sanction of a special resolution, divide among the shareholders in
kind the whole or any part of the property of the Company. For this
purpose the liquidator may set such value as the liquidator
considers fair on any property to be so divided and may determine
how the division is to be carried out as between the shareholders
or different classes of shareholders. A division under this clause
17.1 need not accord with the legal rights of the shareholders and,
in particular, any class may be given preferential or special
rights or may be excluded altogether or in part.
26.2 Where a division under clause 17.1 does not accord with the
legal rights of the shareholders, a shareholder is entitled to
dissent and to exercise the same rights as if the special
resolution sanctioning that division were a special resolution
passed under section 507 of the Corporations Act.
26.3 If any of the property to be divided under clause 17.1
includes shares with a liability to calls, any person entitled
under the division to any of the shares may, within 10 days after
the passing of the special resolution referred to in that clause,
by written notice direct the liquidator to sell the person's
proportion of the shares and to account for the net proceeds. The
liquidator must, if practicable, act accordingly.
26.4 Nothing in clauses 17.1 to 17.5 takes away from or affects
any right to exercise any statutory or other power which would have
existed if these clauses were omitted.
26.5 Clause 16.25 applies, so far as it can and with any
necessary changes, to a division by a liquidator under clause 17.1
as if references in clause 16.25 to the directors and to a
distribution or capitalisation were respectively references to the
liquidator and to the division under clause 17.1 .
Vesting property on trustees
26.6 The liquidator may, with the sanction of a special
resolution, vest the whole or any part of any property in trustees
on such trusts for the benefit of contributories as the liquidator
thinks fit, but so that no shareholder is compelled to accept any
shares or other shares in respect of which there is any
liability.
27 Proportional Takeover Bid
27.1 Registration of a transfer giving effect to a contract
resulting from the acceptance of an offer made under a proportional
takeover bid is prohibited unless and until an Approving Resolution
approving the proportional takeover bid is passed or taken to have
been passed in accordance with this clause 18 .
27.2 A person (other than the bidder or an associate of the
bidder) who, as at the end of the day on which the first offer
under the proportional takeover bid was made, held bid class shares
is entitled to:
(a) vote on an Approving Resolution; and
(b) has one vote for each bid class Share held.
27.3 Where offers have been made under a proportional takeover
bid, the directors must ensure that an Approving Resolution is
voted on at a meeting of the persons described in clause 18.2
before the Approving Resolution Deadline.
27.4 An Approving Resolution is passed if more than 50% of the
votes cast on the resolution are cast in favour of the resolution
and otherwise is taken to have been rejected.
27.5 The provisions of this constitution that apply to a general
meeting of the Company apply, with such modifications as the
circumstances require, to a meeting that is called under this
clause 18 as if the meeting was a general meeting of the
Company.
27.6 If an Approving Resolution to approve the proportional
takeover bid is voted on in accordance with this clause 18 before
the Approving Resolution Deadline, the Company must, on or before
the Approving Resolution Deadline, give the bidder and ASX a
written notice stating that an Approving Resolution to approve the
proportional takeover bid has been voted on and whether it was
passed or rejected.
27.7 If no resolution has been voted on in accordance with this
clause 18 as at the end of the day before the Approving Resolution
Deadline, a resolution to approve the proportional takeover bid is
taken, for the purposes of this clause 18 , to have been passed in
accordance with this clause 18 .
27.8 Under the Corporations Act, this clause 18 will
automatically cease to have effect on the third anniversary of the
date of its adoption or as of its most recent renewal.
27.9 In this clause 18 :
Approving Resolution means an ordinary resolution passed by
shareholders approving the transfer giving effect to contracts
resulting from the acceptance of an offer made under a proportional
takeover; and
Approving Resolution Deadline in relation to a proportional
takeover bid means the day that is the 14th day before the last day
of the bid period.
28 Notices
Extended meaning
28.1 In this clause 19 , 'notice' includes documents and other
communication, and in this constitution, a reference to a written
notice includes a notice given by fax or other electronic means. A
signature to a written notice need not be handwritten.
Method
28.2 Without limiting any other way in which notice may be given
to a shareholder under this constitution , the Corporations Act or
the Listing Rules, a notice may be given by the Company to any
shareholder either by:
(a) serving it on the shareholder personally;
(b) leaving it at the shareholder's current address as recorded
in the register or an alternate address nominated by that holder;
or
(c) sending it by post to the shareholder at their address as
shown in the register of shareholders or an alternate address
nominated by that holder or by facsimile or other electronic means
(including providing a URL link to any document or attachment) to
the facsimile number or electronic address supplied by the
shareholder to the Company for the receipt of notices from the
Company.
Deemed receipt
28.3 Where a notice is sent by post, service of the notice is
deemed to be given at 10:00am on the day after the date it is
posted.
28.4 Notices sent by facsimile or other electronic means are
taken to be given at the time it is sent, provided in the case of
facsimile, the correct facsimile number appears on the facsimile
transmission report produced by the sender's facsimile machine.
28.5 A notice (including a notice of meeting given to a
shareholder under section 249J(3)(c) of the Corporations Act
(electronic access)) sent to a shareholder by any other means
permitted by the Corporations Act relating to the giving of notices
and electronic means of access to them is taken to be given on the
Business Day after the day on which the shareholder is notified
that the notice is available.
28.6 Where a shareholder does not have a registered address or
where the Company believes that shareholder is not known at the
shareholder's registered address, all notices are taken to be:
(a) given to the shareholder if the notice is exhibited in the
Company's registered office for a period of 48 hours; and
(b) served at the commencement of that period.
Evidence of service
28.7 A certificate in writing signed by a director or a
secretary of the Company stating that a notice was sent to a
shareholder by post, fax or electronic transmission on a particular
date is conclusive evidence that the notice, document or other
communication was sent on that date.
Notice to joint holders
28.8 A notice may be given by the Company to the joint holders
of a share by giving the notice to the joint holder first named in
the register of shareholders in respect of the share.
Notice in case of death or bankruptcy
28.9 A notice may be given by the Company to a person entitled
to a share in consequence of the death or bankruptcy of a
shareholder by serving it on the person personally or by sending it
to the person by post. A notice sent by post must be addressed by
name, or by the title of representative of the deceased or assignee
of the bankrupt, or by any like description, at the address (if
any) supplied for the purpose by the person or, if such an address
has not been supplied, at the address to which the notice might
have been sent if the death or bankruptcy had not occurred.
Persons entitled to notice
28.10 Notice of every general meeting must be given in the
manner authorised by this constitution to:
(a) every shareholder;
(b) every person entitled to a share due to the death or
bankruptcy of a shareholder who, but for the shareholder's death or
bankruptcy, would be entitled to receive notice of the meeting;
(c) the directors; and
(d) the auditor of the Company.
28.11 No other person is entitled to receive a notice of general meeting.
Persons entitled to shares
28.12 A person who by operation of law, transfer or other means
becomes entitled to any share is bound by every notice given in
accordance with this clause 19 to the person from whom that person
derives title prior to registration of that person in the
register.
29 Indemnity
29.1 To the extent permitted by law and subject to the
restrictions in the Corporations Act, the Company must indemnify
every person who is or has been an officer of the Company or a
subsidiary of the Company (where the Company requested the officer
to accept that appointment) against liability (including liability
for costs and expenses) incurred by that person as an officer of
the Company or subsidiary as the case may be. However, this does
not apply in respect of any of the following:
(a) a liability to the Company or a related body corporate;
(b) a liability to some other person that arises out of conduct
involving a lack of good faith;
(c) a liability for costs and expenses incurred by the officer
in defending civil or criminal proceedings in which judgment is
given against the officer or in which the officer is not acquitted;
or
(d) a liability for costs and expenses incurred by the officer
in connection with an unsuccessful application for relief under the
Corporations Act, in connection with the proceedings referred to in
the preceding paragraph.
29.2 Without limiting clause 20.1 , to the extent permitted by
law and subject to the restrictions in the Corporations Act, the
Company must indemnify and continually indemnify every person who
is or has been an officer of the Company or a subsidiary of the
Company (where the Company requested the officer to accept that
appointment) against reasonable legal costs incurred in defending
an action for a liability incurred or allegedly incurred by that
person as an officer of the Company or subsidiary as the case may
be.
29.3 The amount of any indemnity payable under clauses 20.1 and
20.2 will include an additional amount (GST Amount) equal to any
GST payable by the officer being indemnified (Indemnified Officer)
in connection with the indemnity (less the amount of any input tax
credit claimable by the Indemnified Officer in connection with the
indemnity). Payment of any indemnity which includes a GST Amount is
conditional upon the Indemnified Officer providing the Company with
a GST tax invoice for the GST Amount.
29.4 The directors may agree to advance to an officer an amount
which it might otherwise be liable to pay to the officer under
clause 20.1 on such terms as the directors think fit but which are
consistent with this clause, pending the outcome of any findings of
a relevant court or tribunal which would have a bearing on whether
the Company is in fact liable to indemnify the officer under clause
20.1 . If after the Company makes the advance, the directors form
the view that the Company is not liable to indemnify the officer,
the Company may recover any advance from the officer as a debt due
by the officer to the Company.
Former officers
29.5 Each of the indemnities in this clause 20 are continuing
indemnities which apply in respect of all acts done by a person
while an officer of the Company or one of its subsidiaries even
though the person is not an officer at the time the claim is
made.
Insurance premiums
29.6 The Company may pay the premium on a policy of insurance in
respect of a person who is or has been an officer of the Company
(where the Company requested the officer to accept that
appointment), to the full extent permitted by the Corporations
Act.
30 Security Interests
30.1 If any provision of this constitution creates a security
interest in shares or other personal property (Collateral) to which
the PPSA applies:
(a) the Company need not comply with any provisions of the PPSA
that the parties may contract out of in relation to the Collateral;
and
(b) shareholders may not exercise any rights under sections 142
(redemption of collateral) or 143 (reinstatement of security
agreement) of the PPSA to the extent the law permits those rights
to be excluded.
30.2 The Company need not give the shareholder any other notice
required under the PPSA (including a notice of verification
statements under section 157 of the PPSA) unless the notice cannot
be excluded.
31 Seals
Adoption of Common Seal
31.1 The directors may provide for the Company to have a seal or
for the Company to no longer have a common seal.
31.2 Clauses 22.3 to 22.10 only apply if the Company has a common seal.
Use of Seal
31.3 The Seal must be used only by the authority of the
directors or a committee of the directors authorised by the
directors to authorise the use of the Seal.
31.4 The authority to use the Seal may be given before or after the Seal is used.
31.5 Subject to clauses 22.4 and 22.10 , until the directors
otherwise determine, the fixing of the Seal to a document must be
witnessed by a director and by another director, a secretary or
another person appointed by the directors to witness that document
or a class of documents in which that document is included.
Duplicate seal
31.6 The Company may have for use in place of its common seal
outside the state or territory where its common seal is kept one or
more duplicate seals, each of which must be a facsimile of the
common seal of the Company with the addition on its face of the
words "duplicate seal" and the name of the place where it is to be
used.
31.7 A document sealed with a duplicate seal is to be taken as
having been sealed with the common seal of the Company.
Share seal or certificate seal
31.8 The Company may have for use on certificates for securities
of the Company in place of its common seal one or more duplicate
seals, each of which must be a facsimile of the common seal of the
Company with the addition on its face of the words "share seal" or
"certificate seal".
31.9 A certificate for securities of the Company sealed with a
share seal or certificate seal or in the manner contemplated in
clause 22.10 is to be taken as having been sealed with the common
seal of the Company.
Sealing and signing of certificates
31.10 The directors may determine either generally or in a
particular case that the seal and the signature of any director,
secretary or other person is to be printed on or affixed to any
certificates for securities in the Company by some mechanical or
other means.
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END
NOAFSISIFEDSEIE
(END) Dow Jones Newswires
December 01, 2023 02:00 ET (07:00 GMT)
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